Looking into multimedia is in fact like looking into the basic notions and principles of copyright.

The fact that copyright has recently undergone a process of change does not necessarily imply that it has been either invalidated or diminished in significance. It rather means that it is in the process of being transformed and therefore adaptations might need to be more radical than before.

In order for one to deal with potential new legislation on multimedia, one has necessarily to look back and base this new legislation on existing provisions in relevant areas. In that sense our legal past is both valuable and indispensable for the future. However, depending on the past does not necessarily mean that one should not look to the future. The future, however, brings with it bewilderment and confusion. It represents the threat (and challenge at the same time) of the unknown and the new. Once one has to depart from long and well-established principles for something new one feels rather uncomfortable. Yet, the ultimate role of law is to catch up with the developments in society if not to transform society itself. Law is there to serve people and their needs and both people and their needs are subject to development. In that sense the law needs to be revised if it is to survive the test of time. It is in relation to multimedia that copyright is called upon now to pass the test of time.

Unless multimedia works are projected onto a screen, their contents cannot be read, accessed or manipulated by users. The experience of copyright lawyers and others to date shows that there is, arguably at least, a strong presumption that data including, or mainly composed of, sound and images, which are projected onto a screen, falls within the category of audiovisual works. Thus, if we were to judge multimedia works according to their appearance or looks alone, we could argue that the one category of protection which seems most capable of accommodating multimedia products is that of audiovisual works.

This chapter will examine whether this initial presumption corresponds to the actual characteristics and needs of multimedia works when the issue is considered in detail. It will also consider whether the inclusion of elements of image and sound in a multimedia work is enough to place it under the legal umbrella of audiovisual works or related categories such as cinematographic works, films or motion pictures.

‘AUDIOVISUAL WORKS’ AS A GENERIC TERM

Audiovisual works

Not all national jurisdictions contain a definition of audiovisual works in their copyright laws. However, the French Copyright Act, in article L112-6, defines audiovisual works as ‘works consisting of sequences of moving images, with or without sound’. From this definition it can be seen that an audiovisual work cannot exist unless a ‘sequence of moving images’ is not only present but also prevalent. This is the criterion for the existence of an audiovisual work.

VIDEO GAMES AS MULTIMEDIA WORKS

The only ‘multimedia cases’ that have come before the various national courts up to now are cases on video games. Indeed, video games were the first forms of multimedia products that appeared on the market. ‘Multimedia works’ is a generic term and as such it is capable of encompassing a great variety of products. Some of them are already on the market whilst others have yet to appear. These products can be considered to come under the umbrella of multimedia works provided that they contain the essential elements or the common core of a multimedia work.

Video games possess the general/basic characteristics of a multimedia work. They combine on one medium (either off-line or on-line) different forms of expression in a digitised format. Images and sound are the most frequently combined expressions, though text can also be included, usually in the form of commands, pathways or score results. All these elements make up the visual effect (sights and sounds) of the video game. The visual element is an audiovisual expression as long as images and sound, or images alone, or images as the main element are projected onto a screen. If that is not the case then, although the visual element necessarily remains, since the video game can only be displayed on screen, the audiovisual expression is replaced by a literary (if it is primarily text that is included) or other expression and it is on these grounds that the product qualifies as a work.

Originally copyright was meant as a regime of protection for literary works. Literary works, seen as a generic term, really refers to most oral and written works of the mind, which are expressed by means of language and which can be literary, scientific or of any other nature. To take two examples only, Belgian copyright law refers to literary works as écrits de tout genre (writings of any kind), and as manifestations orales de la pensée (oral expressions of the mind), whilst the Swiss Act refers to them as créations de l'esprit (creations of the mind). The UK's Copyright Designs and Patents Act 1988 refers to a literary work as simply ‘any work … which is written, spoken or sung’.

What we usually understand as literary works are books, articles, pamphlets, lectures, sermons and other works of the same nature.

