Term Paper: Intellectual Property Law

Pages: 12 (3674 words)  ·  Bibliography Sources: 1+  ·  Level: College Senior  ·  Topic: History - European  ·  Buy This Paper

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[. . .] Furthermore the creators of the content in the information industry, including music creators, have been overshadowed by the "bigger" entities, such as producers, broadcasters and institutional users. Indeed, it has been seen above that the greater copyright and earning issues relate to huge industries such as AOL, rather than songwriters and musicians themselves. Not much is done within even the newest legislation to protect the rights of authors or performers.

Indeed, the "all rights" contract standard increasingly appears in contracts signed by artists, with the Directive turning the other way by means of article 9 and recital 30, with the premise that the law of contract remains unaffected by the Directive. The Directive similarly washes its hands of the contract and copyright exemption interface, where mandatory user freedoms are a relevant but ignored issue.

An issue perpetuating the problem is the ready public acceptance of any legislation created by the European Court, especially in the field of intellectual property. There has been little challenge from Member States regarding the Copyright Directive. Yet many citizens and groups of citizens have indeed challenged the Copyright Directive and its implications. Below a number of these are considered.

The Repercussions of the Copyright Directive

According to Smith (2001), the music industry has made attempts via newly created software to prevent the public from copying CDs or playing these CDs on their PCs. The UK's Campaign for Digital Rights is an example of a group disgruntled with the Copyright Directive. The group is Web-based, and composed of computer users and music fans, who feel that the Directive impairs the rights of music consumers in an unnecessarily rigid manner. In order to prevent the introduction of copy-protected CDs, the groups has targeted stores in London, Birmingham, Leeds, Glasgow, Edinburgh, Newcastle-upon-Tyne, Rugby, Brighton and Cambridge have been targeted for its campaign.

The reason for the protest is not the anti-copy principle, but the fact that the industry is attempting to introduce these discs by stealth, and the claim that they are substandard in terms of audio quality and durability. The technology involves adding random noise to the data on the CD, which disables it to be copied or read by a PC CD drive. On a hi-fi this noise is eradicated by the error correction system, whereas a PC simply transfers the data and interprets it as corrupt. As for durability, the anti-rip system renders the disc lower in its resistance to scratches. The already faulty data on the disc then works cumulatively with the scratches in order to make the disc less likely to work as its gets older (Smith, 2001). This is why music fans feel that the technology infringes upon their rights.

The music industry and other professionals however claim that these effects are minimal, and any carefully looked after CD will work equally long, whether it's protected by the anti-rip system or not. There are however certain infringements upon the rights of the public that should be addressed by the music industry. One of these is the method of introducing the new technology. The trials, as mentioned above, are done by stealth, without informing the public about what they are buying. This method is unconstitutional. Each protected disc should state clearly that it contains this technology, especially as it is possible that listeners could experience considerable damage to their speakers if these CDs are indeed copied for whatever reason. Furthermore, if users are buying the CDs in order to listen by means of their PCs, it is only fair to warn users that this would not be possible. The fact that the music industry has been silent regarding the technology appears suspicious, and the question is whether these CDs are truly as minimally affected as they claim.

Smith (2001) cites an interesting case in the United States, where a programmer was arrested under the American equivalent of the Copyright Directive for decoding the encryption code on Adobe's eBook system for the purpose of creating a program that reads eBooks aloud for blind users. Cases should be considered on their individual merits in order to determine the effects of copyright breach, instead of applying rigidly the already flawed laws.

This case relates to the cryptography issue in terms of the Copyright Directive as examined by Midgley. According to the directive, research into cryptography is not to be hindered. However, the inherent flaw here is that researchers are not protected against prosecution, and prosecution does occur, as seen above. Academics or other professionals then researching cryptography with the best of intentions, as above, are indeed prosecuted, because there is no law protecting them.

A further article by Smith (2002) also claims that discs copied illegally could cause serious damage to hi-fi speakers. The anti-piracy system used by Sony's Music Entertainment is Cactus Data Shield, developed by Midbar Tech, an Israeli technology company. On principle, the system works the same as that used by Macrovision's SafeAudio, another anti-rip technology feature. However, the difference is that Cactus flags the noise as control information with the result that the noise created disrupts the error correction system of the copier. Furthermore, if the copy is played back at too high noise levels, speakers are damaged. The reason for this is that the waveform created by these copies is one to which hi-fi circuitry is very sensitive. What is worse, this damaging effect can be turned on or off at will by CD manufacturing companies. This can be done by changing the soundwave used to generate the noise data on protected CDs.

Again the issue of rights plays an important part here. Warnings to the effect that piracy could lead to damaged equipment should be issued not only as a deterrent but also as a courtesy and acknowledgement of the rights of the public. It should furthermore be acknowledged that users more often than not make copies of discs for their own personal use; not for the purpose of profit. Despite the fact that companies claim that the listening experience is not affected, the issue of consumer rights should be carefully considered before hasty anti-piracy practices could lead to expensive law suits.

According to Blincoe however, these issues seem to be ignored by manufacturing and anti-piracy companies. Midbar, mentioned above, has for example to date released one million anti-rip CDs in Europe, and plan to begin such releases in the United States as well. Of course Midbar disclaims accusations to the effect that music quality and listener's rights are affected. They cite the associations IFPI and RIAA, who gave the Cactus Data Shield technology the highest possible score for protection effectiveness. The rights issue is however not addressed at all.

Record companies should however keep in mind the fact that consumers who truly want to make illegal copies of music discs will do so. Smith mentions the example of Macrovision's technology that has been bypassed by a system converting disc tracks to.wav files in RAM, after which it mounts them as readable volumes. The VXD virtual device driver file is used to accomplish this.

The point is however that the majority of listeners make copies only for their own use, and anti-rip technology infringes upon the rights of music users, especially as they are not notified of the technology on the CDs that they buy. Companies however claim that the return rate of these CDs is not higher than unaffected CD's and that the only right consumers give up is the right to piracy.

But such technology does not only affect consumers. Indeed, according to Midgley, copy protection can be significantly inconvenient to professional music studios as well. Copy protection for example needs to be circumvented when a legitimate copy is created from existing recordings. Midgley cites the example of the Serial Copy Management System (SCMS). This is used on digital audio recordings, and prevents copying more than one of any recording thus protected. To enable music professionals to circumvent this inconvenience, DAT drives are sold that can disable SCMS features or enable them, as required. The problem is however that under the Copyright Directive, any users or sellers of this technology can be prosecuted under 296ZA. Any attempt to argue that the devices are used for other purposes (which they are) would again enable companies to sell similar devices to the general public without fear of prosecution. This again significantly detracts from the intent of the law. The obvious solution, according to Midgley, is to demand clarifying language that enables the professional use of the devices without fear of prosecution. Midgley also suggests that section 296ZB can be removed, which would still make the manufacture and sale of circumvention devices illegal, but would enable the professional use of these devices. Ideally however, would be specific legislation enabling professionals to use the device in clear and uncertain terms.

Technological Advance and Legislation

According to Hugenholtz, technological change, especially in the information age, occurs far too rapidly for the slow process of legislation to keep up with it. The… [END OF PREVIEW]

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