Digital technologies and global information networks have made a real breakthrough in information accumulation and exchange. The old principles of intellectual property protection established in a completely different technological context do not work any longer in an emerging environment, and, therefore, new conceptual arrangements are required for international regulation of intellectual activities on the Internet.
To regulate effectively the use of the results of intellectual activities in the context of modern technologies, it is necessary to meet the following tasks:
- to determine the limits of legitimate use of the results of intellectual activities by Internet users;
- to expand the opportunities of right holders to manage and exercise the rights to the results of intellectual activities on the Internet;
- to amend the way of obtaining a right holder's consent;
- to design a legal instrument for exercising and protection of the rights of right holders to the results of intellectual activities on the Internet;
- to monitor the observance of copyright and neighbouring rights on the Internet by information intermediaries and those who place the content, rather than ordinary Internet users;
- to enforce human rights and implementation of social mission of the State.
In this context, I would like to share Russia’s vision of how to develop a new concept concerning the use and protection of the results of intellectual activities on the Internet.
1. The State should establish a certain level of legal protection for the objects of copyright and neighbouring rights on the Internet and give a right holder an opportunity to choose a model of protection of his or her work that suits his or her interests best.
2. A major element of a new approach to the protection of copyright and neighbouring rights could be the introduction of assumption that the use of objects of copyright and neighbouring rights on the Internet shall be considered free unless the right holder states otherwise. At the same time a minimum level of protection that will not require any declaration from the right holder must be established.
3. If found guilty, information intermediaries on the Internet (communications service providers, Internet website and domain name owners, etc.) should be held responsible for violation of copyright and neighbouring rights on general grounds, except for specifically established cases (e.g., if they were not aware or were not supposed to be aware of the illegality of content).
The proposed approaches call for creation of new legal, economic and technological mechanisms, which would meet the interests of all actors present on the Internet (users, right holders, information intermediaries, etc.) and provide right holders with the means to exercise and independently protect their rights.
The implementation of these initiatives will require amendments to the Berne Convention for the Protection of Literary and Artistic Works, other treaties that determine the modern international legal consensus (in particular, the Universal Copyright Convention, the WIPO Copyright Treaty), and, possibly, adoption of a new international treaty.
I am convinced that such approaches would help finding adequate responses to the new challenges to the intellectual property system that have emerged as a result of the rapid changes in information and technology, and, thus, deserve to be thoroughly discussed in the framework of the relevant international fora.
Annex to the message by the President of Russia
Plan of Amendments to the Berne Convention for the Protection of Literary and Artistic Works (New Version)
Rapidly developing technologies (primarily Internet-related) hamper the effective enforcement of rules established in the area of copyright and neighbouring rights due to the fact that, in particular, those laws have originally not been designed to regulate relations arising from the use of the Internet.
Many countries, including Russia, have already attempted to improve their legislation taking into consideration the specific nature of social relations associated with the use of the Internet.
In particular, taking into account the increasing role of the so-called information intermediaries (communications service providers, website operators etc.), the USA and several Western European countries have established certain rules for them.
In the field of regulating the relations between right holders and users new tools emerge. They support right holders in pursuing their interest in the free distribution of their creative product among as many users as possible.
Instead of license agreements, common-law countries and, to a limited extent, European states increasingly use so-called general public licenses in electronic form (so-called GNU GPL, Creative Commons licenses etc.), allowing general public to use the objects of copyright and neighbouring rights. Such licenses allow right holders to inform users about what rights they would like to limit themselves (e.g. a right holder allows third parties to remake the work for non-profit purposes), without the need to conclude a written agreement with each of the users.
Meanwhile, rights and duties of authors (right holders) and users, as established by the national laws in relation to the Internet, differ from each other. This is due to the fact that at the international level there is no consensus on the principles of regulation of the user-right holder relations. On the contrary, there is a heated debate about the scope of the rights of Internet users, which evidences multiple perspectives, ranging from the need to reduce the instances of free use of the results of intellectual activities by Internet users, all the way up to the need for a substantial increase of their quantity.
Conflicts of national rules are particularly significant for regulation of copyright and neighbouring rights on the Internet as it is a trans-border network by its nature. Often Internet actors are subject to one jurisdiction, the object of the copyright – to another, and the place where a certain legal transaction occurs in respect of the object in question can fall within yet another jurisdiction. This does not at all contribute to uniformity of regulation of respective relations on a global scale, and to ensuring an equal level of protection for right holders.
The global community needs to develop harmonised rules, which take into account the specific features of copyright and neighbouring rights' regulation in relation to the Internet. The latter can be incorporated into the Berne Convention for the Protection of Literary and Artistic Works (hereinafter – the “Convention”).
