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Copyright in the Digital Age

By Glenda: First published in Online Currents – 20 (9) November 2005

To examine the risks and opportunities presented by digital information, earlier this year Copyright Agency Limited (CAL) held a half-day seminar entitled ‘Copyright in the Digital Age: Learn How to Protect Your Work in the Digital Environment’.  The sessions were presented by CAL staff members, Michael Fraser, Caroline Morgan, and Eric Moore.  These sessions were followed by a panel discussion featuring representatives from the publishing industry, authors, board members of CAL, and representatives from the Australian Society of Authors.  This paper is drawn from the presentations and panel discussion of the CAL seminar (http://www.copyright.com.au/seminar_papers_CDA.htm ) and on information sheets available on the CAL site (http://www.copyright.com.au/information.htm ), as well as other cited references.

Information wants to be free…but creators and publishers want to be paid!  The advent of electronic content – which is easier than print to search, copy and distribute – has polarised the reading and writing communities, as they debate the rights of creators versus the needs and desires of users.

Some people say that copyright is dead, and has no role in the electronic environment but, at the same time, governments are increasing copyright protection of works.  If copyright is not the best tool for the digital age, then something has to take its place to maintain the balance between creators and users of information.

One of the main feelings I had from the seminar was that nobody knows how electronic materials will best be provided, protected and financially rewarded.  However, we have to start planning and working towards new business models now, even if we may change tack later, as new technological solutions become available and readers’ interests become apparent.

In Australia, the main law governing the use of electronic content is the Copyright Amendment (Digital Agenda) Act 2000, which was written in an attempt to clarify the rights and obligations of copyright owners and users of copyright works in the digital environment.  It extended provisions of the Copyright Act to digital works (e.g. library exemptions to parts of the Act), clarified the scope of the Act (e.g. explicitly including not-for-profit museums in the exemptions) and added extra rules relating specifically to the digital environment.  The most significant of these is the right of communication to the public (see below).

There are good summaries of the Copyright Amendment (Digital Agenda) Act 2000 at the DCITA site (http://tinyurl.com/d2hbr ) and the Attorney-General’s site (http://tinyurl.com/83d59 ), and there are separate information sheets on different aspects of the Act at the CAL site (http://www.copyright.com.au/information.htm ).

International developments, such as the US-Australia Free Trade Agreement, are important in the development of national copyright regulations.  There is currently a fair use review taking place in Australia to decide whether we should use the flexible but litigious US approach to exceptions, or whether we should stay with our own fair dealing rules.

Publication Formats
Ebooks
The digital nature of ebooks means that they can be copied and communicated easily, with copies having the same quality as the original.  This is a great cost and time saver in the distribution of books; however, it also means that it is very easy for one legitimate copy to be shared many times without permission, thus undermining the legitimate market.  It may be that, in the future, there will be more value in downstream use and re-use than in the first sale of a work.  For example, service provision and updates will be important.  Ebooks are particularly important in some niche subject markets, and are seen as complementary resources to print materials in education markets.

Print-on-Demand
Print-on-demand (POD) facilities are becoming more common, meaning that single copies of digital content can be printed cost-effectively (for some purposes), reducing warehousing and other publishing costs.  Print-on-demand may increase income for authors, if they are paid a negotiated licence fee for material that is now copied without payment or under a statutory licence. See the CAL Digital Course Materials Trial section below.

Communication to the Public via E-mail, Intranets and the Internet
The Copyright Amendment (Digital Agenda) Act 2000 created a new right of communication to the public.  This gives copyright owners the right to control how their work is electronically transmitted or made available online.  The right is technology-neutral and includes sending content by e-mail and making it available on an intranet.

According to the CAL information sheet on ‘Copyright and the Internet’, unless there is a copyright statement giving permission, you may be breaching copyright if you:

  • print material from a Web site
  • cut and paste material from another site onto your Web site
  • save material from a Web site on your hard drive or on a disk
  • make Internet material available to other users via e-mail or an intranet system.

How many people check for a copyright notice before printing or saving something interesting they found on the Web?  This law has probably made the majority of Internet users into law-breakers.  It also means you need to think twice before forwarding e-mails.

Because the law is so strict in this area, Web content providers who are happy for their content to be printed and saved, should make this clear on their Web sites.  For example, the CAL site has a link on its ‘info sheets’ page saying ‘Please check the copyright statement before saving, reproducing or commercially distributing material available on this page’.  This leads to copyright information and links for permission requests (http://www.copyright.com.au/copyright_statement.htm ).  They also have a new information sheet on protecting and offering content in the digital environment, which outlines what copyright owners should consider when drafting a copyright notice (http://www.copyright.com.au/info%20sheets/CR26_Digital%20Copyright.pdf).  Creative Commons is another way of providing conditions of use information (http://creativecommons.org ).

See the Licences section below for information on intranet display of press clippings and educational materials.

Business Models for Access and Payment
The format in which content is provided will change, and new business models are needed for fair and effective payment for that content.

