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Law

Copyright Infringement: Where to Draw the Line?

Proposed Title of Study

As information continues to increase rapidly in both quality and quantity, major forms of copyrighted data are under attack by infringers of copyright, who illegally duplicate and later information for both public and private use. The topic of this thesis, as aforementioned above, deals with copyright infringement, and where to draw the line; in terms of what is considered infringement of copyright, and what direct legislative action can be taken.

Summary of Proposed Study

Copyright infringement has for decades been a major problem for both owners of copyright information and the governments of both Australian and overseas countries. The fair use of information has been subjected to illegal use, proliferation and distribution via the use of technology. Consent between parties in terms of illegal sharing of information has given rise to loopholes in legislation on national and international scales.

In addition, the lack of resource availability, in terms of legislative recourses, for the original owners of copyrighted information constrains the amount of direct action that can be taken. This is due to the fact that most independent or government bodies transfer the onus of responsibility onto the owner of the copyrighted information, meaning that all legislative expenses and action will ultimately be covered by the owner themselves. It is often seen that such information is either protected or lost, as is the result in most cases.

The institutional bodies that serve the general population are charged with the responsibility of protecting the people and what they own, therefore, copyrighted information naturally falls into that category. Therefore, the legislative bodies responsible should organise task forces to identify and prevent the spread of copyright infringement with the aid of local governments. This will ensure that the extent of the law is enforced, the infringement of copyrighted information is significantly reduced, and the societies of national and international countries become more aware of the rights and ownership of information in all its forms.

Purpose of Study

There is a pressing need in both society and the government to identify and charge offenders of the law, especially those who continue to repeat illegal activity, yet escape the penalty of the legislation. Many copyright infringers have found ways to bypass the law, and this has led to many copyright issues. This particular study seek to research the link between copyright infringement and legislative action in its most direct forms, especially in terms of what can be done to halt illegal activity from continuing its far-reaching negative effects.

Background Literature

Over the past few decades, information exchanges and the rapid rise of technology have presented numerous opportunities for consumers, as well as increasing threats regarding privacy and ownership issues. One of the major problems has become copyright infringement, which has threatened much of society’s ability to undertake professional work without the risk of intrusion, either by acquaintances of strangers. This has become an international dilemma; in terms of what action can be taken against copyright infringers, and who retains ownership of information. These points and others are discussed herein.

For many people in Australia, copyright is known as the sole right of the person, or people, of the originator of information in whatever form it may take. According to the Copyright Act of 1968, permission on behalf of the owner or the exclusive licensee of the copyright in any work is required to access one’s work, whether it is a device, technology or any other component1. Any unauthorised access to one’s work is violation of the law, and is known as copyright infringement. This includes duplication, transmission and proliferation of such information.

This particular law has since been amended to reflect the technological and online use of information, as well as increased provisions on non-technical formats such as books and other formats, as well as audio and video. The latter has become an increasing problem, especially in terms of illegal downloading across international boundaries; which will be discussed later.

Regarding the protection of copyright here in Australia, an independent body known as the Australian Copyright Council, assisted by the Australian government, promotes the application of copyright law in various cases and also offers advice for victims of copyright infringement. For owners of information which has been illegally copied or distributed, there are provisions to sue for damages; however, the copyright infringer must be contacted before any legal action is taken2. This has caused a major loophole in the law. Such is the assumption is that consent is sufficient to waive privacy interests, which leads to various issues3.

Those who access copyrighted material or information have two ways to legally copy or promote it. Firstly, if the information is used under a license, then the owner of information has to be contacted and permission needs to be granted, after which a licence is granted, which usually involves a nominal fee. Secondly, if promoted publicly, the source consulted needs to be acknowledged, and the information is subject to ownership rights.

Those who infringe copyright laws can often be unknown individuals who operate in other states or even internationally. This provides issues for points of contact, and even if copyright infringers whereabouts are revealed, they may operate under pseudonyms and false credentials. Furthermore, the onus or burden of proof falls to the owner of information, which provides monetary and legal complications if legal action is taken.

In the recent Copyright Amendment Act of 2006, the infringement needs to be proved to have occurred, whether it resulted in the comprising of copyright, and if it involved a work or subject-matter to the public; in order to satisfy the courts4. This raises further problems if the copyright infringer denies having knowledge of copying or distributing information, or if there are no witnesses.

The issue of copyright infringement has become a major problem for countries outside of Australia as well, in both developed and developing countries. One of the ways that copyright infringers have been able to work around national and international laws has been to copy and distribute pirated information through selected online transfers, the most infamous being peer-to-peer sharing (P2P). Using computer programs and online servers, illegal hackers and even original owners of information upload a variety of information and consent to the free or paid distribution of this information to others.

By both the owner of information and the receiver of information consenting to trade information, neither party seeks legal action, and illegal information continues to be infringed on a massive scale. However, much of this information has been copied through means contrary to the law to begin with, and is therefore still liable to penalties, although damages are rarely sought in a court of law.

