The role of copyright in the protection of the environment and the fight against climate change: is the current copyright system adequate?

Abstract

At first sight, it may not seem like copyright plays a role in the fight against climate change and more generally the protection of the environment. But in many ways, it does, and it does so with, maybe surprisingly, quite some importance. Indeed, copyright works can be extremely varied. In the environmental field, they can range from eco-friendly architectural plans and buildings, literature (e.g. scientific articles, newspaper or magazine articles, instruction manuals detailing processes that accomplish environmental benefits), charts, diagrams, maps, photographs, even films, about the weather, climate, the size of glaciers, etc., to software and databases used for forecast or analysis of weather, climate, temperature patterns, changes in fauna and flora, drought control, etc. In short, literary and artistic works of various kinds as well as audiovisual works and films. Throughout the article I will call these copyright works “environmental works”. I have not come across any definition of an “environmental work” and I do not propose to do it here but one can think of several types of works. First, there are those which relate, discuss, analyse, map, etc. the earth’s environment, including its climate. Second, there are those for which access is needed to learn about environmental benefits of particular technologies and environmental benefits more generally and for which use and reuse is also often necessary, for instance to implement environmental change (e.g. further communication to the public, reproduction and adaptation including translation). There may sometimes be an overlap between those two categories. Third, there are works, mainly software and databases, which will interact with or will be necessary for the functioning of all kinds of environmental products and services (e.g. smart grid technologies). These environmental works are created either by private entities or by the state, in the latter case either exclusively or in competition with private entities. The question poses itself whether the normal copyright regime, namely full exclusivity, should be retained for such copyright works because of the importance these works have in helping to protect the environment, save our planet and therefore ourselves. Does the current copyright system work well already or do we need to modify it to take account specifically of environmental concerns? To answer this question, this chapter scrutinises the various aspects of copyright law namely: subject-matter, protection requirements, authorship and ownership issues, duration, economic and moral rights, and defences. It also examines the database sui generis right and para-copyright namely the protection of technological protection measures by anti-circumvention provisions. The discussion of the several aspects of copyright law brings to light the questions of access, dissemination, interoperability and pricing which are especially crucial to environmental issues. As we shall see, copyright protection may sometimes create conflicts or pose problems: copyright can make access or dissemination of environmental works difficult or impossible, the price may be too expensive and/or interoperability between different works may not be possible. This therefore requires the legislature, the courts or competition authorities to act. The chapter discusses these aspects from a European perspective but it will also make some comparisons with US law.