Università degli Studi di Modena e Reggio Emilia D
IPARTIMENTO DI STUDI LINGUISTICI E CULTURALICORSO DI LAUREA MAGISTRALE IN
LANGUAGES FOR COMMUNICATION IN INTERNATIONAL ENTERPRISES AND
ORGANIZATIONS
“Creative Commons” as the symbol of the ongoing copyright revolution
“Creative Commons” come emblema dell'attuale rivoluzione del copyright
Prova finale di:
Viviana Alfuso Relatore:
Francesco Pighi
Correlatore:
Barbara Luppi
Anno Accademico 2016/2017
L'obiettivo di questa tesi di laurea è quello di analizzare l’impatto che la Rivoluzione Digitale sta avendo sul sistema del diritto d’autore (copyright) negli Stati Uniti d’America. Il copyright è analizzato da una prospettiva storica, legale ed economica al fine di dimostrare come sembri aver perso il tradizionale equilibrio tra interessi economici e principi culturali che lo caratterizzava. In quest’ottica, il movimento dell’Open Source viene studiato nel suo tentativo di ristabilire la dimensione “sociale” del diritto d’autore, una dimensione che sembra essersi attenuata a causa della continua espansione temporale del copyright. In particolare, questa tesi sceglie di studiare a fondo le Creative Commons, una serie di licenze gratuite, basate sul copyright, che si presentano come un possibile intermediario tra l’obsoleto sistema di copyright e le nuove tecnologie. Permettendo agli artisti di scegliere il grado di apertura dei propri lavori, le Creative Commons mantengono vivo il concetto di copyright, adattandolo al nuovo mezzo digitale. Queste licenze vengono sottoposte ad un profondo studio che ne cattura l’evoluzione attraverso le varie versioni e ne analizza il possibile utilizzo come strumento di creazione di capitale.
Quest’ultimo punto dell’analisi risponde alla volontà di cogliere le nuove frontiere dello sfruttamento economico del copyright, sviluppatesi a seguito del fallimento del sistema tradizionale che non ha saputo re-inventarsi nel nuovo panorama tecnologico.
This dissertation analyses the disruptive changes caused by the Digital Revolution to the copyright system, mainly in the United States of America. Copyright protection is examined from an historical, legal and economical point of view, in order to highlight how, in today’s society, it seems to have lost its traditional purpose which was to balance economic interests and cultural principles. In this regard, the Open Source Movement has been studied as an attempt to re-establish the “commons” dimension which has been abated by the constant extension of copyright term. In particular, Creative Commons licences, a series of free, copyright-based licences, have been thoroughly investigated as a possible link between copyright law and its application to new technologies. By empowering authors with the choice to control their works and to decide to make them free to re-use, Creative Commons maintains copyright alive, while softening it and adapting it to the new digital media. This dissertation carries out an extensive
investigation of Creative Commons licences, studying their evolution through the different changes in versions and the possibility to use them to generate revenue.
Ultimately, this dissertation is an attempt to study some of the latest paradigms of the economic exploitation of copyright, which originated from the failure of the traditional model to adapt to the new technological world.
El objetivo principal de este Trabajo de Fin de Máster es analizar el impacto que la Revolución Digital está teniendo sobre el sistema del derecho de autor (copyright), sobre todo en los EE. UU. El estudio de la noción de copyright, desde una perspectiva histórica, legal y económica, está realizado con el propósito de demonstrar cómo, en la sociedad actual, éste parece haber perdido su tradicional equilibrio entre intereses económicos y principios culturales. En este sentido, el movimiento del “Open Source” ha sido estudiado por su tentativo de reestablecer la dimensión “compartida” del copyright, una dimensión que se ha ido erosionado a causa de la continua expansión del plazo de protección del copyright. En particular, las licencias Creative Commons, una serie de licencias libres, basadas en el copyright, han sido investigadas como posible intermediario entre la actual ley del copyright y las nuevas tecnologías. Dando a los artistas la posibilidad de controlar sus obras y de elegir que otros las reutilicen, Creative Commons mantiene vivo el copyright, adaptándolo al nuevo mundo digital. Este trabajo lleva a cabo una investigación exhaustiva de las licencias Creative Commons, siguiendo su evolución a lo largo del tiempo y en último análisis, estudiando la posibilidad de utilizarlas para generar ingresos. La intención que justifica este estudio es analizar los nuevos paradigmas de explotación económica del copyright, generados del fracaso del modelo tradicional, un modelo que no supo adaptarse al nuevo medio digital.
L’objectif de mon mémoire de Master est d’analyser l’impact de la Révolution Digitale sur le système du droit d’auteur (copyright), spécialement aux Etats-Unis. Le copyright est analysé d’un point de vue historique, juridique et économique afin de démontrer de
quelle manière il semble avoir perdu son équilibre traditionnel entre intérêts économiques et principes culturels. A cet égard, le mouvement de l’ « Open Source » est étudié pour sa volonté de rétablir la dimension « sociale » du copyright, une dimension qui semble s’être affaiblie à cause de l’expansion continuelle de la protection du copyright. Plus particulièrement, ce mémoire étudie en profondeur les licences Creative Commons, une série de licences gratuites, basées sur le copyright, qui se présentent comme un possible intermédiaire entre le système obsolète du copyright et les nouvelles technologies.
En donnant aux artistes la possibilité de choisir le niveau d’ouverture de leurs œuvres, les Creative Commons maintiennent le copyright, tout en l’adaptant à la dimension numérique. Ces licences font l’objet d’une étude détaillée qui en suit l’évolution, à travers leurs différentes versions, et qui en analyse la possible utilisation comme moyen de création de capital économique. Ce dernier point de l’analyse répond à la volonté de saisir les nouvelles frontières de l’exploitation économique du copyright, développées à la suite de l’échec du système traditionnel qui n’a pas su se réadapter au nouveau moyen numérique.
