What Culture in Cyberspace?
And what Intellectual Property Rights for 'Cyberculture'?
The development of the new information technologies, and of new media such as the Internet in particular, makes it imperative to consider the influence that these means of communication can have on culture. In what is apt to be called cyberspace - that new territory conquered by the Information Society - what effects will these technologies have on traditional forms of cultural expression? What new forms of creativity are they going to make possible or inspire? What influence will they have on knowledge, education, social interaction, working methods, and consumer habits? These are the questions that might be asked.
Difficulties of a legal nature will be involved to a large extent, for the answers to these questions are in many cases going to depend on the way in which the law will be brought in as a framework for these new media, and also the values which will be given priority - freedom of expression, access to information, protection of authors or return on economic investment.
National, regional and international standards are already beginning to be established, notably in regard to copyright protection in the context of the new media. The provisions adopted in December 1996 within the framework of the World Intellectual Property Organization (WIPO) are evidence of this. These provisions, to which we shall have occasion to refer again, are of special interest, for it is from an international angle that appropriate solutions should be sought, in view of the worldwide reach of the new means of communication. Even from the copyright standpoint, which is that of WIPO, it is far from certain that the position adopted, which consisted of focusing mainly on the strengthening of authors rights, was commensurate with the challenges of the Information Society.
This study of the impact of the new media on culture will follow the lines laid down by the World Commission on Culture and Development in its report Our Creative Diversity, in which it is stressed that The key concern as we move forward is to ensure that the real end-user remains in control of the outcome. The consumer, not some technobuffs, must remain the sole judge of demand and consumption in this media-rich world coming into being. Now, in this connection, some misgivings are beginning to emerge. In much of the literature, in the United States for instance, questions are being asked: one writer has gone so far as to refer to a digital world out of balance; and another, referring to the European Directive strengthening the legal protection of databases, has gone so far as to apprehend a new threat to free flow of information.
A broad approach to the subject should be adopted, and culture should be understood as including the most diverse manifestations, for it concerns not only literary and artistic creation, but also lifestyles and consumption patterns, languages and religions¼. It has been pointed out, moreover, that the new media will have an impact on most aspects of life in society.
It is possible to have a static view of culture, as consisting largely of heritage and traditions. Seen from this angle, it is a fund of information, which raises questions as to its use and the means employed to facilitate access to it (education, libraries¼). State measures to encourage good use of these cultural funds may include public support or financing.
It is above all a dynamic view of culture that is required, however: culture is in the first place activity, production, creation; it necessarily includes the expression of ideas, their circulation by old or new means of communication, and then in many cases their revitalization by the recipient, which gives rise to a new creation¼ Creation presupposes protection, but that protection should be carefully adjusted so as not to restrict post-production processes.
The cultural factor is obviously at the heart of the Information Society. Of course the new media seem at present to reduce the perception of culture to what can be expressed in alphanumerical form (the means of access being keyboards, words¼). Incidentally, this justifies the misgivings inspired by the existence in this technological progress of the have-nots of the information revolution. The haves are a minority, mostly in developed countries, and urban residents elsewhere. However, it is possible that these multimedia technologies, which allow the processing of letters and figures in combination with images and sounds, might in the future be accessible through other means - touch-screen pictographs, voice activation, etc.
Whatever the process employed, interactivity is at the heart of the new media revolution; and it brings with it new possibilities for the spread of culture and new forms of creation.
In this context it is apparent that culture in cyberspace raises legal questions. Some of these concern the protection of authors (I), but they extend largely beyond the scope of authors protection, affecting more generally freedom of expression, or again the trade relations that can be entered into as a result of these new technologies (II).
I. Culture in cyberspace within the reach of intellectual property rights
The advantage of considering things first of all from the angle of the intellectual property rights applicable to the new media is, on the one hand, that the regulations existing for this purpose constitute one of the main components of the legal framework of culture and, on the other hand, that international standards do exist - and have recently been adapted, moreover. It is indeed an international approach to the question that is needed in view of the globalization of exchanges made possible by the new media.
The whole problem in regard to intellectual property rights is how to reconcile the interests of authors, whose contributions should be remunerated and whose works should be effectively protected, so as to encourage creation and enrich the cultural heritage, with the interests of the users of those works, who do not want to be subjected to too narrow limitations on access to information and on the use they may make of it.
One aspect of the difficulties encountered in this field is the fact that the new information and communication technologies facilitate unauthorized reproduction and distribution. This argues for a strengthening of the protection of works by means of intellectual property rights.
At the same time, however, it is apparent that the new media now enable authors to reach a considerable number of people, in fact to have huge audiences. This radically changes the situation in regard to copyright, and it can be asked whether this ought not to be an occasion for re-examining the traditionally established balance, in which exceptions to intellectual property rights are rather limited.
