Copyright protects the expression of an idea when it is materialised in various forms, such as a book, a CD, or a computer file. The idea itself is not protected by copyright. In practice, it is sometimes difficult to make a clear distinction between the idea and its expression.
The copyright regime has closely followed the evolution of technology. Every new invention, such as the printing press, radio, and television, has affected both the form and the application of copyright rules. The Internet is no exception. The traditional concept of copyright has been challenged in numerous ways, from those as simple as ‘cutting and pasting’ texts from the Internet to more complex activities, such as the mass distribution of music and video materials online.
The Internet also empowers copyright holders, by providing them with more powerful technical tools for protecting and monitoring the use of copyrighted material. These developments endanger the delicate balance between authors’ rights and the public’s interest, which is the very basis of copyright law.
Amend existing copyright mechanisms or develop new ones?
How should copyright mechanisms be adjusted to reflect the profound changes brought on by ICT and the Internet? One answer suggested by the US government’s White Paper on Intellectual Property and the National Information Infrastructure is that only minor changes are needed in existing regulations, mainly consisting of measures to ‘dematerialise’ the copyright concepts of ‘fixation’, ‘distribution’, ‘transmission’, and ‘publication’. This approach was utilised in major international copyright treaties, including the Trade-Related aspects of Intellectual Property Rights (TRIPS) convention and the WIPO Copyright Treaty.
However, the opposite view argues that changes in the legal system must be profound, since copyright in the digital era no longer refers to the ‘right to prevent copying’, but also to the ‘right to prevent access’. Ultimately, with ever greater technical possibilities of restricting access to digital materials, one can question whether copyright protection is necessary at all. It remains to be seen how the public interest, the second part of the copyright equation, will be protected.
Protection of the public interest – the ‘fair use’ of copyright materials
Copyright was initially designed to encourage creativity and invention. This is why it combined two elements: the protection of authors’ rights and the protection of the public interest. The main challenge was to stipulate how the public can access copyrighted materials in order to enhance creativity, knowledge, and global well-being, while respecting the authors in question. Practically speaking, the protection of the public interest is ensured through the concept of the ‘fair use’ of protected materials.
Copyright and development
Any restriction of fair use could weaken the position of developing countries. The Internet provides researchers, students, and others from developing countries with a powerful tool to participate in global academic and scientific exchanges. A restrictive copyright regime could have a negative impact on capacity building in developing countries. Another aspect is the increasing digitisation of cultural and artistic crafts from developing countries. Paradoxically, developing countries may end up having to pay for their cultural and artistic heritage when it is digitised, repackaged, and owned by foreign entertainment and media companies.