Giovanni Di Lieto

THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING

International Trade Law and Creative Expression in the Digital Information Age BY:

GIOVANNI DI LIETO, PhD Candidate

Faculty of Law, University of Otago, New Zealand
[for Art and Law, A Symposium Hosted by the Dunedin School of Art at Otago Polytechnic and the Faculty of Law, University of Otago 29 October 2010]

Keywords Intellectual property/copyright law, public domain/creative commons, authorship, entertainment/creative industry, end-users/consumers, free culture/copy left, international trade law, digital information age. Abstract Alongside the development of new digital technologies, traditional creative industries (movie, recording and publishing) have achieved a global marketplace, therefore facing the issues of a new environment of intense global exchange. The international expansion of copyright law reflects the threats and opportunities of creative expression in a digitized world. On the one side, the rise of digital technologies has made creative authors and artists interests particularly vulnerable to disregard, infringement and abuse. Copyright law pursues the protection of their interests, with particular emphasis on commercial aspects, virtually becoming the only channel between the world of ideas and arts and the world of commerce. On the other side, the commodification of knowledge improves the economic power of cultural industries, channelling the individual creative expression in the rough current of global trade, where the preservation of heritage and encouragement of creativity struggle to float. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) promotes effective and adequate protection of intellectual property rights in order to reduce distortions and impediments to international trade. The new framework expressed in the link of intellectual property right with international trade is altering the preexisting balance between cultural and commercial interests in knowledge and, substantially, the power of authors to control their works against publishers who commercialize them and a public that receives, experiences and reuses them. The TRIPs Agreement throw off balance to the trade-related side and is likely to affect the arts, creativity and cultural heritage in the long term.
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In the context of a digital environment that makes creating and contributing to the culture easier than ever, the public is increasingly involved in the creative work of author and artists and opposed to their commercial exploiters. Anti-copyright activists advocate approaches such as free culture, open source and copy left in order to unchain and promote creative expression outside copyright-tight, corporate control, which is the key concept of a permissive and participatory system (read/write culture) where efforts to improve upon, change, integrate or remix knowledge encourage creativity, as opposed to permission (or read only) culture societies, where copyright holders require payment for each use of even derivative work. Introductory questions This paper is ultimately concerned with the issues arousing from the recently developed intertwinement of international trade law and art. The attempt to answer the following questions sets the perennial clash of philistinism and culture on the spotlight of our digital age: - Does the greater ease of copying and distributing require more or less stringent intellectual property laws? What would be their impact on creativity? - Is the international trade law upsetting the delicate balance between artists, publishers and public, the traditional actors of copyright law? - Does the digital environment entitle the public to a participatory role in the creation of knowledge? Does it also challenge the artists not to stand by an oblivious role subordinate to the corporate side of the creative industries? - Is there a better way beyond intellectual trade law for the creative industry to adapt to the digital age while still paying its artists their due? Contents I. International standards for the protection of IP rights II. International trade law of IP III. IP rights and digital media IV. The international harmonization of IP rights V. Balancing the interests of creators, copyright industry and consumers VI. New patterns emerging from international copyright law VII. Paracopyright and legal protection for technical measures VIII. The new wave of Free Culture/Copy Left in art and law IX. The paradigm of Creative Commons X. The debate on public domain of creativity in the digital information age

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The influence of law will grow as it rids itself of abiding conceptualism and outdated concepts, eliminates elements which feeds a sense of injustice and bases itself firmly on contemporary ideas of equity and on mutual interest. 1

I. International standards for the protection of IP rights A rather intricate apparatus of international treaties determining standards for copyright protection interacts in the creation of separate sets of obligations between different parties worldwide. The reciprocal influence of such treaties is not always complementary, as significant dissimilarities can be found in terms of substantial law and enforcement obligations. However, treaties and conventions generally reflect the principles of the Berne Convention for the Protection of Literary and Artistic Rights, as governed by the World Intellectual Property Organization (WIPO) and the increasingly important Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). In 1886, an international conference in Berne seeking a copyright agreement adopted the eponym Convention for the Protection of Literary and Artistic Works. The signatories of the Berne Convention form a union for the protection of the rights of authors in their literary and artistic works, known as the Berne Union. The Berne Convention intends to protect literary and artistic works, encompassing virtually every production in the literary, scientific and artistic domain such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic and musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works and those created by analogous processes; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works and those created by analogous processes; works of applied art; and illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. It also protects, among other things, translations, adaptations and arrangements of music and other alterations of literary and artistic works, including cinematographic and photographic ones.2 The main features of the Berne Convention are the minimum standard of the life of the author plus 50 years as the term of copyright for most types of works 3 and the principle of national treatment, requiring a Berne Union member to provide the same rights granted by its domestic laws for its own nationals to the nationals of every Berne Union
1 2

L.Henkin, How Nations Behave (1968) at 247

World Intellectual Property Organization (WIPO), Berne Convention for the Protection of Literary and Artistic Works, (Berne, 1886 and further revisions and amendments), Article 2: Protected Works at <http:// www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html>.
3

World Intellectual Property Organization (WIPO), op.cit., Article 7: Term of Protection.