Table of Contents
1. History of Intellectual Property Rights ... 4
1.1 Intellectual Property Rights: A first definition ... 4
1.2 History of Intellectual Property: from the origins to international treaties ... 5
1.2.1 First records of intellectual property in the ancient world ... 5
1.2.2 The Florentine Patent Statute of 1421 ... 6
1.2.3 The Venetian Patent Act of 1474 ... 7
1.2.4 The Statute of Monopolies and the Statute of Anne ... 8
1.2.5 The Protection of Non-Economic Rights in France: the origins of the Droit Moral ... 9
1.2.6 The Battle of the Booksellers ... 12
1.2.7 The Paris Convention for the Protection of Industrial Property ... 14
1.2.8 The Berne Convention for the Protection of Literary and Artistic Works .... 15
1.2.9 The Hague Agreement and the Madrid Agreement ... 16
1.2.10 From BIRPI to WIPO ... 17
1.3 Classification of Industrial Property Rights ... 17
1.3.1 Industrial Property ... 17
1.3.1.1 Patents ... 17
1.3.1.2 Industrial Design ... 19
1.3.1.3 Trademarks ... 19
1.3.1.4 Geographical Indications ... 20
1.3.2 Copyright ... 20
1.4 Reasons to promote Intellectual Property Rights in our Society ... 23
2. The Digital Revolution and the on-going conflict with the current Copyright Regime ... 24
2.1 How the Digital Revolution influenced Intellectual Property ... 24
2.2 Old and new criticisms of the copyright regime: why is it no longer valid? ... 27
2.2.1 On the idea of property ... 28
2.2.2 Individual ownership and the threshold of originality ... 31
2.2.3 Was copyright designed for distributors or artists? ... 32
2.2.4 Temporary monopoly: “Forever less one day” ... 34
2.2.5 The erosion of Fair Use ... 38
2.2.6 Do artists really benefit from copyright? ... 44
2.2.7 Does copyright really contribute to the spreading of creativity? ... 45
2.2.8 The complexity of copyright legal system ... 47
2.2.9 Massification of culture and market-based censorship ... 49
2.3 The Rise of the Copyleft movement ... 49
2.3.1 The origins of Copyleft: Free and Open Software ... 50
2.3.2 Copyleft Licences ... 52
3. Creative Commons: from the origins to version 4.0 ... 55
3.1 Structure of Creative Commons Licences ... 57
3.2 Four elements, six licences ... 60
3.2.1. Creative Commons Plus and Zero ... 65
3.3 Universal Creative Commons Licences: version 4.0... 68
3.4 Creative Commons Program Areas: Open Access ... 73
3.5 Final goal of Creative Commons ... 75
3.6 Criticism of Creative Commons ... 76
3.7 Creative Commons in a nutshell ... 81
4. Economic analysis of Copyright and Creative Commons ... 83
4.1 An economic approach to copyright ... 83
4.1.1 The connection between monetary incentives and creativity ... 87
4.1.2 The tragedy of the anticommons ... 88
4.1.3 “The winner takes it all” ... 89
4.1.4 The economic consequences of “Forever less one day” ... 91
4.2 On how Creative Commons mirrors the ongoing changes in copyright exploitation ... 95
4.3 Creative Commons as a Business Model ... 96
4.3.1 Give away the bits and sell the atoms: Cards Against Humanity ... 98
4.3.2 Jamendo Music: a royalty-free music platform ... 102
4.3.3 An online Catalogue of Universal Symbols: The Noun Project ... 105
4.3.4 Made with Creative Commons ... 107
4.4. Benefits of the Digital Commons ... 108
5. Conclusions ... 111
6. Bibliography ... 113
7. Webliography ... 120
List of Figures
Figure 1: Copyright Duration and the Mickey Mouse curve. Source : atp.orangenius.com/how-mickey-mouse-keeps-changing-copyright-law/ ... 37
Figure 2: Creative Commons Licences 2016. Data available on:
www.stateof.creativecommons.org/ ... 65
Figure 3: “Costs and benefits of a copyright system”. Source: Economic effect of copyright: The empirical evidence so far. Handke 2011, p. 4. ... 86
Figure 4: Profits and Talent in a winner-take-all market. Source: “Il diritto d’autore nella prospettiva law and economics”, Ramello, 2003, p. 213. Translated by me. ... 90
Figure 5: Cards Against Humanity CC licence. Source:/cardsagainsthumanity.com/ 99
Figure 6: Cards Against Humanity’s Black Friday $5 More Sale. Source : www.businessinsider.com/this-is-brilliant-marketing-cards-against-humanity-offers-5- more-black-friday-deal-and-sales-spike-2013-12?IR=T ... 101
Figure 7: Creative Commons licences chosen on Jamendo, in 2014. Source: Bazen, Stephen, Laurence Bouvard, and Jean-Benoît Zimmermann. "Musicians on Jamendo: A New Model for the Music Industry?." (2014), p. 24. ... 103
Figure 8: “The Noun Project Home Page”. Source:thenounproject.com/. ... 105
1 Introduction
The scope of this dissertation is to analyse the licences offered by the “Creative Commons” organization. The study carried out in this research paper traces the rise and growth of the “Copyleft” movement, investigating the ideological reasons behind its critique of the current copyright system. Creative Commons licences are the centre of interest of this dissertation due to their innovative structure which contributed to their success as free, open licences. Being copyright-based, these licences are able to maintain copyright alive while new generations of Internet users are embracing piracy as a widespread, light-hearted behaviour. This dissertation analyses the possibility of creating a new, open business model using Creative Commons licences.
Chapter one traces the history of Intellectual Property Rights (IPRs) from their first records in the ancient world to the ratification of international treaties. Bearing in mind the impossibility of giving an exhaustive definition of a concept that is still evolving at a fast pace, this Chapter simply introduces the notion of intellectual property and the traditional reasons for its promotion in our society. After a first historical tour d’horizon, the different categories of intellectual property are analysed, attaching careful attention to the notion of copyright, which constitutes the cornerstone of this dissertation. This Chapter follows the dissimilar paths of intellectual property in civil and common law countries, stressing the differences between copyright and droit d’auteur. Chapter one provides the groundwork for the analysis carried out in the following Chapters.
Chapter two is divided into three broad sections. The first section deals with the dramatic changes caused by the Digital Revolution in copyright protection, which resulted in the disruption of the foundations of the traditional content industries and their long-standing business models. The Information Era caused a major shift in the perception of creative works, which are no longer considered as tied to their physical support. All the patterns of traditional communication have been deeply shaken by the rise of the Internet, which stretched the laws of intellectual property to a breaking point and contributed to blurring the line between legal and illegal activity around copyright. It can be stated that the main unintended consequence of the Digital Revolution has been the collapse of the distinction between the processes of gaining access to a work, of using it and copying it. The
2 phenomenon of “piracy” has consequently become a part of everyday life in the network society, forcing content industries to seek for new business models to make it attractive for users to use legally obtained media content. The second section of this Chapter is devoted to the analysis of the most widespread criticisms of the current copyright regime.
