1. Technology and copyright

Since the 1990s, the development of science and technology has gradually transformed the contemporary world into a totally new age – the Digital Age. On the one hand, that revolution broadens the human horizon with unprecedented rapid progress throughout history the foundation of which is called the ‘Internet of Things. On the other hand, it is putting people under colossal challenges in which every aspect of human society, including the legal systems, is forced to reform to catch up with changes. Among many areas of law facing difficulties in dealing with emerging matters of cyberspace, copyright law is threatened with the undermining of its core values or even its existence.

The effect of technology on copyright can be described in many aspects. Thanks to computers and supporting electronic devices, copyrighted works become far more accessible with their digitalized versions that are easy to archive, copy or customize. In addition, the invention of such global networks as the Internet enables information, including copyrighted works, to spread all over the world within seconds. Although the above–referred innovation contributes to the propagation of works and their contents, it also pushes the widespread infringements of copyright via numerous forms and expressions. Therefore, since the end of the 20th century, many advanced countries have enacted new acts or regulations aiming for digital copyright, in which the pioneer was the United States with the Digital Millennium Copyright Act in 1998. Besides, it can be mentioned to other significant acts, for instance, the Information Society Directive and the Copyright Directive of the European Union in 2001, the French HADOPI Law in 2009, and the Digital Economy Act of the United Kingdom in 2010. Despite the effort of extending and reinterpreting laws, there seem to be huge flaws in the global legal systems in terms of copyright protection, specifically when it turns to a new decade in the 2020s.

2. “The use of digital material will be regulated by contract not copyright” (Simon Stokes)

Most digital works these days, especially computer software, are protected by encryption which effectively prevents them from hackers. Users will be required to purchase to obtain a code or password for the right to access, then “the use of digital material will be regulated by contract not copyright”. Any activities of hacking or breaking shall be considered as violations of civil law, resulting in the fact that a core value of traditional copyright, Fair Use, is likely to be disabled. In another word, a professor could not access works for teaching or researching, and artwork would never be on reporting news or be performed for non-commercially purposes. As the consequence, the foundation of copyright law appears to become increasingly shaky, even among intellectual property rights. There is supposed to be a trend of trademarking digital works instead of copyrighting, especially in Hollywood after the case between Warner Brothers Entertainment, New Line Cinema LLC, Metro-Goldwyn-Mayer Studios Inc., and The Saul Zaents Company on the movie Age of the Hobbit – Before There Was Man. Obviously, the role of copyright in the protection of digital works is called into question at the current time.

3. “The collapse of boundaries which defined the way we originally understood copyright” (Benthany Klein)

It is “the collapse of boundaries which defined the way we originally understood copyright and implemented copyright law” that results from the digitization. Firstly, people now find it confusing to define the term originality – which is a vital criterion for the determination of work and author of work in the context of artificial intelligence works. The development of artificial intelligence in the past few years has given computers an opportunity to create works whose quality appears to be equivalent to human’s. This concept requires establishing a suitable institution of copyright law aiming for the capacity of copyright protection of artificial intelligence works. Secondly, another term also needs to be re-defined in the context of cyberspace is the exhaustion of copyright which is a fundamental institution to motivate trade liberalization, legalizing parallel imports. In the concept of the current technological era, the mechanism of exhaustion of copyright continues to play a vital role, yet its implementation is suffering large changes based on whether trade in goods or services, tangible or intangible products. Then, there has not been a consensus on whether the exhaustion of copyright is applicable for any digital works or not. Lastly, it is not to mention the various confused distinction between idea and expression, or between accessing and copying, also need to clarify the concept of copyright.

4. Digital copyright is “parasitic” on ISP

Copyright is not stand-alone, it must be put in the relationship of the whole legal system, of which two major matters are dispute resolution and the liability of Internet intermediaries. As for the former, although copyright is a national right, the Internet allows copyright infringements to be committed all over the world leading to the difficulty in determining the jurisdiction of the relevant nations and their courts. When it comes to the liability of Internet intermediaries, there is a consensus on the immunity regime for Internet Service Providers (ISP) due to the free flow of information. However, ISP is not all about the Internet intermediaries, the modern one these days includes many other platforms such as Google, Bing, Baidu (search engines) or Facebook, Twitter, and Youtube (social network). The largest difference here is the above platforms have great power over controlling users and contents, not simply being a mere conduit of information like an ISP. Therefore, it is necessary to clarify the legal responsibility of those institutions for the protection of copyright.

Overall, copyright in the digital age is a controversial issue that may transform many of our common sense about copyright, not to mention its neighboring rights; therefore, worth researching.


Author: Nguyen Luong Sy

  • References:

[1] Simon Stokes Digital copyright (fifth edition. ed, Hart Publishing, Oxford, UK, 2019) at 11.

[2] Susy Frankel and Daniel J Gervais The evolution and equilibrium of copyright in the digital age (Cambridge University Press, Cambridge UK, 2014) at 52.

[3] Bethany Klein Understanding copyright (SAGE, Los Angeles, 2015) at 18.

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