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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 existence when the laws were
enacted. Employers and entrepreneurs need to be aware of the
requirements 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 questions. Should
copyright apply to digital content? How we can implement secure
electronic commerce? Who has jurisdiction over wrongful conduct
committed in cyberspace?

Although 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 existed before online commerce become reality. Yet, those
who want to do business in the Internet today cannot wait. They need
to know certainty the legal consequences 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?

A copyright is a form of protection provided by the Laws to those who

create what the Law refers to "original works of authorship". It gives

1
Partner in HÆYS Associates Attorney at Laws. He can be reached at
adnan@haeys.com
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the author the right to commercially exploit their work. The authors
automatically have their right after it (information, goods, etc.) is
"fixed" in. Whether it in digital form or in print, information is
protected by Copyright Law right after its created. The author is not
required to use a copyright notice, register to Director General of
Copyright (Dirjen HAKI) to obtain that right.

Because 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. Key questions
include: Who owns the copyright in information? What rights are
granted to copyright owners? How 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.
Information 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 paper).

Digital challenges to copyright owners

Conventional technology and copyright have created balance between

author, owner, publisher, and the industries that collect the money.
One cannot easily reproduce, altering, disseminate copyright works
that belongs to the author. The new technology digitization in our
present "Information Age" 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. When content or information
is in digital form (fixed in digital form) it is a trivial task to judge
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 Internet 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. For example many publishers on the World
Wide Web provide their content for free as a form of open advertising
to induce readers to purchase their goods or services. Other provides
content for free but charge sponsors for advertising space. Another
business model came from GNU/Linux movement, they give a license
under the GPL (Gnu Public License) 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 CD 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 customization.

Information Protected by Copyright

The Copyright Law protects virtually all types of information available

online. Works that qualify for copyright protection include literary
works, databases, Computer Programs, Sound Recording, graphic
works, video and motion pictures.

Literary Works. All types of text-based works typically copyrightable.

Literary works in this context, including but not limited to, poems,
books, articles and the like, as well as others works expressed in
words, numbers and other symbols.
Databases. Collection of data (such as database), normally are
copyrightable as compilations. This is true for databases comprised of
copyrightable components (such as database of news articles), as well
as for databases comprised of noncopyrightable components (such as
names and addresses). 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 Works. Musical works are copyrightable. Copyright
protections for musical works are extended to both of words and the
music. Even if the music alone or the lyrics are belongs to public
domain, the combination may be original enough to qualify.
Sound Recording. A 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. Pictorial and graphic works are copyrightable. These
include comics, strips, advertisements, technical drawing, diagrams
are copyrightable. Thus, GIF , JPEG 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. However, when initially
created, virtually all software qualifies as a copyrightable work.
Derivative works. Copyright owner has a right to prepare and to
make derivative works from the original works. A derivative works is
"a work based upon one or more preexisting works, such as translation,
fictionalization, motion picture version, sound recording, art
reproduction, or any other form in a work may be recast, transformed,
or adapted.

Acquiring and Perfecting a Copyright

Copyright protection applies automatically to any authorship that

qualifies. As soon as the work created, it is protected under Copyright
Law, whether the author has not give the copyright notice, register to
the Indonesian Intellectual Property Office (Dirjen HAKI), 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 requirements to qualify for copyrights protection, the protections
applies automatically.

This regulation has several implications. First, 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 exploit, preserve and protect
against exploitation by others. Second, it is important to know that all
the preexisting works/information created by someone else will also be
a subject of Copyright Law. Accordingly any modifications, copying,
distributing that works will require 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 requirements that it must be met
in order for a work to qualify for copyright protection. The work must
be original and it must fixed in a tangible form. The standard for
originality is low and easily met by author. However, the fixation
requirement presents some issues for works that exist in a computer-
readable form. To meet this requirement (fixed intangible form)- that
is, to be copyrightable, a work must be fixed 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, CD-
ROM, DVD and so on.

Who Owns the Copyright

Since copyright rights in a work arise automatically, the next question

is; who owns the copyright? By Law, the copyright in a work is initially
owned by the author of the work. But who is the author? The answer
to that question depends on the circumstances.

