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.

I/Persistence of the great principles of the current legislation to frame the protection of the intellectual property on Internet

A. The author's copyright and artistic or royalty and right neighbors

Historically, the royalty was conceived like a flexible matter, and knew to absorb the advent of photography, the cinema, the radio, then satellites. One can thus hope that it will be able to face the generalization of new communication and information technologies, and in particular of Internet.

In France, the royalties and right close (i.e. rights of the artists interpreters and producers of videograms and sound records), also called right of the author's copyright and artistic, are governed by the law of March 11, 1957, like that of July 3, 1985 and are integrated in the code of the intellectual property, thanks to the law of July first, 1992. We will endeavor to highlight, in this part, the specificity of the French right, who, contrary to the Anglo-Saxon right, recognizes with the author a moral right on his work.

We will examine, initially, which are the works protected by the royalty on Internet. Then, in such a context, we will detail the two large components of this right : patrimonial and right right moral. Lastly, we will see which are the recourse possible vis-a-vis the infringements.

1) The works protected on Internet

Under the terms of the L112-1 article of the Code of the intellectual property, the royalties apply to any work of the spirit, whatever are the kind, the form of expression, the merit or the destination. Consequently, all the data or information which one meets on Internet are not protected by the royalty, but the field of application of the author's copyright and artistic very broad residence, because it includes/understands all works of the spirit in original matter, i.e. impressed personality of their author.

Thus, texts, of any nature, diffused on the network (extracted from literary or scientific works, journalistic articles, public speeches...) are protected by the royalty. In the same way for the fixed or animated images (photographs, reproductions of works of art, synthesized images...), for the music (but the sounds as such are not protected), and for any audio-visual work, i.e. any work made up of an animated sequence of images wired for sound or not.

The Multi-media one is a category of work, recently appeared, which profits from the royalty and of which one of the definitions is in the Théry report/ratio of 1994 on the highways of information: « The multi-media one is a whole of interactive services using the only numerical support, for the treatment and the transmission of information in all its forms : texts, data, sounds, images. ». Thus the category of work multi-media integrates the interactive CD-ROMS, but also the Web sites on Internet. Generally, multi-media work is a composite work, within the meaning of the Code, i.e. an original work in which a preexistent work was built-in without the collaboration of the author of the latter. The legal status of composite work establishes that it is the property of the author who carried it out, subject to the royalties of preexistent work.

The software was included in the category of the works protected by the royalty thanks to the law of July 3, 1985. Moreover, in 1994, the legislator transposed the European directive from May 14, 1991 relating to the legal protection of the computer programs, and which makes it possible to protect not only the software, but also preliminary works of design leading to the development of the program. Moreover, in order to fight against the plundering of data-processing works, the Code lays out that any reproduction other than the backup copy established by the user, as any use of a software without authorization express of the author is rigorously illicit.

2) Patrimonial right

This right makes it possible the author of a work to obtain a remuneration for the exploitation of this one, and to determine how it will be used. It includes/understands in particular the reproduction right and that of representation : any representation or reproduction, integral or partial, made without the assent of the author or his having right, illicit and are qualified counterfeit. It is the same for the translation, the adaptation, arrangement by any process of an original work.

These rights consist of the possibility for the author of communicating work with the public by an unspecified process. However, under the terms of the Code of the intellectual property, there are two means of communication of a work to the public :

the material fixing of work allowing an indirect communication the public : it is about the reproduction which is thus carried out via a support (numerical or not).

a communication not requiring any support, characterized by the use of a vector of telecommunication : it is then about the representation.

· Reproduction right of a work on Internet :

The presence of a work on Internet implies beforehand its digitalization. However, such an act corresponds not only to one reproduction of work, but also to its adaptation, because of transformation of analogical data into binary data. In this respect, the green Book of the European Commission on the royalties and the close rights (July 1995) establish that the digitalization of a work must fall under the empire from the reproduction right, just as the loading of this one on the main memory of a computer.

The digitalization of a work must thus be authorized beforehand by the holder of the rights on this one and is not likely to profit from the exception for private copy, generally authorized by the law.

Lately, of the students had digitized of the texts and extracts of songs of Jacques Brel, then had installed them on their Web page without any authorization. They were condemned. One of the problems raised by this business was to know if the exception of copy of private use were applicable, against the reproduction right of the authors. However, the Code of the intellectual property states that the copy reserved for the private use is licit in condition of not being intended for a collective use, but precisely the vocation of Internet is to allow thirds connected to visit the private Web pages and to possibly take copy of it.

Moreover, a simple transfer of the reproduction right on paper medium automatically does not imply the right of digitalization, which explains the need, for the traditional editors, to renegotiate the contracts which bind them to the authors concerned.

· Right of representation works on Internet :

It seems undeniable that digitalization involving the appearance of the data on the screen of the Net surfers, constitutes a communication by remote transmission. Indeed very proceeded of telecommunication allowing the diffusion of sounds, images or other data of any nature, is regarded as a remote transmission constitutive of a representation.

