Intellectual Property on the Internet. Legal and Economic analysis
| Autor | Miguel Gómez Martínez |
| Páginas | 1675-1707 |
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This paper examines some of the most important issues related to the problematic topic of Intellectual Property on the Internet.
More specifically, it focuses on the legal and economic view of intellectual property on the Internet.
First, it introduces the Internet and its development and increasing influence in recent years (chapter 2), also in this chapter the author attempts to clarify the concept of «Audiovisual work», despite the difficulty of such a task, as will be explained later.
In chapter 3, there is a brief study of the legal framework, as it currently stands in Spain and in the United States of America.
Some aspects of the international legal framework for intellectual property law are also considered, for example the jurisdiction problem and the Internet, or the relationship between Intellectual Property and contracts.
Chapter 4 looks at the Economic framework of digital works on the Internet. Topics studied in this chapter include the economics of Intellectual Property, the Media Economy and how Adam Smith’s theory of the «invisible hand» works with technology.
There are other ways to protect intellectual property of digital works, in addition to legal protection. Some corporations in the media industry have developed technological protection to protect their intellectual property rights; such as trusted systems, watermarks or Digital Rights Management systems (DRMs). This paper studies these systems in Chapter 5.
In the last chapter, before the conclusions, this paper will try to set out some starting points for this legislative and regulatory challenge; and how governments and society might handle the challenge of Intellectual Property on the Internet.
The conclusions of the study can be found in chapter 7.
The advent of digital technology and the existing networked environment, the Internet, have had an immense impact on patterns of production, modification... of creative work in digital format.
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There is no doubt about the fact that the Internet and telecommunications represent a very important part of everybody's life; and that they have brought about a sea change in the way people communicate with each other, a change in how people work...
The Internet has brought about big changes in the way cultural goods are distributed, because it has broken the barriers of the physical world.
Nowadays, Internet users, generally owners of cheap digital devices, have been able to play different roles.
The digitization process has changed the economics of creativity, dissemination and copyright by:
— Making technological tools and devices available that make creativity much cheaper and easier than at any other time.
— Greatly reducing the cost of reproducing work without a loss of quality.
— Allowing these reproductions to be distributed with the same ease, speed and cost than the original.
Digitization technology has enabled the spread of digital creativity on a massive scale and this clashes with modern Intellectual Property legislation.
For example, in the audiovisual market, the change which has transformed it, is the possibility of making movies and television series available using Internet technology. This makes possible the availability of audiovisual work to an incredible number of potential customers, relatively easily and at a relatively low cost.
The on-line sharing of digital versions of copyrighted movies has become widespread: in some cases, pirated versions of movies are available for download from the Internet before they are shown on the big screen.
The Internet could provide content producers with a low-cost 24/7 distribution channel for delivering digital goods and services; and also the Internet can be a very useful marketing channel.
But not everything on the Internet is good news: although the Internet as a platform for commerce is characterized by the ease and efficiency in which information can be distributed in the global marketplace. Such characteristics are seen by some people as a great threat to the interests of content producers.
Content producers, or at least some of them, perceive the Internet as a major problem; because once an information product, like a movie or a computer program is digitalized (reduced to a digital file) it can be distributed worldwide in unlimited numbers at virtually no cost, or at a very low cost.
For this reason, traditional content providers have been slow to embrace the Internet as a distribution channel, they consider the risk to their principal assets as being simply too great. This argument is, in part, one of the reasons why content producers have been reluctant to make their material available online. The law governing information goods, copyright law, is better settled off-line than online.
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The convergence of media and technology is the issue which, in many instances, is causing legal difficulties. The issue of convergence poses difficulties, because comparable services, such as virtual worlds and interactive audiovisual services, would be subject to comparable laws, but they are not.
The new uses of digital goods in a purely digital environment are what cause uncertainty on-line, because it is difficult to predict how Intellectual Property law will be applied. In addition, there are some problems with new emerging business models that use, manipulate, re-purpose and repackage digital goods in ways not covered by intellectual property laws.
The issues concerning how intellectual property laws apply to this new business are unresolved causing legal uncertainty.
To solve these uncertainties, and the threat of unauthorized copying on-line, some companies have developed self-help technologies in an effort to reduce the business risks involved in making digitized content available on the Internet.
The structure of the Internet is based on a decentralized system, and that feature has increasingly empowered end-users to disseminate creative works to an unprecedented extent.
As explained above, using the Internet to distribute content is so easy and everybody can do it, with just a computer and an Internet connection.
Understanding not only the turn to technology as a regulatory system, but also the social, legal, political and cultural mechanisms by which it is possible, is, at one level, crucial to the ongoing disputes about copyright and the Internet.
But, in order to share copyrighted work, the person who shares it must have the right to do it. European copyright law reserves all acts of digital reproduction, communication and distribution to the public of their works to the copyright holders, or to those who hold those rights.
There are some methods of lawful dissemination remaining for the end-users. Internet users are free to communicate and share the public domain and any and all authorized materials; but it is questionable whether, and under what conditions, end-users are entitled to share (or at least download) unauthorized copyrighted works under the European copyright exception of private copyright or pursuant to the United States fair use doctrine.
In the United States, the issue of direct liability has been examined and settled by two United States appellate decisions (cases: «A&M Records v. Napster»/«BMG Music v. Gonzales»).
In the European Union, recent case law on end-users' liability shows that file-sharing of unauthorized copyrighted works affects two distinct types of exclusive rights created by copyright law.
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Unauthorized downloading of copyrighted works involves the right of digital reproduction; but uploading copyrighted works encroaches upon the right by making those materials available to the public.
While these decisions concerning end-user liability concluded that uploading infringed the exclusive right of making copyrighted material available to the public; there has been much uncertainty about the nature of infringement caused by merely downloading.
¿What is an audiovisual work? If we search different laws looking for a definition of this term, we will find that not all jurisdictions contain a definition in their copyright laws.
There are some jurisdictions which contain a definition in their copyright laws, but there is not a single concept to clearly establish what an audiovisual work is.
For example, French Copyright Act, article L112-6 defines audiovisual works as «works consisting of sequences of moving images, with or without sound».
In Spanish Intellectual Property Law, in article 86 we find the following definition: «the creations expressed by a series of associated pictures, with or without sound, which are intended primarily to be shown through projection machines or by any other means of public communication of image and sound; irrespective of the nature of the material supports such works».
In the United States Copyright Act, 17 USC § 101 (1988) we can also find a...
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