1 Table of Contents
1. History of Intellectual Property Rights ... 3
1.1 Intellectual Property Rights: A first definition ... 3
1.2 History of Intellectual Property: from the origins to international treaties ... 4
1.2.1 First records of intellectual property in the ancient world ... 4
1.2.2 The Florentine Patent Statute of 1421... 5
1.2.3 The Venetian Patent Act of 1474 ... 6
1.2.4 The Statute of Monopolies and the Statute of Anne ... 6
1.2.5 The Protection of Non-Economic Rights in France: the origins of the Droit Moral ... 7
1.2.6 The Battle of Booksellers ... 10
1.2.7 The Paris Convention for the Protection of Industrial Property ... 11
1.2.8 The Berne Convention for the Protection of Literary and Artistic Works ... 12
1.2.9 The Hague Agreement and the Madrid Agreement ... 13
1.2.10 From BIRPI to WIPO ... 13
1.3 Classification of Industrial Property Rights ... 14
1.3.1 Industrial Property... 14
1.3.1.1 Patents ... 14
1.3.1.2 Industrial Design ... 15
1.3.1.3 Trademarks... 15
1.3.1.4 Geographical Indications ... 16
1.3.2 Copyright ... 17
1.4 Reasons to promote Intellectual Property Rights in our Society ... 19
2. The Digital Revolution and the on-going conflict with the current Copyright Regime ... 20
2.1 How the Digital Revolution influenced Intellectual Property ... 20
2.2 Old and new criticisms of the copyright regime: why is it no longer valid? ... 23
2.2.1 On the idea of property ... 23
2.2.2 Individual ownership and the threshold of originality ... 25
2.2.3 Was copyright designed for distributors or artists? ... 26
2.2.4 Temporary monopoly: forever less one day ... 28
2.2.5 The erosion of Fair Use ... 32
2.2.6 Do artists really gain from copyright? ... 36
2.2.7 Does copyright really contribute to the spreading of creativity? ... 37
2.2.8 The complexity of copyright legal system ... 39
2
2.2.9 Massification of culture and market-based censorship ... 41
2.3 The Rise of the Copyleft movement ... 41
2.3.1 The origins of copyleft: Free and Open Software ... 41
2.3.2 Copyleft Licences ... 43
3. Creative Commons: from the origins to version 4.0 ... 46
3.1 Structure of Creative Commons Licences ... 47
3.2 Four elements, six licences ... 49
3.2.1. Creative Commons Plus and Zero ... 54
3.3 Universal Creative Commons Licences: version 4.0 ... 56
3.4 Creative Commons Program Areas: Open Access ... 60
3.5 Final goal of Creative Commons ... 62
3.6 Criticism of Creative Commons ... 62
3.7 Creative Commons in a nutshell ... 66
4. ... 68
inghilterra si stacca dal modello classico
3 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. Bearing in mind the impossibility of giving an exhaustive definition of a concept that is still evolving at a fast pace, this Chapter introduces the notion of intellectual property and of the rights associated with it. This first approach will constitute the groundwork for the analysis carried out in the following Chapters.
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)
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) 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 to 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 inquiry will be fundamental for the subsequent study of the critiques made to the current copyright system and to the study of the rise of the Copyleft movement.
4 1.2 History of Intellectual Property: from the origins to international treaties
Since the Statute of Anne is widely considered the predecessor of the modern regime of copyright protection, it is too often forgotten that the first manifestations of intellectual property actually 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 pursuit.” (Deipnosophistae, Vol. 3, Book XII, Ch. 20)
As stated by Spitzlinger in his On the Idea of Owning Ideas, 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 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
1 Situated in the Gulf of Taranto, in Southern Italy.
5 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 creation 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 June 19th, 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 and skill may not be reaped by another without his will and consent2", the Florentine commune granted him exclusivity.
As Kahrl Rober points out in his Patent Claim Construction, 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
2 Foray, Dominique. "The economics of knowledge openness: emergence, persistence and change of conventions in the knowledge systems." Trust and economic learning (1998): 162-189.
