Internet
innovations: exploring new
horizons
Alex
Avramenko[1]
& Parveen Tamadon-Nejad[2]
Cite
as Avramenko A. & Tamadon-Nejad
P., “Internet innovations: exploring new horizons”, in
European Journal of Law
and Technology, Vol 5, No 2, 2014.
ABSTRACT
The
aim of this paper
is to provide a standpoint on an emerging trend in sharing digital
video
content over the Internet. The paper is based on participative
evaluative
analysis of business model employed by digital video content sharing
providers.
The authors have found that because of wide diffusion of broadband and
cheap
video recording equipment, enabling digital video content to be shared
online, and
emerging business Internet video sharing practice its users
increasingly find
themselves infringing the intellectual property rights of others. This
has
implications for anyone using online video resources. The paper offers
an
insight into the increasing popularity of online video and the
resulting
dilemmas encountered by Internet researchers; it also offers a
functional way
for researchers, businesses and online users to understand the
mechanism of
infringement of the intellectual property rights relating to online
video
content. The paper further contributes to expanding the understanding
of Internet
users’ behaviour in relation to digital video content creation
and distribution
in the context of challenges faced by cyberlaw.
Keywords:
Internet and innovation; business and cyberlaw;
generativity of the Internet; Internet users’ behaviour
1.
INTRODUCTION
Intellectual
property rights (IPR) are concerned with incorporeal creations and are
country-dependant hence reinforcing intellectual property laws differ
from
country to country. This lack of cohesion between IPRs creates a
situation in
which harmonization of international intellectual property laws is
problematic
and the laws do not always appear to function effectively. These
conditions,
whilst creating enormous commercial opportunities are accompanied by
challenges
arising from the exploitation and infringement of respective
territory-dependent
laws. The Internet, in contrast, is a cross-border infrastructure
comprising
thousands of interconnected computer networks (Benkler, 2006). While
these
networks are in reality governed according to their end users’
ownership, the Internet
or its content is often seen as borderless or having no particular
domicile.
Accessing and downloading a video, audio or textual content over the
Internet is
perceived to be unconstrained by its geographical locality. The same
often applies
to copyrighted content and that represents legal challenges with
respect to
intellectual property rights protection or enforcement, particularly in
controlling
content distribution, derogatory treatment of the copyrighted work and
the speed
of infringement.
This
paper analyses the recent upsurge of
digital video content sharing which is prone to the unauthorised
copying and
distribution of copyrighted material. Digital video content sharing is
distinguished from ordinary peer-to-peer file sharing mainly by the
technology
used to create a digital copy of video content and the massive size of
the
shared video file. The latter has contributed to the emergence of
digital
content Internet repositories, utilising the pay-per-view revenue
model, as the
main method of sharing such content.
The
paper begins
with the introduction of the theoretical framework. This is followed by
the
analysis of the key influences on increasingly persistent online video
content
users’ behaviour which is attributed here to a perceived legal
freedom. The
future of impending Internet regulations is then discussed.
Our
conceptual
framework elaborates on a synthesis of the following influential
discourses:
the generativity of the Internet (Zittrain, 2006) and the associated
rise of cyberlaw
to influence processes taking place in cyberspace (Johnson and Post,
1996;
Lessig, 1999).
The
concept of generativity
assists with an understanding of the overall capacity of technology to
prompt
new creative endeavours and/or innovation and ‘denotes a
technology's overall
capacity to produce unprompted change driven by large, varied, and
uncoordinated audiences’ (Zittrain, 2006: 1980). The Internet
today is highly
generative. This is a function of its ‘capacity for leverage
across a range of
tasks, adaptability to a range of different tasks, ease of mastery, and
accessibility’. Leverage is the extent to which the Internet
enables ‘valuable
accomplishments that otherwise would be either impossible’.
Adaptability of the
Internet refers to both the breadth of its ‘use without change
and the
readiness with which it might be modified to broaden its range of
uses’ (ibid:
1982), while the ease with which it can be mastered makes it fairly
accessible.
