Do users have rights in the works themselves?

notes for the discussion
"The AIDAA notes a dangerous tendency to consider that users or consumers have rights in the works themselves." *

I should like to argue that users or consumers do have rights in the works themselves. I build my argument on the right of access of the citizens, which is the result of the users' and consumers' long fight for freedom of expression and freedom of information, i.e. the fight which Immanuel Kant described as "man's emergence from his self-incurred immaturity". Let me note in passing that the authors and the public were never the contrahents, the adversaries, of that struggle. In the historical perspective, the authors' fight for the authors' rights and the citizens' struggle for the right of access are parallell, intertwined and mutually supporting tendencies.

The right of access applies to most immaterial goods, and to a number of more or less material goods (such as air, water, moonglow etc.) as well. Obviously, it does not apply to such material goods as food, boats, houses and cars. Why? The answer is, I think, that "access" equals appropriation, which is a part of the property right.

This is the point: the right of access is a part of the property right. Therefore, I contend that the right of accessing a work implies a right in the work itself.

The users or consumers, i e. the members of the public have the right to read any published literature. Reading, i.e. accessing the literature is not infringement of the laws or rules concerning intellectual property.

Yet reading is an act of appropriation. As the reader, I am the co-owner of the content of the book. The content is the intrinsic value of the literary work. The meaning of the writing and the reading, i.e. the meaning (intention, purpose) of the communication, is the sharing, the common ownership of the content.

So how can it be denied that the public has a right in the works themselves? And how could it be considered dangerous to endorse that right?

I assume that the AIDAA is primarily thinking of audiovisual works. Freely, the high production costs of the audiovisual works may necessitate stricter regulation of the access than in the case of e.g. books or journals. Necessity here refers to the economic cycle of production and consumption. In short, the investor must get his or her money back, otherwise the production will cease. Therefore, audiovisual works can often be accessed only by pay-per view or license. I suppose that the AIDAA position paper reflects the fear of the authors or producers of lo osing that money, which is collected through pay-per-view and licensing arrangements. It is easy to understand why such fear arises in a new situation where e.g. music and films might soon be digitally reproduced and stored at a minimum of costs. I would agree that audiovisual authors and publishers need strong guarantees of return on the investments they must make. Moreover, I have no objection to paying a ticket each time I go to see a certain movie. However, I do have strong feelings against reading books and journals on e.g. a pay-per-view basis. By consequence, I am of the opinion that the position of AIDAA is somewhat one-sided.

Moreover, and to return to my argument, the right of the user or consumer in the works themselves does apply to audiovisual works as well. The listener accesses and thereby appropriates the musical work. So does the singer, who is able to repeat the melod y, the harmonies and the rhythm (and, in the case of a talented or experienced listener, even the musical notes) of the musical work. In a minute, the singer becomes a co-owner of that work. Music, if anything, reveals that intellectual property is shared property.

In a corresponding way, the member of a theatre or film audience, shares the content of the play or of the movie with the creators of these works. The part played by the spectator cannot be an infringement of the author's right or the copyright. In no cas e should the act of appropriation (reading, listening, perceiving etc.) of a work be criminalized and penalized.

Of course, the listener or spectator does not have a share in the author's rights. I only contend that the author's right is not a monopoly in the work itself; the published work is always a shared, i.e. co-owned work and there is always a question of balance between different categories of rightholders.

Once a work has been published, the public (i.e. the individual citizens who comprise the public) does have rights in the work itself. Neither the author nor the publisher does have the right to withdraw a published work from the public sphere. At least, he should not have that right. In my view, withdrawal of a published work from the public sphere equals theft.

Why do we even have to consider the possibility of such theft? The answer is that, in the digital environment, the withdrawal of a published work has become technologically feasible. And, what is technologically possible also tends to become real, if only the economic incentive is sufficiently strong.

The economic incentive is strong.

My fear is that we may have to witness the "publishing" of, say, literary works with "clickwrap licences" of the following kind: "THIS BOOK WILL EXPIRE ON THE 12 OF JANUARY 1999, PLEASE REGISTER YOUR COPY NOW. PLEASE READ THE LICENSE AGREEMENT CAREFULLY. CLICK "I AGREE" ONLY IF YOU ACCEPT THE TERMS OF THE AGREEMENT".

Unfortunately, the draft EU Directive on copyright is far from clear in this respect. In its present wording, the draft does not even guarantee public access to works and recordings which belong in the public domain. The article 6 on technological measure s aiming to avoid or prevent the violation of copyright does not explicitely distinguish between copyrighted works and works in the public domain. This is why one must conclude that the right to information is under imminent threat right here in the information society. The holder of the copyright may describe his product as a database, in which case the sui generis right which is stipulated by the EU Database directive will apply, regardless of the nature (copyrighted or not) of the content of the database. This is one of the cases in which the copyright issues and the freedom of information issues become interconnected.

Mikael Bk


Note:

* Quoted from "Draft Directive of the European Commission of 10 December 1997 on the harmonisation of certain aspects of copyright and related rights in the Information Society. Position of the AIDAA", Brussels 15 June 1998. - The document is available from:
Association Internationale des Auteurs de l'Audiovisuel - International Association of Audiovisual Writers and Directors, Rue du Prince Royal 87, 1050 Bruxelles. TEL: 32 2 55103 50, FAX: 32 2 55103 55.

The quotation from Kant's article "What is Enlightenment" (1784) is from the web-version in English at www.geocities.com/Athens/Parthenon/2599/wie.html

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