LITERARY WORKS AS WORKS OF LANGUAGE

The concepts of ‘language’ and ‘words’

The key feature of literary works is the fact that they are conceived in language. The final format can be written, recorded or oral. In other words, genuine literary works are, in their original format, either spoken or written, and are created in order to be listened to or read. If their primary aim were not this one, but were for visual or musical performance, or display, they would strictly speaking not be literary works, though they would still come within the category of literary works in the broad sense. This includes dramatic, musical, pictorial or artistic works.

A COPYRIGHT REGIME FOR MULTIMEDIA PRODUCTS

No existing copyright regime can perfectly accommodate multimedia products. Yet there is no doubt that most multimedia products constitute creations which are original and therefore merit copyright protection. In this chapter we will discuss the configurations of a specially tailored copyright protection for multimedia works, which, as will be shown, should be an amalgamation of the regime of protection for audiovisual works and that for databases.

In order for a work to qualify for copyright protection under UK copyright law, it has first to come within a category of protected works. For that purpose, and given the fact that no current category of copyrightable material is capable of accommodating all forms of multimedia products, a separate category for multimedia works should be introduced. In this category multimedia works should be defined as works which combine (on a single medium) more than one different kind of expression in an integrated digital format, and which allow their users to manipulate their contents with a substantial degree of interactivity. The essential features of the second generation of multimedia products are the combination of various kinds of expressions on a single medium to a larger extent than ever before, the predominantly integrated and merged format of the works once they have been incorporated in the multimedia product, as well as the fact that the degree of interactivity that they offer to users is well above any primitive form of interactivity.

In this book I have shown that most sophisticated multimedia works do not fit in easily with the existing copyright works' regimes of protection. Before I go any further and discuss the ideal regime of protection for multimedia works, it is interesting to consider a recent French case which confirms the point that the existing copyright regimes of protection are not suitable for multimedia works. The Court of Appeal in Paris, in a case concerned with an encyclopaedia on CD-ROM, came to the conclusion that the multimedia work at issue could not come within the categories of audiovisual works, collective works or collaborative works. It could not qualify as an audiovisual work on two grounds. First, it did not present a linear unfolding of sequences of images since the user could intervene and modify the order of sequences by means of interactivity. Secondly, the encyclopaedia did not contain a succession of moving images but only fixed sequences, which could contain moving images. These two points seemed to lie outside the notion of audiovisual works under art. L112-2 of the French Copyright Act. The multimedia work was also found not to be a collective work on the basis that the person who published and disclosed the work was not the person who initiated its creation nor the person who was responsible for the scenario, direction and organisation of the work's interactivity. The publication of a work by a publisher alone does not suffice to render it a collective work.

ORIGINALITY AND QUALIFICATION FOR COPYRIGHT PROTECTION

Having examined the existing categories of copyright works that might eventually be capable of accommodating multimedia products, and having identified the difficulties they would present if they were to serve the needs of these products, one might wonder whether it would be a wiser solution to afford copyright protection to a multimedia work irrespective of whether or not it comes within one of the existing categories of copyright works. In other words, one should examine whether the classification of a new work is a necessary prerequisite for the work to attract copyright protection. The essential question therefore is whether a multimedia work can qualify for copyright protection by reason of its originality alone if, of course, it is taken for granted that a multimedia work is by nature a ‘work’ that is adequately fixed to meet the criterion of fixation in those countries where such a criterion is indispensable for the qualification of a work as a copyright work.

The answer to this question necessarily involves two aspects or considerations. One aspect is whether in all national copyright laws, classification of a work is a necessary prerequisite for it to attract copyright protection. The second is, where such a requirement is not present, whether the option of the protection of a multimedia product outside the special regime of a particular class of works, i.e. as a traditional literary work, a film, a computer program, etc., suffices for its protection and satisfies its needs fully.

A MULTIMEDIA WORK AS A COMPUTER PROGRAM

A multimedia product cannot perform its tasks unless it is assisted by a computer program. It is the computer program which produces the interactive effects and allows the user to retrieve and arrange the contents of the multimedia work on his screen. The multimedia work and the computer program are marketed as one product. Both are developed in a digital environment and distributed on a digitised medium or as a digitised service. The facts that both multimedia works and computer programs operate in a digitised environment, that the presence of the computer program is indispensable to the functioning of a multimedia work and that the architecture of a multimedia work relies on the design of its computer program have urged many to think that we should investigate the possibility of whether a multimedia work can be protected as a computer program.

