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Vincent Porter

The Issues for the GII
part 2

In designing an IPR regime for the GII, the international community has to address two major challenges simultaneously. The first is conceptual, the second is administrative. At the heart of the intellectual challenge is the digital nature of the signals transmitted. This means that signals can exist in atom-sized packets, they can be transformed electronically, they can be copied without loss of quality and they, or the copies, can travel with the speed of light.

The ease with which a copy of a digital work can be copied, or transformed and the speed with which copies of digital works can be moved around the globe also poses administrative challenges. If a consumer acquires a copy of a work, is there any guarantee that it is authentic? Furthermore, if a deformed copy was supplied, or if an illegal copy was made, in which jurisdiction did the offence take place, and in which jurisdiction must any suit for infringement be brought? Finally, even if the international community can reach an agreement as to the appropriate jurisdiction in which an aggrieved consumer should bring a suit for the supply of deformed copies, or an aggrieved right holder should sue for illegal copying, the ease and speed with which works and their copies can travel between jurisdictions will mean that the minimum standards of protection become the de facto maximum standards of protection.

Paradoxically however, I believe that if the international community addresses these intellectual challenges with foresight and imagination they can be overcome. But in order to do so, old thinking and old structures will have to be replaced by new structures. Essentially there are five key issues. They are:

(a) the international dimension of the GII;
(b) the subject matter of protection;
(c) the appropriate right for protected works;
(d) the authenticity of the work; and
(e) the problem of enforcement.

One of the potentially most exciting aspects of the International Superhighway is its international reach. But it is precisely this international reach that may cause problems for the protection of intellectual property rights. If the international community persists with the traditional approach of setting down minimum standards of protection for national laws, there is a grave danger that a two tier system will be established for the GII. On the one hand, there will be an international structure, like the present internet, where there will effectively be no protection of IPRs. On the other hand, there will be a series of national superhighways down which protected works may travel, protected by the copyright law of the country concerned. Even if international links between national superhighways were established by bilateral treaties, it would still be necessary to decide in which jurisdiction any alleged offence occurred. If the European Union were to agree to such an approach, the opportunity of constructing a genuine European superhighway would be lost.

An alternative approach, would be to establish a new international law which protected all intellectual property rights on the GII. All member states would then compel their telecommunication operators to require all subscribers to obey these laws. The same law would then apply over all the GII. I submit that the new law should be distinct from, but related to the provisions set out in the Berne and the Rome Conventions. Furthermore, just as the protection afforded by the Rome Convention leaves intact and in way affects the protection afforded to literary and artistic works, so the new law should not affect the protection afforded by either the Berne or the Rome Conventions. I shall turn first to the protection afforded by these conventions.

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