Copyright, as with any other proprietary right, is really a set or bundle of rights that attach to a particular thing. In the case of copyright the thing to which the rights attach is an intangible, an expression of an idea, though it is often recorded in a tangible form such as on a piece of paper. As with all proprietary rights copyright is best defined by its function rather than its name. Indeed in a common law context the question of what is copyright may, and often does have no meaning. The questions which do have meaning are what is the function of copyright, or what is its scope?
Copyright is a child of statute and as such is defined purely by statute. Statute defines the limits of the right whilst the infringement provisions define the scope and nature of the right. Copyright is also a national right and is limited to national jurisdictions. Consequently the principles which apply in one jurisdiction do not necessarily apply in another. This is especially true when it comes to looking at the differences in copyright between civil and common law jurisdiction and is very important when considering national treatment of works under the Berne Convention. This does not mean that a work carries the regime of its original jurisdiction across national boundaries. Rather it means that works which come under the convention are treated in a member state under that particular member state's rules as if it were originally published in that member state. Thus if a work is published in several different member states it will attract protection under different copyright regimes as long as it qualifies for protection in those individual member states.
Copyright attaches to a work if that works attracts protection under the relevant regime. The fact that the work can be in electronic form does not necessarily kill the protection. Likewise the fact that a work may be released on to the Internet does not mean that the work is no longer protected by copyright. Neither does it mean that the author, or copyright holder if a different person from the author, is implicitly stating that copyright no longer applies. The Internet merely makes policing copyright more difficult. It in no way destroys the right nor the existence of the right. To deal with the difficulties of policing copyright on the Internet copyright holders should look at new ways to use and exploit copyright such as copyright management systems, licensing regimes to make unauthorised copying unattractive and other methods. How ever much copyright control is needed the Internet, as a distribution mechanism, has many strengths and can be used quite effectively to seed interest amongst its users in works which they might otherwise not know or think about. Perhaps with that in mind it may be worth considering the notion that not all copying is necessarily bad copying.
ANGLO-NORDIC SEMINAR ON NETWORKING
Webpage by Isobel Stark of UKOLN
Last updated 22nd January 1997