On modern tendencies and issues in the sphere of legal regulation of intellectual property

Natalia OSOIANU, PhD, Assistant professor, ULIM

This article concerns modern tendencies and problems in the sphere of legal regulation of intellectual property on the international and national level, related to changes in the sphere of internet evolution, technologies of information copying and distribution, and to the conflict of paradigms, which arises from the totality of these changes. Keywords: intellectual property, author’s rights, industrial property, information, internet, protection of rights

В статье рассматриваются современные тенденции и проблемы в области правового регулирования интеллектуальной собственности на международном и национальном уровне, связанные с изменениями в области эволюции интернета, технологий копирования и распространения информации, а также с конфликтом парадигм, произрастающим из совокупности этих изменений. Ключевые слова: интеллектуальная собственность, авторское право, промышленная собственность, информация, интернет, защита прав

It is well known that intellectual property represents a sphere of legal regulation that is prone to quick changes. Historically, the period between the adoption of Berne Convention for the Protection of Literary and Artistic Works and nowadays (i.e. 129 years) is not very long, but it took about 20 years to change almost everything in the sphere of copyright, and even more change is on the way. Indeed, these times have brought something completely new to the copyright, neighboring rights and industrial property. In this article, we are going to tackle different problems concerning intellectual property, to show that they are closely connected with certain characteristics of intellectual property in general and its institutions; and to demonstrate that, thought the formal aspect of the issue changes with the flow of time, there are nevertheless some essential ideas that remain virtually unaffected by technical progress and doctrinal shifts.

Intellectual property, as perceived by legal doctrine, legislation and practice, has two main aspects: economical (material, patrimonial) and moral (personal non–patrimonial). Economical authority of a copyright holder includes, for example, rights to copy, distribute and convert initial object of intellectual property; moral authority includes protection of author’s name and inviolability of the object of intellectual property. These two types of authority are interpreted differently as applied to author’s and neighboring rights and industrial property, and there are cases when it is difficult to divide between patrimonial and personal non–patrimonial aspects of copyright.

From a broader perspective, it is possible to reveal other aspects of intellectual property: e.g. N.Y. Toporova speaks about “social and cultural aspect” as one of the basic aspects of intellectual property, alongside with the economical basis.1 Yet it is important to remember that frequently social and cultural factors play a major role in an increase or decrease of the economic importance of an object of intellectual property. This refers especially to those spheres that are exposed to the influence of the so–called “digital piracy”, namely cinema, music industry, publishing and gaming industry. An increase of social and cultural importance leads to a growing risk of violation of rights. This is when a question arises, concerning the effectiveness of a certain legal regulation, which is designed for the protection of those who engage themselves into the creation of new objects of intellectual property. N.Y. Toporova makes a valid statement that intellectual property is “a property of authors upon information and knowledge — produced as a result of their intellectual activity in the sphere of industry, science, literature and arts, — which obtain an economic importance on the market”.2

Intellectual property is an “aggregate of exclusive rights of personal and patrimonial nature that concern the results of creative activity of a man and certain objects equated with them, specific list of which is provided by legislation of a corresponding state, taking account of its international obligations”.3 Besides patrimonial, personal non–patrimonial and aforementioned social–cultural aspects it is important to consider the fact that intellectual property combines objects with different properties, and can be divided into different categories in accordance with the classification of these objects. These categories traditionally include:

1) Author’s rights upon works of science, literature and arts; neighboring rights;

2) Industrial property:

a. Related to commerce (trade mark, service mark, geographical indication);

b. Related to science (inventions, designs);

3) “Know–how”.

Specifics of author’s rights and neighboring rights lies in the fact that they protect, mostly, the formal (external) aspects of the results of creative intellectual activity, whereas industrial property protects basic ideas of the objects that refer to this category (this is especially evident in case of inventions, protected by means of patents). Terms of protection are different for these two types of intellectual property: for the former they are about 50–75 years after the death of the author and for the latter they can be shorter (e.g. minimal term of protection for an invention is 25 years) or longer (for a trademark the term of protection can be prolonged indefinitely, until the owner won’t lose her interest in the object itself).