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country.4 Works published in any Berne Union country and unpublished works authored by a citizen or resident of any Berne country enjoy automatic protection.5 In the course of its long-lasting continuance, several supplementary agreements have extended the Convention in response to technological changes requiring to expand the works and rights that it covers in new markets.6 Nonetheless, in the past three decades there have been no further substantive revisions of the Convention as its administrator, the WIPO, has focused rather on the information exchange among member states and aimed at a guided framework development in terms of recommendations and model laws. As a result of the WIPOs soft-power governance, the emergence of global markets for information goods has been followed in reverse by the increasing development of differing copyright regimes in different nations. The inevitable clash between global markets and idiosyncratic local copyright laws prompted a new regime at the level of public international law. In addition, the lack of an enforcement mechanism under the WIPO apparatus justified the claims of the promoters of a new international copyright framework under the international trade system. Thus, not the WIPO, but the General Agreement on Tariffs and Trade (GATT) through the 1986-94 Uruguay Round Protocol gave rise to a global agreement on trade-related aspects of intellectual property (IP) rights, later known as TRIPs. II. International trade law of IP In 1994, the TRIPs agreement introduced new cross-border trade rules with the view to harmonize the protection and enforcement of IP rights across the world and tally with globalized markets. TRIPs deals with a vast array of copyright and related rights, including trademarks, geographical indications, industrial design, patents, layout designs and trade secrets.7 The agreement addresses five broad issues: a) application of basic principles of the trading system and other international IP agreements (national treatment, most-favoured-nation treatment and contribution to technical innovation and the transfer of technology);
4 5 6

World Intellectual Property Organization (WIPO), op.cit., Article 5: Rights Guaranteed. World Intellectual Property Organization (WIPO), op.cit., Article 3: Criteria of Eligibility for Protection.

Supplementary agreements extending the initial Berne Convention include: the 1928 Rome Convention for the Protection of Performers, Producers of Phonograms & Broadcasting Organizations; the 1971 Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms; and the 1974 Brussels Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellite.
7

On the protected areas and following broad issues, see further: World Trade Organisation, Intellectual property: protection and enforcement at <http://www.wto.org/english/thewto_e/whatis_e/tif_e/ agrm7_e.htm>
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b) obligations related to provide for adequate protection of IP rights; c) enforcement within the boundaries of member governments for the effective protection of such rights; d) adoption of the World Trade Organization (WTO) dispute settlement mechanism; and e) special transitional arrangements, including arrangements for developing countries. In addition, TRIPs requires that its parties abide by the substantive law provisions of the Berne Convention with specific regard to copyright. The Agreement also affirms that computer programs are protected as literary works under the Berne Convention, indicating basic principles in terms of the copyright protection of databases. Significantly, TRIPs includes in the international copyright framework important provisions on rental rights. The agreement also contains the three-step-test, governing the national exceptions to copyright on the proviso that pertain to: (1) certain special cases, (2) which do not conflict with a normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the right-holder.8 Although the TRIPs Agreement displays the growing importance of trade rules in the arena of international IP law by expanding the geographical coverage of IP protection, it does not thoroughly address the most recent and challenging developments in the digitized environment of creative expression further what is already existing along the lines of economic regimes of the industrialized world. III. IP rights and digital media Benefiting from the TRIPs gaps in digital communication and information technologies, WIPO could regain some of its lost relevance by proposing a new treaty for the online environment and an update of the protections for performers, producers of phonograms and broadcasting organizations. In 1991, WIPO started a lengthy process involving the appointment of a committee of experts deputed to analyze studies and reports submitted by institutional bodies worldwide with a view to draft a special agreement. In 1996, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) were adopted and became law in 2002. Significantly, the USA signed both treaties and the European Union readily implemented them through the European Copyright Directive (EUCD 2001/29/EC), implying the transposition of the treaties into the national law of EU member states. The WCT regulates the protection of literary and artistic works virtually overlapping the Berne Convention, although it explicitly includes computer programs and databases in the copyright protection. In general, the WCT identifies three specific rights (of
World Trade Organization (WTO), Annex 1C of the Marrakesh Agreement Establishing the WTO: Agreement on trade-related aspects of intellectual property rights (TRIPs - Signed in Marrakesh, Morocco on 15 April 1994), Part II - Standards concerning the availability, scope and use of Intellectual Property Rights, Article 13 at <http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm>
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distribution, rental and communication to the public) and concentrates on three important issues so that it updates and expands the corresponding Berne Convention features.9 The Treaty affirms an exclusive right of distribution to authors, allowing its signatories to determine if and under what conditions the exclusive distribution right will apply beyond the first authorized transfer of ownership, whereas the Berne Convention only granted this right with respect to cinematographic works. Remarkably, in the USA the distribution right exhausts after the first sale (the first-sale doctrine).10 The WCT also accords the exclusive right to authorize the commercial rental to the public of the originals or copies of their works to authors of cinematographic works, computer programs and works embodied in phonograms, establishing important limitations not present under the Berne Convention. Moreover, the WCT confers on authors of literary and artistic works the exclusive right to authorize any communication to the public of their works, by wire or wireless means, including by making them available via interactive on-demand services or the like, whereas the Berne Convention limits this right to certain categories of works and with regard to the means of communication. With particular regard to the three main issues, the WCT prolongs from 25 to 50 years after the authors death minimum duration of the protection of photographic works, so that it can match all other works under the Berne Convention. The treaty also sets forth a framework for applying limitations of and exceptions to copyrights under the condition of the incorporated three-step-test. Last, but most importantly, the WCT puts forward new international rules on the comprehensive right of communication to the public and the protection of technological protection measures, that benefit right-holders and the copyright industry at large, especially with regard to online media. The treaty mandates its signatories to provide for adequate legal protection and effective legal remedies against the circumvention of access and copy control technology measures that are used by authors in connection with the exercise of their rights under the WCT or the Berne Convention and that restrict acts that are not authorized by the authors concerned or permitted by law. Overall, the WCT can claim the merit of improving the interpretation of existing rules in the wake of innovative technological developments due to the introduction of updated international provisions regarding copyright. Nonetheless, the WCT appears to work to the advantage of IP owners interest over others, so that the recent Geneva Declaration

