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Vincent Porter
copyright
WIPO


The Changing Balance of Interests
part 1

The laws protecting intellectual property rights (IPRs) will play a key role in shaping the economy of the information superhighway, or the Global Information Infrastructure (GII) as it is now called in international circles. Although the technologies themselves are protected by patent rights, it is the details of copyright law that will structure the market.

According to legal theory in the USA, copyright was granted to serve the welfare of the public by promoting the progress of science and the useful arts. But in continental Europe, on the other hand, the author's right was granted to protect the intrinsic human right of the individual author in works which he or she had created. In the final analysis however, the laws of copyright are not natural laws, but laws made by governments, at the national, the European and the international level. The same will hold true for the laws regulating traffic down the Information Superhighway.

In both legal philosophies, the law has traditionally balanced the interests of authors, investors and the public. But that balance is changing as the author's right tradition of civil law countries is merged with the copyright tradition of common law countries. Both at the international level and in the European Union, harmonisation has been achieved by raising the minimum levels of national protection and by limiting the rights of natural authors.

Today, legal persons are increasingly recognised as authors. Neighbouring rights are almost as extensively protected as authors rights; and copyright now protects computer software and electronic databases, neither of which are truly in the literary or artistic domain. In addition, the term of protection has been extended far beyond that necessary to encourage science or the useful arts; and many works which were in the public domain have now been brought back into the marketplace, by giving them, like Lazarus, a new lease of life.

In some countries, employers own the rights of their employees, while in others, investors can require authors to waive their moral rights. Elsewhere, the provisions in the Berne Convention which guarantee freedom of information and encourage learning are being restrictively interpreted. Finally, the TRIPS Agreement requires GATS signatory states to augment civil sanctions for breach of copyright with criminal penalties.

Within the European Union the situation is even more complicated. In intra-Community trade, the provisions of the Treaty of Rome take precedence over those of the multilateral conventions. Each Member State must therefore afford equal protection to nationals of all other Member States in the European Union and European Economic Area, although once a work has been offered for sale on the European market, the right of authorisation in other Member States is exhausted. This does not apply however, if the work is performed, broadcast or communicated to the public. Finally, the exercise of copyright within the Union may also constitute a breach of competition policy, such as the abuse of a dominant position.

As a result, the simple humanist certainties of the theory of the author's right have been twisted and deformed, almost beyond recognition; and the pragmatic policies of the original proponents of copyright have been highjacked by investors to afford themselves protection far beyond that necessary to promote the progress of science and the useful arts. The precedence given by the European Union to competition law, over the manner in which copyrights are exercised, may eliminate some of the most gross abuses by rights holders of their monopoly powers over protected works, but competition law is an insufficient guarantee of public welfare. As yet, there has been inadequate consideration at the European level of the impact of these changes on the public's right to receive information and ideas, which is guaranteed by the European Convention on Human Rights; or on the needs of educators. Furthermore, it is unlikely that when the new intellectual property regime is agreed for the GII, the whole world will accept the supremacy of European competition law. It will therefore be necessary to return to fundamental principles when designing the new regime. Unfortunately this will not be easy, as many of the rules are already in place.

 
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