Themes: Our Creativy Diversity
A new global ethics
A commitment to pluralism
Challenges of a media-rich world
recasting cultural policies
summary

Jérôme Huet
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.

The solutions will have to be international, as are the new media. They will have to strike an equitable balance between the protection of authors - whose rights may be threatened by the reproduction and distribution facilities afforded by the new information technologies - and the interests of users, who must be in control of demand and have access to the works so as to be able in turn to exercise a creative activity. Creation presupposes protection, but that protection should be carefully adjusted so as not to restrict post-production processes.

Account must also be taken of the fact that, while the new media present risks of unauthorized reproduction and distribution, they also enable authors to reach much bigger audiences. This being the case, it would be necessary to determine, with accurate economic measuring instruments if possible, the potential for the distribution of works of the mind that the new media bring to authors, and the profits that can result. And, in return for these profits, consideration should be given to legal means of developing access to culture by the strengthening or diversifying of users’ rights.

It is observed that the provisions of the Berne Convention, and also existing domestic legislations on copyright, are formulated broadly enough to protect works circulating on the new media. This holds both for traditional works digitized for communication in this way, and for multimedia works created in digital form at the outset. In Europe, as in the United States, works are protected whatever the form in which they are reproduced or communicated to the public, and therefore even when they are digitized. So it is not necessary to strengthen the protection of authors in this respect, or to recognize a new category of works - multimedia works.

In Europe, consideration has been given to the risks of infringement specific to the new media and the economic losses that authors might sustain as a result. In particular, Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs ruled out private copying for users of software (only a back-up copy is authorized); and Directive 96/9/EC of 11 March 1996 on the legal protection of databases added a sui generis right for the maker of a database, to prevent extraction or re-utilization of a substantial part of its content.

Other texts giving more protection to authors have been adopted - in particular, the European Directive of 29 October 1993 concerning the term of protection, which was extended to the life of the author and 70 years after.

In the United States, on the other hand, protection for databases is not comparable with that offered in Europe. The United States Copyright Office recently submitted a report on this subject rather seriously doubting the advisability of such a system.

In fact, few decisions in this connection have been taken at international level: the recent WIPO Conference held in December 1996 was unable to reach agreement on subjects such as the protection of databases by a sui generis right, or the broader definition of the right of reproduction advocated by some.

At the same time it is observed that the restrictions to which authors’ rights are subjected for the benefit of users vary with the domestic legislations and are likely to be inapplicable at international level. They are difficult to implement, moreover, in the context of the new media, where the right to private copying, for instance, might allow of duplicates being sent privately to numerous recipients by electronic mail.

These difficulties should not for all that lead us to think that the restrictions to which copyright is subjected for the benefit of users should be abolished: an alternative must be sought to replace them in the digital environment.

United States law, while establishing a number of exceptions to the author’s monopoly, recognizes the principle of ‘fair use’. This notion is restricted by criteria concerning the extent and the nature of the borrowing from another person’s work and the purpose of the borrower. However, the exception of ‘fair use’ is based on a line of precedents, which makes it difficult to systematize.

As far as international texts are concerned, both the Berne Convention - which provides in particular for the right to make quotations from the work of others - and the TRIPS Agreement (on Trade-Related Aspects of Intellectual Property Rights) leave it largely to the national legislators to determine the restrictions to which authors’ rights are to be subjected.

The protection of authors is limited, moreover, by the international exhaustion of rights, which is valid for the right of reproduction. However, application of this principle, recognized in Europe and in the United States, is keenly debated at international level. Its rejection at international level would be likely to check the circulation of works of the mind, and hence creativity.

In this context it appears essential to find some basis on which the rights of users of the new media might be redefined, with particular reference to determining the scope of the concept of private copying (which might be prohibited for works such as computer programs, while being allowed in the case of databases), or again the scope of the right to make quotations (which should be recognized for all works, including audio and visual works, and not just works in writing, to which it is often limited)¼

More generally, account should be taken of the overwhelming feeling of users that making a copy for one’s own needs of something that is accessible on the new media does not infringe the author’s rights.

It would be paradoxical indeed 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.

Another aspect of cultural development in cyberspace lies in freedom of expression. This takes us to the preservation of linguistic diversity, the legal problems raised by the content of information, and the applicability of cultural exception measures in the new media.

In so far as the preservation of plurilingualism as a vector of culture is concerned, some countries whose language is threatened by the extension of English, such as France, have enacted legislation designed to impose use of the national language in trader/consumer relations and in any communication to the public through the media. It is difficult, however, to ensure that coercive measures of this kind are observed in cyberspace. A policy of promoting national languages on the network by setting up Internet sites in those languages would certainly be more effective. This could be achieved with the help of financial or tax incentive measures, if need be; measures for the valorizing of a heritage in the public domain might also be helpful.

Then again, while the development of culture in cyberspace requires freedom of expression, this has its counterpart in liability for information, since information with illegal, inaccurate or outdated contents may cause all manner of harm to businesses or individuals. The divergence of domestic remedies in this area is likely to prevent victims from exercising their rights, which they will find it hard to justify.

As it is sometimes difficult to trace the person at the origin of information offered on the network that could be criticized, one is inclined to ask whether a chain of responsibilities of an editorial nature might not be applied. It is not yet known whether providers of access or of server space can incur liability of this sort, but it would not be desirable for them to be driven to censor themselves the information they distribute.

We must therefore identify the principles that should govern responsibility for information circulating on the new media - levels of responsibility, persons liable¼

At the root of these problems of responsibility lie questions relating to 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 approaches often differ - not to say diverge - widely, between the United States, the European Union, China, Singapore¼

Finally, certain countries, or certain regions, want to preserve their identity by adopting cultural exception measures. These may, for example, consist in quotas for the broadcasting of national works on radio or television. The development of the new media, however, threatens the applicability of such measures. This holds too in regard to the pursuit of a certain pluralism in the media with the object of preserving the diversity of currents of opinion, the and representation of different political tendencies. The difficulty encountered here should not, for all that, lead to the abandonment of the objectives these policies seek to attain. It is just a matter of considering ways of replacing the mechanisms employed to date by new ones adapted to the electronic context.

While thought is being focused on these problems, it would be helpful to monitor legal aspects, possibly within the broad framework of an observatory of information technologies, to follow the development and identify the characteristics of the new media - the influence exerted by interactivity and the interplay of hypertexts, changes in contracting practice in electronic commerce.


"Recasting cultural policies"
Introduction
Jean Barthélemy
Bennett & Mercer
Néstor García Canclini
Cliche, Mitchell & Wiesand
Jérôme Huet
Britt Isaksson
Lofti Maherzi
Sally Jane Norman
Michiro Watanabe
pijltje.gif (895 bytes) A new globlal ethics
pijltje.gif (895 bytes) A commitment to pluralism
pijltje.gif (895 bytes) Challenges of a media-rich world
pijltje.gif (895 bytes) Recasting cultural policies
General introduction
recasting cultural policies