On the WCT rights and issues, see further: World Intellectual Property Organization, WIPO Copyright Treaty (adopted in Geneva on December 20, 1996) at <http://www.wipo.int/treaties/en/ip/wct/ trtdocs_wo033.html> In the United States, the first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court in 1908 (Bobbs-Merrill Co. vs Straus) and codified in the 1976 Copyright Act at 17 U.S.C. 109.
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on the future of WIPO urged to assume an impartial approach on IP rights and their social benefits and costs with a view to promote creativity.11 As a result of the Declaration, the WIPO advanced a development agenda concerned with balancing the global policy on IP rights, which still registers significant incongruences among national copyright systems, despite the WCT efforts in leveling the area transnationally. IV. The international harmonization of IP rights In the face of the increasing globalization of commerce and communication that is upsetting the traditional roles played in art by creatives, exploiters and end-users, copyright legal systems still vary remarkably among continents and across regions. The present evolutionary state of national copyright regimes displays a multi-tier approach, according to the level of technological development and relevant implementation of international rules and treaties. Roughly speaking, copyright laws of developing countries either do not exist at all or have not incorporated the minimal protection standards introduced by the Berne Convention or other international treaties. Going up the ladder, we can find legal apparatuses that implement the TRIPs or at least other relevant basic international trade norms. Most of the Western countries as well as many countries in the Association of South-East Asian Nations (ASEAN) region belong to this group of developed IP legislations. On the top are the most advanced regimes that have copyright laws incorporating also the WIPO Treaties. Countries such as the USA, Canada, European Union members, Australia, Malaysia and Japan have already responded to the transition from offline/ analog to online/digital media and information. Notwithstanding enduring differences in the levels of copyright protection and implementation of international rules, trans- and supra-national harmonization and convergence of copyright laws seem to be the recognized trends. Trade interests are certainly the driving forces behind this evolutionary development of national and regional IP regimes, as TRIPs became the pivotal legal framework for the leveling of the global arena of IP protection. As delineated, TRIPs implementation is at the crossroad of the transitional process from developing to developed copyright legislations. Conversely, the implementation of the WIPO Treaties plays a relatively minor role and somewhat in contrast with that of TRIPs, as the former guides the transition to the most advanced stage of copyright regimes in terms of conforming to new technological developments rather than harmonizing legal provisions. It is actually the need for bilateral trade agreements that leads some countries to adopt the highest standards of IP protection, thus rendering the WIPO treaties functional to the international trade law.
11

