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Intellectual Property Rights in Cyberspace

Muhammad Aulia Adnan1
Law and Cyberspace More and more businesses are establishing a presence on the web and distributing product or promotional material in a variety of electronic forms. The ease entry into cyberspace can cause people to forget that the obligations and restrictions which apply there are similar to those which apply in the world of print communication. Some people think that Copyright Law and other Laws do not apply in cyberspace - because cyberspace is a "new frontier". Laws do not apply in cyberspace because ideas and information should flow freely in cyberspace or because Laws do not apply to transmissions made possible by technology that was not in e!istence when the laws were enacted. "mployers and entrepreneurs need to be aware of the re#uirements of Copyright Laws when they are developing electronic$digital products. The advent of the global information infrastructure and the so-called digital revolution raise countless new issues and #uestions. Should copyright apply to digital content% &ow we can implement secure electronic commerce% 'ho has (urisdiction over wrongful conduct committed in cyberspace% )lthough online technology raises many legal issues the law available today to help us resolve them at least today is largely based on the world as it e!isted before online commerce become reality. *et those who want to do business in the +nternet today cannot wait. They need to know certainty the legal conse#uences of their online activity. Thus the challenge is to predict how these new legal issues may be resolved using the current law. What is a copyright? ) copyright is a form of protection provided by the Laws to those who create what the Law refers to "original works of authorship". +t gives
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,artner in &-*S )ssociates )ttorney at Laws. &e can be reached at adnan.haeys.com

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the author the right to commercially e!ploit their work. The authors automatically have their right after it /information goods etc.0 is "fi!ed" in. 'hether it in digital form or in print information is protected by Copyright Law right after its created. The author is not re#uired to use a copyright notice register to 1irector 2eneral of Copyright /1ir(en &)3+0 to obtain that right. 4ecause copyright is automatically obtained its impact must be considered whenever a copyrightable work is created used or encountered. Copyright owners need to understand the nature and the scope of rights they have and everyone else needs to understand the rules that govern their use of those copyright works. 3ey #uestions include5 'ho owns the copyright in information% 'hat rights are granted to copyright owners% &ow do you ensure that your use of information owned by others is lawful% Applicability of Copyright to Online Communications Copyright protection applies to most works regardless of the form in which it is recorded as long as it can be perceived open communicated by humans or indirectly with aid of a machine. +nformation that come from transformation from paper based to electronic does not lose protection that came from Copyright Law. This protection also applies to information$art that already in electronic form when it initially created. Likewise information in digital form are granted the same rights as those granted to works originally created in a more traditional form /such as paper0. igital challenges to copyright owners Conventional technology and copyright have created balance between author owner publisher and the industries that collect the money. 6ne cannot easily reproduce altering disseminate copyright works that belongs to the author. The new technology digiti7ation in our present "+nformation )ge" has upset delicate balances created and maintained by Copyright Law. Some are afraid that authors are no longer protected for their creative efforts others concern with moral rights of authors in an environment which within a few key stroke works can be transformed or mutilated. 'hen content or information is in digital form /fi!ed in digital form0 it is a trivial task to (udge whether a works is in original form or copies. Content can be duplicated and also distributed all over the world within a few keystrokes. Moreover it is often difficult for copyright owner to detect infringement and prosecute the infringer.

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The digital world and +nternet have challenge the ordinary business model that prohibit others to copy duplicate the copyrightable works. Some copyright owner have chosen to response the challenge by adopting a new business model that place less emphasis on enforcement of rights in content or models that use content as a loss leader for other purposes. 8or e!ample many publishers on the 'orld 'ide 'eb provide their content for free as a form of open advertising to induce readers to purchase their goods or services. 6ther provides content for free but charge sponsors for advertising space. )nother business model came from 29:$Linu! movement they give a license under the 2,L /2nu ,ublic License0 that allowed everyone to freely download and use their software for free or a very small amount of charge if they want the software in a C1 package. Their revenue come from services that they give to one that uses their software or bundling the software with hardware. Such services are customer support system development and customi7ation.

