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Ecrea3c Deligianni Elsa Paper

  1. 1. Elsa DELIYANNI Doctor in Law -Paris 2, Lawyer Ass. Professor Department of Journalism and Mass Communication, Aristotle University of Thessaloniki, Greece 44 Tsimiski str. 546 23 THESSALONIKI, GREECE e-mail: elsa@jour.auth.gr Intellectual property and communication in cyberspace (DRMs’, P2P, “creative commons” and the future of intellectual property) Throughout the modern era, intellectual property, i.e. the absolute right of the author to allow or prohibit any use and exploitation of his intellectual opus by any means and in any way, was considered to be the necessary complement to freedom of expression and communication1. Indeed, this system of protection of intellectual authorship was considered by the majority of legal academics to provide space for creative expression, free from any interventions by public or private authority, due to the financial independence it promises. At the same time, granting of exclusive exploitation rights is compatible with citizens’ rights to information and communication through the introduction of time restrictions and exceptions from monopolies (exceptions are related e.g. to reproduction for private purposes, use for informational, educational or research purposes etc.). Thus, since its emergence in the 18th century, the institution has operated as a motive for the production of intellectual works2, 3 and of ideas existing in these, and therefore as a means of cultural policy aiming at the strengthening of pluralism. It appears that the above balance has been recently disturbed. In the so-called “Information Society”, which will allegedly lead us to the “Knowledge Society”, a totally opposite view is gaining ground constantly, especially among internet users. According to this position, the absolute right of the author and, as a result, of the monopoly instituted by this right in favour of large ICT industry enterprises, raises an obstacle to the freedom of information and communication, an unjustified restriction to the citizens’ right to information4, which limits their potential for active participation in political and cultural events. In the name of absolute intellectual property rights granted to them by authors of intellectual property and recognized by national and supranational law, these enterprises attempt to control access to works, as 1 A. Lucas, Droit d’auteur et liberté d’expression dans la Société de l’Information, www, Ifj.org:/docs/Athènes1- %20A%20Lucas. Doc 2 . Ginsburg, A tale of two copyrights : Literary Property in Revolutionary France and America, Tulane Law Review, Vol. 64, No. 5, 1990, 993, 996, 998, 999, 1006.. 3 See, indicatively, G. Koumantos, Litterary property, (in Greek), 8 t h edition, Ant. Sakkoulas publishing, Athens 2002. 4 Ch Geiger, Droit d’auteur et droit du public à l’information, approche de droit comparé, Paris, Litec 2004. 1
  2. 2. well as their private reproduction in a digital environment, by infiltrating areas that were traditionally beyond the monopoly of intellectual property5. In the name of their fundamental rights as citizens (to information, communication and cultural diversity) but also of the freedom of equal and democratic participation in the promised “goods” of “Knowledge Society”, users are challenging the strengthening in the internet of the rights owned by monopoly enterprises of cultural and communications industry. They claim furthermore that modern intellectual property has as a sole aim the occupation of the new public domain currently under creation (cyberspace) by the above private financial interests and the respective exclusion of citizens6. It is therefore clear that intellectual property is going through a serious legitimization crisis, as a considerable part of the international society is refusing to comply with the content of its rules by challenging their democratic legitimisation7. Information and the right to it are reduced to a fundamental command of the Information Society, whereas freedom of communication is a fundamental democratic value and institution in interactive communication established through the internet and the new digital media8. This presentation aims at introducing the problem of this modern crisis in intellectual property. Following a brief presentation of the reason for conflict between the owners of intellectual property and users, and of the main arguments against the traditional institution (Ι) we will discuss (II) the alternative protection model of “creative commons” proposed by the “copyleft” movement and the question whether and to which extent “creative commons” licenses could replace the traditional system. Finally we will attempt to sketch out some basic principles and guidelines between the extreme position and counter-piracy strategies of the rightholders9 and the doubtful and self-delusional word of creative commons; these principles and guidelines should be necessarily included in the modern system of intellectual property protection. 5 Ch Geiger, op. cit. 6 L. Lessig, Free Culturre, 2004, http:// creative commons.org/licenses/by-nc/1.0 (“how big media uses technology and the law to lock down culture and control creativity”) . 7 Especially in the framework of the EU 8 Α. Lucas, op.cit . M. Vivant, Propriété intellectuelle et nouvelles technologies. A la recherche d’un nouveau paradigme.. 9 E. Deliyanni, Exceptions du droit d’auteur et droit à l’information dans le nouvel espace public numérique, ALAI Study Days on “Copyright and Freedom of expression”, 19-20 June 2006, Barcelona, under publication. E. Deliyanni Copyright and Communication in the Internet Era: legal framework and perspectives for P2P filesharing, (in Greek), DiMEE, Oct. 2007 (under publication). 2
