‘Interactivity’ and digital works: How legal rules are restricting our ability to use digital works as a communications medium

Abstract

Copyright law has traditionally granted a negative right to authors to prevent others making a copy of a protected work. However, there is an increasing trend for right holders to treat it as a positive right that controls the use of a work. This is invariably achieved through the use of ‘digital rights management’ (‘DRM’) mechanisms. Pre-digital works, such as books, were not necessarily easy to copy because of their physical characteristics. Photocopying an entire book could, for instance, take considerable time, effort and money. However, digital technology enables works to be easily copied an almost limitless number of times. Right holders are therefore keen to restrict the ability of individuals to copy their works. They do this by creating digital ‘walls’ with DRM mechanisms. However, this could lead to a restriction in the uses to which digital works may be put. Over time, the use of works generally has been increasingly ‘interactive’. As they have become more ‘interactive’, they have been more reliant on copies being made of the original works. Such ‘interaction’, it may be said, has led to new forms of communication. Today, edited versions of original works are often to be found. Nonetheless, some of these interactive uses of works are restricted by DRM mechanisms. The author suggests that some of these uses should be permitted, so to as not unduly restrict new forms of communication.

Notes

1. T Heyd and J Clegg (eds.), Aesthetics and Rock Art, Ashgate Publishing, Aldershot, 2005.

2. See generally E Eisenstein The Printing Press as an Agent of Change Cambridge University Press, Cambridge, 1979.

3. See inter alia P Gilster Digital Literacy Wiley, New York, 1997.

4. L Lessig, Free Culture: How Big Media uses Technology and the Law to Lock Down Culture and Control Creativity Penguin, New York, 2004, p 164.

5. See, eg Ultima On-line, see www.uo.com

6. An example of this would be the use of the console command in Quake games. It also forms an integral part of one game (see, eg www.quakerally.com).

7. See inter alia Amiga Power; Amiga Format; PC Format.

8. N Elkin-Koren ‘Cyberlaw and social change: a democratic approach to copyright law in cyberspace’ Cardozo Arts and Entertainment Law Journal Vol 14, pp 215–295, 1996 at p 245. The original quote is as follows: ‘cut and paste techniques occupy a large chunk of the creation process …’. I have replaced the word ‘creation’ with ‘interactive dialogue’ because this fits more with what Elkin-Koren is actually describing.

9. See M Brodin, ‘Bridgeport Music Inc v Dimension Films’ Minnesota Journal of Law, Science & Technology Vol 6, pp 825–868, 2005 at p 831.

10. See Bridgeport Music Inc. v Dimension Films (‘Bridgeport II’) 383 F.3d 390 (6th Cir. 2004), where it was held that sampling a piece of copyrighted music was a per se infringement regardless of the amount copied. This may be contrasted with the opinion of the district court that held the use was de minimis—see Bridgeport Music Inc. v Dimension (‘Bridgeport I’), 230 F. Supp. 2d 830 (M.D. Tenn. 2002).

11. On licensing, see generally W Fisher Promises to Keep Stanford Law and Politics, Stanford, CA, 2004.

12. Infringement is, nonetheless, important for the fate of p2p networks as ‘contributory’ infringers—however, on p2p networks the infringement is often prima facie. For further details of p2p networks see J Griffin ‘The “Secret Path” of Grokster and Corley’ Journal of Computer, Media and Telecommunications Law Vol 10, No 5, p 147, 2005.

13. 17 USC §1201.

14. Chamberlain Group Inc. v Skylink Technologies Inc. 381 F.3d 1178 (2004) at 1195, in reference to the anti-trafficking provision in the DMCA, which in practice makes it very difficult for users to circumvent access controls at all. Hence, the court's statement that the DMCA does not alter traditional infringement theories needs to be read in context.

15. This can be seen in the fact that any cases of note regarding digital content in the last few years have focused around the DMCA rather than traditional rules of infringement.

16. I Stamatoudi Copyright and Multimedia Works Cambridge University Press, Cambridge, 2002, p 45.

17. B Shneiderman Leonardo's Laptop MIT Press, Cambridge, MA, 2003; see generally ch 5.

18. For example, www.ofoto.com

19. Y Benkler ‘Freedom in the commons: towards a political economy of information’ Duke Law Journal Vol 52, pp 1245–1276, 2003 at pp 1248–1249.

20. Op cit, note 8, at p 268.

21. 108th Congress, 1st Session. H.R. 1066, Benefit Authors without Limiting Advancement or Net Consumer Expectations Act.

22. 108th Congress, 1st Session. H.R. 107, Digital Media Consumers' Rights Act of 2003 formerly H.R. 5544 in 107th.

23. The Boucher Bill would allow access control circumvention if it does not result in infringement of a copyright in a work—which might be a problem if this is impossible to avoid—and if we remain uncertain about fair use. The Lofgren Bill would appear to favour circumventing access controls, but only where the work has been lawfully acquired. Although it would not appear in the spirit of the statute, it could be argued that to break an access mechanism even for fair use purposes might remain an example of unauthorized access.

24. DMCRA Section 5(b).

25. Sony v Universal City Studios 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d. 574 (1984).

26. See www.zoelofgren.house.gov/iss_digital_analysis.shtml

27. BALANCE Section 3. This would become 17 U.S.C. Chapter 1 §123 after §122.

28. Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society, O. J. L167 0010–0019.