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Intellectual property rights of multimedia enriched websites

January 1- January 30, 2003 | BY Charles Adetokunbo Shoniregun

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Can original print and music survive the multimedia technology hoax?

Can original print and music survive the multimedia technology hoax?



Generally speaking, over the past two centuries copyright has survived numerous technological advances such as the player piano, phonograph recordings, motion pictures, television, radio, cassettes and compact discs. Often, these new technologies have posed challenges to copyright law's applicability. Although copyright has not always adapted immediately and smoothly, it has not prevented any of these technologies from thriving. Crime is crime, whether committed in the physical world or on the Internet [1].

The raison d'être of intellectual property right (IPR) is to protect the originators from unauthorised copying of their ideas and associated material for others' financial gain or general personal benefit. This brings into play one of the most complex and perceptively unclear areas of law. How does one prove that an item of written work is original and How can an inventor assure the patent's office that the idea is his/her own and not that of a claimant from elsewhere? IPR law seeks to define guidelines to address these and other problems, and to provide legal remedies for those who assert their ownership rights. Many of the IPR issues existed before the Internet came into being, hence we are in a position where due to the newness, unfamiliarity and evolving nature of the Net, pre-Internet issues are magnified many times.

The copyright issue concerning the Web has added further complexity to the problem of IPR enforcement. By nature of the immense global reach of the Internet, there is an inferred agreement that the Web is synonymous with "in the public domain" and that information posted on the Net is there for all to use. While this is a noble principle, it is perhaps idealistic. Together with education and entertainment, the Internet is also a business medium. For commercial and individual activities to be conducted effectively there is a need for protection of ideas and materials; examples of the latter include original print and music. This paper discusses the impact of multimedia technologies on copyright of original print and music on the Net.


Introduction

Prior to 1994, the art world was in a state of recovery following the recession of the 1980s, so had not yet colonised the Internet. Its use flourished throughout the latter half of the 1990s. Net artists' exploit the characteristics peculiar to the medium, such as immediacy and immateriality. The Internet has enabled practitioners to communicate on equal ground, across international boundaries, instantaneously, every day and to work and talk independently of any bureaucracy or art-world institution without being marginalised or deprived of community.

Some artists chose to go digital or to stay traditional or experiment somewhere in between. There are those artists using traditional media who have not yet recognised the possibilities of digital technology as a valuable tool or who have chosen not to explore the possibilities based on subjective bias [2]. The fear or apprehension surrounding the use of digital technology within the fine arts may be associated with preconceptions that it is more appropriate to commercial applications and, in particular, graphic design. The physicality of traditional media can appear incongruous with the use of digital technology. However, technological developments in recent years have greatly increased the number of options available to visual artists for conceiving and creating art works.

Back in 1987, the German engineering company Fraunhofer IIS designed a standard for digitally storing audio files with near CD-quality sound, MP3 (short for MPEG Audio Layer 3). The advent of MP3 was perhaps the most important development in the ease of digital storage and transfer of musical recording. The technique has been central to a revolution affecting every aspect of the music industry. With the file size of a digital version of a piece of music reduced, all that was needed was an easy transfer service and it came in the form of Napster, the Net phenomenon that shocked the music industry.

At present, the legitimate music sites only offer music from a couple of record labels at most, making it hard to find exactly what you are looking for within the same site. Customers may waste hours surfing the Web to find what they want, if the legitimate download even exists at all. Customers want the right to control their music the way they want, which means the right to copy music onto a CD or MP3 player without the fear of breaking copyright laws [3].


Original Print

With the advent of techniques capable of photomechanically reproducing an artist's work in the 1890s, it soon became necessary for the buyer to be able to distinguish between an original print and a reproduction. However, formal or legal definitions did not appear until the 1960s, during which time the Third International Congress of Artists in Vienna (in 1960) devised a definition that was to fuel many others later used in a number of countries.

When used as a noun, original refers specifically to a print . . . every single copy of a woodcut, etching or lithograph is an "original," the final and complete embodiment of the artist's intention. The miracle of the process is that there are not one but many originals. The four main printmaking media are etching, lithography, screen-printing and relief printing. However, an original print is made when the artist creates a new piece of work by working with one (or more) of the printmaking media. This is "unlike a reproduction, where an original painting is photographed and then mechanically printed en-mass resulting in what is essentially a poster, not an original print" [4]. If a set of original prints is identical, they are considered a limited edition, one of the hallmarks of an original print (as is the artist's signature). The prints are carefully printed and numbered by hand, signed by the artist and then the original plate(s) should be destroyed. The entire process therefore involves artistic input from creation to completion to produce a print that will sell at a fraction of the cost of an original painting or drawing.

