CFP96 Paper

For the plenary session: Copyright and Freedom of Expression

Bernt Hugenholtz


Associate Professor
Institute for Information Law
University of Amsterdam
Advocate
Stibbe Simont Monahan Duhot,
Amsterdam/Brussels/Paris
P.O. Box 75640
NL-1070 AP Amsterdam
31-20-5460179 fax 31-20-5460722
e-mail: bernt@sara.nl

Redefining the Reproduction Right

Either way, these rights serve as abstractions of the acts that constitute exploitation from an economic point of view. Thus, most rights are patterned after existing modes of exploitation: publication in book form, public performance, broadcasting, etc. The digital networked environment of the superhighway represents a radical change in the way copyrighted works are exploited. Mass circulation of copies carrying identical information is replaced by transmission on demand of customised information.

Unfortunately, many legislators and legal scholars seem to be losing sight of the economic underpinnings of existing exploitation rights. This is especially true in respect of the right of reproduction. A dogmatic preoccupation with merely technical acts of reproduction is, rapidly, resulting in a dangerous proliferation of the copyright monopoly which encroaches upon basic user freedoms.

In its Green Paper on Copyright in the Information Society the European Commission advocates a broad interpretation of the reproduction right, similar to the approach followed in the Computer Programs Directive. "Reproduction" would thus include various acts of intermediate copying, storage, loading and transmission. The European Database Directive, recently adopted by the Council of the European Union and the European Parliament, contains similar language. The Commission's approach implies that practically every act of transmitting a work over the network, as well as each subsequent act of downloading and screen display, will qualify as countless acts of reproduction of the protected work. Thus, sending electronic mail, "browsing" the Internet and viewing a digital file on screen become restricted acts.

In fact, this extended reproduction right would amount to a novel right of digital usage. Such a use right is, however, antithetical to the traditional principle that copyright and neighbouring rights do not protect against acts of consumption or reception of information. Reading a book and watching television involve basic rights of privacy and freedom of reception, and are, therefore, not considered restricted acts. Arguably, the same must be true for the digital environment.

Any revision of the copyright system must take into account the specific nature of the communication process of the digital networked environment, as well as the peculiar economics of providing, distributing and using information on the network. Eventually, exclusive rights on the superhighway must no longer be (solely) based on expanded notions of copying and reproduction, but be redefined so as to become "network- oriented". In redefining copyright, legislators must look away from technology specific solutions, but follow a normative approach.

Unfortunately, the recent proposals for a "digital agenda" to be included in the Protocol to the Berne Convention do not in any way reflect the concerns expressed above.

References

P. Bernt Hugenholtz (ed.), The Future of Copyright in a Digital Environment, Proceedings of the Royal Academy Colloquium held in Amsterdam, Kluwer Law International, The Hague, 1996 (to be published)

European Commission, Green Paper on Copyright and Related Rights in the Information Society, Brussels, 19 July 1995, COM (5) 382

Legal Advisory Board, LAB Reply to the Green Paper, available on LAB home page: www.echo.lu/legal/en/labhome.html

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Last updated June 23, 1996
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