Rethinking copyright and the internet: a new model for users’ rights

The laws of copyright can be slower to adapt and evolve than the industries they regulate. As the landscape of how protected works are made and how the public views how those works should be treated changes, the law does not seamlessly follow in course. Rather, it typically slowly grows obsolete and then undergoes periodic points of drastic redefinition in order to adapt. Since the Statute of Anne, the foundation for modern copyright law across the globe, many nations have implemented subsequent reforms to their copyright acts to adapt both to the modern world and to previous failures of the law. The British Copyright Act of 1956 adapted the law to a world connected in trade by expanding protection for works whose initial publication was outside of Britain.1 In 1998, the United States enacted one of the most important pieces of copyright legislation as a reaction to the effects of the internet and technology on the enforceability of copyright law. This law is known as the Digital Millennium Copyright Act (DMCA). The DMCA,among its many alterations and additions to the law, created a safe-harbour provision so that online service providers could avoid vicarious liability for the actions of their members- moulding the law to the digital space.2 In 2012, Canada passed its groundbreaking Copyright Modernization Act which sought to address the rise of user-generated content by legitimising transformative works made for non-commercial purposes.3 Thus, the overarching trend in copyright law is for it to gradually grow obsolete or ineffective within the scope of the industrial or technological power of the market until a great force of legislation brings the law back in line. This thesis will argue that we have reached such a turning point. It asserts that an inability to adequately apply current law, seen through impotent enforcement mechanisms online, coupled with vague legal boundaries has brought about a need for redefinition within copyright law. Further, it hypothesises that the that the property-law model used as a basis for copyright law today is the root of issues with balancing user’s rights against creators' rights and is no longer the ideal means to protect creative works online. It will demonstrate how technology and global communication have changed the culture of creativity and creative dissemination in such a way that copyright law is no longer a competent tool in protecting and fostering the development of a large body of creative works. It will examine current would-be solutions to the problem of online infringements and analyse their inadequacies. In analysing the current relevant legal mechanisms, their failures and successes, as well as how the notion of property-like rules influence these failures and successes, it comes to the conclusion that stepping away from this property model and towards a system of liability rules online will not only help to foster new works, but will benefit those who own the rights to existing works as well. It concludes with a suggestion for a newly constructed system of liability rules, targeting areas previously discussed where the law is failing, to be applied in lieu of property rules for certain aspects of copyright protection. The overarching research question this thesis serves to answer is how can we appropriately balance author’s rights with the dissemination of information in a digital world in a way that leads to a system of copyright law that is practical, fair, and enforceable? It is intended to highlight and address the growing inefficacy of copyright law in the digital world, analyse the weaknesses of modern attempts to adapt the law to the digital space, and offer unique solutions to the problems it addresses. It analyses copyright law from a global perspective through the lens of online infringements. I adopt this global perspective for two reasons. First, while copyright law is strictly territorial, it serves at the behest of a global economy and has been largely unified through treaties with respect to minimum requirements for protection and framework standards.4 Second, a global perspective is important for the comparative analyses I employ. The comparisons target the successes and failures resulting from enacted solutions to online infringement in an attempt to offer a workable solution that may be applied anywhere. Thus, this thesis sets out to be a policy analysis that dissects copyright law and online infringement as a whole. 1 Copyright Act 1956 (UK) 2 Digital Millennium Copyright Act 1998 (USA) 3 Copyright Modernisation Act 2012 (CA) 29.21 4 Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)