In 1961, the Print Council of America [5], issued the following criteria for identifying an original print (the Council currently acknowledges that such a definition is now difficult):

-- The artist alone must create the master image on the original material

-- The print should be hand printed by the artist or someone under his or her supervision

-- Each print should be approved and signed by the artist and the master image destroyed or cancelled

-- The original print should not be a copy of any other image unless produced in another medium by the same artist previously.

An original print cannot be defined or assessed solely in terms of the technique or process used. Therefore an original print work should be conceived by the artist for a graphic process in order to widen the distribution of an original idea. The fact is that the limited edition number and the signature, the extraneous factors often looked for on an original print, are the easiest items to add to a photomechanical reproduction, thereby creating the misleading impression that it is, in fact, an original print. To include each successive impression created through contact with an inked or un-inked stone, block, plate or screen that was worked upon by the artist alone or with others; it may be directly controlled or supervised by the artist and must meet his criteria for excellence. The International Fine Print Dealers Association considers that the term "originality" used in the above context has become bankrupt and imprecise and specifies new standards based on a rather complicated numerical scheme, which it claims will remain valid for years to come.

The overriding message from much of the literature is that artists' and dealers' main motives for establishing a Web presence is to make the art and music available to a much wider, international audience. The Web has opened up the British and Asian art market to a wider audience. Art sites can serve as a starting point for beginners who want to learn about art but who might otherwise feel intimidated about art galleries, enabling them to get an idea about prices and future exhibitions. Sites also allow experienced collectors the opportunity to view works via the Internet when they might otherwise be pushed for time. I personally agree that the Web is no substitute for the real thing, particularly for the inexperienced buyer. Although much hyped, the recently emerging thought is that [6] "pure Internet art dealerships" do not offer the personal service of the traditional art trade and encouragement to develop an understanding and appreciation of "difficult" pictures.

The multimedia capabilities of the Internet have provided major appeal for some artists wanting to present video or sound clips of their work. Freely available software allows compressed video and audio to be streamed on most computers without download delays. The increased use of streamed sound and video as well as remote interaction are transforming the level of Web-based interaction. The evolving environment of the Web provides a unique challenge for artists to explore these conjunctions of cyberspace, media and audience feedback. While on the one hand shrinkage of royalty payments threatened traditional artists and the musicians signed up with the record companies, the incredible distribution network offered by the Net has helped launch others who may have not received openings into the market. It could be argued that in this way the Net is resulting in an expansion of the market. But the future is not all rosy [7], and there remains much that needs to be done in order to make the Internet a widely acceptable marketplace for the exchange of goods and services between merchants and consumers. Technology continues to become more complex and the safeguards used today may be severely out of date tomorrow.


Concern for the Music Industry

Since the late 1990s the explosion in file sharing on the Net has escalated music piracy to astonishing levels. Legitimate or illegitimate sound recording can be electronically transported around the world and downloaded directly into computer hard drives and copied onto CD-R disc. The pirate music market has never been more appealing and simpler to the consumer. Illegally downloaded music on the Internet is deemed to be at crisis point, forcing the industry to continually throw millions of pounds at campaigns aimed at eradicating the problem.

Within the Internet culture of unlicensed use, theft of intellectual property is rampant and has given music pirates a new weapon. Piracy affects every sector of the music industry from retailers to distributors, artists, composers, publishers, record companies and ultimately the consumer. Illegal Internet file-sharing services most commonly using Peer-2-Peer networks have taken the lead in forming an electronic marketplace, giving music consumers exactly what they want, when they want, and at a price they want it -- free! Music can be downloaded without authorisation or compensation to the artist. Other music pirates use the Internet as a tool to peddle illegal CDs.

Furthermore, freed from the potential constraints dictated by major record labels as well as the physical limitations imposed by making and distributing a CD, artists can take advantage of options previously unfeasible. For example, different versions of the same song can easily be made available to the public via MP3 files. Other advantages of the music-on-the-Internet experience include the ability to link complementary information never found in liner notes, such as scoring arrangements. At lenistern.com not only can fans listen to music, they can make credit cards purchases of hard copies of Stern's CDs as well as online downloads of individual tracks. This direct method of distribution that cuts out the need for the large record company is increasingly appealing to artists.

