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Is the existing concept of copyright still justified in the information society?/Ar dabartine autoriu teisiu savoka vis dar pateisinama informacineje visuomeneje?

Introduction

The author has devoted the study to exploration of intellectual property protection problems in information society. The motto is as follows: everyone must receive remuneration for his/her work, but the remuneration should be proportional to the interests of society. If the idea about the proportional division or the rights balance is lost, then piracy flourishes, which is the 'illness' of our century.

The object of the study is fight against piracy in the field of modern technologies (Internet) and access by society to copyright protected works on the Internet.

The tasks of the study are to find legal solutions of how society can access the huge cultural heritage accessible through modern technologies (Internet), and how right holders can receive equitable remuneration for access by society to these works.

The following methods are used in the paper:

1. analysis of various documents and normative acts with a view to finding out what amendments to national and international normative acts should be made and what administrative or legal measures should be carried out to improve the situation;

2. observations of everyday work;

3. survey (viewpoints expressed, interviews, personal conversations).

The study has a scientific and socioeconomic novelty, since by establishing balance among society and right holders it becomes possible to secure observance of rights and finance circulation, which would allow, first of all, the right holders to receive remuneration for the intellectual product created by them, and the economy in general would benefit both in terms of taxes and Gross National Product (GNP) increase.

1. Development of the concept of copyright

Over the past decade, copyright researchers from several countries have raised the issue of evaluation of existing copyright protection regulation in connection with the development of technology and the public opinion. A number of opinions have been expressed in literature on the necessity of ensuring a balance between different right holders themselves and the society at large.

Professor Lessig (2004) believes that the assumption that intellectual property needs maximum protection leads us down the wrong path. No doubt intellectual property rights is the best way to further innovation; however, it is permissible with the condition that there is a balance between the public area and private property. When the Internet was born, its initial architecture effectively tilted in the 'no rights reserved' direction. Content could be copied perfectly and cheaply; rights could not be easily controlled. All rights were effectively unprotected. This initial character produced a reaction (opposite, but not quite equal) by copyright holders. Through legislation, litigation, and changes to the network's design, the copyright holders were able to change the essential character of the environment of the original Internet. If the original architecture made the effective default 'no rights reserved', the future architecture will make the effective default 'all rights reserved'. The architecture and law that surround the Internet's design will increasingly produce an environment where any use of the content requires permission.

Professor Boyle (2004) holds the view that intellectual property protection has expanded exponentially in breadth, scope and term over the last 30 years, and the fundamental principle of balance between the public domain and the realm of property seems to have been lost. In the professor's opinion, the limits of the copyright term are now absurdly long. Thus, the most recent retrospective extensions, to a term which already offered 99 % of the value of a perpetual copyright, had the practical effect of helping a tiny number of works that are still in print, or in circulation, and it is between 1 % and 4 %.

Professor Mazeh (2002) observes that copyright law has always tried to balance the need for creativity incentives, on the one hand, and the need to enable society to access works which have been created, on the other. Broadening the protection provided by copyright provides greater incentives for authors, but narrows the public domain, that is, the common cultural resources to which the public has access. Finding the right balance between sufficient incentives for creativity and over-restricting the public domain has always been, and still is, one of the main challenges of copyright law.

Heins (2004), the founder of the Free Expression Policy Project, holds the view that copyright law is a tricky balancing act. The problem with this is that it ignores the critical pivot on which copyright law is built, that is, the balance between monopoly control and free expression, and fair use is especially important in enriching our culture, because it encourages new works.

Professor Geist (2002) emphasizes the dangers of copyright that veer too far towards copyright creators at the expense of the public. He notes that excessive control by holders of copyright and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.

Kreutzer (2010), a lawyer in Hamburg and researcher in a field of media and telecommunications, considers that the copyright system is modified from the protection of authors of creative works to the protection of economic interests of the industry exploiting the works. Reforms at the political level have often stated that they seek to strengthen the rights of copyright holders, but in many cases it is only in the interests of the industry exploiting the work. In the past, copyright was a law for professionals--both for authors and for publishers of books, records and film industry. Today, there are legal amateurs on the Internet who are in contact with copyright issues almost every day. Therefore, copyright has become a law regulating the general behavior of society. However, it is much too complex to use for this purpose and difficult to enforce due to its outdated conception.