In
this paper the concept
of generativity is used to rationalise the emergence and diffusion of
digital
video content sharing, which is one of upshots of the generative
Internet, representing
the ability of Internet ‘users to generate new, valuable uses
that are easy to
distribute and are in turn sources of further innovation’
(Zittrain, 2006:
1982). Regrettably, this phenomenon has certain legal complications due
to the unauthorised
use of copyrighted material and the involvement of different legal
jurisdictions,
as the Internet comprises thousands interconnected computer networks
spreading across
geographical borders.
In
order to address
the legitimacy of digital video content sharing the concepts of
cyberspace and cyberlaw
will be reviewed. The Internet is enabled for cyberspace, a distributed
virtual
space allowing for digital content and communication, which spans
geographical
borders. Johnson and Post (1996) argue that cyberspace needs to be
regulated by
cyberlaw, that is, its own set of rules and regulations not bonded to a
particular territory. The mechanics for establishing cyberlaw is not
clear
though. Logically thinking, the Internet and cyberlaw should have been
developing in parallel, however this did not occur while the Internet
was
evolving an open and self-regulated infrastructure. Meanwhile, the
reconciliation
of cyberspace’s legal disputes may be guided by the principle of
comity as formulated
by the Supreme Court of the United States: ‘the
recognition which one nation allows within its
territory to the legislative, executive, or judicial acts of another
nation,
having due regard both to international duty and convenience, and to
the rights
of its own citizens or of other persons who are under the protections
of its
law’ (Johnson and Post, 1996: 1391). On the other side, Lessig
(1999), as a
proponent of Internet regulation, argues a case for cyberlaw is to be
based on certain
technological approach to imposing those regulations, i.e. building in
all
necessary restrictions into the code governing the functioning of the
Internet,
as it is only then that people’s behaviour in cyberspace can be
effectively
leveraged.
The
research is conducted following the hermeneutic
enquiry (Gadamer, 2004) and is aimed at understanding the increasing
phenomenon
of the sharing of infringed digital video content, which is prompted by
the
advances in Internet-related technology.
The
content of the established digital video sharing
sites or Internet repositories (e.g. MegaVideo, NovaMov, Vidbux,
VideoBb,
VideoZer, XtShare, VideoWeed, VidxDen, WiseVid, ZShare) was reviewed to
identify instances in which intellectual property rights of the content
owners’
have been respected or infringed. The data collection and analysis have
followed the ‘fusion of horizons’
method (Gadamer, 2004) to understand the logic and the paths
followed by
the Internet repositories, primary and secondary infringers. What we
have found
in relation to the infringers’ actions is contrasted with two
dominating
paradigms, influencing cyberlaw. This gained understanding is then used
to conceptualise
principles to be included in the development of cyberlaw.
The
fusion of two such
factors as significantly enhanced low latency throughput of the modern
Internet
infrastructure and high diffusion of broadband connectivity enabled the
rise of
video content sharing and its unparalleled popularity. The
‘appeal of online
video content’ was then significantly broadened to include video
marketing (Ming
et al, 2007), video blogging (Harley and Fitzpatrick, 2009), video
hosting (Von
Lohmann, 2007) and video sharing (Park et al, 2011).
While
communicating
the findings of a survey by the Pew Research Center’s Internet
and American
Life Project, Madden (2009) reports that the share of ‘adults who
watch videos
on video-sharing sites has nearly doubled since 2006’ and reached
62% of adult Internet
users, while the proportion of young adults watching online video is
nine out
of ten (89%). In 2013, Purcell reports that ‘the percent of
online adults who
watch or download videos has also grown over the past four years, from
69% of
adult Internet users in 2009 to 78% today’. Furthermore, in 2009
watching
television or movies was an online experience for a third of American
Internet
users; while in 2013, nearly half of the respondents (47%) watch movies
or TV
shows through a paid subscription service like Netflix or Hulu Plus
(Purcell,
2013). Watching online video outranks all other online activities
including the
use of social networking sites and tweeting. The UK statistics,
provided by
Oxford Internet Survey, are quite similar and indicate that only music
downloads are higher in popularity amongst online entertainment
activities (Dutton
et al, 2013). These statistics raise a question about online video
content’s
origin, including its generation and distribution, which potentially
deserves
some legal consideration.
