The Transfer of Media to Digital Form: Redefining the Copyright Infringement test to Include Commercial use as a Solution to Digital Copyright Infringement

• Author: Tonia Pever
• Pages: 109-137

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I Introduction

"Copyright law attempts to find a balance between the cyberspace maxim that 'information wants to be free,' and the old adage that 'you get what you pay for.'" ¹

Technological advances in the ability to reproduce print media have expanded by leaps and bounds since Johan Gutenberg's invention of the printing press. Today, the availability of the reproduction of print media, as well as music, is now at our fingertips. In 1998, 42% of adults had a personal computer in their home.² "Nearly half of all American households now use the Internet, with more than 700 new households being connected every hour."³ Children no longer have to spend hours pulling books from library shelves to learn about topics that are of interest to them. Copies of encyclopedias are now available on CD-ROM and the Internet. Parents and teenagers can download their favorite music from Internet websites and may also use their personal computer equipment to make copies of their CDs. The availability of this new technology to the general public has caused copyright infringement issues to arise.

This comment will focus upon the need for a solution to digital copyright infringement. This occurs when different types of media, such as photos, publications, and music are transferred to digital form. First, the background section will concentrate on the economic importance of copyright and current copyright law. Next, the problem of digital copyright infringement will be described. Reasons for the failure of past and present developments will also be discussed by examining recent cases regarding the transfer of different types of media to digital form. Finally, the same cases will be utilized to demonstrate how the current problems with copyright law in the digital world can be corrected by redefining the test for copyright infringement and adding commercial use as a factor forPage 110 infringement. Additionally, other proposed solutions will be assessed as well.

II Background of Copyright Law and the Fair use Defense

The protection of media by copyright law has economic importance.⁴The basic economic principle behind copyright protection is concentrated on providing incentive for the creation and commercialization of new technology and works.⁵ To obtain the necessary balance between present and future innovation, access to works is mandatory.⁶ If protection is too broad, and inhibits future innovations, then there will not be an optimum rate of innovation over time, and the economy will suffer.⁷ The essence of copyright is the protection of expression, not ideas. ⁸ This is known as the idea-expression dichotomy.⁹ Conflict exists between protecting the public's access to the idea and protecting the author's right to expression of the idea.¹⁰ However, protection from piracy is also important to prevent lost revenues.¹¹ Industries that produce copyrighted works such as CDs, DVDs, books, periodicals and newspapers show foreign sales of over $40 billion,¹² and this number is likely to have increased over the past decade. The Recording Industry Association of America ("RIAA") and the Alliance of Artists and Recording Companies estimate that digital piracy will surpass the $300 million allegedly lost annually to other forms ofPage 111 piracy.¹³ Furthermore, the Register of Copyrights reports that "freelance authors have experienced significant economic loss" because of the "digital revolution that has given publishers [new] opportunities to exploit authors' works."¹⁴ In addition, the consequences of digital copyright infringement and piracy could also be costly. For example, information industries generate over $400 billion in revenues and employ over seven million people,¹⁵ resulting in a substantial affect upon profits and jobs.

Historically, Congress has derived its power to enact copyright laws from the U.S. Constitution, which gives it the power 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."¹⁶ Currently, a section of present copyright law allows the copyright owner (hereinafter referred to as "owner")¹⁷ to retain the right to "reproduce the copyrighted work in copies[,]... to prepare derivative works based upon the copyrighted work[, and] to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending...."¹⁸

For a work to be copyrightable, it must be an original work of authorship.¹⁹ In other words, the standard for copyright protection is originality, not novelty.²⁰ When an individual encroaches upon the rights of the owner, the owner may have a cause of action for copyright infringement.²¹ A plaintiff with a valid copyright must demonstrate that the defendant has actually copied the plaintiff's work and that the copying was of substantial similarity to the protectible elements of plaintiff's work.²²

However, the owner's monopoly over his property is limited by the doctrine of fair use, which is an affirmative defense for copyright infringement.²³ The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, are two of the four factors used to determine fair use.²⁴ The more transformative the new work, the less likely that the fair use factors will weigh against a finding of fair use.²⁵ "Transformative" works weigh in favor of fair use because these types of works further copyright law's goal of promoting science and the arts.²⁶ Other factors considered are the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the usePage 112 upon the potential market for or value of the copyrighted work.²⁷Determination of fair use mandates a case-by-case analysis instead of bright line rules.²⁸ These statutory examples serve only as general guidelines.²⁹ Moreover, the four statutory factors are to be considered "in light of the copyright's purpose of promoting science and the arts."³⁰

III The Problems Caused by Digitization and the Proposed Solutions

Recently, copyright law has attempted to deal with digital copyright infringement through variations of current law.³¹

The Clinton Administration's Information Infrastructure Task Force published a report by the name of Intellectual Property and the National Information Infrastructure ("White Paper").³² The White Paper presumed that current copyright law as applied to new technology is clarified, then current law is essentially sufficient and effective.³³ Approximately four years later, Congress passed the Digital Millennium Copyright Act in 1998 in order to update the Copyright Act.³⁴ One section of the Digital Millennium Copyright Act prohibits the creation or sale of devices designed to evade measures to control access to copyrighted materials.³⁵

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit.³⁶

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Rather, the limited grant is a means by which an important public purpose may be achieved. "It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired."³⁷

However, this objective has become increasingly difficult with the widespread availability to the public of tools capable of digitizing media.³⁸Digitization and compression allow the public to utilize software programs to manipulate any aspect of the data that the user wishes.³⁹ Digitization has had an enormous impact on the copying of CDs and other sound recordings.⁴⁰ With digital recordings, there is no degradation of sound quality and thus nearly flawless copies of copies can be made.⁴¹Digitization is not exclusive to software and music.⁴² Digital photographs also have less degradation of quality when copied and may also be manipulated to the user's desires.⁴³ Furthermore, on the Internet, widespread copying can take place without detection, boundaries, or cost to the copier and causes the owner to lose control over the use of his works,⁴⁴ thus hindering the author's incentive to create.

Past and present developments have failed because current copyright law has been unable to balance the rights of the copyright owner with the right of the public's fair use in accordance with the development and availability of new technology.⁴⁵ First, there has been tension between the public, who desire access to media on the Internet, and the owners, who do not wish to have their works exploited.⁴⁶ The struggle seems to be more of an issue currently than in the past, because of the increased public availability of technology, which can be used for infringing purposes.⁴⁷

Second, the courts are currently challenged by the interpretation of the fair use doctrine because of its vagueness.⁴⁸ For example, the four factorsPage 114 set forth in section 107 are mandatory and nonexclusive.⁴⁹ Courts are required to consider all of them, but the statute does not offer any insight as to how the factors should be balanced.⁵⁰

Finally, copyright law strains to account for new technology.⁵¹ The founding fathers could not have established law capable of dealing with digital copyright infringement, because it was impossible for them to foresee this type of new technology. Current copyright law needs to be amended to deal with the transfer of media to another form⁵² and Greenberg v. National...