Emanuela Reale is a researcher at the National Research Council of Institute for Studies on Research and Scientific Documentation in Italy.
Intellectual Property Rights
The fundamental purpose of intellectual property rights is to encourage learning, by giving copyright owners limited rights and creating a public domain for ideas, information and knowledge. However culture has an economic value: as the 1995 European Green Paper on Copyright and Neighboring Rights in the information Society (http://europa.eu.int/comm/dg15/) reads: “the income the rightholders derive from the use of their work helps to encourage the development of intellectual and artistic output of the Community.”
Information technologies offer new possibilities for the dissemination and use of culture products, since all kind of works (literary works, films, videotapes, records, databases, software and so on) can be available in non-material form and can be transferred using networks throughout the world. This is the so- called “cultural dimension” of the information society.
The advent of new technologies is a real challenge for copyright regulation. Scholars now have to address unprecedented problems, due largely to the fact that new technologies generate new works of the human intellect deserving of protection. Furthermore, technological innovation often facilitates the reproduction and diffusion of works, thus erasing once and for all the traditional problems of the physical bulk of the work, and the geographical distance it has to cover to be divulged more widely. Suffice it to think, in this respect, of the technologies of satellite television, electronic publishing, software, online databases, library automation and all the various networked services which are rapidly becoming widespread.
New technologies mercilessly lay bare the following contradiction. On the one hand, an author has an interest in obtaining an economic return on his work; on the other, certain intellectual property are thanks precisely to the possibilities offered by the technologies themselves; increasingly becoming ‘intangible goods’, directed at an international public, and divulged, hence used, without any control. This contradiction is especially glaring for products of scientific research.
For people dealing with information and documentation, the circulation of ideas and works is a crucial aspect for their job. In this respect, information professionals have a different attitude towards new technologies: they need to encourage a great diffusion of information, but they consider still necessary to guarantee the integrity of the networked works.
For scientists, the circulation of ideas and works is fundamental too. The reputation they gain as a result is often their only reward for their work, since the relative right of economic exploitation is normally transferred to a different subject (specialized publishers, entrepreneurs, etc.). In this respect, scientists have a different attitude towards new technologies. It is still necessary, however, for the paternity of their works to be recognize (moral right), a fact that risks being jeopardized by the diffusion of the information contained therein – through networked services, for example.
There is also, finally, a political conflict between the need to provide economic incentives to firms which produce innovation and the need to encourage rapid diffusion of the knowledge it incorporates.
One of the most disruptive innovations in recent years has been the diffusion of networked information. This new technology has obviously had an important effect on copyright. In view of the ready availability of huge masses of information from every part of the world and the opportunity of networking work in our own turn, it is difficult, at all events, to guarantee the protection of an author’s work, without hindering the circulation of information. With regard to the use of networked services, the main priority is obviously to repress abuses. There can be no doubt, in this respect, that the problem with copyright law is that it is unable to distinguish between abuse and ordinary use. In fact, a great many of the routine actions performed by users as they browse through a network such as the Internet potentially constitute abuses in so far as they infringe copyright legislation. One example is the possibility of reproducing whole documents or parts thereof, then using them for one’s own purposes and re-networking them in their original form or with suitable alterations and/or fusions with other texts or documents through online services (e-mail, for example). On the other hand, there are routines (largely of use and reproduction) which may appear illegitimate, but are in actual fact to be regarded as fair use, especially if adopted for teaching and training purposes.
Efforts are now being made to regulate the question. The relevant principles and rules often derive from the sentences of courts called to settle specific controversies. There can be no doubt that the problem deserves to be addressed internationally. It needs to be examined thoroughly not only by jurists, but also by all those enjoying copyright protection, including scientists.
A central actor in the legislation building process at the international level is the European Union. Furthermore, the increasing importance of intellectual property protection for the economies has meant that most European countries are members of the fundamental intellectual property conventions, namely the Berne Conventions for the artistic and Literary Works, the Universal Copyright Convention of Geneva and the Rome Convention for the Protection of Performers, Producers o Phonograms and Broadcasting Organizations. In 1988, the European Commission produced a Green Paper on copyright and the challenge of technology. The analysis carried out by the EU Commission underlined the necessity of a more prominent action of the European Union in the copyright sector. This analysis was followed by the proposals of various directives on Copyright law under the E.C. Treaty.
Actually the main EU Directives concern the harmonization of the term of protection copyright and certain related rights (Directive 93/98), the rental and lending rights (Directive 92/100), the harmonization of measures relating to satellite and broadcasting (Directive 93/83), the software protection (Directive 91/250), the database protection (94/46/EC). All these directives form a set of rules aimed to harmonize the national European legislations. The software directive and the database directive introduced great challenges for the inclusion of new products and new rights (see for instance the sui generis right) within the copyright legislation. Last but not least, a new draft EU Directive is actually under the examen of the Commission of the European Communities on the harmonization of certain aspects of copyright and related rights in the Information Society.
This proposal of directive would have a crucial importance in objective and scope: it would complement the existing legal framework for what concern the digital products and services, harmonizing the right of reproduction, the communication to the public right, the distribution right and the legal protection for anti-copying systems and information of management risks. In this sense the proposal can be considered as a very important step for the creation of a cyberlaw. A first draft of the proposal was presented on December 1997; in the subsequent examen, it was amended and the new version is now under the examen of the EU Commission.
Looking in outline at the proposal contents, we can underline the following main points:
The proposal would grant authors, performers, recording and film producers and broadcasting organizations an exclusive right to authorize or prohibit reproductions, covering all relevant acts of direct or indirect reproduction, temporary or permanent, whether online or offline, in material or immaterial form. The proposal provide an obligatory exception for certain technical acts of reproduction linked to the used technology, which have no separate economic significance of their own (i.e., browsing, cache copies, etc.). Other exceptions may be introduced by Member Countries on a voluntary basis for reprography, private copying and “specific acts of reproduction made by public libraries, museums and other establishments accessible to the public, which are not for direct or indirect economic or commercial advantage.” The amended proposal modified the compulsory exception in a few details among which the circumstance that the temporary acts of reproduction must be an essential part of the technological process. In this acts those which facilitate effective functioning of transmission systems are also included. Some of the other exceptions to the reproduction right and the communication right (see below) were submitted to the condition that the rightholders receive a fair compensation, modifying in such a way the existing principles in most copyright legislation of European countries. In particular we have to underline the need for fair compensation even “for the sole purpose of illustration for teaching or scientific research.” It means that, for instance, if the contract do not settle different, an author of literary works, should pay a fair compensation to the publisher to use his books or papers for teaching purposes. Special disciplines are also provided for musical works, audio visual or audio-visual analogue recording media, audio visual or audio-visual digital recording media. Exceptions without fair compensation are allowed for archiving or conservation purposes made by establishments such as libraries, archives, educational or cultural institutions; for uses aimed to the benefit of people with a disability, for reporting, criticism or reviewing, for administrative or judicial procedure
Communication to the Public Right
The proposal recognize the author’s exclusive right to authorize or prohibit any communication to the public of original or copies of their works by wire or wireless means. This provision covers also the on-line demand services but it is distinct from and complementary to the right applicable to broadcasts and do not cover private communications.
The proposal eliminated legal differences among European Countries providing authors with the exclusive right to control any form of distribution to the public by sale or otherwise of the original or tangible copies of their works. This provision does not apply to services (on-line services included). The amended version states that where the Member States may provide for an exception to the right of reproduction, they may provide similarly for an exception to the right of distribution to the extent justified by the purpose of the authorized act of reproduction.
Legal and Technical Protection
The proposal include some provisions against any activities which would enable or facilitate the circumvention without authorization of technological measures aimed to protect any copyright or related rights.
Apart from the compulsory exception just mentioned (see above), the draft directive settled a restrict number of limitations (non commercial use for the benefit of disabled persons, use for research and teaching purposes, reporting of current events, criticism or review use for public security purposes or performance of an administrative or judicial procedure) designed as exhaustive (Member Countries would not be allowed to apply any exception other than those explicitly listed in the Directive) but facultative (Member states may or not recognize these exceptions in their national legislations). The permitted exceptions must also be limited on the basis of the so called “three-step-test” of the WIPO Treaties (http://www.wipo.org/ or http://www.ompi.org/), i.e., they shall only be applied to certain specific cases and shall not be interpreted in such a way as to allow their application to be used in a manner which unreasonably prejudices the rightholders’ legitimate interests or conflicts with the normal exploitation of their works or other subject matter.
All the described points were of great concerns for librarians and information professionals for their capability to hinder their everyday activities. These worries are presenting before the European Bodies through the lobby action of the European Bureau of Libraries and Documentation Association (EBLIDA) and the International Federation of Library Associations (IFLA).
The main problems were about the online services so essential in the multimedia library, the copying for private use, always to be submitted to a specific authorization, the number and types and characteristics of exceptions, and the existing possibility for the rightholder to inhibit the access to information through the adoption of technical measures infringing existing exceptions, while to the contrary, it is always impossible for librarians and information professionals to circumvent technical protections in any manner or form.
All the listed points are crucial also for scholars, whose activities often are carried out using libraries services and on-line services too. Furthermore information, circulation and access are absolutely indispensable working tools, capable of radically changing scholars’ reciprocal communication, collaboration and hence the end products of their work. A legislation hindering the fair use zone represent a threat for the creation of knowledge.
The use of new technologies thus raises a variety of new problems with regards to copyright regulation.
It is clearly necessary to increase and support the harmonization of international protection by extending the scope of application of multilateral conventions and their power of control. What is more firmly stressed is that, in this sector more than others, the drawing up of legislative policies and regulations must adhere to a global vision of the problems that need to be solved; it is necessary, in other words, to transcend a strictly commercial, national perspective of the protection that is to be adopted.
In this work de iure condendo, apparently irreconcilable elements have to be reconciled. The economic interests of copyright holder should be combined with the cultural interests bound up in the need to supply the knowledge produced in real time and as broadly as possible, especially to subjects who intend to use it for educational and research purposes. However, concern for these special interests should not distract us from the pursuit of reference criteria for the formulation on the protected good concept. It is worth remembering, that due to the changes to which it is subject as a result of technological progress, legislation of the sector would inevitably be extremely elastic and should maintain a fair use space for the free circulation of information and knowledge.