So the question arises as to whether, in return for the advantages obtained by creative artists through the wider distribution of their products, the rights of users should not be strengthened and extended.
Adopting this standpoint, I shall consider in turn the need for protection of authors (A) and the limitations which have been, or should be, placed on that protection(B).
A. The need to protect authors
The World Commission on Culture and Development recommended that governments encourage the development of reading and book publishing as part of a cultural industries policy, and establish or extend copyright and neighbouring rights regimes to protect creators rights and domestic production in the face of technological innovation and increased trade in cultural products.
In countries where copyright applies, the classic principles are seen to be effective even in the context of the new media (1). This should not, however, prevent us from seeking new methods of protection if need be (2).
1. Effectiveness of the classic solutions
As the terms in which copyright is formulated - in the 1886 Berne Convention, in domestic legislations - are sufficiently broad, it can protect the authors of all manner of works digitized for circulation on the networks (a). It can easily apply also to digital works, multimedia works in particular (b).
(a) The protection of digitized works in general
As in the United States, the problem has been settled in the European countries: works are protected whatever the form in which they are reproduced or communicated to the public, and therefore even when they are digitized.
In France, for instance, on 14 August 1996, the Paris High Court ruled, in connection with lyrics, that the mere making available of a work of the mind on the Internet constituted an infringement. This same ruling was recalled more recently in connection with Raymond Queneaus poems, which had been reproduced to be put on a Website.
These rulings are fully justified, since copyright covers reproduction in whatever form: the digitization of a work therefore constitutes a reproduction, and if it is done without the authorization of the author it is an infringement. As for communication to the public, it too must be authorized by the author, whether it is effected by live performance of the work, by wire or wireless means.
We will simply point out that the digitization of works and their transmission by means of the new media raise questions as to the relevance of the distinction in copyright between right of reproduction and right of communication to the public, for users seem to exercise the two prerogatives simultaneously when they consult works through their computer terminals - contrary to what happens when they read a book or watch a film on television. As we know, the two rights are not subject to exactly the same rules.
(b) Protection of multimedia works in particular
Copyright can also protect multimedia works. A feature of the multimedia work is its combination of several elements, texts, images and sounds, and its interactivity, made possible by the software associated with it. It can be marketed on a physical support such as a CD-ROM or made available on-line. It has been said that the multimedia work, while it has been created using computer programs, and usually contains computer programs within its structure¼ is not a computer program in itself. Neither is the multimedia work a database in the sense of copyright, although it necessarily contains a database in the computer sense. Neither does the fact that some multimedia works constitute compilations¼ signal the destiny of the whole category.
In fact the multimedia work is protected by common law copyright as a work of the mind, even if there is some uncertainty as to the extent to which the rules specifically laid down for software or for databases are likely to intervene.
It matters little that the multimedia work is often made up of elements belonging to other people, and therefore already protected; in this it is a derived work, and consent to its distribution should be obtained from the authors of the elements of which it is composed. As such, however, it benefits from copyright in the same way as any other derived work, as, for instance, a television film based on a novel. The main question under discussion is whether it can benefit from the status of a collective work, which turns out to be worthwhile for the producer, especially if the producer is a legal entity, for that enables the producer to benefit directly from intellectual ownership.
It has been emphasized that there is no need to recognize a new category of works for multimedia works. The latter can and must be governed by the general principles which the law applies to works in general, given that their creative process does not present any particularities demanding special solutions. It is added, however, that in exchange, it would probably be beneficial to include multimedia works in the enumerations of examples of works attached to laws and international conventions, in order to emphasize the legal recognition of this artistic reality and to denote its autonomy, excluding in this way attempts to apply principles of exception legislated for audiovisual works or computer programs, for example, to multimedia works.
2. The concern for improving protection
Many take the view that information of a high standard and of market value will not circulate on the new media unless there is strong copyright protection. For one thing, it is justifiably feared that digital reproduction and communication techniques make it only too easy to copy existing works; for another thing, the legal protection of databases appears inadequate inasmuch as it is not the form but the content of the work that gives it its value and that content may be appropriated by others. Hence the considerable efforts made of late to strengthen intellectual property rights in the context of the new media.
For instance, it has been observed that some private publishers are republishing classics on which copyright has lapsed and that the new edition involves a certain amount of work. Now, as these classics are no longer protected by copyright, the publisher bringing out a new edition is not recognized as having any right to the work, which can be freely copied by others. It is thought by some that there should be penalties for such acts.