See further: Geneva Declaration on the Future of the World Intellectual Property Organization (Geneva, 4 March, 2005), at <http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf>.
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Similarly to all other areas of free trade, the stronger trading countries usually negotiate the exchange of information goods, entertainment and other art-related products on the proviso that the weaker and less-developed counterparts become compliant to TRIPs and, secondarily, WIPO standards. As a deliberate result, such international treaty system, in which TRIPs plays the leading character, is effectively harmonizing and making compatible a vast array of national copyright systems, specifically in terms of prerequisites of copyright protection, duration and scope of protection and basic rules regarding limitations and exceptions to copyright. Despite these drivers for harmonization and even in the context of the most advanced copyright apparatuses, significant dissimilarities can be identified in the substance of law. Therefore, in the face of powerful international trade forces seeking uniformity, national policy makers still have some degree of autonomy regarding how to comply with the minimal standards set forth by international treaties that not always mean to achieve absolute conformity. National legislators often implement alternative approaches without violating treaty obligations.12 Especially in copyright enforcement, there are many reasons for such persistent differences, mostly because civil and criminal procedure laws is an area of law that has not been internationally harmonized to the same extent as substantive copyright law, not to mention the effect of economic, cultural, historical and other differences in law enforcement practices. For its own intangible nature, online piracy appears to be the most evolved IP law enforcement area in terms of involving governmental task forces and other stakeholders across national boundaries. V. Balancing the interests of creators, copyright industry and consumers Given the leading role of international trade law in both harmonizing and setting the free range of national IP legal systems, it is crucial to understand whether we are in the presence of an epochal upset of the delicate balance between artists, publishers and the public, as pursued and in some ways achieved in the past by the soft international regime of copyright law set under the Berne Convention principles. With specific regard to certain information and digitized environments, the traditional actors of copyright law are benefiting of the international harmonization in asymmetrical ways, such as shown by legislative and regulatory development which in addition to relevant case law suggest clear patterns in the IP-trade linking trends. The commercial exploiters of art and creativity, in IP law terms commonly referred to as right-holders, are without doubt enjoying a privileged position in the current international copyright frameworks, as the harmonization broadens the rights of the industry and

12

For examples in the EU and WCT context, see further: U. Gasser and M. Girsberger, Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States, A Genie Stuck in the Bottle?, Harvard Law School, Berkman Research Publication (Cambridge, MA, USA) at No. 2004-10, <http://cyber.law.harvard.edu/media/files/eucd.pdf>.
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contracts the local peculiarities in laws and enforcement that make cross-border operations complicated and expensive. Arguably, the more advanced the copyright regime the stronger is the role of the rightholders, due to the fact that international treaties have extended the scope of IP law protections and diminished its limitations and exceptions, the traditional mechanisms for balancing the interests of industry and consumers, with the excuse of conforming to technological innovation. However, particularly in the digital media, industry has to face regional and national variables against copyright infringements not only in copyright, but also in enforcement practices, contract and consumer protection law. Under a commercial point of view, different legal and regulatory regimes and practices have always staggered the global distribution of digital media services such as online music stores and on-demand video services.13 Conversely, as rights usually increase for one party and at the same time decrease for another, consumers/users access to and use of digital content are more than ever restricted. Limitations to copy and access control technologies for digital capturing and sharing are promoted by international treaties like the WCT/WPPT and supporting laws incorporated in free trade agreements, in combination with reluctant application of traditional exemptions, such as first sale or fair use principles. This evolution is upsetting the delicate balance between the interests of public and right-holders, also with significant implications which undermine the greatest potential of the Internet as the spur of creativity in terms of reshaping consumers from passive receivers of art and information into active users and creators of contents.14 Thus, legislative and regulatory issues impact significantly on commercial aspects of the expanding industry of online media services, as globalizing providers such as iTunes or Napster base their expansion to new international markets on the degree of development of national digital law systems and on further improvements to the international copyright framework. From a commercial perspective, right-holders and other digital media industry actors expand multifaceted business models and practices according to the particular legal regime in which physically operate. Under a legal and regulatory aspect, the issue of copyright legislation in the digital information age becomes of crucial importance and impact, well beyond its technical scope. The evolution of a legal and regulatory environment for digital media that pursues a new balance between all relevant interests inspires questions and concerns about what
13

For example see the case study of Apples iTunes Music Store expansion into new European markets, in Digital Media Project, Berkman Center for Internet & Society at Harvard law School (Cambridge, MA, 2004) at <http://cyber.law.harvard.edu/media/itunes_europe>.
14

