Creative Rights in the Electronic Age
by herm a. toba, studio G

Introduction

Ann K. Moceyunas, in her essay titled "Introduction to Computer Law" states: "There is no law that is specifically labelled 'computer law' or 'technology law'. Computer law refers to the existing law as it is being shaped by its application to the problems arising from the creation, distribution, sale, and use of computer software and hardware and related services."1 As a society, we hope the new technology will fit into an old regulations.

Essentially, there are three major areas of computer law:
- Intellectual Property Law - encompassing trade secrets and confidential business information, patents, trademarks, and copyrights
- Privacy and Criminal Laws - imposing external restraints on personal conduct involving computers
- Contract Law - including all forms of private agreements and those governed by the Uniform Commercial Code.2

Both contract law and privacy issues have been altered by the computer age but have been served well by traditional business law. Intellectual property rights have changed much more dramatically. Original legislation and many amendments (Copyright Act of 1976) have strived to promote the progress of science and useful arts.3 It was formulated to be flexible with changes in technology. With all the hype and glitter surrounding the internet and the transferability of electronic files many feel they have lost control of their work.

The way it used to be...
Copyright laws have been well delineated through past legislation, judicial decisions and experiences. At it's essence, it is the protection of ideas.4 It has shaped the way businesses proceed with product development and its release to the public. With the advancement of electronic technologies and electronic publishing via the internet, the protection of creative rights, commonly referred as "book models" is still valid but badly outdated. It holds computer publishers to the same rules applied to bookstores, newsstands and publishing houses. It is clear and simple for a book publisher to read a magazine, see their work in print and claim infringement leaving the magazine publisher liable. Since 1986, even without an official copyright from the U.S. Patent & Trademark Office (PTO), once a work is "fixed in a tangible medium of expression" it is legally the owners property and may not be reproduced without permission.5 Registration offers a higher degree of protection and damages by the courts. However, these principles are applied without much consideration of the nature of the media, especially digital media.
What has changed because of computing?
The wrinkle introduced by electronic media has two elements. First, electronic copies are identical to the original in all ways. The second is they are very simple to obtain and transmit. In 1993, a presidential task force, Information Infrastructure Task Force (IITF) studied these issues which led to few answers and many more questions including definitions of "fair use" and other liability issues.6 These issues are being decided daily at a variety of levels.

Currently, the hot topic is international infringement. The internet and electronic publishing have 'shrunk' the world. We now speak of world economies and global communities. However, patent law is, at best, federally (nationally) enforced. How can creative property be protected abroad? Mark Radcliffe, a multimedia attorney states, "On-line is global; copyright is country-by-country. The core-about 65% of the countries-has similar rights and laws. The remaining 35% is radically different."7 Previously, international rights could be protected (though somewhat ineffectively) through trade sanctions and boycotts. Since it is nearly impossible to construct such limitations on the internet it has become a black hole for many ideas and products. The ongoing trade talks with China are an excellent example of the helplessness of the U.S. in these new markets.

Present opinions and positions
Since controversy usually seems to lead to polarization we have many factions of thought. Content creators (artists, writers, musicians, etc.) are advised to give away as few rights as possible and retain control of their work. Content providers (online services, ad agencies, marketing firms, etc.) are strongly advised to acquire the rights to published material to secure their business' position. Often the initial work agreement or contract will state reproduction rights are included in the price of the work. It is a classic struggle that has been repeating itself since man put pen to paper or even chisel to stone.

While the commercial entities are battling over payments and reproduction rights there is another opinion promoted by the likes of the Free Software Foundation (which developed GNU) and the Electronic Freedom Foundation (specializing in dissemination of published materials). One proponent, Richard Stallman, the founder of the Free Software Foundation, states:

"...when we speak of free software, we are referring to freedom, not price. ...the fundamental act of friendship among programmers is the sharing of programs; marketing arrangements now typically used essentially forbid programmers to treat each other as friends...copy all or parts of a program is a natural to a programmer as breathing."8
Of course, it is ultimately the author/owner's decision whether to give their work away and these types of organizations wish to protect the author's rights through copyrighting and licensing agreements. While some pursue this option for altruistic reasons many choose free distribution as a marketing technique to capture marketshare such as Netscape's browser software which has become an software staple of the internet.

While the creative communities play out the yours/mine scenario, business is quick to point out America has an intellectual trade surplus of 30 million dollars annually. Many Asian and European companies hope to relax copyright restrictions and benefit from US ingenuity.9 They feel to stay competitive in the world market ideas and intellectual property must be further protected.

Are there any winners?
Popular opinion seems to show broad support for international protection, even to the point of trade sanctions and military intervention. However, making others hungry and scared rarely convinces them of an opposing point of view.

Probably the most benefited are lawyers and legislators. We have a whole new arena of property rights and protection which needs to be defined and tested. They stand to benefit from all sides of the argument. Aron Kahn, a graphic designer and electronic publisher, recounted his experience with Mattel:

"I have collected toy cars as a hobby for many years and decided to create a 'fan' page [on the WWW]...thinking Mattel wouldn't care if they got some free advertising. Well, I was wrong...and the lawyer explained on the phone that they did not want to squash the fans' enthusiasm but their trademarks, logos and copyrights need to be protected. Needless to say, I complied with their order to cease and desist."10
Those involved with both creation and distribution will be helped through the delineation of ownership and licensing agreements (which creates more work for lawyers). Authors can retain ownership and continue to develop their products while distributors are able to disseminate the product for use in a limited fashion described in the licensing or shrinkwrap agreements. Also, those who are interested may pursue free distribution at any level they wish with their creative rights intact. For programs which require a high level of protection hardware keys and password validation can be very effective.

Ultimately, however, it is the consumer, domestic and abroad, which pushes these ideals to the limit. As Stallman says, it is natural for people to share or copy each other's work regardless of the legality. Copying a file is one of the basic skills taught to novice users. However, this skill is taught without a mention of what types of files are appropriate to copy. Only the end user can act responsibly under the conditions of the software's use agreements will the problems of misuse disappear.

Literature Cited
Information Infrastructure Task Force (IITF). GPO Pub# 447, 1993.
Joss, Molly W. "Copyright in the Cyber Age". Computer Artist, Aug/Sept, 1995. Penwell Publishing Company: Nashua, NH. pp 27-36.
Kahn, Aron. Personal Interview @ studioG. April, 23, 1996.
Moceyunas, Ann K. "Introduction to Computer Law". August, 1995. <www.netlaw.com>.
Stefanac, Susan. "Copyright Ain't Dead...Yet". MacWorld, June 1996.
International Data Group: San Francisco, CA. pp 137-140.
Trudel, John. "Trudel Form." Electronic Design. Oct 2, 1995. <www.best.com/~inp>

Endnotes
1 Moceyunas, Ann K. "Introduction to Computer Law". August, 1995. <www.netlaw.com>
2 Stefanac, Susan. "Copyright Ain't Dead...Yet". MacWorld, June 1996. p 137.
3 Joss, Molly W. "Copyright in the Cyber Age". Computer Artist, Aug/Sept, 1995. p27.
4 Stefanac, S. p 138.
5 Stefanac, S. p 137.
6 Information Infrastructure Task Force (IITF). GPO Pub# 447, 1993. p24.
7 Joss, Molly W. p29.
8 Joss, Molly W. p34.
9 Trudel, John. "Trudel Form." Oct 2, 1995. p. 64.
10 Kahn, Aron. Personal Interview, April, 23, 1996.

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