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COPYRIGHT: ONLINE AND ON TRIAL?INTRODUCTION
“The Internet is global. As such, it knows no geographic boundaries. Its basic lack of locality suggests the need 
for a formulation of new legal rules to address the absence of congruence between cyberspace and the 
boundaries and laws of any given jurisdiction.” 
Those are the words of the Australian Supreme Court in their December 2002 decision in the defamation case of 
Dow Jones & Company Inc v Gutnick [2002] HCA.
Writing about copyright today is like rep
orting on a soccer game that is being played as the sport‟s rule book is
being re-written. Some of the players are trying to play by the rules but are not sure what they are; others havedecided that there are no rules or, if there are any, that they make
no sense and are therefore playing a „free forall‟. Meanwhile, the referee is tearing his hair out! But despite these uncertainties, the game has to go on.
There is no doubt that the Internet and the digital world are truly transformative forces. In response, publishers,individually and collectively, are developing new transactional models.But even in the midst of radical change, most traditional principles still apply. And as new media divisions are re-absorbed into the business mainstream, content is increasingly moving seamlessly between the online and offlineworlds.The trick is in understanding the nature of these changes in the law, their business impact and developing soundbusiness processes to exploit the opportunities they offer and to manage the legal risks that they raise. Soundsfamiliar? It is. It is good business practice and one that your legal advisors are likely to endorse.
 „The laws, they are a changing‟ 
There is no question that substantial changes are being made to copyright laws at international and national levelto adapt them to the digital environment. These include the two WIPO (World Intellectual CopyrightOrganisation) Treaties of 1996, seven harmonising Directives in the copyright field in the European Union since1991 and the Digital Millennium Copyright Act of 1998 in the US.WIPO has also recently published a report,
 “
Intellectual Property on the Internet: A Survey of Issues 
” 
(http://ecommerce.wipo.int/survey)that addresses the far-reaching impact that digital technologies
 –
theInternet in particular
 –
have had on intellectual property (IP) and the international IP system. The Report goesbeyond copyright to cover patents, trade marks, domain names and other IP-related issues.
But changing the law is a slow and cumbersome process. Take Europe as an example. The EU‟s Copyright
Directive of May 2001 (2002/29/EC) is the latest piece of the European legislative puzzle that began with the
European Commission‟s Green Paper „
on copyright and the challenge of technolology 
– 
copyright issues requiring immediate action 
‟ published in June 1988! The Copyright Directive was due to be implemented this month but
virtually every member state has missed the deadline.Even if all the legislative changes in the pipeline were implemented, we all know that we would still not be livingin a simple or perfect world. It takes time to apply those rules to new situations. For example, there are already arange of conflicting decisions in Europe and US as regards deeplinking and infringement of copyright anddatabase right.In many cases, changes in the law merely create a framework, leaving it rights owners and users to re-draw theboundaries between exclusive rights and exceptions. For example, n
otions of „fair use‟ and „fair dealing‟ are being
re-examined as activities traditionally carried on under the guise of exceptions, such as inter-library lending anddocument delivery, move into the arena of commercial exploitation.
 
 Page 2November 2002But, slow and cumbersome as it may be, it is in the long term interest of all participants in the creative industriesthat this process of approximation of national copyright and other laws continues to take place. Only through thisprocess can we continue to reduce uncertainty in the scope and application of the law, both of which continue tognaw at the fabric of copyright.
The challenge of conflicting jurisdictions
 Although international legal treaties such as the WIPO Copyright Treaty of 1996 are driving us towards closernational laws, there remain significant differences between national laws and the remedies they offer. As the judges observed in the
Gutnick 
case, digital content‟s ability to move seamlessly around the globe seems
to conflict with national laws and jurisdictions. This is not a new issue
 –
conflicts of laws, and the rules to resolve
them, have been in existence for some time. There will never be a „one size fits all‟ solution.
In part, this is because different laws address different issues or wrongs. Defamation concerns injury to
reputation. This will remain a powerful force in support of a claimant‟s right to bring proceedings before the
courts of the country in which that reputation resides, as an alternative to the country from which the publisheroperates.
Furthermore, whilst publishers might prefer a „country of origin‟ doctrine to apply in the field of defamation, there
are other areas, particularly copyright infringement, where they will want to retain the ability to take legalproceedings in the jurisdiction where the harm occurs i.e. the country in which the act of infringement takesplace.
One of the judges observed as follows: “
The notion that those who publish defamatory material on the Internet are answerable before the courts of any nation where the damage to reputation has occurred, such as in the  jurisdiction where the complaining party resides, presents difficulties: technological, legal and practical. It is true that the law of Australia provides protections against some of those difficulties which, in appropriate cases, will obviate or diminish the inconvenience of distant liability. Moreover, the spectre of "global" liability should not be exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that  judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture 
.” 
 