Conditions that need to be satisfied for the ensuring of the protection of intellectual property are different as well, and one of the most important of them is the demand to register certain types of industrial property, primarily inventions. It must be noted, that author’s rights comprise all results of creative intellectual activity, not only unregistered, but also unpublished. In other words, it is correct to state that in author’s rights “the main criterion is the form of the object that was created, and this form must be unique”, whereas the main criterion for the protection of industrial property, especially inventions, is not the form, but the contents.4

The third part of the intellectual property has different characteristic features in comparison with author’s rights and industrial property: “know–how” or trade secret might have any nature, depending on the specific interests and sphere of activity of the owner, and there are objective reasons due to which the main attention is directed upon the integrity of the information as such, but not upon other aspects of the issue.

Hence, intellectual property includes certain institutions, which, from a certain point of view, have more differences that common features — e.g. what is the overlap between a poem of a Moldavian blogger and Moldavian geographical indication/trademark “CRICOVA”? These two objects of intellectual property are under protection of both national legislation and international conventions in which Republic of Moldova takes part. Still, if we try to locate — in a more conceptual way — those features, which can be found in any object of intellectual property without exceptions, the result will comprise the following:

1) Territorial character of intellectual property is a characteristic feature that refers to its recognition, which is entirely dependent upon legislation of a certain state and its participation in the international conventions concerning intellectual property;

2) Temporal character of intellectual property refers to the fact that in the context of economic (patrimonial) rights, the existence of objects of intellectual property is limited in time, and after the expiration of the period established by law or international convention they are transferred into the public domain.

Some authors mark out certain other qualities. We have to mention, however, that one interesting feature of intellectual property is not frequently met in juridical literature, though its importance is obvious: capability for becoming an object of economic interest. Author’s rights and neighboring rights, patents, trademarks and service marks, geographical indications and other objects of intellectual property can have a various measure of this quality (or nothing at all), and commercial secret and know–how are impossible without it, because their very nature supposes an economic or commercial interest. And the legislation of Republic of Moldova concerning commercial secrets provides that they need to have “a real or potential commercial validity for an entrepreneur”.5

The connection between this feature and legal regulation of intellectual property on the national and international level seems questionable. But the history of intellectual property knows many examples of implicating commercial interest into the very essence of the issue. E.g., the movement for the adoption of international convention concerning authors’ rights (the Berne Convention) united many writers from different states, and their prominent leader was also a writer — the one that would have been called nowadays “bestselling author”. Victor Hugo, whose patrimonial rights have been violated and who suffered greater damage than many others due to a greater commercial interest, had played a very important part in the process that led to the elaboration and adoption of the Berne Convention. A mouthpiece of the opposite party was Albert Willem Sijthoff, a publisher from Netherlands who rose to prominence in the trade of translated books. “He wrote a letter, dated November 12, 1899, to Queen Wilhelmina of the Netherlands regarding his opposition to the petition to become a signatory to the Berne Convention for the Protection of Literary and Artistic Works. He felt that the international copyright restrictions would stifle the publishing industry in the Netherlands”.6 Other publishers of that time had no remorse in holding a position more suitable for “digital pirates” of modern times.

Consequently, even if the difference in the approach to the regulation of intellectual property seems paradoxical, one of its foundations remains unchanged since the very beginning, and this foundation is economic or commercial interest of the participants in the legal relationships. But who are these participants? A simpler scheme of a legal relationship in the sphere of intellectual property includes only two subjects:

Author → User (Reader, Viewer etc.)

In fact, a direct economic relation between the Author and the User rarely takes place, because usually there is at least one intermediary between them — publisher, sound–recording company, TV channel, broadcasting company etc. Concerning certain objects of intellectual property a chain of intermediaries may appear, e.g.:

Composer + Poet

↓

Performer

↓

Sound–recording company

↓

Broadcasting company and/or TV channel

↓

User (Listener/Viewer)

This scheme seems more intricate than the previous one, but we must consider that there are many juridical technicalities, which might make it even more complex.

