Since its creation, copyrights law have answered to technological evolution, however until recently, merely everyone was

unacquainted with this complex legal aspect. Indeed, historically mostly only producers and distributors were familiar with copyright laws. Copyright laws became with time a complicated and evolving legal doctrine, which became even for specialists, hard to comprehend entirely. Today with the revolution of Internet and the development of digitalization, almost everybody in their daily life create, consume and disseminate content regulated by copyright laws. Nevertheless the comprehension of theses concepts by the society and especially the young generation is showing a deep lack of knowledge and acceptance. The gap that has been developed between societys behavior and its legal obligations has ultimately led to the development of an emerging culture. Copyright is part of intellectual property law that regroups three major areas including patent, trademark and copyright. Copyright laws are an extensive set of regulations that conduct expressive works, however it doesnt regulate ideas covered by patent neither it regulate short phrased protected by trademarks. A copyright is by definition an intangible property right granted by federal statute to the author or originator of a literacy or artistic production of a specified type. (Textbook p.319) The right is granted to the authors for a limited amount of time. Copyright covers the life of the author plus 70 years on works of individual authorship whereas on works for hire the right is granted for 95 years from first publication or 120 years from creation whichever expires first. (17 U.S.C. 302 (a) and (b)). As soon as the copyright expires, the work moves into the public domain sphere and can be used without any authorization. The essence of copyright found its roots in United States Constitution in the article 1 section 8 where The Congress shall have Power ...To promote the Progress of Science and useful Arts, by securing for limited Tmes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Historically, the idea behind copyright lawd was to promote creative

production in the United States and develop an American culture. In order to do so, finding the appropriate equilibrium between the private interest of creators and the general public interest of having cultural production largely available for use and reuse, was and is still one of the greatest challenge of copyright laws. The first step of copyright laws has been established during the era of printing presses and has been amended with time to adapt to the evolution of the society and new technologies that had tremendously affected the scope and enforceability of such regulations. Congress has for example amended the federal copyright laws to deal with photography in 1865, sound recording in 1909, movies in 1912 and software in 1980 with the Computer Software Copyright Act. Lately with the fast pace development of new technologies, Congress had to elaborate extensive and complex amendments such as the Audio Home Recording Act of 1992 or the Digital Performance Rights in Sound Recording Act of 1995. With the development of Internet and the spread of the digitalization of creative works, Congress passed additional legislation in 1998 to protect copyright holders of digital information with the Digital Millennium Copyright Act. In addition of many elaborated provisions, the act fundamentally provides protection to creators using encryption technology to control their digital work by establishing civil and criminal penalties for anyone who tried to bypass encryption software or other technological antipiracy system. The act limits also the responsibility of Internet service providers by excluding their liability with its customers who violate copyrights. However, if the Internet service provider is aware of its subscribers violations and doesnt take the necessary actions to stop such behaviors, his liability will be consequently engaged. As previously stated, the goal of copyright is to find the proper balance between private interest and the overall society interest. Therefore limitations to copyright infringement have been established under the expansion of the fair use doctrine. The doctrine defines the circumstances and the factors allowing the use of copyrighted works without the obligation

of paying royalties. For example for purposes such as criticism, parody, teaching or news reporting, copyright regulations do not apply. Nevertheless since the guidelines affecting the fair use doctrine are vague and wide, it is ultimately to the courts to decide on a case-by-case basis if whether a specific use is fair or not. The fairness seems to be key in the debate related to copyright laws and even intellectual property in general, because it represents the unique and difficult goal to balance between the private interest of creators and the general public interest. Such problematic is not new and will always exist, therefore the question that remains could be restated as is existing copyrights laws represent the fairest solution to the divergent interests in this battle? As of today, our research shows that no perfect solution has been found and that the debate on that subject has never been so passionate, the question of fairness being definitely subjective. Effects & challenges of the Digital Age on the Copyrights Laws The emergence of the digital age with the fast expansion of new technologies has evidently greatly impacted the efficiency of the copyright system. By offering new and numerous options to consume creative works, technological progress has deeply amplified issues over the control of copyrighted works. For example, the digitalization of expressive works has offered to the society extensive benefits, such as the ease of sharing through the ease of reproduction, dissemination and storage offered lately by technological progress and Internet. In fact, as of today, almost everyone with a minimum of computer knowledge can access, generate and spread regulated content at almost no cost. As soon as a work has been transformed into its digital form, the user can reproduce it with or without loss of quality and share it with anyone. Furthermore, the sharing process has been