Creation
of digital
video content becomes easier than ever due to the ready availability of
relatively cheap handheld video recording devices (e.g. Flip, iPhone,
Smartphones),
mobile consumer electronics appliances with video recording and editing
functionality (e.g. set-top boxes) and digital video recording software
are widely
available. Additionally to this technology-enabled ease of video
content
production, there are less technological factors influencing
Internet users’ behaviour with respect to creating and
distributing video content such as users’ motivation, typically
explored in its
duality of extrinsic and intrinsic motivation (Deci, 1971).
Benkler
(2006: 59) suggests that
peer-produced content is not essentially a money driven activity and
has many
other underlying motives as assuring ‘salience’ or
‘getting your message to
large numbers of people’. However, our review of Internet video
content
repositories enabling digital video content sharing (e.g. EpicShare,
2014;
MegaUpload, SwankShare, VideoZer, VideoWeed, Videobb, Zshare, VidX Den,
WiseVid), found a prevailing trend of offering monetary rewards for
uploading
any video content, which was then paid per numbers of views or
downloads by an
unrestricted Internet audience. The reward incentives differ in details
but are
consistent in their appeal to the extrinsic side of human nature. For
instance,
MegaUpload offers one million reward points which will generate USD
1,500; VidX
Den endows USD 1 per one thousand downloads; the Videobb payout rate is
up to
USD 30 per ten thousand video views dependent on video length. These
reward
schemes may certainly encourage users to produce original video
content. It
could be anything, for example, a family video or a chronicle of
friends
gathering. But how many people will be interested in watching that? On
the
other hand, uploading a digital copy of a popular television show
recording
could achieve relatively high viewing figures, leading to a substantial
financial reward.
The
object here is
not to hold Internet video repository providers and their respective
users
responsible for digital video content sharing but to note and analyse
this
widespread phenomenon. A brief review of the missions of these Internet
repositories indicates that such service is free and intended to be
‘mainly
used by the user to share his videos with friends and family’
(Vidxen, 2011).
In some instances this intent is stretched to include customers and
other
unspecified audience: ‘Share videos with your friends, family,
customers, or
thousands of people worldwide’ (Videobb, 2011). Noticeably the
providers of
these digital video content sharing Internet resources are driven by
the noble
goals of (1) creating an ‘online video community, allowing
millions of people
to discover, watch and share online videos’ and (2) offering
‘a network for
users to produce, upload and share videos across the globe and act as a
distribution platform for original content creators’ (Megavideo,
2011). It
appears at the first glance that the video sharing service offered is
intended
to facilitate the production of peer-generated content offering its
users an
opportunity to express themselves. Is it only a desire of ordinary
Internet
users to get salience that makes these Internet repositories of digital
video
content popular or there can be another explanation?
In our
attempt to review
the video content of Internet repositories a large amount of
copyrighted content
was identified consisting of copies of all the major Hollywood
television shows
and movies, including the most recent ones. This massive presence of
copyrighted video content leads us to the question of why that
copyrighted
content has ended up in these repositories which are intended for
peer-produced
content? The answer being that someone, but not a content producer, has
created
a digital copy of the original broadcast and uploaded that copy to a
video
sharing Internet repository. Both of these actions, i.e. unauthorised
copying
of copyrighted content and its distribution, represent infringement of
the intellectual
property rights of the producers of the original television show or
movie.
It
appears that Internet
repositories follow a simple business model, involving three parties:
the
infrastructure provider and two types of users; those who upload
content and those
who view content. Those uploading content are attracted to produce and
upload
digital video content by being rewarded at a rate dependant on the
destination
(country) where the content is downloaded (BillionUploads, 2014;
EpicShare,
2014; SwankShare, 2014). The users who consume digital content fall
into two
categories: those who view content for free and those who pay to view
the
content. The latter are offered different payment options largely
centred on
the quality of the downloaded content. These who do not pay are shown
advertisements and typically stumble on the digital video content
offering
using Internet search engines. They are then offered view only free
membership
saturated with advertisements to ensure repeat consumption of the
digital content.