UNESCO has echoed these concerns: Protection of artists rights is fundamental. Technology is opening up many new horizons to artists and their creative work but is also jeopardizing their rights¼ The necessary adaptation to technological development does not justify the dismantling of existing conventions and regulations; on the contrary, it does require the extension of copyright law which has to protect the creators and artists interests as well as guarantee universal access to artistic works. Technologies such as the Internet may require policy-makers to envision new systems of rights which may not necessarily use the principles of copyright.
In this connection, the positions adopted in Europe and in the United States (a), or again at international level (b), are not always convergent.
(a) Positions adopted in Europe and in the United States
In Europe, a number of texts have been adopted to strengthen the rights of authors, or creators: Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, which protects the author from the permanent or temporary reproduction of a computer program (Article 4(a)) and rules out private copying since the user is recognized as having only the right to make a back-up copy (Article 5.2); Directive 96/9/EC of 11 March 1996 on the legal protection of databases, which adds to the copyright protection existing in so far as the arrangement of the contents is original (Article 3 et seq.) a sui generis right for the maker of a database to prevent extraction or re-utilization of a substantial part ¼ of the contents of that database (Article 7 et seq.), protection under this right being limited to 15 years.
Among other features of these texts that are favourable to authors, one might mention: in the case of computer programs, in addition to the right of reproduction, recognition of a right of adaptation (which could hinder maintenance by the clients themselves), a right of distribution (problematic in the context of on-line service), and restrictions on decompiling¼; and, in the case of databases, the relative brevity of the provision concerning the rights of users (Article 8.1 merely provides that the maker of a database may not prevent users from extracting and/or re-utilizing insubstantial parts of its contents).
Yet other measures, which are not justified by the technological context, have been adopted to further strengthen literary and artistic property rights: recognition of the authors rental right and lending right (Council Directive of 19 November 1992), adoption of a text extending the term of protection to 70 years (Directive of 29 October 1993).
The protection of databases in the United States is not comparable with that offered in Europe. The United States Copyright Office recently submitted a report on this subject rather seriously questioning the advisability of such a system.
(b) Positions adopted at international level
At international level, a conference held by WIPO in December 1996 made it possible to include in a treaty to supplement the Berne Convention the protection of computer programs (Article 4 - protection as literary works, whatever may be the mode or form of their expression) and databases, but only in so far as they constitute intellectual creations by reason of the selection or arrangement of their contents (Article 5).
The proposal in favour of a sui generis protection of databases was finally not discussed. Also rejected, although strongly supported by the European Union, was the proposal to specify that the right of reproduction covered any reproduction, whether permanent or temporary, which might have made it possible to establish liability of providers of access, or even telecommunications operators, in cases where infringing works are circulated on the networks.
As for communication to the public, while it has been specified in the Treaty that it extends to any communication to the public [of their works], by wire or wireless means, including the making available to the public [of their works] in such a way that members of the public may access these works from a place and at a time individually chosen by them (Article 8), which corresponds to consultation of a site on the new media, the annexed Agreed Statements mention that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication (Article 8).
The TRIPS Agreement (on Trade-Related Aspects of Intellectual Property Rights), which was adopted in Marrakesh in 1994 within the framework of the Uruguay Round, merely provides for the copyright protection of computer programs and compilations of data (Article 10) and stipulates that limitations or exceptions to exclusive rights shall be confined to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder (Article 13. This principle is reaffirmed in Article 10 of the WIPO Treaty).
At all events, answering the question as to whether more legal rights are needed to protect authors in cyberspace, and also the well-publicized perception that rights holders currently feel so insecure about the availability of adequate legal protection in cyberspace that they are unwilling to make works available in digital networked environments, one author has put forward some reasons to doubt the need for additional legislation, explaining that while much of the information available on the Internet today is free, it is also true that creative people are managing to find ways to make money even from free distribution of information on the Web. The Hotwired site, for example, makes considerable revenue from advertising. This author concludes that The notion that the existing information infrastructure for digital information is all empty pipeline awaiting content is simply a myth.
From the same standpoint, one feels inclined to ask whether the spectacular extension of copyright in recent years, in Europe in particular - term of protection extended to 70 years, right of rental -, is really justified. The need for this question is all the more keenly felt inasmuch as the impression is given that the limitations placed on copyright are tending to be reduced.
B. Limitations on the protection of authors
The new media offer unprecedented opportunities for the distribution of works of the mind, for authors are able to reach an increasingly wide audience. What is more, with on-line service, authors are able to dispense with intermediaries and distribute their works directly without going through a publisher.
It is therefore justifiable to ask whether, in this new context, which is very favourable to authors, it would not be appropriate to think up legal mechanisms that would leave users some new freedoms and opportunities for creativity.
In any case, it is clear that the restrictions to which copyright is traditionally subjected are not adequate in this respect(1), that exhaustion of rights is governed by provisions that protect authors ever more generously (2), and that there is room for some reorganization (3).
