The current struggle between the users' right to the information and the protection of the authors and producers through the intellectual property as for the different devices available in the Internet is the background idea of this survey, in search for an accurate balance. The new informational tools existing in the cyberspace, such as databases, multimedia works, search engines, web pages, hipertext links, on line publications and others, are examined mainly from the perspective of the new sui generis right for databases producers in force in European Union. Those instruments and others as the domain names (and their connection to trademarks legislation), the software (and the current European debate on its patentability), the technical means of collecting of royalties are dealt with mainly from the perspective of the existing Spanish legislation and case law, as a token of the European treatment on the topic. This essay takes into account the more recent Directives on intellectual property in the European Union (such as the Directive 29/2001/CE on copyright in the Information Society, the Directive 2004/48/EC on enforcement of intellectual property rights; or, on the other topic mentioned, the Directive 2003/98/EC on the re-use of public sector information) and makes a concise comparison in some points as the private copy or the collecting societies with the United States norms as the Digital Copyright Millenium Act.
KEYWORDS: copyright, intellectual property, databases, web pages, links, collecting societies, Spanish Law, right to information, search engines, software, private copying
1. ACCESS TO ON-LINE WORKS
1.1. THE RIGHT TO THE INFORMATION
1.1.1. The role of the intellectual property Law within the information superhighways and the information society
Basically, all the issues generated by the revolution of the telematics which implied the apparition of a worldwide web, as far as the copyright is concerned, can be summarized in just one: should an adjusted intellectual property right survive with the same strength on the Internet, or should it be reduced in this environment, in favour of the users? Thus, the dichotomy is whether to keep the exclusive rights to the exploitation of the works or productions protected via intellectual property (authors' rights or neighbouring rights), limiting to the full the exceptions, or whether these exceptions must be enlarged as a consequence of the right to the information, thus blurring the exclusive rights in a global world with a free access.
The ideological debate, reduced in this way to its most extreme stances, takes place between the so-called "neoclassicals" and the "libertarians" (or "minimalists") (1). The former are for the validity of the intellectual properly in the digital networks, on the conceptual basis of a quasi-absolute and monopolistic right of ownership. Therefore, they argue, in favour of the owners of the exclusive rights, the prominence of a system of direct on-line licences (non-compulsory contracting), the leverage of the technological measures to secure the defence of the works on the Internet and the control by their owners, and the reduction of the exceptions and lawful uses (including the digital private copies). In turn,...