On the copyright implications on the creative potential of Internet, see further: Lawrence Lessig, Free Culture, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, The Penguin Press (New York 2004).
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degrees of freedom in creativity and consumption are related to innovative best practice models. Such issue is especially momentous for countries at an earlier stage in the evolution of their copyright regime, but also for more developed legal systems in their quest for sustainable solutions to the contrasting expectations of industry, creators and users imposed by digital technologies. VI. New patterns emerging from international copyright law With particular regard to the online media industry based on creative digitized contents, a new category is increasingly stepping onto the stage of international IP law, as online service providers have to weave their way through the traditional tripartite pattern of copyright law intertwining the interests of artists, right-holders and consumers. New trends of the internet industry display service providers such as YouTube offering sets of copyright policies which combined to advanced content management tools give right-holders of all sizes and natures across the world control of their contents.15 Such content partnerships are highly flexible and do not involve any contractual or commercial binding relationships, as content owners can choose the preferred policy when their audio or video material is streamed online: monetizing, tracking or blocking being the alternatives. To a greater extent media companies deliver their inventory of exploitable material in order to improve distribution, users-interaction, collect market data and prevent copyright infringements. In terms of IP law, the nature of digitized service providers is fluid as they can simultaneously join forces with all three traditional actors of copyright protection. In fact, service providers are not only content partners with the creative industry, but also often enable would-be-famous artists to reach wider audiences, at the same time letting consumers access a wealth of creative contents that are essentially copyright-free. Under regulatory and enforcement perspectives, the multi-tier and not legally answerable nature of service providers is to a greater degree under siege by both governments and industry, calling for improved controls and accountability in terms of censorship and copyrights infringements. As there is no black letter law yet with this respect, the recent pronunciation of a Spanish federal court dismissing charges of copyrights infringements against YouTube assumes a significant and evolutionary value in terms of determining the liabilities point of entry of the different actors in international IP law.16 In the merit of the case, Telecinco, a large Spanish broadcaster, had claimed that YouTube should be liable when users upload copyright-infringing material. The content
15

On internet content partnership and management, see further: Youtube, Content Management/ Overview at <http://www.youtube.com/t/contentid>.
16

See the news report on: Wall Street Journal On Line (New York, 23/9/2010) at <http://online.wsj.com/ article/BT-CO-20100923-704110.html>
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management opportunity offered by YouTube to remove copyright-infringing content induced the high court to reject Telecincos allegation. This means that it is the exclusive responsibility of the copyright owner to identify infringing content and instruct the service provider to take down unauthorised material. Thus, service providers become responsible only after they are notified by the right-holders, reaffirming the balance of European law that seeks to protect copyright owners interests while allowing hosting platforms to operate and interact with artists and the public in new creative ways.17 Well beyond its geographical boundaries, the Spanish Court pronunciation is likely to strike a new balance of copyright protections in the global governance of artistic, commercial and common domain interests within a digitized environment. VII. Paracopyright and legal protection for technical measures In times past a prosaic and dull area of the legal system, property law in its intellectual specialty is increasingly being debated in the arena of arts, sciences and politics, especially with regard to copyrights in digital information environments. From the one side, the capability of new technologies to convey instant, inexpensive and perfect copies of text, sound and images are welcomed as an enhancement in freedom of creative expression. From the other side, the greater ease of copying and distribution concerns established creators and particularly the recording, publishing and movie industries, altogether calling for more stringent intellectual property laws. Such creative industries often successfully lobby lawmakers to lengthen copyright terms and also to extend the scope of their protection, to the extent that a new legal layer is being added to copyright and contract laws. This recent progression is called paracopyright or metacopyright law, for it prohibits not only duplicating protected material but in some cases even gaining access to it in the first place.18 Paracopyright provisions can be found in the 1996 WIPO treaties on internet, giving copyright holders legal protections for the new technologies in use rather than dealing with the scope of copyright. In cyber-law terms, "legal protections for technical measures" seek to refrain technically sophisticated users from infringing digital copyright by locking and encoding contents with embedded authorized access technology. The issue is that both the locked content and the technology containing the key are commercially available to an infringer. Once a user decodes a technical measure, the decoded content can be made available to others in the same way as if the technical measure never existed. Thus the legal protections for technical measures intend to impose specic contractual license agreements on those conforming to copyright law. Therefore, paracopyrights are
17

The most important set of EU legislation on the harmonization of certain aspects of copyright and related rights in the information society is the European Union Copyright Directive (EUCD) 2001/29/EC of the European Parliament and of the Council (22 May 2001).
18

P. Jaszi, Intellectual Property Legislative Update: Copyright, Paracopyright, and Pseudo-Copyright, Association of Research Libraries (Eugene, Oregon, 1998) at <http://www.arl.org/resources/pubs/ mmproceedings/132mmjaszi~print.shtml>
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in a grey area between contract and copyright law, potentially creating imbalances in the law due to the fact that important regulations regarding consumer protection and the contractual freedom are not imported directly into paracopyright laws. Roughly speaking, in copyright law there is on the one hand the exclusive right to copy a work and on the other its infringement when the work is copied without permission. In paracopyright terms instead, right-holders claim the exclusive right to circumvent the so called Technical Protection Measures (TPMs) applied to their works and to develop and distribute devices that enable or facilitate circumvention of TPMs. Therefore, forcing anti-circumvention and anti-device measures under the paradigm of copyright law appears to put a conceptual strain on what is traditionally described as a bundle of exclusive rights. In practice, adding the exclusive right to apply a TPM to a copyright work seems to be a provision rather consistent with contract law.19 VIII. The new wave of Free Culture/Copy Left in art and law In response to these developments and the liberating potential of the Internet, a new wave of lawyers, scholars and civil rights activists fiercely protest against bolstering copyright protection that in the name of fighting online piracy thwart the artists and users ability to experiment and create, thus eroding democratic freedoms. This group of social reformers is commonly referred to as the ''free culture movement,'' or ''Copy Left'', a term originally used by software programmers to indicate products with fewer or no copyright restrictions.20 Far from sharing a coherent political ideology, the common thread of the free culture movement is the contention against the evolution of the various national copyright systems suppressing innovation and creativity, despite the fact that they were originally designed to encourage such skills. The free culture movement asserts to be fighting for a traditional understanding of intellectual property in the face of recent trends in international copyright law, that are likely to upset the delicate balance between art and commercial law, thus making the world less free and ultimately less creative. They especially fight the growing notion that intellectual property rights should never expire and works never enter the public domain, whereas they insist on the idea of short-term copyright law that gives individual creators the exclusive right to profit from their intellectual property. If reasonably timed, copyright law would then allow successive generations of creators to draw freely on earlier ideas, while still allocating an adequate incentive to create. Such vision claims that borrowing and collaboration are
19