The Internet repositories in this model provide the technical
infrastructure
for the storage and sharing of the digital content, collect membership
revenue
and share a part of it with the uploaders of content. This business
model is
characterised by low organisational effort and relatively high payoff
which
makes it attractive for potential investors. It is the users who upload
content
who carry out unauthorised copying of copyrighted content and
distribute it.
After
considering
the process of unauthorised content production and distribution the
next
logical question is about its access or watching. Why is it seen to be
acceptable to use other people’s intellectual work over the
Internet, while in
any other circumstances, for instance in a shop, it would be recognised
as
stealing? Is it because the initial design principles of the Internet
emphasised
openness to ensure future growth and scalability (National Research
Council,
2001)? Or is it because of unrestricted availability of web pages, that
Web information
can be relatively easy copied and modified? It is difficult to provide
a
definitive answer but the fact is that the content of cyberspace,
unless it has
a price tag, is often perceived as open and easy to copy. Zittrain
(2006: 1989)
points that historically abuse of the Internet was ‘of little
worry because the
people using it were the very people designing it — a culturally
homogenous set
of people bound by their desire to see the network work’. An
insight into human
perception informed by cognitive psychology as ‘an activity that
takes place
over time’, ‘modifiable by experience’ and
‘specific to what is being
perceived’ (Neisser, 1976: 54) suggests that perceived legal
freedom can
develop over time if (1) an activity becomes seen as a part of the
usual
routine and (2) an infringer does not face any consequences of
breaching the
law.
Laws
are codes of
conduct imposed and agreed by society which if broken, breached or
infringed
have consequences. These can be severe. Our conduct is therefore
governed by
these rules which for most people are clearly defined. Cyberspace is
frontier-free and most users are solitary users, so who will find out
if the
‘law’ is infringed? Indeed as activities carried out in
cyberspace are virtual,
are codes of conduct and legal principles applicable? This is the
dilemma – the
user has a perceived legal freedom of surfing at will and infringing
potentially becomes ‘par for
the course’ over
a period of time.
Not
all Internet
users are inclined to develop deviance from established ethical norms
by making
unauthorised copies. It may all begin with the quite rational and
legitimate
motive of creating a digital copy of a video content for the purpose of
saving
a memorable experience to enjoy it later on and then to share it over
the Internet
with friends, who in the case of social networking is a loose but large
audience. Does this behaviour then become a habit, which is
mechanically
applied in the case of copying and sharing of copyrighted content?
Intellectual
property rights are territory-dependant and therefore the person who
creates
and uploads for sharing an unauthorised copy of a proprietary
television show broadcast
for instance in the US would infringe US intellectual property laws and
would
be known as a primary infringer. Furthermore, anyone else who watches
the
unlawfully created and shared video content online may unwittingly, in
the eyes
of intellectual property laws, become a secondary infringer. Watching
any video
content online consists of two processes – downloading, usually
unnoticeable as
it is performed automatically by an Internet browser, and playing it on
a local
computer. If the watched copyrighted video content is shared further
then it also
represents an infringement which can lead to prosecution.
When
both the
primary and secondary infringements occur in the US, both infringers
can be
sued according to US intellectual property laws. However, if the
primary
infringement takes place in the US, but the secondary infringement
takes place
in the UK this represents a legal predicament as each infringer will be
subject
to different legal systems. Nonetheless, the proprietor of the original
video
content (e.g. CBS) can request that the unauthorised video content be
removed
from the Internet video repository and the secondary infringers can be
fined
according to UK intellectual property laws. The repository encourages
infringing behaviour by its very existence, this notion is
refuted as it
is argued that the repository is merely a platform, which is not
capable of
controlling the behaviour of its users.
While
assuming the number
of primary infringers in relation to the overall number of Internet
users is
quite small, a number of Internet users who become secondary infringers
may
grow exponentially. The latter number can be rationalised by the latest
advancements
in Internet search technology provided by web search engines (e.g.
