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COPYRIGHT 2004 Berkeley Electronic Press
Abstract
The current struggle between the users' right to the information and the protection of the authors and producers through the intellectual property as for the different devices available in the Internet is the background idea of this survey, in search for an accurate balance. The new informational tools existing in the cyberspace, such as databases, multimedia works, search engines, web pages, hipertext links, on line publications and others, are examined mainly from the perspective of the new sui generis right for databases producers in force in European Union. Those instruments and others as the domain names (and their connection to trademarks legislation), the software (and the current European debate on its patentability), the technical means of collecting of royalties are dealt with mainly from the perspective of the existing Spanish legislation and case law, as a token of the European treatment on the topic. This essay takes into account the more recent Directives on intellectual property in the European Union (such as the Directive 29/2001/CE on copyright in the Information Society, the Directive 2004/48/EC on enforcement of intellectual property rights; or, on the other topic mentioned, the Directive 2003/98/EC on the re-use of public sector information) and makes a concise comparison in some points as the private copy or the collecting societies with the United States norms as the Digital Copyright Millenium Act.
KEYWORDS: copyright, intellectual property, databases, web pages, links, collecting societies, Spanish Law, right to information, search engines, software, private copying
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1. ACCESS TO ON-LINE WORKS
1.1. THE RIGHT TO THE INFORMATION
1.1.1. The role of the intellectual property Law within the information superhighways and the information society
Basically, all the issues generated by the revolution of the telematics which implied the apparition of a worldwide web, as far as the copyright is concerned, can be summarized in just one: should an adjusted intellectual property right survive with the same strength on the Internet, or should it be reduced in this environment, in favour of the users? Thus, the dichotomy is whether to keep the exclusive rights to the exploitation of the works or productions protected via intellectual property (authors' rights or neighbouring rights), limiting to the full the exceptions, or whether these exceptions must be enlarged as a consequence of the right to the information, thus blurring the exclusive rights in a global world with a free access.
The ideological debate, reduced in this way to its most extreme stances, takes place between the so-called "neoclassicals" and the "libertarians" (or "minimalists") (1). The former are for the validity of the intellectual properly in the digital networks, on the conceptual basis of a quasi-absolute and monopolistic right of ownership. Therefore, they argue, in favour of the owners of the exclusive rights, the prominence of a system of direct on-line licences (non-compulsory contracting), the leverage of the technological measures to secure the defence of the works on the Internet and the control by their owners, and the reduction of the exceptions and lawful uses (including the digital private copies). In turn, the "minimalists" criticise the role of a strong intellectual property on the Internet, due to the restrictions imposed on the access to the works, the culture and the information; they also declare the obsolescence of these rights in the virtual environment and their limited practical respect due to the social imperatives, and accuse the intellectual property of being a tool in the hands of the leisure industries to protect their investments against the competitors and the new formats (i.e., MP3), particularly given that the authors usually do not benefit from the advantages of the exploitation on the Internet, since they assign their rights in favour of the producers.
In Spain, the neoclassical approach has prevailed, although the reflections on the legal, ideological and political basis of the reforms of the traditional intellectual property have been very succinct and generic (2); and its survival and current configuration, with the necessary adaptations is supported. However, note that this type of "special property" (within the normal, though controversial, Continental qualification of these rights), in spite of its differences with other types of property, must also fulfil some kind of "social function" (3), as established by the Spanish Constitution (section 33). Therefore, the limits or exceptions to the powers of the owner--which became so large in the 20th century in all the environments--must be kept in the digital environment, since it is possible to implement a real control within some criteria of normality and prohibition of the abuses against the lawful interests of the authors and producers. It must be noted that, in this possible return to the normal channels of the intellectual property, after an initial chaos, the digital technology comes back to enable the titleholders to control the use of their works or productions on the Internet, through the online licenses.
The digitalisation of all kinds of literary, musical and audiovisual works makes it possible to consider any work as "information" from an objective (4) and legal point of view. This approach, justifiable also according to the European Continental Law, although it is perhaps more in line with an Anglo-Saxon mindset, implies the risk of removing the difference between "work" (or intellectual creation) and "information" on the Internet, thus promoting the progress of the fundamental right to the information (cfr. section 10.1 of the European Convention on Human Rights), against the "special property" of the authors' works, which does not cover the facts, the mere data or the pure ideas, but the way this information is expressed (5).