The provision of creations on the network, via a Web page, thus constitutes well an act of representation with regard to the users of the network. But can one consider that the users of Internet correspond to the concept of « public », while at the same time what characterizes them, it is their dispersion in a multitude of private places, and their positive and voluntary action to connect itself to such or such site ? The jurisprudential decisions go in this direction and tend to consider that the provision of a work on Internet creates a possible public automatically or « virtual ».

The setting on line of a creation without authorization of the author thus constitutes a violation of its right of representation.

There is an exception to the right of representation, there acts of the right of quotation, contained in the L122-5 article of the Code of the intellectual property : « the analyzes and short quotations, subject to the indication of the name of the author and the source, are authorized when they are justified by the critical character, polemical, teaching or of information of the work to which they are built-in. »

It is then possible to carry out a work made up of a great number of quotations ?

This problem was raised at the time of a Microfor business/the World : the Microfor company had carried out a bank of data including/understanding of the summaries of articles of press, without assent of the newspaper the World. The magistrates judged that the summaries, only made up of short quotations of work, did not exempt the reader to resort to the original, and that the whole of this publication had the character of a work of information.

Thus, the installation of a Web site made up of several summaries or quotations of preexistent works, with an aim of illustrating a determined topic, enfreint not necessarily rules of the author's copyright and artistic. This kind of site often meets on the network, and is not the subject of systematic legal procedures.

3) Moral right

The moral right guarantees to the author that its work will not be deformed, and that its paternity on this one will constantly be recognized. In French right, the moral rights have the characteristic to be perpetual and inalienable. Only the author of alive sound, then its heirs after his death, have the possibility of asserting them. This right is made up of the right of first disclosure and the right to the respect of the name and the integrity of work.

The right of first disclosure implies that only the author can make public his work, and to authorize the exploitation of it. It will thus have reached there with the moral right, since the digitalization of a work or its diffusion on Internet will have been carried out without the agreement of the author.

Right to the respect of the name of the author and quality of work aim to ensure the paternity of a work its author and to protect it in his integrity, in order to prevent that it is denatured, modified or deteriorated. However digitalization facilitates handling and transformations, that it is of a text, of an image or of a music, which results in to distort the knowledge of work such as it was created.

An abuse the right of quotation can also cause a denaturation of work or a diversion compared to its direction first. For example, a portion of photography within a site of which the subject does not have anything with the latter in common, would correspond to a mutilation of photography. It y then reached with the moral right of the author since the use which is made work does not make it possible to give an account as a whole initial of it.

In the same way, the infringement of the moral right, via the quotation, can meet on the network through certain bonds hypertexts. The danger lies in the possibility of using information taken out of its context, with the profit of a site without relationship with the precedent, and that without same as the user does not realize there. On this subject, certain suppliers of lodging of Web pages make appear a warning authorizing this type of connection only with the level of the first page (of reception), but prohibiting the bonds returning to other elements.

· Differences between the French right and the Anglo-Saxon right

Two designs of the royalty clash : the Anglo-Saxon design which prevails in Great Britain, with the United States, in Australia and Zealand News and the European and continental design (and of French origin) which prevails in France, in Belgium, in Spain, in Portugal, in Italy and also in Germany, in Austria, in Switzerland and in the Scandinavian countries.

Royalty Anglo-Saxon, called « copyright », work compares to goods whose creator is dispossessed when it yields it, whereas, as we have just shown it, the French right grants to the author of the inalienable moral rights on the fruit of its work.

The concept of copyright, near to that of the patent, is based on principles much more pragmatic than the royalty and stresses the propagation of work. Here the principal differences which one can raise :

Whereas in France, the right is born from creation, the Anglo-Saxon countries have a legislation much more formal than ours : the author profits from rights only as from the moment when it recorded his work near an organization envisaged to this end. In the United States, the omission of the deposit and recording do not deprive the author of protection but failing to conform to it, it is not possible to act as counterfeit.

In France the contracts are strongly framed by the law, whereas in the Anglo-Saxon countries, and especially in the United States, they are regulated little.

The criterion of originality, from which is born protection, is more strict in France than in the United States where work must simply not be copied and to reveal a minimum of creativity.

While being based on the economic dimension of work and by not recognizing moral right to an author, the Anglo-Saxon concept of copyright undoubtedly is adapted better to the diffusion of works on Internet, because it seems relatively inevitable that this one is not accompanied by modifications or deteriorations of work.

4) the repression of the infringements

Any reproduction, representation or diffusion, by some means that it is, of a work of the spirit in violation of the royalties defined by the law, constitute a counterfeit.