As general rule, the author (and thus, the owner of the copyright) is
the person who actually creates the work; that is the person who
translates the ideas into a fixed, tangible expression 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.

When someone creates a work individually, with no assistance from

anyone else, and creates it outside the scope of any employment
obligations, there is no question that he or she is the author of the
work, and consequently the owner of the copyright.

When one party hires to create a work for them, the rules become
somewhat more complicated. In 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. If 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". As a consequence, 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 expressly grants rights to them in a
written document signed by both of them. Frequently, in the business
world persons that develop copyrightable work are not its employees
(in employer-employees relationship). But rather an independent
contractor, freelance talent (content provider) produce several
copyrightable work for another business entity. Examples including
Web Pages, photograph, articles, logos, software, and advertising
materials. This raises the troublesome question of who owns the
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copyright to the resulting works- an issue that frequently not discussed

between the parties.

Generally, 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". Consequently they will own the copyright
in any copyrightable works that they develop for a client.

Businesses that want to own the copyright in works created for them
by independent contractors have two options. First, 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 project is one that the Copyright Law
considers to be eligible for work for hire treatment.

New Issues in Copyright Law in Cyberspace

In the past several years, the World Wide Web has seen two significant
changes: (1) its popularity and use have exploded, and (2) it has
become a place of substantial commercial activity. These two
characteristics have made the Web a place of increasing legal turmoil.
Certain practices by authors of Web sites and pages have been
attacked as violative of others' intellectual property rights or other
entitlements. These practices, are briefly summarize in this section,
these practices comprises "linking," "framing," meta tag" use, and
"caching".

"Linking" allows a Web site user to visit another location on the

Internet. By simply clicking on a "live" word or image in one Web page,
the user can view another Web page elsewhere in the world, or simply
elsewhere on the same server as the original page. This technique is
what gives the Web its unique communicative power. At the same
time, however, linking may undermine the rights or interests of the
owner of the page that is linked to. Suppose, for example, that X sets
up a homepage for her site. On 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 X believes consumers wish to see. Y then creates
his own Web site, which contains links to X's subordinate pages. The
net result is that visitors to Y's site will be able to gain access to X's
material, without ever seeing X's advertisements. This type of activity
is called "deep linking." Other 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 Web site owners. The use of "frames" allows a Web page
creator to divide the Web browser window into several separate areas.
The programmer of the Web page can dictate what goes into each
frame. Commonly, a Web site designer creates a page that at all times
displays one frame containing the name of the Web site and other
identifying information. The other frames are then controlled by the
user. For example, a Web site employing frames might always show
the original Web site's graphic logo on the top of the page while
allowing the user to view the Other Web site in a different frame. The
legal implications of this are complex. In the example just given, a Web
surfer might easily be confused concerning the relationship between
Other and the framing site. Moreover, the framing site might be
unfairly deriving traffic from the Other's legally protected work.

Meta tag misuse, the third component of this section, may generate
less obvious but equally serious problems. Web sites are written in the
HTML language. This language is nothing more than a list of "tags" that
can be used to format and arrange text, images, and other multimedia
files. "Meta tags" are tags that have no visible effect on the Web page.
Instead, they exist in the source code for a Web page to assist search
engines in ascertaining the content of the page. Problems arise when
companies include in their own Web sites meta tags containing the
names or descriptions of other companies. Suppose, for example, that
Coca Cola used the keyword "Pepsi" in its meta tags. Web surfers who
used search engines to obtain information about "Pepsi" would then be
directed to Coca Cola's Web site.

At length, we will also take a brief look at the activity of "caching."

Caching involves the storing of Web pages either in your computer's
local RAM, or at the server level. Caching Web 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
Internet service providers such as AOL, Prodigy, and Compuserve.
Several ISPs in Indonesia are using this technique too, as a value
added services to their customers. This kind of technique can speed
up the Internet connection, but also can imposed several liabilities.
The liabilities imposed when the page that have been caching either in
the server or in the Hard disk is obsolete. The obsolete information
can give misleading information to the customers that using those
services.
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