sou · GQB3112 · 2003-01-01 00:00:00 — It is often said that gave civilisation the law. That may be true, but someone else invented intellectual property law. According to – an acclaimed scholar on international copyright law – the early Greeks and Romans had a developed notion of authorship, which was confined to the of teach- ers and philosophers to be credited for their own teachings. This was a moral question, thus not regulated in law. Most people agree that the first copyright law was the Eng- lish Statute of passed in 1709. The system used today in most Western societies derives from the of 1886. Some things have changed over time, but only in favour of stronger protection of the author and the copyright holder. The one common principle is simple and almost globally applicable: with few exceptions, you need the copyright holders permission if you want to make new copies or create a work deriving from the authors work within seventy years of the authors death. 2 Freedom of speech challenged The Romans took a broad view of contract law and other essen- tials of civil law. Details may vary over time and between juris- dictions, but there is controversy about the basics. Copy- right, however, is widely debated these days. , and pro- duced the most famous recent works in the area, following a long European tradition of debating the authors rights. You may think that the time for copyright protection – life plus seventy – is too long. You may think that fair use is too limited. You may think that the Russian programmer should never have been prosecuted under the DMCA (the Digital Millennium Copyright Act) for designing an anti-circumvention device for e- books. You may think all these things, and Lessig, and Vaidhyanathan very eloquently put them all, but I think the issue of copyright protection of computer programs – of code – is dif- ferent in principle. In his book Code and other laws of cyber- space Lessig has demonstrated that code, i.e. programmed func- tions of computer systems, can be more important than law.1 Computer programs should never have been protected as literary works in the first place. That just happened. But now that it is time for a change, I think the great experiment that we are all tak- ing part in is a wonderful way – through freedom of contract – to experiment towards a new legal take on code. Free software and open source could together be described as open code. With open code, I mean that the source code is available to the user and the development of the computer pro- gram is decentralised. It is often argued from the experience of Linux, Apache and Sendmail that the distributed development process of open code is good for security, speed of development and interoperability. Lessig argues in his book Code that code could be more important than law, when it comes to free speech in computer networks. Lessig concurs that we should think about the architec- ture of cyberspace – its code – as a kind of regulator; that this regulator is likely to regulate more than law does today; that do- ing nothing is to lose some of the freedom the Internet now guarantees. The code – by not being transparent – may threaten freedom of speech. What if the code in itself makes certain types of expression void? Freedom of speech would then be stifled through the architecture of the online, Internet or IT environment. And this could happen without any political debate. Furthermore, open code is good for consumer and customer confidence and trust. Would you trust a product that you are not allowed to disassemble? What if the product carried all your per- sonal data? The trust and transparency argument is in my opinion the strongest argument for open code legislation. , Code: And Other Laws Of Cyberspace, : Basic Books 1999. 3 Open code legislation One of the big issues of free software during 2001 was whether was for or against a codified GNU GPL. , did Stallman – the father of free software – propagate a law to support his beliefs? tried to press the issue in a couple of articles and seemed convinced that Stallman and his colleague were for GNU GPL legislation. OReilly suggested a system where developers themselves choose the rules under which they release software, not very much different from the system in effect today. wrote a satire to prove how wrong Stallman and Kuhn would be to suggest a GNU GPL law. posed Stallman and Kuhn the question whether they would get a law passed making proprietary licenses illegal if they could. Stallman and Kuhn leaned slightly towards the legis- lative point of view, but never gave a straight answer whether they were for or against a codified GNU GPL. Stallman and Kuhn wrote: We believe, though, that with time, as more and more users realize that code is law, and come to feel that they too deserve freedom, they will see the importance of the freedoms we stand for – just as more and more users have come to appreci- ate the practical value of the free software we have developed. As stated above, copyright law is often questioned. In an ar- ticle in Wired 1994, wrote that copyright was not designed to protect ideas or bits of information but only to protect ideas as expressed in fixed form. , according to copyright is dead in the digital age. Copyright was made to create an incentive for authors and scientists to create and explore and give them a guarantee that they would profit from their creations. A copyright system that is too strict in favour of the authors will work as a hinder and not an incentive for creativity. In the epilogue of his book Copyrights and copywrongs states that a looser copy- right system would produce more books, not fewer. Some might be excellent. Other might be crappy. Publishers and readers could sort out the difference for themselves. The law need not to skew the balance as it has.2 , Copyrights and Copywrongs, : New 4 Lagom copyright for computer programs In we