  3. 3. Ι. Reasons for conflict between rightholders of intellectual property rights and internet users: legitimization crisis in intellectual property 1. Transformations of intellectual property in a digital environment10. a) Commercialisation of the institution. The inclusion of the rules of international commerce in the field of intellectual property and, generally, globalization, have led to the commercialization of the institution. This was the framework, in which the harmonization of the two different internationally applicable protection systems was initiated, i.e. of the continental (droit d’auteur) and of the common law (copyright) protection systems. However, during this process the principles of common law copyright11 prevailed, as expected, which had since its very beginning taken a purely commercial direction, having as its main axis12maximum possible profit arising from the exploitation of intellectual works. In contrast to that, the continental system promotes (and has always promoted) the protection of the author of intellectual property as a natural person. Nevertheless, common law copyright has a different structure and economy when compared to the continental system13. Its international prevalence resulted into the distortion of the continental system and the emergence of insurmountable legal issues, the disturbance of its balance and finally to the projection of this situation to the social level in the form of social conflict14. b) Broadening of the notion of piracy and spreading of the counter-piracy campaign. It should be stressed that since the 1990s (especially since the signing of the TRIPS international convention) there is a constant effort of intellectual property rightholders towards the broadening of the notion of piracy. File sharing over the Internet via P2P software was the turning point in that field: for the first time in intellectual property history simple users were prosecuted on criminal 10 M. Vivant, Propriété intellectuelle et nouvelles technologies. A la recherche d’un nouveau paradigme . M. Vivant, Droit d’auteur et droits voisins dans la société de l’information, Commission Nationale Française pour l’UNESCO, Paris 28-29 novembre 2003, Rapport de synthèse, 4. 11 S. von Levinski, « Américanisation », in Actes du Colloque, Propriété intellectuelle et mondialisation, La propriété intellectuelle est-elle une marchandise ? Sous la direction de M. Vivant, Dalloz, Paris 2004, 13 et seq. 12 In this case, the interests of the cultural industry prevailed against the interests of the author as a natural person and of the protection of works of a useful nature with reduced originality factor. 13 M. Vivant, Propriété intellectuelle et information, -Panorama comparatif international, Advisory Group for Aerospace Research and Development (AGARD), Paper reprinted from ΑGΑRD Lecture series 181. The copyright system is facing the same distortion problems, as it had to be harmonized with the continental system in many points. However, harmonization is nowadays determined internationally mainly by the WTO and the USA, and as a result the level of distortion is not in any case comparable. 14 The characterization of temporary digital copies made in a computer’s memory without the possibility of making a viewable copy, as acts of reproduction, and the penetration of the notion of lawful user into the continental system, respectively, is a typical example towards the aforementioned direction. See A. Lucas, Le droit d’auteur et les droits voisins dans la Société de l’Information : besoin de continuité, besoin de changement, in, « droit d’auteur et les droits voisins à l’Aube du 21me siècle », Actes de la Conférence Internationale organisée par la DG XV de la Commission Européenne, Florence les 2-4 juin 1996, 34 . A. Lucas – H.-J. A. Lucas, Traité de la propriété littéraire et artistique, Litec, Paris 1994, §241 . Η. Desbois, Le droit d’auteur – Droit français et Convention de Berne révisée, Dalloz, Paris 1950, §276, 287-290 . 3
