Rethinking creative rights for the Internet age
Recommendation 1906
(2010)
- Author(s):
- Parliamentary Assembly
- Origin
- Text
adopted by the Standing Committee, acting on behalf of
the Assembly, on 12 March 2010 (see Doc. 12101, report of the Committee
on Culture, Science and Education, rapporteur: Mr Arnaut, and Doc. 12142, opinion
of the Committee on Economic Affairs and Development, rapporteur:
Mr Lambert).
- Thesaurus
1. The Parliamentary Assembly notes
that the extraordinary development of the digital society has significantly
upset the balance between the copyrights of authors of intellectual
works, investors and the general public, and raises questions and
issues as to the functioning of democracy, the protection of human rights
and the viability of the rule of law. It also raises ethical questions
and questions relating to property, particularly intellectual property.
2. The possibility of sharing written documents, music, photographs
and films without respecting copyright, as well as plans for electronic
libraries, are examples of this development. The consequences are
manifold. The drastic decline in sales of musical and cinematographic
works is a reality and the same tendency could be seen in publishing
with the advent of electronic libraries. Moreover, some governments
are considering enacting laws to allow for the surveillance of digital
exchanges between individuals.
3. The international instruments for the protection of copyright
no longer seem capable of guaranteeing creators and investors a
fair return on their respective activities while ensuring the public’s
access to information and respect for privacy. On one hand, the
very survival of creative professions is at stake; on the other,
there is a danger of the emergence of police states controlling
all information exchanged by their citizens.
4. “Pirate parties” are springing up throughout Europe and worldwide,
rebelling against any state control over Internet communication
and calling for the safeguarding of privacy and the right to information
and to share music, films and other products of artistic, scientific
or literary creation free of charge. The Swedish Pirate Party has
a member in the European Parliament, and the German Pirate Party,
until the recent elections, had a member in the Bundestag.
5. There would not appear to be any threat to the public’s right
of access to information and no justification for the provision
of music, films and literary or scientific works free of cost. The
Assembly considers that unrestricted and free access to information
by no means presupposes cost-free access to the products of artistic,
scientific or literary creation, even if the freedom to copy for
private use must remain. The relevant exceptions in the spheres
of education and research would appear to be properly safeguarded.
6. It is incumbent on the public authorities to work towards
restoring the balance between the rights of the various players
in the process of intellectual creation while guaranteeing respect
for privacy. The Council of Europe, whose fundamental values are
precisely democracy, human rights and the rule of law, has a duty
to be involved in assessing foreseeable developments and in framing
the standards required at European level.
7. The Committee of Ministers of the Council of Europe has stated
its position in its Recommendation Rec(2001)7 on measures to protect
copyright and neighbouring rights and combat piracy, especially
in the digital environment. The Assembly focused on two questions
related to these matters in its
Recommendations 1586 (2002) on the
digital divide and education and
1833 (2008) on promoting the teaching
of European literature. The European Union considered the question
in several directives from 1991 to 2006. However, at this stage
no satisfactory solution has yet been proposed.
8. Consequently, the Assembly recommends that the Committee of
Ministers:
8.1 initiate a future-oriented
study on copyright in the digital environment and give thought to
the changes required to guarantee a flexible legal apparatus, enabling
copyright to be protected despite technical, economic and social
changes;
8.2 initiate reflection on the system of exceptions and limitations
by opening a transparent public debate, enabling each interested
group to express its point of view in order to identify the exceptions
and limitations essential for freedom of expression and information
in a democratic society and ensure that these are fully effective,
as well as identifying the exceptions and limitations which are
merely incidental to this objective and propose a differentiated
approach;
8.3 assist and encourage − for example by drawing up model
clauses − contractual initiatives to provide improved access to
works of a creative nature and their content, particularly in the
fields of education and research, and verify their effectiveness
and implementation by means of empirical studies;
8.4 initiate reflection on the legal status of certain Internet
stakeholders (access providers, content-sharing platforms, search
engines) with regard to compliance with copyright rules;
8.5 investigate what arrangements and mechanisms might help
rights holders to receive fair and equitable remuneration, on which
the economic operators concerned have been consulted, for access to
protected works;
8.6 explore the possibility of introducing compulsory collective
management systems, especially where exclusive rights are very difficult
to enforce and could have adverse effects on access to information
(for example, in the case of “orphan” works, which are still covered
by copyright but whose owners cannot be identified or located);
8.7 facilitate and propose a framework for interdisciplinary
work (economic, philosophical, sociological, historical, psychological
and technical) on copyright.
