The problem of copyright protection becomes acute in the era of the modern development of innovative technologies, the spread of the Internet and free access to intellectual labor. The problem of copyright protection is one of the priority tasks in the field of improving the legal framework of modern states. Legislation on copyright protection, the definition of its objects and subjects is an important component in the policy of protection of national interests of the state.
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It is important to resolve conflicting issues of international copyright protection by concluding international legal agreements in the field of copyright. Copyright infringement on works in the field of science has become widespread in scientific activities, especially in defense of dissertations for degrees. Manifestations of plagiarism damage the authority of scientific activity, the reputation of universities, and research institutions. This paper aims to identify the extent to which copyright dimension is regulated, identifying the related issues, as well as appealing to scholarly sources, laws, and court cases.
The initial element of the mechanism of the system of international coverage of copyright is the Berne Convention – Paris Act of July 24, 1971 – on the protection of literary and artistic works and the Copyright Convention (WIPO, 1979). In accordance with paragraph the Convention on the Foundation of the World Intellectual Property Organization, Intellectual Property includes the rights related to literary, artistic and scientific works; executive activity of artists, recording, the radio and television gear; inventions in all spheres of human activity, scientific discoveries; industrial designs; trademarks, servicing marks, corporate names and commercial designations; protection against unfair competition, as well as all other rights related to intellectual activity in industrial, scientific, literary and artistic spheres (WIPO, 1979). The ratio of copyright protection is also regulated by the World Copyright Convention, which was adopted in 1952 in Geneva under the auspices of UNESCO. It has a consideration of the principle of the national regime and does not contain detailed material norms that fix the minimum level of protection directly in the Convention (except for the provisions on the right to translate) (UNESCO, 1952).
The Berne Convention applies to most of the “classic” copyright objects; however, for obvious objective reasons, it does not pay special attention to the most recent objects, such as computer programs. The Berne Convention does not require any formalities to provide protection (registrations, formal messages, etc.). For example, it is enough to release the work into the world. It is applied to citizens of the participating countries (or persons who are constantly residing, whether headquarters are in relation to the authors of cinematographers), for the first time released by the work into the world in the participating country or simultaneously in a participating country and a country that has not joined the Berne Convention (WIPO, 1979). The latter also establishes a national protection regime, guaranteeing the protection of the rights of authors at a level not less than the level of protection provided for in the internal law of the participating countries in which the protection is requested. At the same time, the Berne Convention defines the minimum level of the author’s rights (that is, containing direct material norms).
Then, it should be noted that there are two forms of copyright protection, namely jurisdictional and non-jurisdictional.
A jurisdictional form of protection is the activity of authorized state bodies to protect infringed or challenged subjective copyrights (Geller, 2018). Its essence is expressed in the fact that a person whose rights and legitimate interests are violated by illegal actions applies for protection to a state body authorized to take appropriate measures to restore the violated right and stop the offense. Within the framework of jurisdictional protection, there are also general and special procedures for the protection of violated rights. As a general rule, copyright protection is carried out in court. The bulk of civil law disputes on copyright issues are considered by courts. The special procedure for the protection of copyright should be recognized as the administrative procedure for their safety; it is used as an exception to the general rule in the administrative order, i.e., the method of protection is a complaint to the appropriate state body filed by a person whose rights and legitimate interests are violated.
The non-jurisdictional form of protection provides for actions of legal entities and individuals to protect their copyrights, which are carried out by them independently without recourse to state or other competent authorities (Geller, 2018). This refers only to legal means of protection, such as notifying the infringer of the existence of copyright and a proposal to resolve the dispute through negotiations.
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The basic rules for resolving conflicting issues of copyright are as follows:
- until the emergence and termination of intellectual property rights subject to state registration, the law of the state where the state registration of these rights is carried out;
- when concluding contracts in the field of copyright, the provisions on the application of the right to contractual obligations are applied;
- if there is a disputed legal relationship, for example, in the case of a claim for damages, the parties have the right to agree to which court of which country they will apply;
- foreign decisions on the existence, validity and registration of rights in this area are recognized if they are made or recognized in the state in whose territory the protection was requested.
One of the current problems of copyright protection is protection on the Internet. The most common types of violations on the Internet are illegal reproduction and copying of music, art, literature or computer programs without the prior consent of the author or copyright holder. This expresses a violation of the material rights of authors (Stokes, 2019). In addition, this type of violation, such as plagiarism, is becoming increasingly popular. Such breaches on the Internet violate the material and intangible rights of authors.
