The Electronic Labyrinth

Copyright and Hypertext

Intellectual property rights are currently enforced in two separate categories: trademark and copyright. Trademark protects names or graphic symbols associated with a product or manufacturer. Copyright protects the expression of intellectual labour itself, though not the ideas contained therein. Though specific laws vary by country, it is generally acknowledged that a work is protected upon creation. To clarify ownership, a statement such as "Copyright 1993 Jane Doe" is usually affixed to the work. Registration with the Copyright Office is possible, but not required. Its only function is to act as court evidence in case of a contest.

One cannot copyright mere facts, though a collection of facts (such as a telephone directory) may be protected if it is judged that sufficient effort went into its production. Copyrighted works may not be used without the copyright holder's permission, with some exceptions. The primary case is "fair use," which allows relatively small passages to be used for scholarship or research (including teaching, reporting, and criticism). The copyright holder is not necessarily the author or creator of the work, since copyright ownership may be transferred; in some cases (eg. work for hire) this may be considered to have occurred automatically.

Haynes discusses the application of intellectual property to electronic hypertext in some detail, noting that there is no explicit precedent in American legislation. He deals primarily with Nelson's concept of transclusion, which does away with the direct copying of the original linked work. Unfortunately, for the foreseeable future, such technology will be unavailable. Works will have to be copied to be put into another's hypertext. Such products can be considered as anthologies, and treated under copyright law in the same way that collections on paper are.

Nelson's Xanadu system requires that the author sign an agreement, licensing their work for use on the system. They then receive payment automatically when their work is linked by another. Nelson went so far as to publish a sample agreement in Literary Machines (5/19-21). This would likely be judged to be a fair and reasonable arrangement, on par with other licensing agreements.

Samuelson and Gleshko review six characteristics of digital works which might impact copyright law:

The authors note that, though Nelson was thorough in his attempt to make Xanadu correspond with current copyright law, it differs in several respects:

They then go on to successfully question these changes in light of the likely behaviour of reader and author.

Landow argues (in Hypertext: Convergence of Contemporary Critical Theory and Technology) in support of some form of electronic polling (similar to that used in the music industry) to ensure authors get royalties. This is unusual in light of his concern for marginalization and canonization. It is a well-known effect of polling methods that non-canonical artists are ignored in favour of the very popular. However, if this polling was made automatic and complete, it would be functionally equivalent to the Xanadu system.

© 1993-2000 Christopher Keep, Tim McLaughlin, Robin Parmar.
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