It has become commonplace to say that copyright is currently experiencing a crisis of ineffectiveness in the digital environment, in the face of which legislators, both French and European, are having difficulty in finding effectual solutions despite the deployment of an increasingly repressive arsenal.
Rather than wade into the debate between the defendants and opponents of copyright, this course aims to question the notions that underlie intellectual property (the work, the author, the originality) and to define to what extent the upheavals generated by the digital universe are tending to reshape them. Founded on the assumption of individual authorship, copyright becomes an epistemological obstacle that prevents acceptance of the collective dimension of digital creation.
Following this conceptual clarification, it will be interesting to re-examine some of the more important legal cases that have been widely talked about during the last few years, like the multiple lawsuits provoked by the Google Book Search project. A veritable attack on the classic conception of copyright, this scheme of mass digitisation has revealed some of the most glaring weaknesses in the system of intellectual property (orphan works, out of print titles).
The innovations introduced by networks and social media are also causing upsets to the classic notion of copyright. Although there are no legal gaps in copyright’s theoretical coverage, more and more “blind spots” are being revealed, in which practices are emerging that are “illegible” viewed through the prism of copyright.
In digital publishing, contention between authors and publishers is rising on account of the difficulty of drawing up a contractual framework suited to the requirements of the digital world. Do we have to reinvent the publishing contract for digital books? This question arouses a wide range of responses, some of which are occasionally difficult to reconcile with others. But innovative reformulations of the “publishing agreement” are seeing the light of day and deserve to be analysed.
Copyright sometimes appears to have developed sluggish characteristics in its genetic makeup that prevent it from evolving at the speed of new practices. Nevertheless, it cannot be denied that major advances are taking place, particularly with regard to open-source licences and Copyleft, while remaining anchored in copyright.
Perhaps it is there that we should be looking for a new approach to radically reform intellectual property, to create a Copyright 2.0, which for the moment remains difficult to formulate.
Lionel Maurel is a jurist by training and a librarian at the Bibliothèque nationale de France. The author of the blog S.I.Lex under the pseudonym Calimaq, he takes an interest in all questions relating to the law and information sciences, in particular the evolution of intellectual property rights in the digital domain. He is a member of the Information Law Committee at ADBS (Association des professionnels de l’information et de la documentation) and has the role of legal expert at IABD (Interassociation Archives Bibliothèques Documentation). He also lectures on these subjects at ENSIBB, Mediadix and CNFPT.