The doctrine of secondary liability, or indirect infringement has yet to be established in countries outside Australia and America5. This has become a widespread issue in China, where copyright laws are not understood by most of society, leading to copyright infringement on a larger scale. Products, media and even corporations have been known to be involved in copyright infringement, and since the law is rarely enforced due to limited understanding and application, it continues to be a problem for the original owners of information and society at large.

In the United States especially, copyright infringement continues to be a problem, as certain individuals illegally copy and distribute large amounts of information and data for a living. Legally registering certain website and businesses, they are allowed to operate on a national or even international scale, as business dealings remain private or limited within the company and those involved. Such copyright infringement is often justified as ‘user-generated content’.

Defences against claims of copyright infringement typically rely on fair use of insubstantial amounts of information, duplication of pre-existing work, and even making work more accessible; which often leads to the over-domination of reactive legislation and responsive recasting of existing criminal law actions6,7. This makes the situation more difficult to handle than it already is apparent.

International copyright agreements are often limited in their application and subject to local legislation of the particular country. One such international treaty is the Berne Convention for the Protection of Literary and Artistic Works, signed by every continent in 1886. This international copyright agreement states that all works (except photographic and cinematographic) are copyrighted for at least fifty years after the death of the author.

Each country that signed this international treaty made up what was known as the Berne Union. The information, or work protected, extends to include all books, pamphlets, all other forms of writing, musical compositions, paintings, and the like. The Amendment of 1948 included all photographic and cinematographic works; however the life of copyright was reduced for many countries.

In particular, the United States initially refused to commit to the Berne Convention, as it required major changes to current American legislation. The United States finally agreed to implement the U.S. Berne Convention Implementation Act of 1988, ratified the treaty, and became part of the Berne Union. The United Kingdom also enacted similar laws and agreed to the Berne Convention.

Included in the Berne Convention was a particular term known as ‘fair use’. Fair use sets out certain actions that are allowed to be carried out by any one person and are not deemed as copyright infringement. This includes private and educational use of information that can be released legally to the public. In most cases, permission of the original author or owner of information is still required.

However, the Berne Convention did not make any provision for enforcement nor remedy regarding the legality of copyright. Despite Australia being a signatory to the Berne Convention, certain works were determined by the country in which they originated, resulting in international jurisdiction issues. Therefore, copyright law, both in Australia and internationally, have been increasingly criticised for their complexity8.

 

Research Hypothesis

As there is a vast amount of both quantitative and qualitative research, the overarching theme centres on copyright infringement and the lack of direct action against the infringers of copyrighted material. Therefore, the particular research hypothesis for this thesis is ‘if copyright infringement continues to occur due to the lack of direct legislative action, then such action must be taken to reduce the infringement of copyright in its various forms.’ The following study will set out to support this hypothesis, but reject the null hypothesis, which is ‘copyright infringement occurs due to direct legislative action, therefore, such action should not be taken’.

Definition of Key Terms

Copyright infringement: illegally reproducing, rewriting or displaying information protected by copyright law without the express permission of the owner of copyright

Privacy rights: the right extended to every individual regarding the protection of pertaining interests from threatening external organisations or persons

Piracy: a crime involving the forced seizure of private material including any information or data that is expressly held by the original owner of information

Peer-to-peer sharing: communication between two individuals to transfer information to each other via consent

Liability: when an individual is responsible for his or her actions against the law, especially when legal action is necessary.

Legality: the purpose of the law in regards to interpreting legislative terms as they appear in legal documentation.

 

Research Methodology

The study to be carried out will follow three strategic steps. Firstly, the current quantitative research will be discussed and analysed for trends in copyright infringement and related legislative stipulations. Secondly, the qualitative relationship will be shown between direct legislative action and copyright infringement, in terms of the positive impacts for the owner of information, the government, and society at large. Lastly, the recommendations, conclusions and further points of research for the study will be highlighted.

For such a study, this three-point process will integrate the past, current and future research in a way that is applicable for the proper implementation of the legislation. When completed, it may be used as a springboard for further research into the topic and interrelated issues surrounding the issue of copyright infringement and the direct legislative actions pertaining to it.

Research Significance

The outlook for original owners of copyrighted information remains bleak unless there is an alternative course of action that can be taken, other than solely representing a personal motive to regain ownership of personal material. For the purposes of legislation, the government and other affiliated independent bodies need to be more proactive in terms of direct action against illegal repeat offenders of copyright infringement, and this study seeks to justify such an important explanation.

As most infringers actions’ actions are in direct opposition to both local, state, federal and also international legislation, it is clearly against the law; however, the copyright infringers are elusive to law enforcement advances and often cause widespread illegal repercussions, including identity theft and corporate fraud.