Gee (2007), a librarian with more than eighteen years of experience of working in academic law libraries, considers that there are still many copyright 'hot topics' to be addressed before this 'copyright balance' is achieved, and it remains to be seen whether the current UK government will be willing to support the amendments to national copyright legislation that librarians are lobbying for both in the UK and in other jurisdictions.

Rumphorst (2005), a prominent German professor and the copyright institute's researcher, considers that the rise of the author's rights protection is heavily lobbied and the lobbyists advocating the strengthening of such protection are very powerful and influential (rich) 'players', such as film and phonogram producers, collecting societies and publishers. At the same time, Rumphorst notes that lobbyists of work users (users of authors' works) or society interests are much weaker, because they are not represented by influential rights holders and in the field of legislation, especially at the international level, the balance between rights holders and society interests is shattered. Rumphorst expresses the point of view that globalization of intellectual property rights creates barriers for copyright users to use those intellectual property products that are made by broadcasting organizations, the press, academic and scientific studies, educational establishments, libraries and archives. Without doubt, promotion of discoveries and competition worldwide requires sufficient international guarantees in order to ensure supply of products in the increasingly international context; however, nowadays it is necessary to restore balance between copyright and product users' rights.

Any copyright system should balance two rights of interest to society: the rights that are envisaged for copyright owners and the reasonable demand rights of an organised society (Stewart, 1983).

As can be seen from the research fragments cited above, well-known copyright researchers consider that a balance should be established among the different groups of right holders and the public, and copyright cannot be furthered as a limitation of the freedom of speech.

The lack of balance between rights holders and public interests gives rise to many problems, and due to the lack of balance in several fields of copyright the following consequences have emerged.

2. Consequences emerging from disbalance

2.1. Disbalance between protection of copyright and access to information

Each copyright system has to find a balance between two interests: those of copyright holders and those of society. The following two fundamental principles clash in virtually every copyright conflict: on the one hand, the necessity to protect the financial interests of the work's creator, on the other hand--the necessity to provide each individual the right to access human art and knowledge treasures.

In the age of information acquisition and disclosure, there often arises a conflict between copyright and access to information. The following legal acts provide legal grounds for striking the balance:

1. the Universal Declaration of Human Rights states that everyone has the right to take part in the cultural life of the community and to the protection of his/her art works;

2. the International Covenant on Economic, Social and Cultural Rights states that everyone has the right to take part in cultural life, use the benefits of scientific progress and its applications, as well as to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which this person is the author;

3. the International Covenant on Civil and Political Rights states that everyone is entitled to search, receive and impart information and ideas of all kinds, using the press or in the form of art, subject to restrictions respecting the rights and reputation of others;

4. the European Council Convention for the Protection of Human Rights and Fundamental Freedoms states that anyone is entitled to receive and impart information and ideas without interference by public authority and regardless of frontiers, subject to balancing it with rights of other people;

5. the Constitution of the Republic of Latvia stipulates that the state approves scientific, artistic and other creative freedom and protects copyright and patent rights and generally the warranted right to freedom of expression, which includes the right to freely acquire, keep and distribute information, to express one's views.

2.2. Disbalance between technological measures and restrictions and limitations

The laws of different states on copyright foresee different restrictions, i.e., the cases when the work created by the author can be used by the public without requesting his permission or without payment. The restrictions and limitations are justified by the rights of the public to avail of copyright materials for a definite purpose or special rights of certain user groups (e.g., disabled persons) with the aim of creating a balance between the holder's rights and users' interests. However, this right to receive information is often endangered due to exaggerated limits of the author's rights: access to cultural heritage is denied and rights are not granted for the use of works in new technologies.

Effective technological measures often are used by right holders to prohibit any acts of the use of works without a permission. The destruction or circumvention of these measures is deemed to be a violation of copyright and related rights. It causes problems to honest users who desire to use the exemptions and restrictions of copyright and related rights as permitted by law. For example, in the case of private copying after paying the blank tape levy, or for disabled persons who want to reproduce works for their needs.

2.3. Disbalance between nowadays authors and heirs of long dead authors

Authors do not have sufficient resources for creation of works due to a too long copyright protection term, which deprives today's authors of resources, putting them into the hands of heirs of long-dead authors. The existing copyright protection period was determined based on the necessity to protect the authors, their children and grandchildren. However, no one can really justify why it is necessary to protect two generations after the author's demise.

