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section heading icon    overview

This guide deals with Intellectual Property (IP) online, particularly copyright.

The rise of the global information infrastructure and recognition that the 'property of the mind' is a major driver of national economies and culture has led many to question the nature and viability of copyright and other forms of intellectual property such as trademarks. 

Being online means grasping the challenges of intellectual property: protecting what may be one of your major assets and respecting the rights of others, whether they are IP owners or IP users.  The web is not a copyright-free zone. While abuses abound it is in your interest to act on a considered basis, whether you are a rights owner, a rights user or an intermediary such as an ISP.  

subsection heading icon    contents of this guide

The following pages cover -

  • tensions - an introduction to the shape of intellectual property in the digital environment
  • IP history - a history of copyright and industrial property
  • Australian law & agencies - developments in local intellectual property legislation (including the major 'Digital Agenda' and Moral Rights reforms to the Copyright Act) and government IP agencies
  • global law & agencies - the global framework for intellectual property, including the Berne Convention, the TRIPS Agreement, the WTO and WIPO
  • IP in other countries - developments in other countries, including the Canadian copyright reforms, the EU Directives, UK and NZ legislation and US Digital Millennium Copyright Act
  • resources - major online resources for making sense of your rights and responsibilities in the digital environment, along with pointers to printed guides and e-journals
  • advocacy - rights administration bodies, industry groups and other advocacy groups concerned with copyright, trademarks, patents and designs
  • patents
  • designs
  • trademarks - trademarks, cybermarks and domain names
  • links, frames & tags - disputes about deep linking, shallow linking, framing and metatags
  • ECMS - putting the genie back into the bottle: pointers to Electronic Copyright Management Systems/Digital Rights Management, tools for identifying, protecting and commercialising IP online
  • fair use - incentives, innovation and the debate about fair use online
  • Indigenous - protection for Indigenous cultural expression and knowledge
  • geopolitics - debate about the 'North-South' divide, information colonialism and access to intellectual property
  • P2P - debate about Kazaa, Napster and online music developments as the 'canary down the mine' for digital copyright
  • plagiarism - practice online and offline, and the fashionable plagiarism detection services
  • moral rights - Australia and overseas Moral Rights legislation, its context and consequences
  • duration - intellectual property protection is finite. We look at how long it lasts and moves to extend its life
  • email & news  - perspectives on copyright protection for electronic mail and news
  • academia - a discussion of debate in universities about the shape of intellectual property (a fundamental impediment to scholarship?) and its ownership in the digital environment (authors v institutions and publishers)
  • museums, libraries and archives - statutory deposit, digitisation, electronic publishing and other issues for curatorial institutions
  • government - Crown copyright, licensing of government databases, the public domain and commercialisation
  • the arts in the digital epoch - creativity, incentives, appropriation and respect for authors
  • publicity - 'rights of publicity' legislation providing broad-brush protection for cult figures such as Elvis Presley
  • piracy - statistics and studies regarding intellectual property piracy and other infringements
  • open source - non-proprietary views of creativity and open licensing
  • orphans - pointers to copyright identification challenges and mechanisms
  • EULAs - questions about end user licence agreement principles, clickwrap and shinkwrap
  • dollars - how much is intellectual property worth?

There are supplementary profiles on matters such as Australian copyright law decisions, moral rights cases, copyright collecting societies, droit de suite, patent databases & searching, filesharing and trademarks.

subsection heading icon    key concepts

If you are unfamiliar with intellectual property - or merely want to quickly identify some of our biases - we suggest that you consider the following paragraphs before moving on to the rest of the guide.

Intellectual property concerns the 'property of the mind', property that can be embodied in a physical entity (whether a multimillion dollar painting or a kid's scribble) but is distinct from that entity and can, for example, be traded separately.

When you purchase the painting, for example, you generally buy the pigment, stretcher and canvas rather than the right to commercially reproduce the image. When you buy a music CD you similarly buy the plastic CD and packaging but not the music; instead you gain a licence for certain uses of that music.