The largest benefit of online music technology, for both musicians and consumers alike, is getting the music out there. In addition to individual sites such as LSR, several small companies specialise in providing music in MP3 files, including MP3.com and Mjuice.com. The current legal questions about peer-to-peer programs leave the future of music and the Internet open to huge speculation. One of the most significant issues for Napster and related systems is that the music is free. Listeners wanting to search for particular songs can download the MP3 files directly from another person. So not only will the big five record companies lose out on the money, so will independent labels. The seduction of peer-to-peer systems -- sharing massive amounts of material -- is also one of the biggest drawbacks. The potential of sharing unwanted material, such as viruses, could still persuade listeners to seek out their tunes from central sources, such as LSR's Website or MP3.com [8].

The global pirate music market totalled 1.9 billion units in 2001. Discs make up the majority of pirate sales overtaking cassettes for the first time, and reflect the switch in piracy to recordable CDs (CD-R) discs. The International Federation of Phonographic Industry (IFPI) estimates that 28 percent of all CDs sold in 2001 were pirate. The total is split roughly evenly between CD audio discs made on factory production lines and those made in smaller scale CD-R operations in garages and labs. Worldwide sales of pressed pirate CDs were 500 million units, up from 475 million in 2000, with pirate CD-R discs estimated at around 450 million units, up from 165 million in 2000 [9]. The major trend in music piracy around the world is the growth in CD-R demand. Using the UK market as an example, CD-R demand in 2001 has seen 308m blank recordable CDs sold. Independent sources estimate that 128m of these were used to record music [10].

The low cost of Internet art and music compared with conventional CD catalogues is another factor involved in the placement of art and music on the Web. A report on the virtual Internet gallery [11], states that the Web is particularly useful for exhibiting art, as visualisation is the most important consideration, whereas the physical presence of the object exhibited is only of secondary concern. The existing art sites are merely electronic versions of conventional printed catalogues and that they "do not take further advantage of the new media." Limitations in the existing technology include unreliable colour on displays, limited display area and loss of canvas structure. However, there are cultural opportunities in that artists and potential buyers can communicate irrespective of temporal and spatial limitations. The Internet provides artists with more control over how their work is represented than conventional printed catalogues and relieves the pressure of recouping expenses.


Discussion

The low cost of disseminating work to a wide audience via the Web creates a distinction between the terms "art on the Net" and the rarer "Net art." One is concerned with marketing, and possibly selling, conventional work via the Web. The other is the art in itself that takes advantage of the medium in its creation and distribution. These areas overlap somewhat, The Web can empower unknown artists, who are able to bypass art galleries. However, galleries, although sometimes biased and conservative, have a role in filtering out the rubbish, so the result is a great deal of artistic incompetence available online [12]. The other danger is that just because something is online does not make it "radical or attractive.' Art dealers are in agreement that the Web radically increases international exposure and that the medium offers a promotional opportunity that they would be unwise to ignore. Although sales of original paintings on the Internet have been disappointing (customers like to see the work in person), sales of original prints have been more promising.

It is perfectly legal for consumers to copy music for their own enjoyment, i.e., non-commercial use. Congress has even declared, in the Audio Home Recording Act of 1992, that it is legal to make recordings and lend them to people, provided it is not done for commercial purposes. According to SoundScan (the system, introduced in 1991, that measures album purchases at their point of sale, giving the industry precise sales figures), it is unlawful, of course, if it's done to make a profit. For an industry that's been able to bank on year-to-year sales increases, business through the first six months of 2002 was down 5.4 percent. Just look at how many copies, combined, the top 10 sellers in year 2001 have sold: 22 million. Now compare that with the combined sales for the biggest 10 hits of July 2000: 36 million.

The big music chains are feeling that sluggishness as well, which explains why venerable CD seller Tower records, with nearly 200 stores worldwide, is battling creditors to avoid a bankruptcy filing. The company posted $34 million in losses during the first quarter in 2001. Like all the major music retailers, Tower has been hurt by disappointing sales as well as stiff competition from mass-market retailers like Best Buy and Target, which sell CDs on the cheap in order to build foot traffic. In the wake of the Napster debate, an argument could be made that savvy consumers are simply no longer doling out cash for CDs. They're still devouring new music at a healthy rate, swapping files with friends, but it's just not showing up in SoundScan [13]. Most artists, who traditionally depend upon the large record companies, obviously stand to lose royalty payments with the dissolution of distribution through the Net. Interestingly, however, there are examples of artists who are taking advantage of the changing scenario.

