21st Century Copyright Law 101: Copyright Infringement in Cyberspace

Foreword

Thanks to the booming internet era and the rapid development of digital technology, literary and artistic works are known worldwide. At the same time, creative works increase in terms of quantity and quality, raising concerns about copyright protection worldwide. While applicable copyright laws are strictly governed by national legislation and international treaties, many questions still arise about protecting the works, especially on digital platforms. Therefore, the 21st Century Copyright Law 101 series aims to summarise some of the introductory provisions of international copyright law and then analyse specific aspects of protecting works under copyright law, thus trying to answer about copyright protection in both traditional and digital markets.

This series is divided into the following chapters:

1. 21st Century Copyright Law 101: What is Copyright Law?

2. 21st Century Copyright Law 101: Works are Protected under Copyright Law

3. 21st Century Copyright Law 101: Copyright and AI-Generated Artwork

4. 21st Century Copyright Law 101: How to Protect works under Copyright Law?

5. 21st Century Copyright Law 101: Copyright Infringement in Cyberspace

6. 21st Century Copyright Law 101: Compensation for Damage Caused by Copyright Infringement

7. 21st Century Copyright Law 101: Responsibilities of Online-sharing Platform Operators in Copyright Protection

With the continuous development of the internet, the boundaries of sharing have become borderless. Thanks to this, a song could be famous worldwide within a few hours, or an artwork in Vietnam can be transmitted to Germany or any place in the world with just one click. At the same time, piracy is increasing with the rapid sharing speed and bringing disadvantages to copyright owners. In this article, the author gives some examples of the impacts of the internet on copyright infringement from a legal perspective.

Music Industry

When the internet exploded, physical music products were no longer popular. Many people switched from compact discs (CDs) to listening to music through online apps, like Napster. In early 1999, Napster, a peer-to-peer sharing application, was launched in the US by Shawn Fanning, Sean Parker, and Hugo Sáez Contreras. This application has created a wave of public opinion on the issue of piracy. It then went bankrupt in June 2002 due to the influence of copyright infringement cases. In the case of A&M Records v. Napster, the United States Court found that Napster designed and operated a peer-to-peer (P2P) file-sharing network that allows users to search, access, download and store audio recordings in the MP3 digital file format on their computers. This method worked without requiring the permission of the copyright owner. The plaintiffs, corporate music producers, alleged that this action of the defendant had reduced the plaintiff's revenue based on such copyright infringement. After all, the court ordered the creation of an appropriate injunction consistent with its opinion against any of Napster's future infringing activities (239 F.3d 1004 (9th Cir. 2001)).

Figure 1. Napster case law

Although Napster ceased to exist after that, the hobby of listening to music online became famous. Therefore, music-sharing platforms were made focusing more and more on copyright protection. Spotify was born in 2006, aiming to accelerate the growth of music streaming and reduce piracy (Eriksson et al., 2019). Alternatively, as said by Daniel Ek, Spotify's cofounder and CEO, in 2009: "From the very beginning, our vision was to offer a legal music service, as good or better than the pirate sites, giving users access to all music in the world, for free." However, after that, Spotify still got into copyright infringement disputes. The dispute between Vie Channel Joint Stock Company (Vie Channel / VieOn) v. Spotify AB Company (Spotify) is currently being handled and resolved at the People's Court of Ho Chi Minh City, Vietnam. Accordingly, Vie Channel is the producer of two famous TV shows in Vietnam, "Rap Viet" and "Who Is Single". On August 11, 2020, Vie Channel asked the Attorney General's Office in District 5, Ho Chi Minh City, to establish a bailiff to note the use of audio recordings from the two TV shows mentioned above on the Spotify application. As a result, there were recordings of "Rap Viet" and "Who Is Single". According to the lawsuit, Vie Channel asked Spotify to compensate for damages totalling 9,530,000,000 VND (equivalent to EUR 352.688) due to copyright and related rights infringement (Vie Channel v. Spotify, 2020).