Dissenting voices have risen against copyright since the dawn of time, attacking with virulence the very heart of copyright, namely, the right to copy. Nevertheless, as the process of globalization expands, more and more arguments are brought against strict copyright protection, due to the enormous control exercised by a small number of multinationals over collective sectors of the creative industry. In this way, the present copyright system fails to remain faithful to its original goals of democratic communication and implementation of creativity, as it seems rather to respond to the interests of entertainment lobbies. During the analysis, special attention is devoted to the continuous expansion of copyright protection terms and to the erosion of fair use, which are draining the public domain. The third and final section of Chapter two, devoted to the analysis of the “Open Source Movement”, functions as a bridge between this Chapter and the following one. By giving a portrait of this revolutionary movement, it implicitly answers to the questions raised in the previous section while paving the way for the subject matter of Chapter three. This final section introduces the concept of Copyleft, an alternative method used to manage the author’s rights, based on a system of licences, which originated as a response to the continual tightening of the original copyright system. Copyleft offers an alternative to the traditional “all rights reserved” model which characterizes copyright, changing it into “some rights reserved”.
Chapter three can be considered as the core of this dissertation as it deals with Creative Commons licences. This Chapter begins by tracing the origins of the Creative Commons project, developed in the climate of experimentation following the birth of the Open Source Movement. The first part of this Chapter details the distinguishing features behind the success of CC licences, namely the adoption of a user-friendly vocabulary and iconic symbolization, a three-layered structure and the capacity to address a diverse public. An attentive analysis of the core elements of CC licences is carried out to better describe the six different types of licences offered currently by Creative Commons, ranged from the most permissive to the most restrictive one. These licences are also analysed over time, following their evolution and the improvements carried out up to the latest version: the
3 international 4.0. Chapter three continues by proposing several concrete examples of the employment of CC licences in different program areas such as Education, Open Science and Arts, to stress the benefits of the open access ideology. In order to perform an objective analysis, the last part of this Chapter accounts for some of the criticisms that have been drawn to the organization and its licences. Chapter two and three are somehow tided together by the same train of thought: Creative Commons can help to bridge the conflict between the innovative digital culture and the outdated copyright law, avoiding the extremism of strict copyright policy and widespread piracy. By empowering artists with the choice to open their works and to indicate the desired degree of openness, artists are put back at the centre of the distribution chain, no more intermediaries are needed. In this way, works are free to flow again into the public domain, where they can be re-used, modified, and built upon, contributing to the flourishing of the arts. At the same time, Creative Commons keeps copyright alive, since all its licences are based on it.
Chapter four concludes the investigation carried out in this dissertation by proposing an economic analysis of the traditional copyright system, based on the economic regime of monopoly, and a new economic system proposed by Creative Commons. After a brief economic study of copyright protection, revolving around the classical justification of the
“incentive to create”, the fourth Chapter focuses on the distortions caused by excessive monopoly, i.e. the creation of a “winner-take-all” market and the “tragedy of the anticommons”. Finally, this Chapter offers an investigation of the new economic paradigm proposed by Creative Commons through several case studies: the card game
“Cards Against Humanity”, the royalty-free music platform “Jamendo Music” and the on-line platform “Noun Project”. The thesis advanced and demonstrated in this final Chapter is that Creative Commons licences, despite their ideological background, are based on a new system of copyright exploitation, which guarantees economic revenue in an indirect way. This indirect system is able to guarantee artists an economic return while broadening the user base. Because of this, it can be stated that Creative Commons licences mirror the on-going changes in copyright and offer a suitable solution to the complications caused by the Digital Revolution.
4 1. History of Intellectual Property Rights
The notion of intellectual property is an ancient concept that has experienced a series of long and complex evolutions through the centuries.
1.1 Intellectual Property Rights: A first definition
WIPO (World Intellectual Property Organization) defines intellectual property as follows: “Intellectual property (IP) refers to creations of the mind, such as inventions;
literary and artistic works; designs; and symbols, names and images used in commerce”
(WIPO, 2011, p. 2).
In other words, intellectual property refers to all kind of human creations and it is generally characterized as non-physical property, resulting from an original thought. The peculiarity of the rights related to intellectual property lies in the fact that they are not embodied in a physical entity. Once the intellectual creation is made available to the public, the author can no longer control the physical reproductions of his/her work;
consequently, intellectual property rights refer to a juridical system connected to the protection of intangible rights. Tom Palmer (1990, p. 818) gives this clear definition:
“Intellectual property rights are rights in ideal objects, which are distinguished from the
material substrata in which they are instantiated.”
Intellectual property is a concept protected in law: intellectual property rights are the rights bestowed on people over the creations of their minds. The law ensures that these people are granted recognition and financial benefits for what they have created or invented. Therefore, this system was developed to ensure, on the one hand, the boosting of creativity and the development of culture, and on the other hand, innovation and economic growth.
This preliminary general definition will be completed by a deeper examination carried out in paragraph 1.3. Special attention will be paid to the concept of copyright, as this particular form of intellectual property is the main topic of this dissertation. This detailed
5 inquiry will be fundamental for the subsequent study of the criticisms made to the current copyright system and to the study of the rise of the “Copyleft” movement.
1.2 History of Intellectual Property: from the origins to international treaties
Since the Statute of Anne of 1710 is widely considered the predecessor of the modern regime of copyright protection, it is too often forgotten that the first manifestations of intellectual property stretch back to the ancient world.
1.2.1 First records of intellectual property in the ancient world
According to The Genesis of American Patent and Copyright Law (Bugbee, 1967), the first documented instance of copyright protection dates back to 500 BC, in the Greek colony of Sybaris, in the ancient Magna Grecia1. Curiously and unexpected enough, that first evidence of copyright deals with culinary arts. In his work, Bugbee cites the case of chiefs from Sybaris who were granted a year-long monopoly over the creation of their recipes. These testaments have been preserved thanks to the works of Athenaeus of Naucratis, a Greek rhetorician and grammarian who informs us about Sybarites way of life in his book Deipnosophistae, The Banquet of the Learnerned (Spitzlinger, 2011).
If any confectioner or cook invented any peculiar and excellent dish, no other artist was allowed to make this for a year; but he alone who invented it was entitled to all the profit to be derived from the manufacture of it for that time, in order that others might be introduced to labour at excelling in such pursuit2.