The author thus has the choice between exerting civil continuations, to obtain damages n the other hand of its moral wrong and patrimonial, or to bring penal continuations on the base of the offense of counterfeit. It is necessary for that that the offense is noted in France, which does not raise any difficulty in practice. Indeed, any site pertaining to the world network that is Internet, is likely to be apprehended starting from any computer connected in France. However, the closing of the litigious Web site decided by a judge, will have effectiveness only if this site is lodged by a waiter located in France.

Because of the modest presence of the French language on the network, it seems realistic to consider that the majority of the infringements of the rights of the French authors will be physically attached to sites lodged by waiters domiciled on our territory. Moreover, most of the infringements is due to the ignorance of the rules and not to a will deliberated to harm, from where the importance of information and sensitizing of the public on this subject.

The majority of the countries have a national legislation as regards royalty, even if the rules are seldom identical. But there are States much more laxists on the level of continuation of the infringements in this field. Fortunately, two International Conventions gathering more than eighty countries and having for vocation to allow a minimal protection and quasi planet gear of works of the spirit were concluded: It is about the Convention of Bern of October 9, 1886 placed under the aegis of the World Organization of the Intellectual Property (OMPI), and of that of Geneva dating from September 6, 1952, organized by U.N.E.S.C.O.

B. Patent rights

The patent right, second shutter of the intellectual property, gathers in three categories : rights relating to industrial creations, on the distinctive signs and the unfair competition.

We will examine in particular two points which are attached on our subject : the substantive patent law, component of the right of industrial creations and trade-mark law and of the domain names, pertaining to the right on the distinctive signs.

1) Substantive patent law

The patent is a title which confers on its holder, for one 20 years period as from the deposit and on a given territory, the right to prohibit with whoever the reproduction (i.e. manufacture, the use or marketing) of the invention. The holder of the patent can yield his patent to a third, or concede a user license of it, generally subject to remuneration. The monopoly is granted only provided the patent is maintained, i.e. taxes of renewal are paid regularly. N the other hand, the invention will be revealed and will enrich thus the collective inheritance by knowledge.

The deposits can be done in France, but also abroad or into international. The European patent is delivered by the European Patent Office after a single examination procedure indicating whole or part of the country having ratified Convention on the European patent (either 19 States). It is also possible to proceed to a reservation in several countries, via an international request for patent, deposited under the terms of the PCT (treated co-operation as regards patents between 96 States). The international request indicates the contracting States for which a protection is required, then the request is validated by deposits in each one the countries selected.

However, the Western companies often see in the patents only one old and not very effective manner to protect their inventions and their know-how against a possible hacking. This problem is all the more prégnant in a context of universalization, of appearance of new fashions of production, such as the setting does not place networks of research between companies, and of new fashion of dissemination of knowledge, in particular on Internet, because the risks of imitation and counterfeit are increased. The protection of the patent rights thus holds an important place in the installation of complex technological co-operations, because it provides the essential legal base as well to the protection of know-how and the knowledge obtained as with the appropriation of new knowledge.

2) Trade-mark law and domain name :

Each computer connected to Internet has an electronic address, represented by a succession of four digits separated by points. But, a system was carried out, making it possible to make correspond at each address I.P an address symbolic system made up of words intersected with points : it is about Domain Name System (D.N.S), organized in zones of namings national and international .

There are four zones with international vocation and which is managed by the INTERNIC : «.com » for the commercial activities, «.net » for the authorities taking part in the operation of Internet, «.int » for the international organizations, and «.org» for associations.

Concerning the zones in national matter, each country has an antenna of the Network Information Center (N.I.C) responsible for the management of the domain names for the corresponding State. They are identified by a code with two letters (example : «.fr» for France). In France, it is the National Institute of Research in Information and Automatic (I.N.R.I.A) which manages since 1987 the zone «.fr», under the supervision of the Ministry for industry.

A company having a Web service will may find it very beneficial to adopt a domain name made up of its corporate name or its commercial name, in order to be easily recognizable by the Net surfer. One thus seizes clearly all the stake that there is for the companies to be done one to allot an electronic address, more especially as the homonymy is impossible here.

In France, it is N.I.C-France which allots the domain names. This organization observes certain rules, in particular those of the Charter of naming Internet in France, which implies that the selected name has a close link with the applicant : it must correspond in the name of the organization depositing, with its initials, or with a trade mark by him. Moreover, N.I.C-France applies the principle of the «arrived first, been useful first », which means that it checks that the requested name was not already allotted, in order to avoid any risk of homonymy.

For the recording of a domain name of the zone « .com », it is advisable to contact the INTERNIC, managed in the United States by an organization called Network Solutions Incorporation (N.S.I). As for the French hierarchy, one will apply the rule of « arrived first, been useful first », but this time, it will not be required that the desired name corresponds to a mark, initials, or in the name of the applicant. However, the N.S.I will ask the applicant to guarantee that it will use this name with a legitimate aim and that that does not carry not reached, to his knowledge, with the rights of others.