Google,
Yahoo!) and growing popularity of digital video content. Today a
relatively
skilled user of a search engine can easily become a secondary infringer
as soon
as she finds and then watches or shares digital video content, which
was
generated and posted online by a primary infringer. Furthermore,
information-seeking
Internet users are not renowned for self-censorship when it comes to
the discovery
and sharing of Internet resources relating to a particular interest. In
fact,
the basic principle of social media or networking is the sharing
information or
textual, audio and video content (Morgan et
al., 2010).
However, if the shared content is infringing intellectual property
rights then
social media users inadvertently become secondary infringers and face a
potential legal quandary which stems from the sharing of the infringed
content.
Meanwhile, Internet video repositories are business enterprises
enabling this
process appear to be not liable in this scenario as they provide a
platform
which is being misused.
There
are however
some exceptions with regard to secondary infringement. According to the
current
state of the respective (e.g. EU, US, UK) intellectual property laws,
any unauthorised
use of digital video content that can be regarded as for private and
domestic
purpose is regarded as a permitted act under section 31A of the
Copyright
Designs and Patent Act 1988 (CDPA 1988) and incurs no fine. However, if
this
content is somehow shared with a third party, i.e. friends or similar,
it then
the act becomes an infringement. It is important to distinguish between
primary
and secondary infringement. Primary infringement occurs where a person
commits or
authorises another to commit, without the license of the copyright
owner, one
of the exclusive acts restricted by the copyright. Importantly there is
no
requirement of knowledge on the part of the infringer. Secondary
infringement
occurs where a person facilitates primary infringing activities or
deals in
infringing copies of a work.
To
establish
primary infringement it is necessary to ask whether a subject has
carried out
one of the exclusive acts (under the CDPA 1988) or authorised the
carrying out of
one of them. As discussed previously, because copyright is
territorially
limited, the infringing act must occur within the UK. However when it
comes to authorising
the doing of an exclusive act, it is possible for the act of
authorisation
to occur outside the UK, provided the commission of the exclusive act
itself
occurs within the UK (ABKO Music and Records Inc v Music Collection
International Ltd [1995] RPC 657).
Secondary
infringement
falls within the scope of sections 22-27 of the Act, which requires
that the
infringer must know or have reason to believe that they are dealing
with an infringing
copy. The most vulnerable category with regard to infringing behaviour
is the
younger generation who use the Internet and social media in particular (Morgan et al., 2010) as a main source of
reference,
one of the key functionalities of which is sharing, which takes place
in
cyberspace. Sharing of the shared content also represents secondary
infringement. Should the infringing behaviour be tolerated and for how
long?
The
most pertinent question deriving from
the preceding discussion of intellectual property law infringement
revolves
around the issue of enforcement of these respective laws in cyberspace.
It should
be noted here that there are intricate differences between the Internet
and
cyberspace. The Internet is an infrastructure formed and shaped by a
large
number of interconnected computer networks with particular ownership.
Each
network is connected to the Internet with the help of Internet Service
Providers (ISPs) and that makes it and its networked resource bound to
a particular
geographical location. Cyberspace is a distributed virtual space,
enabled by
the Internet, and allowing for digital content and communication within
it.
While the digital content, though often distributed, can be pinpointed
to a
particular location on the Internet, the digital communications are
essentially
cross-territory activities as they more often than not include remote
intermediaries, depending on the type of service provided. Intellectual
property laws which govern both the Internet and cyberspace are still
at a
formative stage and are commonly referred to as cyberlaw.
The
cornerstone of the cyberlaw debate is that
cyberlaw is not and cannot be the same law that is ‘applicable to
physical,
geographically-defined territories’ (Johnson and Post, 1996: 7).
The challenge for
cyberlaw is to establish what can and what cannot be readily copied and
disseminated
(Zittrain, 2006: 1979). Would it be possible for cyberlaw to deal effectively with primary and secondary
infringements?
One of
the proponents of a regulatory
approach to the Internet and cyberspace, Lessig (1999) argues that the
debate concerning
cyberlaw is limited. It should consider the impact of technology on
human behaviour.
Both technology and behaviour can be regulated but in different ways.
Technology can be regulated by the code operating it and that would
assist the
controlling of human behaviour which traditionally is regulated by
legal
policies. Any legal policy proposal unsupported by technological
interventions
is deeply incomplete.