Information Protected by Copyright The Copyright Law protects virtually all types of information available online. 'orks that #ualify for copyright protection include literary works databases Computer ,rograms Sound ;ecording graphic works video and motion pictures. Literary Wor!s. )ll types of te!t-based works typically copyrightable. Literary works in this conte!t including but not limited to poems books articles and the like as well as others works e!pressed in words numbers and other symbols. atabases" Collection of data /such as database0 normally are copyrightable as compilations. This is true for databases comprised of copyrightable components /such as database of news articles0 as well as for databases comprised of noncopyrightable components /such as names and addresses0. Copyright protections for database that compromised of noncopyrightable components have much less protection than protection that given to database that compromised of copyrightable components. The first only protects the selection coordination and arrange themselves. Musical Wor!s. Musical works are copyrightable. Copyright protections for musical works are e!tended to both of words and the music. "ven if the music alone or the lyrics are belongs to public domain the combination may be original enough to #ualify. #ound Recording. ) sound recording is a work that results from the recording of a series of musical spoken or other sound. Sound

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recordings are copyrightable regardless of the nature of the sound recorded. Photographs. ,ictorial and graphic works are copyrightable. These include comics strips advertisements technical drawing diagrams are copyrightable. Thus 2+8 <,"2 files of any these of items typically represents copyrightable information. Computer Programs. Computer program like other copyrightable works can be dedicated to the public domain. &owever when initially created virtually all software #ualifies as a copyrightable work. eri$ati$e wor!s. Copyright owner has a right to prepare and to make derivative works from the original works. ) derivative works is "a work based upon one or more pree!isting works such as translation fictionali7ation motion picture version sound recording art reproduction or any other form in a work may be recast transformed or adapted. Ac%uiring and Perfecting a Copyright Copyright protection applies automatically to any authorship that #ualifies. )s soon as the work created it is protected under Copyright Law whether the author has not give the copyright notice register to the +ndonesian +ntellectual ,roperty 6ffice /1ir(en &)3+0 or taken any other step to assert copyright claim. Therefore as long as the works is one of the types that have protection under Copyright Law and meets the re#uirements to #ualify for copyrights protection the protections applies automatically. This regulation has several implications. 8irst almost all digital content that an individual creates is protected under the Copyright Law. Therefore it is important to determine who owns the copyright and to understand that the works is valuable to e!ploit preserve and protect against e!ploitation by others. Second it is important to know that all the pree!isting works$information created by someone else will also be a sub(ect of Copyright Law. )ccordingly any modifications copying distributing that works will re#uire permission of the copyright owner. The absence of a copyright notice or the failure of the copyright owner to register his or her work does not mean that is safe to use the work. The copyright sets forth two minimal re#uirements that it must be met in order for a work to #ualify for copyright protection. The work must be original and it must fi!ed in a tangible form. The standard for originality is low and easily met by author. &owever the fi!ation re#uirement presents some issues for works that e!ist in a computerreadable form. To meet this re#uirement /fi!ed intangible form0- that is to be copyrightable a work must be fi!ed in a tangible medium from

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it can be perceived reproduced or otherwise communicated either directly or with the aid of machine or device. Thus copyrighted works are printed in papers recorded in celluloce stored in optical disks C1;6M 1=1 and so on.

Who Owns the Copyright Since copyright rights in a work arise automatically the ne!t #uestion is> who owns the copyright% 4y Law the copyright in a work is initially owned by the author of the work. 4ut who is the author% The answer to that #uestion depends on the circumstances. )s general rule the author /and thus the owner of the copyright0 is the person who actually creates the work> that is the person who translates the ideas into a fi!ed tangible e!pression entitled the copyright protection. Thus the author is the person who take a picture the recording artist who performed the musical work the person who compiled and edited recorded sounds or visual images the person who compiled the foregoing content into a web page and so forth. 'hen someone creates a work individually with no assistance from anyone else and creates it outside the scope of any employment obligations there is no #uestion that he or she is the author of the work and conse#uently the owner of the copyright. 'hen one party hires to create a work for them the rules become somewhat more complicated. +n that case the identity of the author is determined by the nature of the hiring party?s relationship with that person who created the work. +f the persons hired are considered to be "employees" any copyrightable work product prepared by them within the scope of employment agreement is considered as a " work made for hire". )s a conse#uence the employer is considered as the owner if that works and will own the copyright of that works. The employees who created the work will not have any right in the copyright whatsoever unless their employer e!pressly grants rights to them in a written document signed by both of them. 8re#uently in the business world persons that develop copyrightable work are not its employees /in employer-employees relationship0. 4ut rather an independent contractor freelance talent /content provider0 produce several copyrightable work for another business entity. "!amples including 'eb ,ages photograph articles logos software and advertising materials. This raises the troublesome #uestion of who owns the

