The oldest precedent of copyright infringement was trialed in 546 AD where St. Columba, an Irish missionary, was found guilty for copying a Latin biblical work.
St. Columba wanted the text of the Gospels, so he borrowed the only such book around, belonging to Finnian of Druim, and made a copy. When Finnian found out, he demanded not only the return of his text, but the copy as well. The king, when called upon to arbitrate, decided in favor of Finnian, announcing the famous quote: “As the calf belongs to the cow, so the copy belongs to its book.”
It’s interesting to note that the king’s metaphoric words also had a literal meaning as the book’s text was scribed on pages of calf’s hide. Furthermore, as antidotal reprieve, St. Columba, being unhappy with the king’s findings and seeking a higher authority, went to war with Finnian and won, thus retrieving what he considered his copy of the sacred book.
Nonetheless, it took another 1155 years before written law was to match this king’s visionary stance. In 1701 the British Parliament enacted the Statute of Anne, forbidding unauthorized persons from printing or importing another person’s book.
Formal copyright grew with technological advancement and the use of the printing press. Authors sought to control publication of their work by granting certain printers publishing rights.
Later in 1710 a revision of Statue of Anne made copyright a fixed period of protection (14 years with renewable of subsequent 14-year periods if the author was still living). This revision prevented a monopoly thus creating “public domain” literature by limiting terms of copyright.
…and then came the Internet.
While the general principles of copyrights and the protection from infringement have not changed in three millennia, the digital age and associated communication mediums have changed dramatically. Legislation was presented with a barrage of new challenges since current law, when created, had not considered electronic or digital encoding.
Digital Millennium Copyright Act
Copyrighted material could now be freely accessed by a global audience thus a need arose to create new laws to protect copyright in the digital age. THE DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) OF 1998 reshaped the future of protecting authors’ exclusive rights within the United States. Since that time, many other countries including Canada, most of the European Union, Australia and many others have enacted their own legislation based on the original framework of DMCA.
The DMCA is a bill designed to bring copyright law up to date with digital age. In part, to aid the protection of digital works and outlaw the manufacture of, or “trafficking” in, technologies capable of circumventing technical protection measures.
It’s noteworthy to mention, within the technical amendments of DCMA, the Copyright Act requires the rightful copyright holder to register their work with the Copyright Office prior to making any claim on copyright.
While it is understood that every author has an immediate “common copyright” on the creation of a work this is by definition only an “implied” copyright noting that the originating author is the entity that may claim copyright. An implied copyright, however, does not sustain the burden of proof which is needed to demonstrate a distinct difference between exclusive copyright, fair use, and unauthorized use.
In simple terms, when copyright is being disputed (thus an alleged infringement has occurred) and a court of law is needed to remedy the claim, each party has previously sworn, under the penalty of perjury, that they are the rightful copyright holder (or disputing based on fair use). By default, a party with registered copyrights automatically sustains a burden of proof. A practical secondary advantage of mandatory registration prior to litigation is the likely distinction that the work in question is not of public domain.
DMCA Global Warming
Protecting your exclusive copyrights within the framework of DMCA is much like the apparent (or illusive) effects of global warming.
To clarify, global warming (if true) is one of the most serious challenges we face since the impact is a global one. Protecting the health and economic well-being of our planet for future generations means we must act immediately.
Unfortunately, the evidence that suggests global warning is occurring can also be postulated in a defense that the observed effects are a naturally occurring one.
Coincidently, copyright is also global matter with similar economic implications, and the provisions of DMCA merely aid to postulate a claim of copyright without necessarily sustaining a burden of proof that a claim in valid.
The practical analogy of global warming is worth mentioning simply because your mere “word” (your sworn statement, under penalty of perjury) that you are the author of a work can be met with another person’s “word” (their sworn statement, under penalty of perjury) your claim remains unsubstantiated leaving anyone else involved in a quandary as to whom to believe.
In retrospect, the greatest threat to copyright as with global warming is ignorance. Lack of understanding in copyright and being oblivious to infringement can have catastrophic effects when the author eventually learns that another person or company is making commercial gains on their exclusive rights.
Online Copyright Infringement Liability Limitation
As the Internet matures, the liability to online service providers grows. With an estimated 30 billion pages of freely accessible and near unlimited information, copyright and trademark infringement is the Achilles heel. Online service provider that act as information hubs aggregating likeminded topics are an ever-increasing easy target of infringement claims.
One of the major copyright amendments that DMCA put into effect was a doctrine to protect intermediaries from being prosecuted for illegal acts in which they were uninvolved.
DMCA Title II: Online Copyright Infringement Liability Limitation (Section 512) provides exemptions for certain online service providers with a complete bar on monetary damages (a safe harbor) in the event an alleged copyright infringement occurs.
Search engines and web hosting companies are the two most prominent service providers having a safe harbor against copyright liability. So long as they, upon being notified of a claimed infringement, adhere to the safe harbor guidelines such as expeditiously removing, or disabling access to, the materials claimed to be infringing on the copyrights or another.
What this means to the average business that finds unauthorized copies of their copyright work being exploited by another firm, is immediate termination to minimize monetary damage. Online service providers requesting a safe harbor from copyright claim have absolutely no choice but to abide by the terms and conditions of DMCA, no matter if a claim is validate or invalid.
In 1998, the United States unanimously ratified DMCA for protection of copyright material in digital forms. However, as this was US legislation only an estimated 1/6th of all online users were subject to the terms of DMCA, making enforcement a continuing challenge.
A significant offset to these challenges is that all major search engines are of U.S. origin. Having a combined readership of over 90% worldwide users and each having adopted DCMA safe harbor guidelines greatly assists in curbing unauthorized use of copyright material. However, without the support of legal recourse on a global scale, a single nation DMCA is very much like plugging a hole in a boat with an ice cube. The flood is arrested only in the short-term.
DMCA safe harbor conditions denote a takedown process immediately upon being notified, whereby, an alleged infringer can choose to counter-claim rather than admit to unauthorized use. Once a counter-claim is received and the copyright holder notified, they have 14 days to file for legal recourse. Unfortunately, if the alleged infringer is not of US origin, neither DMCA provisions nor U.S. copyright law apply. Under the terms of DMCA, should the online provider not be in receipt of documentation indicating civil (or criminal) action has commenced in the specified 14 days, the alleged infringing material is returned to its previous status.
