Incompatibility Moral Rights with the New Digital Environment - Essay Example

"Moral rights are incompatible with the new digital environment in which copyright operates." Introduction: This discussion will first of all explore the notion of intellectual property rights and copyright law in the modern digital era. It will then consider the concept of moral rights comparing natural private property and individual rights with utilitarian rights. It will then discuss some of the problems with copyright in the digital era. It will also consider the legal application of utilitarian compared to individual rights and consider how both these approaches to rights affects intellectual property rights. This discussion will consider Western intellectual property's traditional personality theory and consider whether utilitarian rights can effectively and sufficiently protect intellectual property rights and copyright in the new digital age. One has to consider what moral rights are because morality is a very hard area to regulate, because one could argue that it is immoral for those with the digital technology to abuse the ownership rights of the copyright owner by making it available to all those who access the website for free1. Yet, on the other hand, one could argue that it is immoral for the copyright holder not to freely disclose information over the internet for free, especially if it benefits society on either educational or health and safety ground2. One could argue that the confidentiality and copyright afforded to Prince Charles over his diaries was immoral because is it right that the next King of England harbors such overtly biased political views Therefore this discussion will have to consider what is moral and not moral, which is a very difficult endeavor because morality one could argue is a subjective view. This exploration will also focus on the WIPO treaty because it is the latest in the international legal framework to balance the rights of society (Utilitarian Rights) and the rights of the individual (Personality Theory Rights) in the new digital age. The conclusion will then consider whether intellectual property rights, such as copyright should be protected by individual or utilitarian rights or whether such rights that are based upon morality are outdated and a more objective set of laws need to be brought into domestic and international legislation when considering intellectual property rights in the digital era. Intellectual Property, Copyright & Rights: Intellectual property rights like property rights have been protected in UK, US and Canadian law as individual and not the realm of the government to encroach into them. This is different from the approach being suggested in global copyright harmonization which considers a different approach, a utilitarian approach which weighs up the interests of society against the individual where the rights of the many outweigh the rights of the few. Copyright in Intellectual Property law usually refers to the protection of ideas in intellectual property prior to their public release; therefore in respect to copyright it can also refer to artistic designs of goods and jingles prior to completion, but the most important factor is that it portrays the traditional approach of UK law, which is similar to the US and Canada, i.e. individual property rights should not be invaded against by government, i.e. they can not be treated in a utilitarian manner, rather the personal and public concerns need to weighed and balanced. The most interesting area of intellectual property law and copyright law is personal rights v's the general welfare of society, i.e. the public nature of artistic and literary works v's protection a persons private property rights in respect to copyright items. The International Copyright Treaty is the latest in a long line of international copyright harmonization. Copyright protection is afforded to literary and artistic works that are in substantial form, i.e. sheet music, recording or written book. The work must be original and not copied.3 There also has to be labor and skill performed by the author/artist4 and the information is not pure fact5, i.e. there is expression of the author within the work. It includes plays6, dances7, computer programmes8 and compiled tables9. The protection of copyright does not lie around whether the work's originality has been breached rather the author's economic interests in the UK10. Therefore as we will consider later this regime deals with personality theory. This is a big problem because it focuses too much on private property rights and the greater social context of its availability to all sectors of society, such as education11: It is clear that eliminating moral rights protection from the sphere of information technology is a hasty and ill-advised solution to the problems that they present. Rather, scholars and policy-makers should attempt to investigate both the implications of digital technology for the doctrine of moral rights and its embodiment in law, as well as the potential impact of moral rights, in turn, on technological and cultural development.12 Thankfully, academics/reporters can use a work for reference within research as long as properly cited and for a legitimate reason13, such as a guide to earlier sources14; news reporting15; criticism or review16; private research and study17; permitted/authorized uses18; and most importantly public interest19. Therefore if the International Copyright Treaty had veered further on the side of private property rights these legitimate uses may be threatened or liable to a cost that only the affluent could afford. Harmonization has become especially important with the downloading of protected movies, music and literary works which have been reproduced without authorization and definitely affecting the economics of the author.20 However, if International Copyright Treaty was following the utilitarian model it would possibly argue that the free movement of information, literary and artistic works would be protected and this is not the aim of this treaty. It is apparent that the moral right of the Digital Age may differ in a number of ways from the moral rights protected in the Berne Convention. Moral rights should probably encompass different rights from the 'bundle' of moral rights protected in Article 6bis. For example, a right that reflects the new realities of dissemination to the public might emphasise the moral aspect of the right of communication to the public, protected by Article 8 of the WIPO Copyright Treaty. The new moral