have one word that I have yet to find anywhere else. The word is lagom and it defines the space between too much and too . Lagom could be translated into moderate or just right, it is the situation where the glass is not half-full or half-empty – it is lagom filled. We need lagom copyright for computer programs because computer programs are written in- crementally. That means that it is important to be able to reuse previously written code. , you need to be able to write the computer program without the original author being present in your project. The aforesaid is a strong argument for a codified GNU GPL, since one of the cornerstones of GNU GPL is the right to reuse previously written code. Further, examination of the code is important for interoperability. Interoperability means that computer programs should contain interchangeability, one should be able to substitute one computer program for another, and connectability, that is the ability of one computer program to function with another. debate on interoperability ended in 1991, when Union introduced a directive on the Legal Protection of Computer Programs. The directive exempts ideas underlying any element of a computer program, including its in- terfaces, from copyright protection. It also specifically permits disassembly of computer programs in order to achieve interop- erability. Transparency is therefore ensured, but without access to the source code of the computer program it would still be hard to disassemble and interpret the functions of the computer pro- grams. The GNU GPL wants to solve this by always forcing the developer to disclose and distribute his software. Would not a modern democratic society benefit from a plu- rality of irreconcilable and incompatible doctrines? We need the GNU GPL, but we also need proprietary software and open source software. That would make the case for GNU GPL legis- lation void. However, as concludes in his book Code, the code may in itself work against plurality. If we choose to believe Lessig we might want to reconsider regarding com- puter programs in the same way as literature. In his book The Future of Ideas Lessig suggests a reform of software copyright law forcing computer programmers to dis- close their source code when the copyright expires.3 Lessig would protect computer programs for a term of five years, re- , The Future of Ideas, : Copyright protection would in Lessigs proposal only be granted if the author put a copy of the source code in es- crow. The source code should be disclosed to each and everyone when the copyright expires, perhaps through a server with the U.S. That much said, Lessig is very reluctant to make open code a law. In The Future of Ideas, Lessig states that the government should encourage the development of open code. Such en- couragement should not be coercive. According to Lessig there is no reason to ban or punish proprietary providers. But this view is consistent with Lessigs view on the future of software copyright law. In Lessigs future system proprietary providers are severely punished. They lose about 100 years protection, which is life of the author plus seventy years compared to five plus five years and then full disclosure. Lessigs system is very similar to WIPOs proposed system of 1970 where copyright protection should be traded for putting the source code in escrow. However, development of copyright seems to have been founded on two principles: 1.more copyright (stronger IP laws) is good, 2.everyone should think 1, if only through harmonization. Lessigs ideas are not new from a European perspective, but they have revitalized copyright debate. In Europe, the debate over the copyright system has not been as intense as the US debate in the recent years. This is probably because the Euro- pean debate over copyright has been ongoing for the past century and the US debate is quite new. The focus of de- bate on intellectual property development concerns patents on life and software. patent system is influenced by the US patent system and more things can be patented in practice than the legislator intended. This creates an interesting situation where the strong European copyright is exported to the US and the strong US patent system is imported, thus creating stronger intellectual property rights in both the US and Europe respec- tively. The strong US patent was a consequence of the relatively weak copyright protection. Therefore the new legislation creates a situation where the intellectual property protection of computer programs is stronger than ever. But is it good for innovation, and how will it affect the societys need of transparency? In an article published in the , argues that any move towards more open code would be highly undesirable from societal point of view, as it would destroy the market-based incentive structure that cur- rently encourages software producers to develop code that con- sumers find attractive. By applying the utilitarian incentive the- ory and the Lockean labour-desert theory4, Strasser tries to ex- plain why the current copyright system is the best. Stallman and Moglen have yet to convince me that the GNU GPL and free software philosophy is the final answer to intellec- tual property protection of computer programs. However, I am not convinced that neither Strasser nor Lessig is right in their view of the software copyright. But I choose to believe Lessig when he states that code is law. The two fundamental principles of European copyright development do not address this issue. The code layer in the networks may in my opinion affect the freedom of speech at large. I do not think that copyright is dead in the sense told us in 1994. Copyright is still around, and even if its not effective in the digital age – as observed by Bar- low – the courts enforce copyright. Therefore, we need to find a new way to deal with copyright protection of computer pro- grams. Digital