Despite
its understandable appeal, Lessig’s
argument is flawed due to a mismatch between technology and cyberlaw
developments. Technology in this context is the Internet which is
highly
generative in its essence and therefore becomes an inexhaustible source
of
innovations. The digital video content sharing discussed is an example
of an Internet
service enabled by recent developments in broadband connectivity and
the availability
of digital video making technology. Cyberlaw on the other hand
develops, or
rather expands, by imposing restrictions, some of which may block or
prevent
these technological innovations from taking place.
A
further complication of the regulatory
approach is ingrained in the heterogeneity of cyberspace. Lessig (2006:
84)
also acknowledges that cyberspace is not one homogeneous place. It
comprises of
many diverse places and ‘the character of these many places
differ in ways that
are fundamental. These differences come in part from differences in the
people
who populate these places, but demographics alone don’t explain
the variance’. For
Lessig, these cyberspace communities can still be regulated by means of
coding the
technology, that is, if policies are built into digital architectures.
This
argument is difficult to substantiate due to vast heterogeneity of
devices connected
to the Internet. And it also evokes memories of ‘the Fritz
chip’ agenda
proposed in the US Consumer Broadband and Digital Television Promotion
Act in
2002 which was intended to incorporate certain hardware and software
amendments
to any ‘digital media device’ in order to prevent its users
from copying, playing
and distributing unlicensed copyrighted works. This way of imposing
cyberlaw
may work well, but it calls for certain amendments in the existing
Internet
connected infrastructure with implications for manufacturing costs and
implementation time for upgrades. However, the Act represented an
attempt by
the content generating industries ‘to regulate hardware and
software to fit the
distribution model of Hollywood’ and was not accepted due to the
resistance of the
various technology and telecommunications services developing
industries
(Benkler, 2006: 410). This attempt, if it had succeeded, would
certainly have
prevented the Internet being a generative platform for innovations.
Analysing
the practical steps of some
governments towards establishing cyberlaw, it can be noted that the
regulative
approach is gaining popularity. The Digital Economy Act 2010 was
pursued and
passed in the UK, enabling government to make laws regulating Internet
Service
Providers, enabling courts to block copyright infringement propagating
websites
and establishing the rights of copyright owners to obtain information
about
infringers for further legal action. The procedure essentially enables
copyright
owners to identify incidents of infringement and compile lists of
Internet
protocol addresses at which they believe their copyright has been
infringed.
This is sent to the ISP in the form of a report, with evidence of
infringements. The Act increases the penalty for online copyright
infringement to
a maximum of £50,000. The Act also gives the secretary of state
the power to
order ISPs to impose technical measures on users who meet certain
levels of
infringements, these measures might include bandwidth capping or
shaping, or
temporary suspension of an account. In US the Digital Millennium
Copyright Act
was signed into law in 1998. It is divided into five titles, Title II,
the
‘Online Copyright Infringement Liability Limitation Act’
section 512 creates
limitations on ISPs for copyright infringement when engaging in certain
types
of activities; these are limited to four categories: transitory
communications,
system caching, storage of information on systems or networks at
direction of
users; and information location tools. To fall within the scope of the
Digital
Millennium Copyright Act, an ISP must, among other things, take certain
steps
when it receives notice that infringing material resides on its
network; adopt
and implement a policy that provides for termination in appropriate
circumstances of users who are repeat infringers; and accommodate
standard
technical measures that are used by copyright owners to identify and
protect
copyrighted works. Liability under the Act is both civil (Section 1203)
and,
where the acts are wilful and for commercial advantage or private
financial
gain, criminal (Section 1204).
Will
these
regulatory measures succeed? There is no straightforward answer. On one
hand, despite
quite severe liability implications prescribed by both the Digital
Economy Act
2010 and the Digital Millennium Copyright Act those reviewed digital
video
content Internet repositories were saturated with unauthorised copies
of infringing
video content and this number is steadily increasing (AllMyVideos.net,
ModoVideo.com, SpeedVid.tv, VidBull.com, VideoPremium.net). On the
other hand,
there was and still is strong opposition to the implementation of
regulatory
measures.
