Intellectual property and Web 2.0
There has always been a tension between traditional intellectual property rights and the online user-provided content phenomenon dubbed “Web 2.0”. As you may know, Web 2.0 describes the shift in thinking from traditional proprietary assets to open source and interactive content modifiable by customers and users. While the internet and Web 2.0 offers enormous potentials for inexpensive marketing, access to a world-wide market, and tools for reducing overheads, there are also substantial risks with using (or not using) the internet. We will look at some of these briefly in this article.
IP infringement and advertising: One of the hot topics now is how to regulate use of internet searching as a marketing tool. Increasing customer use of internet searches has inspired many businesses to use the brands and trademarks of competing businesses as keywords for sponsored advertisements, or keywords for search engines that will link to their own online store. A search for a well-known brand may then provide a link to that brand’s competitor.
Supporters of this practice state that this improves competition by notifying customers of all alternatives, and that trade mark disputes should not involve the search engines who provide an automated tool and nothing more. Courts have yet to come up with a unified approach to this development, looking at different factors in determining whether this is illegal misrepresentation, false advertising or IP infringement.
Copyright in videos and compilations: Traditionally the costs of publishing and disseminating information meant that copyright would be infringed only where there was revenue to be obtained from it. The use of the internet as an inexpensive means of personal expression via Web 2.0 makes the cost of enforcing copyright prohibitive, and accordingly reduces the value of certain types of copyright.
In the U.S. District Court, Viacom Inc. is suing Google (as owner of Youtube) over the copyright infringement by Youtube, which provides the means by which individuals can publish online Viacom’s proprietary videos, films and music. Already, a similar case between Io (an adult video publisher) and Veoh (offering similar automated online publishing tools to Youtube) has been decided in Veoh’s favour. The basis of the latter case being that Veoh did not do enough to create a copy that it was responsible for. While these decision turn on specific U.S. legislation, the results will have a strong impact on legislative and development of copyright law in Australia.
The Australian High Court will soon decide a similar point for a subscription-based internet TV-Guide publisher (IceTV) who reproduced weekly programs made by the Nine Network. At the end of that decision, it will become clearer how much work a party must put into a compilation before it attracts copyright protection, and how much can be taken from that compilation without infringing that copyright.
Written by John Graves, Partner and Kenneth Chan, Solicitor