Intellectual property is traditionally characterised as

copyright - protection for literary, musical, dramatic and other expression under copyright law

industrial property - protection through patent, trademarks, design and other law for industrial processes, manufactured objects, names/symbols and breeding

This guide concentrates on copyright but includes some coverage of trademarks (also discussed in relation to domain names) and patents.

Copyright law is founded on the dichotomy between idea and expression. It does not protect ideas; instead it protects the expression of those ideas - the specific lyrics about your broken heart rather than the syllogism boy - girl = pain. Under copyright law ideas are free and gain no protection: their embodiment in books, films, sound recordings, buildings, photographs etc is however protected.

Copyright law is founded on notions of authorisation, essentially the right of the author (or copyright owner) to authorise particular uses of the work - such as commercial reproduction. That authorisation is primarily an economic right - owners will generally authorise use if given a financial incentive.

The dimensions of that incentive are contentious but many theorists, businesses and policymakers consider that incentives foster creativity, encourage the investment needed for commercial production/distribution and signal to society that creativity is worthy of respect.

Copyright law uses notions of fixation, with protection for the capturing of sounds in a music recording, words with ink and paper (or on a computer memory), an artistic vision with titanium dioxide and chrome yellow ... Intellectual property law struggles with content that isn't fixed, for example oral traditions of some indigenous groups that have not been recorded and indeed have not been conveyed outside the clan.

Copyright law is founded on notions of fair use (also characterised as fair dealing). It provides limited, rather than exhaustive protection, with provisions that allow use by journalists, scholars and ordinary consumers on a noncommercial basis.

Most public debate centres on economic aspects of copyright and assertions that it's necessarily weighted against consumers and antithetical to shibboleths such as free speech. It is important to note, however, that 'moral rights' - ie rights of attribution and integrity - are of importance to many creators, who may seek recognition of their creativity irrespective of any notion of economic gain. That respect can be considered a universal human right and informs discussion of questions such as plagiarism.

Some of the more entertaining critics of copyright have charged that it's inherently repressive, perpetuating economic differences within countries and geopolitical divides or simply ignoring the concerns of Indigenous peoples (who are disadvantaged since most regimes are built around individual rather than 'tribal' ownership of an embodiment for a finite rather than indefinite period).

Neither copyright nor industrial property is of perpetual duration: protection lasts for a finite period. In the case of copyright that protection typically lasts for the author's life plus x years (for works of individual authorship) and for x years in the protection of collective works (such as films). At the end of the period the work goes into the public domain - available for use without permission/payment. In contrast, industrial property is protected for x years (typically 7 to 20 years), with scope to renew protection by another x years.

Many copyright works involve bundles of rights, which often involve different owners (and indeed can last for different periods). A feature film, for example, might embody rights relating to the book that formed the basis of the script, the words in the film script, the music and lyrics in any score, the performance of that score, and the film per se as a work that involves significant investment and the creativity of pople behind/before the camera.

There is no single global intellectual property law. Each nation has its own set of intellectual property legislation: definitions, provisions (and administration) can vary considerably. International agreements such as the Berne Convention and the TRIPS Agreement seek to harmonise different national laws and different practices, in effect to encourage some consistency across borders.

subsection heading icon    but is it property?

One theme in debate about intellectual property is that IP in fact is not 'property' or is not 'real' property and can accordingly be disregarded.

One response is to ask what we mean by property? Is property restricted to land, cows, paperclips, pencils and other tangibles? Theorists have responded that property involves a bundle of rights, that may or may not involve exclusive possession/use of an entity and that do not necessarily involve any form of registration.

An individual (or group of individuals) may for example have legal title to a particular parcel of land but allow another entity to make use of the land by leasing that property or allow transient use of the land through recognition of a right of way.

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version of September 2003
© Bruce Arnold | caslon analytics