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COPYRIGHT AND CHOICE OF LAW IN THE AGE OF INTERNET

COPYRIGHT AND CHOICE OF LAW IN THE AGE OF INTERNET

Copyright law is considered the largest revolution in the intellectual property system since it offers protections to the owner of the original work against possible duplication. The owner of a work protected by copyright appears to be provided extensive protection under copyright law, since they are not only protected against actual copying but also compensated in the case of a breach in the form of damages. However, when the government established the Copyright Act, technology was less advanced, and the digital era had not yet started. However, with the development of technology, it appears that the Copyright Act falls short in addressing the issues brought on by new digital data transmission and technology. The Internet has proven to be a serious issue in the legal community because of its international scope, which transcends national boundaries. The same is true of copyright. There is no doubting that, in terms of legality and jurisdiction, the Internet is a “no man’s” land. Which domestic laws will regulate the countless cases of internet exploitation and infringement of works protected by copyright? Which court will have the power to make decisions on copyright breaches that are committed online? However, copyright rules have mostly remained “territorial,” despite the fact that markets have become increasingly “global.” The importance of jurisdictional and governing law questions has increased in the field of intellectual property law. Current rules for jurisdiction and law selection as to copyrights are derived from two sources:

 (1) Copyright regulations (national legislation and international copyright agreements); and

(2) International private law is in effect (rules on jurisdiction and choice of law provided in domestic laws and international instruments).

Historical development of technology and challenges to copyright laws

The 1980s saw the primary replacement of analog technology by digital technology. While the sale of Compact Disks[1] was at a historic high, sales of analog picture albums were beginning to trend downward. In comparison to analog logs of transmission like television, radio, and fiber optic cable, digital logs of transmission of data were therefore becoming more prevalent. Furthermore, the improvement in quality, the low cost of transmission, and the rapid data transfer and recording speeds were the key drivers behind this abrupt switch from analog to digital transmission.

Digital-era issues with the Copyright Act

Due to this, three significant problems have arisen due to the development of technology that the Copyright Act must address. The Copyright Act’s primary flaw is that it does not have any effective enforcement mechanisms for dealing with the increasing online infringement of works protected by copyright that would occur in the digital age. Due to privacy concerns, legal restrictions, and widespread public acceptance of digital copying, online infringement is challenging to identify. As a result, both options will make it harder to enforce the copyright laws. Fair use being allowed by the Copyright Act is the second significant problem with the digital age. In accordance with the fair use policy, the Act authorizes copying of the work for personal use. Thus, The Copyright Act will find it increasingly harder to stop such unlawful use since anyone would be able to copy the copyrighted material for fair use and distribute it online without authorization. The third and most serious problem with the current copyright system is that the copyright act gives the term “copyrighted work” a very limited definition. Therefore, copyrighted work is not given any kind of online protection and is not given online protection through judicial pronouncements. These problems will therefore undermine the intellectual property system if they are not resolved.

Cases relating to Copyright

1-ABS Entertainment v. CBS Corporation

The U.S. Court of Appeals for the Ninth Circuit overturned the lower court’s grant of summary judgment to CBS, concluding that “the district court erred in concluding that plaintiffs’ state copyright interest in the pre-1972 sound recordings” and that “the creation of an authorized digital premastering of pre-1972 analog sound recordings that qualify as copyrightable derivative works does not bring the premastered sound recordings exclusively under the ambit of federal law.”[2]

Alternatives to the issues with copyright in the digital age[3]

  • Technology and Contract for Anti-Theft:

With the development of technology, it is becoming increasingly difficult for the market to defend intellectual works on its own without correct legal recourse. Protecting such work becomes increasingly more crucial as a result of the constant innovation and expansion of technology. However, one of these programs, called software protection devices, which forbids users from copying data and software onto blank drives, may prove to be helpful and go a long way toward preventing digital piracy.

  • Financial Transactions:

When two businesses enter into a contract, it has been observed that they must each share the other’s confidential information. Contractual clauses requiring the other party to delete and destroy such confidential information after the term of the agreement has expired can be very useful in preventing copyright infringement in these situations.

Mistakes made by the current system’s copyright laws

Enforcement:[4]

In the digital age, the enforcement of the copyright law is the main problem. The legislative process that resulted in the creation of the Copyright Act did not take into account remedies for digital infringement since the digital era was not yet fully developed. Tracing the origins of an infringement has also grown more challenging with the development and use of Virtual Portable Networks. The Right to Privacy’s elevation to the rank of a Fundamental Right also presents significant problems for the enforcement of Copyright Law. Due to the fact that copyrighted works are typically recorded and transmitted within the confines of one’s home, it is now nearly impossible to trace the source of an infringement without violating a person’s privacy rights.

  • Public perception of copyright violations:

The public’s attitude regarding copyright violations and piracy goes hand in hand with the inquiry. As a result, public participation becomes crucial when handling copyright infringement cases. Contrarily, public perception might also make it difficult to address copyright violations. People all over the world are more used to recording works and materials that are protected by intellectual property. Additionally, some surveys reveal that a majority of the populace finds illicit copying to be generally acceptable. This is mostly due to the fact that the public may get these pirated works for little to no money, and occasionally even for nothing. And since this behavior has been common since the analog period, it is unlikely to alter in the digital future either.

  • The protected work’s definition:

What is specifically protected under the current copyright framework’s rules not stated? Since the original work is not specifically described anywhere, the Copyright Act simply offers protection to it. As a result, it becomes very challenging for the courts to determine the scope of such a work, whether one’s work is included or not, and, if included, whether copying the work constitutes copyright infringement or not.

CONCLUSION

A copyright law takes a lot of time and effort to develop. But when technology develops, laws must be revised to reflect the most recent norms. Whether the breach takes place in the digital or analog periods, copyright law provisions will not be able to safeguard the interests of the work’s owner if such modifications are not made within the authorized time limit. The original intent of copyright legislation, it is important to remember, was to protect the free interchange of knowledge for the benefit of the public, not to impose limitations on how it was used. For that idea to serve as our guiding principle, we must reassert our commitment to preserving the rights of both the creators and the users of that content. In the context of online course delivery, we may frequently find ourselves juggling both responsibilities at once. Although the electronic world poses additional challenges for the existing copyright rules, many of these challenges may be removed by informing the public about appropriate information uses. People who violate copyright regulations in the digital realm frequently do so out of ignorance. As responsible Internet users, it is our responsibility to educate others on the spirit and application of copyright law, which ultimately hinges on respecting the creators and consumers of information as well as the value of knowledge as both a private and a public good, as well as for us and others.

Author(s) Name: Akarsha Bajpai (University of Lucknow, Lucknow)

References:

[1] “Copyright Choice of Law and Jurisdiction in the Digital Age” (The Gravitas Review of Business & Property Law) <https://gravitasreview.com.ng/shop/copyright-choice-of-law/> accessed November 15, 2022

[2] “Copyright Law in 2018: Top 10 Court Cases | CCC Blog” (Copyright Clearance Center, January 18, 2019) <https://www.copyright.com/blog/copyright-law-in-2018-top-10-court-cases/> accessed November 26, 2022

[3] “Impact Of Digital Technology On Copyright Law” (Impact Of Digital Technology On Copyright Law) <https://legalserviceindia.com/legal/article-6892-impact-of-digital-technology-on-copyright-law.html> accessed November 26, 2022

[4] “Http://Web.Worldbank.Org/Archive/website00236B/WEB/COPY_01.HTM” <http://web.worldbank.org/archive/website00236B/WEB/COPY_01.HTM> accessed November 26, 2022.