As stated by Spitzlinger in his On the Idea of Owning Ideas (2011, p. 52), this ancient law is a clear example of the implementation of an intellectual property regime: it even contains some of the elements of modern patent law. The most interesting aspect is that the purpose stated by the Greek legislator is the same that can be found in today’s
1 Situated in the Gulf of Taranto, in Southern Italy.
2 Deipnosophistae, Vol. 3, Book XII, Ch. 20.
6 intellectual property: temporary property regimes help to stimulate the creative potential of human mind.
Anyways, for some unknown reason, the idea of implementing creativity and artist growth through the use of intellectual property rights was not carried on in the ancient world. However, there are some evidences that this concept was somehow passed on to the Romans. Bugbee (1967) also refers to the case of Vitruvius (257-180 B.C.E.). While serving as a judge, the famous architect and writer is said to have accused some false poets during a literary contest in Alexandria, thus revealing intellectual property theft.
The poets were consequently put to trial, sentenced and disgraced for the crime of having
stolen someone else’s work.
Even though there were no Roman laws protecting intellectual property, nor specific institutions of intellectual property protection, these early examples show that the concept of intellectual property and the recognition of the rights associated with it did exist both in the ancient Greece and Rome. Moreover, despite the absence of systematic protection of copyright in ancient times, these examples also illustrate how the authors’ personal expression not only did exist but was thought to be worth protecting.
1.2.2 The Florentine Patent Statute of 1421
The following important step towards the creation of intellectual property law as we know it today would be the establishment of the Florentine Republic in 1115, a “post-medieval”, almost modern city state, that originated in the Italian city of Florence, Tuscany. One of the first statutes to protect authors’ rights was issued by this Republic on the 19th of June 1421, to the famous architect and engineer Filippo Brunelleschi (1377-1446). Some special rights were granted to authors on the grounds of the inventions and innovations resulting from their intellectual efforts. The Florentine Patent Statute granted Brunelleschi a three-year exclusive right to build and use his invention, a cargo boat especially designed to solve engineering problems connected with the delivery of heavy loads up the city river Arno, to the building site of his Duomo. Since Brunelleschi had refused “to make such a machine available to the public in order that the fruit of his genius
7 and skill may not be reaped by another without his will and consent3”, the Florentine commune granted him exclusivity. As Kahrl Robert points out in his Patent Claim Construction (2014), this was the first statute in history to officially recognize that the beneficiary was the inventor and to consequently provide monopoly of use.
Unfortunately, due to the guilds’ influence, the Florentine Republic did not issue any
other patent after the one assigned to Brunelleschi.
Medieval guilds were associations of craftsmen or merchants formed with the scope of guarding the secrets of the “arts” or “mysteries” of their crafts. Even if the guilds took part in the social and political life of their cities, their main function remained the economic and administrative regulation of trade and craft production (Kostylo, 2008).
The guilds used to hire apprentices to whom they transmitted orally their technical knowledge and the secrets inherited from the past, as a way to preserve the traditional
knowledge of their craft.
According to Kostylo (2008), by the mid-13th Century, there was already a fairly organized guild structure in Venice, which was one of the greatest centres of trade and production in Italy. Since Venetian products were highly demanded in Europe, many artisans wanted to leave the city to make the best of this lucrative commerce, establishing their workshop elsewhere. Therefore, the city and the guilds implemented some strict regulations on trades to protect Venetian specialties, such as the secret techniques of glass-making.
1.2.3 The Venetian Patent Act of 1474
The Republic of Venice was the first city-state to pass an official degree regulating industrial brevets, on the19th of March 1474. The Venetian Patent Act is deemed to be the earliest codified patent system in the world. This patent was granted to the “creators of new and ingenious devices”4 as a means to boost the manufacturing system of the Republic. The time length of the exclusivity rights was decided by the “Provveditori di
3 Foray, Dominique. “The economics of knowledge openness: emergence, persistence and change of conventions in the knowledge systems.” Trust and economic learning (1998): p. 162-189.
4 Kostylo, J. “Commentary on the Venetian Statute on Industrial Brevets (1474).” Primary Sources on Copyright (1450-1900). Eds. L. Bently & M. Kretschmer (2008). Available at: www.copyrighthistory.org.
8 Comun”, who were also in charge of approving the patent requests. The cases of patent infringement were punished with a fine of a hundred ducats, of which one-third was given to the inventor. As mentioned by Spitzlinger (2011), between 1475 and 1549, the Doge of Venice awarded 109 patents for technical inventions.
In general, during the Medieval time, European sovereigns used to grant exclusively monopoly rights over some production techniques and goods long before the Statute of Venice. The reason why this statute is so important is because the previous “letters patent”
mostly concerned skilled craft imports from abroad and had been conceived for a merely monetary purpose.
1.2.4 The Statute of Monopolies and the Statute of Anne
In England, the royal system of giving privileges providing people with monopolies was wildly abused by the Crown to raise money, which eventually ended up distorting economic competition and causing inflation. It also triggered the complaints of the merchant class which considered the privileges to be granted in an unfair and arbitrary way. The situation reached a tipping point when Queen Elizabeth I granted monopolies in industry which had already been developed by merchants, thus ending their business and destroying their investments (Kahrl, 2014). As a response, in 1624, the British Parliament passed the Statute of Monopolies to solve this chaotic, non-transparent monopoly-giving system, thus restricting the Crown’s power. The Statute of Monopolies put an end to the practice of granting rights to non-original ideas or to works already present in the public domain. Instead, it granted a fourteen-year monopoly to truly new inventions5.
The Statute of Monopolies became the groundwork for later developments in patent law, transforming patents from a privilege bestowed by royal prerogative into a property interest of the inventor, within the province and jurisdiction of the common law (Kahrl, 2014).
5 The Statute of Monopolies 1623, Section VI. Available at: legislation.gov.uk/aep/Ja1/21/3/section/VI.
9 In the 18th Century England, during the reign of Queen Anne, another major step was taken towards the development of the modern copyright system. The Statute of Anne, enacted in 1710, marked a seminal moment in copyright history. The scope of this Statute was expressed in its very begin:
Whereas printers, booksellers, and other persons have lately frequently taken the liberty of printing, reprinting, and publishing books without the consent of the authors and proprietors … to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write use books, be it enacted…6
The statute provided fourteen-years legal protection, with a fourteen-year possible renewal in case the author was still alive. According to Rajan (2011), the Statute of Anne can also be read as the peak of a decades-long struggle for freedom of the press in England. In fact, this British law was the first to recognize the author’s rights in his own work. Prior to the Statute of Anne, printing was a privilege granted by the sovereign to the Stationer’s Company7, a group of printers who enjoyed the exclusive right to print works. By controlling the membership of this group, the Crown could monitor all publications and apply censorship, thus limiting the circulation of ideas. Under this new Act, the control of book reproductions became an author’s right rather than a bookseller’s privilege.
