Towards the Pay-Per-Use Society

The impact of new technologies on the protection of fundamental rights and the "overkill" of information available on the web which is not always qualified, play a crucial role in determining the high level of complexities found in contemporary society.

The paper, Copyright, Anti-Circumvention Technologies and Freedom of Speech, written with Enrico Bonadio (The City Law School, London), aims to explore this last aspect and concentrate on the impact which the induction of so-called technological protection measures - which serve to avoid evasion of regulations which protect copyrights on the web - has on the freedom of artistic and cultural manifestation and expression which are constitutional rights guaranteed offline as well as online. To put it another way, the question we asked ourselves was this: if a technological device keeps a navigator from, for example, having any access to musical or photographic content on the internet, will this kind of mechanism have a negative impact on freedom of expression and artistic and cultural creation?The answer to that question threatens to be affirmative if one takes into consideration two elements which are often dangerously ignored.The first is to never forget that "freedom of speech" may also be based on the possibility that the copyright holder was able to access, study and gain inspiration from third party works that are protected by copyright, (a concept far from plagiarism). In this sense, freedom of expression may often be manifested in the creation of works which in some way are connected to previous manifestations of art or culture.Now it follows that in this scenario, in order to produce "down-stream creations" one must have the necessary condition of being able to learn about, and therefore have access to, "up-stream creations". If this access is denied, the risk is to appreciably reduce the probabilities that new forms of expressions may emerge, with a serious detriment not only to the rights protected by the constitutions of all Western democracies, but also to the vitality of contemporary societies' cultural soul.The second element which we want to highlight is no less important and is related to the nature of technological protection measures for copyright protection. These tools, a kind of "digital burglar alarm" which go to work when an act of piracy occurs on the web, seem to have been concocted in order to generate alarm (and alarmism) even when there is no burglar... In other words, these mechanisms seem to go beyond protecting the legal system's interest in preventing illegitimate "copying" of copyright-protected material, and actually end up denying any access to other peoples' work even if the aim for accessing a given work is for preliminary study and not copying. This aim is indispensable to freedom of expression and artistic and cultural undertakings. We're not talking about a technical problem which is relevant only to experts. On the contrary. This is a crucial issue which regards each one of us, whether we like it or not, because we are citizens of this information society. In such a society, the nature of copyright protection seems to have evolved (or rather, become more complex) from preserving the right to preventing illegitimate copies of one's work, to something which is quite different: controlling access to the contents of protected works, regardless of the nature and aim of that access. In such a situation, the great and inevitable risk is that this becomes a "pay per use" society which is worlds apart from the characteristics of sharing knowledge which lie at the foundation of an information society.