The Law of On-line and Off-line Publishing

Autore:Arnold Vahrenwald

Introduction - 1. The Definition of the Terms 'On-line' and 'Off-line Publishing' - 1.1. The Definition of the Terni 'On-line Pitblisbing' by Reference to the Definition of the Term 'Electronic Publisblng' in the U.S. Telecommunications Act of 1996 - 1.2. The Definition of the Term 'Off-line Publishing' - 1.3. Advantages and Disadvantages of On-line. and Off-line Publishing witb Regard to Tradltional Publishing - 2. The Infrastructure of On-line Publishing - 2.1. Telecommunications - 2.2. Interactive Computer Services - 2.3. The Internet - 3. State Regulatton in thè Market of on-line and Off-Line publishing - 3.1. Regulations conceming thè Media and On~line Publishing - 3.1.1. Merger and Monopoly Control - 3.1.2. The Appliaxbility of the Rules concerning Broadcasting - 3.1.3.... (visualizza il riepilogo completo)


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    The arride in based on a seminar wich die audior gave for the Rai on 12 march 1996. ta Attorney al law, Munich, professor at the European Consorthim for Audiovisual Training, Rome.


Will the technology of the commumcation of digitally stored data via Interactive computer services render obsolete the traditlonal publishing on paper? It would suffice to store the coment of any book, journal, newspaper, image, sound, music, film or audiovisual work in a single database which is connected io a worldwide network of interactive computer services to permit any person in the world who can use these services to retrieve, download, copy or print out the work. Thus the corporeal circulation of journals and books could be replaced by the lnclusion of this matenal in a database where it could be stored in digitai form and transmitted to the reader's techmcally sophisticated computer or television screen. The law of electronic pubiishing has not generated a particular discipline. li is ratlier the need to comprehend the developing technology in legai terms which determlnes the classification of on-line and off-Sine publishing within the hierarchy of legai rules. Since this technology and also lts exploitation are global, the traditional method of the legai science according to whlch facts are analysed in relation to a national legai system may not yield satisfactory results. What is needed is the creative thought, developed upon a comparison of problems which arise in different nationai legai systems. This idea underlies also the Green Paper 'Copyright and Related Rigiits in the Information Society', presented by the Commission of the European Communities. In this paper the Commission repeatedly pointed out that different national regulations, in particular m the field of copyright, may negatively affect the establishment of an efficient information infrastructure in the Community's internai market1. Whereas the development of these infrastructures 'willPage 8 mean economie growth, jobs and exports for ali economies to the benefit of authors, producers and performers' which the European Union intends to boost with its programme INFO 20002, differences in natlonal legislations may create barners to the achievement of this arni. It is diffidili to foresee the legai implications of the use of a technology at a time when this technology is in its infancy. The purpose of this article is thus confined co indicate the areas where problems may arise, by reference to cases which have arisen in different natlonal legai systems and to suggest solutions which permit the avoidance of a misallocation of resources.

@1. The Definition of the Terms 'On-line' and 'Off-line Publishing'

The new technologies for the communication of digitised data may roughly be described as 'on-line' and 'off-line' publishing. Whereas traditional publishing means the communication of information printed on paper, the new technologies permit the paperless communication of information on television or computer screens, but they may also permit the making of print-outs of the information by means of a printer which is attached to the computer or the copying of the data to a coporeal carrier.

@@1.1. The Definition of the Terni 'On-line Pitblisbing' by Reference to the Definition of the Term 'Electronic Publisblng' in the U.S. Telecommunications Act of 1996

The legai order has not yet developed a unanimous definition of the term 'on-line publishing'. The u.s. Telecommunications Act of 1996 contains the following definition in Section 274, 'Electronic Publishing By Bell Operating Companies', subsection (h)3:Page 9

'Definition of Electronic Publishing

1) In general - The terni 'electronic publishing' means the disserrunadon, provision, pubticadon, or sale io an unafflliated entity or person, of any one or more of the following: news {including sports); entertainment (other than Interactive games); business, fmandai, legai, consumer, or credit materiata; editorials, columns, or features; advertising; photos or lmages; archiva! or research material; legai notices or public records; scientific, educaonal, instructional, technical, professional, trade, or other literary raatenals; or other like or sinular Information.

