Computer law has developed into somewhat of a chameleon flavor now invading Cyberspace. Online developers and users explicitly or implicitly face issues ranging from copyright of multimedia works to publicity rights to privacy rights to defamation. How d oes a reasonable person know where the virtual lines of protections reside?
Consider a typical scenario: A user is parked at a desktop and browsing Web sites and enjoying a diversity of multimedia presentations. When a site of interest affords the opportunity to download music files, the user happily does so. But, to whom does c opyright in the music belong? Indeed, is the music owned by an individual or a business, or is it in the public domain? How the heck is a user supposed to know? Why should a user even care? How about a developer? Should a developer know or care about cop yright ownership issues?
The easy answer from a user’s vantage point is: “No, I don’t care about who owns what on the Net. I’m just trying to benefit from the myriad information made available on the Internet. So back off and give me a break, okay?” Fair enough? Users generally intend to exploit the Cyberspace resource reservoir and assume that resources situated at sites are legitimately available for downloading and the like. The developer’s vantage point is more complicated and perhaps somewhat convoluted.
A multimedia work developed for Web sites may consist of color-accented text, images, video, animation and various special effects. As will be appreciated by the many wave-jumpers on the Net, each site-creator strives to impart a distinctive and lasting impression upon visitors. Developers thus seek to incorporate attention-getting objects into site code and database. Such objects may be created anew or may be obtained from a variety of sources of pre-existing materials. But, if a developer acquires an object, e.g., a musical rendition of an excerpt from a popular song, and then incorporates this object into what becomes a popular Web site, the owner of the song or the owner’s agents and representatives are apt to become aware of this use. If a license has not been obtained to use this song, the owner will not be happy. This, of course, may cause the developer to become unhappy too. So, how does a developer ascertain whether such an object is an entity’s intellectual property or is merely in the publi c domain? The solution, unfortunately, is generally nonlinear.
For strictly literary works, the Copyright Clearance Center functions as a clearing house for collecting license fees. Based upon contemporary legal actions involving popular photocopying and printing services which have conducted unauthorized copying of newsletters and magazines for customers, the public has become aware of the services of the Copyright Clearance Center. In addition, the Copyright Clearance Center now periodically circulates notices to businesses as a reminder about copyright infringem ent liability. In the PC user community, a pervasive awareness of infringement liability flowing from blatantly copying diskettes has been imbued in users’ minds by the work of the “software police” under the auspices of the Software Publishers’ Association. For musical works, American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) function as clearing houses for composers and performers to receive royalties. Establishments providing juke boxes for customers’ enjoyment are familiar with the service provided by ASCAP and BMI: whereby a license fee is paid based upon the past and anticipated consumption of music on the premises. But how is usage in Cyberspace calculated?
The complexity of the problem is now becoming apparent. Besides ascertaining whether works - potential objects for use at a Web site - are proprietary and obtaining a license is necessary, developers need to be aware of downstream costs associated with u sing such works. Presumably, the more popular a site becomes, higher license fees will be sought because more of the public is hearing and seeing the multimedia presentation. Furthermore, whether making available pre-existing works on a Web site is copyi ng or a public performance or both determines the amount of the license fees. Is the presence of a collection of MIDI files considered to be a musical composition or score? Also problematic is using a famous person’s name or likeness in a commercial cont ext divorced from news or documentary purposes. There’s also the problem of how to distribute license fees among the various objects comprising a multimedia work.
These and related considerations should at least raise a red flag to developers that there may be a dangerous road - dangerous surf - ahead. Multimedia clearinghouse and search services are being established to help address the important issue of ownersh ip of pre-existing objects that may be incorporated into multimedia Web sites or on CD-ROMs. Once these services are in place, preferably on-line, developers should have access to quick answers to elusive questions. Then, hopefully, license fees will be commensurate with the nature of the anticipated usage of the text, images, sound, animations and video, so that developers may receive reasonable compensation for their efforts and, in turn, users may continue to enjoy multimedia presentations at afforda ble prices.
Al Harrison, a HAL-PC member and past president, practices all aspects of intellectual property law in Houston, with a concentration in computer law. He was a consultant, trainer and author in the computer industry for several years. He is the chair of t he State Bar of Texas Computer Section and chair of the Computer Law Committee of the Intellectual Property Law Section. He is also chair of the Law Practice Management Section of the Houston Bar Association.
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Last modified: 1997:09:30