1.2.5 The Protection of Non-Economic Rights in France: the origins of the Droit Moral
Through a similar process, the French copyright, named “droit d’auteur”, developed in France during the 18th Century. Nevertheless, the French copyright system, based on the
“right of the author” rather than on a privilege system, encloses a different philosophy and terminology that greatly influenced copyright laws in many civil law jurisdictions
6 Statute of Anne, 1710, 8 Ann., c. 19 (Eng.), named after the then Queen of Anne who supported the creative arts. Available at: www.britannica.com/topic/copyright#ref157947.
7 Royal Charter of the Company of Stationers, London, 1557.
10 and was ultimately taken as a reference for the redaction of the Berne Convention and the definition of international copyright law.
The concept of “droit d’auteur” is defined as the exclusive right granted to the author for exploiting his or her creation, this exclusive right entails two different bundles of rights, the proprietary rights or droits patrimoniaux and the moral rights or droits moraux. While the proprietary rights focus on the author’s material interests (such as the revenues resulting from public performances), the moral rights refer to more personal rights related to the paternity of the works and the revindication of its integrity. Following the definition given by professor Liemer in her article On the Origins of le Droit Moral: How non-economics Rights came to be protected in French IP Law (2011, p. 69) the set of moral rights consists of four basic rights: the right of attribution, the right of integrity, which allows the author to maintain creative control over a work after selling it, the right of disclosure, which allows the author to decide when to disclose the work to the public and the right of withdrawal, according to which the author can take the work back at any time.
As in England, also in France the justification for the implementation of the “droit d’auteur” is rooted both in economic considerations and in natural law history. From the economic point of view, likewise in common law jurisdiction, the exclusive protection entitles the author to benefit from the economic retribution connected to the exploitation of the artistic work, which constitutes an incentive for creativity. On the other hand, according to the natural right doctrine, every person should be granted proprietary rights on the fruits of his/her work, and the same should be for the works of the mind. According to the publication of the UNESCO, L’ABC du droit d’auteur (2010, p. 10), the economic argument is stronger in common law countries such as the United States or the United Kingdom, where the emphasis is placed to the protection of the work, while the natural right doctrine exerted a greater influence in continental Europe, where the centre of attention is rather the personality of the author as the creator of a unique work.
From an historical perspective, during the Ancien Régime, by the middle of the 17th Century, the French Crown had established the Administration of the Book Trade which, just like the Stationer’s Company, enjoyed a monopoly on the book trade while carrying out censorship but, unlike its English equivalent, was formed by different printers’ guilds
11 scattered throughout France. “The political interest of the state in censoring what circulated in print was ingeniously wedded to the commercial interests of a select group of printers, publishers and booksellers” (Hesse, 2004, p. 368).
The 18th Century, characterized by the intellectual and philosophical movement of the Enlightenment, promoted the idea that certain rights had to be bestowed on the author since the artistic creation was conceived as the result of the author’s mind, the fruit of the author’s inner self, and therefore it had an intrinsic, almost sacred value. Is was only due to the ground-breaking ideals spread by the French Revolution that the revolutionary decrees of 1791 and 17938 formally established literary property in France. Before the Revolution, printing monopoly was a plain fact: the Comédie Française detained the monopoly over the theatrical performances of the classical plays, such as those of Racine or Molière, whereas the publishing monopoly was exercised by the members of the Paris Book Guild, which enjoyed the royal privilege of printing and distributing all printed material in Paris (Spinello and Bottis, 2009). The system of royal privileges and censorship came to an end in France when the “freedom of press” was included in the Declaration of the Rights of Man and Citizen, in 1789, and when the French Revolution put an end to the Old Regime (Spinello and Bottis, 2009). Nevertheless, the process of recognition of the author’s rights had already started before the Revolution, under King Luis XVI: even if the guilds and the monopolies were formally abolished only after 1789, a major step was taken in 1777 with the amendment of the regulation recognizing the members of the Guild as the only exclusive official printers. Already in 1777, the printing privileges were conceived as firstly granted to the authors and only successively to the publishers. As Rajan stresses out (2011, p. 53), moral rights can be traced in a series of Book Trade Regulations which “introduced the concept of author’s rights in his work for the first time”. Unlike what happened with the Statute of Anne, the main goal was not that of breaking the sovereign control over the press but rather that of making the author responsible for the substance of his writing. Rajan suggests that this recognition of individual rights of authorship, resulting from the intellectual upheaval of the time, constituted the fundamental prerequisite to the recognition of moral rights. More
8 As stated by Spinello and Bottis (2009, p. 28), the decree of 1791 attacked the monopoly of the Comédie Française while the decree of 1793 aimed at securing more firmly the author’s rights after the first publication.
12 specifically, the law professor writes: “once authors’ rights are recognized as individual rights rather than property-based interests alone, moral rights are implicit in the concept.
Individual rights are a sort of a proto-concept underlying moral rights” (Rajan, 2011, p.
54). As mentioned before, after the French Revolution, the recognition of individual rights played a key role in breaking the monopoly of the Comédie Française and in the emergence of moral rights. In 1791 the Le Chapelier’s law9 was the first law to codify the notion of literary property, a notion that quickly spread from dramatic works to other areas of creativity. When this law was generalized into the Decree of Property Rights of Authors of the 19th of July 1793, a time frame of ten years after the author’s death was established for allowing the authors to benefit from an exclusive right over their works.
As indicated by the authors of A Defence of Intellectual Property Rights, Spinello and Bottis, the French approach to the “droit d’auteur” spread across Europe and eventually established the foundations for the development of the Italian “Diritto d’autore”, the German “Urheberrecht” and the Spanish “Derecho de autor”, “all terms referring to the author’s rights, in the sense of comprising both and exclusive property right and a moral right, the first subject to transfer and the second inalienable”, (Spinello and Bottis, 2009, p. 28).
To conclude this brief overview, it could be interesting to point out how, despite being a pioneer in the recognition of moral rights, France formally codified them relatively late, in 1957, in the Code de la proprieté intellectuelle.