Adoption of changes and addenda to the Convention fully complies with historical tradition. The Convention, executed in 1886, has been changed and supplemented several times following emergence of new forms of expression and distribution of literary and artistic works. During the 20th century, the Convention has been extended to photographs, sound recordings, cinematographic works, and authors obtained exclusive rights to distribute their works through radio and television stations. However, now the world has finally entered a new era, the era of Internet technology, where an increasing amount of information is stored in the ”virtual space”, and not on tangible media.
To a certain extent, the WIPO Performances and Phonograms Treaty and the WIPO Copyright Treaty, both adopted in 1996, respond to the changes occurred. However, as described below, they do not take into account, to the extent necessary, the interests of users and information intermediaries. In addition, they do not cover the entire spectrum of issues that require harmonised international regulation. They focus on strengthening legal protection of new intellectual property objects and introducing new ways of their use which supplement the exclusive right of the right holder. It should also be noted that these treaties have not been ratified by all parties to the Convention.
In any case, the need for compliance with the Convention provisions, as a basic source of copyright law, means that it would be inefficient to adopt other treaties (conventions) without enacting corresponding changes to the Convention itself.
II. Key Challenges
The main challenges to the modern system of regulating copyright and neighbouring rights on the Internet include inter alia the following:
1. The specific nature of relations that arise during the circulation of creative works published on the Internet (hereinafter – the “Content”) is determined by the fact that their participants can not been analysed as the right holder-user dichotomy, the latter being typical for relations covered by traditional copyright laws.
In fact, information intermediaries (communications service providers, website operators, etc.) play a very active role in those relations and secure delivery of the Content from right holder to user or from one user to another.
Earlier, consumer would passively consume the results of intellectual activities (books, audio recordings, films, computer programs) that had been reproduced through means of expensive equipment (printing offices, music and video studios), but now information intermediaries have enabled users to digitise and publish on the Internet, on a large scale basis, the results of intellectual activities owned by third parties.
2. Incredibly fast growth of the Content volume caused serious difficulties for protection of the exclusive rights thereto. Infringements of the exclusive rights to the Content on the Internet have become widespread.
Meanwhile, the reaction of right holders to these processes is ambivalent. A large number of right holders insist on tight control over activities of information intermediaries and users to prevent them from unlawful use of the results of intellectual activities owned by right holders.
Other right holders are not concerned with the current situation in exclusive rights protection on the Internet. Many right holders have already learned how to gain revenue from the Content using ways other than direct use, assignment and licensing of exclusive rights (e.g. sharing of revenues from advertising watched simultaneously with providing access to the Content).
3. High Internet penetration inevitably affects mentality and expectations of web-users. Their majority is not ready to accept “legal restrictions” on access to the Content that has become the main source of knowledge for a big part of population.
III. Aims and Objectives of Preparation of a New Version of the Convention
Drafting a new version of the Convention aims to adapt current international standards of legal protection of copyright and neighbouring rights to the partial refusal of modern society to use traditional tangible copies of works as everything shifts towards the circulation of works (the Content) in electronic forms.
International harmonisation of new Content distribution models based on partial waiver of property rights by right holders appears to be also important.
In the course of drafting a new version of the Convention, it will be necessary to analyse national legislations as regards regulation of circulation of the intellectual activities' results on the Internet, and dispute resolution practice in corresponding areas.
It is also worth studying the results of implementing the provisions of the WIPO Performances and Phonograms Treaty of 1996 and the WIPO Copyright Treaty of 1996 into national laws.
Based on this analysis as well as on the analysis of other materials submitted by the interested states, modern business models in the field of commercial and non-commercial use of the Content, it is necessary to come up with an agreed-upon draft of the new version of the Convention for it to be then considered and discussed in accordance with procedures for revising the Convention.
V. Basic Agenda
The analytical research in the field of international minimum standards for regulation of copyright and neighbouring rights on the Internet shall include:
1. Evaluation of possibility of directly listing the Content (an object that has no tangible medium and exists in electronic form) as an object covered by the term ”literary and artistic works“ and protected as such (Art. 2 of the Convention)
Currently, it shall be a matter for legislation in the countries of the Berne Union to state that literary and artistic works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.
Thus, at the moment the Convention contains no explicit provisions specifying that works shall be protected subject to their fixation not only on tangible media but in electronic form too, or that tangible media shall also include electronic form.
2. A consensus on ways to improve the meaning of the term ”publication of a work“
Nowadays publication of a work is understood as making copies thereof with the consent of the author, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public (Art. 3 of the Convention).
Consideration should be given to the possibility and the need to adapt the concept of ”publication of a work“ to relations on the Internet, where in fact, publication is done by placement of one electronic copy which guarantees access of the public (the Internet users) to such work.
3. A consensus on ways to improve the concept of ”country of origin“ in respect of the Content, in case it is first published on the Internet (Art. 5 of the Convention)
The criteria set forth in the Convention for determining the country of origin of a work cannot be applied to the Content, since it is impossible to identify the place of its publication due to the trans-border nature of the Internet infrastructure.
