Copyright Law and the Internet.

• Author: MONTANA, JOHN C.

The Internet and its associated technologies have improved our ability to communicate rapidly, and have provided us with instantaneous access to vast amounts of information. While this has been an undoubted boon for many, the road has nonetheless had its bumps. While consumers of information view the Internet's vast information exchange capability as a benefit, commercial purveyors of information think about how the Internet might be exploited for profit, and holders of intellectual property potentially subject to distribution on the net worry about the protection of their rights. Central to all of these concerns is the question of copyright law and its application to the distribution of information electronically.

The Nature of Copyright Law

In the United States, the founding principles for copyright law are in the Constitution. The granting of copyrights and patents was deemed a matter whose importance justified its inclusion in a list of fundamental governmental duties, such as coining money, regulating commerce, and establishing uniform rules of naturalization -- among others.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; [italics added][1] Interestingly, the stated purpose of the copyright clause is not to protect the writers and inventors, but to protect the societal benefits of promoting arts and sciences. However, protection of the writer or inventor is deemed vital to the protection of the public interest. As stated by James Madison:

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.[2] Information is most useful to a society if it is freely and fully distributed. On the other hand, as the drafters of the Constitution recognized, the creators of new information have little incentive to create, if they receive no compensation for their efforts. Over the years, copyright laws have often been revisited as legislators and courts have struggled to balance these issues. Current law defines copyrightable material as:

[sections] 102. Subject matter of copyright:

In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.(3)

In other words, it is the tangible expression of an idea, such as a book or recording, rather than the idea itself, which may be copyrighted. This is a significant limitation on the rights of the...