The majority of works (almost 95 %), although initially having a commercial value and perhaps a huge value, lose it after a couple of years and are no longer published, are no longer in circulation or are stored in archives. The majority of books published disappear five years after their publication. On the other hand, Shakespeare is still studied, and classical music is still played, but these are exceptions. The copyright protection period seems to be more based on emotions without any logical reasoning and therefore cannot be fully justified (Kilbey, 2003).

Copyright automatically applies to the simplest of creative works even if it is clearly known that it would never be used commercially. However, they are protected by copyright. Only a small number of works require copyright protection for a period longer than ten years.

2.4. Disbalance between collecting societies and exploitation of works

Users of works (broadcasting organisations, theatres, shops, hotels, bars, etc.) are not able to conclude agreements with collecting societies for exploitation of copyright works due to the fact that tariffs imposed by such organisations are too high. If they are not able to acquire a licence (and without it the works cannot be used), authors' rights are violated, because the authors do not receive remuneration for the use of their works. As a result, the access to culture and history materials is denied, which harms society and its cultural development. For this reason, the appearance of new cultural and art objects is hindered, and the state budget suffers losses due to non-received income from licensing.

The necessity of monopolistic collecting societies should be stressed, but these societies quite often abuse their dominant position.

2.5. Disbalance between the film and music industry and private users

The blank tape levy is a fair compensation for authors and other right holders for copying of their work or product for personal use. The Copyright Law of Latvia stipulates that without the permission of the author, a natural person is permitted to reproduce (including in a digital format) one copy of the works that have been included in lawfully acquired films or phonograms.

Until November 1, 2012, according to the Regulations of the Cabinet of Ministers to the Republic of Latvia, the blank tape levy had to be paid only for the purchase of audio cassettes, video cassettes, mini discs CD, DVD-RW and audio tapes, DVD or CD recorders.

Today, everybody buys and copies audio and video recordings on computer hard disks, mp3 players, mobile phones, USB flash drives and other similar equipment. Over the past decade, the new technology has prompted rapid changes in the music industry worldwide, as music is accessible to different users in convenient formats and types. The use of CD and DVD matrices for recording music is decreasing. The purchase of music on the Internet more precisely shows the popularity of the composition (Platpere, 2010).

There was a contradiction between holders' right to receive compensation for reproduction of their work for private use and the regulations that did not include updated data carriers and equipment used for this reproduction.

Every country would be responsible for including a levy in their national legislation for real data carriers of authors' works. If the compensation has to be paid only for outdated carriers like archaic audio or video cassettes or cassette recorders and not for data carriers on which authors' works are being copied at present, there is no real protection. Certainly, any such compensation should be reasonable such that the end user would practically not feel the difference and therefore would not refuse to pay.

This is ridiculous, as no private music collector uses archaic audio or video cassettes or cassette recorders, hence the levy is unfair. Right holders brought this issue to the Constitutional Court. The Court found that the Cabinet had failed to fulfil his obligation to reassess on a regular basis the carriers and equipment list (Decision of the Constitutional Court..., 2012).

The Constitutional Court noted in its ruling that the Cabinet of Ministers is obliged to "follow the technological development and improve the list of the carriers and the equipment list" (Decision of the Constitutional..., 2012, p. 3). If this obligation is not met, the Cabinet is considered to have failed in their responsibility, namely, ensuring the protection of human rights.

After the ruling the Cabinet of Ministers amended the abovementioned Regulations. According to the amendments the blank tape levy now has to be paid for the purchase of CD and DVD--6 % from price, USB flash--4 % from price, for the purchase of computers--2 LVL (2.8 EUR) for every item.

3. Some ideas on the provision of balance (or at least improvement)

In general, right holders are ready for new challenges as they understand that the piracy problem could not be extinguished, it should be resolved by updated methods. It should be understood that the Internet is not a hindrance, but the future for the use of authors' works, and one should learn to use it correctly.

3.1. Attraction of advertisers

A more efficient way rather than charging a certain fee for watching, listening or downloading each song, film etc. is to allow users access to copyright-protected works on the condition that they first watch an advertising clip.

Then authors could be compensated for the work from the money paid by advertisers.

