The effect of digital technology on copyright law is an effect that can be measured by looking at how laws relating to the field of computing and intangible digital works have changed over the past two decades. The changes implemented however, are not necessarily representative of the changes that need to be implemented to protect people using digital technology to create works of an intangible nature. Intellectual property is defined as:
“A product of the intellect that has commercial value, including copyrighted property such as literary or artistic works, and ideational property, such as patents, appellations of origin, business methods, and industrial processes”
It can also be described as:
“A general name for property (such as patents, trademarks, and copyright material) which is the product of invention or creativity, and which does not exist in a tangible, physical form”
The oxford dictionary also describes a case stating the purpose of laws protecting intellectual property: “intellectual property, the labours of the mind, productions and interests are as much a man’s own as the wheat he cultivates” and describes intellectual property as “relating to: literary, artistic and scientific works, industrial designs, trademarks etc.”
The difficulty with copyright laws and digital technology is that digital in itself is inherently intangible. An idea that only exists as a series of zero’s and one’s electronically. The nature of digital information is also one that is yet to be completely gauged, its fragility is recognised, but its longevity is neither safeguarded nor has been properly tested. The format of a digital file causes issues with whether a file is reusable on another platform, let alone on another computer system in 20 years time.
Also one of the advantages of digital is one of the key problems in copyrighting of material. A file that is created digitally and copied digitally is not specifically a copy of the original – it is an exact recreation and representation of the original file. No flaws exist in a digital ‘copy’, for all intensive purposes it ‘is’ the original. If a digital image is used by someone other than the original creator, and does not ask permission nor provide credit for the original artist then they are in breach of copyright laws, however, if there is no way to prove who created the original file then there is nothing that can be done for the original artist.
If we are going to use digital methods to create art, music, books, articles, databases etc. as we have mentioned in other sections of this portfolio then we need the correct protection methods to be able to do so. There exists a range of tools that can be employed such as simple password protection and watermarking, or digital steganography to help prove the ownership of digital material, and to prevent others from using digital material. On top of this there are laws for patents and trademarks that will protect owners from theft of innovations (scientific, software, chemical, mechanical) or trademarks (brand names, apple, Nike) respectively.
Deegan and Tanner however show that the hacker is never far behind cracking such digital markers, and as such the works created digitally that sit broadly under copyright law are extremely difficult to protect against theft and unauthorised usage. The problem described by them, is one of proving authenticity, and the laws that are created to help the creator of archives and materials need to better understand the functional requirements for authenticity on the part of creators and users of digital resources.
Overall how do the laws allow the author to use the work? And what protection does it provide? The senior advisor of the Labour Party business manifesto for 2005 describes the following: “Copyright was originally conceived as a means for delivering a balance between the rights of the inventor and the rights of subsequent others to build on the development and use it as a trigger for innovation, over the years that balance tipped further in favour of the original inventor rather than others being free to use it in further developments.”
This is interesting in terms of what we have looked at in digtial art. Some of the work produced by Thomson and Craighead such as Decorative News Feeds and Driving Through Las Vegas. These works are considered art, but ecause they have become art what effect does this have on people wanting to use and develop the technological ideas, and not the artistic expression. These two works although atistically could be considered important, resemble ‘tricks’ or routines that the average programmer or web designer may use to liven up a website or to provide entertainment for others in a program or again, a website or presentation. In some cases such routines might not be considered revolutionary in the computing world, combining and manipulating two easy to control technologies, in others the combination might be considered an intelligent work that can be used if given credit for, if necessary i.e. someone expresses interest, or a notice explaining the work is someone elses, or granting a license to another user, but even then, this won’t be considered as art. A debate exists, but it cannot be discussed here.
