Ron Hay is a media and entertainment lawyer and a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch. This article was prepared with the assistance of lauralee bielert.

* * *

Elvis is back on tour on the World Wide Web despite an attempt by Elvis Presley Enterprises to shut down the unauthorized Cyber-Graceland tour on the Elvis Home Page – a site where users could access and download Elvis pictures and sound clips. The cyber-tour was temporarily shut down when Elvis’ representatives stepped in with a cease-and-desist order claiming copyright infringement.

The creator of the Graceland tour complied and replaced the original Elvis Home Page with a note explaining what happened. Elvis didn’t leave the building for long, though, since Elvis fans reacted to the cease-and-desist order by contributing new material to the page.

The Elvis story reflects one of the tensions between interests on the Net. On the one hand, there is a desire to provide users with easy access; at the same time, there is a concern about providing adequate rewards, safeguards and incentives to encourage creators to put their words on the Net.

So while the King lives on, so too does the struggle against the widespread phenomenon of copyright infringement in cyberspace.

The challenge

The ease and speed with which text, pictures, sound and software can be downloaded from the Net makes it a challenge to enforce existing copyright laws. The law is lagging behind the rapid advances in technology. Net freaks and lawyers alike debate basic questions such as:

– Who is responsible for material posted on a bulletin board system? Can bbs operators be held liable for materials uploaded without their knowledge?

– When does browsing cross the line and constitute copyright infringement?

– How far can existing intellectual property laws be expanded and reshaped to meet the demands of new technologies?

Who to sue?

Suing an individual user for copyright infringement may be next to impossible (and certainly not economic) because existing technology makes it relatively easy to operate on the Internet under an assumed identity. A key question for copyright owners, then, is whether network operators are liable for material posted on their systems, or whether they are protected from liability under the Copyright Act as ‘common carriers.’

While not yet addressed by Canadian judges, American courts have begun to explore the issue of bbs operator liability.

Playboy photos were uploaded by a user onto a bulletin board and subsequently downloaded by other users. Playboy successfully sued the systems operator for copyright infringement, despite claims by the operator that it had no knowledge of the existence of the photos.

Sega also successfully sued operators of a bulletin board service who actively encouraged subscribers to upload and download unauthorized copies of video games.

These are both examples of deliberate pirating, but most unauthorized use of copyrighted material is not so obvious.

Browsing

Most agree that there is a clear distinction between viewing and downloading and printing. However, the distinction is blurred by the fact Web browser software will automatically save material to the computer’s hard drive without specific commands from the user.

In a recent report by the Information Highway Advisory Council, the copyright subcommittee concluded that a fixed copy is considered to be reproduced when downloaded from a bbs to a hard drive, disc or any storage device. The subcommittee went even further, recommending that browsing (which means accessing a work, even if only to make a temporary or ephemeral fixation) should be considered an act of reproduction and thus protected by Canada’s Copyright Act.

While the response to the committee’s recommendations from the information industry was positive, others were concerned that considering browsing as ‘reproduction’ under the Copyright Act would unnecessarily fetter users’ access.

Fair dealing

Another issue explored by the committee was the question of ‘fair dealing,’ or ‘fair use’ as the defence is known in the u.s. In Canada, a fair dealing defence will succeed only when the use is fair and reasonable, and when it is for one of a number of specified uses: private study, research, criticism, review, and newspaper summary.

Submissions to the committee revealed a considerable disagreement over fair dealing. Creators’ groups generally argued that, given the ease of reproduction on the Net, fair dealing should be excluded as a possible defence in order to restore some control for copyright owners. Many users’ groups, on the other hand, demanded that the law be clarified and modeled on the American copyright legislation, which generally allows for broader uses of a copyrighted work without obtaining permission.

How can you protect your work?

Assuming that many users won’t obtain prior written permission, what can you do to protect your work? The solution may, in fact, be technological and not legal. Security measures are being developed, such as encryption devices, dynamic software (which senses the process of duplication and triggers a self-destruct sequence), sub-programs (which either alert the creator of its use or require some subsequent impulse to continue), and metamorphosing software (which would make pirated copies static and of lessened value).

This technology is not a thing of the future: it’s already being used by persons such as William Gibson, author of Johnny Mnemonic. Gibson recently released the novel Agrippa exclusively on computer discs which were programmed to erase each line of text at a preset speed after they rolled up on the computer.

While such security devices are becoming more widespread, the law is struggling to keep up with the changing technology, and copyright owners should be aware that the only way to protect their rights is to keep a vigilant eye on the Net.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)