In the context of the information society, the role of the "investment" prevails over the "creativity" in order to protect the intellectual property. Likewise, the significance of the neighbouring rights is nowadays much larger than that of the authors' rights (sensu stricto), with a gradual loss of the originality as a decisive criterion; the reduction of the level of originality is clear in the last EU Directives on intellectual property, which substitute the traditional canon of the "original creation" with a mere "intellectual creation" (considering the section 1.3 of the Directive 91/250/EEC on software; sections 6 and 7 of the Directive 93/98/ECC on photographic works and the section 3.1 of the Directive 96/7/ECC on databases) (6). This softening of the requirement of the "creative height" (Schopfungshohe) is in parallel to the gradual abandonment of the romantic notion of the author and clearly implies an increase in the number of derivative works. To sum up, even if both the protection via the traditional authors' rights or via the new reduced criteria of originality--either via authors' rights or via pure related rights--coexist, it is possible to identify a shift from a model of intellectual property based on humanistic postulates and cultural policy to a new one more focused on the requirements of the business investment (7).
The necessity of an internationally harmonised legal treatment in the environment of the information superhighways is evident. The prior requirement for this legal status relies on opting for an Anglo-Saxon pattern of free economy or for a European Continental controlled economy and the potential convergence of both systems. In the European Union, in spite of the recommendations of the Bangemann report in favour of the priority role of the private entities and the market, the European decisions have chosen a clear control of the private activities and an enlarged prominence of the public sector (8). Following this interventionist line, the Spanish government, while recognising that the private sector is the leading motor of the progress of the information society, defends the essential role of the public sector to create new enterprises and to develop new technologies (9).
1.1.2. Status for the public data
In the context of this public control in the field of the cyberspace, with the regulation of the activities of the individuals as regards the information society, it is possible to wonder whether the public sector can control via intellectual property its own public data (10). The question was posed by the EU Commission's Green Paper on Public Sector Information in the Information Society of 20th January 1999, which ended in the Directive 2003/98/EC on the re-use of public sector information (11) and the EU citizen's right to the free access to the information enshrined in European Constitution of 2004 (section II-104; already in the Treaty of Amsterdam, section 225). This right is also included in the legislation of many States, and Spain among them, since the section 105.b of the 1978 Constitution recognises this right, with the peculiarity against other comparable legislations of referring to the access "to administrative files and registers", rather than to the access to administrative documents. This idea was further developed in the Law 30/1992 of 26th November 1992 (section s 35.h and 37) on the legal basis of the public administrations, with some rules that have been criticised for being too restrictive as regards this Constitutional right. To mention only a statistic on the effective application of this principle, 35% of information held by the Spanish public administration is accessible to the public; of this proportion, 40% of it can be accessed without charge (12).
But if the access to the administrative documents is well-known, its reuse or commercial exploitation is expressly forbidden in some countries, such as Belgium, Greece or France. Unlike the USA, most of the Member States have no policies on the commercialisation of the information of the public sector, either by the administration itself or via incentives to private companies.
It is important to define which documents and official texts can be protected via copyright, in order to place them out of their free, open use for commercial purposes by the private sector. Most of the Member States who have signed the Bern Convention have excluded these texts from any protection via copyright. This is the case in Spain (Section 13 of the Intellectual Property Law ["Ley de Propiedad Intelectual", hereinafter, LPI) (13). According to this rule, "the legal or regulatory dispositions and their corresponding projects, resolutions of legal bodies and the minutes, agreements, deliberations and orders of public organisms, together with the official translations of all of the above texts" are not considered as an object of intellectual property. This provides not only guaranteed access to the materials by the citizens, but also ensures their commercial use by the private sector to create databases on legislation, judgments, resolutions, administrative documents, etc. Since the abovementioned rule is exceptional with respect to the general situation of the intellectual property, an extensive or analogous interpretation is not possible (14). Other texts or information available to the public sector may obtain protection via copyright, always assuming that their originality or creative nature is sufficient to obtain such legal protection. Special attention should be paid to the databases or collections of information which for some time have been protected via copyright in some countries (Spain--section 12 of the LPI) with an original structure due to the selection or arrangement of the content (data, information, not original works). Besides, the EU Directive 96/9/EC of 11th March 1996 (on the legal protection of the databases) established the new neighbouring right, called sui generis right (implemented in Spanish by the LPI Law 6/1998, of 6th March), according to which, the titleholder (i.e., the creator of the database) can be a physical or a legal person (section 133 of the LPI), also including the public organizations and bodies, and the public or private companies with an exclusive assignment. The right of access to the information, enshrined at both the European and the national level must be enough to allow the access of the citizens to the public databases, insofar they are public documents (for free, with a prior payment of the costs of reproduction and delivery, or at market prices; see sections 6 to 8 of the 2003/98 /CE Directive on re-use of public sector information). However, this permission would not be enough to allow the private commercial use of the information. In any case, the system of different charges is important to decide whether the use involved is a public use of the information or a commercial reuse: there is a difference between the profits obtained through a request for the commercial exploitation and the research or private study.
