Nathalie TissotLa protection juridique du contenu des autoroutes de l’information

Nathalie Tissot, La protection juridique du contenu des autoroutes de l’information, in: Reto Hilty (ed.), Information Highway, pp. 199–234 (Berne/Munich 1996).

Background

The book «Information Highway», edited by Reto M. Hilty, includes various texts on legal and technical questions of the information highway. This voluminous book contains 692 pages and was published in 1996 (at the time of infancy of the Internet). According to Hilty’s introductory words the information highway transports various content all over the world, also beyond national borders. From a legal point of view, this fact might be critical with regard to uncontrolled operations that are subject to the approval or the processing of sensible personal data. Therefore, Hilty asks the cynical question of whether the information highway leads to a «farce» of the applicable law.

This question is addressed by leading scientists and practitioners in the book. It is divided into (i) constitutional and communications law; (ii) business and property rights law; (iii) right of personality and data protection; (iv) contract and liability law; (v) criminal law, conflict of laws and procedural law. Nathalie Tissot’s text analyses «La protection juridique du contenu des autoroutes de l’information» (translated: «The legal protection of the information highway content») and is part of the chapter «business and property rights law».

Nathalie Tissot is an extraordinarius law professor of intellectual property law, promotion and possession of intellectual property and innovation at the University of Neuchâtel. She has published various articles and book chapters in the field of intellectual property law.

Summary

Tissot’s text starts with the statement that there is almost no day without new technical or social developments with respect to mass media and the information highway; the creation of an information society can be seen as one of the new «hot topics». In this context, corresponding legal questions arise. Tissot differs between author rights and related property rights on the one hand and competition law on the other hand. Furthermore, Tissot analyses the fact of so-called «unprotected content» on the information highway.

In the next section, Tissot analyses the protection of authors’ rights. She describes the definition of works (article 2 of the Federal Act on Copyright and Related Rights) and examines the «multimedia works». Regarding these multimedia works, Tissot emphasises the nature of this specific work type and underlines her appreciation with regard to the applicable legal provisions. In addition, she discusses the problems of new creations and derivative works causing particular challenges in case of cross-border circumstances due to the territoriality principle that applies in intellectual property law.

Furthermore, Tissot deals with the protection of related property rights on the information highway. A specific aspect of the text concerns the delimitation of the scope of author rights and related property rights; in principle, the protection of related property rights should not reach wider than the author’s rights.

In addition, Tissot describes the protection of databases stating that authors’ rights can be based on article 4 para. 1 of the Federal Act on Copyright and Related Rights. Subsequently, she discusses the question whether a sui generis protection should apply to databases. Thereby, she refers to the legal framework in the European Union and examines specific characteristics of such a protection. With regard to the protection of databases, Tissot also analyses to the legal provisions of unfair competition law and attempts to define contractual solutions.

Finally, Tissot concludes with the observation that the evolution of information techniques does not lead to a situation where the given legal framework becomes obsolete. However, in the future, authors’ rights and the related property rights need to be adapted to the new developments such as multimedia works or samplings.

The topics discussed by Tissot in 1996 (as in the book «Information Highway» generally) can be seen as a starting point for the legal deliberations about the information society. The fast developments in information techniques still challenge – probably even more than in 1996 – the relevant legal framework in Switzerland as well as in the European Union.

Text

You can find a scan (PDF) of the original text here: Tissot – Protection juridique.