Cyberlaw

 

„O creație intelectuală nu poate fi însușită de către o persoană”

În contextul discuțiilor legate de recunoașterea dreptului de acces la operele protejate, lect. univ.dr. Alin Speriusi-Vlad (Facultatea de Drept a Universității de Vest Timișoara) atinge o treaptă superioară în analiză, încercând să desființeze însuși conceptul de proprietate asociat operelor de creație intelectuală:

„o creație intelectuală, prin natura sa, nu poate fi însușită de către o persoană, fiind concepută (…) spre a fi utilizată de publicul larg, în vederea îmbogățirii patrimoniului universal și NU în vederea utilizării exclusive.”

Lucrarea Introduction to a New Theory in Intellectual Property law: legal protection without a property right cuprinde multe puncte de esență, pe care am încercat să le evidențiez mai jos, redându-vă o parte din conținutul text al acesteia.

Vă invit să citiți acest studiu, să îl analizați și eventual să comentați.

    • The propter rem obligation is limited in time and so is the paucital intellectual property rights, considering that an intellectual creation by its nature cannot be appropriated by a person, being conceived, even before the creation, for the use of the general public, in order to enrich universal patrimony and the general knowledge, and not for a personal exclusive use.
    • These provisions address the question: to what extent can the individual freedoms of either the users or the potential users be limited to protect the intellectual property?
    • How far can we go to protect the intellectual property? To what extent can the individual freedoms of the users or the potential users be limited to protect the intellectual property rights? The answer was that we can go quite far and that the interest of both the authors of intellectual works and the holders of intellectual property rights is of paramount interest compared to the individual rights, interests and freedoms of the other legal subjects.
    • More precisely, the answer offered by the European Parliament opened the discussion for a balance between holders’ rights and the rights of users or potential users. The European Court of Justice restate on the 16th of February, 2012, the necessity of a balance between the intellectual property holders’ rights and other interest holders, based on the fundamental human rights, concluding that the administrator of an online network cannot order the constant supervision of its users to prevent illegal use of audio and video materials because several rights, such as the commercial freedom, the right to enjoy the protection of personal data, the freedom to receive and transfer information, would be breached.
    • “[…] the injunction to install the contested filtering system is to be regarded as not respecting the required that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as hosting service providers.” “[…] the contested filtering system may also infringe the fundamental rights of that hosting service provider’s service users, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively”, ”the injunction requiring installation of the contested filtering system would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network by its users.” “[…] would harm the freedom of information, as it would be possible that this system fail to make a distinction between a legal and an illegal content, so that the use thereof could have as consequence the blockage of the communications consisting of legal contents.”
    •  The Belgian Court of Law that referred the case to the European Court of Justice, requesting a judgment where the European Court could establish whether the EU applicable laws forbids the issue of an injunction by a national law court to an internet provider, asking the latter to implement a filtering system of the information posted by the users on its servers, filed the request for the delivery of a preliminary ruling in the trial between the “SABAM” and the NETLOG (an internet service provider)
    • EU law […] precludes a court order issued by a national court which requires an Internet access provider to establish a system for filtering all electronic communications traveling through its services, in particular through the use of “peer-to-peer” software, which applies indiscriminately to all its clients to prevent illegal file transfer.
    • the European Court makes a distinction between the need to protect in abstracto the intellectual property, on the one hand, and the need to preventively protect in concreto the intellectual property, on the other hand, following infringement of intellectual property.
    • […] a series of preliminary rulings where European Union law rules have been interpreted in favor of protecting the identity of Internet users and their online privacy; […] the large scale monitoring of users’ online activities and filtering of all materials posted on social networking sites to avoid copyright infringement. This is the difference made by CJEU between an actual and a potential injury, the latter not justifying a large-scale monitoring and filtering. […] a concrete infringement of intellectual property must lie behind these preventive measures.
    • […] the lawmakers decided to allow authors to have access to the market; in other words, the authors gained rights […].
    • […]every intellectual creation is intrinsically meant to enter the public domain […].
    • Starting from this point, Jefferson launches a real warning where he underlines that the holders’ rights in the field of intellectual property are not revealed from the natural right. Therefore, he demonstrates that everything that is protected under the intellectual property rights is totally different from everything that is protected under the property rights over the tangible properties. Partly due to these differences, Jefferson does not perceive the intellectual property as a natural right based on work of the intellectual creation’s author, but as a temporary monopoly created by the state to encourage creativity. Secondly, he argues that no person is directly entitled to the acknowledgement of his/her intellectual property right as these rights may be or not granted depending on both the will of the law-maker and the social standards […]. Thirdly, the intellectual property rights are not and must not be permanent; in fact, they should be quite limited and should not last longer than it is necessary to encourage creativity. Fourthly, a connection point, the intellectual property rights pose certain risks from the perspective of the nature of the monopoly. So, due to the fact that the intellectual property confines the natural tendency of the ideas and creations of the mind to be freely disseminated from one person to another for educational purposes […], in certain cases, it can discourage creativity instead of encouraging it.