To significantly reduce such criminal activity, this study will endeavour to explain the need for direct legislative action and what the original owners of copyrighted information can do to impeach such illegal offenders. Although most studies do not have this level of qualitative reasoning, in regards to loopholes in the law and how to identify solutions to such problems, this paper will seek to introduce such reasoning into legal research.

Ethical Considerations

There are certain ethical considerations to consider, however, before establishing the government-supported and independent body initiated task force that will begin the direct identification and impeachment of copyright infringers.

The level of jurisdiction needed to stop offenders from committing copyright infringement will be the main determinant of the task force’s success. When establishing such measures, there will evidently be a certain level of opposition or red tape to apprehend the operation and mission of the task force, but the purpose of the task force needs to be maintained in preference over the continuation of illegal activity.

In addition, the type of direct methods used in apprehending offenders also needs to be justified when the task force locates the copyright infringers. For the purposes of the legislative action, the law must be enforced in direct methods when necessary, especially when outdated methods are not effective. In this case, a similar approach should be taken.

Finally, the impacts of the establishments and results of the task force’s operation should be prioritised, in regards to its positive effects in and for the society at large. As the individuals and organisations often seek to take the law into their own hands, the task force must highlight their law enforcement over vigilante operations.

 

Timetable for Research

For the period of time that the research will take, it is estimated that the timetable will account for twelve months. In the year that it takes to collect information, analyse and discuss research, present the findings, highlight future research and detail recommendation for legislative action, a specific research study will be generated for the purpose of identifying copyright infringement and its relationship with direct legislative action.

Anticipated Problems and Limitations

There are two main problems and limitations that would cause the purpose of the study to be rendered ineffective. Firstly, the study may focus on the current research more than the future implication of the research itself. This would cause a narrow view of what direct legislative action could be taken. Secondly, the type of direct action that is recommended via the establishment of the task force may be inadequate for widespread implementation.

Although in Australia, a strategic task force may be an effective means to apprehend offenders; in other countries, such as European and Asian counties, where corruption is a far-reaching issue with low levels of government support, it may be more difficult. These particular problems and limitations, however, will be addressed by the study.

Resources Required for Research

By drawing on past and current research, an effective means of collating, analysing and discussing important information that specifically relates to the research question will be reached.

In particular, similar legislative action that has already been taken in its direct forms, for countries like Britain, Canada, and similar countries will be highlighted. Also, case studies that relate to common copyright infringement issues will be discussed.

Alternatively, the lack of action in countries such as China, India, Pakistan, Europe, the United States, and Australia in particular will be shown, using the support of independent body statistics, and other government cases.

Primary research may take a role in certain sections of the research, along with the aid of university documents and assistance from superiors in the legal department. These individuals and related documentation will assist in strengthening the research proposal and identifying quantitative information and qualitative reasoning.

Direct Legislative Action         

For owners of information to seek justice against copyright infringers, the spread of pirated and illegal information needs to be stopped. Current national and international legislation provides monetary benefits for original owners to seek damages from copyright infringers in a court of law, yet there is no identifiable action to prevent copyright infringement itself.

The problem lies with the enforcement of existing legislation, and lack of support from the government and other related bodies for the establishment of relevant task forces to engage in crackdown of copyright infringers. If such task forces were put in place, copyright infringers would be prevented from carrying out illegal activity, and the current legislation would come into effect on a wider scale.

In collaboration with the Australian Government and the Australian Copyright Council, a national task force should be assembled with the purpose of identifying copyright infringement activities and relating this information to state and local authorities.

By doing so, the illegal proliferation of copyrighted material will be prevented in its early stages, and will assist in impeding other copyright infringers from carrying out their activities, in terms of both offline and online content.

 

Bibliography

 

Austlii. Copyright Act, 1968. Web. May 2013.

Australian Copyright Council. Infringement: What Can I Do?, 2012. Web. May 2013.

Rajaretnam, Thilla. “The Right to Consent and Control Personal Information Processing in Cyberspace.” International Journal of Cyber-Security and Digital Forensics 1.3 (2012): 232-240. Web. May 2013.

Austlii. Copyright Amendment Act, 2006. Web. May 2013.

Li, You. “Exploration of the Indirect Copyright Infringement Confirmative Rules of P2P.” Journal of Beijing University of Posts and Telecommunications 1-6 (2010): 923-941. Web. May 2013.

Gervais, Daniel. “The Tangled Web of UGC: Making Copyright Sense of User-Generated Content.” Vanderbilt Journal of Entertainment and Technology Law 11.4 (2009): 841-870. Web. May 2013.

Mehra, Salil. “Law and Cybercrime in the United States Today.” American Journal of Comparative Law 58.1 (2010): 659-695. Web. May 2013.

Bond, Catherine. “There’s Nothing Worse than a Muddle in all the World: Copyright Complexity and Law Reform in Australia.” University of New South Wales Law Journal 34.3 (2011): 1145-1162. Web. May 2013.