Introduction
Copyright refers to the set of exclusive rights given to creators for their literary, artistic and scientific works, so long as they exist in a material or tangible form.[1] According to Copyright law, the author is the creator of an original expression in a work, and is also the owner of the copyright. In the absence of any agreement in writing whereby the copyright has been assigned to another party by the author himself. Generally, a copyright exists in an original work of authorship at the instant that the said work is fixed in any tangible form of expression.
In virtually all countries, without exception, copyrights are products of legislation.[2]
Most nations follow one of two systems relating to copyright: 1) Authors’ Rights Systems & 2) Copyright System. The differences between the two are most visible when comparing the rights and status of Authors in these systems, with those of the owners of copyright.[3] Authors themselves, usually enjoy a better status and representation in CMOs in author’s rights countries, wherein some such organizations don’t even include, as members, owners of derived rights (e.g. Publishers).[4] In copyright system countries, on the other hand, it is the entrepreneurs who appear to have the stronger role.[5]
Defining terms
The Berne Copyright Convention, which has been signed by most major nations, states that every creative work is copyrighted the moment it is “fixed” in some material form.[6] The UK Copyright, Designs and Patents Act, 1988 defines an author as “the person who creates” the work, i.e. the creator, regardless of the type of work involved.[7] Hence, for copyright purposes, the writer of a novel or a play, the painter of a painting, the composer of a symphony, the choreographer of a ballet, etc. are all the authors.[8] The producer of a sound recording is its author.[9] In the case of films, both the principal director and the producer of the same are considered to be its authors.[10] Similarly, the person producing the broadcast or cable cast is its author.[11]
On the other hand, ownership is transferrable. In a work created, the author is the first owner of the copyright, unless produced as a part of the author’s employment.[12] Though this ownership may leave the author of the work immediately upon his finishing it, at the instant of creation, the owner of copyright is the author.[13]
II. The Mass Media Phenomenon: The Printing Press to the internet
The emergence of the internet, followed by its consequent invasion into nearly every corner of the World, led to a redefinition of mass media in a new light; and scholars often compare the World Wide Web in terms of the revolutionary impact it has had, and is still in the process of having, to that of the printing press. In previous times, the concept and power of copyright was concentrated to a much higher degree than it is today, and can be traced back to privileges and monopolies that were granted to the printers of books. If one wanted to get a copy of a book, he would have to seek out these monopoly-holders and take their permission to literally copy the book on to blank sheets of paper.[14] The advent of the printing press is the reason most often cited for the growing interest in a formal protection for books, eventually resulting in the first general legislation for protecting the rights of authors, the British Statute of Anne, 1709.[15]
Up until the 1990s, copyright was mainly used by the entities it was aimed at: professional bodies; these were either legitimate (distributors, cable companies or broadcasters) or illegitimate (makers and distributors of pirated cassettes, and later, of CDs and DVDs). Usually, these entities were merely playing the role of intermediaries, and had no personal interest in the content themselves. The internet changed all of this, especially with the invention of peer-to-peer software. Starting with a centralized system known as Napster[16], the recording industry has been waging a constant war against file-sharing, evidence of the emergence of a strong social norm, the stopping of which would have been too risky, as enforcement of a legal norm considered unfair or unjustified by a majority of the concerned people is always arduous.[17]
Historically, the purpose of copyright was not to stop the flow of works, but to channel it, which is to say that copyright was never designed to forbid end-users from utilizing the work, and underlying policy objectives at the advent clearly demonstrate that the right of copyright was meant to be exercised by professionals, against other professionals.[18]
Today, there are three main organizations that regulate Copyright over the Internet: The Intellectual Property Corporation of Malaysia (MYIPO), the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA).
MYPIO
The Intellectual Property Corporation of Malaysia (MYIPO) is responsible for the enforcement of the Copyright Act 1987. MYIPO is an agency under the Ministry of Domestic Trade, Co-operation and Consumerism.[19]
Malaysian copyright law is strong and reflects current international copyright protection norms.[20] In 1997 an amendment was introduced on the lines of the U.S. Digital Millennium Act. Software was included in the list of copyrightable material and unauthorised transferring of copyrighted material over the internet and tampering with security measures that are embedded in software to prevent unauthorized copying are now akin to copyright infringement.[21]
MPAA
The Motion Picture Association of America was founded in 1922 to advance the interests of its members. As a result, it operates in a multitude of spheres including safeguarding the intellectual property rights of its members. MPAA's members are the six major U.S. motion picture studios: Walt Disney Studios Motion Pictures; Paramount Pictures Corporation; Sony Pictures etc.[22]
MPAA has filed lawsuits against servers[23] and torrent websites[24] to check illegal download of copyrighted content. In order to discourage people from illegally downloading copyrighted content innovative measures such as the “You wouldn’t steal a car”[25] video were widely broadcasted. MPAA claims that during 2006, 75 such servers were shut down due to their actions.[26] But MPAA is not enough to curb the internet piracy as even today there are hundreds of websites that allow one to illegally download any cinematograph film which may or may not be under copyright protection.