4. A consensus on ways to improve the meaning of the term ”reproduction of work“
At the moment any sound or visual recording shall be considered as a reproduction for the purposes of the Convention (Art. 9 of the Convention). Meanwhile, the Convention does not resolve the issue of whether a Content recording on any media made by an Internet user shall be considered as its reproduction.
In addition, consideration should be given to the possibility to directly specify electronic reproduction (digitisation) as a form of reproduction of a work for the purposes of the Convention.
5. A consensus on possibility to expand the list of instances of free use of work for humanitarian purposes (Art. 10 of the Convention)
In particular, it shall be appropriate to consider allowing special entities (first of all, electronic libraries) to digitise the results of intellectual activities freely (without consent of a right holder), provided that the users shall access the information resources of such special entities in such a way as to exclude any uncontrolled distribution thereof on the Internet.
This issue is particularly important in relation to works that came into public domain in certain countries, as well as in relation to the so-called orphan works (works protected by copyright, while it is in practice impossible to identify their right holder).
6. A consensus on possibility to specify directly in the Convention the quasi-free personal use by Internet users of any Content placed on the Internet by any person. At present, in a number of countries users are prosecuted for personal use of the Content, which has been illegally published on the Internet by third parties. This approach is too harsh.
Introduction of a quasi-free personal use of the Content by Internet users seems appropriate.
Such model could be put into law by establishing the implied consent of the right holder to the personal use of the Content by a user. However, the aforementioned consent can be “revoked” by the right holder with a notice to the user. For the purpose of such notification, the right holder shall be entitled to use different technical means, including digital marks embedded into the Content sample models.
It is possible to implement a more extreme approach, which contemplates introduction of a free personal use of the Content by Internet users.
In such case, a right holder shall not be entitled to prohibit personal use of the Content by an Internet user, including the Content illegally published by third parties.
Implementation of both approaches implies that “responsibility” for protection of exclusive rights rests with the right holder and not with the user. The right holder shall have the right to respond to illegal publication of the Content on the Internet by:
A) making legal claims against persons responsible for illegal publication of such Content;
B) notifying users of the absence of the right holder's consent to use such Content (in case the Convention specifies quasi-free use of the Content).
7. A consensus on legal understanding of actions of Internet users related to creation of hyperlinks to the Content on the Internet. Consideration should be given to the possibility to specify directly in the Convention that creation of hyperlinks to the Content on the Internet shall not be deemed as the use of such Content.
8. An analysis of prospects of recognising the author's right to limit his or her property rights (to waive them partially) by publicly stating that it is not necessary to obtain his or her consent and/or pay a fee for the use of the Content created by him or her, by third parties for specific purposes.
Such analysis is necessary in order to harmonise the existing systems of free licensing (Creative Commons and others) and to adapt new models of Content distribution to the requirements of both Anglo-Saxon and continental law.
9. Analysis of a possibility of a broader interpretation of the ”pirated copy“ concept
At the moment pirated copies of a work are subject to seizure in any country of the Berne Union where the work enjoys legal protection (Art. 16 of the Convention).
Meanwhile, it is difficult to apply the ”pirated copy“ concept with regard to the Content. As a rule, the Content is fixed on a tangible medium (hard disk, server, etc.), along with other Content including a lawful one. Under such circumstances, the seizure of information storage devices (e.g. treated as infringing copies) shall be an inappropriate measure that violates the rights of third parties, who have not committed any illegal actions.
In this regard, it is worth considering the expediency of introducing in the Convention of special measures to protect the right holders in cases when their rights are violated by illegal publication of the Content, for example such measure as removal of the Content from the Internet.
10. A consensus on a possible model of specifying the liability of information intermediaries in connection with illegal publication of the Content on the Internet by users (this requires adoption of a separate article of the Convention).
Due to the trans-border nature of the Internet infrastructure and the same trans-border nature of information intermediaries and right holders' activity, there is a need to introduce uniform rules that would regulate their relations and take into account public interest.
That being said, it shall be reasonable to bear in mind the need for limiting the information intermediaries’ liability. They should not be liable for providing the user with access to the Content that has been illegally published by third parties, provided that the information intermediaries did not know or could not have known about illegality of such publication.
It is necessary to create a response mechanism for information intermediary to use in connection with notifications from third parties stating that it provides access to the Content illegally published by third parties.
VI. Interim Self-Control and Results
In the process of drafting a new version of the Convention and exploring the legal landscape, the interested States shall coordinate their efforts within the framework of the World Intellectual Property Organization.
The result of the work shall be an agreed international treaty having direct effect, which requires minimum implementation into national legislation and provides for fair international guarantees of free use of the Content on the Internet, protection of the rights of right holders and information intermediaries.