Presentation

At a time when, on the one hand, it is believed that the information society will provide the majority of the jobs in the 21st century, on the other hand, the digital revolution and globalisation are eliminating borders, it is important to examine the law that regulates these new activities : copyright protections. This discussion will broach the question of the sources of copyright law from the point of view of two aspects: first (Monday and Tuesday), we will examine how and where the current framework was developed. Then, we will study the proliferation of conflict-of-law issues (Wednesday).

1 – As regards the way in which the copyright Standard has developed, after recalling the “origins” of copyright law (Monday morning: history, constitutional value…), the Convention will proceed to study the development of specific copyright provisions.

What is the source of the new provisions? How? Why? How are texts which are developed at a non-national level integrated in the legal systems of individual states (Monday afternoon)?

The questions presented will not be approached from a purely theoretical standpoint. We will, of course, also seek to understand the respective roles of UNESCO, the WIPO, and the WTO, the coexistence amongst these organisations, and the relationships between the various Treaties and Conventions. Our examination will also include a look “behind the scenes,” the negotiation methods within these organisations, the importance and the functioning of the lobbies, and an attempt to review the “geopolitical” underpinnings. Issues concerning the introduction and transposition within municipal legal systems of texts drafted regionally and internationally, their effectiveness in the absence of enforcement mechanisms in the receiving states or even the direct invocability of international legal texts.

However, the tenor of a rule of law also depends on its construction by the persons charged with its implementation. Who has the power to construe, and with what effect (Tuesday morning)? The role of case law, dissents and concurrences, random legal literature, and the opinions of magistrates (counsel for the prosecution) will be considered in this context… Based on specific examples, the authority and fate of the solutions arrived at. The diversity of sources and institutions leads to a number of questions: the creation of new rules of law, the danger of differing interpretations depending on the jurisdiction in which a case is decided, harmonisation or conflict? Beyond the power of the judge, we will examine the importance of the Restatements, of doctrine, administrative agencies, headnotes, ministerial guidelines, circulars, Copyright Office documents, amicus curiae …

From its vantage point, the Convention might be able to provide answers to fundamental questions: are there general copyright-law principles? What is the form of the dialogue between judge and legislature? What are the results: law codifying the judicial solution, law adopting part of the decision, law invalidating the decision … ?

In addition to institutional sources, we will examine (Tuesday afternoon) the role of practice as a source of copyright law.

Copyright practice, in the broader sense, is an important source of copyright law, which is rarely studied. Yet the number of professional practices contributing to the development of copyright law is vast. For example, we need look no further than to contractual practices, model agreements, collective agreements, customs, rules of good conduct, charters, ethical provisions, schedules of collective management companies, etc. This session will allow us to study the origin of these practices (legal origin if the legislature makes express reference to it, judicial origin if judges base their decisions on the usages, spontaneous origin if the practice is developed by professionals in their everyday practice environment...), and the manner in which they develop (are they codified, etc…). It is also useful to determine the role of the practices that fill in gaps in the law, but which also occasionally militate against its provisions, while still allowing for a good balance to be reached between the rule of law and its reception in a specific professional environment. The study of the importance of practice as a source of copyright law can be illustrated by examples drawn from substantive law (such as the role of practice in entitlements, determination of infringement, determination of the protected status of a work, etc.).

2 – The second part (Wednesday) of the Convention will examine conflict-of-law issues. How can a single practical difficulty arising out of copyright law be resolved unexpectedly in the area of literary and artistic copyrights because other rules of law from other areas compete with the copyright provision?

The large number of sources leads to a large number of standards, emanating from different logics, which can come into conflict, and the resolution of these conflicts gradually transforms the body of the results reached.

This is the case, for example, with conflicts between copyright law and fundamental rights. Human rights, in particular the right of the public to information or freedom of expression, may limit the applicable copyright provisions. These questions will not be studied, as they fall within the scope of the Barcelona symposium. Our attention will focus more on certain conflicts with rules of economic law. Wednesday will thus be completely dedicated to the conflict between copyright law and, on the one hand, consumer law, and on the other, fair competition law.

We will analyse the manifestations of fair competition law and consumer law as implemented to correct copyright law, based on the public interest and consumer rights, in addition to considering the convergence of copyright law with the interests of the consumer from the point of view of an extension of the cultural offering and its economic efficiency. However, once the applicability of this economic legislation is accepted, the Convention will look at the conditions, procedures, and consequences of its application.

Does the definition of the “market,” as used in fair competition law, serve any purpose in copyright law? The same question arises for the concept of “fungibility” of products and services. Can we really hope to apply the theory of “essential services” to an intellectual property right? What is the relevance of a “primary and secondary market analysis” for the exploitation of a copyright? What conclusions should be drawn from the application of these concepts, or, more broadly, from this economic legislation? Is fair competition law neutral vis-à-vis copyright law? What should be made of infringements of exclusive rights (obligatory licence, authoritarian methods of setting royalties…)? And the calling into question of the principles of territoriality, in particular as concerns the distribution of works on the Internet? Is it necessary to ensure interoperability at any price? Can fair competition law influence even moral rights?

As can be seen, delicate questions abound, and the very future of copyright law is at stake.