Intellectual Property Rights: Issues in a digital world

Intellectual property is a legal concept which encompasses trademark law, copyright and patents. This recent system is harmonized globally as most of its mechanisms are identical across the world. Originating from major international conventions of the late 19th century: the Paris Convention, the Berne Convention, the Rome Convention and the Stockholm Convention which established the World Intellectual Property Organization (WIPO), and finally the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), annex to the Marrakesh Agreement, which established the World Trade Organization (WTO). Because of the economic stakes involved, these have formed a harmonized conception of intellectual property rights. In all sectors, intangible goods and services have steadily increased in economic value. In France, they are estimated to represent approximately 20% of added value and 15% of employment. Studies using a broader notion of intangible investment have even assessed their worth at approximately 13.1% of the yearly US GDP between 1998 and 2006. Copyright alone accounts for 2 to 3% of the European GDP. In economic theory, intellectual property rights are said to have two main functions, acting both as an incentive and a transaction enabler. On one hand, intellectual property rights serve to incite creation, monetise creative works and, in so doing, ensure revenue for creators once their works are published. Secondly, intellectual property rights secure the possibility for creators of granting licenses to use of their works so that they can be developed and monetised by a third party. A film director for example will thus grant distribution rights in order for his film to be shown to the public. Is this principle actually effective? Is there a risk of stunting innovation, of stagnancy on the part of intellectual property right owners? The main goal of intellectual property rights is to encourage creations by allowing successful creators to be individually and proportionally remunerated. It thus plays the role of a catalyst of innovation. A tenuous equilibrium must be found between those who advocate absolute adherence to this principle and its reconciliation with other fundamental rights, such as those freedom of enterprise and freedom of expression. Some creators chose to distribute their works and waive their right to get a remuneration: the Creative Commons, for example, are licenses which allow for the distribution of works without monetary compensation. In any case, after a certain period of time, works fall under public domain. Is intellectual property adapted to the new behaviors of the digital age? Internet has become the main door of access to creative content. A recent study by Hadopi has shown that 84 percent of French internet users access films or television series through streaming and 49 percent of them resort to downloading music online. One out of four consumers has a subscription to a platform through which they can access creative goods online, and 32 percent of those who have never paid for online creative content say they would be willing to do so. The greatest threats to a legal path of cultural access are these illicit websites, whether they are free of charge or subscription-based.

How can the long term development of these offers be assured in the absence of a clear legal framework for websites making an illicit profit out of unauthorized digital content? The list of notifications sent to Google informing them of illicit content and applications via search results is constantly expanding: between January and May 2013, the number of notifications rose from 470,000 to 4 million a week. This level of piracy is becoming even more worrisome as it concerns all sectors: books, film, video games and music. Its impact on digital revenue is undeniably strong, albeit this customer base represents a large potential source of income. Since 2013, there has been a consolidation of initiatives in Europe in the matter of anti-piracy legislation, instituted for the most part in 2012 except in the United States (through the Copyright Alert). The most promising initiatives concern the dismantling of piracy websites, even if they often fail to prevent mirror websites from being posted given that access to these sites involves being immediately redirected to another address. Moreover, there is a growing consciousness of the problems posed by streaming sites, blogs, and forums as well as other websites that allow pirated content (direct download) to be shares. In this context, are the perspectives and strategies propose by the European Commission in the matter of intellectual property up to the challenges posed by the digital world? The Commissions priority is to facilitate access to the greatest diversity of online content in all countries of the European Union. To increase the supply of legal alternatives, it recommends the creation of a single market for intellectual property in Europe and a consolidated European regime for Intellectual Property Rights, going as far as to draft a European Code of Authors Rights (Copyright). However, it may not be that simple. The creative industries market in Europe is heterogeneous: numerous legal offers, ways of usage, languages, platforms, and conditions of access A study of Enders analysis performed in May 2012 has analyzed the extraordinary diversity and density of the digital offers in the European film and music industry. According to data from IFPI (International Federation of the Phonographic Industry), there exist 543 legal and interactive music services in Europe! The majority of these services, which benefit from local exposure while targeting global markets, are successful specifically because they take local languages and cultural preferences into account. Some questions: Intellectual property in a digital world: How should exclusive rights and additional funding mechanisms be articulated (copyrights laws, blanket license, etc.)? Taxes: How will the digital giants participate in funding? Which liability regime for intermediaries (ISP, Hosting providers, search engines, social networks)? What legal framework for re-use and for mash-ups works? How is the original version protected? Should creations of the mind be subject to the free market or should they be protected by the laws that compose the framework of the cultural exception? What responsibilities should be relegated to the European Commission and which ones should be left up to member states to decide and enforce?