Today, there are already mechanisms to protect works online from their misuse. One of them is the submission of files with results for storage in the so-called web depository. The applicant is issued a certificate that the object has been accepted for storage, and the date of deposit will be proof that at that time, the applicant had a copy of the work (determining the priority of authorship).
Protection at the stage before the violation exists in the following forms:
- limited functionality – the authors distribute programs that are not able to print documents or store them in computer memory;
- “clock bomb” – the author distributes a full-fledged object of copyright but sets a date after which access to it will be impossible;
- copy protection, i.e., the author sets the number of times a file can be copied;
- cryptographic envelopes – the work is encrypted so that access to it is possible using a font key;
- precautionary measures: preliminary publication of the material on traditional material, confirmation of the existence of the work on a certain date, certification by a notary of the date of creation of the work, recording on a laser disk and placing in the archive or web depository;
- clearing centers – the author gives the center the right to license its rights to the work; the center accepts the fee from the user and transfers it to the copyright owner (Stokes, 2019).
The application of such copyright protection measures on the Internet will indeed be able to provide adequate protection, but the implementation of such measures requires support from the state and a number of other actions. Hence, today’s trends are moving towards the Internet, where an indefinite number of intellectual property objects that need legal assistance are stored. It is necessary to make changes in national legislation and possibly the adoption of a new legislative act on copyright protection on the Internet. The majority of countries are already working on these issues and can partially control the processes and ensure the protection of copyright on the Internet.
Thus, the protection of copyright and related rights on the Internet requires the development of fundamentally new legislation not only at the national but also at the international level. At the same time, such protection should not lead to the control over the use of works becoming an obstacle to the development of education, science, culture and other needs of society (Ginsburg, 2016). Moreover, the two famous legal cases below serve as great examples of how a copyright issue may be resolved at the court level.
Those who followed the US election campaign in 2008 should have paid attention to the unusual posters with the word HOPE that Obama’s supporters brought to rallies. They were created by the artist Shepard Fairey, also known as the creator of street art with the image of the wrestler Andre the Giant and the owner of the Obey youth clothing brand. However, Faerie became famous all over the world precisely thanks to posters and stickers with the image of Barack Obama, which, however, together with fame, brought him big problems. We are talking about a conflict with the Associated Press news agency, which accused the artist of copyright infringement. The fact is that Fairey’s creation was based on a photograph of Mannie Garcia, which legally belongs to AP.
The litigation lasted almost two years. Fairey tried to prove that the act of borrowing the photograph was “justified use” (US law allows copyrighted work to be appropriated for purely artistic purposes) (Kennedy, 2011). However, neither side managed to win; instead, they entered into a cooperation agreement. AP and Fae are set to release a series of posters and other HOPE merchandise; Moreover, the agency will provide the artist with images that he will have to use to create works of art or souvenirs. The parties also agreed on some financial compensation, but these terms of the agreement are kept secret.
The second case is related to Richard Prince, who is one of the richest and most arrogant American artists. Inspired by the ideas of postmodernism, he decided to encroach on other people’s works. Prince once pocketed photographs of Rastafarians in Jamaica by photographer Patrick Cariou. I painted them, stuck a guitar to one and goggled; the pictures sold for millions (Artist Rights, n.d.). Patrick Cariou filed a lawsuit, and the court unexpectedly sided with the robbed photographer. Things took a tragic turn: works and catalogs had to be destroyed, and buyers were forbidden to show them. American artists, notably the Andy Warhol Foundation, have come forward with Prince’s support. Photographers, on the other hand, sided with Patrick Cariou. Prince’s lawyers have filed an appeal. As a result, the Supreme Court ruled that Prince was right and said that 25 of the 30 works were well-crafted by the artist and did not look like the original. Regarding five other works, the artist managed to agree with the plaintiff, and everything ended peacefully.
The works created as a result of creative activity serve everyone, and this, together with the ubiquity of their use, leads to the fact that the protection of copyrights within the territory of the country of origin of the works is insufficient. It is essential that the rights of authors enjoy appropriate recognition and be exercised wherever their works can be used. At the same time, they forget that without the protection of copyrights, it is impossible to ensure the development of creativity, which requires appropriate incentives, or the development of the local industry of cultural values necessary for the market of national works because to attract investment and ensure their profitability.
As a result of all this, ensuring the effective protection of national works in a country necessitates similar protection of foreign works, which creates an obvious paradox: for the protection of national works, it is necessary to protect foreign works. Being deprived of protection, foreign works can be used without the permission of their author and without any costs; thus, they will be unfair competition to protected national works, which risk being displaced because their use is associated with higher costs.
