Copyright in the Information Society

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Copyright in the Information Society – An Opportunity Missed The advent of the so-called ‘Information Superhighway’ has thrown into sharp focus the importance of copyright and its protection of, in particular, works of literary, artistic and musical merit. Lloyd opines: “If the invention of the printing press resulted in a move from an oral to a written tradition at the price of chaining information to the pages of a book, the information revolution frees information in the sense that it may be readily transferred without the need for linkage to paper or any other form of storage device.” [Lloyd, pp.495-6, 2004] A comprehensive Green Paper[1] was published by the European Commission in 1995 which led eventually to the adoption in May 2001 of the Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society[2] (“the Directive”). This has led in this jurisdiction to the implementation (albeit after the deadline set by the Directive) of the Copyright and Related Rights Regulations 2003 (in force 31 October 2003) which makes a number of changes to the previously pre-eminent domestic legislation, the Copyright, Designs and Patents Act 1988. This notwithstanding, significant concerns remain as to certain aspects of the Directive. In particular, it is to be doubted whether the EU’s Information Society programme has been successful or is even of itself capable of addressing the issue of copyright protection in the digital age. The aim of the Directive was noble: first, it sought to bring the Community into line with the WIPO ‘Internet Treaties’; second, it sought to harmonise various aspects of copyright law within the Community. However, it has emerged as arguably “neither fish nor fowl”. The ambivalent aims of the measure are reflected by Recital 5 of the Directive: “Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation.” While the above clearly acknowledges the impact of technological development, it lamely and complacently concludes that existing intellectual property protection is largely adequate. The radical impact of the internet with its introduction of hitherto unforeseen methods of copying is relegated in importance to “new forms of exploitation” which in their turn are categorised merely as contemporary “economic realities” rather than recognised as the revolutionary emergence of wholly new challenges to previous concepts of copyright protection. On a procedural level, Hugenholtz is scathing: “The result of this over-ambitious undertaking has been predictable. The Directive is a badly drafted, compromise-ridden piece of legislation. It does not increase ‘legal certainty’…but instead creates new uncertainties by using vague and in places almost unintelligible language.” [Hugenholtz, p.501, 2000] Worse still, is the dilution of the provisions in Respect of Reproduction Right in Article 2 by the effect of Article 5. Article 2 requires Member States to provide for the exclusive right to authorise or prohibit reproduction of literary works,

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