Le droit de la propriété intellectuelle sur internet

February 1999

Carine JEZEQUEL

Alexandra LEMENICIER

Ludovic BLIN

THE PROTECTION OF THE INTELLECTUAL PROPERTY VIS-A-VIS NEW COMMUNICATION AND INFORMATION TECHNOLOGIES

SYNOPSIS

INTRODUCTION 3

I/PERSISTENCE OF THE GREAT PRINCIPLES OF THE CURRENT LEGISLATION TO FRAME THE PROTECTION OF THE INTELLECTUAL PROPERTY ON INTERNET 4

A. THE AUTHOR'S COPYRIGHT AND ARTISTIC OR ROYALTY AND RIGHT NEIGHBORS 4

1) THE WORKS PROTECTED ON INTERNET 4

2) PATRIMONIAL RIGHT 5

3) MORAL RIGHT 6

4) THE REPRESSION OF THE INFRINGEMENTS 8

B. PATENT RIGHTS 8

1) SUBSTANTIVE PATENT LAW 9

2) TRADE-MARK LAW AND DOMAIN NAME : 9

II/DIFFICULTIES OF APPLICATION OF THE LEGAL RULES ON INTERNET 11

A. DIFFICULTIES IN THE APPLICATION OF THE ROYALTY VIS-A-VIS CERTAIN CATEGORIES OF WORKS 11

1) WORKS MULTI-MEDIA 11

2) SOFTWARE 12

3) DATA BASES 12

4) PHOTOGRAPHS ON INTERNET 12

5) ARTICLES OF ON-LINE PRESS 13

B. DIFFICULTIES OF APPLICATION OF THE LEGISLATION RELATED TO THE INTERNATIONAL DIMENSION OF INTERNET 13

1) CONFLICTS OF NATIONAL LAWS AS REGARDS ROYALTY 13

2) THE SUBSTANTIVE PATENT LAW : A HETEROGENEOUS LEVEL OF PROTECTION 15

3) CONFLICTS OF NATIONAL LAWS AND LEGAL STATUSES AS REGARDS DOMAIN NAMES. 15

III/DIVERSITIES OF THE SOLUTIONS 18

A) THE CONCILIATION ENTERS THE FACILITY OF COMMUNICATION AND THE PRINCIPLES OF THE INTELLECTUAL PROPERTY. 18

1) THE NETWORK MUST ADAPT TO THE RIGHT 18

2) THE RIGHT MUST ADAPT TO THE NETWORK 19

B) NEED FOR AN INTERNATIONAL AGREEMENT 20

1) SELF-REGULATION 20

2) INTERNATIONAL CO-OPERATION 21

INTRODUCTION

The recent development of new technologies, and more particularly of Internet, upsets considerably the traditional design of the exchanges and the relations between the men: any type of information circulates between all the users, on the whole of planet, in a fast and immaterial way. The characteristics of Internet, which make of it a world network and completely decentralized, enable him to be freed at the same time from time and space. The network does not know borders, and no structure has vocation to direct it overall. It results from this an apparent freedom as well as an absence from administrative control of the behavior of the various involved actors. For as much, one cannot speak about gap in the law on Internet, the law exists and is supposed to apply to it like elsewhere.

As regards intellectual property, the question of the right about Internet seems particularly prégnante, because of the means which are offered there to plunder it. It appears determining bringing confidence necessary, between the various actors, with the rise of the electronic trade. It is noted indeed that at present, as well the traditional editors as the producers of music or audio-visual works remain reticent to propose their works on the network.

The legislation in this field is it sufficiently protective and adapted to the development of exchanges of goods integrating of the intellectual property or, on the contrary, it constitutes a brake and dissuades it the actors to take party in this type of market ? It seems that the principles of the right of the intellectual property are completely applicable to Internet and do not require total questioning, nevertheless, problems in the application of these principles remain and imply particular installations.

We will recall, first of all, the broad outline of the right of the intellectual property, while endeavouring to show this one up to what point can frame the exchanges between Net surfers. Within this framework, we will examine on the one hand, the author's copyright and artistic, i.e. the royalties and the rights close, and on the other hand, the patent rights and in particular the trade-mark law and the bearing right on the patents. In both cases, we will highlight the specificity of the French legislation (compared to the Anglo-Saxon legislations).

Then, we will mention various problems of application of the rules. We will raise, on the one hand, the difficulties related on the appearance of new categories of works or to digitalization of categories of already existing works. We will examine, in addition, certain conflicts of national laws generated by a lack of harmonization and the existence of various degrees of protection of the legislations according to countries'. Indeed, Internet calls into question the capacity of the States to be made respect their legislation because it is unaware of the borders.

Lastly, we will consider various solutions to protect the intellectual property from the most adapted manner. Is needed in particular, to take guard so that the protection of the intellectual property is not opposed to the general interest and can support the circulation of works of the spirit and industrial creations. On a side, the network must adapt to the right, by the means of advanced technical solutions, such as cryptography ; other the right him also must adapt to the network and be modified in certain precise cases. Lastly, we will see the essential international agreement which must take place between the countries, either by self-regulation, or by conventions and international agreements.