 Another judge put it even more succinctly: “
If a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and it inflicts damage 
.” This issue of jurisdiction is a complex and intractable issue. But, it is not a „show stopper‟ –
publishers willcontinue to manage this risk as they have done in the past.
The challenge of piracy and the „Dark Net‟ 
But there is a challenge raised by the Internet that goes beyond the process of updating copyright laws andunderstanding and applying the new rules to the Internet, the web and mobile communications services.
 
 Page 3November 2002In its most obvious form, this is the challenge represented by digital piracy. As we will note later on, the changesto copyright law provide rights owners with clearly defined legal rights to combat piracy, although legal remediesare one thing and successful enforcement is another.
But there is a more difficult challenge. The term „Dark Net‟ was recently coined to describe the alternative, „copyright
-
free‟ world of „peer to peer‟ networks and other means by w
hich copyright material may circulateoutside the confines of copyright. Whilst this can be characterized as piracy, the fundamental challenge is that, in
many case, the „pirates‟ are also the potential customers for paid for online services. Whilst this m
ay moreapplicable to the audio-visual industries, e-books and other consumer-orientated material in the publishing worldalso come into this category. A necessary response to this challenge is the enforcement of legal rights. Most notably, we have seen theconsequences of the legal action against Napster and, more recently, in the case involving the file-swappingservice Madster.But, more fundamentally, the response is a business-
driven one. This is the battle for users‟ hearts and minds.
This battle is being fought on a number of fronts, comprising education, public relations and the creation of newbusiness models.
The battle for hearts and minds
 At the European Commission‟s bi
-annual review of copyright in Santiago de Compostella this year, John Mogg of the European Commission observed that copyright is on the defensive. The impact of competition law and new
media technology is raising questions about copyright‟s role in the digital age.
Geoffrey Yu, Assistant Director General in charge of Copyright, WIPO, argued forcefully that to counter these
threats, there is a need to raise copyright awareness and education to supplement enforcement measures. “Towin the battle for users‟ hearts and minds, rights owners need to change the copyright vocabulary fr
om insistingon rights to talking about copyright as source of cultural diversity, cultural enrichment, leisure and
entertainment.” He said that “
We won‟t win the battle unless we find new ways of changing consumers‟ behaviours and attitudes…Business needs 
to find appropriate business models and work with partners 
.” Put another way, it‟s all about converting pirates into paying customers.
The answer to the machine is the machine?
In the early discussions about the Copyright Directive, Charles Clarke famously coined this phrase. The WIPOCopyright Treaty 1996, and national copyright laws, contain important legal sanctions that give legal teeth totechnological measures that may be used as part of digital rights management. But just as there is no bulletproof technology that can fully preventunauthorized access or copying of copyright materials, so the enforcementof copyright law will not provide a complete solution to the problem of digital piracy.
Where to from here?
The process of updating copyright is painfully slow. Even worse, we are still left with a patchwork of nationallaws which, although moving to closer alignment, still have significant differences, leaving publishers exposed toa range of jurisdictions and national variations. That will remain a fact of life for the foreseeable future.But it also easy to downplay what is in the process of being achieved. Whilst there are still many unresolved legalissues, it is probably fair to say that the key elements of the copyright framework are in place. The real challengelies in the re-shaping of business models and consumer attitudes as well as continuing the fight against piracy.
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