The Berner
Convention (originally 1886, latest revision 1979) is the mother of international
copyright law. An international treaty "For the Protection of Literary and Artistic Works".
The treaty automatically assigns copyright to an author for his/hers lifetime
plus 50 years. The right is a monopoly and extends to almost any form of publication.
As the revision date shows it does make some allowances for broadcasting audio
and TV (wireline/cable, terrestrial or satellite) but not explicitly for the Internet,
as it was not yet invented in 1979.
In practice
a body of (case) law has been formed (and still is being formed: for example the
Cablevision DVR-on-the-net in the USA) to accommodate both the broadcasting and
the Internet environment.
There are
some interesting differences: a cable company delivering linear analog or
digital TV (DVB or some other encoding method) is seen as the publisher of
copyrighted material and has to get permission from the authors (meaning: has
to pay them). The same applies for walled garden IP-TV offerings by telco's. But
if the same customer uses the broadband connection of the same cable company or
telco and views a video over the Internet, the law does not regard these
companies as the publisher. The owner of the website where one can find the
video is seen as the publisher of copyrighted material and has to get
permission of the authors.
Why? Copyright-lawyers
have explained that the difference is the concept of "Common Carriage". The
Internet access provider has no relationship with and does not interfere with
the content of the messages which he transports. Message and content agnostic.
In that case (and only in that case) the company which transports content to
and from your home is not held responsible and therefore is not regarded as a
publisher of copyrighted material.
Enter
Network Neutrality. Wouldn't it be a very nice twist if we use the above
mentioned definition, the existing body of (case) law and its consequences as
the basis for Net Neutrality? The threat would be: if you mess around with IP-traffic
you are in danger of losing the "Common Carriage" status, you risk to be
regarded as a publisher of copyrighted material with all consequences attached
to that status. You would become responsible and liable if you mess with
traffic.
As I am not a lawyer I might have missed something, it might not cover everything (VOIP traffic for instance), but at the least it would cover a large part of the Internet. The beauty with this approach is that nobody will try to change existing copyright case law.
Maybe......
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