On the legal nature and implications of TPMs, see further: I. Kerr, To OBSERVE AND PROTECT? How Digital Rights Management Systems Threaten Privacy and What Policy Makers Should Do About It, in Intellectual Property and Information Wealth: Copyright and Related Rights (vol. 1), Edited by Peter Yu, Praeger Publishers, (Westport, Connecticut 2007).
20

On free culture movement and creative commons see further: L.Lessig, Free Culture: how big media uses technology and the law to lock down culture and control creativity, Penguin Press (New York, 2004) at <http://www.free-culture.cc/freeculture.pdf>.
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essential components of free culture and creativity, as no one really writes, paints or composes music out of thin air and everyone takes the world as it is and remixes it.21 As subsequent to the copyright lapse, the Copy Left advocates the importance of the so called creative commons, the public domain of artistic works from which anyone has equal right to partake without having to pay or ask permission. While rejecting charges of being post-communist theorizers, the free culture promoters assign the public domain/creative commons a key role in defending social and cultural progress, on the same level and as much as private/intellectual property does. As opposed to the creative commons stands the so called permission culture to which, arguably, our current copyright law is drifting. Within a permission culture regime of digital information environments, users have to purchase, lease or license a song, video or e-book only under restrictive conditions. They can read an e-book, but without copying and pasting any selections; they can listen to music or watch a video on their digital player, but without burning or transferring any part of it onto a CD-DVD. As a consequence of permission culture, innovations like iTunes, Apple's popular online music store, much of the cultural and creative activity that is currently taken for granted, such as consulting an encyclopedia in the public library, selling or lending a textbook to a friend or copying a song for a sibling is channelled through a system of micropayments, reaching even the smallest pieces of creative works in the face of the relentless trend of doling out the public domain of culture. The Copy Left group warns that the consequences of laws now being passed in the name of preventing piracy are likely to be an irreversible curb on free culture and creativity, noting that each major innovation in the history of communications, such as the printing press, radio, telephone and now internet, was followed by a brief period of unregulated openness before the rules of its usage were determined and alternatives eliminated.22 The US legal framework evolution on IP protection is exemplary to show how the demand for tighter copyright laws goes hand in hand with socio-economic development from agrarian through to industrial and finally information systems. In 1790, copyright protection in America lasted for 14 years and could be renewed just once before the work entered the public domain. The 1909 Copyright Act doubled the maximum term to 56 years. Today, copyright protection for individuals lasts for 70 years after the death of the author and for 95 years after publication for corporations, as the 1998 Copyright Term Extension Act lengthened present and past copyrights for an additional 20 years, so that a diminishing flow of creative works are currently entering the public domain of the country.

21

Y.Benkler, The Wealth of Networks: How Social Production Transforms Market and Freedom, Yale University Press (New Haven and London, 2006) at page 300, <http://www.benkler.org/ Benkler_Wealth_Of_Networks.pdf>
22