  4. 4. charges, while the entire process of sharing files containing protected works became part of the rightholders’ fight against piracy. c) Gradual appropriation of public domain. In the last twenty years there is a constant expansion of intellectual property monopoly at the expense of the so called “public domain”. The notion of originality has always been the basic condition for the protection of intellectual work by intellectual property law. However in the recent years there is a constant broadening of this notion, resulting to the acknowledgement of rights of intellectual property on works, which under no circumstances could claim such protection in the past. Thus, while in the past an intellectual work was granted protection when it expressed the personality of its author (according to the theory of originality15 currently accepted), a protection was gradually accepted for works that simply “constitute some intellectual contribution” or even for works that simply “belong to their author”. • The inclusion in the field of intellectual property of creations of utilitarian, technical or informative character, such as the protection of computer software, as well as the protection of databases, contributed largely to the above broadening. • Finally, the introduction of digital technology and of the Internet signaled a deep change in the methods of production, reproduction, conception, use and exploitation of intellectual works. The use of technological measures aimed at the most effective protection of rightholders on the Internet against unlicensed use of their works, poses a threat to “free use” (i.e. exceptions) that intellectual property law traditionally recognized in favor of the end user of an intellectual work: the buyer of a book, the DVD, or a CD, was free to read, to see, to listen to or to reproduce for personal use the work that was recorded on the medium16. But nowadays, the use of technological means of protection drastically restricts this liberty through the gradual rise “of a new right to access”, as we will see right below. 2. Controlling access and DRM technological means of protection in particular. 15 See G. Koumantos, op.cit. 16 Ν. Helberger, It’s not a right, silly! The private copying exception in practice, INDICARE Monitor vol. 1, no. 5, 29 October 2004 . http://www.indicare.org/tiki-read_article.php?articleId=48 . Μ. Schaub, A breakdown of consumer protection law in the light of digital products, INDICARE Monitor vol. 2, no. 5, 29 July 2005, http://www.indicare.org/tiki-read_article.php?articleId=123 . http://www.ivir.nl/publications/helberger/INDICAREStateoftheArtReport.pdf . http://www.ivir.nl/publications/other/copyrightlawconsumerprotection.pdf . Tribunal de grand instance de Paris 3ème chambre, 2ème section, Stéphane P., UFC Que Choisir/Société Films Alain Sarde et, Jugement du 30 avril 2004, http://www.legalis.net/ 4
  5. 5. a) General: how did we get from the right of reproduction to controlling access? As mentioned above “while the end user was free to proceed with any private use of the work he desired, since the introduction of digital technology the notion of “unlawful use” and of “unlawful user” was introduced. This issue arose initially in the field of legal theory, when the question of redefining the notion of reproduction in a digital environment was posed. In that environment reproduction loses its fundamental technical feature, the “hard copy”, so it should be clarified whether any reproduction, even temporary, was to be classified as an action for which the previous permission of the rightholder should be requested. This, however, would result to the need for permission for non- independent acts that formed integral and essential parts of a purely technological process and were performed automatically without the intervention of human will. As a result, non-autonomous acts of a process had to be excluded, in order not to lead to unjustified protection of the rightholder. As a next step, community directives-for the protection of computer software and databases- introduced the above broad definition of reproduction and the respective notions of lawful user and lawful use and distorted the philosophy of the continental protection system even further: first use appears as a critical act in the field of intellectual property, i.e. as an act requiring the permission of the author (restricted act). This however was a great turnaround: the rule of the law (any private use by the end user is free) became the exception17 and the exception became the rule (no act of use is free, unless performed by the person that lawfully acquired a copy of the protected work). Finally, Directive 29/2001 introduced the obligation to apply technological access control measures on works, as well as the protection of these measures against acts of circumvention against them. Therefore, through the above reform additional “rights to reproduction” evolved into an access control right18 of works on the Internet challenged by users, as mentioned earlier19. 