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Internet, New Technologies and Intellectual Property

The appearance and development of the Internet, of new technologies, of Web 2.0 etc has led to social and legal debates. The copyright system is under pressure as a result of this transition. At any event, the principles of Intellectual Property are equally valid in this new world.

We can no longer really say that the world of new technologies, the Internet, Web 2.0, social networks, file sharing and e-commerce as something completely new. However, there are still many more issues to be resolved. Many doubts have been generated from a society and a legislation linked to the analogue and physical areas in such a way that, in the words of the WIPO Director General “there are a lot of signs that the copyright system is under the most severe stress in making the transition from the physical world to the digital world”.

It is equally true that addressing this issue requires the selective combination of several legal disciplines as we are not only talking about the copyright over the contents appearing on the Internet. It is also important to consider the technologies which support them: the technologies of telecommunications, information storage, support. These technologies can enjoy the protection of patents in the same way as software if they have a technical function. In the same way that many of the businesses which have arisen and the products and services born recently can also be protected by means of a mark which distinguishes them.

Special importance in the area of new technologies can be given to so-called ICT companies, which are a significant sector for transforming our growth model. Following on from what we referred to in the previous paragraph, we can see that this new sector in Spain imitates the traditional sectors in terms of generating patents. As the percentage of ICT patents over the total number of patents is 63.71% in China, 30.48% in the USA, 17.66% in European Union and 9.68% in Spain. This data should lead us to reflect because if Spain wants to catch the train of this new industry, it will have two accelerate sharply in the area of protection as other countries protect the knowledge which they generate.

With regards copyright, we need to bear in mind that the principles and rights which govern the physical world are equally present in the virtual world, and the simple fact that a content is on the Internet or is digitised does not mean that the author loses the rights over his/her work. When an author, for example of literature, assigns his/her rights to a publisher, he/she does so for a physical format, not for a digital format, and it will be necessary to negotiate his/her rights in the new format. The Law in this regard is clear and it is also appropriate to review some new types of contract which aim to universalise the assignment of copyright as it may become null and void on attempting to apply it to unavailable rights or to imagine formats which do not yet exist.

Sometimes, the solutions put forward to guarantee copyright lack adequate pedagogy. We are talking about the digital levy where a sentence of the Third Chamber of the Court of Justice of the European Union has declared its indiscriminate nature is against the Law. This does not deny the legitimacy of the so-called digital levy, technically compensation for private copying; it affirms it although it establishes a limit with regards those obliged to pay it.

Compensation for private copying is envisaged in Directive 2001/29 in article 5.2 b) and is configured as an exception of copyright, who receives compensation through not exercising those rights. Similarly, the previous paragraph – 5.2 a) – establishes an identical exception in the case of photocopies, although less emphasis is given to this issue. These exceptions arose precisely from the world of photocopying in Germany in the 1960s. Faced with this Directive, as with others, the room for manoeuvre for states is limited. We need pedagogy.

In the same way as with other contents, it is necessary to study from the point of view of Intellectual Property what happens when we prepare a website, when we use a third-party logo on that page, when we illustrate with photographs or music, when we use certain page designs, when we establish a link, when we prepare a platform. Intellectual Property rights are always present.

We have shed light on a new and exciting world, and in fact the issues indicated above generate passion, which is good providing we maintain our perspective.

Carmen Sánchez-Puelles