1.2.6 The Battle of the Booksellers
Following the passage of the Statute of Anne in England, from the 1740s to the 1770s, the attention focused on the exact nature of the author’s rights. Several questions concerning literary property, its difference from other kinds of useful invention and, above all, the duration of its protection, were raised and set in a series of famous legal cases. Before the enactment of the Statute of Anne, the Stationers’ Company relied on the
9 According to Wikipedia, the free encyclopaedia (2018): “the Le Chapelier Law was a piece of legislation passed by the National Assembly during the first phase of the French Revolution (14 June 1791), banning guilds as the early version of trade unions, as well as compagnonnage”. Available at:
wikipedia.org/wiki/Le_Chapelier_Law_1791
13 Stationers’ Charter of 1557 which empowered them with the perpetual right to print. The Statute of Anne rejected the idea of a never-ending copyright, which eventually led the publishers to appeal to the courts to recover their lost right, starting a relentless campaign known as “The Battle of the Booksellers”. The main claim of the booksellers, as specified by Rajan (2011), was that, from the Stationers’ perspective, copyright had to be perpetual, because it had always been so.
For nearly thirty years, the London booksellers engaged in battle with a newly emerging Scottish book trade over the right to reprint works falling outside the protection of the 1709 Act (Deazley, 2006). The Scottish booksellers claimed that, at common law, copyright in an author’s work did not exist. “By contrast, the southern monopolists proclaimed that the Statute of Anne did not create rights de novo, but rather served to supplement and support a pre-existing common law copyright.” (Deazley, 2006, p. 14).
This idea was somehow connected with the humanistic arguments of Locke and with the concept of the natural right of authorship. According to the philosopher, the product of the mind is a “natural” property of its creator, a right that exists independently of any legislative enactment. Therefore, to strengthen their claims, the printers argued that, in spite of the Statute of Anne, authors enjoyed a pre-existing, perpetual right at common law (Van Gompel, 2011).
Fogel (2005, p. 4) puts it best when he states that:
The Stationers based their strategy on a crucial realization, one that has stayed with publishing conglomerates ever since: authors do not have the means to distribute their own works. Writing a book requires only pen, paper, and time. But distributing a book requires printing presses, transportation networks, and an up-front investment in materials and typesetting. Thus, the Stationers reasoned, people who write would always need a publisher’s cooperation to make their work generally available. Their strategy used this fact to maximum advantage. They went before Parliament and offered the then-novel argument that authors had a natural and inherent right of ownership in what they wrote, and that furthermore, such ownership could be transferred to other parties by contract, like any other form of property.
14 These claims were brought up in the Millar v. Taylor case, which represented an initial victory for the publishers. Lord Mansfield, who led the Court of the King’s Bench, found that common law rights were not extinguished by the Statute of Anne. The central question of the trial was whether the author still had rights on his work after having agreed to publishing it. It was ruled that the author of a book maintained a common law copyright even after publication and that this right could not be abolished by the new Statute of Anne. Even if this ruling was later reversed in the case of Donaldson v. Beckett, in 1774, the practice of recognizing the rights of authors had irreversibly begun. Similarly, thanks to the Donaldson case, the statutory basis of copyright was established, ending the printers/booksellers perpetual copyright.
Once established at a national level, intellectual property legislation expanded to international treaties and conventions.
1.2.7 The Paris Convention for the Protection of Industrial Property
During the last Century, the growth of international trade and the lack of an international convention in the field of industrial property constituted a serious obstacle for patenting inventions. This complex scenario, where every country was relying on its own set of rules, was forcing inventors to make several patent applications roughly at the same time,
in different countries, to avoid the plagiarism of their ideas.
When many inventors refused to participate in the International Exhibition of Inventions held in 1873 at Vienna because of the inadequate legal protection offered to exhibited inventions, the need of an international convention became definitively clear (Kamil, 2008). Consequently, that same year, the Congress of Vienna for Patent Reform was convened. This Congress laid the foundations for the following Paris Diplomatic Conference of 1883 that ultimately resulted in the approval and signature of the Paris Convention for the Protection of Industrial Property.
15 Although largely modified throughout time10, this Convention is still into force today.
The main scope of this international agreement is allowing inventors to protect their creations, even if used in other countries. Based on the “national treatment” rationale, the Convention states that each Contracting State must grant the same protection to nationals of other Contracting States that it grants to its own nationals (Idris, 2008, p. 262).
Moreover, the Convention provides for the “right of priority”, which means that, based on a regular first application, filed in one of the Contracting States, the applicant may, within a certain period of time, apply for protection in any of the other Contracting States.
These subsequent applications will be regarded as if they had been filed on the same day as the first application (Idris, 2008, p. 263). As specified in Article 4 of this Convention, the right of priority may be enjoyed during a time frame of 12 months for Patents and 6 months for Utility Models, Industrial Designs and Trademarks, starting from the moment of filling the first application.
1.2.8 The Berne Convention for the Protection of Literary and Artistic Works
After a series of bilateral treaties stipulated throughout the 19th Century, in 1886, artists came together for the Berne Convention for the Protection of Literary and Artistic Works11. The main scope of this Convention, as indicated in its preamble, is that of protecting the works and rights of authors at an international level. It provides creators such as authors, musicians, poets, painters etc. with the means to control how their works are used, by whom, and on what terms. The provisions contained in the Convention determine the minimum protection to be granted to artists. The content of the Berne Convention relies on three main principles. The first one, as for the Paris Convention, is that of “national treatment”, which affirms that: “works originating in one of the Contracting States must be given the same protection each of the others Contracting States as the latter grants to the works of its own nationals” (Idris, 2008, p. 272).
According to the second main principle of the Berne Convention, known as “automatic
10 The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958 and at Stockholm in 1967, and was amended in 1979.
11 Completed at Paris on May 4, 1896, amended on September 28, 1979.
16 protection”, the national protection is independent from the compliance with any formality. The third and last fundamental principle is referred as “independence of protection”, which states that protection is independent of its actual existence in the country where the work originated. The Convention also recognizes the author with a series of exclusive rights, such as the right to translate, to make adaptation of the works, the right to reproduce the work, to broadcast it and many more. Other than these economic rights, the Berne Convention also provides for “moral rights” (Article 6bis), that are “the right to claim authorship of the work and the prerogative of rejecting any mutilation, deformation or other modification of the work, if considered as prejudicial to the author's honour or reputation”12. As far as the duration of the protection is concerned, the general rule is that protection must be granted until the expiration of the 50th year after the author's death (twenty-five years in the case of photographic works and works of applied arts).
