International copyright and the challenges of digital technology

Abstract

Digital technology is challenging traditional copyright principles. Despite suggestions from a number of commentators that copyright cannot survive the challenge, this thesis aims to demonstrate that copyright can evolve and adapt rather than face elimination. This hypothesis is tested and illustrated by means of an examination of law in conjunction with technology, and by means of concrete examples. Analysis of the author's position in the face of digital technology requires firstly, an investigation of the way in which the existence and exercise of the author's copyright itself is affected by such technology, and secondly, an examination of how the author's standing in relation to dissemination of works generally is concerned (e.g. as regards freedom of speech). It is with the first of these aspects that this thesis is mainly concerned, although, for the sake of a more comprehensive view, some considerations on the second aspect are also advanced. This thesis examines challenges raised in the copyright field by digital technology and the consequential problems in relation to classification of subject matter, identification of authors, fixation and reproduction, the criterion of originality, the meaning of publication, recognition of moral rights, recognition of economic rights, exceptions and limitations, liability of service providers, authenticity of works, infringement, feasibility of enforcement and conflict of laws. Broader issues relating to Government and private control of access to the new media are also analysed. The analysis is focused on copyright subsistence as well as infringement. Furthermore, both the legal and the technological aspects are considered (with the aid of a comprehensive glossary of technological terms). The approach is one of law and technology in equal measure. In the context of these problems there follows a critical examination and comparison of the main national systems, the main international instruments, and the main regional instruments. This systematic survey seeks to encapsulate the work of learned authors in a concise manner, leading to certain proposals. The approach is one of criticism and selection of feasible and practical solutions. Nearly all elements of the proposed solutions exist already, albeit in a fragmented way. These solutions are based on law and on technology, and are formulated to apply in both the analogue and digital worlds. The thesis concludes that for an effective solution of the problems raised by digital technology, an international standard for copyright protection must be adopted, one apposite for the digital world. The thesis puts forward detailed suggestions towards the adoption of an International Digital Copyright Protection System, in the form of definitional, obligational, conflict of laws and technological proposals, whose common denominator is the will to find new answers for the digital challenges. The definitional proposals will clarify conceptual questions arising from the digital revolution. The obligational proposals will regulate the issue of exemptions from liability and duties of Internet service providers. The conflict of laws proposals will address the problems arising in connection with jurisdiction and applicable law on the Internet. The technological proposals will give practical effect to the system by focusing on deterrence and tracing of copyright infringement.