Into the Wired: Digital Freedom or Piracy? The ECJ's ''Nintendo v. PC Box'' Case Law as an Emblematic Example of Copyright Contradictions in the Information Society

The word "copyright" actually refers to the Anglo-Saxon interpretation of a part of a more general intellectual property protection discipline, yet throughout my work the word will be used to identify "author's rights" in general. The first disputes about the doctrine concerned its nature and rationale, and date back to the XVII century. At that time, the English philosopher John Locke associated the natural property of an individual over his body to the natural property of an author over his work, since it flows from his/her intellectual creation. A century later, Jeremy Bentham, the founder of the modern utilitarianism, affirmed that intellectual property is justified by its economic efficacy. Since Locke's natural property theory found lack of economic premises due to the significant role of externalities in the process of the creation of a work, the concept was re-elaborated by Immanuel Kant who justified copyrights "as extensions of the personality of the author and subject of protection as such". The reason of these two different perspectives can be found in the inner nature of the right in question, which can be considered at the same time a personality right under its moral aspect, and a property right under its patrimonial aspect. These two apparently antithetical approaches can result in a potentially infinite variety of solutions to the matter.

As outlined in the introduction to the chapter, there are three actors whose interests are influenced by the application of copyright: the authors, the publishers/producers in a broad sense (that is, the subjects who deal with the exploitation of the work), and the public. These actors pursue different, and sometimes incompatible, objectives: generally, an author wants to become famous and earn from his/her work, a publisher/producer seeks to maximize profits while minimizing risks, and the public wishes to access as many works as possible. The only relative aspect emerging from the analysis is the author's position, since he/she could decide to privilege one aspect at the expense of the other (for example, he/she could renounce receiving compensation from the exploitation of his/her work in order to divulge it to as many people as possible). In the above-explained context, law intervention is justified by its compromise-oriented function among conflicting interests.

Generally, a moral-orientated perspective, commonly associated with the French so-called droit d'auteur, is likely to apply more restrictive rules in the name of an author-centered view, yet constitutional and person-related principles like freedom of expression can intervene in favor of the public interest. Indeed, back to the French Revolution, in front of the National Constituent Assembly, Lakanal defined the entitlement in question as "the right of all rights the least subject to criticism, a right whose increase can neither harm republican equality, nor offend liberty […]". Le Chapelier emphasized the concept, declaring that "the most sacred, the most legitimate, the most unassailable, and, so to speak, the most personal of all properties, is the work which is the fruit of a writer's thoughts.". Nevertheless, as persuasively noticed by Ginsburg, it was Le Chapelier himself who added that "[…] a published work is by its nature a public property […]," revealing an awareness about the importance of the public in the matter in question.
At the same time, the U.S.-privileged economic analysis of the discipline – the law and economics doctrine – can generate different results, depending on the periodical review of costs and benefits. Jules Depuit and Leon Walras justify this approach by its social utility, clarifying that only a technical evaluation of efficiency can maximize the advantages of an intellectual property protection system. Ginsburg corroborates the theory by citing the U.S. Constitution's copyright clause, which puts the public's interest at the center of the issue by justifying the establishment of exclusive rights of authors in the name of a maximization of production and access to intellectual creations. An in-depth analysis of the evolutions of these two approaches will be given below.