At the international level, the protection of copyright was initially ensured through bilateral reciprocity agreements, which in most cases are related between European states; however, such agreements had a limited scope, were devoid of a unified character, while the internationalization of book and music markets made it necessary to harmonize the regime of protection of copyright, regardless of national borders. It is because of the lack of bilateral agreements that copyright has been one of the first areas where private international law has been codified in a multilateral treaty between European countries: the Berne conventions on the protection of literary and artistic works.
If to discuss copyright protection on the Internet, we must realize that these are not only legal but also technical issues. Under current conditions, it is very difficult to control the use of works online, so the most successful rules of copyright law will not be able to work in full force. Prospects for the development of copyright law in relation to the network largely depend on the creation of technical means to limit and monitor the use of works on the Internet.
Of particular note is copyright infringement, such as plagiarism. One of the most important prerequisites for the spread of plagiarism today is the development of the Internet, which causes the uncontrolled movement of information, the volume of which is constantly increasing (Adams, 2020). Plagiarism is the publication in whole or in part of another’s work under the name of a person who is not the author of this work. Plagiarism is distinguished by the assignment of someone else’s authorship. Piracy, for example, can distribute someone else’s work without the author’s permission, but the name of the real author is not hidden. That is, in this case, the non-property rights of the author are preserved, which cannot be said about plagiarism, where both property and personal non-property rights of the author are violated.
In this situation, it is necessary to actively find ways to solve problems in the field of protection and enforcement of intellectual property on the Internet at the interstate level, with the involvement of the widest possible range of states. It is important to introduce additional mechanisms aimed at improving the legal regulation of protection and enforcement of intellectual property rights on the Internet in less developed countries, including developing countries (Okediji, 2019). It is also necessary to raise the technical level of protection of websites from unauthorized access and from use for criminal purposes. The solution to the problems of protection of intellectual property on the Internet should be, first, specialized legislation in the state. Then the authors would not be afraid of such negative phenomena as plagiarism, piracy, and electronic libraries could fully and properly operate properly, without compromising anyone’s rights. In this case, users will be able to find the information they need in a way convenient for them and without violating the law, and the authors will be at ease for their copyright.
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Copyright is an important and integral part of any legal framework that aims to regulate in a fair manner the civil conduct of authors and users and thus to ensure the universal protection of the interests of all. Given the rapid development of information technology in recent decades, it is clear that this development is accompanied by certain problems in the legal regulation of the use of this information technology. Improper use of the Internet can cause both relatively minor damage (for example, in the case of copyright and related rights by illegally distributing audio or video materials) and more serious (cyber attacks on secure servers to extract confidential information that may lead to a threat to the national security of states, etc.).
The analysis of the current problems in the field of protection and enforcement of intellectual property rights allows coming to the conclusion that it is necessary to improve both domestic legislation and international law in this area. First, the WIPO treaties need to be updated, which can be implemented by revising the existing treaties, as well as the adoption of new provisions that should close the current gaps. Second, it is necessary to carry out the proper implementation of such agreements by all states without exception, which will facilitate the international legal regulation of copyright and related rights and contribute to a faster resolution of existing problems in this area. The presented legal cases show that the parties are likely to negotiate copyright issues on their own in the aftermath, given, again, the absence of the necessary extent of regulation.
To conclude, the issues of copyright in the 21st century were discussed. It was found that in the digital era, the problem of plagiarism should be addressed appropriately, developing the related domestic and international legal mechanisms. Unfortunately, it was suggested that these mechanisms do not regulate the copyright dimension to the necessary extent, and changes in this field are to be implemented. It is important to achieve proper cooperation between countries by smoothing and advancing functions of the international organizations involved in the copyright area.
Adams, P. M. (2020). Good vs. evil: attribution or plagiarism. Web.
Artist Rights. (n.d.). Significance: Cariou v. Prince. Web.
Geller, P. E. (2018). International copyright: the introduction. International Copyright Law and Practice, 1. Web.
Ginsburg, J. C. (2016). Overview of copyright law. Web.
Kennedy, R. (2011). Shepard Fairey and The A.P. settle legal dispute. The New York Times. Web.
Litman, J. (2018). What we don’t see when we see copyright as property. The Cambridge Law Journal, 77(3), 536-558. Web.
Okediji, R.L. (2019). The limits of international copyright exceptions for developing countries. Vanderbilt Journal of Entertainment & Technology Law, 21(3). Web.
Stokes, S. (2019). Digital copyright: law and practice. Hart Publishing.
UNESCO. (1952). Universal Copyright Convention, with Appendix Declaration relating to Articles XVII and Resolution concerning Article XI 1952. Web.
WIPO. (1979). Berne Convention for the Protection of Literary and Artistic Works. Web.