Intellectual Property Rights in Cyberspace

Muhammad Aulia Adnan

Law and Cyberspace

More and more businesses are establishing a presence on the web and distributing product or promotional material in a variety of electronic forms.  The ease entry into cyberspace can cause people to forget that the obligations and restrictions which apply there are similar to those which apply in the world of print communication. 

Some people think that Copyright Law and other Laws do not apply in cyberspace - because cyberspace is a  "new frontier".  Laws do not apply in cyberspace because ideas and information should flow freely in cyberspace, or because Laws do not apply to transmissions made possible by technology that was not in existence when the laws were enacted.  Employers and entrepreneurs need to be aware of the requirements of Copyright Laws when they are developing electronic/digital products.  

The advent of the global information infrastructure and the so-called digital revolution raise countless new issues and questions.  Should copyright apply to digital content? How we can implement secure electronic commerce? Who has jurisdiction over wrongful conduct committed in cyberspace?

Although online technology raises many legal issues, the law available today to help us resolve them, at least today, is largely based on the world as it existed before online commerce become reality.  Yet, those who want to do business in the Internet today cannot wait.  They need to know certainty the legal consequences of their online activity.  Thus the challenge is to predict how these new legal issues may be resolved using the current law.

What is a copyright?

A copyright is a form of protection provided by the Laws to those who create what the Law refers to "original works of authorship".  It gives the author the right to commercially exploit their work.  The authors automatically have their right after it (information, goods, etc.)  is "fixed" in.   Whether it in digital form or in print, information is protected by Copyright Law right after its created.  The author is not required to use a copyright notice, register to Director General of Copyright (Dirjen HAKI) to obtain that right.  

Because copyright is automatically obtained, its impact must be considered whenever a copyrightable work is created, used, or encountered.  Copyright owners need to understand the nature and  the scope of  rights they have, and everyone else needs to understand the rules that govern their use of those copyright works.  Key questions include: Who owns the copyright in information? What rights are granted to copyright owners? How do you ensure that your use of information owned by others is lawful? 

Applicability of Copyright to Online Communications

Copyright protection applies to most works regardless of the form in which it is recorded, as long as it can be perceived, open, communicated by humans or indirectly with aid of a machine.  Information that come from transformation from paper based to electronic does not lose protection that came from Copyright Law.  This protection also applies to information/art that already in electronic form when it initially created.  Likewise, information in digital form are granted the same rights as those granted to works originally created in a more traditional form (such as paper).

Digital challenges to copyright owners

Conventional technology and copyright have created balance between author, owner, publisher, and the industries that collect the money. One cannot easily reproduce, altering, disseminate copyright works that belongs to the author.  The new technology digitization in our present "Information Age" has upset delicate balances created and maintained by Copyright Law.  Some are afraid that authors are no longer protected for their creative efforts, others concern with moral rights of authors in an environment which within a few key stroke, works can be transformed or mutilated.  When content or information is in digital form (fixed in digital form) it is a trivial task to judge whether a works is in original form or copies.  Content can be duplicated and also distributed all over the world within a few keystrokes.  Moreover it is often difficult for copyright owner to detect infringement and prosecute the infringer.  

The digital world and Internet have challenge the ordinary business model that prohibit others to copy, duplicate the copyrightable works.  Some copyright owner have chosen to response the challenge by adopting a new business model that place less emphasis on enforcement of rights in content, or models that use content as a loss leader for other purposes.  For example many publishers on the World Wide Web provide their content for free as a form of open advertising to induce readers to purchase their goods or services. Other provides content for free but charge sponsors for advertising space.  Another business model came from GNU/Linux movement, they give a license under the GPL (Gnu Public License) that allowed everyone to freely download and use their software for free or a very small amount of charge, if they want the software in a CD package.  Their revenue come from services that they give to one that uses their software or bundling the software with hardware.  Such services are customer support, system development, and customization.  

Information Protected by Copyright

The Copyright Law protects virtually all types of information available online.  Works that qualify for copyright protection include literary works, databases, Computer Programs, Sound Recording, graphic works, video and motion pictures.