Leni Stern, jazz guitarist/singer/songwriter, is a case in point where online technology has meant greater artistic control as well as more immediate contact with her fans. Stern, who began her music career in 1977, started her own record label, Leni Stern Recordings (LSR) in 1997 with the idea of promoting herself and, subsequently, other recording artists as well. Having her own label provides Stern the freedom to work according to her own schedule while controlling her production. MP3 technology and the Internet allow Stern to bypass the traditional recording industry format -- a complete CD of songs -- and offer visitors to her Website the chance to listen to new music before it is released in stores. Visitors can also access music that is available exclusively on the Internet.

The digital technology has enabled a wide range of converging technologies, such as video, audio and the Internet, to unite so that the spectator is actively engaged outside the gallery context. This has led to new audiences, although there is a growing suspicion that such multimedia art represents technology-led research and often fails to work or is over-hyped [14]. Despite the increased audience for many art and music sites, there are concerns for Internet traffic to a given site. Income and computer literacy characterise the virtual public inhabiting cyberspace.. It is less inclusive than the public encountering other projects in the streets. An imbalance between content and its display will 'leave a viewer unfulfilled." Similarly, there are dangers of overlooking the content on sites while getting the flashy animations to work.

Furthermore, art collecting via the Web is more wishful thinking than reality. It is a viable art mechanism with particularly distinct characteristics. The inherent characteristics of Web-based communication can be exploited to extend the gallery metaphor, taking advantage of the absence of discrete boundaries, idiosyncrasies of transmission of information and an interface-driven environment. Part of the appeal of placing art on the Web relates to the scope for interaction and feedback from a viewer base that would not otherwise be feasible, given the narrow cast nature of much of the contemporary art circles [15]. Web-based interactions are further transformed by the increasing employment of streaming sound and video and remote interaction as a result of tremendous progress in video compression and transmission. The use of digital video in multimedia systems and over the Internet is becoming pervasive.

The Internet revolution, rise of digital technology, and the newness of bandwidth connections have raised a number of challenges for the traditional art painting and music industry. The huge popularity of the music file sharing services like Napster sent shock waves through the industry. Closer examination suggests, however, that technological and consumption pattern changes do not necessarily spell the end of profitability. Similar fears were voiced about the movie industry following the popularity of cable and home video, but the cinema audience has only grown. In a sense the new technologies only served to expand and multiply demand for movies. The success of traditional artists and musicians willing to be creative with the marketing opportunities offered by the world of the new media proves that it is possible to use the new media to boost old media success. The risks involved cannot be measured in terms of financial losses.

Ultimately, the music industry's war on illegal downloading can never be won. In the future legitimate music services will flourish, but only because they will eventually sufficiently cater for the consumer market. Previously illegal services, ideologies and technology will be adapted and incorporated in the future services on the music industry. The only pitfall for the industry is incurring the wrath of the consumers by labelling them as criminals and invading their privacy rights. With a consumer movement of the magnitude witnessed by Peer-2-Peer file sharing services, the industry must take note that the services it provides are insufficient and not just blame illegal downloading for all of its problems.

It is obvious from the data presented that illegal downloading is huge among the consumer but it is debatable whether CD sales are affected by illegal downloading or if illegal services actually encourage the use of legitimate services. A survey conducted by Forrester on 1000 online consumers suggests that digital music doesn't effect their illegitimate purchasing of CDs and the main problem is the economy and competition from the games industry [3]. It could be that the mass hysteria of the industry is ultimately a ploy to implement undesirable laws and regulations on the pirates and consumers. Most paramount to future development of legitimate online services is how the industry will make the experience of buying digital music more appealing to customers whilst attracting them away from the illegal services.


Conclusion

In an examination of the implications of experiencing art works through the Internet, technologies [16] such as Java allow users to "respond more actively and spontaneously" to vivid and communicative art sites compared with conventional HTML pages. Artists have made use of the Web in various ways: some have used it to present information about themselves and their work in other media while others have been drawn to this interface by its relevance to the logic of their own artistic development. Many artists have made critical presentations that attempt to reveal the parameters of computer-mediated communications and the potential for representing pre-existing material, the online textual, visual, multimedia mix (collage) and the hybrid use of images, text, sound and video.