rights should seek to achieve an appropriate balance between the right of the author and the right of the public to have access to new technologies, particularly for the purpose of further technological growth.21 Rather its aim to protect copyright rights, but to allow for some societal protection so that copyright works do not become exclusively a part of affluent members of society. One may believe that this is not possible if one lives in the UK, Canada or the USA; however in poorer countries this is possible by restricting access to education or to literary works but attaching a high price tag and this is a case where the public good comes in play which is a legitimate reason for reproduction of a work. The notion of protecting public policy is interesting and can best seen in the role of the media in intellectual property and the breach of confidence where privacy is competing the public good22. Therefore intellectual property is private and this is protected in the domain of the individual, it should not be weighed up against the rights of the many. This makes sense when an individual has created a piece of music or written a book should this not be protected from others making money off their hard work The answer is yes; however there is a problem when these works are withheld for the wealthy and they lose their educational value for the masses. It is in these cases it makes sense there is a utilitarian approach to intellectual property, especially in respect to copyrights where books that have been written are protected. The problem is where does this end The following section will consider moral rights and the problems that copyright faces in the modern digital age. Moral Rights Theory: There are two forms of moral rights that this discussion will explore, which are Kantian based inherent human rights and Rawlsian Utilitarian based rights. Kantian rights are based on the notion that human rights are universal as they span all cultures and religions and are not subject to human societal constructions. The key factor about this type of theory is that is based with the interests and rights of the individual, hence is a personality theory. This is traditionally the type of theory that Western law bases property and ownership rights upon this theoretical basis because it signaled the move away from the crown owning all the property. Therefore under Western regimes, such as the UK, the right of the individual in the area of property supersedes any possible benefit that the property may benefit society. This can be illustrated by the British Copyright Commission's report to the European Commission: Creators regard high level protection of Search Term Begin moral rightsSearch Term End , particularly including Search Term Begin rights Search Term End of attribution and integrity, as fundamental to the effective recognition of the creator's Search Term Begin rightSearch Term End . We consider that Search Term Begin moral rights Search Term End are of especial importance in the Search Term Begin digital Search Term End context, in particular as related to modification of works of all categories. An international system regulating the ways in which Search Term Begin moral rights Search Term End can be exercised in the Search Term Begin digital Search Term End context should be agreed to ensure that there is no disparity of protection in this area between one country and another23 The basis of the core rights theorists is the work of Immanuel Kant. Kant's argument, which is more commonly known as Kant's ethic24, tries to get away from the needs, desires and wants, which are the basis of the rights from the state of nature. Instead it is an a priori ethic, which transcends all needs, desires, wants, purposes and end. In other words it is not part of human construction, but the key factor of its definition is that it is the moral protection of the rights of the person, not the rights of the individual. Domestically for the UK and other countries that base their moral rights on the person then the protection of straight forward copyright is simple; however there has been a lot of difficulty in reconciling copyright laws internationally. This was not so big a problem in the era of the written word and music, also simple television and radio broadcasts were protected with such laws because the country were the transmissions originated was the correct set of copyright laws to apply.25 The difficulties of differing values were highlighted by the introduction of the digital era, where with computer and internet technology the authorities and copyright owners are dealing with the phantom cyberspace where servers are internationally based and an individual may log onto a site that is based in a different country upload a file that breaches another's copyright, which is then transmitted by one or many servers possibly based in different countries to another individual who is based in a completely different country. This makes the transmission theory that television and radio broadcasting is based upon null and void. If the problem with which domestic laws need to be applied cannot be sufficiently defined due to the question of transmission conflicts then an international framework has to be created. The WIPO is the latest addition to creating this framework, but is it sufficient and does it not illustrate that moral rights are incompatible with intellectual rights, especially copyright, in the digital era. As Pettenati argues: Despite efforts by international organizations to unify copyright protection, these organizations view moral rights Search Term Begin Search Term End of artists differently. In addition, each country has its own ideas as to what type of moral rightsSearch Term Begin Search Term End protection an artist is afforded. This disparity in moral rightsSearch Term Begin Search Term End protection in the international marketplace leaves artists without sufficient protection in the sense that there is no uniform system that guarantees protection. Further, with no common rules of enforcement, international systems of copyright protection are severely hindered.26 As Pettenati has introduced there are different views of moral rights, another important set are utilitarian rights; whereby the protections and interests of the general welfare of society is far more important than the rights of the individuals. Therefore in such countries there would be a significantly different form of protection for the copyright owner than in those countries that hold personal ownership rights as tantamount.27 