RIAA
The Recording Industry Association of America (RIAA) is a trust which functions on similar lines as the MPAA as far as protecting the interests of its members, i.e. individual record owners,[27] goes. Thus it is responsible for collective rights management of sound recordings.
RIAA also initially engaged in taking direct action against file service providers[28] and individuals[29] who illegally obtained copyrighted content from such websites. RIAA has now moved to work with ISPs to use a three-strike warning system for file sharing and once the third strike has been confirmed, the internet service of the infringing individual will be disconnected altogether.[30]
Remember:
The Author and the copyright owner are not always the same, the former being the creator of the work, and the latter referring to the person having “plenary control” of the said work.[31]
[1] A copyright refers to the exclusive statutory rights, given to the creator, for the exercise of control over any copying, and any other exploitation, of the works, for a specified amount of time. The owner of a copyright thus, can be said to possess a positive set of rights, as well as a negative one; The former being an exclusive right to copy and otherwise manipulate the copyrighted work, including the right to license others to do so, while the latter refers to the right to prevent anyone else from doing the same without the consent of the creator, who has legal remedies available to him. See ‘Defining Copyright’ available at http://www.articlesbase.com/copyright-articles/defining-copyright-2514882.html#ixzz1Tg3l76cv last visited on 04th August 2011.
[2] World Intellectual Property Organization, WIPO guide on the licensing of copyright and related rights by WIPO (Geneva: WIPO, 2004). Though, there is no such thing as an “international copyright” to protect one’s work throughout the world, most countries are members of the Berne Convention and the Universal Copyright Convention, allowing for the protection of one’s works in Countries wherein one is not a citizen. See “About Copyright” World Copyright Information available at http://www.world-copyright.net/home.shtml last visited on 04th August 2011.
[3] Id. While the copyright system is based on a nearly purely market-based approach, focusing on the property aspect of copyright, the focal point of Collective Management Organizations in Authors Rights Societies seem to be primarily composed of taking care of the needs of the authors, instead of the entrepreneurs, thus adopting a comprehensive approach, which includes economic as well as social and cultural aspects. The differences are visible by inspecting the nomenclature; Referred to as collecting societies in copyright systems, they give the illusion of a purely economic role, limited to the function of ‘collection’ of fees from the users instead of distributing the same to the authors, which is obviously false. On the other hand, Authors rights countries often have more comprehensive terms for the CMOs, ranging from ‘societies of authors’ to the ‘societies for protection (or safeguard) of rights’., reflecting their wide-ranging approach to the subject. In the copyright system, these organizations mainly exercise the mere economic role of administering copyright collectively, in the Authors rights setup, theses organizations often have additional social and cultural roles, sometimes being mandatory by law. In the latter, CMOs are usually also seen as cultural organizations, requiring a sense of unity and camaraderie amongst the authors.
[4] often even given the designation of “Authors societies”
[5] Slike Von Lewinski, International Copyright Law and Policy 61 (UK: Oxford University Press, 2008).
[6] Article 2(2), Berne Convention for the Protection of Literary and Artistic Works. Article 5(2) of the Convention expressly prohibits all member nations from insisting upon compliance with formal procedures as a pre-condition for protection of works by foreign authors protected by the said convention. See Sheldon W. Halpern, David E. Shipley & Howard B. Abrams, Copyright Cases and Materials 296 (Minnesota: West Publishing Co.. 1998).
[7] Sec. 9(1), Copyright, Designs and Patents Act, 1988: Authorship of work “(1) In this Part “author”, in relation to a work, means the person who creates it.”
[8] Thomas Hays & Claire Milne, Intellectual Property Law in Practice 185 (UK: W. Green & Son, 2004].
[9] S. 9(2)(aa), CDPA, 1988.
[10] 9(2)(ab), CDPA, 1988.
[11] 9(2)(b), CDPA, 1988.
[12] Ss. 11(1) and (2), CDPA, 1988.