1. The restrictions to which authors rights are subjected
Literary and artistic property rights are subjected to restrictions, which give them a certain flexibility, essentially in order to facilitate the circulation of information. Such is the case, for instance, in regard to press summaries, the object of which is to enable a periodical to make known what is published by others.
On these restrictions, therefore, depends in a very large measure the freedom of expression and dialogue allowed individuals, groups, firms, or public figures, who, by bringing the works of others to the fore, play a role in culture.
In this respect, however, domestic laws vary, so in an international context they are likely to prove inapplicable; not to mention the fact that the restrictions provided for are often difficult to implement in the digital context of the new media (a). In addition, the international texts, for their part, are far too vague to serve as a basis for reflection (b).
(a) The inadequacy of the domestic laws
The restrictions to which authors rights are subjected are diverse. In French law they figure in Article L. 122-5 c of the law on intellectual property, which allows reproductions reserved for the private use of the copier, abstracts and brief quotations justified by the critical, polemical, educational, scientific or informatory character of the work in which they are incorporated, reproduction of political speeches as part of news bulletins, etc.
The exception made for private copying is often regarded as inappropriate in the digital world, and especially so in the new media: duplication is so easy and downloading possibilities so great with digital technologies that copying can assume considerable proportions.
More generally, there is reason to believe that the distinction between what is private and what is public is likely to be difficult to establish, particularly in the case of application of the right of communication to the public: electronic mail and the mailing lists procedure do in fact make it possible to communicate the reproduction of someone elses work to a considerable number of people without this necessarily being regarded as an infringement.
It is not enough, however, to note that the existing notions are difficult to apply in this environment. It must then be asked what the alternative is. Clearly, the notion of private copying has always allowed those who wished to become acquainted with someone elses work a certain freedom vis-à-vis the author and the financial constraints of intellectual property rights, and it would be inopportune purely and simply to abolish that freedom.
Incidentally, it will be regretted that the 1996 Directive of the European Communities on databases did not maintain, as it did in the initial draft, the jurisprudence established in France in the Microfor v. Le Monde case, according to which abstracts and summaries of works of others which, because they do not reproduce the substance thereof, do not discourage consultation of the work itself are regarded as licit.
Finally, just for curiositys sake, it might be mentioned that in France the law of 27 March 1997, while incorporating the directives on the rental right and the term of authors rights, departs from an established doctrine that sanctioned the practice, widespread among auctioneers, of including in their catalogues miniature reproductions of pictures or other works of art put up for sale: the text provides that henceforth the procedure is licit, but it restricts this solution, perhaps regrettably, to catalogues prepared for public auction sales.
United States law, for its part, while establishing a certain number of exceptions to the authors monopoly, recognizes the principle of fair use.
This notion is of course restricted by criteria concerning the extent and the substance of the borrowing from another persons work and the purpose of the borrower. Among the purposes allowed figure not only criticism, commentary and reporting, but also teaching and research, which is of particular interest in the context of the new media. However, the exception of fair use has a line of precedents, which makes it difficult to systematize. What chiefly emerges is that non-profit-making uses are more apt to qualify for fair use exception, whereas if the use has commercial implications, the presumption is that it is unable to benefit from this exception.
Under these circumstances, it is difficult to take the notion of fair use as a frame of reference for the restriction of copyright in the context of the new media.
(b) The vagueness of the international texts
The Berne Convention provides, in several instances, that the reproduction or communication to the public of someone elses work for informatory purposes may be regarded as licit: for instance, it stipulates that the protection it affords shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information (Article 2.8), or again that it shall be permissible to make quotations from a work ¼ provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose (Article 10.1).
Most of the time, however, the Convention leaves it to the countries of the Union to adopt provisions concerning the restriction of authors rights. This is the case with exceptions to the right of reproduction, with the proviso that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author (Article 9).
In particular, the Convention leaves it to the countries of the Union to legislate to permit the utilization of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice (Article 10.2).
The text adopted in 1994 within the framework of the TRIPS Agreement merely provides, in Article 13, that members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. Thus we have again the same terms as those employed in the Berne Convention, and there is reason to believe that application of this provision will be no easy matter.
2. Lapse of authors rights
The lapse of copyright can result, in some or all respects, from the first sale of copies of the work, a subject generally presented under the rather misleading term exhaustion of rights (a), or expiry of the term of protection (b).
(a) The problem of international exhaustion of rights
Exhaustion of rights, known in United States copyright law as the first sale doctrine, is the principle according to which once the author has sold copies of the work of which s/he is the right holder, those copies must be able to circulate freely and be sold by those who lawfully purchased them, without further restriction. This principle is valid only for the right of reproduction. Its object is to prevent excessive compartmentalization of markets.
