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The Intellectual Property Rights Over The Internet Information Technology Essay

As the internet is a borderless creature, it has linked people from all over the world. People are able to exchange ideas, information and later on goods and services. Some of the challenges above can be addresses towards a sustainable future of the copyright in this digital world.

The term sustainable development was explained as “development that meets the needs if the present without compromising the ability of the future generations to meet their own needs”. [1] 

The governments, international intergovernmental organizations including WIPO, nongovernmental organizations (NGOs), corporation, civil society, academia and individual play a main role in addressing the current challenges of copyright on the internet. And they are also involved in the treaties, declarations, national law, common law, guidelines and best practices in order to protect the intellectual property rights over the internet.

However, as mentioned earlier, there must be a balance between private rights of copyright owner and the public interest.

As copyright law is a national law, there is a need to ensure that all the countries adopted the minimum requirement in order to protect copyright materials.

INTERNATIONAL TREATIES

With the expansion of the copyright works in the global dimension, the interest of the national holders must be adequately protected. [2] There is a need to encourage close relationship and cooperation with other jurisdiction in the international organization. [3] The implementation of necessary legislation and enforcement mechanism must also be supported in the international community. [4] 

TRIPS functions to harmonies international intellectual property rights laws and practice. It has set forth minimum conditions for protection and enforcement. This allows ‘effective action against infringements; provides expeditious remedies which constitute a deterrent; is fair and equitable, is not unnecessarily complicated or costly; and does not entail any unreasonable time limits or unwarranted delays. TRIPS enforcement provisions provide a comprehensive foundation for the development of civil administrative and criminal procedures and remedies necessary for effective enforcement against copyright piracy’ [5] WTO members are required to comply with the provision of the Berne Convention for copyright protection, this also includes computer software and databases.

In the digital environment, WCT and WPPT give exclusive rights in the distribution of copies of works. This includes communication to the public of works such as the “making available” of works so that they can be easily assessable at the disposal of the user. It also protect against the unlawful circumvention of TPs used by right holders to protect their works as well as protections against illegal tampering or altering of tags of codes that may be used by right holders to facilitate licensing. [6] 

The WIPO Internet Treaties Chapter had adapted the intellectual property laws to facilitate the dissemination of protected materials over the internet. [7] However, as mentioned above, while some of the member countries may have fully implemented under the said treaties, there are some that has not adopted it. Due to the in uniformity of the copyright protection, WIPO as the secretariat may need to monitor the implementation development of the member states and to assist and encourage where necessary.

It seems that the foundation has already been set. The adequate law, enforcement and remedies should be available. However, there is still copyright infringement. And some countries still have not adopted this policy.

The technology Protection measures (TPMs) was developed to impede digital piracy but protection against circumvention must be adopted internationally in order to make them an effective tool to fight digital piracy.

In the international level, although WIPO is there to monitor and assist countries that have inadequate provision concerning copyright law, a more stringent role is needed to ensure that all countries especially the contracting countries under the (WTO) at least adopt the minimum norms in practice.

Although the WIPO Internet Treaties may function to address the activities of infringement abroad, as such standards have not been fully adopted by some countries; there is a need to rely on trade legislation, policies and action in order to protect the standard of intellectual property especially in foreign market. For example, the United States of America has used numerous legislations in order to protect their product abroad uses its trade law and agreement to have a stronger IPR law and enforcement. [8] 

There is a need to improve its capacity to conduct international digital legislative bargaining, strengthen the co-coordination of legal reform and domestic development and bring its IP laws and policies into line with its trade and technological policies.

The United States enforce Trade Act 301 and special 301 against other countries. Section 337 US Tariff Act allows the US International Trade Commission (ITC) to investigate whether foreign producers of goods imported into the US are engaging in unfair trade practices. There is no need to prove whether there is injury, only show that infringement had occurred. [9] Section 301 US Trade Act provides for addressing foreign trade barriers, to identify inadequate protection of IP as an unreasonable practice. President is authorized to impose sanctions against countries failing to meet their obligations for protecting IPR. [10] Special 301 also which provides an annual report to identify countries that deny adequate and effective protection of IPR, or deny fair and equitable market access to US persons or firms that rely on IP protection.

However, what about other countries that does not have the power to back up their protection and enforcement. What can they do.

With the challenging digital piracy, it is not easy to monitor and control the transmission of copyrighted data over the internet. However with the cooperation of all countries in agreeing to same online copyright laws that is the goal of the WIPO Internet Treaties and to cooperate fully in enforcing these laws, it is hoped that a standard requirement around the world is implemented.

Although it may takes time to implement the intellectual property rights national as many countries and interests are involve, all countries must cooperate for the implementation and enforcement to be effective. By establishing a common position, it can minimize the effect of digital infringement on the internet. With stronger enforcement, WIPO Internet Treaties can be the instrument to prevent internet piracy and also encourage genuine sales of copyrighter works. [11] 

Nationally

The WIPO Internet Treaties has clarified that copyright is applicable in the digital world. The technical measures are not sufficient without the backing by legislative means to ensure that the copyright is protected.

