ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
2018
№
4
♦
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
26
2.
Белицкая
А
.
В
.
Государственно
-
частное
парт
-
нерство
:
понятие
,
содержание
,
правовое
регулирова
-
ние
:
автореф
.
дис
....
канд
.
юрид
.
наук
. –
М
.,: 2011. –24
с
.
3.
Дерябина
М
.
А
.
Государственно
-
частное
парт
-
нёрство
:
теория
и
практика
//
Институт
экономики
РАН
.
Экономический
портал
.
http://institutiones.com/general/1079gosudarstvenno-
chastnoe-partnerstvo.htm
4.
Айрапетян
М
.
С
.
Зарубежный
опыт
использова
-
ния
государственно
-
частного
партнерства
//
Государ
-
ственная
власть
и
местное
самоуправление
. 2009. –
№
2. – 36
с
.
A. Ismanjanov,
Senior Lecturer at Westminster International Uni-
versity in Tashkent (WIUT), Commercial Law Department,
Ph.D. in Law
BALANCING THE LEGAL INTERESTS OF THE
AUTHORS, PUBLISHERS AND THE USERS ONLINE
Annotation:
The law in general and intellectual prop-
erty law in particular, endeavored to foster the innovations
under the protection of author’s property rights. However,
with every innovation which facilitated copying and shar-
ing, the law has never given a full monopoly to the authors
based on a social utility, which benefitted the users and
the industry, evidenced in radio and cable television. Con-
cerning the internet, while following the same approach in
Google Books, the law, however, rejected Peer-to-Peer
networks, although the distinguished models of conveying
the content. Allegedly, the balance can also be stroked in
there with the technology offering a solution to securing
the interests of authors, by the model of the YouTube
Content ID system.
Keywords
: copyrights, property rights of authors, cop-
yright sharing, compulsory license, peer-to-peer networks
Аннотация
:
Закон
в
целом
,
и
законодательство
об
интеллектуальной
собственности
в
частности
,
направ
-
лены
на
содействие
инновациям
,
при
защите
имуще
-
ственных
права
авторов
.
Однако
с
каждым
нововведе
-
нием
,
которое
способствовало
копированию
,
никогда
не
давало
полной
монополии
авторам
,
основанным
на
социальной
утилитарности
,
которая
принесла
пользу
пользователям
и
индустрии
,
о
чем
свидетельствует
радио
и
кабельное
телевидение
.
Что
касается
Интер
-
нета
,
то
,
следуя
такому
же
подходу
по
отношению
к
Книгам
,
закон
,
однако
,
отклонил
сети
Peer-to-
Peer,
хотя
и
выдающиеся
модели
передачи
контента
.
Как
утверждается
,
баланс
также
можно
установить
с
помощью
технологии
,
предлагающей
решение
для
защиты
интересов
авторов
,
по
модели
системы
YouTube Content ID.
Ключевые
слова
:
авторское
право
,
имуществен
-
ные
права
авторов
,
обмен
объектами
авторских
прав
,
принудительная
лицензия
, Peer-to-Peer
сети
In contrast with publishing where the author is entitled
to the compensation, the law governing recordings gives
recording artists less. And thus by Lawrence Lessig, in
effect, the law subsidizes
the recording industry through a
kind of piracy-by giving recording artists a weaker right
than it otherwise gives creative authors. Where the benefi-
ciaries of this reduced control are the recording industry
and users which gives them broader access that they oth-
erwise could not afford [1, p.57]. The recording industry
has supported statutory license for records, and compul-
sory license was justified by required access of the per-
formers to music resulted in the adoption of 1909 compul-
sory license as a deliberate antimonopoly instrument. Les-
sig calls this limitation of the rights of musicians as partial-
ly pirating of their creative work in favor of record of pro-
ducers and the public.
The electronic media are required to pay copyright
holders for the music in programming, continuity, and
commercials. Cable television pays royalties under the
compulsory license to the CRT for the programs it trans-
mits. Broadcasters and cable operators also pay a license
fee to the three major music performing-rights organiza-
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
2018
№
4
♦
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
27
tions - ASCAP, BMI, and SESAC. Digital music services
must pay royalties to Sound Exchange. The Copyright
Office also requires Internet broadcasters to pay royalties
to record companies for music streamed on the Web [2,
p.208].
What Lessig call type C sharing of users from users
from the conventional point of law is not a violation and
can be associated with taking the book in the library or
giving it to read to the friend as a person not having paid
for that. However due to the nature of the internet when
music is shared and sender retains the copy is competing
with the original owner without competing the market ena-
bled through the cooperative sharing [1, p.72]. Expansion
of copyright has been made against the fears of authors
and content providers for their works on the Internet, alt-
hough it is questionable whether Internet reduced financial
returns of authors as it may be doubtful whether Napster
user would buy a hard copy of the music in the absence of
p2p network [3, p.258]. Although Lessig notes that it would
be good for the author to have something from this trade
[1, p.72].
