• 1. The Problem: Digitisation and Networking - What Will New Technologies Change?
  

1. The Problem: Digitisation and Networking - What Will New Technologies Change?

As with every kind of technical innovation, digitisation and global networking - currently being discussed under the catchwords "Multimedia," "Internet," "data superhighway" and "global information society" - alter the manner in which people communicate with one another, preserve their history and build the future.

This applies especially to the contents being communicated by means of digital technology. Previously, these contents were made available to the general public in analogue form. The legal framework in this context is copyright law, provided such contents were not simply unprotected data or mere information, but were protected works (including text, music, images but also computer programs and databases) or the achievements of a number of other persons or institutions participating in the culture business (in particular performing artists, phonogram and film producers, broadcasting companies). Copyright law secures for creators and producers the control over and participation in the commercial exploitation of their protected works and achievements. Copyright is protected by the German Constitution and anchored as a human right. This is how creative activity and the related investments can be rewarded and authors stimulated to create new works.

In order to determine the extent to which new technologies necessitate a reform of the legal instruments currently available, it is first necessary to address the issue of what is actually new in the context of digitisation and networking when viewed from the copyright perspective.

There is nothing new in the combination of several types of works within one larger work or on one data carrier; phonograms and cinematographic works are examples from the past. The digital format of data to be communicated is not new either; computer programs and computer games may be a relatively recent phenomenon, but they have been the object of detailed legal scrutiny. Finally, networking is not new either, since the telephone and cable networks have been in

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use for a long time; traditional wireless radio may also be viewed as a network, yet one that does not permit a response to be given and hence does not permit inter-activity.

What is new is that text, sound and visual information (photographs and moving images) is now presented and stored in digital form. This means that the entire information can be generated, altered and used by and on one and the same device, irrespective of whether it is provided on-line or off-line [Fn.1: However, as a rule the data files of the individual component parts are still stored in different formats.] . The following aspects are of particular significance from the viewpoint of authors and rights holders:

• the fact that it is possible to make copies extremely fast, at low cost and without any loss in quality. This means a considerably enhanced intensity of private possibilities of use vis-à-vis traditional reprography and previous video and phonogram recordings, possibilities that may well conflict with the exploitation of the original products and hence the interests of authors and rights holders in optimal control over and exploitation of their rights. The latter applies especially where third parties appropriate works created by others in order to exploit them commercially themselves;

• the fact that digital data files are particularly vulnerable to manipulation (or: digipulation) by third parties; in this context it is unimportant whether the third party is entitled to use the protected work or not; and

• the fact that it is almost impossible to control the exploitation of individual protected works and achievements in cross-border, global data networks - of which the Internet is merely one prominent example. Each participant is able to cast aside his one-sided role as a recipient and become a provider; it is possible for anyone not only to access databases but -

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according to a familiar quotation - to act as a database him or herself.

These changes result in a marked increase in the demand for pre-existing or newly produced material, which is ingested, adapted and re-marketed in ever-increasing quantities by the copyright industry and consumers alike. At the same time, from the viewpoint of authors and rights holders a loss of control sets in, which is much more severe in digital on-line media (Internet, proprietary Networks, Intranets, etc.) than in digital off-line media (disks, DAT, CD ROMs, DVD, etc.). The problem is compounded by legal uncertainty and a number of lacunae deriving from the fact that, from a linguistic point of view, copyright law was previously oriented towards analogue exploitation technologies.

On the one hand, legal uncertainty and the feared loss of control may impede investments in the digital infrastructure and lead to an undesired restraint in making available attractive material. On the other hand, numerous users fear that a strengthening of copyright in the digital field will increasingly exclude them from enjoyment of works; finally, libraries see their future role as information agents in the digital age endangered.

In the face of such conflicting interests, it is necessary to arrive at a balance that is both reasonable and takes into account as far as possible all the legitimate interests involved.