Political power of the country plays a part in the implementation of copyright law. Maybe it is time to relook at Napster decision where the court did not hold the ISP liable for infringement committed by their customers.

How effective is the Digital Millennium Copyright Act (DMCA)

Countries that has implemented this Act includes XXX

As mentioned earlier, WCT requires the contracting parties to provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connections with the exercise of their rights”. [12] The technology protection measures ensure anti circumvent measures adopted to curb online infringement

In the United States for example, Digital Millennium Copyright Act (DMCA) provides that it is illegal to circumvent anti-piracy measures built into works. It has prohibit the act of circumvention of controls used to prevent unauthorized access to works, and the acts as well as the production, sale or distribution of code-breaking devices used to illegally copy or make other copyright use of protected works. If there is an infringement, remedies such as civil, administrative and criminal are available. Among the provisions in the DMCA is limiting the remedies available against ISP that unknowingly transmit copyright infringing information over the networks, limits the liability of nonprofit institutions of higher education for copyright infringement by faculty members or graduate students serving as online service providers and under certain circumstances.

Other than that, there is also a need to regulate the Internet Service Providers (ISPs). In a landmark case of Metro-Goldwyn-Mayer Studios Inc and Others v Grokster Ltd and Another, [13] the Supreme Court of the United States of America held that Grokster were liable for infringement of the copyright works.

In order to protect the works on the internet, proper legislation should include ISP responsibility and effective and fair mechanism to deal with all forms of internet piracy expeditiously, [14] It should also include on policy for repeated infringer and obtain information from ISPs such as information on the subscriber that is in their possession. However this does not mean that ISPs should not be given blanket immunity. Moreover, in order to encourage cooperation between ISPs and right holders, ISP may be provided with incentive. [15] 

With the IPS as an intermediary between the right holder and the user, there is a need to balance between these three parties. [16] 

The WIPO Internet Treaties has provided immunity for limiting ISP liability for their subscribers’ online infringement acts, and suggested that copyright liability should not apply to a person or entity serving as a conduit.

There is a need to look and compare the legislation models available in world to come up with a best possible solution to overcome copyright infringement.

In respect of ISPs, 3 models have been compared between the United States, Europe Union and Japan in their notice and take down regime. [17] Under the U.S. model, ISP may receive the immunity of ISP safe harbour if its activities falls under the four categories in s512(a)-(d), and for s 512(b)-(d) comply with the notice and takedown procedure, actual knowledge requirement and has no benefit and inducement. The ISP is exempted from policing its services (section 512(m)). However there are some limitations as the subscriber has no opportunity to reply before the materials are taken down by the ISP (p188). [18] Whereas the EU’s legislation does not provide a specific mechanism as in required in the US legislation. Upon notice to the ISP, the ISP will take down the infringing material without notice to the user or customer. [19] Although the legislation is available to protect the ISP form liability and also to take down the infringe material, but this approach is limited in that no opportunity is given to the user or customer to explain themselves. Japan on the other had had adopted a reliable approach in that it provides a seven day notice and take down regime. This provides an opportunity for the user or subscriber to reply to the notice before the alleged infringed copyright is taken down. However, Japan has also provided an exemption where it can immediately take down the infringe material (194). [20] This is seen as a practical approach on legislating ISPs.

To make various legislation, industrial rules, IP policies and all other possible methods work collaboratively and systematically to deal with current digital challenges – minimize overlap and inconsistencies in various approaches

As the world is constantly changing, there is a need to a review system. By this, any new challenges or problem can be attended to and the law and its enforcement can be updated so that is up to trend.

Reintroduction of Formalities.

Even though there is no requirement or formalities on registration and deposit of copyright works, [21] some countries continue to impose such requirement of formalities. This may serve to support the validity or ownership of copyright if in dispute. In the case of anonymous and pseudonymous works, it can also disclose the identity required for the purpose of extending the term of copyright works. [22] 

Formality is any condition or measure without the fulfillment if which work is not protected or loses protection. [23] However, failure to comply with such formalities can be cured of any inadvertent omission of formality if registered within a reasonable timeframe. Some may argue that there were reasons why formalities has been dispense with. (reference) However, with growing concern over the internet, a notice that the work is copyright works is not sufficient.

However, if this was reintroduced, the rights’ holder is subject to the public eye. Full disclosure might discourage the incentives of registration for rights holder. Partial disclose could be a possible choice if such an option would be beneficial for stakeholders. Administrative abilities and registration cost. (No. 19, 471) – suggestion - WIPO and may establish an organization like the Patent Office. Registration Office and also the library are used for this formality requirement (cross reference to German, France, Japan and United States)

If this is made possible, WIPO may serve as an international clearinghouse just like the Patent Cooperation Treaty where applicants may submit an application that may take effect in some of all of the member countries.

There is a need to strike balance between all benefit groups.