The difficulty is knowing whether or not this principle is valid at international level. The general tendency is to answer in the negative. In support of this, reference is apt to be made to Article 6 of the TRIPS Agreement, which states that nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.
Computer programs, the means of processing information, are particularly affected by this problem. If international exhaustion of authors rights is set aside, it will be regarded as lawful for a supplier to market software at one price in one country and another price in another country and to grant licences that prevent each of the purchasers from importing from the other country.
It may be asked, however, whether methods of distribution based on territorial divisions of this kind will be able to survive the attraction of marketing on worldwide networks, on which the compartmentalization of markets would be very hard to maintain.
(b) The term of protection of the author
Whereas the term of protection granted by the Berne Convention is the life of the author and 50 years after the authors death (Article 7), the European Directive of 29 October 1993 extends this period to 70 years.
In the United States too, whereas the term of protection was extended in recent times, being raised to 50 years after the authors death in the Copyright Act of 1976, as a preliminary to the accession of the United States to the Berne Convention, serious consideration is being given to its extension to 70 years also. A remarkable acceleration in the strengthening of authors rights is therefore to be observed.
It may be found somewhat paradoxical, however, in a world in which everything is going faster and faster - as evidenced in particular by the general trend towards the shortening of limitation or prescription periods in various branches of law - that intellectual property rights should be thus extended. The financial consequences of this will undoubtedly check creativity and slow down the circulation of information. This will adversely affect activities such as the adaptation of works for television, the making of compilations or new editions of works, or teaching¼
Nor is it certain that this measure was taken after a real economic study of its impact.
What is more, on considering the duration of rights in this way, we see the rather artificial character of the tendency to oppose a cultural approach to copyright - which places the author at the centre of the system - to an economic approach - in which industrial and commercial considerations predominate - for in this instance the extension of authors rights appears to conflict with the cultural imperative of circulation of works of the mind.
3. The need for rethinking the problem
It has already been noted that, in respect of many points, the international exhaustion of intellectual property rights in particular, some clarification would be desirable. More generally, it would be helpful to find some basis on which the rights of users of the new media might be defined (a), and to encourage consideration of some of the technical possibilities of the new media, hypertext links, in particular (b).
(a) The definition of users rights
The best indication concerning the rights of users of the new media is to be found in the contracts currently proposed to users of databases. It must be admitted that these contracts have little to say in this regard: it is merely specified in general that the client shall refrain from any use of the data not geared to his or her own needs.
This leaves many questions pending: Are users of the new media entitled to archive the information they have found? Can they redistribute data to a list of recipients with whom they maintain private correspondence? To what extent can they use elements of existing works to build up a new work for subsequent publication?¼
Two categories of possibilities would deserve close examination in respect of the various consequences they might have, as means of disseminating information and stimulating creation in a digital environment in particular - private copying and the making of quotations.
- Private copying. The current tendency is to limit or even prohibit private copying: we have noted this in the Directives concerning computer programs and databases adopted at European level.
In the case of computer programs, since they are processing tools, this solution is no doubt justified, although it might have been qualified, for example, by allowing private use for a limited trial period. Forms of permanent or temporary free distribution, known as freeware or shareware, invented to compensate for the severity of the law, already exist in practice, moreover.
In the case of databases, however, the solution is less evident, for the relationship between supplier and user is established at the outset on the basis of a demand for payment of a fee for queries, or the making available of free access. The reason for prohibiting any copy after consultation under these conditions is not apparent.
It has been suggested, moreover, that account should be taken of the overwhelming sentiment ¼ that it ought to be legal to make an occasional private non-commercial ¼ copy of some kinds of copyrighted works. But it would be advisable to examine the consequences of such a solution and the limits within which it could be accepted. It would no doubt also be necessary, as in French law, to prohibit copying for collective or professional use, and certainly to exclude reproduction on intranets for the needs of a business.
At all events, it would be paradoxical if the fantastic means of distribution made available by the new media were to lead to authors gaining a wider audience while users lost some of their freedom.
- Quotations. Another point which it would be advisable to consider is the possibility of recourse to the right to make quotations from works other than those in writing, to which it is apt to be limited. To allow a right to quote pictures or sounds in the digital environment, in order to encourage creativity, would certainly be a welcome move.
In any case it would seem that the legitimacy of quotations in the visual arts has already been unwittingly recognized with acceptance of the collages in which painters of the interwar period incorporated pieces of newspapers in their works. Certain works of Picasso or Braque thus illustrate the right to make visual quotations before it even existed.
