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Where, oh where, does your music come from?

As more and more users connect to the internet via faster and faster connections (such as DSL and cable modems) and internet email turns up virtually everywhere. The speed and ease with which information can flow continues to increase dramatically. So do the issues of protecting intellectual property on the internet.

Intellectual property is the property in intellectual creations and generally includes patents (granted for inventions), trade-marks (words, symbols or designs which distinguish the wares or services of one person from another), copyright (protects literary, dramatic, musical or artistic works), industrial designs (ornamentation, shape, pattern or aesthetic design applied to or associated with a manufactured article) and trade secrets (includes any confidential technical or business related information or know-how).

Intellectual property rights (IP rights) give the holder certain rights and powers to allow or prohibit others from using the intellectual property.

A popular topic related to intellectual property and the internet is the online sharing of music over the internet dating back to the days before allowed its users to connect and share digital music files with each other. It was eventually shut down even though didn't actually participate in the file sharing (it is now being re-launched as a pay service offering licensed songs for download). The current generation of file sharing systems are decentralized or distributed. This, in essence, allows users to connect to each other without going through a central server (called peer to peer or P2P networking). As the P2P service does not act as a central server, the P2P service is not a good target for a copyright infringement claim. Instead the copyright holder must go after each end user who is allegedly distributing their copyrighted works. In September of 2003, the Recording Industry Association of America (RIAA), representing certain copyright holders, initiated approximately 261 civil lawsuits in the United States as a first wave against users alleging unlawful sharing of digital music files. We have not seen these types of suits in Canada, but they are possible.

In the near future, the Supreme Court of Canada will consider and ultimately decide a number of key issues related to transmission of musical works by telecommunication (e.g. via the internet) in a case referred to as the Tariff 22 case. In Canada, a copyright collective called the Society of Composers, Authors and Music Publishers of Canada (SOCAN) administers performers rights for public performance of their works and collects royalties through Tariff. Existing Tariffs include those paid by radio stations, dance clubs, karaoke bars, etc. These funds collected are then distributed to members of SOCAN. Tariff 22 would add a tariff for communication of musical works over telecommunication networks. This Tariff would presumably enable authorized providers to legally make musical works available for download over the internet by paying the appropriate tariff. SOCAN proposed the creation of Tariff 22 in about 1995 and that proposal has gone through the Federal Court and Federal Court of Appeal and is currently set to be heard by the Supreme Court of Canada.

Despite the massive amount of media attention, the copyright in musical works is only a fraction of the intellectual property at issue on the internet (albeit a very large dollar amount). In the context of any internet website, there can be intellectual property in any of the content, which may include text, images, sound, graphics, video and other material and how it is arranged and compiled. As part of a website, this content is deliberately published to the internet for visitors to view or use in a limited way. This content can be misappropriated by visitors to the website or even hackers who bypass security or access restricted areas of the website.

Misappropriation could include copying any part of the content, copying the entire website, or extracting important information (data mining) for non-authorized use. In any such situations, the owner could potentially use intellectual property rights to stop the use of the content and seek other remedies such as damages and return of the misappropriated content.

Although less popular, the content owner could use technological controls such as water-marks (embedded marker in the content to overtly or covertly indicate its owner and other information) or may prevent copying altogether through the use of digital rights management (DRM). DRM is becoming very popular for online music services as it allows the purchaser to do certain things with the digital content while prohibiting other uses. For example, the purchaser may copy the content from their computer to a portable player, but may not be able to burn it to compact disc more than a set number of times nor send it to a friend for their use.

In addition to IP rights in the content of a website, there can also be IP rights in business documents including the information on how

a business operates, and the products and services offered or being developed. This may include any confidential information relating to the products, services, inventions, sales methods, prices, customers, former customers, potential customers, suppliers, databases, business methods, policies or plans, trade secrets and know-how. Needless to say, this type of information would not normally be available via the internet. However, programming errors, security flaws, mistake, viruses, deliberate actions, or many other incidents can lead to this type of information being exposed or transmitted via the internet. Regardless how the content or other information is sent or misappropriated, IP rights may assist in controlling or stopping the use and dissemination of the materials and may provide remedies including damages.

Copyright is somewhat unique among the categories of intellectual property in that copyright is created automatically upon the fixation of the work in tangible form, and the protection is virtually global in nature due to a number of international treaties. However, to get the broadest possible protection worldwide, content should be marked with the name of the owner and the year of publication (e.g. [C] John Smith, 2004) as marking is required to get the benefit of certain copyright treaties. An author can also obtain registration for copyright, and although it is not required, registration does provide evidence that the work is protected by copyright and that the registrant is the owner.

In sharp contrast are patent or industrial design rights which, unlike copyright protection, are generally granted on a per country (or per region) basis and only after an application and thorough, and relatively lengthy, examination process.

Trademark rights are created upon the use or registration of a particular mark in association with goods or services. Registration does provide additional benefits, including making it easier to enforce the trademark. No registration is necessary (or possible) for trade secrets and protection exists for as long as the information is kept secret.

Enforcement of intellectual property rights is generally up to the holder of the right. Although there are some criminal remedies (for example the Copyright Act provides criminal penalties for certain types of copy right infringement), most remedies available to the IP right holder are civil in nature.

The internet provides access to one's intellectual property assets by a far greater population and potentially at a far greater distance than would normally occur. For example, it is feasible for a person half the world away to access and misappropriate content. In such an event, it may be difficult to learn of the misappropriation. Even if discovered the IP right holder may have a difficult or impossible task of enforcing their IP rights. If the misappropriated work is protected by copyright, the IP right holder may have an action for copyright infringement, but would have to pursue a distant defendant which could result in increased expense, lengthy or complex international proceedings, and more difficulty in recovering damages or other remedies. However, if the misappropriated work is protected by one of the more jurisdictional types of intellectual property protection, such as patent, trademark, or industrial design, then the IP right holder will only have the right to pursue the person if they have obtained intellectual property protection in the country where the person has taken or is using the intellectual property. If they have not obtained that foreign protection, then there is no intellectual property right in that foreign country to be infringed.

In the United States media, there is often reference to and comment on the Digital Millennium Copyright Act (DMCA). This powerful legislation gives intellectual property right holders certain rights and remedies related to copyright rights. Due to the broad powers available under the DMCA, it has been a boon to intellectual property right holders in aid of their enforcement of their IP rights. However, it has been referred to as having a chilling effect on several fronts including legitimate research and free speech. We currently have nothing like the DMCA in Canada and instead must generally rely on the Copyright Act and the common law to provide rights and remedies. However, the DMCA in the United States is, in part, that country's implementation of two international treaties to which Canada has also agreed to, but not yet become a party. It is likely that Canada will ultimately join the treaties and amend its copyright laws to meet the treaty obligations. Presumably, this would provide broader rights and remedies for copyright and other intellectual property right holders.

As the internet continues its evolution to ubiquitousness, so does the recognition of the value of intellectual property and IP rights and the importance of protecting those rights. Due to the broad exposure the internet provides and the continually evolving area of intellectual property, maximizing protection of intellectual property rights and protection can present a challenge and requires some planning and periodic reassessment. However, with appropriate consideration, documentation, precautions, and registrations, one can take the appropriate steps to protect their intellectual property assets and IP rights--wherever the internet may take them.

Tim Webb is a lawyer with the firm of Miller Thomson in Edmonton, Alberta.
COPYRIGHT 2003 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Title Annotation:Special Report on Intellectual Property
Author:Webb, Tim
Geographic Code:1CANA
Date:Dec 1, 2003
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