If, in oneself, the identification of an Internet site does not confer any right of ownership intellectual, it can happen that a domain name is regarded as a counterfeit, if he takes again with the profit of the holder the heading of a preexistent mark. In the same way, the use of the name of a concurrent company can pose problem.

Conclusion :

Generally, the current right as regards intellectual property is able to frame the exchanges on Internet. It is thus not necessary to create a virtual or numerical right specific, as that appears under consideration in certain countries such as the United States or Japan. On the contrary, that would harm the conceptual unit of the royalty and would oblige the legislator with ceaseless adaptations in order to follow the technological developments.

However, of the difficulties appear on the level of the application of the law, in particular because of the appearance of new uses (news categories of works, digitalization of older categories) and of international dimension of Internet.

II/Difficulties of application of the legal rules on Internet

A. Difficulties in the application of the royalty vis-a-vis certain categories of works

Sometimes the royalties seem misfits with the new categories of works or simply with the digitalization of older categories. Without requiring the creation of a specific right for these categories, it is advisable to raise lawful installations which were carried out or should be it, under penalty of seeing the inapplicable law or to paralyze the creative activity of more undertaking.

1) Works multi-media

A multi-media product seems a product of a new generation, which must be protected, although it has evil to be integrated in the traditional diagrams of the royalty.

· The inaccuracy in the transfer of the royalties

The multi-media product being generally the fruit of the work of one or more employees, it is necessary to wonder on the protection of the authors bound by a contract of employment, and in particular about the conditions of the transfer of the patrimonial rights to the employer.

For a long time, part of jurisprudence adopted a position favorable to the employer, in spite of the legal provisions, by admitting the idea of an implicit transfer since this one is limited to the normal activity of the company, and that the employees are authors of works created within the framework of a contract of employment. The civil Room of the Supreme court of appeal seems to have put an end to this position in a stop of December 16, 1992. There thus should be considered that a priori, it can be neither transfer automatic, nor tacit transfer of the rights of the employee. A particular clause of the contract of employment will have to clear up this situation.

· Difficulties in the determination of the authors

As regards play on multi-media support, the difficulty lies in the determination, among all the speakers on the play, of those which can assert the quality of author. For example, the author of the software, i.e. data-processing engine cannot assert the statute of author. On the other hand, for the authors at the origin of the creation of the multi-media play, their quality of author will rise from the type of service which they will have carried out, which is rather vague and difficult to evaluate. Thus, a computer graphics expert can claim the statute of author, if its intervention is not limited solely to final improvement of images, but which it works out of all parts of the images and the animated sequences. The editor of play thus must, as of the development of the play, to define by contract the mission of each one. However, it must avoid conferring the statute of author on of speakers with the risk to too much see multiplying the sources of litigations, in particular as regards moral right.

2) Software

In their great majority, the software and computer programs are today the creations carried out by employees. The law allotted here the patrimonial prerogatives of the royalty to the employer and cold the prerogatives morals of the author, dissociating royalty traditional to approach the concept of copyright

Indeed, by the law May 10, 1994 of the code of the Intellectual Property, the employer is the holder of the software created by an employee in the usual exercise of his occupation or following research specifically entrusted to the employee and which does not enter its usual functions. The employee remains certainly invested of his moral right on his creation, but this one is limited to faculty to assert the paternity of the design and the realization.

In addition, the software is theoretically protected by the royalty and sometimes not by the substantive patent law but, in practice, the European Patent Office agrees to patent an invention using a software and agreement APDIC (Agreement on the aspects of the rights of ownership intellectual which touches with the trade) does not exclude either the patentability of the software. The current situation thus accepts the two types of protection, but it seems necessary to clarify this situation, which can be at the origin of ambiguities in particular on the level of the office plurality of two protections.

3) Data bases

If the installation of a data base is a heavy financially, and important project for the productivity of the company, one then includes/understands the need for a legal protection effective and adapted to this type of investment.

The Parliament and the European Council adopted on 11 March 1996 a directive widening the royalty to the data bases and based on a particular mode, which dissociates the contents and the structure of such a work. Contents of a data base, not presenting any originality (since constituted from statistical data or factual), is protected by a right sui generis ; the structure, being conceived of advantage like the fruit of an original professional work, is protected by the royalty. Indeed, the selection of information and the organization of the contents correspond to the expression of a logic, specific to the author of the base. As illustration, the Court of Appeal of Paris considered, in connection with a directory, that it was protégeable not for the addresses which make it up, but because of « géaée presentation which is made by it ».

The spirit of this specific right thus consists of the data protection as a source of information, and a this mechanism with for vocation to mitigate the inadequacy of the royalty in the defense of the economic investments of a basic creator of data

4) Photographs on Internet

The setting on line of a photograph brings into play at the same time the patrimonial right of the author and his moral right. The consultation of Web sites reveals that this last is often abused : the noun of the author is often forgotten, the photographs is modified or recadrées without authorization, that because of the many possibilities offered by the computer.

