Executive Summary
Regulation of the international mass media covers a diverse range of issues including:
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Foreign participation through investment, ownership and operation;
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Content regulation regarding foreign programs and materials, including regional and global standards;
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International distribution of artistic and literary products including relevant contractual, copyright, free trade and antitrust issues. This includes an examination of the various distribution channels such as broadcasting, licensing, and electronic distribution via the Internet;
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International distribution of news and documentaries, including access, news gathering, redistribution, content control, copyright, free trade and antitrust issues. This includes coverage via international telecasts, news agencies, and other forms of distribution.
Various fundamental elements of intellectual property law, including especially copyright and trademark law, constitute an important supplement to media law. Other relevant aspects include patent and other applicable IPR protection of information technology and processing. However, both with respect to legislation, treaties and textbooks, it has been a tradition to treat the two subject matters separately. Thus, if one were to only concentrate one’s attention upon presentations of media law, one might easily overlook even the most significant intellectual property law issues.
Intellectual property law is obviously of great importance in the fields of publishing, broadcasting, and multimedia. Although they may involve some interactive elements, these forms of communications are essentially mass media, insofar as they predominantly address a large and often diverse audience. The risk of abuse of intellectual property rights has long been obvious, and intellectual property laws have been designed to address these concerns.
More recently, concerns about the scope and enforcement of intellectual property law has come to play an increasing role in the field of telecommunications, which has traditionally been concerned with tariffs, carriers, and privacy of communications and not much with IPR protection. However, broadband and advanced new technologies have enabled the telecommunications networks to be used for transfer of vast amount of data (voice, images, video, audio etc.) between a very large and steadily increasing number of users. As peer-to-peer networking sites have demonstrated, the potential for abuse of intellectual property rights involving telecom infrastructure and services has become very real, the legal situation much more difficult to overlook.
Intellectual property law has traditionally involved a heavy international component, as most nations have yielded part of their sovereignty to multinational bodies. In contrast, licensing of telecom operators has traditionally been a national concern, which has made it hard to ensure adequate and non-discriminatory copyright protection for the myriad of activities passing through the networks owned by all telecom operators around the world.
Copyright traditionally does not discriminate between whether a work is being published by speech, in print or electronically, and copyright protection does to a large extent already become effective at the point of fixation of the work. Nevertheless, modern information technology has caused complications, which is in part due to the difficulties associated with the so-called “collective works.”
Interactive communications, electronic publishing and electronic data processing often takes place in the fashion that the original work, here named “the basic work,” is being developed by the primary right holder, whereas subsequent users of the basic work create new copyrighted materials by making modifications or by just developing new applications, writing new text, adding new graphics etc.
In these situations there may exist various types of works: (A) an actual collective work in the form of an agreement between several persons, (B) an unauthorized production and thus a potential violation, and (C) a non-actual collective work, whereby the original right holder at the time of production or publication of the work has designed the source material so as to allow subsequent users to use and process the source text in an independent manner.
Problems may occur regardless of the type of work. With respect to type (A), there will often be problems when one or several right holders want to exploit the work in different ways than the other right holders had originally intended. For type (B), the problem is whether the legally obvious violation is even detectable. The critical issue for type (C) is whether permission to such processing of the basic work also implicitly includes a permission to publish or otherwise commercialize the processed work.
The consent problem is equally relevant in the situations where a large and often more or less anonymous group of contributors exists, for example in connection with software programs created through networking and literary works created interactively. As it will be seen, international conventions do already offer a certain, but incomplete level of protection.
Regarding law and policy goals for IPR protection in the Information Society, the level of protection should be appropriate with respect to reward, incentive, and legal reliability, as well as with respect to openness of information and competing economical, cultural and other values and interests.
Implementation of rules should be efficient and may be achieved through technical versus other means, and through private versus public or semi-public administration. In the latter regard, a comparison must be made between the problem of concentration versus the costs and resources needed to ensure effective enforcement.
Regulations and policies should be transparent, dynamic and international with appropriate consideration for legitimate national and regional differences. Any solution should be consistent or at least compatible with other IPR protection mechanisms as well as with generally accepted fundamental principles of international law and policy.
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