(b) The problems posed by hypertext links
Hypertext links constitute one of the most interesting innovations of the new information technologies. The hyperlink is the cybernetic version of the footnote. With the help of these wonderful tools for interactivity, the user can surf on the net from one document, or site, to another. They also serve as an instrument for editors, who can thus weave the web of their information bases and attach to these sites a confederation of other sites. And if, in the present state of things, the navigation allowed by hypertext remains basic, like leafing through a book, ¼ we must expect spectacular developments.
However, hyperlinking also poses formidable legal problems, especially when it is used to leap from one site to another: it might indeed be asked whether the agreement of the operator of the site to which the user is referred should not be required, and, more radically, what legitimacy a site made up chiefly of hypertext links referring to other sites can possibly have.
II. CULTURE IN CYBERSPACE BEYOND THE REACH OF INTELLECTUAL PROPERTY RIGHTS
The cultural issues of the information society go beyond the scope of the problems connected with copyright. First of all, because information as such is not protected by intellectual property rights: its content must be allowed to be transmitted and reproduced without constraint.
It might even be a good idea, in order to encourage creativity and the distribution of information in cyberspace, to lay down as a principle that any work not specifically identified as covered by an intellectual property right should be regarded as in free circulation, so that anyone would have the right to pick it up and re-use it. This emphasis on the burden of proof would strengthen the freedom of users.
The very fact that such an abundance of information is accessible as a result of the new media is likely to make adoption of this point of view inescapable in the long run, moreover.
At all events, once outside the context of intellectual property problems, in which norms of an international character play an important role, one is left without any frame of reference. Texts such as the Universal Declaration of Human Rights, which recognizes the right to freedom of expression, can of course be invoked. Beyond principles, however, countries diverge widely: for instance, the United States and Europe have very different conceptions of freedom of expression; regulations governing advertising vary considerably around the world¼
In this connection it should also be stressed that one of the difficulties encountered by cultural imperatives is due to the predominance frequently accorded to commercial rules, whether laid down at world level (World Trade Organization, TRIPS Agreement) or just regional level (European Union, North American Free Trade Agreement). In fact, cultural policies are often regarded as contrary to the principles of free movement of goods and services: this is the case with audiovisual works (with the so-called cultural exception question), or the protection of languages.
After the questions that must be answered have been considered from the general standpoint of freedom of expression (A), attention will be focused on the changes brought about in trade relations by the new media (B).
A. Culture in cyberspace and freedom of expression
Many themes might be touched on under the head of freedom of expression. Just a few will be selected here - the diversity of languages, which it is important to preserve (1); questions concerning the content of the information circulating on the networks (2); difficulties raised by the application of rules designed to protect cultural identity (3).
1. Linguistic diversity
The Internet will speak all languages. Such was the opinion expressed by Mr Federico Mayor, Director-General of UNESCO. And this is indeed one of the most important cultural issues for the new media.
Preserving linguistic diversity necessarily implies, in the case of certain languages threatened by the extension of others, adopting protective measures for the preservation of their use. Such is the case, for instance, of the French language, concerning which a law of 4 August 1994 was enacted to preserve its use in the face of the increasing anglicization of forms of speech, particularly in business relations. The law therefore provides that, in the designation, offer, presentation, instructions for use, description of the extent and terms of the guarantee, of goods, products or services, as well as in invoices and receipts, use of the French language shall be compulsory (Article 2), and that any notice or advertisement affixed or made on a public highway, in a place open to the public or in a means of public transport, for the purpose of informing the public, shall be formulated in the French language (Article 3).
Such provisions are nevertheless difficult to apply in the new media. For one thing, when an Internet site is presented in a foreign language, whereas the national language is required by the state on whose territory the site is located, the operator of the site is tempted to delocalize it, in order to escape the constraints of the law. For another thing, in the case of business relations between a consumer, who is a national of a country with protective legislation, and a trader situated in another country, it appears difficult to impose observance of the domestic law requiring use of a certain language.
Incidentally, while legislation of this kind is inspired chiefly by cultural considerations, it becomes apparent that these are often combined with economic considerations, the protection of consumers, in particular. The resulting ambiguity has the unfortunate consequence of laying such provisions open to criticism, for they can be regarded as contrary to the economic principles of free movement of goods and services.
This is evident in the rulings of the Court of Justice of the European Communities (CJEC) in this connection, for it has given rulings against legislations for the protection of languages on the grounds that they went beyond what is necessary to protect consumers.
Under these circumstances, the best course to adopt vis-à-vis the new media seems, not so much to seek to impose a language, but rather to set up means of stimulating the production of information, or the creation of sites on the Internet, in the national or regional language, by national financial measures or tax incentives, if need be. In this connection, measures designed to promote a heritage in the public domain might prove useful.