Business models include:

  • individual ebooks for a set price.  Some publishers factor in piracy, and so charge more for an ebook than for the comparable print edition; others say that the ebook is cheaper to produce, and should, therefore, cost less.
  • subscriptions.  These can be to individual works (e.g. for regular updates) or to collections of works.
  • pay-per-view use.  Users access content on a short-term basis, but don’t get to keep it.  Because the costs per item are relatively low (although often higher than interlibrary loan charges) an efficient payment system is needed.  This can include credit card, aggregated payments, or the use of payment clearinghouses, such as PayPal.
  • provision of both electronic and print formats for the same payment.  Often one is the ‘major’ format, and the other complementary.  Some textbooks are now provided with an exact copy of the book on CD; with others an electronic format is used to provide interactive material.  Web sites can be used for regular updates.
  • provision of some paid and some free content.  Some providers charge for a print work and provide supplementary information (e.g. educational resources) free on the Web.
  • differential pricing for different users.  Some people recommend waiving licence payments for educational use, although others point out that, as much of the educational sector is for-profit, there is no reason for writers to sponsor their information needs. Others make content freely available for private, but not commercial, use.
  • differential pricing for use at different times.  Some providers (e.g. journal publishers) charge for immediate access to information, then offer it free after a certain time, while others (e.g. newspapers) offer it free for a short while, and then charge for archival access.
  • use of intermediaries as aggregators and service providers.  ProQuest and EBSCO are examples of aggregators that provide access to content at the article level.  The availability of full text has allowed the expansion of the traditional secondary publishing model.
  • offering all content free.  This can be done either to promote information sharing, or in the hope that it will bring in related, paid work.  For instance, musician Janis Ian says she is happy for people to download her songs, as she earns money when they come to her concerts and buy her CDs (http://www.janisian.com/article-internet_debacle.html ), and Ivan Hoffman, an intellectual property lawyer (http://www.ivanhoffman.com/erights.html ) provides content free to gain clients through his Web site.
  • licensing of chunks of information, as discussed below.

Licensed Projects
Full Text Databases
CAL licenses works for inclusion in full text databases, such as Australian Public Affairs Full Text (APAFT), which is compiled by the National Library of Australia and distributed through RMIT Publishing, and Education Articles Online, which is compiled and distributed by the Australian Council for Education Research.

CAL Digital Course Materials Trial
CAL has been involved in a trial project in the TAFE and university sectors; this aims to efficiently combine learning materials from a range of sources into a unified hard copy or digital format.  Educational publishers make ‘chunks’ of content (e.g. book chapters and journal articles) available, and academics compile course packs from the available material.  Metadata is used to label these granular chunks of information.

The system uses a transactional model licence, with no upfront payment.  As this scheme uses voluntary commercial licensing, it provides more flexibility than statutory schemes with respect to the amount of a work that can be copied.  It also allows the provider (e.g. the university) to make a profit.  Presentation is better than in photocopied course packs, and there is less wastage from unsold copies.

At the seminar, I asked about problems with consistency and accessibility in course packs compiled from disparate sources.  The panelists responded that ‘designers and renderers’ will be a growth area in online supply chain  i.e. people who take the chunks of content, and make them visually and editorially consistent, will be adding value to the product.  Tables of contents and indexes will be necessary to provide access to the relevant parts of the work, and visual ‘branding’ with the name and logo of the university or other institution is considered significant.

Press Clipping Downstream Licences
CAL licenses press clipping agencies to scan, store and distribute newspaper articles to their clients. CAL then distributes fees to the copyright holders of the articles. Clients that pay for the clipping service may also pay an additional fee (a ‘downstream’ fee) for permission to internally distribute the clippings.  This fee is paid to CAL.  The rates and conditions for the downstream government and corporate licences are set out on CAL’s Web site (http://www.copyright.com.au/information.htm ).

Educational Use
Since 2001, there have been two educational licence schemes for the copying of works by educational institutions – a hardcopy and an electronic one.  The ‘Electronic Reproduction and Communication’ licence includes rights to distribute information via e-mail, intranets, the Internet (e.g. a password-protected site), and narrowcasting (i.e. video conferencing). Remuneration is negotiated through CAL.

Electronic Libraries
Electronic libraries, through which libraries lend eBooks in the same way they lend print books (one copy at a time) are another model.  Libraries using this model may own access rights to items but have no permanent ownership.  This has implications for library collections if the suppliers of the works go bankrupt or change their lending policies.

Digital Rights Management
Digital Rights Management (DRM) enables the legitimate distribution, and restricts illegitimate distribution, of content over the Web.  The DCITA Web site (http://www.dcita.gov.au/drm/1976.html ) describes DRM as: ‘a range of techniques that use information about rights and rights holders to manage copyright material and the terms and conditions on which it is made available to users’.  They then expand this to include: ‘the description, identification, trading, protection, monitoring and tracking of all forms of rights usages’.

Important aspects of DRM include:

  • security measures, such as passwords and copy protection
  • identification of content, parties, rights, and terms of use, using rights management information (e.g. metadata, copyright notices, encryption and digital watermarking)
  • financial transaction processing and compensation of rights holders.

Digital Object Identifiers
Digital Rights Management can be simplified by using Digital Object Identifiers (DOI, http://www.doi.copyright.com.au ). DOIs are unique numbers that are assigned to pieces of content as a way of tracking intellectual property and supporting transactions for e-commerce.  They can be assigned to any type of content (e.g. text, music, film and photographs) at any level of granularity (e.g. entire works, chapters and paragraphs).  DOIs are persistent, meaning that even if the content moves to a new URL, it can still be found by its DOI.

DOI numbers are made up of a prefix containing the number ‘10’ to identify it as a DOI, and then the number identifying the organisation that has assigned the DOI, and a suffix created by the registrant to uniquely identify the content that the DOI is assigned to.  The prefix and suffix are separated by a forward slash e.g. 10/1000/123456.

CAL has been appointed as an Australian Registration Agency by the International DOI Foundation.  So far, over 6.5 million DOI tagged works, from about 200 publishers, are available online.  DOI is interoperable with other international standards initiatives such as ONIX, and MPEG21.

The future development of copyright will depend on technological, government and community responses, and on the creative adaptation of alternative methods of rights protection and exploitation.

All Web sites were accessed in September 2005.