For instance, many objects of intellectual property are subject to regional restrictions of sale of services, and as a result these objects might become inaccessible in certain regions of the world, where they could be sold (or not) by different intermediaries. Speaking of “inaccessibility” of intellectual property in some regions, we may remember about a case concerning American professor Jim O’Donnell who went to a conference in Singapore; when his iPad performed an update, Google Books application deleted all downloaded books, and it was impossible to download them one more time because of regional restrictions: «Books on Google Play is not available in your country yet». Later Google had to publish an official commentary, explaining the situation by means of a technical fault.7 A general economic cause of regional restrictions in the sphere of intellectual property consists of a simplified control of its usage and a potential maximization of profit.

An interesting example of problems that arise because of the aforementioned “chain of intermediaries” between the producer of the results of intellectual labor and the final consumer is given by the story about the struggle between the giant of online retail Amazon and publishing corporation Hachette. The disagreement between these companies were related to the mechanism of pricing in the specialized section of Amazon, Kindle Store, containing digital books. It started as a regular dispute between two subjects of commercial activity, but then the situation degenerated into a excruciating judicial process. “Depending on where you stood, it was a struggle between the future and the past, the East Coast and the West Coast, culture and commerce, the masses and the elite, technologists and traditionalists, predator and prey.”8 Amazon even used certain methods of pressure, which have been incompatible with rules of fair competition: It began delaying the shipment of some Hachette titles to customers. Instead of being described on the site as “In Stock,” titles were moved into the “Usually ships in 1 to 3 weeks” category.9 Taking in consideration Amazon’s position as a monopoly (it occupies 40% on the market of new books, 62% on the market of print books and 64% on the market of digital books10), the problem looked serious until it was solved by means of an agreement between the parties that were involved.

Economic interest was the main cause of an outburst of “digital piracy” that took place at the end of 20th century due to the apparition of very simple ways to copy an object of intellectual property, transformed into electronic form. It is impossible to copy a book or a CD as a material object without special knowledge and/or special equipment, which might be inaccessible for a simple user/consumer. But to copy a file, whatever it might contain, one needs a device (a PC, a smartphone or a tablet) and a moment of time, so the relation between the costs and gain becomes very unbalanced and very unfavorable for those who produce intellectual property on a professional basis.

The economic interest as a key element of intellectual property explains that when it is possible to reproduce a certain object indefinitely without noticeable expenses, its value is reduced to zero. The main cause of this “pirate crisis” lies deep, and, taking in consideration that it is technically impossible to stop “digital pirates” once and forever (territorial character of intellectual property plays an important role here as well), we must conclude that a shift in paradigm of intellectual property is inevitable. In fact, it already started with the pirate movement and Pirate parties, first among which was the Pirate party of Sweden founded in 2006 and aiming to reduce the terms of protection of intellectual property and abolish DRM technologies11, as well as exclude non–commercial usage of intellectual property from the sphere of legal regulation and protect anonymity in the Internet12. There are similar movements in about 40 states of the world, united into the Pirate Parties International.13

But pirate parties were not the first to touch upon the problem of balance between the intellectual property and human rights and freedoms. It is possible to mention the “copyleft” concept, and antipode and alternative to copyright, proposed by American programmer Richard Stallman, who also founded the Free Software movement. The Creative Commons licenses also promote the idea of more author–centered regulation of intellectual property, their basic ideas expressed in a book by Lawrence Lessig entitled “Free Culture”.14

These are some of the main issues that concern intellectual property in the modern days, its specifics and changes that took place in the last decades and the last two centuries due to technical progress. Taking in consideration this progress and the ever–important commercial interest being a part of the concept itself, we must conclude that intellectual property as an institution and a legal system goes through a period of transition, which can result in a regulation of a more vacant type or, vice versa, in a set of more strict rules, applying to objects which do not yet exist or are not yet accepted as “intellectual property” of a specific type.