The Law of On-line and Off-line Publishing
Riassunto
Introduction - 1. The Definition of the Terms 'On-line' and 'Off-line Publishing' - 1.1. The Definition of the Terni 'On-line Pitblisbing' by Reference to the Definition of the Term 'Electronic Publisblng' in the U.S. Telecommunications Act of 1996 - 1.2. The Definition of the Term 'Off-line Publishing' - 1.3. Advantages and Disadvantages of On-line. and Off-line Publishing witb Regard to Tradltional Publishing - 2. The Infrastructure of On-line Publishing - 2.1. Telecommunications - 2.2. Interactive Computer Services - 2.3. The Internet - 3. State Regulatton in thè Market of on-line and Off-Line publishing - 3.1. Regulations conceming thè Media and On~line Publishing - 3.1.1. Merger and Monopoly Control - 3.1.2. The Appliaxbility of the Rules concerning Broadcasting - 3.1.3. Regulation through Licensing or Notification - 3.1.4. Cross Media Ownership Reguldtions - 3.1.5. Reform of the State Treaty concerning Broadcasting in Germany? - 3.1.6. Towards a German State Treaty concerning On-line Publhhing - 3.1.7. The Role of the European Communlty - 3.2. The Regulation of the Press and Electronic Publishing - 3.3. Price-flxlng of CD-ROMs - 4. Copyright Issues of On-line and Off-line Publishing - 4.1. the Creation of Works - 4.1.1. Derivative Works - 4.1.2. Composite Works - 4.1.3. Collettive Works - 4.2. Rights in Pre-existing Works - 4.2.1. New Types of Expoitation of Works - 4.2.2. Copyright Management - 4.3. Rights Arising from the Production of Works - 4.3.1. Moral Rights of Autbors and Interactivity - 4.3.2. Exclusive Rigbts Conferred by Copyright - 4.4. Copyright Infringement by On-line Publishers - 4.5. Transborder Communications - 4.6. Enforcement of Copyright - 5. Protection of On-line and Off-line Publishing by Special Laws concerning databases and unfair competition - 5.1. Protection for Databases - 5.2. Protection against Acts Constitutmg Unfair Competition - 6. Developments in the Law Relating to On-line and Off-line publishing - 6.1. The Report of the u.s. Information Infrastructure Task Force's Working Group on Intellectual Property Rights: Intellectual Property and the National Information Infrastructure' of September 1995 - 6.2. The European Commission's Green Paper concerning 'Copyright and Related Rlghts in the Information Society of ' Jtily 1995 - 6.3. wipo (the World Intellectual Property Organisation) and the Berne Convention - 6.4. The GATT and TRiPs Agreement. - 6.5. the Electronic Librarie Project 'Biblioteca universalis^ of the G7 Group. - 7. Ethical Limitations of On-line Publishing - 7.1. Defamation - 7.2. Obscenity, Sex Discriminatlon and Racial Hatred - 7.3. Technical Possibilities to Limit the Communication of Offensive Material - 8. Liability Relating to On-line and Off-line Publishing - 8.1. The Schernes of Liability in Traditional Publishing and Broadcasting - 8.1.1. Rigbts of the Victim of a Defamation - 8.1.2. Damages - 8.2. The Liability of the Providers of Basic Services, of On-line Services and of Coment Providers - 8.2.1. The U.S. Policy concernlng the Internet and Interactive Computer Services - 8.2.2. Regulation of the Internet - 8.2.3. Conclusions - 8.3. Evidence Relating to Criminal and Civil Law Liability in On-line and Off-line - 8.3.1. Criminal Law - 8.3.2. Civil Law - 9. Data Protection - the data protection directive 95/46/ec - 10. Advertising and Trade Marks in On-line Publishing - 10.1. Self Regulation of Advertising - 10.2. On-llne Advertising and the Directive 'Television witkout Frontiers', 89/552/eec - 10.3. Trade Marks and On-line Publishing - 11. Security of Communications On-line - 11.1. Encryption - 11.1.1. The Admissibility of Encryption - 11.1.2. Licensing and Probibition of Encryption - 11.1.3. International Regulations concerning Encryption - 11.2. Digital Signatures - 11.3. Passwords - 11.4. Technical Equipment - 12. Schemes for Remuneratici in on-line and off-line Publishing - 12.1. Rental of Works - 12.2. Contracts
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Riassunto
The Law of On-line and Off-line Publishing
