Realigning Economic Rights With Exploitation of Works
Résumé
Economic rights in copyright have lost their meaning and their efficiency. Reduced to technical notions, the right of reproduction and the right of communication to the public are today applied to uses that seem harmless or ancillary, and fail to ensure the legitimate control by authors of the exploitation of their works. This paper proposes to reconstruct economic rights in copyright around the notion of exploitation, defined as the circulation of works in the public sphere. Firstly, it argues that the notion of exploitation used to be the guiding principle of the rights of reproduction and communication, that were only means to help such exploitation. A second part explores the increasing disconnection between economic rights and actual exploitation. In order to counter such disconnection, I propose replacing the current system by a broad and unique right of exploitation, related to the function of copyright, which is to grant to authors control over the public circulation of their works. Three types of exploitation of works, that each aims at transmitting the work, as a communicative act, to the public sphere, could constitute new anchor points for acts of use to be considered as entering the exclusive reservation of authors: (1) the provision of copies to the public for a permanent use, (2) the provision of access to or experiences of the work, and (3) the making of derivative works. Any use of a work, currently existing or to be developed, that would fall under one of these forms of exploitation could be controlled by the copyright owners or be compensated for. Personal uses, technical copies and mere uses of the informational content of the work should remain free.
Copyright should be about giving authors enough protection and autonomy to enable them to make that circulation possible in the first place and to give them some control over the dissemination of their works, while recognizing and encouraging public discussion and enjoyment of creation by the public. The realm of exclusivity copyright confers should be conceived as a set of entitlements to enjoy the value of the work, some reserved to authors, others offered to the public, seen equally as recipients, readers and follow-on creators, as a system distributing the enjoyment of creation and circulating it to enhance its protection.