6 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 thirteenth 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 March 19th, 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”3 as a means to boost the manufacturing system of the Republic. The time length of the exclusivity rights was decided by the Provveditori di Comun who were also in charge of approving the patent requests. The cases of patent infringement were punished with a fine of 100 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 “letter patents” 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
3Kostylo, J. "Commentary on the Venetian Statute on Industrial Brevets (1474)." Primary Sources on Copyright (1450- 1900). Eds. L. Bently & M. Kretschmer (2008), www.copyrighthistory.org
7 privileges to be granted in an unfair and arbitrary way. The situation reached a tipping point when Queen Elizabeth 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 inventions.4
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).
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 …” (Statute of Anne, 1710)
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 Anne Statute, printing was a privilege granted by the sovereign to the Stationer’s Company5, 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, 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
4 The Statute of Monopolies, Section VI.
5 Stationers’ Carter, 1557
8 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 the copyright laws in many civil law jurisdictions 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 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).
9 The 18th Century, characterized by the intellectual and philosophical movement of the Enlightenment, promoted the idea that certain rights had to be bestowed to 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 17936 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, in 1798, 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 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 law7 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 July 19, 1793, a time frame
6 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.
7 According to Wikipedia (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”.
10 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 Booksellers
Following the passage of the Statute of Anne, 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 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 Booksellers”. The main claim of the booksellers, as specified by Rajan (2011), was that, from the Stationers’ perspective, the copyright had to be perpetual, because it had always been so. 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 exist independent 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) 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
11 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.”
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. 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.
12 Although largely modified throughout time8, 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.9 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.10 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”.12 According to the second main principle of the Berne Convention, known as
“automatic 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
8 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.
9 Idris, Kamil. "Wipo Intellectual Property Handbook: Policy, Law and Use." Geneva: WIPO publication 489 (2008), p.
262.
10 Idris, Kamil. "Wipo Intellectual Property Handbook: Policy, Law and Use." Geneva: WIPO publication 489 (2008), p. 263.
11 Completed at Paris on May 4, 1896, amended on September 28, 1979
12 Idris, Kamil. "Wipo Intellectual Property Handbook: Policy, Law and Use." Geneva: WIPO publication 489 (2008), p. 272.
13 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 is “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”13. 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 (25 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 nowadays
only two Acts are still in force: the London Act of 1934 and the Hague Act of 1960.
Also the system of international marks registration is governed by international agreements. There are two treaties dealing with the protection of trademarks: the Madrid Agreement Concerning the International Registration of Marks, which dates from 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.
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, BIRPI (WIPO, History of WIPO).
The transformation from the BIRPI into the actual WIPO was completed with the WIPO Convention, which was signed at Stockholm on July 14, 1967 and entered into force in 1970. At present, WIPO is
13 Idris, Kamil. "Wipo Intellectual Property Handbook: Policy, Law and Use." Geneva: WIPO publication 489 (2008), p. 264.
14 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 been just 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 is 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, an invention 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
14WIPO, Publication No 450 (E), 2011 “What is intellectual Property?”, page 2 http://www.wipo.int/publications/en/search.jsp?rows=100&q=450&lang=ENWIPO
15 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 20 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.
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 15 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.
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.
16 WIPO, “What is a trademark?” http://www.wipo.int/trademarks/en/
16 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 from doing so, generally lasts 10 years, but it can be renewed indefinitely on 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 products.18 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.
17 WIPO, “What is a trademark?”, “What kind of trademark can be registered?” http://www.wipo.int/trademarks/en/
18 There might be some exceptions to this general principle, as stated in WIPO’s Introduction to Intellectual Property, Theory and Practice: “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.”
17 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. 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 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 risk 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
18 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 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.20
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 tangled to the
19 The stealing of ideas is considered to be the domain of plagiarism.
20 Idris, Kamil. "Wipo Intellectual Property Handbook: Policy, Law and Use." Geneva: WIPO publication 489 (2008), p. 49
19 changes that have taken place during the last decades in the field of digital technology and in the 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”21. 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 to 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.”22
21 WIPO Publication No 450 (E), 2011 “What is intellectual Property?”
22 See 24.
20 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 other.
(Brand and Herron, 1985: 49)
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 had already spread across the world. Nowadays, according to the website Statista.com23, in March 2017 there were 287 million Internet users only in the United States.