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copyright to the resulting works- an issue that fre#uently not discussed between the parties. 2enerally because independent contractors are not employees when they create copyrightable work for a client their work is not considered to be a "work made for hire". Conse#uently they will own the copyright in any copyrightable works that they develop for a client. 4usinesses that want to own the copyright in works created for them by independent contractors have two options. 8irst they can obtain a written assignment of the copyright from the independent contractor. Second they can enter into a written work for hire agreement provided that the nature of the pro(ect is one that the Copyright Law considers to be eligible for work for hire treatment. &ew Issues in Copyright Law in Cyberspace +n the past several years the 'orld 'ide 'eb has seen two significant changes5 /@0 its popularity and use have e!ploded and /A0 it has become a place of substantial commercial activity. These two characteristics have made the 'eb a place of increasing legal turmoil. Certain practices by authors of 'eb sites and pages have been attacked as violative of others? intellectual property rights or other entitlements. These practices are briefly summari7e in this section these practices comprises "linking " "framing " meta tag" use and "caching". "Linking" allows a 'eb site user to visit another location on the +nternet. 4y simply clicking on a "live" word or image in one 'eb page the user can view another 'eb page elsewhere in the world or simply elsewhere on the same server as the original page. This techni#ue is what gives the 'eb its uni#ue communicative power. )t the same time however linking may undermine the rights or interests of the owner of the page that is linked to. Suppose for e!ample that B sets up a homepage for her site. 6n the homepage she places some advertisements from which she hopes to make some money. The homepage also contains links to various subordinate pages which contain content that B believes consumers wish to see. * then creates his own 'eb site which contains links to B?s subordinate pages. The net result is that visitors to *?s site will be able to gain access to B?s material without ever seeing B?s advertisements. This type of activity is called "deep linking." 6ther problems arise when one site contains links to copyrighted materials contained in another site against the wishes of the copyright owner. Though the person who provides the link may not be making copies himself or herself some courts have

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recently found the link provider partially responsible for ensuing copyright infringement. The related practice of "framing" may also serve to undermine the rights of 'eb site owners. The use of "frames" allows a 'eb page creator to divide the 'eb browser window into several separate areas. The programmer of the 'eb page can dictate what goes into each frame. Commonly a 'eb site designer creates a page that at all times displays one frame containing the name of the 'eb site and other identifying information. The other frames are then controlled by the user. 8or e!ample a 'eb site employing frames might always show the original 'eb site?s graphic logo on the top of the page while allowing the user to view the 6ther 'eb site in a different frame. The legal implications of this are comple!. +n the e!ample (ust given a 'eb surfer might easily be confused concerning the relationship between 6ther and the framing site. Moreover the framing site might be unfairly deriving traffic from the 6ther?s legally protected work. Meta tag misuse the third component of this section may generate less obvious but e#ually serious problems. 'eb sites are written in the &TML language. This language is nothing more than a list of " tags" that can be used to format and arrange te!t images and other multimedia files. "Meta tags" are tags that have no visible effect on the 'eb page. +nstead they e!ist in the source code for a 'eb page to assist search engines in ascertaining the content of the page. ,roblems arise when companies include in their own 'eb sites meta tags containing the names or descriptions of other companies. Suppose for e!ample that Coca Cola used the keyword ",epsi" in its meta tags. 'eb surfers who used search engines to obtain information about ",epsi" would then be directed to Coca Cola?s 'eb site. )t length we will also take a brief look at the activity of " caching." Caching involves the storing of 'eb pages either in your computer?s local ;)M or at the server level. Caching 'eb pages on your computer?s local memory allows you to navigate back and forth through pages you?ve visited in the past without having to download the pages each time you return to them. Caching at the server level also known as "proxy caching " is used by several of the more popular +nternet service providers such as )6L ,rodigy and Compuserve. Several +S,s in +ndonesia are using this techni#ue too as a value added services to their customers. This kind of techni#ue can speed up the +nternet connection but also can imposed several liabilities. The liabilities imposed when the page that have been caching either in the server or in the &ard disk is obsolete. The obsolete information can give misleading information to the customers that using those services.

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