There are some of the examples where this point of
ensuring the compensation was enabled in the instrument
in use. German authors’ collecting society (GEMA) suc-
cessfully claimed against the producer of the tape record-
ers reasoning that the right to make private copying is in
the competence of authors along with the right to remu-
neration for the exploitation of their works. Since the invok-
ing duty on users was encountered an opposition of Ger-
man courts for violation of the user’s privacy, the case was
ended up with imposition of levies on selling hope-taping
equipment by German copyright law [4, p.55].
The tech-
nology at the edge of progress can facilitate copyright in-
fringement, may also ensure compensation for creators as
it was implemented in YouTube Content ID system, how-
ever with inherent methods that differ from the legal as
diverting the profit in the case of infringement.
The course taken in tackling unauthorized electronic
copying through the technological measures by access
restriction in UK Digital Economy Act 2010 (DEA) was
criticised as largely disproportionate and against the user's
consent [5]. DEA question of user’s privacy applying sus-
pension or blocking measures by ISPs was decided in
favor of right holders [6].
DEA 2017 enacted in 27 April
2017 have essential communication-related components
as ‘Universal Service Obligation’ providing users the rights
to request minimum 10 Mbps effective 2020 with compen-
sation scheme if not met, placing the cap on spending of
subscribers of internet telephony and increasing penalties
for nuisance calls. DEA is placing much stress on prevent-
ing adult content tackled by filtering and blocking websites
providing that content through the ISPs and prevention
involvement of underage through the age verification. The
intellectual property is under concise Part 4, extended
public lending rights to lend eBooks remotely, amended
CDPA to raise maximum sentence for internet copyright
infringement to 10 years imprisonment and amending
CDPA, allowing public service broadcasters to charge
retransmission fees [7]. Except for the more dense shape,
DEA is clearly furthering the position of copyright holders
online by legislative provisions. DEA 2010 burdening ISPs
for the infringing content (ex-articles 17 and 18) are re-
moved in line with recognition of Ofcom that existing copy-
right framework proved to be instrumental in tackling the
online copyright infringement. DCMS also connote that
recent court cases had proven that existing copyright laws
sufficiently enable rights holders to take action against the
internet piracy.
Proposal for Digital Property Trust in Multinational Anti-
Counterfeiting Trade Agreement (ACTA) embarked to
international standards of enforcement of intellectual
property rights negotiated as international trade instru-
ment. ACTA had caused broad discontent due to the fear
for fundamental civil rights in the digital environment as
freedom of expression and privacy and facilitate censor-
ship. Opponents claim that it has a broader scope and
entail increased surveillance over personal online activity
through the pervasive searches by encouraging service
providers to monitor and provide information. ACTA also
promote greater analysis of content by ISPs and higher
liability of websites linked to the infringing content. Further
criticism related to the exclusion of civil society, develop-
ing states and community in its drafting. Among signato-
ries are European Union, Canada, Australia, New Zea-
land, Japan, South Korea, and formally ratifies by Japan,
and comes into force after six ratifications.
Regarding the Type-A sharing of users from users, in
response to the Napster’s claim that it is developed tech-
nology blocking 99.4 percent of copyrighted objects, posi-
tion of the court’s was that it was not enough. This gives
an idea that the law oppose the peer-to-peer technology
rather than the copyright infringements, as no technology
can assure 100% of protection. This exemplifies the at-
tempt of the law to fully control technology [1, p.73], in
recognition of the law of relevant means to regulate it,
neglecting the self-regulation capacity. However, the in-
dustry can be skeptical about the point that file sharing is
the best way to preserve its benefits while minimizing the
wrongful harm to the artists. This question is of a balance
that law seeks and that will be found sometime [1, p.73].
Technological platforms can be a solution for the orphan
works as authors cannot be found but copyright still lasting
and works may become unavailable that ease difficulties
of obtaining the work from copyright registries [8, p.61].
By Lessig zero tolerance approach is alien to the tradi-
tion in which the content industry has developed, where
the role of law is rather in maintaining the balance. This
balance was aimed at the response of the law with atten-
tion to every new technology, aiming at the protection of
creators and ensuring the innovation. This can be seen in
balancing the rights of composers and recording artists
with the emergence of technologies for mechanical repro-
duction where authors granted the right to be paid howev-
er at the legally defined rate. This, however, has not hap-
pened with the radio where the court rejected the claim of
compensation referring to indirect benefits. The emer-
gence of cable television has also reinforced the claims of
proprietary rights, where the law has also stroked the bal-
ance, rendering broadcasters the right to compensation
although again at legally defined rates, providing the
broadcasters with the rights over the content, as soon as
they are compensated. The law through this preserves
development of new technologies, with securing the rights
of authors to compensation. By not allowing the right of
the claim whenever they are broadcasted, the law pre-
vented control of author’s collective organization over ca-
ble broadcasting, and not allowing free ride does not pro-
vide unfair advantages to the cable broadcasters [1, p.73].