One of the major consequences of the Information Era is the shift in the perception of creative works:
people do not longer tend to consider them as one single object together with the physical support in which they are embodied. Also, the Digital Revolution completely changed the patterns of communication within society and, most importantly, considerably widened the access to information. The major shift to digital electronics deeply affected the way content is created and
23 https://www.statista.com/statistics/273018/number-of-Internet-users-worldwide/
21 shared over the Internet, stretching the laws of intellectual property to a breaking point. As suggested in Understanding Copyright: Intellectual Property in the Digital Age (Klein et al., 2015, Introduction), copyright resulted to be the most affected domain of intellectual property by the raise and expansion of the World Wide Web. It became evident that the existing copyright regime was struggling to keep pace with technological innovations as more and more people found themselves breaking the law, without even realizing it. As maintained by the authors of this book, the proliferation of sites and on-line platforms for the downloading and sharing of the analogue version of media content contributed to blurring the line between legal and illegal activity around copyright. At the beginning, digital sharing was simply perceived by many users as the natural extension of the well- known activity of sharing movies or songs between friends and family (Klein et al., 2015). New technologies have made it possible to create a great deal of sources of content outside of the authorized distribution channels and the anonymity of file sharers have made copyright enforcement against end users extremely difficult. As a result, copyright owners have sought new ways of enforcing their rights and prevent infringing distribution. Therefore, one of the major consequences of the digital innovation has been that of bringing the concept of copyright into the life of ordinary people. Nowadays, users often find themselves locked out of the on-line version of essays, papers and books, of which only a first scattered glimpse is allowed, since most of the content is made available only after payment. The same happens with articles of many newspapers, for which hefty subscriptions are often required. One could go as far as stating that new generations became familiar with the concept of copyright through the little symbol of the closed “electronic padlock” on on-line documents. Why is it so? The digital revolution caused the distinction between the processes of gaining access to a work, of using it and copying it, to collapse. This collapse expanded the domain of copyright which now seems to regulate not only the act of copying, but also the act of access and use, regardless of the chilling effect this practice might have, on the long run, on creativity. Brannan (2001) puts it best when he writes:
In the past, a lawfully obtained book, sound recording, or motion picture on video belonged to the person who purchased it, and that person could do whatever she wanted with that copy, including loaning it to a friend.
This area of sharing legally obtained copies is murkier in the digital age because when a digital copy is made via an MP3 file, for example, both the owner and the friend have a copy. Prior to the digital age, the friend only had the copy once it was loaned to her.24
Nonetheless, the proliferation of these little padlocks is nothing more than a vain attempt to contain the spreading of on-line websites, such as the on-line archive “Shi-hub” or the well-known
24 http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1321&context=lawreview
22
“ThePirateBay”, defined as “The galaxy's most resilient BitTorrent site”, which allow users to
download virtually everything, from movies to books, to scientific essays, without paying a cent.
To understand to what extent the Digital Revolution shook the copyright system, it might be interesting to follow the reasoning of the Italian writer Luca Neri, who explains this whole process very clearly in his book, La baia dei Pirati: Assalto al Copyright (2009). The author reflects on the concept of intellectual property and on how, for the new generations, the free-downloading of a book or a song has nothing or little to do with mugging, robbing or the act of shoplifting a physical object;
it is simply not perceived as a wrongful behaviour. More specifically, according to an investigation carried out by Moore and McMullan in 2004, among university students, 71% of the participants in the survey “did in fact use peer-to-peer file sharing and generally perceived the use of the software to be neither illegal nor unethical.”25
According to the National Research Council (2013, p.21), the advance data compression technology along with the proliferation of file-sharing technologies and streaming services which allow file storage in clouds (such as the controversial “file hosting” devices) have dramatically shifted the market for many copyrighted works. Technological advances lead to profound and complex consequences in the market of creative works: on the one hand, the ease of infringing digital copying and distribution resulted in a drop of the sales, thus lowering the revenues of the creators, but on the other hand the marginal manufacturing and distribution costs underwent a drastic fall, since physical objects were replaced by digital ones. Furthermore, the Internet’s potential to reach a huge audience has also led to a sudden fall of the costs of associated with the promotion of new works.
