Recent "Digital Copyright" Legislation: U.S.

DMCA (Digital Millennium Copyright Act)

The debates in the House and Senate preceding the signing into law of the DMCA by U.S. President Clinton in October 1998 indicated that the principal object of the Act is to promote the U.S. economy by establishing an efficient Internet marketplace in copyrighted works. The DMCA implements the two 1996 WIPO treaties (WIPO Performances and Phonograms Treaty and WIPO Copyright Treaty) and addresses a variety of issues that arose with the increased availability of content in digital form. The Act 1) creates a series of "safe harbor" defenses (which are subject to a variety of conditions that must be met) for certain common activities of ISPs (Internet Service Provider), 2) bars the circumvention of technological protection measures that protect copyrighted works, 3) prohibits the distribution or provision of false copyright management information with the intent to induce or conceal infringement, 4) establishes an exemption for making a copy of a computer program for purposes of maintenance or repair, and 5) contains provisions concerning the "webcasting" of sound recordings on the Internet and the making of (digital) copies of copyrighted works by nonprofit libraries and archives.

A full-text version of the DMCA is available from:
The Library of Congress: Thomas (Legislative Information on the Internet): http://thomas.loc.gov/cgi-bin/cpquery/z?cp105:hr796:

Moreover the U.S. Copyright Office provides a memorandum, which briefly summarizes each of the five titles of the DMCA (pdf format): http://lcweb.loc.gov/copyright/legislation/dmca.pdf

The DMCA has been criticized for not clarifying the range of legal principles on the liability of ISPs and creating exceptions to only some of the provisions; therefore giving copyright owners even more rights.

Among the variety of comments on the DMCA are:

Lutzker, Arnold P.: Primer on the Digital Millennium: What the Digital Millennium Copyright Act and the Copyright Term Extension Act Mean for the Library Community. http://www.arl.org/info/frn/copy/primer.html

Lutzker & Lutzker law firm and the Association of Research Libraries: The Digital Millennium Copyright Act: Highlights of New Copyright Provision Establishing Limitation of Liability for Online Service Providers. http://www.arl.org/info/frn/copy/osp.html

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Positions Towards the Future of Copyright in the "Digital Age"

With the development of new transmission, distribution and publishing technologies and the increasing digitalization of information copyright has become the subject of vigorous debate. Among the variety of attitudes towards the future of traditional copyright protection two main tendencies can be identified:

Eliminate Copyright

Anti-copyrightists believe that any intellectual property should be in the public domain and available for all to use. "Information wants to be free" and copyright restricts people's possibilities concerning the utilization of digital content. An enforced copyright will lead to a further digital divide as copyright creates unjust monopolies in the basic commodity of the "information age". Also the increased ease of copying effectively obviates copyright, which is a relict of the past and should be expunged.

Enlarge Copyright

Realizing the growing economic importance of intellectual property, especially the holders of copyright (in particular the big publishing, distribution and other core copyright industries) - and therefore recipients of the royalties - adhere to the idea of enlarging copyright. In their view the basic foundation of copyright - the response to the need to provide protection to authors so as to give them an incentive to invest the time and effort required to produce creative works - is also relevant in a digital environment.

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Basics: Protected Persons

Generally copyright vests in the author of the work. Certain national laws provide for exceptions and, for example, regard the employer as the original owner of a copyright if the author was, when the work was created, an employee and employed for the purpose of creating that work. In the case of some types of creations, particularly audiovisual works, several national laws provide for different solutions to the question that should be the first holder of copyright in such works.

Many countries allow copyright to be assigned, which means that the owner of the copyright transfers it to another person or entity, which then becomes its holder. When the national law does not permit assignment it usually provides the possibility to license the work to someone else. Then the owner of the copyright remains the holder, but authorizes another person or entity to exercise all or some of his rights subject to possible limitations. Yet in any case the "moral rights" always belong to the author of the work, whoever may be the owner of the copyright (and therefore of the "economic rights").


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Intellectual Property: A Definition

Intellectual property, very generally, relates to the output, which result from intellectual activity in the industrial, scientific, literary and artistic fields. Traditionally intellectual property is divided into two branches:

1) Industrial Property

a) Inventions
b) Marks (trademarks and service marks)
c) Industrial designs
d) Unfair competition (trade secrets)
e) Geographical indications (indications of source and appellations of origin)

2) Copyright

The protection of intellectual property is guaranteed through a variety of laws, which grant the creators of intellectual goods, and services certain time-limited rights to control the use made of their products. Those rights apply to the intellectual creation as such, and not to the physical object in which the work may be embodied.

