· Temperaments brought to the
royalty :
The right of the author's copyright and artistic is matched
temperaments aiming promoting the freedom of expression, fundamental freedom,
and at supporting the information flow. Thus in France, the Code of the
Intellectual Property, in art. L122-5, defines temperaments in the royalty,
such as, the copy of private use. It would thus be necessary to bring new
temperaments to the royalties, more adapted to the nature of the network. (To
avoid problems such as the assignment of owners of personal Web pages which
takes again protected works, often without knowing that they are in the
illegality). Indeed the concept of copy of private use is adapted little to the
digital world because, on the one hand, it allows the remote loading
and thus offers a great facility of duplication, and on the other hand, it
introduces a difficulty into the distinction between deprived and public (One
can think of the process of the mailing lists).
It thus appears logical to bring temperaments to the royalty
which would be defined according to the use of works. Thus, the Anglo-Saxon
right authorizes the reproduction of the works protected by the copyright if it
does not harm the author. This exception of honest use (or to fair uses)
implies the possibility of making copies of private use for the owner of work,
but also for other people, if this copy is used at ends of research or
teaching. This exception is the subject of a jurisprudence on a case-by-case
basis, which makes it difficult to systematize. Nevertheless, the criterion of
the nonlucrative use can often induce its application. Moreover, the
development of the concept of shareware, often used for the software,
introduced a new exception. In this case, the user can be useful himself of a
program to test it and does not have to remunerate the author that if it really
makes use of it. It is thus about a new exception to the royalty who developed
« naturally », and with the agreement of the authors.
One can also consider it regrettable that French jurisprudence
in the framework of the Microfor business/the World which authorized
the abstracts and summaries of works of others was not taken again by the
European directive of 1996 on the data banks.
This question thus remains outstanding and will require in the
future an answer adapted to the new environment, more especially as the
international texts are fuzzy. In particular, the convention of Bern, leaves
most of the time with the Member States, the ability to adopt provisions
concerning the temperaments to be brought to the royalties.
· The international exhaustion of the
royalties
The manufacturers of software market their products at
different prices according to countries', while prohibiting by the means of
licensing agreement the parallel imports.
But, within sight of the facilities of transfer of data which
Internet offers, how to prevent really the parallel imports all while
maintaining a pricing policy reduced for the countries in the process of
development? In other words, the sale of a software implies it a transfer of
property ? (Which would make it possible to the owner to resell his
specimen). In the affirmative, the author then loses his right on the sold
work.
One can note that neither agreement ADPIC, nor the European
Commission bring solution to this problem. However, it will be probably about a
crucial point as for the access of the countries in the process of development
to the company of information. It is nevertheless possible to consider that the
purchase of a protected work corresponds to the purchase of a right of user, in
theory nontransferable.
In all the cases, it appears necessary to adopt a clear
position on this subject, at the international level, to make it possible to
the manufacturers to practice lower prices for the countries in the process of
development, and thus to develop the electronic trade with these countries.
Nevertheless the legal adaptations necessary to the company of
information will have imperatively to be done at the international level.