In
2002, the Consumer
Broadband and Digital Television Promotion Act came under fire from the
technology industries who in terms of revenues are much bigger players
than the
Hollywood producers of the creative content (Benkler, 2006: 423). Today
circumstances have changed and the opponents of the regulated Internet
also include
political parties and human rights groups, inspired by United Nations
maintaining
that ‘the Internet is one of the most powerful instruments of the
21st century
for increasing transparency in the conduct of the powerful, access to
information, and for facilitating active citizen participation in
building democratic
societies’ (La Rue, 2011: 4). It is strongly argued that in order
to preserve this
democracy facilitating capacity of the Internet access to it ‘for
all
individuals, with as little restriction to online content as possible,
should
be a priority for all States’ (ibid).
There are also focused efforts to oppose regulative indiscriminate
sanctions
targeting Internet users due to privacy concerns. Furthermore, measures
proposed in the Digital Economy Act 2010 and Digital Millennium
Copyright Act have
a tendency to stifle creativity on the Internet (Open Rights Group,
2011).
However, these efforts, by those facilitating greater democracy and
innovation,
also indirectly facilitate the perception of legal freedom among those
Internet
users who may illicitly use the intellectual work of others.
Our
conceptualisation of the online video sharing
phenomenon utilises the concepts of generativity and legal moralism.
Holistically taken, the Internet ‘denotes a technology's overall
capacity to
produce unprompted change driven by large, varied, and uncoordinated
audiences’
(Zittrain, 2006: 1980), which would prompt new creative endeavours
and/or
innovation. The digital video sharing phenomenon represents such an
endeavour
and gives rise to certain business models and the associated dilemma of
infringement. It was emphasised earlier that the number of primary
infringers
is a relatively small one, while the number of Internet users who
voluntarily
or otherwise become secondary infringers may grow exponentially because
of
increasing popularity of Internet video repositories and the sharing
trend
influenced by social media such as Facebook, Twitter, and MySpace.
Legal
moralism
emphasises that law can be prescriptive and used
legitimately to prohibit behavioural patterns, even those not resulting
in
physical or psychological harm to others, which would conflict with
established
collective moral judgments (Devlin, 1965). Applied to the case of
Internet
video infringement it would infer that primary and secondary infringers
need to
be treated differently. While secondary infringement is often
circumstantial
and unintentional and in many cases is led to, by the use of search
engines,
primary infringement on the contrary reflects a type of behaviour
conflicting
with established societal moral norms and if pursued would threaten a
common
morality which serves as an invisible bond holding it together, the
glue at
underpins society. Therefore, the onus in dealing with infringement
should be
on primary infringers, who need to be identified and prosecuted, as
laid down
in the CDPA 1988, or similar comparative legislation. The secondary
infringement can and needs to be tolerated due to the non-malicious and
often
non-intentional nature. Some educational measures can be deployed, for
instance
by search engines providers, to help Internet users to distinguish
between the
original and infringed content. This approach would establish a
situation in
which the creativity potential generated by the Internet and creativity
exhibited by original content’s producers can be reconciled with
each other to
power and sustain rapid technological innovation.
In
response to Lessig’s (1999, 2006) view on enforcing
cyberlaw by building it into Internet architecture together with
enforcement of
legal policies and adequate social norms some practicalities need to be
mentioned. Firstly, there is no clear mapped territory of cyberspace to
match
it with cyberlaw, as cyberspace is diverse in its demographics and
behavioural
patterns. Secondly, the sophistication of the code required to
implement such a
version of cyberlaw would raise doubts of its adequate application.
Another
perspective
on cyberspace as a communal space, with cyberlaw initially being
similar to
netiquette but emerging later, building on the reciprocity of national
intellectual property laws (Johnson and Post, 1996), may appear to be
more
practical than at first glance. For its instigation it requires
international
collaboration towards a cyberlaw convention and the engagement of
various law
influencing organizations, for instance a pan European association of
European Internet
Services Providers Associations (EuroISPA, 2011), which is already
working
towards a holistic approach regarding the European Intellectual
Property Rights
framework (European Commission, 2010). While this framework is more
concerned
with establishing a single pan European market for intellectual
property to
encourage creative and inventive efforts it generates a useful
experience with
respect to multilateral intellectual property rights initiatives,
especially in
the case of infringement.
