Copyright in the Digital Environment: From Intellectual Property to Virtual Property

Abstract

International audience ; In recent years, copyright law has been subject to a series of legislative reforms aimed at preserving the self-regulating feature of the copyright regime in the digital environment. However, as the law does no longer reflect their expectations, a growing number of right holders are relying on private ordering in order to adjust the default provisions of the copyright regime with a variety of contractual means. Within the digital environment, the establishment of an alternative regime of property rights could however facilitate the exploitation and the dissemination of digital works, allowing for the copyright owners to maintain a certain level of control over the exploitation of theirs works while simultaneously decreasing the level of discrepancies that may occur between copyright law and property law. The regime would distinguish between the copyright protection granted to the work as an intellectual creation and the specific terms and conditions governing the exploitation of any given instance of the work, into which the copyright owner could introduce a series of restrictions and/or obligations enforceable erga omnes. Digital works would therefore become more akin to virtual goods which could be alienated independently of any contractual relationship, given that the rights and obligations regulating the consumption of a work would now be vesting into the actual instance of the work. By getting rid of the contractual relationship that is today required for the consumption of digital works, the ownership thereof could be transferred to any third party and the doctrine of exhaustion be reintroduced, thereby allowing for the market for information goods to develop with fewer constraints.