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An Economic and therefore Governmental Issue

While the digital divide might bring up the idea that enterprises will be able to sell more and more computers during the next years another truth looks as if there was no hope for a certain percentage of the population to get out of their marginalization, their position of being "have nots".

Studies show that the issue of different colors of skin play a role in this, but more than "racial" issues it is income, age and education that decides about the have and have nots.

There exist ~ 103 million households in the USA.
~6 million do not even have telephone access. Why should they care about computers?

The digital divide cuts the world into centers and peripheries, not into nations, as it runs through the boarder between the North and the South as well as through nations.

http://www.digitaldivide.gov/
http://www.digitaldividenetwork.org/
http://www.pbs.org/digitaldivide/
http://news.cnet.com/news/0-1005-200-344552.html
http://racerelations.about.com/newsissues/racerelations/msubdigdivide.htm
http://www.techweek.com/articles/11-1-99/divide.htm
http://www.ntia.doc.gov/ntiahome/net2/falling.html

The most different institutions with various interests in their background work in that field; not rarely paid by governments, which are interested in inhabitants, connected to the net and economy.
see also: http://www.washington.edu/wto/digital/

Searching information about the digital divide one will find informations saying that it is growing all the time whereas other studies suggest the contrary, like this one
http://news.cnet.com/news/0-1005-200-341054.html

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Transparent customers. Direct marketing online



This process works even better on the Internet because of the latter's interactive nature. "The Internet is a dream to direct marketers", said Wil Lansing, CEO of the American retailer Fingerhut Companies. Many services require you to register online, requiring users to provide as much information about them as possible. And in addition, the Internet is fast, cheap and used by people who tend to be young and on the search for something interesting.

Many web sites also are equipped with user tracking technology that registers a users behaviour and preferences during a visit. For example, user tracking technology is capable of identifying the equipment and software employed by a user, as well as movements on the website, visit of links etc. Normally such information is anonymous, but can be personalised when it is coupled with online registration, or when personal identifcation has been obtained from other sources. Registration is often a prerequisite not just for obtaining a free web mail account, but also for other services, such as personalised start pages. Based on the information provided by user, the start page will then include advertisements and commercial offers that correspond to the users profile, or to the user's activity on the website.

One frequent way of obtaining such personal information of a user is by offering free web mail accounts offered by a great many companies, internet providers and web portals (e.g. Microsoft, Yahoo, Netscape and many others). In most cases, users get "free" accounts in return for submitting personal information and agreeing to receive marketing mails. Free web mail accounts are a simple and effective direct marketing and data capturing strategy which is, however, rarely understood as such. However, the alliances formed between direct advertising and marketing agencies on the one hand, and web mail providers on the other hand, such as the one between DoubleClick and Yahoo, show the common logic of data capturing and direct marketing. The alliance between DoubleClick and Yahoo eventually attracted the US largest direct marketing agency, Abacus Direct, who ended up buying DoubleClick.

However, the intention of collecting users personal data and create consumer profiles based on online behaviour can also take on more creative and playful forms. One such example is sixdegrees.com. This is a networking site based on the assumption that everybody on the planet is connected to everybody else by a chain of six people at most. The site offers users to get to know a lot of new people, the friends of their friends of their friends, for example, and if they try hard enough, eventually Warren Beatty or Claudia Schiffer. But of course, in order to make the whole game more useful for marketing purposes, users are encouraged to join groups which share common interests, which are identical with marketing categories ranging from arts and entertainment to travel and holiday. Evidently, the game becomes more interesting the more new people a user brings into the network. What seems to be fun for the 18 to 24 year old college student customer segment targeted by sixdegrees is, of course, real business. While users entertain themselves they are being carefully profiled. After all, data of young people who can be expected to be relatively affluent one day are worth more than money.

The particular way in which sites such as sixdegrees.com and others are structured mean that not only to users provide initial information about them, but also that this information is constantly updated and therefore becomes even more valuable. Consequently, many free online services or web mail providers cancel a user's account if it has not been uses for some time.