[13] Thomas Hays & Claire Milne, Intellectual Property Law in Practice 185 (UK: W. Green & Son, 2004].
[14] The oldest recorded case based on an action for the right to copy deals with a text known as the Cathach, from Ancient Ireland. The text is the oldest existing Irish manuscript of the Psalter containing a Vulgate version of Psalms XXX (10) to CV (13). See ‘The Cathach/The Psalter of St. Coumba’ available at http://www.ria.ie/Library/Special-Collections/Manuscripts/Cathach.aspx last visited on 04th August 2011.
[15] Joseph S. Dubin, ‘The Universal Copyright Convention’, 42(1) California Law Review, Inc. 92 (1954). Also see: Statute of Anne 1709 “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned” available at http://www.copyrighthistory.org/cgi-bin/kleioc/0010/exec/ausgabe/%22uk_1710%22 last visited on 03rd August 2011.
[16] Napster was shut down after injunctions were issued by various US Courts. See A&M Records Inc v. Napster Inc., 284 F, 3d 1091 (9th Cir. 2002) cf. Daniel Gervais, Collective Management of Copyright and Related Rights 7 (The Netherlands: Kluwer Law International, 2006).
[17]Daniel Gervais, Collective Management of Copyright and Related Rights 8 (The Netherlands: Kluwer Law International, 2006).
[18] Id. Similar to the effect of the printing press, the internet has the potential to make laws and decisions easily accessible to the public, which in turn could make the administration of copyrights more transparent, and the authority of central organizations stronger. Also See: Ang, Peng Hwa and James A. Dewar, ‘Back to the Future of the Internet: The Printing Press’ available at http://lirne.net/resources/netknowledge/ang.pdf last visited on 04th August 2011.
[19] Available at http://www.myipo.gov.my/ last visited on 03rd August 2011.
[20] Malaysia is a signatory to the World Intellectual Property Organization’s (WIPO) Berne Convention for the Protection of Literary and Artistic Works, and boasts strong domestic copyright legislation.
[21] Section 2(f) which provided the definition of Literary work and Section 41 dealing with infringement were amended to cover electronic media as well, Copyright (Amendment) Act 1997.
[22] Motion Picture Association of America available at www.mpaa.org/about last visited on 03rd August 2011.
[23] Razorback 2 was shut down as a result of the action taken by MPAA. See ‘MPAA Press Release, 23.02.2006’ available at http://www.mpaa.org/press_releases/2006_02_23.pdf last visited on 04th August 2011.
[24] MPAA has filed multiple suits against various torrents, such as Pirate Bay. Raids were conducted on the office of Pirate Bay and servers were seized. Arrests were also made. But three days later, Pirate Bay was functional again. See ‘MPAA Press Release, 22.09.2005’ available at http://www.mpaa.org/press_releases/2005_09_22.pdf last visited on 04th August 2011.
A similar attempt was made to shut down Hotfile. Jacqui Cheng ‘MPAA sues Hotfile for “staggering” copyright infringement’ Law & Disorder: Tech law and policy in the Digital Age available at http://arstechnica.com/tech-policy/news/2011/02/mpaa-sues-hotfile-for-copyright-infringement-on-a-staggering-scale.ars last visited on 04th August 2011.
[25] “You wouldn’t Steal a Car” Youtube available at www.youtube.com/watch?v=HmZm8vNHBSU last visited on 03rd August 2011.
[26] Razorback 2 was shut down as a result of the action taken by MPAA. See ‘MPAA Press Release, 23.02.2006’ available at http://www.mpaa.org/press_releases/2006_02_23.pdf last visited on 04th August 2011.
[27] RIAA available at http://www.riaa.com/aboutus.php?content_selector=about-who-we-are-riaa last visited on 04th August 2011.
[28] Andrew Orlowski ‘"I poisoned P2P networks for the RIAA" – whistleblower Gobbles fesses up to hoax’ available at http://www.theregister.co.uk/2003/01/17/i_poisoned_p2p_networks/ last visited on 02nd August 2011.
[29] Andrew Orlowski ‘RIAA chief invokes Martin Luther King in pigopoly defense’ available at http://www.theregister.co.uk/2003/03/18/riaa_chief_invokes_martin_luther/ last visited on 03rd August 2011.
[30] ‘Verizon backtrack on three-strike disconnect claim’ available at http://www.thecmuwebsite.com/article/verizon-backtrack-on-three-strike-disconnect-claim/ last visited on 03rd August 2011.
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