INTERVIEW:
Question 1
With regard to Internet there are some legal aspects that need to be covered, one of these
may be the responsibility of the providers but there are others. What can you say about
this?.
Answer
There are of course many important Internet-related legal issues to discuss. One
of the important issues that I'm working on right now in the Netherlands is the liability
of the Internet service providers, the organisation that gives access to the users of
Internet and liability for copyright infringement or for other legal infringements. And
that's a very interesting question because what we can observe is that the Internet
service providers are really caught between two classic dilemmas, the dilemma of playing
the role of the telephone operator sending messages through the network without being
interested in content and therefore not being liable on the one hand and the role of the
traditional publisher who is responsible for content and responsible for infringements on
the other hand. And what I have seen is that Internet service providers don't really know
what role to choose. One day they play the role of the publisher selecting interesting
content and putting that on the net and the other day they take the position of being the
telecom operator and denying all responsibility.The case I'm particularly interested in is
in terms of the Church of Scientology, a big American semi-religious organisation, which
in fact is a commercial organisation, claims copyright in documents that are being
distributed through the Internet by different individual users who are providers of an
Internet service. The Internet service is called Access for All. It is Amsterdam based and
is being sued by Scientology because according to Scientology it infringes theircopyright
in these documents. What are these documents? These are documents that have a secret
status within the Church of Scientology. They explain the genesis story of scientology and
Scientology doesn't want these documents to be publicly available. So they would prefer
that individual Scientology customers first pay a lot of money before being allowed to
view them. Question: Is Access for All responsible for copyright infringement or is it
only the individual subscriber putting these documents on their home pages that are
responsible? According to Scientology, Access for All could be responsible. The question
is: Is Access for All, the service provider, responsible for copyright infringement by the
fact that these individual users distribute these documents or can Access for All say, Our
policy is providing access for everybody, but our role in society is to foster and
facilitate the free flow of information on the Internet. And that's a big dilemma. A
couple of weeks ago, Scientology managed to convince the judge in Amsterdam that in effect
the Internet service provider does infringe these rights and they impounded the computers
of the Internet service provider. So the Internet service provider was held responsible.
But, I think, that was an incorrect decision.
Question 2
The digital world is also the convergence of different media, which once were separate and
were also related to different objects like paper, plastic and so on. Now with the
convergence of media there is also a proliferation of rights. What can you say about this?
Answer
I don't believe that the new digital environment entails the risk that intellectual
property rights proliferate to such an extent that individual user freedoms, freedom of
information, freedom of access to information, are at risk. Let me give an example. The
essence of copyright is the right to copy, the right of reproduction; that is an exclusive
right. The reproduction right traditionally was linked to the material copies of the work,
books, records, etc. In the new environment some argue that reproduction also includes all
sorts of temporary intermediate storage of works while they pass through the net to the
individual user. What that means is, if this view is correct and if you put on your
computer, start your computer, and have access to a work, you're already infringing
copyright; you are in fact using a work and then infringing the reproduction rights. That
in my view is carrying the copyright law at least one step too far. Traditionally,
copyright never protected against acts of use, against acts of reception; reading a book,
watching the screen, watching TV. In the new environment they risk including acts of
access to information.
Question 3
The digital world is also a way of creating new issues, new problems, new products that
need to be addressed by the legal world. Do you think that the legal world will be able to
keep up to speed with the fast changing digital world?
Answer
This is a crucial question: whether the legislator either on the national or on the
international level can keep up with technological change. I think it depends on what
ambition the legislator has, what approach he takes. If he tries to follow immediately in
the footsteps of technology and tries to create new technology-specific rights every time
a new technology emerges, he will always lose that race. The legislator will never be able
to keep up with technology. An example, there are now legislators on the national and
European level who want to create digital and transmission rights specific to digital
transmission through the Internet. I think that is a big mistake. That is not the approach
we should take. In fact that approach means that every 2 or 3 years we will have to revise
the law to create a new right again or change exisitng rights. What we is need is an
abstract, more global approach for the rights and interests that really are stake and are
not linked to specific technologies, but general telecommunications.
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