In order to address the risk of unauthorised use of material over the Net, we can refer to existing IPR law and associated remedies for breach of copyright and patent protection. First, copyright law does apply to materials on Web sites. This is the case even if the author does not mind his/her work being freely available to anyone. As in the instance of false claim of ownership, the true originator would understandably want to exercise his/her rights under copyright law -- abandonment of economic protection does not mean an equal waiver of moral rights [17]. Piracy has always been a major concern for the music industry and can range from individuals making several replicas of legitimate CDs and tapes to the millions sold to help fund criminal or even terrorist activity of organised gangs. In territories such as China, Russia, Brazil and Mexico piracy levels are so high it is exceptionally difficult to develop a legitimate market for recorded music. The music industry loses more than $1 billion per year from illegal activities conducted in these countries, not including losses due to Internet piracy [9].

The Internet is a source of education, pleasure and open discussion. So the question remains, how can original art and music be safeguarded? I came to the conclusion that there is no need for a single, global Internet regulator. The generic nature of any proposed body would hinder some countries, while allowing others perhaps too much freedom. Also, the regulations put forward would be open to wide variances of interpretation and execution. The better approach would be to facilitate the coming together of the necessary bodies to ensure there are no contradictions or major exposures that could harm the progress of multimedia-enriched Web sites. Based on my research and personal opinion, multimedia technologies are here to stay. Nevertheless, many questions concerning technology remain unanswered and frequently unasked. [19]

Charles Adetokunbo Shoniregun, has taught in many universities and colleges in the UK. He is currently a lecturer in Computing and Business Information Systems at the School of Computing and Technology (University of East London) and a guest speaker to many universities in the UK and abroad on issues relating to his research and consultancy area: Internet security, risks assessment of technology enable information, electronic and mobile commerce (emC), and risk assessment of telecommunication infrastructure, and applied information systems.


References

[1] Power, R (2002), Tangled Web, Que Corporation.
[2] Labadie, J. A. (2001) The graphical interface in the digital millennium: the past is present. Proceedings of the Fifth International Conference on Information Visualisation. pp245-247
[3] Bernoff, J (2002), "Downloads Save the Music Business," http://www.forrester.com/ER/Research/Report/Summary/0,1338,14854,00.html, (Accessed 28 October 2002).
[4] Zigrosser, C. (1956) The Book of Fine Prints. New York, Crown
[5] Print Council of America (1961) What is an Original Print?: Principles Recommended by the Print Council of America, Edited by Joshua Binion Cahn. Print Council of America (2000), Defining a print. www.printcouncil.org/defining_a_print.html, (Accessed 3 Jan 2003).
[6] Flynn, T. (2001) E-phemeral mail, ArtReview, p 69, June.
[7] Shoniregun C.A., (2002), "The Future of Internet Security", Communication of the ACM: Ubiquity (ACM IT Magazine and Forum), Volume 3, Issue 37, Oct 29.
[8] Sun Microsystems' "Digital Journey" (2001), Digital Downloads: MP3 and Beyond. www.sun.com (Accessed 12 Dec 2002)
[9] Music Piracy Report 2002 (2002), The International Federation of the Phonographic Industry (IFPI), p 1-10, June.
[10] Piracy Report 2001 (2002), British Phonographic Industry (BPI), p 1-4, June. [11] Müller, A., Leissler, M., Hemmje, M. & Neuhold, E. (1999) Towards the Virtual Internet gallery. IEEE International Conference on Multimedia Computing and Systems, Volume 2, pp 214-219 [12] Whittaker, D. (1997) Networks. ArtReview, p 7, October. [13] Eric Boehlert (2001), What's wrong with the music biz?, July. www.salon.com, (Accessed 8 Nov 2002). [14] Ashbee, B. (2000) Don't just lie there -- interact! ArtReview, pp 56-59, June. [15] Weintraub. A. (1997) Art on the Web, Communications of the ACM, 97-102, October. [16] Oh, J.K., and Lim, G.C., (1997) Problems and possibilities of the experience of modern art through the Internet, Proceedings of INET97. [17] Bainbridge, D.I., (2000), (Barrister Aston Business School), "Intellectual Property", Financial Times Pitman. [18] Dutton W.H., (1999), Society On the Line, Information Politics in the Digital Age, Pub Oxford. [19] Dr Preston, D. S., (2001), Technology, Managerialism, and the University, Glenrothes.


Bibliography

Elsom Cook, Principles of Interactive Multimedia, McGraw-Hill (2000)

Borivoje Furht, Handbook of Multimedia Computing, CRC Press (1998)

Alvear .J., Guide to Streaming Multimedia, Wiley Computer Publishing, New York (1998).

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