immensely facilitated with the emergence of global digital networks allowing worldwide dissemination at increasingly great speed. Additionally storing such works has never been so easy and cheap, which ultimately led to the development of piracy by the general public and even more for the youngest generation referred as the Digital Natives by John Palfrey. This dramatic change has immense implication for creators and all the actors of the creative industry. It is all of these factors that make the copyright dispute unlike others. Todays, copyright owners face majors problems at the individual and the international level. The drawback of the Internet revolution and technological progress is that in the past, infringement was largely perpetrated by commercial entities whereas today, it is mostly private individuals who commit such violations. The second difficult aspect created by technological advance refers to the scope of the piracy. Global networks communications have created a virtual world where everyone can exchange with everyone but where enforcing the laws became a fundamental issue when users come from any foreign country that does not share the same regulations. The expansion of peer-to-peer networks, which allow individual computers to share files on the Internet, has been deeply harmful for the music and video industries. Originally such networks were operate by a central server which give access the files available on the network whereas most of todays peer to peer system work in a decentralized manner making the control of such system more difficult to supervise. Enforcing copyright laws at the international level is definitely challenging. As an example, according to the Motion Picture Association of America, the number of Web sites providing movies without proper authorization grew from 143,000 in 2002 to about 200,000 by the end of 2003. Video files transmission through peer-to-peer networks represented 31.9 percent of bytes transmitted in March 2004, up from 16.4 percent in March 2003. 1 However, what was the proportion of these files that were protected?

How Copyright has adapted to the digital age? Evidently copyright laws never fully succeed to overcome piracy and may never will. Piracy or illegal behavior is latent to any society and may be even beneficial to some extent. The real issue faced today is more related to the importance and the extent of this phenomenon. Obviously the copyright system is not static and has evolved substantially with technological progress to counteract threats brought with such changes. Policy makers had to reevaluate the exclusive rights offered under copyrights to make sure that owners and authors still control exclusively their works. As previously stated in our introduction, the radio, the television, the videocassette recorder and others have been source of fear and occasions to adapt the legal framework. However, could we think that the copyright framework only needs to adapt as it previously did in the past? Even if it is clearly evident that the system is far from perfection, many argue that copyrights laws are still providing the means to promote the Progress of Science and useful Arts. First of all, maintaining or establishing the framework of exclusive right in the international arena is not unfeasible even if it is obviously complex, costly and time consuming. As an example, progress has been made in such domain through the World Intellectual Property Organization and its copyright treaty. The treaty obliges member countries to acknowledge certain exclusive rights related to activity taking place on new digital networks such as the Internet. Among these rights, it offers the author an exclusive right to communicate and the making available to the public of works in a way that the members of the public may access the work from a place and at a time individually chosen by them2. Cleary in few countries such provisions exist partially or totally via traditional rights of performance or reproduction but the treaty extend such rights to additional countries and designate such right in a clearly unambiguous way. In addition, the Treaty require the Contracting Parties to provide legal

solution against the circumvention of technological system such as encryption used by authors related to the application of their rights and against the removal or altering of information allowing the authors to identify their works. Moreover each member countries need to provide the legal necessary measures to guarantee the applicability and enforcement of the Treaty, which entered into force on March 6, 2002. The World Copyright Treaty had also impacted the U.S. copyright regulation by leading to the creation of the Digital Millennium Copyright Act (DMCA) passes on October 12, 1998 by an unanimous vote in the United State Senate and signed into law by President Bill Clinton two weeks later. The DMCA establishes a new form of liability to anyone who attempts to bypass technological measure restricting the use of protected works. Technological measures protecting copyrighted works are commonly known as digital rights management or DRM. Some will see in the DRM a solution to todays copyright issues and could reasonably argue that if the music and movie industries that suffered considerably from the digital revolution, are also partially responsible since technological solutions exist and that they could have been developed earlier and more effectively. Even if such protections are never infallible, investing more and more into that direction could have helped tremendously the piracy trend in the recent years. Consequently, we could think that the responsibility regarding piracy in general is not only due to the imperfection of copyright laws but also to the lack of reactivity of the distribution channel for music, movies or any content affected by the digital revolution. Nevertheless, improving the legal system is still another aspect that shouldnt be overlooked in order to optimize the interest related to this debate. Thinking that Internet and the Digital age have killed the effectiveness of copyrights law by arguing that piracy became totally uncontrollable seems to be not totally justified. In fact piracy is not a new issue, people who were recording radio, TV shows or movies with the intent to sell theses or keep them for their personal use have always existed. The reality is that

controlling such behaviors was much more complicated before than today. At that time, back in the 80s, recording a movie on your videocassette was a totally anonymous act and ultimately, controlling the illegal resell of such content was greatly challenging and costly. The digital world and Internet brought with them the fact that every action made on the network leave personal information behind, information that could serve as proof in our legal framework to enforce illegals acts. Therefor, enforcing laws against people who infringe the current system should be easier than before. Obviously, easier doesnt mean easy especially due to the importance in size of illegal acts that should be prosecute. But is it the copyrights system that pushes such people to infringe the law or might it be to the lack of fair offer and pricing that developed piracy in such proportion? Fairness is strategic to this debate because the copyright system does not intend to offer the most effective solution from an economical standpoint but try to achieve fairness by balancing the general public interest and the private interest of authors. It is with this idea that the doctrine of fair use has been trying to establish the limit of the exclusive right of the holders by defining what could be considered as a legal and fair use. The section 107 of the Copyright Act defines the different purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also establishes four factors to take into consideration in deciding if a particular use is fair or not. 1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for, or value of, the copyrighted work Nevertheless, as we can observe these guidelines are very vague and it is