This example does however point out a mismatch between how intellectual property laws are seen by professionals. In one respect they don’t provide enough protection for the author, but in others they are seen to favour the creator of works, stifling development and innovation. The rest of the statement showing the changes necessary is as follows: “We will modernise copyright and intellectual property regimes so that in a digital age creators, entrepreneurs and creative industries can invest in ideas and talent knowing they will get a proper reward for their investment.”. The mismatch however is also shown with companies such as Microsoft trying to show the issues involved by offering a prize of £2,000 for the best film that helps to raise awareness of intellectual property theft1. The mismatch appears in at least two of the three areas of intellectual property law, Copyright and Patents. Microsoft currently in a lawsuit themselves for alleged patent infringement on technology created by Alacritech, a networking company.
While protection of our intellectual property rights is important regardless of working in analogue or digital there are other issues raised when methods go too far. For example, the UK has no specific protection for databases. The database is a collection of information and materials, but it is not seen as original work therefore there is no protection. The EU on the other hand has protection for databases of substantial investment. In America gaps exist in similar laws because of emerging technologies such as the Internet and other improving technologies. To combat these gaps however proposals have been made to strengthen the laws.
Databases contain individual pieces of information and details, and more importantly they can contain facts and ideas. As well as protecting the databases, they propose that facts and ideas are held under copyright laws. These facts could range from the electrodynamic theory of light in science to the theories of modularity and best programming practices in software engineering and computer science. These laws would affect publishers of these facts such as the British Computing Society, or the IEEE, or even researchers in such a way that they could be made to pay for each individual fact used in the course of research. Vaughn (2005) discusses the difficulty of gaining adequate access to copyrighted material such as pictures for teaching purposes in the UK without having to pay a substantial amount to owners, who are generally large institutions and require membership, the difficulty is such that using copyrighted material without permission becomes an understandable temptation. Should scientific facts and knowledge be protected in such a way under intellectual property law then it could be damaging to education, it would restrict creativity and technological development. Grove (2004) points out that in this case overprotection far exceeds the cost of under protection.
Currently the law relating to digital works is created through comparison by analogy to existing laws relating to literary works, film and other media, and other cultural works, inventions in the field of science, engineering, software etc. Questions arise to the suitability of such methods of creating the law. While some digital material is similar to analogue material, digital often affords us the chance to enhance the analogue counterpart. In the field of databases for example many years could be taken to create a paper database. A digital database with the equivalent number of man years of material could be created within weeks with new methods of collecting and collating data, yet the law relating to a more valuable database are exactly the same – although data collection using the computer is quicker, the complete database could be copied in a fraction of that time still. Used without permission and advantages gained from would be unfair to the author.
Computers do not change the intentions of intellectual property laws, but they do change the way we have to protect and think about protecting intellectual property. In the same way technology is evolving to help us create new material, the laws should change to reflect this, but it is necessary that it be done in such a way that it respects the idea that “the open exchange of such data and information is fundamental to the advancement of knowledge, technology and culture”2. And to ensure that the intangible costs of overprotection do not outweigh those of under protection.
References
www.computing.co.uk/news/1162977 - accessed June 12th 2005
www.computing.co.uk/news/1162915 - accessed June 12th 2005
www.computing.co.uk/vnunet/news/2127143/legal-action-threatens-microsoft-longhorn - accessed June 12th 2005
Deegan, M. Tanner, S. (2002). Digital Futures: Strategies for the Information Age. Library Association Publishing, London
Grove, J. Wanted: Public Policies that Foster the Creation of Knowledge. Communications of the ACM, 47(5), May 2004, pp23-25
www.oed.com - accessed June 12th 2005
Samuelson, P. Why Reform the U.S. Patent System? Communications of the ACM, 47(6), June 2004, pp19-23
Vaughn, W. History of Art in the Digital Age. Problems and Possibilities. 2005
Wang, H. Shuozhong, W. Cyber Warfare: Steganography vs. Steganalysis. Communications of the ACM, 47(10), October 2004, pp76-82
www.yourdictionary.com - accessed June 12th 2005