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 What is wrong with Copyright?

 by Dr. Silke von LEWINSKI, Max-Planck-Institute for Intellectual Property, Munich; Adjunct Professor, Franklin Pierce Law Center, Concord, N.H., USA.      

Copyright has become controversial, in particular from the mid-90s on. In particular, it has become very popular and, in academic circles, mainstream opinion that copyright protection would be too far reaching, would hinder free access to information and should be more restricted or, as some might wish, even be abolished. Terms such as "copywrong" or "copyleft" have been used by enthusiastic opponents of copyright. Many academics especially in the USA even seem allergic to the notion of "intellectual property"; it is very fashionable to deny the nature (at least in part) of authors' rights as their property; in many countries, such as in Germany, authors' rights are even protected as a fundamental right under the constitution (Article 14 Grundgesetz/German Constitution on the right of property in general). In any case, for many of those who aggressively fight and speak against copyright protection, more knowledge-based, differentiated analyses would lead to a more fruitful discussion. This contribution shall present only a small selection of observations on this topic, as a basis for further discussion.

Firstly, it may be interesting to search for the roots of the new, fashionable movement against copyright protection: Is it based on an inappropriate increase of protection or on other grounds? A number of factors seem to play a role. The roots of this movement are in the USA where, for the first time, major resistance against the planned WIPO Treaty on the sui generis-protection of databases arose in 1996; these thoughts only arrived later in Europe and may have been a welcome opportunity for a number of academics to easily gain a profile by being provocative and seemingly progressive. This movement may also have its roots in the ideological origins of the initial internet community who dreamed of a non-regulated, open and free space; this initial internet enthusiasm was again born in the USA, while, when the internet later became a fact in Europe, it was already seen as a simple tool for communication including commercial activities - here, nobody (at least nobody acquainted with law) seriously assumed that such network would represent a space without legal rules, or without copyright protection.

Another reason for the genesis of the movement against copyright protection my lie in the nature of the internet itself with its factual opportunities for the consumer to easily access anything, including copyright protected works, and this seemingly without any possible control by the right owners. From the beginning on, it was possible for anyone to upload, and also to access and download other persons' works from the internet - whether legally or illegally. This may have created the impression of consumers to have a right to use and exploit such works; after they have benefited from such a factual situation, it is all the more difficult to explain them that authors' works are protected also in the internet. This is maybe even more difficult where users in chat fora confirm each others in their views and thereby feel sufficiently justified in their claims, without regard to the legal reality.

Apart from these reasons, which do not justify by themselves a further restriction or even the abolishment of copyright protection, there may be some instances where copyright protection may be criticised as too far reaching. However, in those cases one has to differentiate, as is shown by the few following observations. Where it is claimed that too many objects or products of the mind are protected and thereby taken out of the public domain, this reproach may be justified under the anglo-american copyright system rather than under the continental European droit d'auteur-system. Under the latter system, a certain degree of originality or creativity in form of a concrete expression is required for a work to be protected; for example, the Supreme Court of Germany recently has denied protection to tv-formats. Under the anglo-american system, the required level of originality is much lower, and in some countries, such as Australia, the mere "sweat of the brow" is sufficient for protection, so that many products are protected in those countries while they would not be considered creative enough to deserve copyright protection under the continental European system.

One also has to know that the scope of protection, once protection is recognised for a particular work, varies with the degree of creativity: a low level of creativity means a low scope of protection, so that third persons may create works similar to an existing one without infringing it. Also, where those who are hostile to copyright protection claim that everybody should be allowed to make and exploit adaptations of existing works without the authorisation of the author, and that this would promote creativity, an appropriate answer would be as follows : creativity is encouraged firstly by expressing respect for the existing creations by means of asking for authorisation. Secondly, the need to ask for authorisation in respect of adaptations may itself promote creativity, even where the authorisation is not granted: the interested person then has to create an independent work himself, which may be much more difficult but more creative than making a simple variation of another person's existing work. It is evident that the addition of ever more cover versions of the same song or variations of the same movie will overall reduce the creativity and cultural diversity and decrease the consumers' interest. Accordingly, en exclusive adaptation right enhances creativity rather than hampering it. Those who would like to make adaptations without the author's authorisation and claim that their creativity is hampered by author's rights should admit in the first place that they would rather highly benefit financially or artistically from another person's creativity, and this without being comparatively creative.

It is often claimed that the rights granted to authors are ever more extended. At first sight, and under those laws (mainly under the anglo-american system) which grant to authors only a limited list of rights, this may be true, because this list of rights will be extended with any important newly emerging kind of use. However, in countries (mostly of the continental European system) which recognise under their laws that authors are protected in respect of any important kind of use in tangible and non-tangible form, all important kinds of uses are automatically covered as a principle, including those uses which become possible only after further technical development. Even if many legislators in these countries amend their laws so as to explicitly list a new kind of use as being covered by the general principle, this is usually only of a declaratory nature and constitutes an adaptation to the reality of increased possibilities of use. In other words, such declaratory addition of a right signifies only the confirmation of the general principle that the author shall benefit from all major uses of his work, rather than an extension of rights.

