Internet Law and Copyright Infringement – Where Does the Burden of Proof Lie?

The Internet is here to stay, of that we can all be sure. It is practically impossible to imagine our modern world without contact through the Internet, without the massive wealth of information available, without all the blogs and forums and chat rooms which have sprung up over the last two decades. Also here to stay is the constant discussion on what is acceptable in the Internet, on where national and international laws are enforceable and how they can be enforced, or who should be responsible, and this is especially relevant when it comes to copyright laws.

Copyright: the ownership of a work by a specific person or institution and the right to copy or disseminate, to sell or to give away. Copyright, and intellectual property, are topics much discussed and are also subjects which have caused many personal and judicial battles over the years. Copyright theft, the taking of another person’s work for personal gain or just for non-private use, has been a problem since long before the Internet. Goethe struggled with German booksellers – who were the original publishers of written and illustrative works in Germany before dedicated publishers took sway – as did Dickens, whose works, published in England, were copied in the United States without his permission, without him being paid for his efforts. Times have not changed in this respect, only the means by which copyright can be infringed, and the means by which works are stolen and re-used by others.

In most societies it is accepted that a person is innocent until proven guilty by a court of law. It rests upon the prosecutor to provide a case which convinces a judge and jury of the course of events leading to a crime, and to convince them that the person being prosecuted is the guilty party. In the Internet it is a completely different matter; there is no judge and jury as such, merely a collection of people and companies who have vested interests in their businesses, in their standing and good names. This lack of a judge and jury is, however, not a sign that the Internet, and the many companies and people directly involved with it, are above or beyond the law. Several countries have begun the task of revising laws designed for normal, everyday life to incorporate Internet transactions, international communications and the like. Copyright, and the methods with which a person asserts their rights, fall into this area.

In effect, the claim of copyright and the proving of ownership have not changed. When a copyright owner discovers his or her work elsewhere, taken and published without permission, it still remains for them to prove that the work is theirs and that the person, or site, reproducing does not have the necessary permissions or authority. This fact has not changed with the advent of the Internet, only the means of prove, the means of gaining a satisfactory outcome to a claim have changed.

Replacing the judge and jury in a claim for breach of copyright we now have the abuse and legal departments of Internet providers, those companies which rent or sell storage space to individuals upon which they can create a web presence. Where copyright infringement claims lodged against companies or individuals in foreign countries were once destined to be lost, through a lack of judicial recognition between one country and another, or the inability of a copyright holder to travel and press charges in each respective country, there is now a system in place which clears the way from claims to be made, judged and settled regardless of which country the claimant may live in, regardless of where the infringer may be. The Digital Millennium Copyright Act (DMCA) has been accepted by many countries as the means by which copyright matters concerning the Internet can be rectified quickly and with relative ease. Sadly not all countries accept this international law but, for those who do, it is a blessing for all copyright holders and remarkably simple to use. The complainant is required to contact the copyright infringer in the first instance. Should a claim for removal be unsuccessful at this level a formal complaint is lodged with the service provider (ISP) which, if they are a professional and aboveboard company, they will respond to. Responses take the form of contacting the site user, blocking the offending material right through to suspending the entire web site or account until the matter is rectified.

As in a national court of law, however, the burden of proof rests entirely on the complainant. It is up to the copyright holder to prove ownership and show that permission has not been given for dissemination. The person being accused of copyright theft remains innocent until such time as the prosecutor – the complainant or copyright holder or representative – can adequately show that the material in question falls under their copyright. Should this fail, in that the ISP being approached does not react, the copyright holder is then left with no other option but to go through a court of law. At the time of writing there is no international court which covers the Internet.