Any attempt to protect a multimedia product as a computer program can only be based on certain grounds. It can be based either on the fact that in essence a multimedia work is nothing more than a computer program, or alternatively on the fact that if a multimedia work is more than just a computer program, this ‘more’ is only subordinate to a computer program and not substantial enough to warrant differential treatment. What is involved in the first case could simply be called a sophisticated computer program.

TRADITIONAL APPROACHES TO COLLECTIONS AND COMPILATIONS

The Berne Convention

If multimedia products come close to literary works in any sense, it is in the category of collections. The leading text for the definition of collections is the Berne Convention. Collections for the purposes of the Berne Convention are collections of literary or artistic works, such as encyclopaedias and anthologies, only. These works qualify as literary works, or else as intellectual creations, not by reason of the originality of their contents, as would be the case with any genuine literary work, but by reason of the selection or arrangement of their contents. If collections are thought to have any resemblance to literary works, it is mostly because they incorporate original literary and artistic works in a manner which is considered original, and because traditionally they also present themselves in written-book format. Their qualification as copyrightable material, however, is meant to be without prejudice to the copyright existing in each of the works forming part of such collections.

The Berne Convention's provision on compilations has been incorporated into the national laws of the Member States in various ways. However, this does not cause too many problems since the Berne Convention provides only for de minimis rules. Member States can deviate from them as long as the protection they afford to works is stronger or wider in substance than the one provided for in the Berne Convention.

THE DATABASE FRAMEWORK

When the EU database Directive was enacted in early 1996, there was much discussion about it being at the same time a multimedia Directive. Multimedia products at that stage seemed to be blocked in many countries from coming under the protection of compilations on the basis that, although they were considered to form some sort of compilation, they did not contain only works (as originally required in the Berne Convention and consequently in the laws of many of its Member States), but other materials as well. In fact most of their contents were data, information which would not qualify under any regime as material capable of attracting copyright protection. The second problem multimedia products were presenting was the fact that they were not coming anywhere near to the conventional book-format of manually accessible compilations. Multimedia products, if held to be compilations, could only be digital ones. It was not clear in the Berne Convention and the laws of many countries, which did not expressly provide for the protection of databases, that traditional compilations could be legitimately extended to cover digital or electronic compilations. Since, by the enactment of legislation concerning the protection of databases at Community level, these two hurdles disappeared, there were many commentators who stood by the opinion that any distinction between databases and multimedia products would be both unwise and impractical.

Mr Richard Lehrberg, executive vice-president and managing director of Interplay Productions in California, said, in an attempt to define the notion of multimedia at a conference in Cannes in 1994 on ‘New technologies and their influence on international audiovisual law’:

GENERAL INTRODUCTORY COMMENTS

A book dealing with multimedia can only reach a certain level of scientific accuracy in relation to new technology products. The reason is obvious. ‘Multimedia’ is a newly evolved term, which brings with it the imponderables every newly evolved term brings: vagueness and uncertainty.

Multimedia products have introduced new forms of expression by combining the existing ones with new technologies, thus creating a new concept. Many experts in the field state that multimedia has signified the commencement of a new era in relation to communications. Its essential ingredient is not solely interactivity, as one would expect (although interactivity still is the key feature for this kind of communication), but the amount of data multimedia products carry. Information as such has become extremely important. The more information you possess, the more power you have. The possession of information is the key to the successful creation and marketing of a multimedia product. The information contained in it is the crucial factor when consumers decide to purchase. The need for a free flow of information around the world is the ultimate reason for the financing of communication industries. The ability to distribute such information is the parameter by which financial success in the international market is measured. Information has to do with development, evolution, culture, civilisation and state power. Interactivity is valuable in so far as it facilitates the manipulation of information and responds to the needs of the user with regard to that particular information.