At international level the African virtual university recently established by the Association of Partially or Wholly French-Language Universities (AUPELF) might be mentioned as an example in this connection. It links, on an experimental basis, 500 students in Dakar, Hanoi and Madagascar, and that is expected to number 10,000 in 1999. It is partly financed by the World Bank and the European Union.
2. The contents of information
Viewing information from the standpoint of its contents means asking questions concerning the liability of operators in respect of information circulating on the networks (a), and also the possibility of controlling those contents by means as yet to be identified (b).
(a) Liability for damage caused by information
Information circulating on the new media may be criticizable because the content is disturbing, or because it is inaccurate and may thus be prejudicial to the persons concerned. The general law of liability should normally apply in the clarification of situations of this kind, and, in particular, sanction the originator of the information in question, or oblige him/her to make good the damage caused.
Nevertheless, questions are being asked too concerning possible reactions to this kind of difficulty with the new media, and this for two reasons. The first is, once again, the global and international character of electronic communication: a great many people are likely to be involved and, in this context, the existence of divergent applicable legislations will appear increasingly untenable.
The second reason is that, with these new media as with the conventional media, the publicity given to information and the existence of intermediaries making possible both that publicity and the access of users raise questions as to the editorial liability of the persons involved - providers of access, providers of server space, providers of navigational aids, operators of search engines¼.
In addition to the issue of the liability of the persons involved, the basic principle of responsibility for the accuracy or recency of information is also under discussion.
- The persons liable. Determining who is liable is far from simple. The question arises chiefly in connection with disturbing, indecent, violent or illegal material circulating on the networks. Obviously, the originator of the material - racist language, for instance - is responsible for his or her statements: this is the case when a site offers material of this type, or when it is exchanged by individuals in a forum. However, this responsibility will often be ineffective, either because the person concerned acts anonymously, or because s/he is impossible to trace, or again because s/he is insolvent¼ So there is no choice but to seek the liability of another person involved.
We will no doubt have to wait to find out whether providers of access or server space, in particular, can incur liability of this kind, and under what conditions. One point seems clear at all events: it is advisable - bearing in mind the apprehensions it might arouse in the persons involved - to avoid a conception of liability that would drive them to set themselves up as judges of the content of the information they give space or access to, for this would result in a rather pernicious form of private censorship.
- The principle of liability - In fact, the very principle of liability is not always stated in the same terms.
It is well known that in the United States, on the strength of the First Amendment of the Constitution, establishing freedom of expression, liability for the circulation of inaccurate or outdated information is not really recognized. In European countries such as France, on the contrary, it is routinely recognized as long as the fault of the originator of the information, or the person who published it, can be proved.
Here there is a divergence of legislations to which thought must be given, for it would be helpful to bring them closer together on this point. For the security of providers of information services and that of users some clarification is required.
(b) Control of the contents
Behind these problems of liability, there are questions of control of the content of information. The development of the new media on a global scale makes it necessary to give thought to this point at the highest level. In fact, while freedom of expression and communication, firmly guaranteed in a great many countries, finds an ideal outlet on the electronic networks, it is also prone to excesses and the difficulty is to know how to contain it.
The approaches adopted are often different, not to say opposed. The European Union, for instance, is anxious to find a way, using coercion if need be, of protecting minors and human dignity, and even of eliminating illegal and harmful content on the Internet, though there seems to be a preference for self-regulation and codes of conduct.
At the same time, it will be noted that in the United States the Decency Act adopted with the Telecommunications Act of 1996 was, on 26 June 1997, deemed unconstitutional by the Supreme Court, thus putting an end to the controversy which surrounded this subject following the numerous actions brought against this text. The Court held that the provisions punishing the transmission and making available of indecent messages were inconsistent with the First Amendment.
Conversely, states such as Singapore or China systematically filter all means of access to the Internet.
While it is essential to try to reach some consensus in this regard, it will clearly be difficult for countries with widely diverging moral views and political ideologies to find common ground. The problems are real, however - various forms of pornography, incitement to violence or racial hatred, organized crime, publication of false information (e.g. concerning market values), breach of privacy¼
3. Cultural exception measures
Various countries have a well-established tradition of cultural protection and choose original solutions in order to preserve this aspect of their identity (Canada, France¼). One such is the establishment of quotas for the broadcasting of works of national origin, or in a certain language, on radio or television. Though often criticized for the restrictions they bring into trade, these measures do have a certain legitimacy, which is in fact gaining ground.