To summarize the situation on the right to the intellectual property in the Spanish official texts and documents and in similar legal systems, there are three possible situations:
a) Official texts or provisions with a legislative, administrative or judicial character. These have no protection via copyright. The defined set of excluded texts is established in each Intellectual Property Law and implies a restrictive interpretation (see Art 13 of the Spanish of the LPI).
b) All the works created by the public sector except those in a) are protected via a real copyright. In practice for most of the cases, once these works have been published, any subsequent user of the information must mention its source rather than pay a fee.
c) The public sector materials with an insufficient creative level to be protected via author's right (copyright), but which are in databases covered by the requirements of the Directive on sui generis protection, will be protected in this way. This is also applicable to materials included in the two previous groups which are presented as databases protectable due to the substantial investment involved. A competitor can gather the data dispersed all over the public sources and create a similar database, but cannot pirate the information from another completed database. The Competition Law, anyway, punishes the use of this right to obtain monopolistic positions related to the information as an abuse of a dominant position, which will occur when a database produced by the public sector is the only source of the information (15).
Two final remarks on this topic. On the one hand, some measures related to a good and broad definition of the exceptions to the rights of reproduction and communication are necessary to preserve the principle of the access to the information from the public sector; otherwise, the intellectual protection (and in particular, the new sui generis right) could lead to a systematic payment for any digital information, thus making of the database creators the only beneficiaries of the lack of protection of the intellectual property rights in legal, administrative and judicial documents. On the other hand, although the widespread idea that the existence of a intellectual property right in some information from the public sector can be useful to defend its integrity and quality is true, this notion must be somehow rejected as a general principle, because the copyright is being used in some countries and sectors to hinder the private competition, safeguarding the prevailing position of the public sector to obtain resources; the same protection can be obtained using other measures, either administrative, of Private Law itself, or even of Criminal Law, without creating the side effects that the intellectual property might imply in these cases.
1. 2. NEW INFORMATIONAL WORKS AND THE INTERNET
1.2.1. Databases and multimedia works: protection and title/authorship
a) New informational works: the status of the databases on the Internet
There are many new informational works on the field of the Internet based on the compilation of information which are valuable products requiring a legal protection given the large investment necessary to carry them out, rather than due to their originality. These products can be legally considered as databases whose contents are works, pure information or both. Most of the tools on the Internet fit to this classification, not only the on-line databases, but also the web sites, links, search engines, or even the "conversation threads" ("forums") (considered as a collection of alien works, e-mails or messages, only when they are moderated, organised and selected by a master) (16). Almost all the objects of intellectual propriety on the Internet are covered by the distinction between "databases on the Internet (on-line databases)", and "databases of the Internet"; among the many potential approaches to the Internet Law (software, graphic works, general copyright, etc.) one of the most clarifying and complete ones is the approach proposed by the regulations on the intellectual property of databases (17).
Among the new exploitations and uses of the digitalized or digitalizable materials, particularly as regards the information (raw or elaborated), it is possible to identify a practise conflicting with the regulations on the intellectual property and with the defence of the efforts and the investment via the new sui generis right in the databases, which can be called "data pickpocketing" (Datenklau) (18), theft or (unauthorized) absorption of information on the Internet. The piracy skills of these new professionals-competitors, or "data thieves" are many and impossible to enumerate thoroughly and, in view of the compared case law produced in the last few years, they develop most of their predatory activity in connection with telephone directories (such as the White or Yellow Pages), addresses of individuals, enterprises, industries, etc., newspapers and digital editions for the compilations (creation of databases) from the sections of property ads, job offers and news.
