In the words of Prof. Randall Davis from the Massachusetts Institute of Technology (MIT), "The point is not to ride roughshod over intellectual property rights but to find new ways to respect them, ways that are consonant with the world we now live in".
The history of Intellectual Property Law, mainly in the 20th century, represents the legal reactions against the technological developments affecting communication. Indeed, at every technological change, (in the past, the advent of photography, sound recording and motion pictures) nations have responded by amending the existing law. The recent changes made in the media operating now in the digital environment (new media, multimedia, personal computer) affect deeply the Intellectual Property Law and its operational regime. Coupled with the mass communication brought about by the internet technology, digital technology challenges the traditional application of Intellectual Property rights. These challenges are more advanced and sophisticated and accordingly more difficult to meet. Computer programs, digital databases, multimedia products, electronic music and artistic creations made through computers, international digital internets and information highways bring about new legal and complex, multi-dimensional problems shaking strongly the traditional and theoretical structure and the operation of the intellectual property.
Indeed, the creation and exploitation of works in the digital environment changed radically. The reproduction and transmission of saved material with the digital method is now unlimited, it is carried out cost-less and fast, with the absolute accuracy and without traces. It is usually hard to see any differences between the original and the copy. Because of the increased ability to save, transmit and "compress" the electronic material in an information medium, the offer of digitalized works is now unlimited. These developments in combination with the revolution made in the field of telecommunications, rapidly increased reproduction. The distinction between the one who offer her work for exploitation/consumption and the "consumer" are gradually lifted and the concept private use in the digital environment looses its meaning. The so called information highways, mainly the international and open internets, facilitate the development of the piracy of intellectual goods which is already at high level, while the national limits of sovereignty almost loose their sense in this global framework of cyberspace. The digitalization, multimedia and digital interaction with the user, jeopardize the traditional categories of intellectual property and the financial and moral powers of the creator. The technical means of protection and electronic contracting threaten in the long run the viability of the intellectual property.
As a result of the new digital environment, the mass usage and transmission of works of intellectual property through the new means of digital communication and transmission reinforce the tendency to commercialize the intellectual property in the new digital environment of satellite and cable diffusion of audiovisual works and "electronic books".
The invasion of the "impersonal" technological products in the intellectual property law empowers the tendency to "impersonalize" the work. The attenuation of the protection provided towards the personality ("Intellectual property law without creator") removes the already autonomous sector of the intellectual property law from the framework of the civil law and place it – even if it seams heretical – into a bipolar stage: protection of the creator – protection of the enterprise exploiting the work, protection of the creator's personality – protection of the investments. Obviously, it seems that, the creator and the creativity are less important than the work and the investment.
The importance of the collecting societies in the digital environment of the satellite and cable television and fast spreading of the multimedia works rises rapidly. The compulsory assignment to such collecting societies of the management of copyrights and related rights is inevitable in our days, because the creator faces de facto the dilemma to choose between the absence of protection /remuneration and the protection /remuneration through collecting societies.
The digitalized copies and the internet, in contrast with the printed not digitalized work, corrode the right of paternity and originality of the work. In the digital environment, the concepts of original and copy are abolished and the need to increase the protection provided towards the creator and the holders of related rights is more imperative than in the past. The digital sound and image processing, threatens the integrity right of the creator as it can alter or amend the "original" work. The limits between the material and immaterial exploitation of the work are confused in the digital environment with result many limitations on the intellectual property right to lose their fair legalization.
A division is caused between the classic and modern works/creations resulting into unforeseen yet theoretical consequences for its consistency and effects on the meaning of originality. The legislator is obliged to deal with not only the classical cultural goods and the oppositions between the well known works characterized by "the particular artistic dimension" and the anonymous works ( daily works of mainly dependent creators), but also the complex technological goods.
On one hand, the digital technology renders possible the mass promotion of works using the uncontrolled digital reproduction, processing and transmission of such works and on the other hand it facilitates the creation of new works and the future surveillance of their usage. The process of digital copying is not only an act of promotion but also part of the productive and creative process itself. And vice versa: The measures against the "piracy" will inevitably constrain the creation of new works.
The intellectual property law as a system tends to operate as the factor regulating the commerce of cultural goods, as the driving motor and the mean for depreciating the investments of the "cultural industry" and the mean of distributing to the creators the profits resulting from the mass or single exploitation of their works.
The continental law of intellectual property – in theory at least – follows the droit d' auteur which as a theoretical concept, regardless of its success in practice, has as main objective the protection of the creator. The open and crucial question though is: Will the character of the intellectual property being the law protecting the creator be maintained or will it be gradually changed into a law protecting the works / creations and therefore protecting those that market such works/creations? The contemporary intellectual property law seams to still range between the protection of the creator taken as the weaker party and the protection of the investments.
The adaptation of the intellectual property law to fit the digital environment constitutes a mission to be executed by the national, community and international legislator and also the jurisprudence.
The following law/technological mechanisms are offered/proposed:
- to adjust the legislation and the legal practice related to the intellectual property law to the new technological data. The natural flexibility of several terms (i.e reproduction), the revision of the limitations of the property right along with the "open" meaning of the work and the acceptance of a general property right establish a sufficient theoretical foundation able to deal with all the problems arising from the adaptation of a sector of the law which is strongly connected with the typography to a sector that must face all the problems caused by the digital society.
- to employ/introduce technological measures and digital technical systems or devices which will be capable of assigning a digital identity (digital footprint) to the work, to locate the work and also to provide exploitation license ( Rights Management Information, Electronic Licence Management), while other technical systems will prevent the digital copying.
- To protect legally such technical systems against the risk of copying and breaking them.
- To solve the arising problems by signing standard contracts with the users at a conventional level and also by establishing collective licence agreements (blanket licenses) between particular groups of users and creators in order to increase the social protection provided towards the creators.
- To use a new kind of contract/agreement, namely an "agreement to introduce and disseminate a work through the internet" which will provide that the creator authorises the storage of his work in the RAM of the computer of a database for further exploitation by the users in consideration of a fixed amount.
As a closing remark I will say that, the axes of the continental law of intellectual property, that is the work, the concept of the creator, the protection of the financial and moral powers, the strict numeration of the limitations posed on the intellectual property and the limitations of the contractual freedom in favor of the creator, may be maintained in the new digital environment of communication. This ascertainment can apply accordingly for the related rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