An adaptation of the moral right in the sector, in full expansion, of the imagery thus seems necessary, with the risk to see the violated and ridiculed legal rule.

Thus the reduction of a photograph induced by its digitalization and for technical reasons (of lack of place), should not constitute an infringement of the moral right of the author. In the same way for the realignment of a photograph carried out for technical reasons.

With regard to the plundering of the patrimonial right of the author of a photograph, a simple means can consist, at the time of the first disclosure on the network, in the use of a weak resolution of the image, so that its re-use is deprived of any esthetic interest. This purely data-processing mechanism would authorize the authors of visual works to put on line a certain number of their creations, without fearing intensive hacking.

5) Articles of on-line press

What happenhappens setting in line of articles of journalists ? The transfer on paper medium of an article can it implicitly involve its digitalization on the site of the newspaper ?

The ordinance returned by the Court of Bankruptcy of Strasbourg in favor of the journalists of the Last news of Alsace in February 1998 brings a first brief reply. The court judged that the journalist limits the transfer of his royalty to a first publication and that the reproduction of the work of a journalist in another periodical is subjected to authorization.

However, there is not general rule and each newspaper invents its own solution. Thus, the World signed in 1996 with the trade-union representatives, a valid agreement two years stipulating that the authorization granted to the editor for the re-use of articles on Minitel, Internet or Cd-Roms is done financial n the other hand. However, of many editors are attached to the concept of copyright to the anglo-saxone, which enables them to regard the contents of a newspaper as a collective work, likely to be duplicated on various supports. The Trade union of the Parisian press and the Trade union of the regional daily press plan to ask the government to amend the law on the royalty without this direction.

B. Difficulties of application of the legislation related to the international dimension of Internet

If the rules exist as regards intellectual property, it is easy to contravene it, in particular because of the universalization of the network and the coexistence of different legislations, more or less protective.

1) Conflicts of national laws as regards royalty

With regard to protected works, it is the author who decides to authorize the provision of the public of his works. However, it should be admitted that as soon as a work of author protected is digitized, and put in circulation on Internet, the author loses any control on his diffusion. Recently, the group of U2 rock'n'roll saw its last diffused pieces without it having control of it.

The author could codify his work, to allow to identify his origin, his place of first publication, to anticipate the possible uses of his work on Internet in order to quantify the remuneration which would be due for him. But how to precisely circumscribe the perimeter of exploitation of work on Internet ? It is not a question of a simple act. How to observe the rules of royalties whereas the offense takes place in a country which has a different legislation ?

Indeed, the bulk-heading of the legislations reveals important disparities. Certain States, in particular the Asian countries, are much more laxists as regards continuations of the infringements. A requirement is thus first of all to define the applicable law, that of the transmitting country or that of the receiving country :

Within the framework of a contract, the applicable law is that which the parts adopted, subject to the rules and International Conventions.

As regards extracontractuelle civil liability, the applicable law is that of the place where the detrimental fact occurred (generating place of the damage or place where it occurred).

The applicable criminal law depends on the States. In France, according to the Penal code, « the French criminal law is applicable to the infringements made on the territory of the Republic. The infringement famous is made on the territory of the Republic, since one of its constitutive facts took place on this territory. ». However, the identification and the incrimination of one prevented are made difficult because of the use of techniques of anonymity. Moreover, the international repressive mutual aid is limited by the rule of the double incrimination (which exists in French right), which facilitates the continuation only for infringements answering a penal qualification in the two States concerned. Consequently, the existence of electronic paradises is not to neglect.

The repression of the frauds is all the more complicated to implement which it is very difficult to locate a waiter which diffuses a work without authorization. Everyone can diffuse at his place, with a computer connected to Internet and then delocalize its waiter. Thus, when Pascal Barbraud saw himself prohibiting the provision of the book of Doctor Gubler on Internet, he threatened to put it on a waiter in Czech Republic.

A solution is to join together countries around a convention in order to harmonize certain legal provisions. Thus a convention took place in Geneva in December 1996, to wonder about a possible extension of the royalties to the successive recopies of a work. The operators of network and Internet sites wished that very given published first once on the Net becomes a public data, taking into account the inevitable recopies due to the design features of Internet. Contrary, the producers were in favor of an extension of the reproduction right to the even transitory recopies and even in the absence of transfer in the end-user.

2) The substantive patent law : a heterogeneous level of protection

Obtaining a legal protection on a patent is a lure if, in practice, it is not possible to make it respect. However much of companies question the effectiveness of protection when it is a question of making cease and of repressing the counterfeit, in particular in certain countries of Asia.

From this point of view, the rules of patent rights in Europe are considered to be inadequate, even dissuasive, by many companies. Their evolution is necessary so that strategic projects can be constant. Indeed, the patent is par excellence the tool for protection of the technological innovation, and undoubtedly that which France and its companies use the least best.