With the development of the new media, however, a convergence of technologies (telecommunications, radio and television) is to be observed which threatens the survival of regulations of this kind: the fact is that the electronic communication networks can carry, in addition to private correspondence (electronic mail) or interactive information services (Minitel service, Web site), radio and television programmes. With the existing facilities large-scale distribution of sound and moving pictures is not yet possible, but it will be in the not too distant future. Under these circumstances, one may have doubts about the future of cultural policies whose implementation is concentrated on certain categories of work (books, films, telefilms and so on).
This holds too with regard to the pluralism of the media - a vital issue for culture. Various domestic regulations are designed to preserve the diversity of currents of opinion and the representation of different political tendencies. They do so not only by prohibiting excessive integration of the press or broadcasting organizations, but also through very practical measures such as control of the distribution of air time on television channels. Now, one may have doubts about the effectiveness of such regulations in the context of the new media.
This does not necessarily mean that the objectives aimed at with these policies must be abandoned. It is just a matter of considering ways of replacing the mechanisms employed to date by new ones which will work in the new environment created by the explosion of digital technologies. Perhaps grants to encourage creation, public financing, or some other form of incentive measure, will take over.
B. Culture in cyberspace and trade
Trade - with the products it carries, the relations it underpins - is an integral part of culture. The new media are going to exert an influence on trade as they do in other areas. They are going to affect the functioning of trade relations, thus affecting long-established legal practices. This will be the case , in particular, with contracts - the cornerstone of commerce.
The development of electronic commerce will establish procedures, in relations between professionals and consumers in particular, that will lead to new ways of contracting; it will gradually become customary to conclude contracts on approval (with the option of withdrawal) (a), merely clicking ones consent (hence a simple take it or leave it contract) (b).
1. Generalization of the consumers right of withdrawal
The cyberspace contract will, as a matter of principle, be a contract on approval. This is because that it will necessarily be a distance contract and in these circumstances recipients of goods or services ordered must be able to withdraw from the contract once they have been able to ascertain the suitability or otherwise of the goods or services provided.
This solution, already recognized by some domestic legislations, was confirmed at European level by Directive 97/7/EC of 20 May 1997 on the protection of consumers in respect of distance contracts. This text, which concerns both the supply of products and the provision of services, not only comprises certain special measures relating to consumer information (Articles 4 and 5), but also recognizes the consumers right to call off an order placed at a distance, within seven working days, without giving any reason (Article 6).
In North America, though customers do not generally have the option of withdrawing, they can in reality withhold payment if they are paying with a credit card, which is not allowed in Europe. Since contracts entered into at a distance, particularly electronic commerce contracts, involve payment by card (nowadays more often than not by means of the number shown on the card, which it is best not to communicate on the network itself, however, for reasons of security), the revocability of the payment order serves much the same purpose as the consumers right of withdrawal.
These provisions are chiefly of benefit to consumers of course. In relations between professionals, it is probable that the reliability of an order is generally taken for granted. However, it is possible that electronic commerce will help to spread the idea that one is entitled to reconsider a commitment entered into at a distance without being in a position to ascertain whether or not the goods or services ordered come up to expectations.
2. Transformation of the concept of contract
One may also wonder what changes electronic commerce should bring to the very concept of contract. In the context of the new media, both the communication of the suppliers general terms and the expression of the customers wishes are reduced to a minimum: the terms are accessible on the commercial site, or in a specialized database, and consent is given by the customers clicking on icons in an information-seeking process¼
Of course it may be thought that this is just another example of the take it or leave it contract, which has long been familiar, for it goes back to the early stages of the standardization of business relations. It seems, however, that the degree of abstraction is now so high that the nature of the contract has changed and one is inclined to ask what has happened to the consent of the parties. In fact questions have been raised concerning the validity in law of contracts concluded electronically.
This is a real problem, as witness the questions raised in one of the latest working documents prepared by the United Nations Commission on International Trade Law (UNCITRAL) concerning electronic commerce, which deals in particular with incorporation by reference. This procedure is supported by electronic commerce professionals because it enables them to invoke their general terms of sale or service (provided that the unabridged text of those commercial terms is accessible in one way or another, electronically in particular). It is pointed out in that document that it would be necessary to clarify how the traditional functions of a contract can be fulfilled through electronic exchanges.
Jérôme Huet is Professor of Law at the University of Paris (Panthéon-Assas), Maître ès lettres (1972), Docteur en droit (1979), Agrégé des Facultés de Droit (1980). Legal adviser at the Agence de linformatique (1980-1985), then at France Télécom (1985-1997). Visiting Professor at the University of Tulane, New Orleans, United States (1988-1990). Principal publications: Responsabilité du vendeur (Litec, 1987); Droit de linformatique et des télécommunications (Litec, 1989); Les principaux contrats spéciaux (Librairie générale de droit et de la jurisprudence, 1996). He is in charge of the journal Droit de linformatique et des télécoms.