In order for the respective society or company to survive in this digital era, there is a need to change their business models to adapt with the digital environment. The companies may have to look for opportunities and make a partnership with the Internet Service Provider and other telecommunication operators. [24] It was reported that in the music service, ISP is estimated to attain more than additional revenue of £100 million in 2013. [25] It is vital for the companies to embark on a partnership with ISP and the like in order to sustain themselves. However, reforming their business model is not enough without the cooperation of the ISP. By this, the subscribers are encouraged to purchase the works legitimately.

- employ business models by which subscribers eager to access IP can be persuade to legitimately purchase these products – subscription services based on secure and monitored access are being explored. [26] (No. 15 para 35)

Some countries have initiated graduate response model (GRM) which require the cooperation of the ISP to provide with the ISP addresses for those who infringe the copyright. Although this may seem as a positive move to reveal the infringer, ISPs also has the duty to its customers. A notice prior to uploading any infringing copyright materials may be of assistance to ensure that its customers are aware of their activities online.

Another alternative is to revamp copyright licensing. [27] It was suggested to have a digital transmission right which is enforceable only against those who provide transmission, retransmission and further transmission of recorded music. There would be no liable imposed on Consumers, software distributors, technology firms, consumer electronics maker, telecommunications and IPS. Only audio service provider will need licences if they operate websites or other services that provide that provide digital transmission, retransmission and further transmission of recorded music.

Those who wish to upload constitute a digital transmission of the recording involve and those service provider who enable the user uploading would be jointly liable for the conduct.

Corporation/Law and Enforcement

Alternative licensing models – open source and creative commons

Due to the high costs and risks of developing a copyright work, the government may consider government-financed research or the university can fund a research.

other forms of incentives in the copyright industries such as alternative incentive systems include government-financed research, university research, procurement contracts, prize and subsidies can be utilized in an effort to reduce the costs of the copyright works. (find reference)

How can movie and music industries compete with works available for free? There are a lot of factors that should be taken into consideration in making a movie or music, for example. Those who contributed to this must be adequately compensation in order to encourage more movies or music to be produced in the future. At times, as the user only watches the movie once, they tend to disregard the quality of the movie. However, as the digital world has changed, sometimes the free movie is as good of quality as the original one.

For literature or artistic works for example, if the company collaborate with the Amazon or the like, with easy payment, accessibility, this may encourage the user to buy the book, this includes e-books.

Music Industry Piracy Investigations (MIPI) stated that the Australian sound recording industry estimates that piracy amounts to 7% of the identified market. This figure was calculated on the basis of the identified activities of offenders and suspects, and for this reason, is likely to be conservative. (12 MIPI, Submissions, pp. S166–167.)

In 1998 the Business Software Association of Australia (BSAA) commissioned a study which revealed that on average 33% of all software programs in use in Australia were illegal copies. (13 Business Software Association of Australia (BSAA), Submissions, p. S334.)

The Motion Picture Association (MPA) reported that piracy of films is currently at 4%, having been reduced from a record 20% in the late 1980s. (15 Motion Picture Association (MPA), Transcript, p. 139.)

Pay per view or pay on demand

The legitimate market can overcome the piracy situation if the music that the users want is easily accessible and at the right price. Therefore the role of relevant society is vital in ensuring that the online and mobile music service providers can access the repertoire and rights they need to be successful, while at the same time ensuring that composers, songwriters and music publishers are appropriately rewarded for the vital part their creations play in the success of this marketplace. [28] 

Technology

In order to move with the fast growing pace of the internet world, it is also necessary to improve or enhance the technological means especially to compliment the legislation concerning the anti-circumvention provisions. The technical protection measures (TPMs) is not only to protect the content of the work but also the digital rights management system (DRMS). This is also to detect and then to impede of any copyright infringements of the works. Furthermore, with the use of such technologies, pirated materials that infringed copyright can be identified easily. If these TPMs are effective copyright holders can distribute their material without worrying that the internet users will copy, reproduce and distribute the copyright work.

The activation technology is used to allow the license owner to used install software. For example, if the user purchases an anti virus program online, an activation code to install the software in the computer.

A dongle is needed before the software is accessible to the user, the software will only run if the dongle is present. The dongle is plugged into a computer port. [29] 

Encryption and watermarking are among the TPMs introduced to curb the piracy on the internet. [30] Where the work is encrypted, it is only accessible in its original form. Whereas for watermarks, this technology is based on a set of rules embedded in the content itself that define the conditions under which one can legally access the data. [31] 

Other measures include digital fingerprint where it can device can detect then recognize and authenticate the digital prints and either grant or deny access as appropriate. It is left by the purchaser of the copyrighted work. With strict anti-copying technology such as the signature technologies, it is hoped to curb further infringement.

Education

Due to the global concerns, the public must realize that an unauthorized copying of copyrighted works are illegal and must not be condoned. Not only the government, but the corporation and academia must take part in this effort. Therefore education and awareness program for the society at an early age on the value of intellectual property must be encouraged. [32] By providing global education programme, the society is also educated on the importance of copyright protection, it will decrease if not prevent any unauthorized used.

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