Figure 2: Music and copyright

Impact on the movie industry

Besides the music industry, movies are also heavily affected by online piracy. For example, the Vietnamese movie Bụi Đời Chợ Lớn was the victim of online piracy. The movie is about the wars of gangsters in Cho Lon Market in Vietnam and has been banned by the Vietnam Cinema Department from showing in cinemas. In 2013, the internet leaked the film at a dizzying speed. Due to the film being banned from screening, the property damage has no causal relationship with the person who illegally distributed the film. Still, this copyright infringement has seriously affected the director. When a director has spent too much effort and money on a feature film, but it is illegally distributed, morale is greatly affected. However, it is difficult to determine this infringement's actual damage in this case. The same situation with season 5 of HBO's Game of Thrones was leaked 24 hours before the official premiere on April 12th, 2015. Within 12 hours of the leak, the four episodes combined had been downloaded almost 800,000 times (IBTimes). After 18 hours, the first episode alone was reportedly downloaded over a million times before airing on HBO (Tassi, 2015). This piracy led to HBO losing a huge amount of damage based on this leaking.

Currently, many websites offer free copyrighted movies to consumers without the license or consent of the rights holders. For example, thousands of movies shared for free on the website Phimmoi.net have caused significant damage to the film industry. According to SimilarWeb, in 2020, Phimmoi.net still ranks 27th in the global entertainment industry websites despite blocking access by network operators. In addition, the owner of this website is being prosecuted under criminal law in Vietnam (Tuoi Tre Online, 2021).

Figure 3: Illustration for website Phimmoi.net and copyright infringement

Impact on the Right of Publicity

In addition to copyright infringement, as mentioned earlier, the right to publish works is also heavily affected by online sharing platforms. Examples can be given in the publicity of music products on Youtube. In the case of Frank Peterson v. Google, the plaintiff is Mr Frank Peterson, a German music producer and exclusive distributor of recordings and performances of singer Sarah Brightman, who sued Google, the parent company of YouTube. On November 6 and 7, 2008, works from singer Sarah Brightman's album and recordings from her "Symphony Tour" concerts were shared on YouTube without permission. On November 7, 2008, Mr Frank Peterson complained to Google Germany about this sharing and YouTube then blocked access to those works. However, on November 19, 2008, those works reappeared on the YouTube platform. Then he sued Google and YouTube at the Hamburg Regional Court, asking for damages and an end to the infringement. It can be seen that openly sharing Sarah Brightman's works on this free sharing platform has reduced the revenue of "Symphony Tour" concerts and seriously violated the right to publicity of these works on the Internet. Infringement of the right to publish works often occurs on the internet as live streams (Frank Peterson v Google LLC, 2021). When the author only wants to publish his work in private, but that same work is widely published on the internet, it leads to heavy losses for the author in terms of both economic rights and moral rights.

Figure 4. Copyright claim on YouTube

Conclusion

Currently, the laws of many countries around the world are binding legal responsibility on online sharing service providers to minimise copyright infringement. Accordingly, the intermediary service manager acts as the gatekeeper of works that need copyright protection. However, the awareness of online users is important in copyright protection. Cyberspace is an environment to increase copyright value, not to infringe copyright.

Bibliographical References

A&M Records, Inc. v. Napster, Inc case law.

Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG). (n.d.). Www.gesetze-Im-Internet.de. Retrieved December 17, 2022, from https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html

BBC News. (2018, March 1). How Spotify came to be worth billions. Retrieved December 17, 2022, fromhttps://www.bbc.com/news/newsbeat-43240886

Berne Convention for the Protection of Literary and Artistic Works. (2019). WIPO.int. Retrieved December 17, 2022, from https://www.wipo.int/treaties/en/ip/berne/

Eriksson, M., Fleischer, R., Johansson, A., Snickars, P., & Vonderau, P. (2019). Spotify Teardown: Inside the Black Box of Streaming Music (The MIT Press) (Illustrated). The MIT Press.

Tassi, P. (2015, April 12). Nearly Half Of “Game of Thrones” Season 5 Has Leaked Online. Forbes. Retrieved December17, 2022, from https://www.forbes.com/sites/insertcoin/2015/04/12/nearly-half-of-game-of-thrones-season-five-has-leaked-online/?sh=7dd20d5a3522

Tuoi Tre Online (2021, August 27). Khởi tố phimmoi.net: “Dấu mốc cực kỳ quan trọng trong xử lý vi phạm bản quyền phim.” [Prosecution of Phimmoi.net: “An extremely important milestone in handling film piracy.”] Retrieved December17, 2022, from. https://tuoitre.vn/khoi-to-phimmoi-net-dau-moc-cuc-ky-quan-trong-trong-xu-ly-vi-pham-ban-quyen-phim-20210827203857714.htm

WTO | intellectual property (TRIPS) - agreement text - contents. (2019). Wto.org. Retrieved December 17, 2022, fromhttps://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm

Visual Sources