Elsa DELIYANNIDoctor in Law -Paris 2, LawyerAss. ProfessorDepartment of Journalism and Mass Communication, Aristotle University of Thessaloniki, Greece44 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

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), 8th 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.

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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

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 EU8 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).

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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.

12In 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 .

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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/

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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.

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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 Internet 22. 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.21Op. 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.

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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.25E. 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.

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-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

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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…………………..

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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……………

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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.

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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

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