It is
evident that the Internet, if left unregulated,
will continue to generate innovations and some of them may facilitate
different
types of infringement. The rate of innovation will also depend on the
effort to
regulate the Internet. In the Lessig paradigm, regulations can be
embedded in
technology and govern its code, but it is not possible to envisage the
amount
of effort to implement such a mass scale programming of the Internet
being
undertaken at the moment. Lessig perhaps has drawn his inspiration from
IP
version 6, which was envisioned in 1992 as having a rich functionality,
but its
gradual implementation has been taking place ever since due to the need
for the
massive upgrade of all Internet-supporting infrastructure and client
devices
connected to it. The other efforts to regulate and ensure the
predictable use
rather than development of the Internet will always be targeting ISPs
as a
fundamental and yet flexible element of the Internet infrastructure.
The latter
approach certainly can also facilitate the development of a
heterogeneous
cyberlaw, which is currently still on the level of debate due to the
complexity
of such an endeavour and the absence of a coordinating agency.
This
discussion should lead to
the suggestion of a framework to mediate between the interests of the
key
stakeholders: policymakers (as arbitrators of legal practice), industry
(as
originators of creative content) and digital content users (who,
intentionally
or not, may become infringers). Common sense however would seem to
indicate the
rejection of such a proposition because of the irreconcilable conflict
between
the stakeholders’ interests.
More
than anything, users act as
catalysts for change by challenging the status quo with their ignorance
of or
denial of the existing copyright laws. While Lessig’s argument
provides a
useful analytical basis for improving copyright practice, it does not
recognise
users as an active element capable of generating new creative
endeavours
supported by the overall capacity of technology to produce unprompted
change
(Zittrain, 2006). With time more manageable or copyright compliant
devices and
restrictive ISP measures will ensure tighter control of copyright
compliance
(Zittrain, 2009) but will not stop users finding new ways of consuming
digital
content.
Diffusion
of
broadband connectivity and fairly cheap electronic devices with video
recording
functionality have significantly contributed to the popularity of
digital video
content sharing. This popularity supported the emergence and rapid
growth of
digital video content Internet repositories, often using financial
incentives
as a means of attracting and retaining their clientele. One of the side
effects
of such development is that these Internet repositories become the
epicentres
of unauthorised copyrighted video content sharing, as users uploading
unauthorized
content perceive the absence of clear and enforceable cyberlaw as
freedom to use
the generated or copied digital video content without restraint.
Furthermore, this
trend coupled with increasingly advanced web search technology may
convert an
ordinary user of search engines into a secondary infringer when she
finds and
then watches digital video content generated and shared online by a
primary
infringer.
In our
view, while
cyberlaw is still in its infancy and its effective implementation is
constrained by different jurisdictions (Johnson and Post, 1996) the
emphasis of
law making authorities should be on developing the commonly accepted
principles
to safeguard against infringement but not restrain the creative
endeavours
facilitated by the Internet (Zittrain, 2006). One of the principles
discussed
in this paper is shifting the emphasis from the efforts to impose
control or
regulate the Internet, especially in building restrains into technology
or code
(Lessig, 1999, 2006), to prevention of it from happening. The
prevention needs
to begin with treating primary and secondary infringers differentially.
The
primary infringer needs to be identified and tried as set out in
current
legislation (e.g. CDPA 1988). The secondary infringer shall then be
tolerated
whilst educating Internet users to distinguish between the original and
infringed content. The development of cyberlaw in this way would
preserve the
growth and innovation in information technology and facilitate creative
efforts
by original content producers.
On the
whole, if the
law is to be seen as a regulating code made up of two elements; a
software code
and a legal code, then it will always be unbalanced due to the
realisation that
traditionally law plays catch up with technology. Meanwhile, the
Internet’s
generative capacity to facilitate creative endeavours will be
continuing to
yield intellectual property related dilemmas.
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