1.2.9 The Hague Agreement and the Madrid Agreement
Within the framework of the Paris Convention, the Hague Agreement Concerning the International Deposit of Industrial Designs was adopted. The Agreement entered into force in 1928, but currently only two Acts are still in force: the London Act of 1934 and the Hague Act of 1960. The system of international marks registration is governed as well by international agreements. There are two treaties dealing with the protection of trademarks: the Madrid Agreement Concerning the International Registration of Marks, which dates 1891, and the Protocol Relating to the Madrid Agreement, which came into operation in 1996 and was mainly adopted to remedy the absence of major countries such as the United States of America from the Madrid Union.
12 Ibid. p. 264.
17 1.2.10 From BIRPI to WIPO
The two secretariats created to administer the Paris and Berne Conventions eventually combined in 1893 to form WIPO's immediate predecessor: The United International Bureaux for the Protection of Intellectual Property – best known by its French acronym, BIRPI13. The transformation from the BIRPI into the actual WIPO was completed with the WIPO Convention, which was signed at Stockholm on the 14th of July, 1967 and entered into force in 1970. At present, WIPO is an intergovernmental organization, after becoming a specialized agency of the United Nations system in 1974.
1.3 Classification of Industrial Property Rights
As it has just been shown, intellectual property is a wide, old concept, that can be embodied in different manifestations. Following the classification given by WIPO14, intellectual property might be divided into two broad categories: on the one hand there is industrial property that is patents, industrial designs, trademarks and geographical indications, and on the other hand there is copyright.
1.3.1 Industrial Property
We will now quickly go through the first broad category, trying to give a brief yet exhaustive definition before moving on to a deeper analysis of copyright.
1.3.1.1 Patents
The subject matter of patent law are new inventions and discoveries of useful processes, machines, articles of manufacture, or compositions of matter. As defined by WIPO in the book Introduction to Intellectual Property, Theory and Practice (1997, p. 7), an invention
13 WIPO official website, “WIPO-A Brief History”, www.wipo.int/about-wipo/en/history.html.
14 WIPO, What is intellectual Property?, WIPO Publication No 450, Geneva, 2011, p. 2, www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf.
18 is: “an idea which permits the practical solution of a specific problem in a field of technology.” Patents protect new inventions so as to improve industrial techniques. The basic principle of patents works in the public interest: if inventors disclose the details of their innovations, discoveries or improvements to the Patent Office of a country, in exchange, for a certain period of time, they will be given a set of exclusive rights. The whole idea of exclusivity relies on the fact that, when this time frame expires, the invention or discovery enters the public domain, and everybody will be able to use it and to build upon it, without any further limitation. Clearly, this brief monopoly encourages the putting into practice of the invention while, at the same time, allowing the author to benefit from the fruits of his/her own intellect. The monopoly is a reward granted to the inventor for his/her collaboration to the process of economic and technological growth to which he/she contributed by disclosing his/her invention in the first place. During the time the patent is in force, usually twenty years, anyone who wishes to use the invention must ask permission to the owner of the patent (the patentee) and ultimately, as a general case, pay royalties; anybody who fails to do so is committing a crime15.
Of course, not all inventions are patentable as there are some restrictions imposed by the law. To be protected under a patent, an invention needs to meet the so called “conditions of patentability”, which are: novelty (the invention must be new), non-obviousness, meaning it must involve an inventive step and, lastly, the invention must have an industrial application. Inventions are usually classified in two main categories to which special rights are associated: inventions that consist of products and inventions that consist of processes. In the case of product patents, the exclusive rights of exploitation consist in the right to make, use, retail and authorize others to sell the patented item. In the case of process patents, the exclusive rights of exploitation consist in the right to use the process that constitutes the invention as well as the right to make, use, retail and authorize others to sell the product resulting from the innovative patented process.
15 As indicated in the book Introduction to Intellectual Property, Theory and Practice, there are some exceptions to this principle, namely the case of a compulsory licence, which is an authorization to exploit the invention given by a governmental authority.
19 1.3.1.2 Industrial Design
Industrial design refers to the mere aesthetic aspect of a useful object, such as the shape, colour or pattern used. The ornamental element must meet two main requirements: firstly, it must be original or new, secondly it must be reproductible by industrial means.
Industrial design can be protected for fifteen years against illegal copying or imitations.
1.3.1.3 Trademarks
Following the definition given by WIPO16, a trademark is any sign capable of distinguishing the goods or services of an enterprise from those of other enterprises. So, the subject matter of trademark is the good reputation or good will of a company.
Trademarks are used by companies for naming and individualizing their goods and to communicate with their clients. As stated by WIPO17, virtually any word or combination of words, letters, and numerals could constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features (such as the shape and packaging of goods e.g. the Coca-Cola bottle), non-visible signs (such as sounds or fragrances), or colour shades, if used as distinguishing features. One of the major restrictions to the choice of the name or symbol constituting a trademark, apart from that of being distinguishable, is whether it is already present and used in everyday language.
If a trademark starts being used as a current word to indicate an object, the trademark lapses, thus entering the current vocabulary.
The main scope of trademarks is the stimulation of economic progress: marking a brand with a certain symbol or word is essential for its recognition. Consumers are naturally inclined to keep on trusting the brands that provide a good service and to stop buying the products of the brands that did not satisfy their needs. In this way, trademarks reward the manufacturers that keep improving the quality of their goods. The ownership of a trademark, which grants to the holder the exclusive right to use it and to exclude others
16 WIPO official website, “What is a trademark?”. Available at: www.wipo.int/trademarks/en/.
17 WIPO, “What is intellectual Property?”.
20 from doing so, generally lasts ten years, but it can be renewed indefinitely upon payment of additional fees.
1.3.1.4 Geographical Indications
A geographical indication is a sign used on products that possess specific qualities or are highly reputed due to their geographical site of provenance. As trademarks, geographical indications are used in commerce, but these two forms of industrial property must be differentiated: while a trademark refers to a specific enterprise, a geographical indication identifies a geographical area. In this area several different companies might be located, all producing the good for which the geographical indication is used. Moreover, while the owner of a trademark has the right to exclude anyone else from using it, a geographical indication cannot be owned by a single company: all the enterprises located in that specific geographical site can use the indication for their products18. The protection granted to geographical indications is that of preventing their use for products that do not proceed from that specific area or that do not meet the prescribed quality standard.
1.3.2 Copyright
The second wide branch of Intellectual property concerns copyright.