The aim is to provide free of charge delivery of music to listeners and appropriate payment for authors and performers. Advertising clips on the homepage do not exceed three-four seconds, but there is also the possibility of listening to music for a fee without watching the advertising clip. The problem here is, how to attract users from those Internet sites where they currently download music illegally. Therefore, Internet sites should be designed to make them interesting for people--it should contain all the latest information, photographs, videos etc.--an added value that would attract people. Moreover, musicians whose songs are downloaded most often receive more money. This system is transparent and accountable (Jerohomovic, 2008).

In Latvia, the phonogram producer "Platforma Records" offers music on the Internet for free. It tries to attract as many advertisers as possible in order to ensure ongoing service. For every downloaded song, a part of the money goes to the collecting society, a part--to musicians, and a small part is left for maintenance of service. However, the consumer is entitled to listen to music for free.

3.2. Donations to favourite musicians

Services that operate according to the principle 'I download music and I like this music, so I pay to help my favourite musicians' is becoming increasingly popular around the world. Certainly, if you do not like music you need not have to pay, it is not obligatory. Musicians receive approximately a half of the amount donated. Music records do not have Digital Rights Management (DRM) protection. They can be copied and used unlimitedly and often can be sent to friends. Music does not have a fee and you can pay how much you wish. Several years ago, two Canadian students designed an Internet site Fairtunes. com in the hope that they could, through donations of North American fans on the site, pay for at least a small part of illegally downloaded songs. The students promised to send the money received directly to musicians. The file distribution company MojoNations and author Stephen King have also tried to change the future of distribution of books, music records and other intellectual property by accepting donations. The music portal Ampcast.com, successors of the Canadians, has promised to pay groups a royalty in the amount of six cents for each downloaded song (Ziedojumi MP3, 2000).

Peer-to-peer software has proven that there is a huge continuing demand for music, and the public wants to share it; there is a huge public demand for music that is shareable, available in a 'source code' form, allows derivative works and is free of cost for non-commercial use. However, if you make money ('commercial use') with our music, you will have to 'share the wealth' and give us and our artists a share (Buckman, 2003).

A satisfactory solution for the information society as well as for authors is not to prohibit access to copyright works, but to let viewers and listeners to decide for themselves whether, and how much, they are willing to pay for the use of each work.

3.3. Expansion of the blank tape levy system

National legislation could be supplemented with provisions envisaging an obligation on part of Internet service providers to charge a fair fee on each user that would allow him/her to reproduce (copy) works for personal use similarly to the blank tape levy system. Today, the focus is more on protection, prohibition, technological protection mechanisms etc. rather than on ways in which to make the work widely and simply accessible with the provision of compensation at the same time.

Online service providers often compare the Internet with a street, namely a public place, where each member of the information society (each of us) has the right to freely wander along and freely release and receive information. In this connection, a comparison with cars parked along the street comes to mind--it is definitely not harder to open and steal them than to download the latest movies, music records or computer programmes. It is likely that some car has been left unlocked, but even those that have been locked can surely be decoded easily using the latest technology achievements. Yet somehow a car theft is considered

a crime, while a theft of the author's work is not--it is a simple daily activity carried out by each and everyone and it is anything but condemnable! At the same time, this Agreement in no way prohibits a member of the information society (each of us) from going into any store operating legally in this street and buying any product supplied legally to this store.

The example of Germany, where the idea about the introduction of the 'culture flat fee' is under discussion (Grassmuck, 2009), should not be underestimated. It would be a fair and wise solution, and in the end it will cost much cheaper for society to pay (in the form of a tax) for enforcement actions done by police, prosecutors and the court system. The system might be similar to the license fee system for public broadcasting introduced in many countries. Internet users should be mandated to pay a fixed amount per month and in return be allowed to non-commercially remix and share copyrighted files (Dobruch, 2010). The culture flat-rate introduces a legal permission to copy and make available published works under copyright by private persons for non-commercial purposes, and in return a monthly levy is paid by broadband Internet users, collected by Internet Service Providers (ISPs) and collectively managed by the communities of authors, i.e., by collecting societies.

If such an overall tax system is not deemed reasonable, then at least additional charges for usage of the Internet should be imposed. This extra cost may be added to payment for services of an Internet service provider, and this amount, just as the private copying levy, would be shared by collecting societies.

