Web is an unique publication medium that has posed its own challenges
to the Copyright world like no other medium has earlier done.
Firstly, web is a "Digital Medium" where "Reproduction of Permanent
Perfect Copies" is feasible. Hence a song or a picture taken from the web
can be reproduced any number of times without any deterioration of quality.
This fact alone is held as the reason for Digital Copyright Acts to be
stringent on those who create devices that aid in "Digital Copying" as
the Russian programmer Dr Dmitry Sklyarov found out recently in the
"Free American Land".
Secondly, web is a medium where access is often allowed to the public
for digital information/digital experience on a particular web site in
the hope that the community created around such distribution of digital
information/experience creates a realizable monetary value for the site
owner.
While protection of Copyright on digital medium not on the web is one
issue which is being tackled through "Digital Padlocks", "Hidden Digital
Explosives" etc, the protection of copyright on the web is complicated
by the confusion as to whether the material is in "Public Domain" and whether
its reproduction is a "Fair Use".
It is in this context that the need for the "Copyright Owner" to be
fair on the society becomes important. It is not ethical to expect that
the user of an information on the web to take unreasonable precautions
to check if a material is free for reproduction or not. It is reasonable
to expect that the Copyright owner should provide a proper notice that
the material published is in the public domain or not.
The easiest and most straight forward way of doing this is by putting
up a "Notice" on the home page and preferably on every page containing
the information which is sought to be protected.
It is often argued by some that this is "Not a Pre-condition" for the
protection to be valid. They therefore consider perfectly legal to proceed
against a violator if they find one and claim compensation. The analogy
often provided to justify this stance is that "If your front door to your
house is kept open, it cannot be considered as an authorization to enter
the house".
The grey area however is..
when you organize an "Exhibition" of some art works created by you and
invite the public to walk in, see, and photograph all round. If some of
the visitors capture good photographs of your works, develops it into life
size pieces, frame them and adorn their houses with them, is it a Copyright
violation?
Or if you are a celebrity like Sachin Tendulkar, Amitabh Bachhan or
Rajni Kant and allow your pictures to be taken alongside your fan which
one of them uses to decorate his living room, (Or to invite customers to
his business place) is there a "Royalty Due" to the celebrity?
If "Ethics" in dealing with your fans is an accepted norm, it is necessary
for the Copyright owner to put the user on notice that his permission to
use the "Experience" is limited. If not he would be guilty of "laying a
Trap".
It appears that some Web publishers today are more interested
in laying traps for people to entice them to violate copyright and later
go after them for compensation. When there are many easy ways
of creating a "Notice" either by a "Single Click Copyright Information"
or "Copy Disabling Scripts", not using them could be termed as an attempt
to entice people for wrongful gain. This is the ethical question that was
also at the center of the Tehelka controversy in India recently and should
become the legal position as well.
The physical analogy is that there is a large green field where several
different teams are playing cricket.. (like they usually do in Mumbai).
In the midst of this, one club wants to claim that a particular area belongs
to them only and no tress pass is allowed. Even admitting their rights
for the particular area, it does make it necessary for the owners to demarcate
their zone in such a manner that passers by are kept informed that
the area is out of bounds.
Content on the web is closer to this analogy than a "House with an Open
Door" analogy. The difference is that the demarcation in one case is non
existent and in the other very explicit.
Thus it should legally be mandated that the onus of proving that a material
is "Not Meant for Public Domain" should be on the Digital Copyright owner.
This is one of the several reasons why we argue that "It is not possible
(..rather, "desirable") to extend all meta society laws to the Internet
world. We need laws specifically structured for the Cyber Space by the
Netizens, For the Netizens and of the Netizens.
Naavi
September 10, 2001.