As regards the modalities of the previously mentioned absorption or extraction, note, among the most widespread ones, the following: a) Absorption of news, headings or ads from one or several sources (through the scanning of this information from the paper versions of the newspapers or magazines involved, or via an electronic copy of these sections from the web page of the publications), to re-offer this information as an own service in another web page. b) Creation of search engines or systems which extract the information collected by a third party in its web site and offer it as its own, deleting any reference to the original source. c) Digitalization of an analogical creation by someone else, ranging from a listing to a magazine or a dictionary, and its offer in another web page; or reproduction of someone else's works without the authorization to create a collection on the Internet (a very common case, for instance, as regards the photographs protected by authors' rights or musical works). d) Acquisition of a database on CD-ROM or DVD and provision an on-line service with its contents, without the authorization of the creators; or registering in an on-line service for the provision of information from a database and "forwarding" or resending the information to third parties, even displaying the name of the contractor of the first service as the autonomous provider as regards the related third parties.
A clear example of this last case can be found in the first Spanish judgment which applied the new sui generis right in the databases, which is also the first one on the applicability of the intellectual property to a database on the Internet: the judgment of the First Instance Court no. 3 of Elda (2nd July 1999), fully confirmed by the Provincial Court of Alicante (5th section) (2nd October 2000)19. In this case, an enterprise was offering a service of on-line access and search in its web page for a monthly or quarterly fee regarding some case-law and legal databases which, thanks to the expert tests, could be proved to be the property of the publishing house Aranzadi (the main supplier in the field in Spain). A deciding factor as for the evidences was the fact that the original database included some deliberate mistakes which had been registered before a Public Notary. The judgment declared the unfair character of the act of unlawful imitation, which "implies an undue exploitation of a significant investment, both quantitative and qualitative, made by the plaintiff"; and, then, identified an unlawful enrichment, a violation of the sui generis right of Aranzadi under the section 133 of the LPI.
In the context of the phenomenon of absorption or "data pickpocketing" of the on-line compilations, the intellectual property can also been violated, according to the existing regulations (both in Spain and in the EU), through the unlawful acts of a single user (with no profit from the extraction or reuse) or of a competitor on the Internet. Besides, there is a wide range of free services offered to the consumers or users of the Internet, which usually obtain their sources of financing--in absence of a credit from the direct beneficiary--from the advertising through banners displayed in their web pages; the indiscriminate absorption of data from these pages/databases to reuse them, without making the user of the second database aware of the first one, are a usual trigger of the lawsuits to preserve the exploitation of the plundered database on the basis of the intellectual property rights.
The introduction of these Internet tools within the legal concept of database is clear, as highlighted in the definition of the section 12.2 of the Spanish LPI, which reproduces the wording of the Directive 96/9/EEC (= failed WIPO Treaty on databases protection of 1996): "a 'database' shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means". This new definition, integrated into the LPI by the Law 5/1998, includes clearly both the electronic databases and the collections published in paper; although the latter were already included in the section 20.2.h of the LPI (on the right to the public communication), which was the only provision of an European Member State Law on Intellectual Property before the works on the Directive on the protection of the electronic databases containing works (but not data, as nowadays). The web pages or sites are clearly covered by this definition.
The legal protection of the databases is two-folded itself: on the one hand, it affects the authors' rights, when "through the selection or arrangement of their contents they generate intellectual creations" (section 12.1 of the LPI); therefore, this protection is linked to the structure. On the other hand, and possibly accumulating both protections, the databases will be protected by the new sui generis right when the creator makes a "material investment, both in qualitative or quantitative terms" (section 133 of the LPI), which is in turn the object and a requirement of the protection; this refers to the possibility to "ban the extraction and/or reuse of all or a substantial part of the contents" (20).
The contents of the databases cover two components with a different status as regards the "digital property": 1[degrees]) The works or data which are part of the (sensu stricto) contents. These materials can be protected themselves by the authors' rights, and therefore, the responsible for the databases will have to request the authorization of the owner of the rights in each database. Or, in turn, as regards the pure data which are public knowledge, these could be used provided that they are extracted from a public source and not from another database previously compiled with a material investment. 2[degrees]) The tools or instruments intended, above all, to retrieve the information or to allow the access to the materials, but also for their diffusion, transfer, storage, handling or updating. Among these tools note the existence of two types with a different protection: first, the authors' rights cover the elements necessary to use or consult some databases, such as the thesaurus or the indexation systems (21). And, secondly, "the software used to produce or operate the data accessible by electronic means " (section...
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