3.4. Public information and education

It is essential to improve the awareness of society of the fact that support provided to illegal production or illegal actions not only hinders the development of the state, but it also jeopardizes one of the basic human rights, namely, the right to enjoy science, culture and artistic achievements.

The level of education at higher education institutions, including Latvian higher education institutions, as regards intellectual property should also be improved with the aim of promoting understanding of protection of intellectual property and furthering intellectual property studies in the European Union.

In order to improve the level of understanding of intellectual property at law enforcement institutions, trainings should be organized for police officers, prosecutors as well as judges, who not always have sufficient understanding of intangible property protection.

However, these measures will not yield any results if teaching that the unlicensed use of property, although intangible, is a breach of somebody's rights is not implemented in families and at school.

Conclusions

The environment where authors' works are used has significantly changed, and it would be appropriate to change the copyright system so that it would better represent the interests and concepts of modern people. In such a way, copyright protection would be updated taking into consideration both the authors' interests and the information society's right to access science and art accomplishments.

Everyone must receive remuneration for his/her work, but the remuneration should be proportional. If the idea about the proportional division or the rights balance is lost, then piracy will flourish, which is the 'illness' of our century. It will never be possible to eliminate piracy completely, but every effort should be made to limit it and to put it into a frame acceptable for civilized society. Original, extraordinary solutions should be sought to fight piracy. The battle will not be won merely by fines and prohibitions. We must remember that in the information society era, every creative person must be entitled to receive remuneration for creation or accomplishments, but every individual in society should also be entitled to enjoy art and scientific achievements.

The balancing of the author and subjects of neighbouring rights is to the benefit of the entire society as it provides the right for gifted people to receive the deserved remuneration and to pay taxes from it, it also lessens possibilities for dishonest copyists to make shadow money from illegally acquired resources and limits opportunities for monopolists to abuse their dominating position.

It is essential to improve the awareness of society about the fact that support provided to illegal production or illegal actions not only hinders the development of the state, but it also jeopardizes one of the basic human rights, that is, the right to enjoy scientific, cultural and artistic achievements.

The level of education at higher education institutions as regards intellectual property should also be improved with the aim of promoting understanding of protection of intellectual property and furthering intellectual property studies.

Illegal music and film distribution sites will never be totally eliminated, as it is not technologically possible. Copyright-protected objects will always be available free somewhere. Certainly, the completely free and uncontrolled reproduction of a work and its availability on the Internet is not permissible. However, extraordinary solutions should be sought and found to protect the rights of the author without prohibiting access of the public to rich materials that are available on the servers of Internet service providers.

The idea about the introduction of the 'culture flat fee' is under discussion. It would be a fair and wise solution. The system might be similar to the license fee system for public broadcasting introduced in many countries. If such an overall tax system is not deemed reasonable, then at least additional charges for usage of the Internet should be imposed. This extra cost may be added to payment for services of an Internet service provider, and this amount, just as the private copying levy, would be shared by collecting societies.

The copyright conception should be slightly transformed in the near future in order to correspond to the understanding of the rights of the information society and technological development.

Piracy, or the illegal use of intellectual property, should be countered in all its forms of expression. However, in the fight against piracy one should not forget the individual's fundamental rights and the interests of society in the information era.

doi: 10.5200/1822-9530.2012.16

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Ingrida Veiksa

Doctor of Social Sciences (Law), Associate Professor

Vice-Dean of the Faculty of Law, School of Business Administration Turiba

Graudu Str. 68, LV-1058 Riga, Latvia

E-mail: ingrida.veiksa@turiba.lv; tel.: +371 2 937 8027

Received 24 August 2012; accepted 20 November 2012

INFORMATION ABOUT THE AUTHOR

Ingrida Veiksa is the Director of the Programme of Law Sciences at the School of Business Administration Turiba in Riga (Latvia), where she lectures in intellectual property law, has supervised more than 20 Master's theses and one PhD thesis on the issues of intellectual property rights. In 2011 she submitted her article to the Critical Review of the implementation of the EC Directive on Copyright in the Information Society (2001/29/EC) in Latvia. She is the author of a learning book for students "What is Copyright?". Ingrida Veiksa has published articles on protection of intellectual property rights and the necessity to establish a balance between society and right holders.
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