    • I consider that the rights in the field of intellectual property represent the exception as the general rule stipulates that all intellectual creations are meant to enter the public domain. The legal protection title is conferred the moment the intellectual creation satisfies certain conditions referring to novelty, utility and the existence of an author. Indeed, talking about property in the field of intellectual creations is quite improper.
    • The current doctrine oscillates in respect to the nature of the intellectual property, particularly due to the time limitation, which contrasts with the continuity of the property. Therefore, it has been underlined that ”the rights on intangible assets can be considered property rights, but we should note the fact that they are not genuine property rights and this happens because they are basically temporary, they are connected to the holder’s person; moreover, they exist only due to the involvement of third parties, and the protection regarding the possession of such assets outlines specific aspects; therefore, the acquisitive prescription does not apply, the action in counterfeiting and the action in disloyal competition are operating” – Boyle, J., The Public Domain. Enclosing of the Commons of the Mind.
    • […] the coexistence of the moral rights and the economic rights as well as the limit of the economic rights, identifying the legal nature of the rights in the field of intangible property. […] the moral rights […], they do not coexist with the economic rights; they are distinct rights.
    • This tendency that allows an intellectual creation to be accessible to the public is not a consequence of its immateriality, but it falls under its inherent nature to enrich the universal cultural patrimony.
    • The authors create so that the result of their work and efforts reach the each and every member within the community they are living in. Bearing this aspect in mind, we may argue that in the case of intellectual property, one of the core elements of property, animo sibi habendi, is missing because nobody creates an intellectual work solely for himself, but to include it into the universal cultural patrimony and to the commune knowledge.
    • However, the acknowledgement of these rights does not change the nature of the work or the relation of the author with his creation, as we know and the regulatory system sets forth that the work has been assigned to the wide public, even from the moment it has been developed.
    • In the event that we would somehow admit that the intellectual work has been legally acknowledged as an immaterial asset, after the expiry of the protection period, the work would disappear, it would “disintegrate” into the public domain, and consequently, it would no longer be subject to any legally protected economic right or interest. A proof of the fact that the law does not acknowledge the intellectual creation as an immaterial asset is the existence of the public domain itself. The intellectual creation certainly becomes res nullius the moment it enters the public domain. […] the intangible assets can never become res nullius, as they belong to their creator whose rights are acknowledged and protected by the law. The manner the law regulates the holders’ prerogatives in relation to the intellectual creation is an unquestionable evidence that we are not in the presence of any jus in rem.
    • Even if the doctrine argues that ”the artist’s resale royalty is the attribute of a jus in rem which consists, irrespective of the actual owner of such asset”, the reality is quite different: based on this right, the author becomes the creditor in respect to the amount that he is legally entitled to receive from the purchaser of the intellectual work; the artist’s resale royalty is a genuine right of claim, duly set up and implemented through the applicable legislation.
    • The prerogatives acknowledged to the author of the intellectual creation are specific to a right in personam instituted by the law, and consequently, the author can use such right solely in the contractual relations involving his work. It is improper to talk about a temporary monopoly, because this would assume that, after the expiry period, this monopoly could be used upon another person, which is not the case, considering the public domain and the conditions of novelty based on which the legal protection is instituted. There is a characteristic that differentiates the exclusive use in the field of intellectual property from the use itself (usus) as an attribute of the property right, and from the prerogative of the inherent use of the property right. The use does not exclude the simultaneous use of the same object. There cannot be multiple and simultaneous uses of the same land, but we can definitely talk about the multiple uses of a MP3 file or an image by more than one person, as the use of such items by one person does not interfere with the use of the same intellectual creation by another person. Economic rights in the field of the intellectual property represent the jus in personam correlative to a propter rem obligation of the owner of the material (electronic) support of the intellectual creation. The essence of the intellectual property which however does not exist in default of the implementation of the special legislation in this field, lays in this negative, non facere obligation-, and not in the common-law possibility of the author to use the intellectual creation.

 

Articolul următor Cultură liberă la Brașov
Monica Lupașcu Romanian Lawyer since 2005 with LL.M. in Intellectual Property Law. She currently activates as European Trademark Attorney and internet and technology legal practitioner.   monica.lupascu@nullcyberlaw.ro

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