In conclusion, the Digital Revolution resulted in the disruption of the traditional supply chain of different creative sectors and to the substantial inability, for the copyright holders, to efficiently prevent or pursue infringing distribution of copyrighted works. The phenomenon of “piracy” has consequently become a part of the 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.
This is, for instance, the case of the music industry, perhaps the most affected by the “peer to peer”
file-sharing sudden growth. The proliferation of services such as customized Internet radio channels, digital music stores (iTunes) or paid music subscription services (Spotify) are a clear example of these new business models.
25 https://www.researchgate.net/publication/242380125_Perceptions_of_Peer-to- Peer_File_Sharing_Among_University_Students
23 2.2 Old and new criticisms of the copyright regime: why is it no longer valid?
The purpose of this paragraph is that of presenting some of the most widespread arguments against intellectual property law, especially in the Digital Era. Therefore, this analysis does not aim, by any means, at affirming that all these criticisms are well-founded.
The criticism of the copyright system is not a recent phenomenon; dissenting voices have risen against copyright since the dawn of time, attacking with virulence the very heart of copyright, namely the right to copy. Nowadays, as the process of globalization expands, the resulting scenario is that of a small number of multinationals controlling collective sectors of the creative industry, exercising their enormous power to decide what kind of artistic creations will be available for us to read, watch and listen to. In the ultimate analysis, both the process of democratic communication and the development of science and art result narrowed by the present copyright systems which fails to remain faithful to its original goals and seems to respond to the interest of entertainment lobbies.
2.2.1 On the idea of property
To fully understand why the idea of intellectual property has been so deeply affected by the Digital Revolution, attention should first be devoted to the simple concept of “property”, which lies on two
main principles, notably the theory of scarcity and the theory of reward.
The theory of scarcity is based on the assumption that natural resources are scarce or available in a finite number. According to this theory, the best way to allow everyone to benefit from them is to divide these resources among many owners in order to ensure their best exploitation. This theory is perfectly explained in the well-known essay The Tragedy of the Commons by the ecologist Garett Harding, who wrote: “ruin is the destination toward which all men rush, each pushing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all”26.
The metaphor usually employed is that of farm animals, let’s say sheep, that are gazing on a common land. If no one owns the land, then each family of the hypothetical village would try to increase its own wealth by increasing the number of sheep in the herd, to have more milk, more wool, more meat.
But the increase of the herd will lead to the collapse of the common land, because sooner or later there won’t be enough grass for all the animals due to the non-sustainable exploitation to which the
26 Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–48, at 1244.
24 land has been submitted; the sheep will eventually starve and die. This simple example is employed to show how only diving the common land into small portions given to each family the village could survive. Only privatization is the solution to ensure everybody’s wealth with a limited set of resources. Heller (2008, p. 23) highlights that Aristotele, along with Thucydides, was among the first to point out how shared ownership can give rise to overuse: “That which is common to the greatest number has the least care bestowed upon it. […] Each thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual”.27 Overuse arise when individuals, rationally knowing that the sum of their individual decisions will destroy scarce resources decide, despite all, to consume them. Heller (2008) makes the example of massive use of air conditioners which result in an increase in global warming.
Similarly, the theory of reward is meant to demonstrate the importance of property, using another clear example. This time Neri (2009) imagines a farmer who is growing his own products: what would be the point of taking care of the plants, of watering them every day, if everybody who walks near the farm could just take some of it? The theory of reward claims that property spurs the creation of new resources and projects: if an individual knows that he or she would be able to enjoy the fruits of his/ her work, the individual will be more willing to put energies into the project.
Now, what Neri (2009, p. 96) suggests whit this reasoning is that these two principles do not apply to the concept of intellectual property in the Digital Era. (For this purpose, it might be interesting to draw attention to the fact that the term “intellectual property” itself was not used until 1967, when WIPO was created). Anyways, in the Digital Era it is straightforward to see how the principle of scarcity cannot, by any means, apply to intellectual property: ideas are limitless and do not require an exclusive use. Far from being some revolutionary concept, made up by new generations of web- pirates, this idea was beautifully expressed long ago, by Thomas Jefferson himself, who said:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself;
but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it.28
Sharing ideas does not make anyone less poor, while contributes to make more people richer. The Digital Revolution made it costless and timeless to share content that has the same exact qualities of the original version.