17 The copyright system balances this exaggeration through the institution of fair use, which allows the judge many possibilities to restrict the rights to reproduction in favor of the users, whose rights are expressly provided for in the law and in fact in the Constitution. In contrast to that, in the Continental system, restrictions to the right of reproduction in favor of the users are very concrete and are narrowly interpreted 18 Origin of the right to access. Its emergence is closely linked to the merging of the field of intellectual creation and production of cultural goods on the one hand with the field of communications on the other hand, allowed by the new digital technologies. This merge is realized through common strategies and agreements between the cultural industry and the industry of informatics and communication, using the rights of intellectual and industrial property owned by these enterprises as a tool. The need for their dominance in the new markets in creation leads however to a gradual expansion of the space taken by protected “incorporeal goods” and therefore to an expansion of private business interests at the expense of the “public domain” of free reception and use of intellectual works and cultural goods by citizens as mentioned. 19 A. Lucas, A. Strowel, et autres, in, Le droit d’auteur : un contrôle de l’accès aux œuvres, Cahiers du C.R.I.D., Buylant, Bruxelles, 2000. 5
  6. 6. b) The nature of the right to access to works: the right to control access is not however by its nature a right of the author but a right of the intermediary20, as the latter (and not the author) is the person that has mainly an interest in controlling use and access. Besides, the institution of intellectual property never defined control of access to works and their use by the public as an aim and as a philosophy. On the contrary, intellectual property as an institution inserted traditionally into the content of protection the notion of communication of the author with his public and the free circulation of ideas. Rightholders of intellectual property now function as intermediaries and at the same time as privileged “communicators” (mass media) of cyberspace; however they perform functions foreign to the field and to the traditional functions of intellectual property that where intricately linked to intellectual authorship and (secondarily) to the production of intellectual works. This however constitutes a serious deviation of the institution from its philosophy. c) Socio-economic asymmetries in cyberspace. Controlling access and use may create new monopolies and asymmetries in cyberspace. The obligation to pay a proportional fee for the use of technological measures protected by patents21, not only limits drastically the potential of new authors and small producers to publish their works on the Internet free from intellectual property rights and from the duty to pay rights for those technological measures, but it also deters authors from “cyberspace”, who dispute the latter on an ideological basis. Nevertheless, independent authorship contributes greatly to this, nowadays rare, cultural good called “original creation” and undoubtedly appears as a factor of cultural diversity and of cultural-aesthetic pluralism. d) Desintermediation of “cyberspace”. In reality, the only risk in controlling access is dominance over the new market and the public sphere of Internet22. The basic risk for persons having an interest in controlling access originates from the potential of direct connection of citizens and users of intellectual works with authors, because this connection threatens their intermediary activity, exercised through the monopoly of intellectual property. In essence, the fight for control over access is a fight against disintermediation and democratisation of communication (which is pledged by the Internet and the new digital media).. e) Violations of users’ fundamental rights. By imposing the obligation to use technological measures (which obstruct access by a making copying impossible), Internet use of works goes through gradually tighter controls (issues of data protection and of establishing presumptions of guilt/ innocence etc. arise). 20 http://www. Presence-pc.com/tests/Peer-to-peer/, interview of M. Vivant, 10 et seq. 21 Op. cit, Interview of M. Vivant. 22 R. Wallis, Business as usual or a real paradigm shift? The music industry’s response to e-commerce technology and ideology. 6
  7. 7. ΙΙ. “Creative commons” and the future of intellectual property 1 “Creative commons” licenses as an alternative protection system a) General. “Creative commons” licenses are a new trend and the new approach as regards the protection of intellectual authorship. This approach emerged in the USA in 2001, at the initiative of Lawrence Lessig23, a professor at the Law faculty of the University of Stanford, who, in a series of publications and books, severely criticized the protection system of intellectual property and its abuse. His criticism was mainly targeted against the expansion of the institution to any new technology and towards the commitment of any new use of works arising from the evolution of the latter through a network of agreements and technological measures combined with absolute rights and acknowledged to rightholders24. A considerable number of legal academics from the continental protection system