| 'Self-regulation must have statutory backing, as its aim is to solve problems of liability.'
|
 |
|
|
The theme of this debate is whether self-regulation can be applied as one of the methods in the arsenal of copyright protection.
|
This theme makes clear that the discussion does not concern whether self-regulation can replace statutory copyright, but 'only' if it can assist in achieving some of the positive goals of copyright.
|
This is important, because it reduces the importance of considering fundamental rights, as this issue in my opinion presupposes that it is the use of copyright as such which is discussed. This subject is far beyond the topics that are raised by the Ecommerce Directive  , which forms the background for my remarks.
|
Copyright and other parts of intellectual property law have been applied in the digital world to an extent which many feel is too far-reaching. Taking into account that copyright originally - in the Statute of Anne - had as a main purpose the protection of freedom of expression, the current legal policy situation is somewhat paradoxical.
|
However, the notion that copyright can be substituted by other kinds of regulation does not seem realistic. The general idea that those who create or develop forms of expression (works) should be enumerated, and that this is necessary for constant innovation, is still sound. Such works must be legally protected in a reasonable way.
|
With this background I will briefly consider whether a situation such as the one established by article 14 of the Ecommerce Directive should be addressed by statutory law or self-regulation.
|
It is in this connection important to take into account that the relationship between rightholders, ISPs, content providers and end users is of an international nature and cannot be solved merely in national law. The internet transcends national law, and a European statutory solution must therefore take the form of a binding European Union directive - the development of such a instrument is not simple.
|
The ideal self-regulation is brought about through discussions between all interested parties, representing a balanced solution. But it is not evident who can represent the content providers and the end users. However, if this problem is solved, self-regulation in the form of a code of conduct can be an expedient kind of regulation, especially as it will be well adjusted to the practical realities of online diffusion of information.
|
But self-regulation cannot stand alone. It must have statutory backing, as its aim is to solve problems of liability. If a third party is given a role implying, for example, reduced or no liability for ISPs, this must have government/statutory backing. A possible solution to copyright-oriented conflicts is accordingly self-regulation on a statutory basis. Such solutions which, for constitutional reasons, in most countries only function as an alternative to the courts, are or can be better than merely statute, as they can be more balanced than traditional legal instruments.
|
Many specific problems will have to be addressed - but as a starting point it is reasonable to include the option of self-regulation.
|
Peter Blume is chair of the Northern Europe RightsWatch Working Group, and is professor of law at the University of Copenhagen.
|