27 Aristotle, The Politics and The Constitution of Athens, edited by Stephen Everson, translated by Benjamin Jowett (Cambridge: Cambridge University Press, 1996), 33.
28 Letter to Isaac McPherson, Monticello, August 13, 1813
25 Things get a little bit more complicated when dealing with the second theory, that of the reward, which is at the very heart of the on-going debate about copyright. From this point of view, nowadays’
society could be pictured as divided into two main opposite categories of Internet users. On the one hand, there are those who state that since copyright allows authors to earn a living from their work, it needs to be protected, as it is the best possible way of ensuring cultural growth and knowledge spreading. According to these people, the digitalization calls for stricter measures to enforce copyright and punish transgressions. On the other hand, there are those who point out that copyright was born as a business model, created to protect the interests of the distributors’ lobby and that it has no reason to exist in a costless-sharing Digital Era. According to this last group of people, the whole idea behind copyright is anachronistic after the Digital Revolution, since the concept of copyright itself is tangled to the physical economy in which it was born, where printing a book and distributing it implied considerable intermediary costs. Nowadays copying a book, a movie, a song does not cost a penny.
This variegate last group of users, more or less moderate, is currently questioning whether or not limiting the access to authors’ work is really the best way to encourage the spreading of creative expression, which, at the end of the day, was supposed to be one of the cornerstone reasons to promote copyright.
Notwithstanding the positions of the two rival groups, it is undeniable that, contrary to private property, intellectual property is not, and cannot be considered as, a “natural right”. While private property has long been conceived as the very foundation of civil society (I give up the possibility to take everything I could, so that the State will protect what is mine and prevent other people from stealing what I own), no-one has ever put intellectual property at the base of society itself. (Neri, 2009, p. 98). This argument had somehow already been introduced in Chapter one, where it was stressed out how copyright was nothing more that the outgrowth of the mercantilist and capitalist system.
2.2.2 Individual ownership and the threshold of originality
What is originality? To see something that has no name as yet and hence cannot be mentioned although it stares us all in the face. The way men usually are, it takes a name to make something visible for them.
Friedrich Nietzsche
26 One of the most radical critique addressed to copyright concerns the monopolistic rights granted to the artist. Is the individual ownership of art appropriate in the first place? Many says it is not, because, even if at first it might sound absurd, the concept of “originality” is not a universal concept, it is simply so deeply-rooted and interrelated in the Western culture that we ended up believing it was some sort of divine notion. Neri (2009, p. 102) goes as far as denominating it “an historical exception”: nowhere else but in the Western world people can claim to be the owners of a melody, of a story, of an image. In many cultures the value attached to a work has no connection to the notion of ownership; it is more, in our own culture, in a past that we tend too often to forget, borrowing from previous works had always been a part of the creative process and was considered flattery for the authors. Quoting Joost Smiers and Marieke van Schijndel (2009, p.11):
Every artistic work builds to no mean extent on what others have created in the distant or less distant past.
Artists draw from a well-nigh endless public domain. So, isn’t it rather strange that should we grant an ownership title for the entire work due to the addition, no matter how much we might admire it?
The authors continue their reasoning concluding that, in this way:
Communication becomes terribly one-way and dominated by a single party, namely the owner. He/she is the only one who can and may lend his or her artistic material significance through concrete attempts at improvement. Other artists and we, as citizens, are not allowed to lay a finger on it afterwards. We are only permitted to consume - both figuratively and literally - and hold our own opinions on the work. This is not enough for a democratic society.
According to these authors, copyright hinders the dialectic and democratic process of interiorizing
creative expressions prohibiting the public to further process, improve and re-interpret them.
And yet, as previously stated in Chapter one, originality remains the fundamental requirement for eligibility for copyright protection which lead to what appears to be a paradoxical situation. How can it be possible to determine how, and to which extent, a work is truly original? The threshold standard of qualification for copyrightability is at the core of copyright protection, where “original” means
“originating from the author” rather than in the sense of “never having occurred before”. A change in these standards will deeply affect the number and types of works that can claim protection (Abrams, 1992).
2.2.3 Was copyright designed for distributors or artists?