Millennium Copyright Act, the Infosoc EU directive (2001/29/EC) and prohibition on reversed engineer- ing is not the right way to develop copyright. We need more transparency, but still we need to consider the points raised by and . It is important that the incen- tives for larger businesses remain even if the code is more open through a change in the copyright law. If such a change is made, we need to consider the unique characteristics of computer pro- grams. We should not continue to compare computer programs to literary works. Books are not software. What we need is balance. What we need is lagom copy- right protection for computer programs. I guess you should take the main parts of the current patent and copyright system and catalyse these systems into the new lagom copyright directive. We need to start thinking about these issues soon if were not aiming to keep our grandchildren stuck with the current system for life. 5 Music and the threat of efficiency In the past, legislators have designated a private sphere in the life of each individual as unregulated. In your private sphere, you According to the labour-desert theory, natural resources were given to people by God and title may be lost or abandoned, but anyone might gain title to anything, even resources held in common, if one used labour to con- vert the natural resources into something useful. could do many things, as long as they concerned only yourself and maybe some friends. The private sphere was considered your home. You could exercise your fair use rights to copy music and papers for personal or academic use. The Internet tampers with this ancient tradition. Your means of communication are much more efficient than legislators could have foreseen when the copyright statutes were designed. Making a copy of something for your friends is com- pletely different in the Internet age. You can send the copy to a thousand of your friends with very effort at a very low cost. It is extremely efficient. Legislators did not want to regulate the private sphere and did not recognise a need for doing so. Ten years ago, when the Swedish Copyright Act was revised, this was still the position held by the legislators. They were aware of the common practice among friends of copying and distributing mix tapes of favourite songs. Swedish legislators reasoned that it was not a good thing to try to regulate the private sphere, since the legislation would be very hard to enforce. In regulation, one should try to refrain from creating rules that cannot be enforced, since they erode the populaces confidence and trust in the law as something logical and beneficial to society. But the digitalisation of copyright and the Internet have made it much easier to obtain control over and monitor copyright violation, even if such activities are conducted in the private sphere. In the mix tape example, there was a physical barrier pre- venting the communication from reaching efficiency, since dis- tributing the tapes en masse would be prohibitively expensive. When introduced the copier in 1959, several smaller print- ing houses were forced to close. In 1966, introduced the Telecopier (now known as the fax ). made copy- ing possible over the physical barrier of distance, but it was still possible to make money on printed works. The improved means of communication and distribution of information represented by the copier and fax did not put all journalists and writers out of work, and neither was prohibited. Still, it looks like the musical equivalent of these – and its followers – will be prohibited or at least sued out of busi- ness. Some intermediaries will die because of the new technol- ogy, just like the smaller printing houses died out when the cop- ier was invented. But is this really an argument for prohibiting technical progress as such? So, what is the proper balance between the music industrys wishes and the sanctity of your personal sphere? will copyright holders and record companies allow us to commu- nicate with each other? For the record, I do not think that music should be free as in free beer. But I do think we need compulsory licensing to stimulate creativity and innovation. Music would then be free as in free speech (but that is another story). It is important that the legisla- tors – and the courts – give users the freedom and the right to a private sphere. Even though enforcement and control of the pri- vate sphere could increase with new technology, I do not want record companies and Microsoft to become a private alternative to the Orwellian surveillance state. Stay away from my hard drive. And let me communicate in the most sophisticated and efficient way available, even if it means that you risk losing money from my possible contributory or direct copyright in- fringement. To ensure that the record companies still obtain revenues, it is important that the developers in the post-Napster era create commercial alternatives to the user-driven free beer networks. With the right commercial package, I am certain that record companies and artists can find a future in the post-Napster era without monitoring everything in the private sphere. After all, the fact that the record companies would stay away from my hard drive wouldn't mean that they waive all rights to digital music. 