The basis of modern utilitarian theory has extended from the theory of Bentham, but has been put it in more modern terms. Instead of maximising the pleasures and desires of the individual the government would be maximising the general welfare of individuals therefore minimising frustration of wants and preferences28. Therefore what one can see is that the governing bodies must put the general welfare first, yet minimise the individual's needs - therefore causing a conflict of rights between what is in the name of the society and what the individual wants. The problems with this theory is it is socially constructed, there is no autonomy of being and no argument for universal rights that transcend all cultures and religions, therefore falling short of what is needed for an all-encompassing human rights theory, as the general welfare can be different for differing cultures. Therefore highlighting the problem with creating an international framework for copyright protection in the modern digital era, which societal basis will the international community use This point has also been highlighted by Pettenati: As we enter into the new millennium, the tremendous growth of technology and the Internet has made it difficult to define the moral rights Search Term Begin Search Term End of artists, and therefore, it is often difficult to determine whether an artist's moral rightsSearch Term Begin Search Term End have been violated. Due to the disparity of moral right Search Term Begin Search Term End protection among nations, the issues concerning moral rights Search Term Begin Search Term End of artists are confused further when their works enter the international marketplace. Depending on the jurisdiction, works are protected in different ways. For instance, in Latin America, Africa, and East Asia, moral right Search Term Begin Search Term End protection is governed by the civil code. Other countries such as India, Israel, and the United States protect moral rights Search Term Begin Search Term End under judicial and statutory law. Thus, moral rights Search Term Begin Search Term End protection can be enforced either through codes, statutes, or through common law, depending on the legal system of the country where the moral right Search Term Begin Search Term End claim arises.29 However, moral rights may have a place in the modern digital era because a modern version dealing with moral rights has been formulated, because human rights are creating difficulties in the international arena. The modern adaptation is that of Rawls. Rawl's in his thesis for engendering human rights states that justice30 is the prime basis of all government and to ensure justice human rights are the obvious means and end to ensure justice is fulfilled. Rawl's theory is based on a few key ideas, which are the rights and duties of government/institution of society and the burdens and benefits of citizens co-operating. Rawls bases his theory that each individual has an inherent and inviolable being set in justice - this being cannot be overridden for the welfare of the society. This theory does not fall foul to the arguments against modern utilitarianism. Rawl's does use the social contract fiction of Hobbes and Locke, however the basis of moving from ignorance (state of nature) is reason and this reason set up on principles of justice that his social contract is based upon. These principles are; 1) that each person has basic rights and liberties in accordance with freedom; and 2) there is distributive justice, where inequalities are restrained by the greatest benefit of least advantaged and each person has the condition of fair equality of opportunity. These principles cannot be derogated for the public good and liberty is the supreme principle. Rawl's theory is very important when looking at human rights theories because it begins to tackle the universality of rights based on justice, as well as the inequalities apparent in society. This form of moral right would find a balance between traditional personality rights and modern utilitarian rights by promoting individual protection as long as the welfare of the society is not hindered. Therefore economic rights are not confused for personal rights, which Pettenati argues is the primary problem with moral rights seeming to be incompatible with the modern digital era, i.e. the moral rights needs to either need to strictly promote the moral ownership of the artist's expression or should be based upon a balance of the welfare of society and the artist's expression BUT NOT on economic considerations: Moral rights protection must be strictly imposed and enforced under a multilateral treaty with proper guidelines such as the French regime which would prohibit the waiver of these rights. To achieve such a treaty, given the many differences among the nations on the scope of moral rights, compromise will be needed. One possible compromise is to limit the term of moral rights protection to the term of copyright protection. When the copyright term of protection expires, therefore, the moral rights protection will expire as well. This compromise will further the objective of copyright protection which is to encourage artistic creation by economically protecting those creations for a limited period, while respecting the artistic integrity of the work.31 The problem with the economic rights being confused for personal and utilitarian rights is a significant problem, because this is the basis of UK and US law. The law concerns itself with the economics of breaching copyright rather than the integrity of the artist as Pettenati argues. It is this confusion over whether economic rights are in deed moral rights, because if the law was based on the balance of the integrity of the individual and the welfare of society then a much fairer approach would arise. In fact the result would be that moral rights are not incompatible with the modern digital era, because on one hand the economic interests of large record and movie producers are pushing the internet as a form to gain capital but are trying to limit the use of illegal downloads on a perverted form of moral rights, i.e. economic rights. As Nielander argues this schizophrenic approach of the economic copyright giants are invalidating true moral rights of the artist and the protected rights of the society for their economic gain. This approach has been carefully constructed because if moral rights were purely translated to their economic concerns under international law they could then use modern right theory to run roughshod over the