Similarly with VCR technology claim of Universal and
Disney that Sony is benefiting from technology allowing
copyright infringements for users of its VCR. Sony de-
signed technology allowing that and could also design a
technology blocking that, or allowing for those acts that
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
2018
№
4
♦
ЎЗБЕКИСТОН
ҚОНУНЧИЛИГИ
ТАҲЛИЛИ
♦
UZBEK LAW REVIEW
♦
ОБЗОР
ЗАКОНОДАТЕЛЬСТВА
УЗБЕКИСТАНА
28
are permitting. While the lower court was supported the
idea that technology intervenes to the exclusive right of
the others, the Supreme Court reversed decision referring
to the competence of the Parliament to strike the balance
of the interests with the emergence of the technology,
however Parliament did not respond, alleging that creative
industry is already benefited [1, at p.76].
The position was raised if there is a place to ‘legitimate
piracy’ as in every case with technological intervention, the
law allows technology to benefit over the rightholder’s of
the creative industry and did not allow authors a complete
control over the use of their works? In all such a cases
court did not disregard the rights of authors, however nev-
er rejected the free-riding, motivating that authors should
have a value balancing it with the technology to benefit
from the content made before [1, p.76].
In Google books project that was aimed to digitize
great a deal of libraries was initially concerned the snip-
pets that turned into class-action for the use without au-
thorization. The case ended up with agreement on non-
exclusive license to use it in exchange for the defined level
of compensation with opportunity for the copyright holder
to opt-out from the agreement [8, p.55]. This again can be
considered public agreement under the leading role of law
in establishing somewhat a balance between the interests
of copyright holders and social utility.
The law has ever granted the right holder the full con-
trol over their works. The law was looking for a balance of
compensation of authors against the public interest to
promote innovation. However, this balancing made when
technology has matured, and market forces regulated it as
blamed peer-to-peer networks had a successful model of
distribution on content [1, p.78]. Nevertheless, copyright
warriors disagree about the role of the Parliament in this
balance and considering copyright exceptions as violating
their property rights. Considering the users’ acts with the
content as theft, owners find no justification for that neither
in public purpose nor in fair use.
1
Although, the proprietary
claims have always balanced with exceptions that follow
even absolute rights as property.
With a rise of networking platforms, the future will be a
shift from the system of the public domain to intermediary
access and on who will be able to control, monitor, and
charge for every access and use of creative works. Ad-
verse effect is that the public domain is no longer be free
[3, p.252]. The law developing in a slower pace and may
be late as content providers may hide its work as a ser-
vices and within the program operation [3, p.256]. With the
adoption of digital fences makes it difficult to enable fair
use without exposing the product however program can be
implemented to give proper regard to the fair use, howev-
er, the problem is that it may be at the discretion of the
provider [3, p.257]. The electronic players are setting the
access controls over the works in the public domain that
was best exemplified with Adobes works of Alice in Won-
derland by Lewis Carrol that could only be tackled by mar-
ket mechanisms [3. p.259].
Herewith, one of the essential goals of the law is in
promoting the innovations distinguishable in intellectual
property law. With the emergence of every innovation, the
law strives to balance the interests of authors and the in-
dustry with the users or public interest. This has happened
with the radio, television and under scrutiny concerning
1
Lawrence Lessig, Free culture : how big media uses
technology and the law to lock down culture and control
creativity (Penguin Press 2004) 79
the internet. However, in all these cases, the law has nev-
er rendered a full monopoly on the authors motivating by
the public interest that was beneficial to the users and the
industry. This has happened with Google books, and al-
legedly should be tackled in Peer-to-Peer networks, that
however stigmatized with the range of cases against Nap-
ster and Pirate Bay, although could be a platform for con-
veying and could be used to furtherance the interested of
the authors that are happening in YouTube Content ID
system.
Bibliography
1. Lawrence Lessig, Free culture: how big media uses
technology and the law to lock down culture and control
creativity (Penguin Press 2004) 57
2. Kenneth C. Creech. Electronic Media Law and
Regulation (6th edn, Routledge 2013) 208
3. Charlotte Waelde, Copyright and the Internet: Clos-
ing the Gates on the Public Domain, Faculty of Law, Uni-
versity of Edinburgh 2002. 258
4. Guiseppe Mazziotti, EU Digital Copyright Law and
the End-User, Thesis for Doctor of Laws of European Uni-
versity Institute, Florence 2007, 55
5. Dinusha Mendis, 'Digital Economy Act 2010:
fighting a losing battle? Why the ‘three strikes’ law is not
the answer to copyright law’s latest challenge' (2013) In-
tRevLComp&Tech 60
6. Polydor Limited & Others v Brown & Others [2005]
EWHC 3191 (Ch), Grant v Google UK Ltd. Reference
[2005] EWHC 3444, Golden Eye (International) Ltd & Ors
v. Telef
́
onica UK Litd & Anor [2012] EWCA Civ 1740
7. UK Digital Economy Act 2017
8. Lateef Mtima and Steven D. Jamar, Fulfilling the
Copyright Social Justice Promise: Digitizing Textual Infor-
mation New York School of Law Review, 2010/11 Vol.55,
61
9. Charlotte Waelde, Copyright and the Internet: Clos-
ing the Gates on the Public Domain, Faculty of Law, Uni-
versity of Edinburgh 2002. 259.