It also has been claimed that authors should no longer benefit from exclusive rights (rights to authorise or prohibit uses) but only from statutory remuneration rights, because they would be interested only in earning money from their works. This may be true for some few authors who may not care about how, when, by whom and in which way their works are exploited and who are interested only in remuneration. Nevertheless, mere remuneration rights certainly would take away the very nature and essence of authors' rights, i.e. the right to control the exploitation of the work rather than to try to obtain the claimed remuneration. Although statutory remuneration rights may be the best solution for some kinds of uses, such as private reproduction, it seems short-sighted to claim a protection system based on remuneration rights only rather than exclusive rights. Exclusive rights allow at least to stop ongoing illegal use, while remuneration rights are much weaker: where the remuneration is not equitable or is not even paid at all, it means that no protection in fact exists at all. This is illustrated by the fact that those who have to pay remuneration for private use (such as producers of blank CD's and computer memories) more and more tend to reject claims of remuneration in particular as regards private reproduction by means of new technical devices for equipment. Although the laws usually are technically neutral and broad enough to cover also such new devises and equipment, the hardware industry concerned has systematically tried to avoid the relevant payments, and court proceedings take a long time and are expensive. While collecting societies who administer the remuneration for private reproduction may still afford such court proceedings for their right owners, individual right owners will often not be ready and able to enforce their remuneration claims before the courts, while the exploitation could legally continue where there is no exclusive right.

In the context of rights, one also has to acknowledge that limitations of rights since ever have been provided in order to serve specific purposes such as education, research and news reporting. Limitations are constantly adapted to new uses covered by authors' rights and permit such uses which are considered as important for specific public policy reasons.

A particular problem is the employment of technical protection measures and the legal protection against their circumvention and related acts. Under many laws, such legal protection indeed goes beyond the scope of copyright protection under the law, where it sanctions also the circumvention of technical measures if the user simply aims at using a work as permitted by law, such as for educational or private purposes. The situation is similar where individual contracts can override this balance which has been created by the law between the rights of the authors in their works on the one hand and the permitted uses for users on the other hand. The ideal solution has not yet been found in this area, and more time may be needed to arrive at balanced solutions.

One of the main problems in the context of copyright protection is however often overlooked in debates on too strong protection: it is the relationship between individual authors and performers on the one hand and, on the other hand, the media enterprises such as phonogram producers, film producers, broadcasting organisations, publishers and others who exploit their works. The typical imbalance of negotiation power usually leads to the fact that authors and performers often cannot or not sufficiently benefit from their rights which they have to sign away without receiving an equitable, or any, remuneration, and this often under inappropriate terms and conditions. While employed authors who may benefit from collective negotiations and agreements under labour law may be in a better situation, freelancers usually are in fact dependant on the media companies. If they depend on the possibility of further publication or other exploitation of their future works, they may not afford to initiate court proceedings against their contractual partners in order to claim full remuneration or, at the outset, they may not even be able to negotiate equitable terms and conditions. This is true especially in the current situation of accelerated media concentration. Although at least under continental European law, legal provisions limiting the freedom of contract try in order to strengthen the contractual position of individual authors and performers, this may often not be sufficient to effectively protect the author or performer. In respect of specific rights, solutions to this problem have been found (Article 4 EC Rental Rights Directive; § 20 (b) German Copyright Act) in the law of some countries; however, the legislator is often predominantly influenced by big media conglomerates so that it is extremely difficult to get such rules adopted as laws. In other words, the strongest threats for a healthy copyright balance and cultural diversity arise from media concentration and a predominance of - mostly multinational - companies many of which are mainly interested in maximising benefits rather than enriching cultural diversity and therefore often do no longer invest in new, possibly less profitable but culturally enriching works.

The argument that copyright makes the rich only richer and that it therefore must be reduced in its scope is a criticism which nevertheless is not well thought through: in fact, it is not copyright protection in the first place, but such business behaviour that needs to be criticised. Individual authors need to be able to rely on authors' rights protection, often in order to gain a living, if at all they can afford to live only on authors' rights royalties. The distinctions made in this contribution may not be familiar to a broad user movement but have to be taken into account in order not to affect those who are the very source of creativity and - despite copyright protection - the most fragile "element" of the whole system, namely authors and performers.

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For further details, see "Silke von Lewinski, International Copyright over the last 50 Years - A Foreign Perspective, Journal of the Copyright Society of the USA" 2003, Vol. 50, pp. 581, in particular 597-604.

"Certain Legal Problems Related to the Making Available Literary and Artistic Works and Other Protected Subject Matter through Digital Networks" in e.Copyright Bulletin of UNESCO no. 1, Jan.-Mar. 2005, p. 1-16, Section Doctrine and Opinions :

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