In order to facilitate the diffusion and the access to information, a project of world network of information, baptized WIPOnet, was lately approved by the Member States of OMPI. The goal of this initiative is to create data bases of quality, being able to be put on the network in full safety by the means of numerical libraries making it possible to extract from the data relating to the international requests of patent published. It is then planned to proceed to the electronic deposit of the international requests for patent, thus making it possible to lower the cost of the deposit. With the European scale, the European Organization of the patents places at the disposal nearly 30 million documents to patents published in the 19 Member States, in order to promote the innovation in the European companies.

At the national level, an adaptation of the legal system appears necessary. It is in particular necessary to examine the possibilities of revaluing the damages granted to the victims of the counterfeit. Indeed, in France, the allowances are founded on the repair of the damage undergone by patented and not, as in the United States, on the confiscation of the illicit benefit carried out by the counterfeiter. It is thus advisable to engage a reflection on this topic, in order to make the sanctions more dissuasive.

To the United States, creation in 1982 of a single Court of Appeal at the federal level for the patents and the tripling of the financial sanctions inflicted to the «deliberated and conscious» counterfeiter contributed much to return confidence in the patent and to develop its use.

3) Conflicts of national laws and legal statuses as regards domain names.

· A conflict of legal statuses

The coexistence of the various procedures of recording of domain name was the occasion of important conflicts between companies, because of the use by thirds of their mark without preliminary authorization. Thus, certain companies were seen refusing the use of their own mark for their personal site. They were obliged to negotiate important financial transactions in order to be able to employ their mark, recorded before in Internic under the suffix « .com ». Thus, after the repurchase of DIGITAL and its search engine called AltaVista, Compacq had to pay 3 million dollars at the English company Alta Vista Corporation. This possibility of substantial profits explains why companies specialized but also in the private individuals, deposit domain names by pure gamble. This hacking is made possible by the existing gap between the trade-mark law and the right of telecommunications. The rule in the field of Telecommunications and applied by Internic, is that of « arrived first, first owner », whereas the trade-mark law is founded on the principle of speciality. That means that mark is deposited and protected to indicate the products or services aimed at its recording.

March 12, 1998, the Court of Bankruptcy of Paris considered, in this kind of business, that to recognize the thesis of « arrived first, been useful first » is incontestably prejudicial at the oldest company, which is thus dispossessed on Internet of the company name which individualizes it in the whole of its existence and its activities, whereas it enjoys a true right of ownership on this one.

· A conflict of national laws

The great diversity of the practices in the management of the various domain names (that it is on the level of the nature of the organization responsible for management, of the protection of the trade-mark law, of the conditions of recording of the domain names) is at the origin of conflicts at the international level.

Following the increase in this type of conflicts, the NSI worked out a charter on September 9, 1996, of which the goal is to envisage modes of payment of the litigations concerning the domain names. It envisages the possibility for the holder of a mark, to lodg a complaint with the NSI, when he is noted the recording by a third of a domain name comparable with this trade mark. The NSI will send a setting then remains about it with the depositor of the litigious name, forcing it to provide in the thirty days a document in proof showing its titularity on its mark. If the organization or the company in question does not manage to be justified, the NSI will require of him to give up the domain name. In the event of refusal, the litigious domain name will be put on standby and none the parts will be able to use it until they find an area of agreement or which a judge sliced the business.

A French company could profit from such a procedure, in the possibility or a foreign firm records a name similar to its mark within the zone « .com ». However, the device is likely to be weighed down, since one will need either diligenter a procedure in the State of the contravening company, or to obtain the recognition of the French jurisdictional decision in front of the foreign court.

On the level of the zone « .fr », the control carried out by N.I.C-France makes it possible to eliminate the cases of fraud manifest. The recording as domain name of the company name of a concurrent company will be impossible. Let us recall that under the terms of the L711-4 article of the Code of the intellectual property, it is interdict to adopt a sign or a mark, if there is a risk of confusion with a company name or a sign already known on the territory.

However, of the conflicts can occur between similar marks indicating of the different products, but which wish to use the same domain name on the network. This is why, a company eager to record the name of its Web site will may find it very beneficial to deposit the corresponding mark simultaneously. It seems indeed that in the event of litigation, a trade mark will be more easily taken into account by a court or the N.S.I, rather than a simple commercial name.

As for the holders of French marks, wishing an international extension, they will have to address a request to the I.N.P.I which will be transmitted to the O.M.P.I. It is however necessary to recall, that the Anglo-Saxon countries and in particular the United States, do not adhere to the treaties managed by the O.M.P.I.

Lastly, the Convention of the Union of Paris of March 20, 1883, where this time adheres the United States, installed a mechanism of priority, authorizing the depositor of a national recording, to proceed to deposits in the other Member States, within six month.

