BILETA 2013: THE RIGHT OF SHARING: WHY SHOULD COPYRIGHT LAW CHANGE INTO A NEW ECONOMIC MODEL

Ci-après l'ABSTRACT de l'article que j'ai soumis au BILETA 2013 qui s'est tenu du 10 au 13 avril 2013 à Liverpool. Cet article a donné lieu à une présentation suivi d'un échange avec le public composé d'un panel de cyberlawyers anglo saxons.

BILETA est la plus importante association d'experts en propriété intellectuelles et NTIC en Grande Bretagne, composé d'enseignants et d'avocats anglais, irlandais et écossais. Ce fut un réel honneur que de pouvoir apporter ma contribution aux débats et groupe de travail d'une exceptionnelle qualité lors de cette manifestation. 

THE RIGHT OF SHARING: WHY SHOULD COPYRIGHT LAW CHANGE INTO A NEW ECONOMIC MODEL

SULLIMAN OMARJEE

IP/IT LEGAL COUNSEL IN REUNION ISLAND

LECTURER IN CYBERLAW AT UNIVERSITY OF LA REUNION (FRANCE)

 

ABSTRACT:

Should copyright legal concepts change its fundamentals focused on the protection of work and authors, to move on toward recognition of more user’s rights like the right of freely accessing any content and share it?

If asked years ago, this question for sure could have been considered as provoking, denying copyright owners legitimacy for protecting their work. Does it still now?

During years, the battle against online piracy has raged around the world with multiple legal assaults from majors companies and numerous condemnations of Internet users. Whether in USA, Australia, France… law and case law have drawn a frontier between what can be a lawful use of a copyrighted content and what is not. The European Union Copyright Directive of 2001 has provided new legal tools to lock mediums and prevent users from doing copies, removing the lock being an infringement. More recently, the sensitive debates on the US bill known as SOPA and PIPA have raised the point to know if protecting copyright allows attempting to privacy and civil liberties in order to identify every infringer.

However, despite of the ongoing battle, the shape of the Internet and the behaviours of users have never stopped moving and escaping legal restrictions. MP3 files still exist and continue to be used to share music and the same goes for films with Divx file: they have not been eradicated by copyright owners. Surprisingly, they are even included in home or personal devices like DVD or CD players… Years ago Napster was facing important legal issues for being the first Internet file swapping system ; today users have choices between many others technologies and platforms : peer to peer, bittorent or streaming ! In other words, all legal issues and trials raised by unlawful access to copyrighted work with the Internet did not terminate the technological evolution, nor did it terminate the user’s habit to copy and paste!

At the current time of tablets, smartphones, cloud computing and social networks, nowadays users ‘s expectations consist more than ever in accessing any digital content anywhere, anytime ! The complete construction of a web page has changed as it now offers specific buttons to share any accessed content to your tweeter, facebook or linkedin account, whether it is text, images or videos! Yes, sharing has now become a complete functionality of web pages, allowing endless possibilities of broadcasting any information on any portable devices! It has become impossible to control the spread of information on the Internet: as soon as content is on line, everyone can access it and share it which means unlimited copies.

We are in the middle of a permanent revolution with the abandon of medium for digital file. Should we worry when the sell of mediums like CD or DVD are falling, whereas the sell of digital file are increasing at an exponential level, as Apple proved it by launching his appstore and itunes?

It is therefore important to understand the shift our cultural industries are facing and help copyright law to acknowledge the existence of the right of sharing, by finding a new balance between two opposite interests: the user’s interest to access and share a digital content, and the interest of the creator of that content to be recognised as such and get paid for his contribution.

In fact the question is no longer about how stopping and condemning users from sharing copyrighted content, but how to ensure a fair compensation for copyright owner.

This paper offers a careful study of the right of sharing and why copyright law should no longer ignore its existence. It explores the possible foundation of this notion into the mechanisms of “copyleft” suggested by Mr Richard Stallman’s Free Software Licence, the similar concept of Open Source software licence, and the Creative Commons licence for any non software contents.

The paper underlines the interest for copyright owner to use the digital technology to broadcast their work but also the need of ensuring a legitimate compensation. Only then will legal disputes for online piracy be able to cease.

On this last point, the article makes a proposition with the concept of Global Licence as a mean to ensure the expected compensation.