Literary Works.  All types of text-based works typically copyrightable.  Literary works in this context, including but not limited to, poems, books, articles and the like, as well as others works expressed in words, numbers and other symbols.
Databases.  Collection of data (such as database), normally are copyrightable as compilations. This is true for databases comprised of copyrightable components (such as database of news articles), as well as for databases comprised of noncopyrightable components (such as names and addresses).  Copyright protections for database that compromised of noncopyrightable components have much less protection than protection that given to database that compromised of copyrightable components.  The first only protects the selection, coordination, and arrange themselves. 
Musical Works.  Musical works are copyrightable.  Copyright protections for musical works are extended to both of words and the music.  Even if the music alone or the lyrics are belongs to public domain, the combination may be original enough to qualify.
Sound Recording.   A sound recording is a work that results from the recording of a series of musical, spoken or other sound.  Sound recordings are copyrightable regardless of the nature of the sound recorded.
Photographs.  Pictorial and graphic works are copyrightable.  These include comics, strips, advertisements, technical drawing, diagrams are copyrightable.  Thus, GIF , JPEG files of any these of items typically represents copyrightable information.
Computer Programs.  Computer program, like other copyrightable works, can be dedicated to the public domain.  However, when initially created, virtually all software qualifies as a copyrightable work.
Derivative works.  Copyright owner has a right to prepare and to make derivative works from the original works.  A derivative works is "a work based upon one or more preexisting works, such as translation, fictionalization, motion picture version, sound recording, art reproduction, or any other form in a work may be recast, transformed, or adapted.

Acquiring and Perfecting a Copyright

Copyright protection applies automatically to any authorship that qualifies.  As soon as the work created, it is protected under Copyright Law, whether the author has not give the copyright notice, register to the Indonesian Intellectual Property Office (Dirjen HAKI), or taken any other step to assert copyright claim. Therefore, as long as the works is one of the types that have protection under Copyright Law and meets the requirements to qualify for copyrights protection, the protections applies automatically.

This regulation has several implications.  First, almost all digital content that an individual creates is protected under the Copyright Law.  Therefore, it is important to determine who owns the copyright and to understand that the works is valuable to exploit, preserve and protect against exploitation by others.  Second, it is important to know that all the preexisting works/information created by someone else will also be a subject of Copyright Law.  Accordingly any modifications, copying, distributing that works will require permission of the copyright owner.  The absence of a copyright notice or the failure of the copyright owner to register his or her work does not mean that is safe to use the work.

The copyright sets forth two minimal requirements that it must be met in order for a work to qualify for copyright protection.  The work must be original and it must fixed in a tangible form.  The standard for originality is low and easily met by author.  However, the fixation requirement presents some issues for works that exist in a computer-readable form.  To meet this requirement (fixed intangible form)- that is, to be copyrightable, a work must be fixed in a tangible medium from it can be perceived, reproduced or otherwise communicated either directly or with the aid of machine or device.  Thus copyrighted works are printed in papers, recorded in celluloce, stored in optical disks, CD-ROM, DVD and so on. 

Who Owns the Copyright

Since copyright rights in a work arise automatically, the next question is; who owns the copyright? By Law, the copyright in a work is initially owned by the author of the work.  But who is the author? The answer to that question depends on the circumstances.

As general rule, the author (and thus, the owner of the copyright) is the person who actually creates the work; that is the person who translates the ideas into a fixed, tangible expression entitled the copyright protection.  Thus, the author is the person who take a picture, the recording artist who performed the musical work, the person who compiled and edited recorded sounds or visual images, the person who compiled the foregoing content into a web page, and so forth.

When someone creates a work individually, with no assistance from anyone else, and creates it outside the scope of any employment obligations, there is no question that he or she is the author of the work, and consequently the owner of the copyright.  

When one party hires to create a work for them, the rules become somewhat more complicated.  In that case, the identity of the author is determined by the nature of the hiring party's relationship with that person who created the work.  If the persons hired are considered to be "employees", any copyrightable work product prepared by them within the scope of employment agreement is considered as a " work made for hire".  As a consequence, the employer is considered as the owner if that works, and will own the copyright of that works.  The employees who created the work will not have any right in the copyright whatsoever, unless their employer expressly grants rights to them in a written document signed by both of them.  Frequently, in the business world persons that develop copyrightable work are not its employees (in employer-employees relationship).  But rather an independent contractor, freelance talent (content provider) produce several copyrightable work for another business entity.  Examples including Web Pages, photograph, articles, logos, software, and advertising materials.  This raises the troublesome question of who owns the copyright to the resulting works- an issue that frequently not discussed between the parties.