It is noted that the current system of management of the domain names on Internet will not be able to satisfy a long time all the holders of marks, or entities eager to protect their company name. « The creation of a really international authority becomes a need, One can imagine a structure depending on OMC in order to regulate this kind of problems » estimates Pierre Reboul, president of Electronic Business Group.

Conclusion :

The various problems of application which have been just mentioned can nevertheless be solved, at least partly. Largest of the difficulties resides in the transborder character of Internet vis-a-vis the parcelling out of the legislations. Several solutions are to be considered, that they are of a nature techniques (cryptography), legal, political (international co-operations) or economic (self-regulation).

III/diversities of the solutions

New fashion of communication that Internet introduces with for essential characteristic an access to information largely facilitated. It is freed from the constraints of distances and time, from the borders, and offers to all an equal access to the information which constitutes its richness.

Right of the intellectual property, which aims at regulating creation and the transmission of works of the spirit must thus be put in agreement with these new facilities. It rests in the same way with the technique to facilitate the application of the already existing rules, which, one saw it, can in the majority of the cases apply. However, the transborder character of the network implies an international co-operation, not only states, but also of the users, who must lead to a harmonization of the rules.

The conciliation between the facility of communication offered by the network and the principles of the intellectual property will have to thus be done by the means of an international co-operation.

A) The conciliation enters the facility of communication and the principles of the intellectual property.

The new facilities of communication offered by the network cause or are likely to cause many infringements of the right of the intellectual property, but, the mother of all networks offers also very important cultural opportunities. It thus appears desirable to reconcile the principles of the freedom of information and the freedom of expression, which are at the base of the development of Internet, with the principles of the right of the intellectual property, and in particular the protection of the authors. The network must thus adapt to the right, and the right must adapt to the network.

1) The network must adapt to the right

As we already evoked, the digitalization of information and the disappearance of the material support have as a consequence a new facility of circulation, modification, garbling the data which is offered to all. Thus, on the one hand, it can be easily copied or modified, which involves many potential infringements of the royalty, concerning the respect of the integrity of work, but also the reproduction right. In addition, the development of the telecommuting and the data transmissions between the various sites of companies involves a considerable increase in the theft risk of data and thus of attacks to the intellectual property. Thus, of many companies use computers connected to the network within the framework of their programmes of Research and development or design of new products, which can lead to litigations concerning the patent right and more particularly the substantive patent law.

For example, the American firm Boeing, designed its last plane starting from several engineering and design departments distant several thousands of kilometers and connected to each other by the network.

To encourage the development of the economic activities, by the protection of the intellectual property, the network must thus offer technical solutions of safety concerning the transmission and the information storage, but also the authentification of the documents. One can think, for example, with the use of cryptography RSA (Rivest Shamir Adleman) so named asymmetrical cryptography. This one functions with two keys : a key public and a key private. Both are used for encoding, and the private key is used to decipher. This system as well makes it possible to make safe the data (like other systems of encoding), but also to authenticate the documents, possibly thanks to the contest of waiters of public keys, by creating a true electronic signature. However, cryptography is not yet completely liberalized. It appears also desirable to preserve a certain freedom of communication. The network, by the technological projection that it brings, must thus also force the right to adapt.

2) The right must adapt to the network

· 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.

B) Need for an international agreement

Internet network was often regarded as a zone of nonright because the application of preexistent legal provisions encounters multiple difficulties, in particular because of its international character and the multiplicity of its actors. Thus a self-checking seems preferable with the traditional system of the constraining legislative regulations. This one must be based on the legal provisions already in force. To set up it in an effective way, an international co-operation of the states is essential, so as to unify the rules.

1) Self-regulation

Self-regulation aims at obtaining community of the Net surfers an effective application of the principles of the intellectual property. It addresses not only to the holders of rights, but also to the users and to the intermediaries. It is thus necessary to set up institutions suitable for the network, the purpose of which are information and the responsibilisation of the actors, as well as the prevention and the payment of the litigations.

· Information and responsibilisation

First of all, the creation of a charter of the Internet, having to be respected by all the actors of the network (producing of contents, intermediaries) seems desirable. It would thus make it possible to clarify the applicable rules and would lead the sites lodging of the Web pages to require their customers the respect of the principles of the intellectual property. Various proposals were already formulated, like that of the Beaussant commission which put forward in March 1997 to the government a proposal of charter of the Internet, that of the Canadian Association of the Suppliers of Internet (A.C.F.I) or that of the association of the British providers (I.S.P.A.).

· Prevention 

The creation of devices aiming at preventing the conflicts by the means of a harmonization of the procedures is essential. The recent initiatives thus should be evoked that are the ICANN and the world network of OMPI. The ICANN is a structure charged to manage the policy of naming of Internet sites. It returns to him to harmonize the rules of naming with the international law of the marks so as to avoid the practices of « cybersquatting ». The world network of information of OMPI must, to connect the various offices of intellectual property to him, and in the long term to allow the electronic deposit of the international requests for patents. These two structures should make it possible to solve the problems concerning the patent rights (trade-mark law, substantive patent law). Moreover, the creation of an international observatory of the network, like the part played in France by the union of manufacturers (UNIFAB) can make it possible to detect the attacks with the intellectual property.

