Page:The digital public domain.pdf/84

Rh licenses by creators operating along the short route shows that out there, in the digital prairies and wilderness, there is a very large number indeed of creators who prefer to reserve only some rights rather than all rights; and that the time has come for legal systems to recognize this by creating a regime in which downstream freedom is the rule and a system under which creators may have the option to reserve some rights or, if they like, all the old Copyright 1.0 rights.

4. The new international framework and the role of the European Union

Of course, to go this way, one would have to change hundreds of laws and a few international conventions (including Berne and TRIPs). I do not know that this is an impossibility. I am among those who, at the beginning of the digital age, insisted that it was too early to legislate. However, I believe that the time has now come, and that the EU should take the lead in this regard, for a variety of reasons. First, because it has the legitimacy and the prestige to do it. The same states which are currently EU member states coincide to a large extent with the ones that originally conceived and put in place the Berne Convention; today they still have the cultural and international prestige required to take the initiative to adapt Berne to the digital environment. Taking up Copyright 2.0 is in the long-term interest not only of our society and of our culture but also of our economy. To argue the case in a detailed and comprehensive way, one would need multiple interdisciplinary volumes rather than this short essay. Let me therefore confine myself to two short — and admittedly a bit too assertive — points.

In the last three decades, much of IP policy in the developed world has turned around the idea that ratcheting up protection of IPRs is a good idea because it protects by strong property rights assets that typically belong to US and EU right-holders. The other idea is to expand enforcement standards abroad, with a view to boosting revenue generated by exports of IP-protected goods or by inflows of royalties dutifully paid by foreign users. This approach has been put at the basis of the Uruguay Round