Copyright and the internet : closing the gates on the public domain

Can copyright survive in the digital era? Indeed, should copyright survive in the digital era? The development of information technologies in general, and the Internet in particular has held out the potential of unrivalled exchange of information, ideas and creative works. Perfect digital copies of all manner of works can, at a keystroke, be sent around the world to be received, enjoyed and used by millions. But that same potential has brought a threat, notably for the entertainment industries (intermediaries) whose livelihood depends on receiving a financial reward for making their works available to consumers. How then should the promise of such digital dissemination be reconciled with the threat for these intermediaries fearful of seeing their content distributed beyond their control? The answer has been to develop a raft of measures giving these intermediaries the power to control both access to and use of the underlying work. But what of the law of copyright? For hundreds of years that law has ensured that those same intermediaries can control dissemination of these works, but only to a limited extent. The borders on that power have been found in the limits that have been ascribed to the property right in a creative work. Thus intermediaries cannot exert control over onward dissemination of a tangible object containing the work, at least within prescribed territories and regions; the length of time for which protection can be claimed is limited; ideas contained within a work are left free; a work must be original before it attracts protection; copyright in a work is infringed only if a substantial part is copied, and a substantial part can be lawfully copied within defined circumstances. Together these parts beyond ownership are termed as being in the public domain. The precise boundaries of this public domain might be difficult to describe, but the intent within the overall framework is clear. It is not only the interests of the current author and the intermediary that are served by the law of copyright. The public interest is also satisfied in that a variety of new works can be created for consumption, advancement of knowledge and information. Critically, the public domain is essential in this process. No works are created without some reference to, and taking from, what pre-exists. This public domain thus ensures that would-be authors have a variety of sources on which to draw in creating anew. It is this element of the copyright framework that appears to have been ignored in the recent legislative process. This study traces the legislative efforts made affecting copyright in the digital era and highlight8 the measures taken to satisfy the demands of the intermediaries. It goes on to consider the public domain, what it is, what it is used for in the non-digitised world, and how it is and will be affected by recent developments. It will be argued that conditions for both access to and use of the public domain alter dramatically, critically to the detriment of the would-be author. Given the 'new' legislative framework seems set to govern this area in the foreseeable future, the discussion looks at ways in which the existence of the public domain might be encouraged for the benefit of would-be authors. Copyright should survive in the digital era, and many would argue that it does. But sadly it would appear that one facet of the balance that has been nurtured by the law, the public domain, will be left to be developed by self regulatory mechanisms, rather than being guarded by the legislature