· Arbitration 

An arbitration board makes it possible to avoid the judicial bodies. That allows a nonconflict payment of the litigations but especially, avoids the conflicts between the laws of the various countries, which is particularly appreciable as regards duty applied to Internet. Thus within the framework of OMPI, a mechanism of payment accelerated of the litigations was instituted near commission INTERDEPOSIT. This procedure, known as of « mediation and of arbitration on line », has vocation as soon as possible to settle the disagreements which have occurred between Net surfers as regards rights of ownership intellectual and is held in a phase of mediation and a phase of arbitration. One can also quote the initiative of the Research center in Private Law of the university of Montreal which developed an experimental project of resolution of the litigations in the cyberspace called cybertribunal, as well as « virtual magistrate project », developed by A.A.A., an American association of arbitration.

But the installation and the perenniality of these institutions can be done only by the way of an international co-operation on the level.

2) International co-operation

The co-operation must be world, but it rests above all with the European countries to agree between them.

· At the European level 

In the field of the patent rights, the Community legislation has golds and already instituted processes of deposit of marks and patents on the scale of the European union. Thus, the Office of the patents of Munich delivers patents of which the effects extend to all the European Convention countries, the office of harmonization of Alicante carrying out a similar work in the field of the marks. It is thus necessary systematically to encourage the deposits of marks and patents European in order to in the long term replace (at least for what touches with Internet) the national offices by the two institutions previously quoted. In the same way, it appears desirable to develop the projects of deposit on line such as EASY and MIPEX. On the other hand, in the field of the author's copyright and artistic, the Community legislation still presents gaps. Nevertheless, the commission works with a harmonization of the legislations of the Member States and published the green book on the royalty and the rights close in the company to information in 1996, as well as a draft Directive in 1997. Moreover the directive of 1996 on the data banks approaches certain aspects of the royalty.

The European Union seems to have really become aware of the importance of a Community legislation on the intellectual property, which can and must give him a good position in the negotiations which will probably take place at the international level.

· On a world level 

The protection of the intellectual property did not cease continuing since the convention of Bern in the industrialized countries, and since agreements ADPIC concluded within the framework from GATT in 1993, in the countries in the process of development. But the problems raised by the advent of Internet and the company of information probably will lead to new international negotiations under the impulse of OMPI. Thus the ICANN, solution with the problems of naming is set up. But it was seen that many problems found solution only at the international level. New negotiations will take place, probably giving rise to new authorities of regulation

BIBLIOGRAPHY

· Deliver

Author's copyright and artistic and right neighbors, Claude Colombet, (8th edition), DALLOZ 

Great principles of the royalty - Approach of compared right, Claude Colombet ED. LITEC

Report/ratio of the Council of State on the company of information

Deliver green on the royalty in the company of information, European Commission

Opinion of the Economic and Social Committee on the green book

· Articles

* The royalties pass to the era of numerical, the Barber, 24/12/96

* A report/ratio of the Council of State estimates that Internet does not need a specific right, the World, 09/09/98

* Legal problems posed by Internet, the problems involved in the respect of the law on Internet, the Correspondence of the press, 11/09/98

* Internet : an already abundant jurisprudence, Echoes, 23/09/98

* The data base is likely to be protected by the royalties, the Platform, 17/11/98

* The marks are confronted with the hacking on Internet addresses, the Platform, 23/11/98

* The press wonders about the royalties related to the electronic media, the World, 06/02/98

* Internet, royalty and photography, Légipresse, November 1997

* Lorentz mission on the electronic trade, groups intellectual property and naming

* Which culture in the intellectual cyber space and which rights for this cyber culture ?

* Jerome HUET- Dalloz Collection 98 Chronicles p.185

* For a diagram of the intellectual property, ALIVE Michel

· Articles Internet

- Trade-mark law domain names and, April 1997, http://www.fgassocies.com/

- Legal aspects of Internet, November 1998, http://www.fgassocies.com/

- Internet « outlaw » ? , July 1996, http://www.fgassocies.com/

- The software create by the employees : a royalty escaping their http://www.fgassocies.com/, author

- The setting on Internet without authorization of a protected work is a counterfeit, November 1996 http://www.fgassocies.com/,

- To control the constraints of the transfer of the rights for the multi-media one, October 1996 http://www.fgassocies.com/,

- Plays Multi-media : authors of a new kind ? , http://www.fgassocies.com/

- Rights of the employer, producer of a multi-media work carried out by an employee, http://www.fgassocies.com/

- Policy of the patents : general elements, January 1997, http://www.chez.com