Actuel Marx, 39, 2001
The droit d’auteur is torn between two opposing paradigms : on the one hand, the market economy model, which provides economic freedom and private property, tends to merchandise the creative works ; on the other hand, the informational model, which provides free communication of the knowledge and creative work for the benefit of the general interest, tends to suppress any obstacles to the free communication. The reasons justifying the attachment of the droit d’auteur to the private property can be found in the history of the droit d’auteur. Such legal concept based on a fiction and on an “abuse of the language” is the interpretative framework for a proper understanding of the current intellectual property paradigm. In addition, the historical approach is necessary to understand the distinction made between Anglo-Saxon copyright and the “droit d’auteur” from Continental Europe. Since the French revolution, the lawmakers have built the “droit d’auteur” paradigm by reference to the market spirit. However that legal concept of “droit d’auteur” seems unsuitable in the new digital and Internet context. We assume that a kind of “informational communism” which provides exchange and publication of the knowledge on behalf of the general interest, and devoid of any reference to the concept of property, shall be a more appropriate system in the new communication era. Such thesis implies not only a revision of the “appropriation logic” of the “droit d’auteur”, but also a global reflection dealing with the clash of two different economical systems. We will, under these considerations, assess to which extent the traditional intellectual property is still appropriate in this new context.