Generally, because independent contractors are not employees, when they create copyrightable work for a client, their work is not considered to be a "work made for hire".  Consequently they will own the copyright in any copyrightable works that they develop for a client.

Businesses that want to own the copyright in works created for them by independent contractors have two options.  First, they can obtain a written assignment of the copyright from the independent contractor.  Second, they can enter into a written work for hire agreement, provided that the nature of the project is one that the Copyright Law considers to be eligible for work for hire treatment.

New Issues in Copyright Law in Cyberspace

In the past several years, the World Wide Web has seen two significant changes: (1) its popularity and use have exploded, and (2) it has become a place of substantial commercial activity. These two characteristics have made the Web a place of increasing legal turmoil. Certain practices by authors of Web sites and pages have been attacked as violative of others' intellectual property rights or other entitlements. These practices, are briefly summarize in this section, these practices comprises  "linking," "framing," meta tag" use, and "caching". 

"Linking" allows a Web site user to visit another location on the Internet. By simply clicking on a "live" word or image in one Web page, the user can view another Web page elsewhere in the world, or simply elsewhere on the same server as the original page. This technique is what gives the Web its unique communicative power. At the same time, however, linking may undermine the rights or interests of the owner of the page that is linked to. Suppose, for example, that X sets up a homepage for her site. On the homepage she places some advertisements, from which she hopes to make some money. The homepage also contains links to various subordinate pages, which contain content that X believes consumers wish to see. Y then creates his own Web site, which contains links to X's subordinate pages. The net result is that visitors to Y's site will be able to gain access to X's material, without ever seeing X's advertisements. This type of activity is called "deep linking." Other problems arise when one site contains links to copyrighted materials contained in another site against the wishes of the copyright owner. Though the person who provides the link may not be making copies himself or herself, some courts have recently found the link provider partially responsible for ensuing copyright infringement. 

The related practice of "framing" may also serve to undermine the rights of Web site owners. The use of "frames" allows a Web page creator to divide the Web browser window into several separate areas. The programmer of the Web page can dictate what goes into each frame. Commonly, a Web site designer creates a page that at all times displays one frame containing the name of the Web site and other identifying information. The other frames are then controlled by the user. For example, a Web site employing frames might always show the original Web site's graphic logo on the top of the page while allowing the user to view the Other Web site in a different frame. The legal implications of this are complex. In the example just given, a Web surfer might easily be confused concerning the relationship between  Other and the framing site. Moreover, the framing site might be unfairly deriving traffic from the Other's legally protected work. 

Meta tag misuse, the third component of this section, may generate less obvious but equally serious problems. Web sites are written in the HTML language. This language is nothing more than a list of "tags" that can be used to format and arrange text, images, and other multimedia files. "Meta tags" are tags that have no visible effect on the Web page. Instead, they exist in the source code for a Web page to assist search engines in ascertaining the content of the page. Problems arise when companies include in their own Web sites meta tags containing the names or descriptions of other companies. Suppose, for example, that Coca Cola used the keyword "Pepsi" in its meta tags. Web surfers who used search engines to obtain information about "Pepsi" would then be directed to Coca Cola's Web site.

At length, we will also take a brief look at the activity of "caching." Caching involves the storing of Web pages either in your computer's local RAM, or at the server level. Caching Web pages on your computer's local memory allows you to navigate back and forth through pages you've visited in the past without having to download the pages each time you return to them. Caching at the server level, also known as "proxy caching," is used by several of the more popular Internet service providers such as AOL, Prodigy, and Compuserve.  Several ISPs in Indonesia are using this technique too, as a value added services to their customers.  This kind of technique can speed up the Internet connection, but also can imposed several liabilities.  The liabilities imposed when the page that have been caching either in the server or in the Hard disk is obsolete.  The obsolete information can give misleading information to the customers that using those services.