integrity of the artist v's the welfare of society: The race for exploitation of entertainment content creates conflicts of laws issues in this increasingly complex sector of international trade. Proponents of the application of copyright protection in cyberspace assert that certain modifications to the existing international copyright regime will overcome the immediate obstacles to global distribution of copyrighted materials. However, significant disagreement remains over the extent of protection which should be afforded to those cousins of copyright's economic siblings, moral rights. The subject of moral rights is an area where large differences remain between national copyright regimes. In cyberspace, moral rights take on a special significance because they "adhere to the individual author" sometimes in perpetuity. This article asserts that, in particular, the so-called right of integrity may not survive the demand for entertainment products, in the headlong rush to the digital marketplace. This proposition may be analyzed both in terms of the technological attributes of the digital medium, and in light of public policy premises that will provide a basis, in choice of laws questions, for overriding strong moral rights protections required under certain national regimes.32 WIPO has tried to eliminate such problems by balancing moral rights in a pure form, but has made the mistake of including economic concerns which both Pettenati and Nielander have argued create a difficult future for moral rights within Intellectual Property Law. However, this problem may be overcome with a conflicting set of cases within Intellectual Property law; whereby moral rights have overcome economic rights. The most famous of these cases is the Yahoo Case and those cases that have lead to a Rawlsian based approach in the Canadian and German Courts. A strong body of national and regional laws are important to ensure that there is a sufficient redress if there is an invasion of privacy in the new information age and cyberspace; but this should not be at the expense to the freedom of expression as illustrated in Yahoo v LICRA33, because the Internet is a very important media; to impart and receive information; and as a forum for the press and the individual to act as a watchdog in relation to the acts of government, economics and politics; hence providing a system of law that is more rounded and holistic in nature, taking into account all influences on law especially in relation to the fundamental rights and freedoms inherent to the individual34. This leads one to introduce a system of law that balances freedom of expression and the individual's right to privacy as suggested by Germany, but it needs to be effective rather than an empty shell of procedural law, rather than substantive law. Therefore one has to argue that it is necessary to promote a system of law that efficiently balances substantive rights as is the case in Canada: "It is clear that the first step taken by Canadian courts in balancing competing free speech and privacy rights is to determine the weight to be assigned to each right in the circumstances of the case. On the free speech side of the scales, factors to be considered include: the nature of the information published (i.e. is it a matter of public interest because of its relationship to some event or matter of community concern, or is it a matter generally considered to be personal and intimate; and the motivation of the publisher (i.e. is the publisher seeking to educate and inform, or to "make a fast buck")... When all of the relevant factors are considered, a court is then in the position to determine the weight of the competing rights, and to decide which should prevail in the circumstances. On the facts in Silber35, the free speech right outweighed the competing privacy right; the opposite was true in Valiquette36."37 Conclusion: This exploration purports that society must consider the original moral rights theory by ensuring that every right is dealt with on a moral, rather than an economic basis. It is the confusion of mixing economic rights for moral rights that has caused a problem with international law in the area of copyright law. WIPO needs to be altered that the rights that are protected are the moral right of the artist where the artist's rights are based on the intrinsic value of expression and NOT economic concerns. However, the picture is not complete if the science in question is only considered in relation to personal rights, because this isolates one to consider that they are objective; when in fact each individual is influenced by other concerns. Therefore these influences have to be taken into account to ensure that the fundamental personal rights of all individuals in society are being kept and the benefits are equally reaped; rather than the affluent. In other words, there should be legitimate access to copyrighted material on the basis of educational and beneficial to society grounds. If society lets the economic giants in the entertainment industry dictate that copyright and Intellectual Property right protection should be based upon economic grounds then this may mean an end to moral rights in the digital era. This end will have nothing to do with the digital era outdating these rights, rather it is being used as an excuse for the monetary giants to have an economic basis to copyright law. This may be, in part, the approach of the new international Copyright Treaty; however this is not strictly true because there is also a Rawlsian influence. In other words, it is not strictly a utilitarian economic approach but an adaptation of the two with the personal rights for the artist being balanced with the rights of the average individual in society, which is in line with the Rawlsian approach which was discussed earlier. The strict approach to intellectual property rights forgets about the broader social context of intellectual property rights the educational benefits of ensuring artistic and literary works are shared in the broader community; rather than a method for making money. "The latest international instrument with copyright, the World Intellectual Property Organization Copyright [WIPO] Treaty, signals a substantial shift away from the personality theory. In consequence... prospects of global copyright harmonisation are limited as a result of the way in which a trade-influenced utilitarian model of copyrights applied in the world today."(Fitzpatrck,S.(2003) 25(5) E.I.P.R.215). Bibliography: Bainbridge D. 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