The level of protection afforded to literary and artistic works plays an essential role in the development, promotion and spread of cultural heritage (WIPO, 1997). Concurrently, the encouragement of intellectual creativity contributes to the growth of “auxiliary industries” connected to the book, record and entertainment industries that help to disseminate such works, thus stimulating economic growth. Therefore, an effectively implemented copyright system is necessary to society as a means to efficiently organize
18 There might be some exceptions to this general principle, as stated in WIPO’s Introduction to Intellectual Property, Theory and Practice (p.233): “However, the right to apply a geographical indication to a product may well be subjected to compliance with certain quality requirements such as prescribed, for example, in administrative decrees governing the use of appellation of origin.”
21 the spreading and the progress of arts and knowledge in general, while successfully balancing social and economic concerns.
However, as it will be further discussed in this dissertation, the copyright system cannot be conceived as a monolithic concept. The brief history of intellectual property (paragraph 1.2) was meant to shed light on how this notion continuously evolved through the centuries and to point out how its implementation got stronger when the mercantilist and capitalist economic system appeared. Since copyright is not an a priori human category but derives and changes depending on the economic system in force, when this last one evolves, the copyright regime must evolve as well. Far from having become stable, the classical copyright structure has been shaken by the globalization process, which not only characterizes the economy of the post-modern era but also shapes our human relationship framework.
Anyways, getting back to the copyright analysis, it must be said that copyright protection applies to original works of authorship embodied in a tangible medium of expression. A great variety of works, stretching from literary, artistic works to motion pictures and computer programs can be copyrighted. The main requirement to do so is that the work must be an “original work”: it cannot be the result of copying someone else’s creation.
We note, en passant, how this constraint risks becoming obsolete in the Internet era of
“copy and paste” where such practice tends to evolve from the pure kingdom of fraud to the realm of creative art: is it a collage fully done with existing pictures, yet trying to express something different from any single puzzle piece, a new art work, or mere plagiarism?
Nevertheless, to qualify for copyright protection, works are not required to pass any test of imaginativeness, or of inventiveness: the work is protected regardless of its quality. A further requisite that limits the domain of copyright protection is that the work must have a “non-utilitarian” nature, since utilitarian products fall within the domain of patents.
Finally, it is important to stress that rights only extend over the actual expression of the work, not over the abstract ideas behind it. So, for instance, copyright law will protect the concrete choice of words or the way expressions are arranged in a book, but not the idea
22 of the story behind it19. Copyright law will protect the owner of rights against the attempts to “copy” the specific form used in the author’s work, as well as ensuring that the owner will derive some benefits from the work. Unauthorized copying of the work for commercial purposes is known as “piracy” and constitutes copyright infringement.
As previously stated while detailing the main contents of the Berne Convention, the original authors of works protected under copyright are bestowed exclusive rights and moral rights. Exclusive rights entitle the author to use the work as he/she wishes and to exclude others from using it (making copies, performing the work in public, broadcasting, translating, adapting it and so on), without authorization. Moral rights, as mentioned before, are the rights of attribution and the rights to object to any modifications, mutilations, distortions of the work, which would be perceived by the author as prejudicial to his/her honour or reputation. These rights are independent from the economic rights and cannot be separated from the author, even if he/she decides to transfer economic rights to someone else. So, even in the case in which national law foresees that when an author of a work had been employed for creating that specific work is the employer and not the author the lawful owner of copyright, the author keeps enjoying moral rights.
Generally, in first instance, the owner of copyright is the author of a work, but in some countries the author is allowed to transfer copyright to another person or entity. In those countries in which this practice is not possible, a fairly similar effect can be achieved by
“licensing”: the author remains the owner of copyright but authorizes someone else to exercise some of his/her rights (Idris, 2008, p. 49).
As in the case of patents, also copyright protection is limited in time. The time of protection starts at moment of the creation of the work and lasts until some time after the author’s death. The “limited time” provision was conceived for two main reasons. Firstly, it intends to safeguard the investments made for the work; secondly, it enables the author’s successors to continue to benefit economically from the work of the member of their family shortly after his/her death. Even if in the Berne Convention the period of time expires fifty years after the death of the author, a rising tendency has recently emerged towards lengthening this term of protection. This tendency is deeply tied to the changes that have taken place during the last decades in the field of digital technology and in the
19 The stealing of ideas is considered to be the domain of plagiarism.
23 sphere of media communication. This consideration will be the starting point of Chapter two, where the attention will be brought to the on-going conflict between innovative digital culture and the outdated copyright protection system.
1.4 Reasons to promote Intellectual Property Rights in our Society
To conclude the analysis of this Chapter, we will now briefly summarize the main reasons for the implementation of IPR (Intellectual Property Rights) in our society. WIPO puts it best when it says that: “the progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture”20. In other words, the first reason to implement IPR would be cultural and technological development. The second reason is that innovation depends on the legal protection bestowed on inventors and creators: the fact that people are willing to invest their time, energy and money in the development of their ideas is because they know these ideas will be protected and that they will be able to enjoy the fruits of their work. The third and final reason for the implementation of IPR is that their protection spurs economic growth, creating new jobs and industries and improving social and cultural well-being. According to WIPO: “The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish, for the benefit of all”21.
20 WIPO, What is intellectual Property?.
21 Ibidem.
24 2. The Digital Revolution and the on-going conflict with the current Copyright
Regime
On the one hand, information wants to be expensive because it’s so valuable. The right information in the right place just changes your life.
On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So, you have these two fighting against each other22.
2.1 How the Digital Revolution influenced Intellectual Property
The Digital Revolution, also referred to as “the Third Industrial Revolution” indicates the switch from analogue electronic and mechanical devices to digital technology. From an historical point of view, advances in technology for distributing creative works have always played a central role in the shaping of copyright law, let’s just think of Gutenberg’s revolutionary printing machine. The Digital Revolution, still on-going at present, started during the 1980s, with the computer becoming a familiar machine used in many jobs, thus marking the beginning of the so called “Information Era”. Thanks to the development of the World Wide Web in the 1990s, the Internet became a fundamental part of many business operations and entered in the daily life of many people, especially in the United States. It was the creation of the World Wide Web which disrupted the foundations of the traditional content industries (companies owning and providing mass media and media metadata) and their long-standing business models. As a matter of fact, until the 1990s, the limitations of memory storage capacity prevented content from being stored, copied and distributed on computer devices. Content industries started to appreciate the dramatic changes caused by the emerging digital technology with the rollout of the World Wide Web and its unexpected capacity to instantly distribute digital content at no additional cost. By the beginning of the years 2000s, the Digital Revolution
22 Brand, Stewart, and Matt Herron. "1984 Ad." Whole Earth Review 46 (1985): 49.