The arride in based on a seminar wich die audior gave for the Rai on 12 march 1996. ta Attorney al law, Munich, professor at the European Consorthim for Audiovisual Training, Rome. Introduction Will the technology of the commumcation of digitally stored data via Interactive computer services render obsolete the traditlonal publishing on paper? It would suffice to store the coment of any book, journal, newspaper, image, sound, music, film or audiovisual work in a single database which is connected io a worldwide network of interactive computer services to permit any person in the world who can use these services to retrieve, download, copy or print out the work. Thus the corporeal circulation of journals and books could be replaced by the lnclusion of this matenal in a database where it could be stored in digitai form and transmitted to the reader's techmcally sophisticated computer or television screen. The law of electronic pubiishing has not generated a particular discipline. li is ratlier the need to comprehend the developing technology in legai terms which determlnes the classification of on-line and off-Sine publishing within the hierarchy of legai rules. Since this technology and also lts exploitation are global, the traditional method of the legai science according to whlch facts are analysed in relation to a national legai system may not yield satisfactory results. What is needed is the creative thought, developed upon a comparison of problems which arise in different nationai legai systems. This idea underlies also the Green Paper 'Copyright and Related Rigiits in the Information Society', presented by the Commission of the European Communities. In this paper the Commission repeatedly pointed out that different national regulations, in particular m the field of copyright, may negatively affect the establishment of an efficient information infrastructure in the Community's internai market1. Whereas the development of these infrastructures 'will mean economie growth, jobs and exports for ali economies to the benefit of authors, producers and performers' which the European Union intends to boost with its programme INFO 20002, differences in natlonal legislations may create barners to the achievement of this arni. It is diffidili to foresee the legai implications of the use of a technology at a time when this technology is in its infancy. The purpose of this article is thus confined co indicate the areas where problems may arise, by reference to cases which have arisen in different natlonal legai systems and to suggest solutions which permit the avoidance of a misallocation of resources. 1. The Definition of the Terms 'On-line' and 'Off-line Publishing' The new technologies for the communication of digitised data may roughly be described as 'on-line' and 'off-line' publishing. Whereas traditional publishing means the communication of information printed on paper, the new technologies permit the paperless communication of information on television or computer screens, but they may also permit the making of print-outs of the information by means of a printer which is attached to the computer or the copying of the data to a coporeal carrier. 1.1. The Definition of the Terni 'On-line Pitblisbing' by Reference to the Definition of the Term 'Electronic Publisblng' in the U.S. Telecommunications Act of 1996 The legai order has not yet developed a unanimous definition of the term 'on-line publishing'. The u.s. Telecommunications Act of 1996 contains the following definition in Section 274, 'Electronic Publishing By Bell Operating Companies', subsection (h)3: 'Definition of Electronic Publishing 1) In general - The terni 'electronic publishing' means the disserrunadon, provision, pubticadon, or sale io an unafflliated entity or person, of any one or more of the following: news {including sports); entertainment (other than Interactive games); business, fmandai, legai, consumer, or credit materiata; editorials, columns, or features; advertising; photos or lmages; archiva! or research material; legai notices or public records; scientific, educaùonal, instructional, technical, professional, trade, or other literary raatenals; or other like or sinular Information. 2) Exceptions - The term 'electronic pubhshing' shall not include the following services: a) Information access, as that term is deflned by che modlfication of final judgment. b) The transmission of information as a common carrier. e) The transmission .of Information as part of a gateway to an informadon service that does not invoive die generation or alteradon of die content of information, including data transmission, address translation, protocol conversion, billing management, introduetory information content, and navigational systems that enable users to access electronic publishing services, which do not affect the presentation of such electr...
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