Intellectual Property Law: Protection Of Derivative Works
The advent of digital technologies has changed operational principles of many industries and businesses. Primarily, this has concerned the way how users access and retrieve information, which switched on different techniques on data protection and digital distribution. Many cultural industries were forced to adopt different strategies for survival, as their past age distribution schemes became irrelevant. It is still arguable whether digitalisation of copyrights, speaking a business language, was an opportunity or a threat, but some processes that happened through the recent decades are worth analysing in order to come to a logical conclusion. So, it is argued that derivative works should be actually protected, since spreading awareness through inspiration is still an own work of the individual.
To explain this reasoning, it is worth considering the case of music industry. Music industry as a cultural construct has been always related with targeting different groups of listeners depending on their cultural preferences. Promoting music to masses has put a start to the evolution of selling music albums and records through establishment of phonographic industry, where the rise of companies like Warner Music Group, EMI, Sony Music Entertainment, and Universal Music Group has been observed. The main problem existed before an advent of music digitalization is that records were provided in limited amount carried on audio tape, CD or LP, which were a subject for a pricing policy determined by the copyright owners. In this way, for example, a single record by a good reputation singer could cost five times more than an album of an industry starter, which has certainly had clear elements of industry monopolisation. The first historical milestone that changed the perception of music industry as costly monopoly could be dated in 1998, when Shawn Fanning introduced Napster. Napster introduced user-friendly interface that allowed free downloading and transferring MP3 files between individual users connected through Internet, which included copyrighted videos and music files. Since copyright owners have not been compensated for this revolutionary online distribution method, introduction of Napster has been considered as an advent of digital music piracy.
Napster has brought a start to the great development of P2P (peer-to-peer) sharing services that allowed data sharing through a simple installation of the program to personal computer and stable Internet connection. Kazaa, Morpheus and Bit Torrent has adopted more advanced algorithms of data exchange which allowed trading music online and exchange of larger data formats of a higher quality. Such shift in data availability has struggled both music industry leaders, and the entertainment industry overall, which has small but valuable percentage of country’s Gross Domestic Product (GDP) index. Industry leaders in conjunction with governments have been trying to seek for possible problem resolutions in forms of P2P witch hunting, prohibiting digital piracy and heavily criticizing this in media. Users, in their turn, appeared to be more resourceful, asking for the rationale behind copyrighting music that has been already purchased. Debates around the legality of music sharing through P2P applications concern two sets of rights: economic and human. Regarding the music industry, the first group of rights includes, for instance, the rights of reproduction, broadcasting, public performance, adaptation, translation or recitation, while the second concerns author’s right to object to any distortion, mutilation or other modification of his work.
Economic and human rights are subsets of copyright principle, which formulates the rules for existence of cultural industries. These rules assume that copyright owners (authors and composers) interact with related rights owners, mostly performers or broadcast organization, which in their turn a granted license to deliver the product to the customers, which are listeners. Introduction of P2P sharing has actually damaged this process, since the need for license has disappeared. Industry related institutions, like collective management organizations (CMOs) responsible for copyright laws against the unlicensed digital product distribution, have started to seek for techniques of multi regional licensing with online music available across the world. Another fact, which is not clearly covered by policy makers in CMOs, is the mediating effect the file sharing has on listeners. While having an opportunity to listen to the record and evaluate its quality prior to the purchase, listeners are likely to engage into the more interactive experience sharing. PRS Music, for example, confirmed that revenues from live concerts have been growing even in times of P2P sharing evolution, so physical presence is still important for the digital age. Users actually have more ways to interact with music companies by downloading licensed content, and more important they would be willing to do that as a simpler mean of communication. For the music industry, it means that instead of heavy policy making and criticizing P2P file sharing. CMOs should seek for more intense collaboration with IT companies on development of applications that are using advanced encryption algorithms that prevent unauthorized content access.
Andersen (2010) articulated an example of Digital Economy Act, which had an adverse effect through “permitting the slowing down or temporary suspension of broadband connections to households” attempting to regulate unsolicited access. Another perspective is that governments frequently introduce initiatives to protect copyright laws, but alternatively attempt to limit the freedom of information sharing. Stop Online Piracy Act, also known as SOPA, is a United States bill introduced to Senate on October 26, 2011, and aimed at expanding the powers of the legislation to prosecute online property theft and allow copyright owners take legal action against piracy intermediaries (including search engines, payment services, and ISPs). An intermediary in this case is any agent that supplies money and traffic to web sites that have pirated content. The bill is capable of forcing such intermediaries cut off their connections with pirate sites; otherwise, the bill holds that they are to face lawsuits.
Generally, the Act has a good intention of protecting copyright holders against illegal action. It should also be stated that the Act is targeted at protecting intellectual property rights as well as jobs at content making (films, music and books as well as other forms of copyrighted material). It can be acknowledged that businesses need more strong protection against piracy, especially, against piracy on foreign websites; moreover, search engines have to trim their incomes from advertisement on piracy holding sites. The Act will ensure that search engines would display only legal content when asked for a film or song download. However, the Act has certain drawbacks that lie primarily within the premise of providing an enough definition of piracy. This leads to a situation when legal websites, unaware of the fact that they are holding illegal content, are going to be prosecuted for links that users post. In the Web 2. 0 era, when social networks appear to be the locomotive of the Internet, this provision endangers the very nature of online networking. This may not be the issue for large companies; meanwhile, start-ups will find it difficult to bear the costs of lawsuits.
Another issue arises for websites that host links to content stored on servers overseas. Since American law is unable to fight Internet piracy overseas, SOPA will be used to combat local content owners that lead users to unverified sources of information. The greatest fear of SOPA opponents is that the Act would enable legislators and prosecutors to close search engines and Internet domains for links that are posted by users. One more problem that arises with SOPA being put to action is tightly connected with Internet architecture. The main problem is that the Act requires Internet Service Providers (ISPs) to install filters to pirated content. Those filters would limit access to pirated content on the “hardware” basis.
However, this suggests that such filters could damage the internal addressing system of the Internet. Such forms of filtering are likely to increase costs and provoke new security issues for ISPs. The Act received enormous attention online, both in the United States and globally. It was opposed by multiple renowned Internet domains and their owners. Among the opponents were Wikipedia, Google, Mozilla and Reddit that blacked out their websites and posted links to the bill as well as multiple infografics explaining the major problems behind SOPA. Eric Schmidt (Google’s CEO) stated that the Act was a shortcut for online censorship. In general, fears of SOPA center on the assumption that the Act limits freedom of speech in the United States.