L.Lessig, The Future of Ideas: The Fate of the Commons in a Connected World, Random House (New York, 2001) at 3.26.
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Not before 1909, copyright included the prohibition to copy ones creation to the traditional exclusive right to publish it and in 1976 a revision to the law dispensed with the requirement of formally registering or renewing a copyright in order to comply with international copyright standards. This means that everything is automatically copyrighted the moment it is fixed in a tangible medium.23 Upon the introduction of the Internet technology, the unintended consequences of these two laws are offering a momentous tool for online media industries claim of covering by copyright every single use of a work via the Internet, which constitutes a new copy according the law, thus disseminating uncertainty and confusion about what content is available to use and putting at stake the Internet content spill in the free culture. The Copy Left interprets the Internet as a new catalyst for actively engaging with the things the public can read, watch and listen to and not just passively absorbing them as in the traditional broadcast model in which a small group of content producers distribute their copyrighted work through controlled platforms to passive consumers. In a free culture setting consumers become users, shoppers interact with producers and unpack the works by partaking in the creative process. IX. The paradigm of Creative Commons In 2001, a group of Copy Left experts at Stanford Law School initiated a tech-legal organization named Creative Commons, advising individual artists on how to calibrate their creativity with the appropriate level of legal control. The Creative Commons project structures the public domain through licences offered to artists, authors and musicians with predefined terms on which they can cede their work to the public domain. The strategy is to make artists not intending to seize full intellectual property rights to be able to relinquish their rights in favor of public access and use yet with some reservations. In the Creative Commons implementation, creators allow others to alternatively copy, distribute, display and perform their copyrighted work by choosing any of the following set of licence conditions: attribution, share alike, non-commercial and no derivative works.24 In particular, the prohibition of commercial use guarantees creators against the exploitation of their works by others and in turn the requirement of subsequent users to offer derivative works under an identical license (share alike) facilitates their diffusion, establishing a creative community in which works are shared, remixed and devoted to the public domain to be re-circulated. At first glance of Wikimedia Commons, the database of Creative Commons, it is interesting to note that although the Creative Commons are characterized by such

23 24

Source: U.S. Copyright Office, Copyright Law of the United States at <http://www.copyright.gov/title17/> See: Creative Commons website, About Licenses at <http://creativecommons.org/about/licenses/>.
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approach of inalienability, creators come across as preferring a simple structure of basic limitations to a totally unstructured commons.25 Nevertheless, the Creative Commons licences appear to be effective and pragmatic tools in equalizing the exploitation of the public domain without suffocating either property or the public domain in the process. Immediate outcome of the creative commons concept is to smooth the way for innovation, free speech and the distribution of rights to access, produce and remix art and culture. For instance, the Creative Commons licences meet the needs of authors who want others to be able to download and remix their creations without legal trouble for educational, nonprofit or mere marketing reasons. Beside the creative side, the Copy Left and the legal paradigm offered by the creative commons argue with the digital rights management industry also on economic terms. Media companies increasingly base their licence system on micro-payments, supporting the idea that ventures like iTunes are able to survey the consumers preferences only by monitoring the direction of the payments; according to this vision, purchases alone reveal the kind and dignify the choice of culture that is convenient to be promoted. It is certainly a matter of opinion, although such approach may strike neutral observers as being narrow and insular, if not captious. The hybrid use of the concept of value in both economic and cultural connotations reflects once again the perennial clash between philistines and artists updated to our digital information age, so that the famous Oscar Wildes definition of a cynic may well apply to the copyright industry as that knowing the price of everything and the value of nothing.26 On the other side, taking his bearings from the success of open source software and peer to peer schemes like Linux, Open Office and Wikipedia, the members of the Copy Left champion the redesign of current copyright models for the entertainment industry revamp to the Internet age, while still paying its artists their due. Alternative compensation systems have been proposed that would enable the online media distributors to operate without resorting to cumbersome micro-payments. For instance, the Berkman Center of Internet and Society at Harvard University devised a modified version of the system that artists advocacy groups use to make sure that composers are paid when their music is performed or recorded. All works capable of being transmitted online would be registered with a centralized office monitoring how frequently a work is used and compensate the creators on that basis. The money would come from a tax on various content-related devices, like DVD burners, blank CD's or

25 26

See: Wikimedia Commons in Creative Commons, ibid. At <http://search.creativecommons.org/#>.

O.Wilde in the words of Lord Darlington: What is a cynic? A man who knows the price of everything and the value of nothing, Lady Windermeress Fan, Act III, (London, St. James Theatre, 1892) at Project Gutenberg website <http://www.gutenberg.org/dirs/etext97/lwfan10h.htm>.
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digital recorders. The creators would be paid, while every individual would have unlimited access to every cultural creation.27 X. The debate on public domain of creativity in the digital information age Far from being a clearly defined battlefield, the legal doctrine of copyrights in the digital information age sets against each other not only those who advocate the interests of either the industry or users, but also the assertors of authorship and individual private property, in which setting everything cannot fail to be owned by someone in full attribution and integrity. These additional groups of debaters centre copyright law around the act of creating a work, so that the core of any related moral claims pertains solely to the author and not to commercial distributors or consumers.28 Other scholars also have qualms about expanding the public domain of creativity, not necessarily regarding copyright control as the malevolent herald of corporate tyranny over art and culture, but rather focusing on the logic of property rights intended to claim the due price of every facet of creative work from which the end-users derive enjoyment and value. This logic further assumes that the copyright law should be neutral and indifferent as to who authors a work and who owns it. 29 The opposers of the commons doctrine traditionally refer to the case of a pasture open to all herdsmen who try to keep as many cattle as possible on the public domain, overwhelming and eventually destroying it.30 With the upsurge of the digitized information age, the legal debates about property have moved the spotlight from land to information, but the focus is still on the same function, that is producing efficiency from the use of domain by avoiding its over- or under-use. 31 This approach inevitably leads to a binary rhetoric of intellectual property versus creative commons that keeps neglecting the distributional consequences of either property or public domain systems.