2) Exceptions - The term 'electronic pubhshing' shall not include the following services:

  1. Information access, as that term is deflned by che modlfication of final judgment.

  2. The transmission of information as a common carrier.

  3. The transmission .of Information as part of a gateway to an informadon service that does not invoive die generation or alteradon of die content of information, including data transmission, address translation, protocol conversion, billing management, introduetory information content, and navigational systems that enable users to access electronic publishing services, which do not affect the presentation of such electronic publishing services to users.

  4. Voice Storage and retneval services, including voice messaging and electroruc inaii services.

  5. Data processing or transaction processing services that do not invoive die generadon or akeration of the content of information.

  6. Electronic billing or advertising of a beli operating company's regulated telecommunications services.

  7. Language translation or data tormat conversion.

  8. The provision of information necessary for the management, control, or operation of a telephone company telecommunications System, i) The provision of directory assistance diat provides names, addresses, and telephone numbers and does not include advertising. j) Caller identification services. k) Repair and provisiomng databases and credit card and billing validation for telephone company operations. 1) 911-E and other emergency assistance databases.Page 10

  9. Any other network service of a type that ls like or similar to these network services and that does not involve the generarion or alteration of the content of information.

  10. Any upgrades to these network services that do not involve the generauon or alteration or the content or information.

  11. Video programmine or tuli video entertainment on

    Since the purpose of Section 274 of the U.S. Telecommunications Act of 1996 lies in the establishment of limits for vertical concentrations between Bell telephone operating companies and electronic pubhshing activities, the provision ls more concerned with descnbing the content oi the electronic publications - the provision does not refer to the technical means used for the communication - but it may be assumed that 'electronic' pubiishing means 'on-line' communication and thus a publishing which is performed via computers which are connected by means of telecommunications. Sumrning up, the definition of the terni 'onllne publishing' with regard to telecommunications in Section 274(h) of the u.s. Telecommunications Act of 1996 excludes services from the scope of the provision which do not determine the content of the information concerned so that the transmission of the information or the providing of the access to electronic publishing services are not covered. The definition of the term 'on-line publishing' by reference to the term 'electronic publishing' as used in the Act thus extends beyond the mere publication of printed material which is stored in electronic databases and transmitted to a computer. The definition of the Act supports a broad definition of the term which would include the on-line communication of any material which is stored in databases, including films and interattive multimedia works. However, the express exclusion of 'video programming or full video entertainment on demand' seems to exclude from the term anytning which does not constitute data which can be stored in a database but which has die quality of a programme. It seems that the definition of the term 'on-line publishing' would include a single communication of the information, different from traditional pubhshing, where publication occurs when a work is actually reproduced and distributed to the public4. The uk Copyright, Designs and Patents Act 1988 defines as a 'publication' also the making of works available by means of an electronic retrieval System. Thus the on-line publication of a work is made, when the work is lncluded m a database from which it can be accessed or downloadedPage 11 without that an actual electronic transfer of the data concerned would have to occur. It appears that the developing technology does not permit a narrow definition of the terni, taking into account of the principle that exceptlons should be given a narrow mterpretation.

    Some or tne new torms of on-line communicauons may bnefly be referred to:

    - Electronic libraries, where the subscriber purchases the right to access and retrieve data stored in a database are a typical example of electronic pubhshing. The content of the database may vary: literary works, artistic works, musical works or images, sequences of images, fllms and audiovisual works.

    - Video-on-demand, where the subscriber obtains the possibility to choose certain films, videos or other audiovisual works which are kept in the database of the service, similar to the possibility to choose a video in a videotheque. The exclusion of full-video -on-deraand services and video programming from electronic publishing in the sense of the u.s. Telecommunications Act of 1996, Artide 274(h)(2) letter (o), seems to lie in the particular interest to exclude this commercially interesting possibility of exploitation of audiovisuai works from the restrictions which otherwise would be imposed upon Bell operating companies wanting to indulge into this business. Interestingly, Subsectlon 1 of the relevant provision expressly refers to images as subject-matter of electronic publishing. Therefore also sequences of images, film and other audiovisual works should be considered as a proper subject-matter of on-line publishing, sirice the...

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