The balance between copyright protection and access to information: a major challenge for the information society

The Preamble to its Constitution affirms that "the wide diffusion of culture and the education of humanity for justice and liberty and peace are indispensable to the dignity of man and constitute a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern". Various Resolutions of the General Conference urge Member States and Associate Members to promote free and universal access to public domain information for the purpose of education, science and culture. In its endeavour UNESCO also invites Member States to establish a right of universal access, within their respective jurisdictions, to information relevant for citizens in a modern democratic society.

Indeed, a significant amount of world human heritage lies in information content known as public domain information or the information commons. The facilitation of its provision and dissemination on the global information networks will substantially contribute to the above-stated goal of universal access. However, rapid advancement of innovations in information and communication technologies has sparked a race to lay claim to knowledge, resulting in the risks of appropriation of information which should be in the public domain. It is primarily the responsibility of public institutions such as libraries, archives, museums and governmental agencies to facilitate access to this type of information.

Ensuring universal access to cyberspace

The universal access to information and human interaction, by means of information and communication technologies is essential for achieving goals of social cohesion, and economic, political and cultural empowerment. Proactive measures need therefore to be taken to encourage the application of common fundamental principles in support of governments that are addressing the formulation of policies and regulatory frameworks which will determine the future of the information society, while bearing in mind that basic education and literacy are prerequisites for universal access to cyberspace. Thus, Member States should adopt policies and develop support schemes to promote local and indigenous production of Internet content. They should also encourage legislative measures to facilitate freedom of information, and on-line accessibility of public and government-held records, as well as regulations on digitization taking appropriate account of national security and privacy concerns.

It is particularly important that Member States and international intergovernmental and non-governmental organizations promote cooperative arrangements which balance the interests of the public and private sector in order to ensure universal access to and free flow of information in the public domain between the developing and the industrialized countries, and between the information deprived and information rich communities. Appropriate incentives should be provided in this sense to encourage private-sector contributions towards generating information and facilitating access to it.
Exchanges of best practices and elaboration of self-regulatory professional and ethical guidelines should be encouraged regarding the activities of information and content producers, users and service providers, with a view to building up a universally accessible body of knowledge, particularly for the benefit of developing countries.

Fair use in the digital environment

In addition, the preservation and expansion of the doctrine of fair use is essential to the preservation of free expression in the 21st Century. It is vital for future economic development in many nations. Hence, maintaining a balance between copyright protection and access to information is a major challenge for the information society. This involves both national and international regulation. More fundamentally, the notion that a work can be protected on the basis of the criterion of originality is a vital instrument for drawing the border between protected work and work in the public domain. Users are also allowed exemptions, reflecting the need to strike a balance between the private interests of the creators of intellectual content and the larger public interest, by providing not only for legitimate access to information and culture, but also for the dissemination of knowledge through education, research and libraries.

Many international treaties confirm the recently extended prerogatives of authors and holders of neighbouring rights, and further extension of the scope of their protection. These same treaties have adjusted limitations and exemptions as part of the process of the updating of rights. However, much remains to be done in order to reach a consensus on practical ways to ensure adequate enforcement of fair use in the digital environment without undermining copyright protection of literary, scientific and artistic work in electronic formats, all currently challenged by electronic piracy. These factors must be fully taken into account in adapting intellectual property rights to the digital environment of cyberspace. The elimination of legal uncertainty in this area is indeed one of the major challenges currently faced by the international community for the development of the global information society.

The debate on the protection of copyright for digital works is taking place in a context of expansion and strengthening of authors?? protection, since the development and diffusion of digital technology has a direct, but nevertheless ambivalent impact on copyright protection. On the one hand, this technology allows the making of perfect and costless copies of copyrighted works, thus expanding the scope for unauthorized reproduction. On the other, it permits right-holders to detect and counter such reproduction.

Rights management systems

The fair use doctrine has played an important role in promoting the dissemination of knowledge and the creative arts. The scope of fair use for advancing social utility (such as education, library copying, or creation of derivative work) should be enlarged in digital society. It is to be noted in this respect, that while the potential negative effects of free-riding on authors and the copyright industry need to be taken into account, the combination of electronic fences via the use of "rights management systems", the use of contract law and the development of a sui generis protection for databases, may effectively reduce or eliminate the ability of researchers, authors, critics, scholars, teachers, students and consumers to find and quote for publication - make fair use of information. Current technical and legal developments may result in growing barriers to the access to all types of information which will be increasingly channelled through digital networks. Such barriers are likely to affect not only technology, but also general factual information, as well as scientific knowledge, including information in the public domain.

Various international copyright systems have changed over time to adjust themselves to the new environment. As information society develops, copyright law will also evolve. In this sense, international harmonization among countries is essential to avoid potential conflicts in a deeply globalised world. Fair use principles, if well defined and articulated, could serve to prevent the over-protection of copyrights and to guarantee the wide dissemination of public domain information.