27

As reported by R.S.Boynton, The Tyranny of Copyright, The New York Times (January 25, 2004, New York).
28

J.C.Ginsburg, The Concept of Authorship in Comparative Copyright Law, Public Law & Legal Theory Research Paper Group, Columbia Law School (New York, 2003), Paper Number 03-51, p.7 at <http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=368481>.
29

P.Goldstein, Copyrights Highway: From Gutenberg to the Celestial Jukebox, Hill and Wang (New York, 1994) at p.192.
30

G. Hardin, The Tragedy of the Commons, Science/AAAS (Washington, DC, December 13, 1968) at Vol. 162, No.3859, p.1243-44.
31

R. C. Ellickson et al., Perspectives on Property Law, Aspen Law & Business, 3d ed. (New York, 2002) at 119.
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Although driven by progressive ideas, even the creative commons advocates limit their scope to make resources open to all by force of law, on the implicit belief that they will indeed be equally exploited by all. Instead, in real life differing circumstances in knowledge, wealth, power and skills allow some more than others to exploit a commons. On the other side, new enclosure movements in the creative domain promoted by more traditional doctrine in property law crystallize and legitimate the current distribution of intellectual property rights, unresponsive to new calls for remodeling social and economic relations through property-like rights.32 Such conceptual interrelation between private property and the public domain/commons shows that the absolute notion of individual creative genius necessary to intellectual production is still a central figure in the intellectual property law, despite the fact that in the information age individual authors/inventors often engage in the creative process within corporate settings, seeking feedback from collaborative audience and drawing upon earlier creations.33 This flawed notion of the solitary author/inventor work towards broader intellectual property rights in the way that the protection of the individual creators often is just the pretext to promote the interests of corporate owners of intellectual property.34 As a response to the unrelenting upsurge of intellectual property rights, the contemporary public domain movement asserts that a rich space for commons is inherent both to the process of creation and to seize innovation as private property.35 The advent of cyberspace and digital technologies has renewed the appeal of the public domain not just for bolstering innovation, but also as a key to efficient economic growth. Economic analysis of IP law showed that while an increase in the scope of copyright protection will enhance an authors expected revenues from the sale or licensing of his own copyrights, it will also increase his cost of creating the works that he copyrights.36 Consequently, a dialectical rather than antithetical relationship between the creative commons and intellectual property can be found, as the latter prospers in the presence of a strong public domain from which it freely borrows, while the creative commons grow as information passes, over time, out of intellectual property. In practice, the public domain is essential to provide a private property system a sphere of free works upon

32

J. Boyle, The Second Enclosure Movement and the Construction of the Public Domain, Law and Contemporary Problems (Durham, NC, USA, 2003) at Vol.66, p.33, <http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=470983>.
33J.

Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society, Law and Contemporary Problems (Durham, NC, USA, 1996) at x-xiii.
34

M. A. Lemley, Romantic Authorship and the Rhetoric of Property, Texas Law Review (Austin, TX, USA, 1997) at 75, 873-886.
35 36

J.Litman, The Public Domain, Emory Law Journal (Atlanta, 1990) at 1023, 965-968. R. A. Posner, Economic Analysis of Law, Aspen Law & Business, 5d ed. (New York, 1998) at 47.
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which creators, commercial exploiters and consumers can draw without either seeking consent or drawing liability.37 Therefore, the binary paradigm of the creative commons versus copyrights is inconsistent with the foundation of modern labour theory of property, according to which whoever creates upon resources that are held in common has a natural property right to the fruits of his efforts and the state has a duty to respect and enforce that natural right.38 In conclusion, it is arguable whether for creative expressions in the digital information age this natural law theory is applicable only to the underlying facts and concepts held in common or it also does to the bulk of copyrighted works.39

**** This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/3.0/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA. For more information and feedback on this paper please feel free to contact the author at: giodilie@gmail.com ****

37

A.Chander and M. Sunder, The Romance of the Public Domain, California Law Review, (Los Angeles, 2004) Vol.92:1331 at 1343.
38

The Federalist, The tradition of freedom: John Locke, Adam Smith, Wisconsin, USA, 1957) at 11.
39

Milton Mayer ed., (Madison,

For the rst option see: W. W. Fisher III, Property and Contract on the Internet, Chicago-Kent Law Review (Chicago, 1998) at 1203:1213; for the second option see: S. V. Shriffrin, Lockean Arguments for Private Intellectual Property, in New Essays in the Legal and Political Theory of Property (S. R. Munzer ed.), Cambridge University Press (Cambridge, UK, 2001) at 138.
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