support this criticism.25. The “creative commons” movement gained international dimensions in extremely short period of time especially because it was connected with the general “copyleft”26 ( as opposed to “copyright”) movement of internet users and internet press reacting to the traditional protection system and the interests it represents. It thus evolved into an ideological movement, which borrowed the philosophy of open source software through the creation of particular license models, the main feature of which is the wide variety of powers arising from intellectual rights that are granted to the user (regarding the possibility of reproduction, public communication, transmission etc. of the work). The main idea of the system is that the rights of the author of intellectual property have been acknowledged and exist mainly to allow the use of works (the creation of copies, their modification, their distribution) and not to prohibit it27. b) Aims of “creative commons”. The main aims of the system are directed towards: 23 L. Lessig, Free Culturre, 2004, http:// creative commons.org/licenses/by-nc/1.0. ; L. Lessig, Code, version 2.0, second edition, Basic books 2006, 169-200. 24 Idem. 25 E. Deliyanni (2006 and 2007), op.cit.. ; S. Dussolier, L'utilisation légitime de l'oeuvre : un nouveau sésame pour le bénéfice des exceptions en droit d'auteur ? Communication Commerce électronique n° 11, Novembre 2005, Etude 38 ; idem, L'introuvable interface entre exceptions au droit d'auteur et mesures techniques de protection, Communication Commerce électronique n° 11, Novembre 2006, Etude 29 ; M. Vivant, Propriété intellectuelle et information, -Panorama comparatif international, Advisory Group for Aerospace Research and Development (AGARD), Paper reprinted from ΑGΑRD Lecture series 181. 26 See Wikipedia, terms « Copyright » and « Copyleft »., 27 L. Lessig, op.cit. 7
  8. 8. -the possibility of sharing intellectual works, the promotion of cooperation, the authorship of cooperative works and common works, facilitating the authorship of derivative works. . -the creation on the Internet of cultural “contents” that circulate freely and enrich this new public domain with their ideas and their original content, and especially the inspiration of authors but also of potential authors28. - the use of intellectual property on the basis of permission rather than prohibition29. It is necessary to clarify at this point that the above phrase is not absolutely accurate, but is to a certain extent a paraphilology that has prevailed among users and non-legal circles. Intellectual property as a protection system never aimed at the prohibition and absolute control of the use of works, nor did ever function as a means of censorship as frequently alleged, quite the contrary in fact: free market monopolies in the field of cultural and communication industry use absolute rights and licensing agreements as means of control and prohibition aiming at the absolute dominance in this market at the expense not as much of the users as of the authors themselves. c) Basic principle and content of “creative commons” licenses. The general rule in the field of intellectual property is that, whatever is not expressly permitted by the law or the author, is prohibited: therefore, the powers arising from the right are granted on the basis of an exploitation contract or a license, they need to be expressly stipulated in it and any power not expressly mentioned in it remains with the author, while the silence of the latter does not equal a grant of any license or exploitation right to a third party. In contrast to that, creative commons licenses offer the author the possibility to grant broad freedoms to the user: in this case, what is not expressly prohibited, is permitted and that is expressed in creative terminology with the phrase “some rights reserved”, in contrast to “all rights reserved”, broadly used in the traditional intellectual property system as a phrase used on any copy of any marketed intellectual work30. Instead of granted powers mentioned restrictively on the license and any powers not expressly granted remaining with the offeror, in this case all exploitation powers are granted and any powers expressly reserved by the author remain with him. Licenses have finally a symbolic, ideological character: the promotion to authors and artists of the philosophy of communication and of sharing works with society.31. 28 L. Lessig, 2004, op.cit. 29 S. Dussolier, Les Licences Creative Commons : les outils du Maître , à l’assaut de la maison du maître, Propriétés Intellectuelles, janvier 2006, 10-21. 30 Idem 31 Idem 8