7 The future of intellectual property Communication is important, and no matter what your favourite lobbyist and favourite lawyer tell you, technical progress and in- novation should not be sacrificed on the altar of copyright. We need a balance between users and authors where character in Antitrust has good incentives to innovate, but where society at large is not too restricted due to previous in- novations. We also need a copyright commons where innovators may innovate and create without having to call their lawyer be- fore they strike a chord on the guitar. All this may sound easy to agree upon in theory, but in prac- tice these propositions raise a lot of important questions. What should you do with current intellectual property proprietors? How will you keep incentives for very costly types of innova- tions, like drugs, computer programs and big screen movies? In theory, it is easy to stifle innovation through limiting copyright protection, regardless of area. In practice, it is more complicated as the case for lagom copyright illustrates. The conversation continues. Children and Internet Trade When children surf the Internet they often visit web sites belong- ing to big companies with a profile directed towards children. There they enjoy games or other interactive activities. Other web sites could also be of interest, depending on the age and the par- ticular interests of the child concerned. However, there are many concerns as to what children meet out there in cyber space. Thus, childrens safety has been ad- dressed, not only in the Swedish governmental report SOU 1999:106 (The Consumers and IT), which has not yet led to legislation, but also in soft law created by the Nordic Consumer Ombudsmen and the International Chamber of Commerce (ICC). The protection of children in relation to their use of IT has also attracted the interest of Union, which has addressed these matters mainly through soft law. It might be of interest to take a general look, through the medium of this soft law, at the IT problems which children encounter, but also at some of the pos- sible solutions. A number of issues appear as possible dangers to children. One first issue concerns the movement as such of children on the Internet. The problems include such questions as whether chil- dren should be allowed to access the web in the first place, and what role their parents should play. A second issue is whether children should only be protected from advertising which targets them or whether there should be some sort of protection in other situations as well. This in turn begs two more questions, viz at what age such protection should be afforded and, secondly, the relevant level of the protection planned or afforded. A third issue concerns the childs conclusion of contract and a fourth issue, fi- nally, concerns various privacy aspects. Before going any further into these issues, let us briefly re- view the general arguments in connection with children. is associate professor and lecturer in private law at the Her publications include works on liq- uidated damages, remedies for breach of contract and a number of consumer related topics. She is also director for the research program "Children as ac- tive parties. the prime source on this subject is the UN Convention on the Rights of the Child (UNCRC, in the following the Child Con- vention), passed in 1989. That convention includes a number of important rules such as the principle of non-discrimination, the best interests of the child, and participation of children in differ- ent decisions affecting them. The convention also includes a number of political and social rights. There appear to be no rules directly relating to children as consumers. The existence of the Child Convention also raises questions about the child itself and its relationship with its parents. 2 General remarks on the child and its relationship with its parents As has already been remarked, the protection of children includes a number of issues. The first question that could be discussed is who the relevant child is. This depends on the legislation in ques- tion. Article 1 of the Child Convention refers to every human being below the age of eighteen unless under the law applicable to the child, majority is attained earlier. The age of 18 also ap- plies under Swedish law, although a child of 16 may dispose freely of his/her income from employment. Hopefully, however, children do not stand alone. The Child Convention requires the parents have to take care of the child in accordance with the principle of the childs best interests. This means that the parents have the main responsibility for the up- bringing of the child, taking into consideration the childs age, maturity and development. Step by step the child should be pre- pared for adult life through decision-making and respect for its views. In this connection mention should also be made of Article 12 of the Child Convention, concerning the right of the child to be heard. That provision is considered to include a general re- quirement as to childrens rights to influence and responsibility. One problem of fundamental importance facing the legisla- tor or rule maker is to what extent parents should be responsible for rulemaking and the protection of children. One extreme view is not to regulate these questions at all but to leave everything to the parents. Another is to put the whole protection of the child in legislation or soft law. Normally the solutions actually adopted will be somewhere in between, but it is important to recognise the scale, and there are differences. Thus, in Swedish law chil- dren may not conclude any contract before the age of 16 without parental (or equivalent) consent. In other countries children may conclude necessary contracts. Another problem related to the child/parent relationship is the picture of the parents in advertising material of different kinds. This problem has also appeared in relation to TV- advertising and Article 16 of the Television-without-Frontiers Directive1 thus provides that, as the aim of the rule is that TV ad- vertising should not cause moral or physical detriment to minors, it should not encourage minors to nag parents or others, nor should it exploit the special trust between parents and children. In the soft law regarding children and the Internet, this is not found to be a great problem as yet. However, there are rules to prevent traders in their relation with the child from undermining the rela- tionship and the trust between child and parent.