There are also other online services which offer free services in return for personal information which is then used for marketing purposes, e.g. Yahoo's Geocities, where users may maintain their own free websites, Bigfoot, where people are offered a free e-mail address for life, that acts as a relais whenever a customer's residence or e-mail address changes. In this way, of course, the marketers can identify friendship and other social networks, and turn this knowledge into a marketing advantage. People finders such as WhoWhere? operate along similar lines.

A further way of collecting consumer data that has recently become popular is by offering free PCs. Users are provided with a PC for free or for very little money, and in return commit themselves to using certain services rather than others (e.g. a particular internet provider), providing information about themselves, and agree to have their online behaviour monitored by the company providing the PC, so that accurate user profiles can be compiled. For example, the Free PC Network offers advertisers user profiles containing "over 60 individual demographics". There are literally thousands of variations of how a user's data are extracted and commercialised when online. Usually this happens quietly in the background.

A good inside view of the world of direct marketing can be gained at the website of the American Direct Marketing Association and the Federation of European Direct Marketing.

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Operating the net: overview

The Net consists of thousands of thousands of governmental and private networks linked together. No legal authority determines how and where networks can be connected together, this is something the managers of networks have to agree about. So there is no way of ever gaining ultimate control of the Internet. Although each of these networks is operated and controlled by an organization, no single organization operates and controls the Net. Instead of a central authority governing the Net, several bodies assure the operability of the Net by developing and setting technical specifications for the Net and by the control of the technical key functions of the Net as the coordination of the domain name system and the allocation of IP numbers.

Originally, the Net was a research project funded and maintained by the US Government and developed in collaboration by scientists and engineers. As the standards developed for ensuring operability ensued from technical functionality, technical coordination gradually grew out of necessity and was restricted to a minimum and performed by volunteers.

Later, in the 1980s, those occupied with the development of technical specifications organized themselves under the umbrella of the Internet Society in virtual organizations as the Internet Engineering Task Force, which were neither officially established nor being based on other structures than mailing lists and commitment, but nonetheless still serve as task forces for the development of standards ensuring the interoperability on the Net.

Since the late 80s and the early 90s, with the enormous growth of the Net - which was promoted by the invention of Local Area Networks, the creation of the World Wide Web, the increased use of personal computers and the connecting of corporations to the Net, just to name a few - coordination of some technical key functions as the domain name system was handed over to corporations as Network Solutions Inc.

Since the year 2000, a new model for technical coordination has been emerging: Formerly performed by several bodies, technical coordination is transferred to a single non-governmental organization: the Internet Coordination of Assigned Numbers and Names.

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Intellectual property

Intellectual property, very generally, relates to the output that result from intellectual activity in the industrial, scientific, literary and artistic fields. Traditionally intellectual property is divided into two branches: 1) industrial property (inventions, marks, industrial designs, unfair competition and geographical indications), and 2) copyright. The protection of intellectual property is guaranteed through a variety of laws, which grant the creators of intellectual goods, and services certain time-limited rights to control the use made of their products.

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Economic rights

The economic rights (besides moral rights and in some cases also neighboring rights) granted to the owners of copyright usually include 1) copying or reproducing a work, 2) performing a work in public, 3) making a sound recording of a work, 4) making a motion picture of a work, 5) broadcasting a work, 6) translating a work and 7) adapting a work. Under certain national laws some of these rights are not exclusive rights of authorization but in specific cases, merely rights to remuneration.

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Virtual Private Networks

Virtual Private Networks provide secured connections to a corporate site over a public network as the Internet. Data transmitted through secure connections are encrypted and therefore have to be encrypted before they can be read.
These networks are called virtual because connections are provided only when you connect to a corporate site; they do not rely on dedicated lines and support mobile use.

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Technological measures

As laid down in the proposed EU Directive on copyright and related rights in the information society technological measures mean "... any technology, device, or component that, in the normal course of its operations, is designed to prevent or inhibit the infringement of any copyright..." The U.S. DMCA (Digital Millennium Copyright Act) divides technological measures in two categories: 1) measures that prevent unauthorized access to a copyrighted work, and 2) measures that prevent unauthorized copying of a copyrighted work. Also the making or selling of devices or services that can be used to circumvent either category of technological measures is prohibited under certain circumstances in the DMCA. Furthermore the 1996 WIPO Copyright Treaty states that the "... contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors..."

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