  9. 9. This position is certainly not unknown to the traditional protection system: the supporters of the traditional system accept that, to the extent that an author is inspired by the society he lives in, he is under the obligation to render the opus of his inspiration to society, by enriching the public sphere with the ideas that his intellectual works contain and that this exchange between author and social environment should be validated in the law through the inclusion of broad restrictions to the monopoly acknowledged to the former32. d) Expansion of “creative commons”. This system was encountered with gradually greater appeal in constantly broadening circles of authors, artists and scientists on the Internet: new creators who embrace the idea of sharing, of direct communication with their public, and of the notion of free culture; scientists and researchers working in cooperation groups and grant licenses to associates to complete their research work; journalists and citizens introducing blogs on the Internet; authors under employment contracts; amateur authors who do purport the commercial exploitation of their works are the most important followers of creative commons. Beyond the above categories also traditional artists are enchanted by the system because they discover a particular way to sell their works publicly in a more direct way without intermediaries, but also not running the risk of being totally vulnerable during the sale of their works on the Internet. Creative commons licenses offer a middle way between the totally structured contractual relationship offered in the traditional contractual system and the absolutely free, unprotected disposition. e) Criticism of “creative commons”. Τοtally opposite views and ideas have been expressed about the “creative commons” system. In general, the copyleft ideology suffers from gaps and controversies that may cause confusion. The general questions are posed, whether and to what extent creative commons indeed offer any guarantees of general, alternative and more “democratic” version of intellectual property protection and what the effects of their general adoption would be on authorship and culture33. Through this new movement many anticipate the death of intellectual property as it was established and has evolved in the western world since the times of Enlightenment and French revolution until our days, and respectively the triumph of “free culture”. On the other hand, others limit it to a tool invented by users of intellectual works, to avoid paying any fees for the use of works. Finally, others, 32 33 See J. Ginsburg………………….. 9
  10. 10. without necessarily condemning it, limit considerably its usefulness and scope of application. Here is a presentation of the most significant critical views expressed. The creative commons license system is recorded fully on the intellectual property protection system, it does not affect the core of protection and is completely established of the basic principles governing: the notion of propriety and recognition of exclusive rights to the author of an intellectual property work, the granting of the use of works by contract. In other words, it borrows all fundamental principles of liberalism, a product of which is intellectual property. Therefore, while there is criticism against the main tool, based on which rightholders expand and dominate in the market, i.e. the licensing agreement, at the same time the exact same tool is used as a cornerstone of alternative regulation. In the very same way that traditional rightholders circumvent the provisions of the law through licensing agreements, by prohibiting actions of the user that according to the law were free (e.g. further sale of the copy, prohibition of creating more than one copies) or by creating absolute rights where the law denies their recognition ( it is possible to protect by contract any data that the law does not recognize as works, e.g. unprocessed information), creative commons use contracts again, but to the opposite direction, purporting allegedly to allow the widespread use of works. Nevertheless, in both cases there is a purely private system circumventing the law, without offering any guarantee of general application. Furthermore, the user is left with a misguided feeling of exclusion and limitation, that a contract is necessary to allow what by law is free: the use of work (i.e. to see, to read it, to listen to it in his private sphere, sell the copy further etc). This is exactly the greatest catch in creative commons34. In essence, the creative commons system merely proposes an “alternative” exercise of proprietary rights by authors and a new ideology towards them and their works. It would therefore be mistaken to support that works under the creative commons regime belong to the public domain. Finally, the creative commons system entails no fee for the author of intellectual works and therefore does not perform the financing function that a protection system of general application in the field of intellectual property should. It only promises that, if the author joins the creative commons philosophy and enters into the relevant licenses proposed by the non-profit organization established for this purpose, the work of the licensing author is recognizable by search engines through the digital code recorded on it, and thus contributes to the author and his work achieving international fame. However, there is no direct return35. 34 S. Dussollier, op.cit. 35 See ALAI…………… 10