ultimately to the court to decide on a case-by-case basis what is considered a fair use or not. The fourth element is usually considered the most important elements in the court decision-making. The digital age and the Internet revolution have been the source of a need of clarification regarding the fair use doctrine. As an example, the innovation that constituted the videocassette recorders invented by Sony Corporation had led the U.S. Supreme Court to clarify the legality of fair use. In this case between Sony and Universal Studio, Universal studio claimed that the use of videocassette recorder to create copies of television broadcast would represent a deprivation of advertising and other incomes and that consequently, the import and production of such devices should be forbid since they lead to copyright infringement. The U.S. Supreme Court explained that this practice known as time shifting is considered a fair use. The Court motivated its decision arguing that no substantial economic consequence has been demonstrated to the broadcasting industry since the overall revenue had not diminished. In addition, the Court maintained that the sale of videocassette recorder did not defined contributory infringement even though the potentiality of illegal uses that could be made to the disadvantage of the copyright owner exists. On the contrary in the particularly famous case between A&M Records, Inc and Napster, Inc. the court held liable Napster for contributory and vicarious copyright infringement since the Napster freeware was helping people to find and get music protected under copyright laws. Copyright laws have been also criticized for deeply restricting selfexpression and killing culture in some ways. Did the complexity and the scope of copyrights have affected the need of the society to express and create new form of expression or culture in general? In our point of view, the last decade has been a demonstration that the complex legal system did not tighten up self-expression. In fact, new forms of expression created by the digital revolution have emerged and flourished greatly through blogging or platforms as Flick, Facebook or even MySpace. Ultimately little or no

obstructions have existed from the copyright system to limit self-expression. In addition, copyrights still promote better content that the one created from collaborated and uncompensated works. For example, Professor Justin Hughes has found that even on YouTube the top three most watched YouTube channels are from the content industry and the majority of the ten most watched videos are professionally produced or comedy video. Moreover, a Newsweek analysis demonstrates that Hulu the web platform providing content for Fox and NBC was supplanting YouTube, showing in some way that quality content produced professionally are still far more attractive that amateur production. In the end, the only judge is the society and it seems that the general public knows what is quality or not. All of these elements tend to illustrate that even if the copyright system is complex and could be improved; it is still providing the mean to its historical and fundamental goal. Conclusion Going back to the fundamental question meaning can copyright survive to the digital age? In my opinion, it can. The imperfections of the system are inherent to any system that tries to achieve subjective value such as fairness in this debate. Fairness is obviously not an objective parameter that cannot be quantified or measured, leading automatically to passionate debate between the opposing interests found in this battle. Evidently the rises of Internet and the digital age have both disrupted the subjective equilibrium that was in place. However as we could discover during this research, the judicial system as long as the international community have found ways to adapt to this revolution as they did for any technological evolutions. Surely, the unique specificity of the digital age made this adaptation more cumbersome, but does it means that the copyright system is dead and cannot evolve? Obviously, the problematic that the copyright is trying to solve is challenging but clearly not dead. Again, this challenge is clearly stated in the United States Constitution in the article 1 section 8, which gives to the

Congress the means to promote arts and science to the society by securing certain rights to their authors. Consequently, the need of regulations or means to achieve this constitutional goal is not dead and should always survive. Are copyrights laws the most effective or fairest system to solve this need? Since the question is subjective, no right or wrong answers should exist. However, if you think that copyright laws are in general beneficial to the society and to the industries that are affected by them, it seems clear to me that ways of improving the overall system exist. Better legislative solutions could be implemented. Additionally improving the educational system of new generations, or the Digital Nave as cited by John Palfrey, could be a way to optimize the effectiveness of our current legal system. Ultimately, in my point of view, the industries that have been affected by this new era have their part of responsibility for what happened in term of piracy. I think no one argues that the artists do need compensations and incentives for their time spend to create, but the idea is to find the right compensation. When the MP3 emerged, the music industry could have anticipated and implemented a fair pricing strategy to counteract the piracy trend. Personally, as many others, the rise of the digital age brought the idea that digital contents should be cheaper since the lack of tangible assets as well as the economy made in regards of infrastructure, logistics, employees, should be found ultimately in the price to the end user. Therefore, I think it is a lack of fair pricing that might have pushed so many to illegals conducts. However, could we think that a better system could be developed in reponse to these challenges? The French idea of global licensing is spreading around the world but at that time, it is only a concept and no one really knows how to establish clearly this idea. Many options should exist to adapt to the digital revolution, but at the end finding the fairest one will be always the subject of intense debate

1) See Lorenza Muoz and Jon Healy, Pirated Movies Flourish Despite Security Measures, Los Angeles Times, December 4, 2003; and Streaming Media, Wired, June 2004 (available at http:// wired.com/wired/archive/12.06/free). 20http://www.wipo.int/treaties/en/ip/wct/summary_wct.html

http://www.copyright.gov/fls/fl102.html http://www.wipo.int/treaties/en/ip/wct/summary_wct.html http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act http://en.wikipedia.org/wiki/Fair_use