A framework using the internal and external perspectives and its application to online copyright infringement: an analysis of copying and communication to the public.

Abstract

The power of technology as a threat to mankind has been a popular science-fiction theme for a very long time, from classics such as George Orwell’s 1984 to more recent endeavours such as the haunting TV series Black Mirror. Perhaps the reason for the popularity of this subject is that these stories act as a catalyst to explore the future possibilities of the relationship between humans and technology. Based on our current experience we project into the future expecting technological advances to escalate at an advanced rate. Most would argue that technology is neutral in the sense that it can be used for positive or negative purposes. Either way, is clear that the development of technology is quickly progressing and more than ever we are replacing human services with machines and apps. However, this thesis aims to bring back the human element in the discussion of online copyright infringement. There are three key instances in which the capacity of a human mind intersects with the development of copyright law. The first is the development of the copyright statutory law, the second is the interpretation of the copyright statutory law by the judges, and the third is the cognitive interaction with new technologies by all humans. This thesis therefore addresses copyright law at each of these stages. The use of the internet in copyright infringement is a seminal case study to demonstrate the disconnect between the technological and the human perspectives. This notion of the disconnect between technology and human perspectives translates into the ‘internal’ and ‘external’ perspectives of the internet. The external perspective is the understanding of online activity from a purely technological point of view, whereas the internal perspective considers the cognitive understanding of the human experience in online activity. Each perspective determines a different and separate reality which results in a materially different decision when the law is applied to each reality as a set of facts. These concepts are developed into a Framework for analysis which is then applied to the law of online copyright infringement. The ‘Framework for Constructing Digital Perspectives’ is thus developed from the ‘internal’ and ‘external’ perspectives of the internet as a lens through which the investigation of online copyright infringement can be viewed. Applying this Framework, the thesis makes an analysis of section 17 and then section 20 of the Copyright, Designs and Patents Act 1988 (CDPA 1988); infringement by way of reproduction and communication to the public. This includes a detailed analysis of the development of the statute, the wording of the law and a consideration of the application of these sections to the relevant case law. This thesis is an investigation into copyright infringement on the internet. It involves a specific and in-depth analysis of the laws relating to digital copyright infringement by way of copying and communication to the public online. The context of this study falls within the broader and universal phenomenon of human interaction with new technologies. Thus, the study involves traditional doctrinal analysis of the law together with the broader consideration of the human element in the application of copyright law online. This thesis considers the mapping of copyright law online and the tensions thereof, in particular from the perspective of the cognitive understanding in the human experience with new technologies. As such, a key theme throughout the thesis is the human element in the development of copyright and new technologies. The moral of the story is the reminder that you cannot forget, or worse exclude, the notion of the human either in the law-making process, in the application of the law or in the regulating of those who make use of copyright works online. It is people who make and enforce copyright law, people who create copyright works and people who use those works on the internet. As Tim Berners-Lee stated: “The…Web… it’s really a system of people. Yes, it is enabled by technology. So, as time went on, we stopped thinking about the internet as the collection of computers and we stop thinking about the Web as the collection of connected pages and now we think of the Web as humanity connected.” In the high-tech society within which we currently dwell, it is easy to focus on and rely upon technology. However, this argues that putting the human element back into copyright analysis can return reason where it has been lost in technological specifics. The emphasis of defining online copyright infringement leans towards the specific technological means by which the activity is undertaken. However, this does not provide a coherent or consistent copyright law.