Copyright in the digital era raises the issue of whether our courts should adjudicate disputes case by case or simply update the law to allow for a more neutral application. The following essay aims to discuss whether technology neutrality is an ideal goal for copyright law.
Copyright law works by granting a range of exclusive rights in relation to the copyright work to the copyright owner, and then qualifying those rights by granting certain exceptions to them. In doing this, copyright law purports to strike a balance between the owners of copyright material and those who wish to use that material. In recognising the interests of those who wish to use copyright material, copyright law is arguably also recognising a public interest in free access to and circulation of information .
The principal position, from which copyright law stems historically, is about allowing the creators of intellectual property to derive wealth from it.
Under the Berne copyright convention, which almost all major nations have signed, creative work is copyrighted the moment it is fixed in tangible form. The copyright lasts until 50 years after the author dies. Facts and ideas can't be copyrighted, only expressions of creative effort.
Over the last few years, individuals working on the Internet have found ways to replicate the digitised product that is the property of the copyright owner. Using CDs as an example, it was Napster that led the charge to provide a methodology through which people could access and download digital CDs for their own use. The challenge came from the owners of the copyright, who argued that this was a breach of copyright and sought a remedy. Only recently, they were successful in obtaining that injunction in the United States. Since then, other technologies have continued to have the...