Copyright crashes on the superhighway

Creators are worried. Publishers are cashing in. And lawyers are having field day as cyberspace makes a mockery of laws on intellectual property. Mathew Horsman examines the legal state of play, while Mike Holdness asks what it all might mean for freelance journalists

Corporate Britain is scrambling on to the "information superhighway". Newspaper publishers such as the Telegraph, News International and Associated Newspapers have set up "electronic" versions of their broadsheets; television broadcasters are toying with video on demand; book publishers are bringing out CD-Rom titles. It's money for old rope: once created, material can be repeated, re-ordered, and re-formed - all at a profit.

But in cyberspace, complex questions arise about the "goods". Can electronically transmitted information be owned? If so, are current copyright laws adequate to protect the owners of information even when it is packaged under new formats such as CD-Rom or transmitted through on-line services? And how do we protect the rights of the creators - journalists, photographers, graphic artists - as companies distribute digitised bits along ever-proliferating avenues?

The emergence of the information superhighway has thrown into question the whole idea of "copyright" and "intellectual property"; creating a bonanza for lawyers, a headache for publishers and a potential nightmare for the creators of articles, songs, software and films.

It is, says Paul Wignall, multimedia specialist at management consultants Ernst & Young, "the sheer ubiquity of on-line services that has highlighted the issue of copyright." Material whizzes across political boundaries - digitised, manipulable, ephemeral.

It's the very nature of the superhighway. Information flow is near-instantaneous and allows for infinite, perfect copying. A software program placed on the Internet can be downloaded at sites around the world, altered and re-posted, and yet never leave the computer of its creator.

Paul O'Grady, chairman of computer services company MicroFocus, explains: "What do you do when the software appears on the Internet? How do you protect your copyright then?" According to John Davidson, head of ICL's new Multimedia Division, "Fifty per cent of software licences go uncollected today. There is a pressing need for greater security and protection."

Likewise, a newspaper article, such as this one, is created in digital form, and sent by modem to a remote site for printing. It could just as easily be sent to a personal computer at home, or posted to the Internet. There, it can be changed, merged with other material, and returned to the "public" cyberspace, perhaps even sold as a different product altogether. How can the rights of the originator (me) or even the copyright holder (Independent) be protected?

Laws to date simply do not adequately cover electronically transmitted, copyright material. "Current copyright laws are not designed for electronic networks such as the Internet," Puay Tang, a professor at the University of Sussex, argued in a recent paper sponsored by the Economic and Social Research Council. "And even if they were, it would be extremely expensive and time-consuming to monitor possible infringements and litigate."

Ms Tang interviewed 50 electronic publishing companies and scores of lawyers and regulators. The solution? "Some form of encryption or data- stamping to protect intellectual property rights." Copyright material would be traceable, in the same way engine blocks in cars can be engraved with a unique number that distinguishes the engine even if it is mounted in a new chassis.

ICL's Mr Davidson is developing just such a system. That might solve the technological issues, allowing the copyright holder to control the transmission of product. But the apparent ease of encryption or data- stamping masks a number of issues. Electronic publishers who take material from several sources, compile it, repackage it and sell it on, would need a comprehensive "rights clearance" system to ensure they actually could incorporate the selected material. Such systems are now in development but are expensive and not yet bug-free. And even if a failsafe method could be devised to gauge use of protected material in all formats, how would copyright be enforced in the event of piracy or other forms of pilfering?

The laws themselves may well have to be updated to extend legal protection in cases where information is traded electronically rather than physically. Current practice in Britain is to grant copyright protection to the "holder" of the right - the publisher, rather than the author; the newspaper rather than its full-time journalists. But those laws were formulated in simpler times, when books were bought in shops, not downloaded, or when a journalist's article appeared in a national newspaper and not on an Internet cuttings menu.

And what about the creator of the material? It is assumed in the UK that the publisher has every right to market the work of employees in any way imaginable. Freelance journalists, however, are another matter (see below). And on the Continent, and in Australia, the issue is far more complex. There, the journalist is assumed to hold the copyright, even if his employers have paid him or her to produce articles. Once the publisher wants to re-sell the work, on-line for example, a separate payment might be necessary. Hollinger, the Canadian owner of the Telegraph, has discovered how complicated this can be, as it attempts to negotiate a deal with its Australian journalists that might grant it the freedom to syndicate copyright material.

The situation becomes far more intricate in countries where traditional copyright protection is non-existent. Fast-growing south-east Asian countries such as Thailand and the Philippines host a notorious population of pirates; trade in "virtual" information is unlikely to be any more comprehensively policed.

Infringement of copyright in the electronic age is one of the fastest growing areas of jurisprudence. Alistair Wilson, a partner at the law firm Manches, says: "The courts have yet to catch up with market practice."

The need for a fresh approach to intellectual property is already exercising the United Nations, the European Union, the US government and Britain's Department of Trade and Industry. The EU, for example, is preparing a Green Paper on intellectual property, while the World Intellectual Property Organisation (WIPO) is pushing for global standards.

At a meeting of the DTI's Multimedia Group today, a group of British publishers will make the point that legislative changes are necessary to protect the copyright holder in the electronic age. Chaired by Duncan Campbell-Smith, an executive at media company Pearson, the DTI sub-committee on intellectual property rights will call for legislation to cover "transmission rights", a new area of jurisprudence.

Copyright today is linked to the physical product. Most countries accept the need to protect the rights of "owners". If a writer plagiarises the work of another, he or she can be pursued in the courts. But electronically transmitted material is not explicitly covered, and the costs of protecting one's rights are prohibitively high.

The sub-committee would dearly love an international legal framework to protect their ability to sell and re-sell their copyright material in many formats and in many countries around the globe. They would be content, however, to see Britain move toward legislation on its own, on the assumption that global standards will gradually evolve.

Until then, the information revolution rolls on, whatever governments desire. Until the law can match the speed of change, copyright will remain acutely difficult to protect. The technology accelerates; men and women still lag behind the all-mighty market.