  11. 11. In a neo-liberal background (as freedom of contracts is prevalent in this field) and on the basis of a vague, contradictory and finally double philosophical theory, the system certainly aims at the undermining, marginalization and maybe at the overthrowing of the monopoly in cultural industry, without the profit of this uprise returning-in most cases- back to the authors or being recycled in any way in favor of the original production of cultural goods. Circulation and use of works of intellectual property on the Internet may rise by adopting this system, but what is the “cultural” content of these works? 2. The future in protecting intellectual property. The above analyses are not another hue in theoretical tendencies predicting the death of intellectual property. On the contrary, they are mere findings of the great turnarounds realized as a result of the revolution in the field of communications technology, as these were recorded in the particular field of intellectual property, of the legal dead ends and conflicts that emerged from these turnarounds, and finally the need to adopt a new strategy and a new solution in this field. Which are however these turnarounds? • The traditional “triptych” of interests in intellectual property, author of intellectual work-cultural industry-public, has been radically differentiated and to a great extent become more intricate. • The traditional institution of intellectual property has been fully established on the written culture of Enlightenment, on the exploitation of books36 and on public performance37 of plays and works of music and cannot but stand perplexed before the new technological evolution. It is not, however, the first time that technology overturns the principles of communication and the conditions and means of production and reproduction of cultural goods. And it should be said that the institution survived the crisis. • Finally, intellectual property as an institution of protecting intellectual authorship is an expression but also a particular selection of the system of free market and it is accordingly only natural that it follows in the footsteps of the evolution, swindling, and distortions of this system. It is utterly hypocritical to accuse the institution of intellectual property of abuse, without any mention and criticism against the abuse and the overall recent evolutions and selections of the international financial system. 36 M. Vivant, Propriété intellectuelle et nouvelles technologies. A la recherche d’un nouveau paradigme. M. Vivant, Droit d’auteur et droits voisins dans la société de l’information, Commission Nationale Française pour l’UNESCO, Paris 28-29 novembre 2003, Rapport de synthèse. 37 E. Deliyanni, Le droit de représentation des auteurs, face à la télévision transfrontalière par satellite et par câble, LGDJ, Paris 1993, 5§ et seq. 11
  12. 12. What is the role of the legislator and what are his options? • In modern social conditions, the legislator, but also all others producing policies in the field of culture and communication, should form a complete and long-term strategy towards the new monopolies that were formed in cyberspace, a strategy that will take into account a broad spectrum of factors, and will aim at balancing the entire system of production, reproduction, sale and “consumption” of cultural goods38. • In the broader intellectual property field there are two ways to select from: a) the way of thoughtless strengthening and expansion of large enterprise monopolies, which does not necessarily lead to a wider protection of the author as a natural person and to the increase of his income39, (on the contrary, it leads to the full commercialization of cyberspace), and b) the way of democratic and balanced growth of the new public communication domain that will aim at finding the balance point between the need to reward intellect as an incentive to create and spread works of intellect and the need for enriching the public domain by the ideas and cultures that these works entail, following the commands of the principle of pluralism and of the protection of the author of intellectual works (natural person). In our opinion, the modern selections in the field of intellectual property made by the legislator as an arbiter between opposed interests in a digital environment ought to follow the latter direction. • It is finally important to stress that interaction between the public and new technologies in the field of mass media is crucial for decisions to be made at the level of cultural policy. 38 R. Wallis, Business as usual or a real paradigm shift? The music industry’s response to e-commerce technology and ideology, op. cit. . M. Fox, Ε-commerce business models for the Music Industry, . V. L. Vaccaro, D. Y. Cohn, The Evolution of Business Models and Marketing Strategies in the Music Industry. 39 M. Fox, Ε-commerce business models for the Music Industry, Popular Music and Society, Vol.27, No 2, 2004, 201 12

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