The EU has been working on a new copyright directive for the last few years. The proposals for article 13 were criticised by experts for potentially forcing platform intermediaries to implement content matching technology based on a database of copyrighted works to monitor users’ content. Members of the European Parliament, after extensive public pressure, re-debated many controversial aspects of the article. However, a recent Council of Europe (CoE) document revealed that the proposal does not explicit if the existing liability protection is valid under article 13, and that there are no clear exceptions for intermediaries that make an effort to prevent copyright infringements, but inadvertently admit copyrighted content on their platforms.
Knowledge and ideas are key resources in the global economy. The protection of knowledge and ideas, through Intellectual Property Rights (IPR), has become one of the predominant issues in the Internet governance debate. Internet-related IPR include copyright and trademarks. Copyright protects the expression of an idea when it is materialised in various forms, such as a book, CD, or computer file. The idea itself is not protected by copyright. In practice, it is sometimes difficult to make a clear distinction between the idea and its expression.
The copyright regime has closely followed the technological evolution. Every new invention, such as the printing press, radio, television, and the VCR, has affected both the form and the application of copyright rules. The Internet is no exception. The traditional concept of copyright has been challenged in numerous ways, from those as simple as ‘cutting and pasting’ texts from the Web to more complex activities, such as the massive distribution of music and video materials via the Internet.
The Internet also empowers copyright holders, by providing them with more powerful technical tools for protecting and monitoring the use of copyrighted material. These developments endanger the delicate balance between authors’ rights and the public’s interest, which is the very basis of the copyright law.
Amend existing or develop new copyright mechanisms?
How should copyright mechanisms be adjusted to reflect the profound changes effected by ICT and Internet developments? One answer suggested by the US government’s White Paper on Intellectual Property and the National Information Infrastructure is that only minor changes are needed in existing regulation, mainly through ‘dematerialising’ the copyright concepts of ‘fixation’, ‘distribution’, ‘transmission’, and ‘publication’. This approach was followed in the main international copyright treaties, including the Trade-Related aspects of Intellectual Property Rights (TRIPS) convention and the WIPO Copyright Treaty.
However, the opposite view argues that changes in the legal system must be profound, since copyright in the digital era no longer refers to the ‘right to prevent copying’ but also to the ‘right to prevent access’. Ultimately, with ever greater technical possibilities of restricting access to digital materials, one can question whether copyright protection is necessary at all. It remains to be seen how the public interest, the second part of the copyright equation, will be protected.
Protection of the public interest – the ‘fair use’ of copyright materials
Copyright was initially designed to encourage creativity and invention. This is why it combined two elements: the protection of authors’ rights and the protection of the public interest. The main challenge was to stipulate how the public can access copyrighted materials in order to enhance creativity, knowledge, and global well-being. Operationally speaking, the protection of the public interest is ensured through the concept of the ‘fair use’ of protected materials.
Copyright and development
Any restriction of fair use could weaken the position of developing countries. The Internet provides researchers, students, and others from developing countries with a powerful tool for participating in global academic and scientific exchanges. A restrictive copyright regime could have a negative impact on capacity building in developing countries. Another aspect is the increasing digitisation of cultural and artistic crafts from developing countries. Paradoxically, developing countries may end up having to pay for their cultural and artistic heritage when it is digitised, repackaged, and owned by foreign entertainment and media companies.
Knowledge and ideas are key resources in the global economy. The protection of knowledge and ideas, through IPR, has become one of the predominant issues in the Internet governance debate, and has a strong development-oriented component. Internet-related IPR include copyright, trademarks, and patents.
Trademarks are relevant to the Internet because of the registration of domain names. In the early phase of Internet development, the registration of domain names was based on a first come, first served basis. This led to cybersquatting, the practice of registering names of companies and selling them later at a higher price.
Intermediaries play a vital role in ensuring Internet functionality. In several Internet governance areas, such as copyright infringement and spam, Internet Service Providers (ISPs) are considered key online intermediaries. In other areas, such as defamation and the so-called right to be forgotten, the responsibility extends to hosts of online content and search engines.
One of the main sociocultural issues is content policy, often addressed from the standpoints of human rights (freedom of expression and the right to communicate), government (content control), and technology (tools for content control). Discussions usually focus on three groups of content: