Module 2: The International Framework: Difference between revisions

From EdX Copyright Online Course
Jump to navigation Jump to search
[unchecked revision][checked revision]
(updated link color)
 
(162 intermediate revisions by 8 users not shown)
Line 1: Line 1:
By Petroula Vantsiouri and William Fisher
==[[Image:key.png|50px|]] Learning objective ==


== Learning objective ==
This module explains how international copyright law works, how it affects developing countries, and how developing countries can affect it.  
 
This module discusses international copyright law. It explains how international copyright law works, how it affects developing countries, and how developing countries can affect it.  


<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">
<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">


== Case study ==
== [[Image:casestudy.png|50px|]] Case study ==


''“I want to participate to an international exchange program, what should I know?”''
Angela is troubled by the restrictions that copyright law places upon her ability to assemble and distribute course materials.  She is considering writing a short article, arguing that her nation's copyright law should be reformed to give teachers and students more latitude.  However, she has heard that international agreements may restrict the freedom that each country enjoys to define its own copyright laws.  Before drafting her article, she asks Nadia's help in determining which, if any, international agreements are applicable in their own country.


Nadia works as a librarian in Mexico. She is very familiar with Mexican copyright law but wants to travel and work abroad. She plans to apply for an exchange program so that she can spend six months working in another country. Her options include Ethiopia, Russia, India, and Belgium.
</div>


The exchange program requires that Nadia be familiar with the copyright law in the country where she will work. She must understand the following issues:
==[[Image:lesson.png|50px|]] Lesson ==


* general standards of protection for copyrighted works,
== The Rationale for the International System ==
* protection of performers and producers of sound recordings,
* copyright protection of computer programs and databases,
* moral rights protections for authors of creative works, and
* exceptions or limitations to copyright law.


Another librarian suggests that Nadia check whether her possible host countries have signed the same copyright treaties as Mexico. She tells Nadia that these treaties may set certain standards for the copyright law of every country that signed it. However, she cautions Nadia that the laws may not be exactly the same, and that even if a country has signed the treaties, the treaties may not have been fully implemented.  
As we saw in [[Module 1: Copyright and the Public Domain]], each country in the world has its own set of copyright laws. However, the flexibility that most countries enjoy in adjusting and enforcing their own laws is limited by a set of international treaties.  


Why do we need any international management of this field? There are two traditional answers to this question.


</div>
First, without some international standardization, nations might enact legislation that protects their own citizens while leaving foreigners vulnerable. Such discrimination was common prior to international regulation.  As copyright owners become increasingly interested in global protection for their creation, mutual recognition on fair terms of rights across borders becomes ever more important.


== The Rationale for the International System ==
Second, some copyright holders believe that developing nations would not adopt adequate copyright protections unless forced to do so by treaty.  Representatives of developing nations strongly dispute this argument.


As we saw in '''[[Module 1: Copyright and the public domain: an introduction]]''', each country in the world has its own set of copyright laws.  However, the flexibility that most countres enjoy in adjusting and enforcing their own laws is limited by a set of international treaties.
== International Instruments ==


Why do we need any international management of this field? There are two traditional answers to this question.  
The simplest way to achieve these goals would be a single treaty signed by all countries. Unfortunately, the current situation is more complex.  Instead of one treaty, we now have six major '''multilateral''' agreements, each with a different set of member countries.


First, without some international standardization, nations might enact legislation that protects their own citizens while leaving foreigners vulnerable. Such discrimination was common prior to international regulation.  
Each of the six agreements was negotiated within - and is now administered by - an international organization.  Four of the six are managed by the World Intellectual Property Organization (WIPO); one by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one by the World Trade Organization (WTO).  


Second, it is easier for everyone to know the protections and freedoms of copyright law if there are some similarities across countries. It is especially beneficial for authors and artists to know what protections are available to them in a globalized world.  
The six agreements have been created and implemented in similar, though not identical, ways.  Typically, the process begins when representatives of countries think that there should be international standards governing a set of issues.  They enter into '''negotiations''', which can last several years. During the negotiations, draft provisions are presented to the delegations of each country, which then discuss them and may propose amendments to their content in order to reach a consensus. This "consensus" may reflect genuine agreement among all of the participating countries that the proposed treaty is desirable, or it may result from pressure exerted by more powerful countries upon less powerful countries. Once consensus has been reached, the countries conclude the treaty by '''signing''' it.  Thereafter, the governments of the participating countries '''ratify''' the treaty, whereupon it '''enters into force'''.  Countries that did not sign the treaty when it was initially concluded may join the treaty later by '''accession'''.


Finally, some copyright holders - especially media production firms - believe that developing nations would not enact strong domestic copyright law unless forced to do so by treaty.  Representatives of developing nations strongly dispute this argument.
In many countries -- especially those that follow the civil-law tradition -- treaties are regarded as "self-executing."  In other words, once they are ratified, private parties can rely on them and, if necessary, bring lawsuits against other private parties for violations of the treaties' provisions.  However, in other countries -- especially those influenced by the British or Scandinavian constitutional traditions -- treaties lack this self-executing authority.  Instead, the national legislatures must adopt statutes implementing them, after which private parties rely on the terms of the implementing legislation, rather than on the terms of the treaties themselves.


== International Instruments ==
None of the six treaties pertaining to copyright law contains a comprehensive set of rules or standards for a copyright system.  Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member countries considerable discretion in implementing its requirements. 


The simplest way to achieve these goals would be single treaty signed by all countries. Unfortunately, the current situation is more complex.  Instead of one treaty, we now have six major multilateral agreements, each with a different set of member countries.
Click here for more on the [[stages of an international agreement]].


Each of the six agreements was negotiated within – and is now administered by – an international organization.  Four of the six are managed by the World Intellectual Property Organization (WIPO); one by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one by the World Trade Organization (WTO).  
Set forth below are brief descriptions of the six major treaties, with special attention to their impacts on developing countries.


All six agreements have been created and implemented in similar ways.  Typically, the process begins when representatives of countries think that there should be international standards governing a set of issues.  They enter into '''negotiations''', which can last several years.  During the '''negotiations''', draft provisions are presented to the delegations of each country, which then discuss them and may propose amendments to their content. Once consensus has been reached, the countries conclude the treaty by '''signing''' it.  Thereafter, the governments of the participating countries '''ratify''' the treaty, whereupon it '''enters into force'''. From that moment onward, the signatory countries assume obligations towards the other countries to implement the international agreement.  Countries that did not sign the treaty when it was initially concluded may join the treaty later by '''accession'''.
====Berne Convention====


None of the six treaties contains a comprehensive set of rules or standards for a copyright system.  Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member countries considerable discretion in implementing its requirements.  Nor do any of the treaties bind individual persons within the member countries until and unless the governments of those countries actually implement the standards with legislation.
In 1886 ten European states signed the Berne Convention for the Protection of Literary and Artistic Works (referred to hereafter as the "Berne Convention") in order to reduce confusion about international copyright law.  Since then, a total of 164 countries have joined the Berne Convention. However, there have been several revisions of the Berne Convention, and not all countries have ratified the most recent version.  Any nation is permitted to join. You can check to see [http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15 if your country is a member of the Berne Convention by consulting this link]. Below is a map showing which countries are currently members.


Click here for more on the [[stages of an international agreement]].
<div style="border: 1px dashed grey; padding: .5em 1em; margin: 3px 3px 1em 3px; width: 721px;">
[[Image:Map1.png|721px]]
</div>


Set forth below are brief descriptions of the six major treaties, with special attention to their impacts on developing countries.
The Berne Convention established three fundamental principles.  The first and most famous is the principle of “national treatment,” which requires member countries to give the residents of other member countries the same rights under the copyright laws that they give to their own residents.  So, for example, a novel written in Bolivia by a Bolivian citizen enjoys the same protection in Ghana as a novel written in Ghana by an Ghanian citizen.  


The second is the principle of “independence” of protection.  It provides that each member country must give foreign works the same protections they give domestic works, even when the foreign works would not be shielded under the copyright laws of the countries where they originated.  For example, even if a novel written in Bolivia by a Bolivian national were not protected under Bolivian law, it would still be protected in Ghana if it fulfilled the requirements for protection under Ghanian law.


====Berne Convention====
The third is the principle of “automatic protection.”  This principle forbids member countries from requiring persons from other Berne Convention member countries to undergo legal formalities as a prerequisite for copyright protection. (They may impose such requirements on their own citizens, but usually do not.)  The effect of this principle is that the Bolivian author of a novel doesn’t have to register or declare her novel in Ghana, India, Indonesia or any other member state of the Berne Convention; her novel will be automatically protected in all of these countries from the moment it is written.


In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements.  For instance, they must enforce copyrights for a minimum period of time. The minimum copyright term for countries that have ratified the most recent version of the Berne Convention is the life of the author plus 50 years for all works except photographs and cinema.  The Berne Convention also requires its members to recognize and enforce a limited subset of the “moral rights” discussed in [[Module 1: Copyright and the Public Domain#What Rights Come With Copyright.3F|Module 1]].


The uncertainty and confusion arising from the lack of a unified framework for the protection of copyright led ten European States in 1886 to sign the Berne Convention for the Protection of Literary and Artistic Works (henceforth Berne Convention).  Since then, a total of 164 countries have joined the Berne Convention. However, there have been several revisions of the Berne Convention, and not all countries have ratified the most recent version.  Any nation is permitted to join. You can easily check to see [http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15 if your country is a member of the Berne Convention]. Below is a map showing which countries are currently members.
The Berne Convention sets forth a framework for member countries to adopt exceptions to the mandated copyright protections. The so-called "three-step test" contained in Article 9(2) ([http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_Three-Step_Test discussed in more detail below]) defines the freedom of member countries to create exceptions or limitations to authors' rights to control reproductions of their works. Other provisions of the Berne Convention give member countries discretion to create more specific exceptions.  


[[Image:Map1.png]]
When the Berne Convention was revised most recently in Paris in 1971, the signatory countries added an [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P410_75777 <span style="color:red;">Appendix</span>], which contains special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from the minimum standards of protection with regard to the right of translation and the right of reproduction of copyrighted works.  More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses to translate works for the purpose of teaching, scholarship or research, and to reproduce works for use in connection with systematic instructional activities.


The Berne Convention established three fundamental principles. The first and most famous is the principle of “national treatment,” which requires member countries to give the residents of other member countries the same rights with respect to copyright law that they give to their own residents. So, for example, a novel written in France by a French citizen enjoys the same protection in Italy as a novel written in Italy by an Italian citizen.  
While the Berne Convention outlines broad standards for copyright protection, it mandates few specific rules. As a result, the legislature in each member country enjoys considerable flexibility in implementing its requirements. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify for membership.  


The second is the principle of “independence” of protection. It provides that each member country must give foreign works the same protections they give domestic works, even when the foreign works would not be shielded under the copyright laws of the countries where they originated.  For example, even if a novel written in Belgium by a Belgian national were not protected under Belgian law, it would still be protected in Italy if it fulfilled the requirements for protection under Italian law.
The Berne Convention does not contain an enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.   


The third is the principle of “automatic protection.”  This principle forbids member countries from requiring compliance with legal formalities as a prerequisite for copyright protection. In other words, in Berne Convention countries, original works enjoy copyright protection automatically from the moment they are created. So, for example, the British author of a novel doesn’t have to register or declare her novel in France, Italy, Belgium or any other member state of the Berne Convention; her novel will be automatically protected in all of these countries from the moment it is written.  
To learn more about the Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html <span style="color:red;">read its text</span>] or consult a brief discussion of the history of the [[Berne Convention]].


In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements.  For instance, they must enforce copyrights for a minimum period of time. The minimum copyright term for countries that have ratified the most recent version of the Berne Convention is the life of the author plus 50 years for all works except photographs and cinematic works. The Convention also requires its members to recognize and enforce a subset of the “moral rights” discussed in [[Module 1: Copyright and the public domain: an introduction]].
====Universal Copyright Convention====


When the Berne Convention was revised most recently in Paris in 1971, the signatory countries added an Appendix, which contained special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from the minimum standards of protection with regard to the right of translation and the right of reproduction of copyrigted works. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses to translate works for the purpose of teaching, scholarship or research, and to reproduce works for use in connection with systematic instructional activities.  
The '''Universal Copyright Convention''' (or '''UCC''') was developed by '''UNESCO''' and adopted in 1952. It was created as an alternative to the Berne Convention. The UCC addressed the desire of several countries (including the United States and the Soviet Union) to enjoy some multilateral copyright protection without joining the Berne Convention.  


The Berne Convention outlines broad standards for copyright protection while mandating few specific rules. As a result, each national legislature enjoys considerable flexibility in implementing the Berne Convention. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify  for membership.  
The UCC’s provisions are more flexible than those of the Berne Convention. This increased flexibility was intended to accommodate countries at different stages of development and countries with different economic and social systems. Like the Berne Convention, the UCC incorporates the principle of national treatment and prohibits any discrimination against foreign authors, but it contains fewer requirements that member countries must comply with.  


Furthermore, at the time that the Berne Convention was signed, the signatory countries did not establish an enforcement mechanism. This meant that member states had little power to punish another state that did not abide by the Berne Convention's guidelines. As we will see later on, this situation partially changed for the members of the Berne Convention that also joined the World Trade Organization.
The UCC has decreased in importance as most countries are now party to the Berne Convention or are members of the WTO (or both). The copyright obligations of members of the WTO are governed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), discussed below.  


To learn more about the Berne Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html read its text] or review the provisions of the [[Berne Convention]].
You may check if your country is a member of the UCC by reviewing [http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf this list]. For more information about the UCC you may [http://www.ifla.org/documents/infopol/copyright/ucc.txt read its text] or consult the [[Examination of the UCC]].


====Rome Convention (1961)====
====Rome Convention (1961)====


By 1961, technology had progressed significantly since the Berne Convention was signed. Some inventions, such as tape recorders, had made it easier to copy recorded works. The Berne Convention only applied to printed works and thus did not help copyright holders defend against the new technologies. To address the perceived need for strong legislative protection for recorded works, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was concluded by members of WIPO on October 26, 1961. It extended copyright protection from the author of a work to the creators and producers of particular, physical embodiments of the work. These "fixations" include media such as audiocassettes, CDs, and DVDs.  
By 1961, technology had progressed significantly since the Berne Convention was signed. Some inventions, such as tape recorders, had made it easier to copy recorded works. The Berne Convention only applied to printed works and thus did not help copyright holders defend against the new technologies. To address the perceived need for strong legislative protection for recorded works, members of WIPO concluded the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations on October 26, 1961. It extended copyright protection from the author of a work to the creators and producers of particular, physical embodiments of the work. These "fixations" include media such as audiocassettes, CDs, and DVDs.  


The Rome Convention requires member countries to grant protection to the works of performers, producers of phonographs, and broadcasting organizations. However, once a performer has consented to the incorporation of her performance in a visual or audiovisual fixation, the provisions on performers’ rights have no further application. Equally important, the Convention allows member countries to create certain exceptions to the rights of performers, producers of phonographs, and broadcasting organizations – for example, to permit nonpermissive uses of a work for the purpose of teaching or scientific research.
The Rome Convention requires member countries to grant protection to the works of performers, producers of phonographs, and broadcasting organizations. However, it also permits member countries to create exceptions to that protection -- for example, to permit unauthorized uses of a recording for the purpose of teaching or scientific research.


[http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=17 86 countries have signed the Rome Convention]. Below is a map of the member states of the Rome Convention:
[http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=17 Eighty-eight countries have signed the Rome Convention]. Below is a map of the member states:
[[Image:Map2.png]]


Membership in the Rome Convention is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention. Like many international treaties, joining the Rome Convention has an uncertain effect on domestic law. Countries that join the convention may "reserve" certain rights with regards to certain provisions of the treaty. In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.  
<div style="border: 1px dashed grey; padding: .5em 1em; margin: 3px 3px 1em 3px; width: 721px;">
[[Image:Map2.png|721px]]
</div>


For more information on the Rome Convention you may [http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html read its text] or read more about the [[Rome Convention provisions]].
Membership in the Rome Convention is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention. Like many international treaties, joining the Rome Convention has an uncertain effect on domestic law. Countries that join the convention may "reserve" their rights with regards to certain provisions of the treaty. In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.
 
For more information on the Rome Convention you may [http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html <span style="color:red;">read its text</span>] or read more about the [[Rome Convention provisions]].


====WIPO Copyright Treaty (WCT) ====
====WIPO Copyright Treaty (WCT) ====


The way that copyright owners reproduce, distribute, and market their works has changed in the digital age. Sound recordings, articles, photographs, and books are commonly stored in electronic formats, circulated via the Internet, and compiled in databases. Unfortunately, the same technologies that enable more efficient storage and distribution of works also facilitate widespread copyright infringement. In order to protect copyright in the new technological era and to combat what has come to be called (misleadingly) '''“electronic piracy,”''' the governments of developed countries advocated for and ultimately secured two treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.
The way that copyright owners reproduce, distribute, and market their works has changed in the digital age. Sound recordings, articles, photographs, and books are commonly stored in electronic formats, circulated via the Internet, and compiled in databases. Unfortunately, the same technologies that enable more efficient storage and distribution have also facilitated widespread copying of copyrighted works. Concerned about the effects of these new technologies, the governments of developed countries advocated for and ultimately secured two treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.


The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that entered into force on March 6, 2002. It is the first international treaty that requires countries to provide copyright protection to computer programs and to databases (compilations of data or other material).
The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that entered into force on March 6, 2002. It is the first international treaty that requires countries to provide copyright protection to computer programs and to databases (compilations of data or other material).


The WCT also requires members to prohibit the circumvention of technologies set by rightsholders to prevent the copying and distribution of their works. These technologies might include encryption or “rights management information” (data that identify works or their authors, and that are necessary for the management of their rights).
The WCT also requires members to prohibit the circumvention of technologies set by rightsholders to prevent the copying and distribution of their works. These technologies include encryption or “rights management information” (data that identify works or their authors and are necessary for the management of their rights).


[http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16 70 countries are party to the WCT]. Below is a map of the member states:
[http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16 Eighty-eight countries are now parties to the WCT].  


[[Image:Map4.png]]
For more about the WCT [http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html <span style="color:green;">read its text</span>] or read the [[Examination of the WCT]].
 
For more about the WCT [http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html read its text] or read the [[Examination of the WCT]].


====WIPO Performances and Phonograms Treaty (WPPT)====  
====WIPO Performances and Phonograms Treaty (WPPT)====  


The WIPO Performances and Phonograms Treaty (WPPT) was signed by the member states of WIPO on December 20, 1996. WPPT enhances the intellectual property rights of performers and of producers of '''phonograms'''. Phonograms include vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings.
The WIPO Performances and Phonograms Treaty (WPPT) was signed by the member states of WIPO on December 20, 1996. The WPPT enhances the intellectual property rights of performers and of producers of '''phonograms'''. Phonograms include vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings.


The WPPT grants performers economic rights in their performances that have been fixed in phonograms. It also grants performers moral rights over these performances. By contrast, the producers of phonograms are only granted economic rights in them.  
The WPPT grants performers economic rights in their performances that have been fixed in phonograms. It also grants performers moral rights over these performances. By contrast, the producers of phonograms are only granted economic rights in them.


Both the WCT and the WPPT (like the TRIPs Agreement, which we will consider shortly) require members to quickly adopt and enforce the provisions of the treaty.  
[http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=20 Eighty-six countries are party to the WPPT].


[http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=20 68 countries are party to the WPPT]. Below is a map of the member countries: 
For more about the WPPT [http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html <span style="color:red;">read its text</span>] or consult the [[Examination of the WPPT]].
[[Image:Map5.png]]


For more about the WPPT [http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html read its text] or consult the [[Examination of the WPPT]].
====The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)====


====Universal Copyright Convention====
The TRIPS is an international agreement administered by the WTO that was negotiated and concluded in 1994. A map showing the current membership of the WTO is available [http://en.wikipedia.org/wiki/World_Trade_Organization_accession_and_membership <span style="color:red;">here</span>]. TRIPS establishes minimum standards for many forms of intellectual property protection in member countries of the WTO, including copyright.


The '''Universal Copyright Convention''' (or '''UCC''') was developed by '''UNESCO''' and adopted in 1952. It was created as an alternative to the Berne Convention. The UCC addressed the desire of several countries (including  U.S.A. and the Soviet Union) to enjoy some multilateral copyright protection without joining the Berne Convention.  
The substantive provisions of TRIPS do not differ drastically from the Berne Convention. The major difference is that TRIPS requires member countries to grant copyright protection to computer programs and data compilations. However, TRIPS does not require the protection of authors' moral rights, which the Berne Convention requires.


The UCC’s provisions are more flexible than those of the Berne Convention. This increased flexibility was intended to accommodate countries at different stages of development and countries with sharply different economic and social systems. It incorporates the principle of national treatment and prohibits any discrimination against foreign authors.  
The most important innovations of TRIPS are the remedies it requires.  Unlike the Berne Convention, TRIPS requires member countries to provide effective sanctions for violations of copyrights.  In addition, it creates a dispute resolution mechanism by which WTO member countries can force other members to comply with their treaty obligations. It is sometimes said that, unlike the Berne convention, TRIPS has "teeth."


The UCC has decreased in importance as most countries are now party to the Berne Convention and/or members of the World Trade Organization (WTO).  The copyright obligations of members of the WTO are governed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), discussed below.  
TRIPS allows for some flexibility in its implementation.  This flexibility is intended to permit developing nations to balance the incorporation of the general principles of TRIPS with development concerns.  You can study additional [[information concerning the flexibilities]] of TRIPS for developing nations.  


You may check if your country is a member of the UCC by reviewing[http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf this list]. For more information about the UCC you may [[http://www.ifla.org/documents/infopol/copyright/ucc.txt read its text] or consult the [[Examination of the UCC]].
The text of the TRIPS Agreement is available [http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm <span style="color:red;">here</span>].


====The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)====
====The proposed Anti-Counterfeiting Trade Agreement (ACTA)====


The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO). The TRIPS agreement was negotiated and concluded in 1994. TRIPS establishes minimum standards for many forms of intellectual property protection in member countries, including copyright.  
The six multilateral treaties described above may soon be joined by a seventh.  In October 2007, the United States, the European Community, Switzerland, and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement (ACTA). Australia, the Republic of Korea, New Zealand, and Mexico have since joined the negotiations. Several rounds of negotiations have occurred. The participants have stated publicly that they expect to finish negotiations in 2010.


The substantive provisions of TRIPS do not differ significantly from the Berne Convention.  The major difference is that TRIPS requires member countries to protect computer programs and data compilations. However, TRIPS does not mandage the protection of authors' moral rights, which the Berne Convention requires.
Among other issues, ACTA will contain provisions to address "Internet distribution and information technology," such as authorizing officials to search for illegally downloaded music on personal devices at airports, or forcing Internet Service Providers to provide information about possible copyright infringers without a warrant.


The most important innovations of TRIPs are the remedies it requires. First, unlike Berne, TRIPs requires member countries to provide effective sanctions for violations of copyrights.  Second, it creates a dispute resolution mechanism by which countries can force other members to comply with their treaty obligations.  It might be said that, unlike the Berne convention, TRIPS has '''teeth'''.
===Regional Agreements===


As with all copyright law, TRIPS attempts to strike a balance between the public's interest in free expression and the rights of copyright holders. TRIPS allows member states to establish limitations and exceptions to the rights of copyright holders if they meet the requirements of the '''three step test.''' You can read more [[information concerning the three-step test]].  
The multilateral agreements we have just described contain the primary provisions that limit the freedom of each country in shaping its own copyright laws. But some countries also belong to regional organizations that have the power to influence the copyright laws of their members.


Finally, TRIPS allows for some flexibility in its implementation. This flexibility is intended to permit developing nations to balance the incorporation of the general principles of TRIPS with development concerns. You can study additional [[Information concerning the flexibilities]] of TRIPS for developing nations.  
The most important such regional organization is the '''European Union''', commonly known as the '''EU'''.  (A map showing the current membership of the EU, as well as the candidates for admission to the EU, is available [http://www.ezilon.com/european_maps.htm here].)  Beginning in 1991, the EU has adopted several directives relating to copyright law.  (A directive obliges the member countries to bring their laws into conformity with its requirements by a particular date, but leaves to each country's discretion some flexibility in achieving that goal.)  For example, the Software Directive required member countries to grant copyright protection to the authors of software programs, regardless of how creative those programs are.  The [http://en.wikipedia.org/wiki/Rental_Directive <span style="color:green;">Rental Rights Directive</span>] required member countries to recognize "a right to authorize or prohibit the rental and lending of originals and copies of copyright works...."  (The background of this innovation and its significance for librarians will be discussed in [[Module 4: Rights, Exceptions, and Limitations|Module 4]]). The [http://en.wikipedia.org/wiki/Copyright_Duration_Directive_(93/98/EEC) <span style="color:green;">Copyright Duration Directive<span>] required member countries to extend copyright protection to the life of the author plus 70 years (20 years more than the term required by the Berne Convention).  The controversial [http://en.wikipedia.org/wiki/Directive_on_the_harmonisation_of_certain_aspects_of_copyright_and_related_rights_in_the_information_society <span style="color:green;">Information Society Directive</span>] (also sometimes known as the Copyright Directive) was adopted in 2001 to implement the WCT, discussed above. (The main provisions of the Information Society Directive will be discussed in subsequent modules.)  And the [http://en.wikipedia.org/wiki/Resale_Rights_Directive <span style="color:green;">Resale Rights Directive</span>] obliges member countries to grant the creators of original works of art a right to remuneration when those works are resold.


For more about TRIPS you may [http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.html read its text] or consult the [[Examination of the TRIPS provisions]].
Equally important for many African countries is the revised [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf <span style="color:green;">Bangui Agreement</span>] (executed in 1999; effective in 2002), which governs the member countries of the [http://www.oapi.wipo.net/fr/OAPI/index.htm '''African Intellectual Property Organization (OAPI)'''] ('''Benin, Burkina Faso, Cameroon, Central Africa, Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad, and Togo''').  Articles 8 and 10 of Annex VII of the Agreement set forth an especially generous list of moral rights (reflecting its origins in French copyright law), while Article 9 sets forth a similarly generous list of economic rights, including the rental right.  Articles 11 through 21 then carve out of those rights a long list of exceptions and limitations (to which we will return in Modules [[Module 4: Rights, Exceptions, and Limitations|4]] and [[Module_5:_Managing_Rights|5]]).


====The proposed Anti-Counterfeiting Trade Agreement (ACTA)====
The '''North American Free Trade Agreement (NAFTA)''', which was entered into by '''Canada, the United States, and Mexico''' in 1994, limits the discretion of those three countries in defining their intellectual-property laws. However, with respect to copyright laws in particular, NAFTA closely parallels the TRIPS Agreement, discussed above, and thus has relatively little independent significance.


These six multilateral treaties may soon be joined by a seventh.  In October 2007, the United States, the European Community, Switzerland, and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement (ACTA). Australia, the Republic of Korea, New Zealand and Mexico have since joined the negotiations. Several rounds of negotiations have occurred. Participants have stated publicly that they expect to finish negotiations in 2010.
Other regional organizations that could influence their member countries' copyright systems -- but that have not yet, for the most part, done so -- include [http://www.comunidadandina.org/index.htm '''The Andean Community'''] ('''Bolivia, Colombia, Ecuador, and Peru'''), [http://www.mercosur.int/msweb/Portal%20Intermediario/ '''Mercosur'''] ('''Argentina, Brazil, Paraguay, Uruguay,''' and (perhaps soon) '''Venezuela'''), and the [http://www.aripo.org/ '''African Regional Intellectual Property Organization (ARIPO)'''] ('''Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe''').


Among other issues, ACTA will contain provisions to address "Internet distribution and information technology," such as authorizing officials to search for illegally downloaded music on personal devices at airports, or forcing Internet Service Providers to provide information about possible copyright infringers without a warrant.
===Free Trade Agreements and Bilateral Investment Treaties===


===Free Trade Agreements and Bilateral Investment Treaties===
Multilateral treaties such as TRIPS can provide powerful global protection for copyright holders  because they establish minimum standards for protection of copyrights that are binding on large numbers of countries.  However, copyright holders sometimes try to obtain even stronger protections through bilateral treaties between countries or organizations of countries. Bilateral treaties on copyright law often address specific issues between the the two parties. Such agreements are commonly known as '''free trade agreements''' (FTAs) or '''Bilateral Investment Treaties''' (BITs).


Multilateral treaties such as TRIPS can provide powerful global protection for copyright holders  because they establish minimum standards for protection of copyrights that are binding on large numbers of countries.  However, they do not eliminate the incentives for bilateral treaties between countries or organizations of countries. Bilateral treaties on copyright law often address specific issues between the the two parties. Such agreements are commonly known as '''free trade agreements''' (FTAs) or '''Bilateral Investment Treaties''' (BITs).
Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under TRIPS or impose more stringent standards for copyright protection.  For example, the U.S. government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman.  Similarly, the European Union has recently negotiated FTAs with developing countries that significantly limit the discretion of those countries in adjusting their copyright laws.


Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under TRIPS or impose more stringent standards for copyright protection.  For example, the US government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman.
FTAs and BITs are highly controversial.  Many scholars and representatives of developing countries regard them as abuses of the power of developed countries.  Opponents of proposed FTAs or BITs have sometimes been able to prevent their adoption or modify them.


Click here for more [[Information on FTAs]].
Click here for more [[Information on FTAs]].
===The Three-Step Test===
Most of the major multilateral, regional, and bilateral agreements use a tool that has come to be known as the “three-step test” to define the freedom of member countries to create “exceptions and limitations” to copyrights.  The three-step test was first created in the 1967 revision of the Berne Convention.  It provides:
''"It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works [a] in certain special cases, provided that [b] such reproduction does not conflict with a normal exploitation of the work and [c] does not unreasonably prejudice the legitimate interests of the author."''
Most international copyright agreements since then have incorporated versions of this test.  For example, versions of the test may be found in the TRIPS Agreement (Article 13), the WCT (Article 10), several of the EU copyright directives, and several bilateral agreements.  Indeed, three-step tests may now be found in the national legislation of many countries, including France, Portugal, China, and Australia.  Even when national legislation does not explicitly incorporate the test, judges sometimes rely upon it when construing and applying their nation's copyright laws.
The coverage of the different versions of the test varies somewhat.  For example, whereas the Berne Convention three-step test only applies to exceptions and limitations to the right of reproduction, the three-step test contained in Article 13 of the TRIPS Agreement applies to exceptions and limitations to any of the “exclusive rights” associated with copyright.  In addition, the language used in the different versions varies.  For example, whereas the third step of the Berne Convention test (quoted above) requires that an exception or limitation “not unreasonably prejudice the legitimate interests of the author,” the third step of the TRIPS test requires that an exception or limitation “not unreasonably prejudice the legitimate interests of the right holder” – a change that shifts attention away from the interests of creators toward the economic interests of the companies that acquire copyrights from the original creators.
Given the prevalence of the three-step test and the long period of time in which it has existed, you might expect that the meaning of the test would by now be clear.  Not so.  The version of the test contained in the Berne Convention has never been interpreted officially.  The version contained in Article 13 of the TRIPS Agreement has only been officially interpreted once by a dispute resolution panel, and how far that interpretation should control other countries in the future is not clear.  Moreover, the courts in different European countries have construed the test in inconsistent ways in functionally identical cases.
Given this uncertainty, commentators and lobbyists disagree sharply about how restrictive the three-step test really is.  At one extreme, some claim that the fair use doctrine in the United States (which we will discuss in [[Module 4: Rights, Exceptions, and Limitations|Module 4]]) violates the test -- and thus that the United States should repeal the fair use doctrine and that developing countries may not adopt similar doctrines.  As [http://williampatry.blogspot.com/2008/04/fair-use-three-step-test-and-european.html <span style="color:green;">William Patry has demonstrated</span>], this interpretation is implausible -- as shown most clearly by the failure of any of the countries involved in the negotiation of the TRIPS Agreement or the accession by the United States to the Berne Convention to object to the fair use doctrine in the United States.
At the opposite extreme, a group of prominent and influential copyright scholars have recently proposed [http://www.ip.mpg.de/ww/de/pub/aktuelles/declaration_on_the_three_step_.cfm <span style="color:red;">"A Balanced Interpretation of the Three-Step Test in Copyright Law"</span>].  They argue that an exception or limitation that fails to satisfy one of the three steps should not necessarily be deemed to violate the test.  Rather, all three components of the test should be considered together in a "comprehensive overall assessment" that takes into account the threats that excessive levels of copyright protection pose to "human rights and fundamental freedoms," "interests in competition," and "other public interests, notably in scientific progress and cultural, social, or economic development" -- in addition to the important interests of copyright holders in fair compensation.  This proposal has two strengths.  First, it fits well the underlying purpose of the copyright system as a whole, which, as we have seen, seeks to balance the interests of creators with the interests of society at large in maximizing access to ideas and information.  Second, it derives support from the reference in all versions of the test to the "legitimate" interests of either authors or right holders.  It does, however, have one weakness:  virtually all courts and tribunals that have considered the test to date have concluded that all three of its "steps" must be satisfied.
Another interpretation that does not suffer from this weakness but that preserves the strengths of the proposed "Balanced Interpretation" has been offered recently by [http://www.ivir.nl/publicaties/hugenholtz/finalreport2008.pdf <span style="color:red;">Professors Hugenholtz and Okediji</span>]:  ''"Limitations and exceptions that (1) are not overly broad, (2) do not rob right holders of a real or potential source of income that is substantive, and (3) do not do disproportional harm to the right holders, will pass the test."''  This proposal is grounded in a long and detailed discussion of the evolution of the three-step test and deserves careful consideration.
An important general lesson may be derived from this situation:  The meaning of copyright laws of all sorts -- including international copyright agreements -- is often less clear than first appears.  Many rules have not yet been interpreted authoritatively.  This creates opportunities for librarians or other representatives of developing countries to argue for and act upon interpretations that give them more freedom when shaping their own laws.  In subsequent modules, we will come across several such opportunities.


== Perspectives For Developing Countries ==
== Perspectives For Developing Countries ==
Line 158: Line 177:
====The Benefits and Drawbacks of Copyright Law for Developing Countries====
====The Benefits and Drawbacks of Copyright Law for Developing Countries====


Some believe that governments should upgrade and harmonize copyright law globally because it promotes the arts and rewards creators. They argue that granting an exclusive right in creative expression provides a necessary incentive for copyright holders to invest in the creation and distribution of expressive works. This stimulates cultural expression and benefits citizens.  
Some observers believe that governments should upgrade and harmonize copyright law globally because it promotes the arts and rewards creators. They argue that granting an exclusive right in creative expression provides a necessary incentive for copyright holders to invest in the creation and distribution of expressive works. This stimulates cultural expression and benefits citizens.  Suppression of competition from "pirates," they argue, is necessary to allow local creative industries to flourish.  


However, others argue that implementing the same copyright law in all countries has a disproportionate and detrimental effect on developing countries. Most developed nations have powerful and lucrative entertainment, educational, and research industries that export copyrighted works, and thus benefit from strong copyright law. Developing countries, on the other hand, typically import copyrighted works.  Thus, it is argued, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection. It is also argued that restrictive copyright laws prevent many governments from fulfilling important human rights obligations - such as providing educational resources - because critical information is locked up by the law.  
However, others argue that implementing the same copyright law in all countries has a disproportionate and negative effect on developing countries. Most developed nations have powerful and lucrative entertainment, educational, and research industries that export copyrighted works, and thus benefit from strong copyright law. Developing countries, on the other hand, typically import copyrighted works.  Thus, it is argued, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection. It is also argued that restrictive copyright laws prevent many governments from addressing important social needs -- such as providing their citizens with good educations -- because critical information is locked up by the law.  


The latter set of arguments have has prompted a growing number of groups in developing countries to resist the imposition of the minimum standards of copyright protection set by the TRIPS agreement and the even harsher duties that are imposed on developing countries by FTAs. They call for a better balance between, on one hand, providing incentives to creators and rewarding their creative activities and, on the other hand, promoting access to knowledge and research, in order to spur economic growth and foster innovation in the developing countries.
The latter set of arguments have prompted a growing number of groups in developing countries to resist the imposition of the minimum standards of copyright protection set by the TRIPS Agreement and the even harsher duties that are imposed on developing countries by FTAs. They call for a better balance between, on one hand, providing incentives to creators and rewarding their creative activities and, on the other hand, promoting access to knowledge and research in order to spur economic growth and foster innovation in the developing countries.


====WIPO Development Agenda====
====WIPO Development Agenda====


The WTO has entered into an agreement with WIPO to provide advice to developing countries on the implementation of TRIPs.  Some in developing countries consider the advice provided by WIPO to be too weighted in favor of the rights of copyright holders.  In 2004, Brazil and Argentina submitted to the '''WIPO General Assembly''' a proposal for a “development agenda.”  [http://www.wipo.int/documents/en/document/govbody/wo_gb_ga/pdf/wo_ga_31_11.pdf The proposal] called on WIPO to pay greater attention to the impact of intellectual property protection on economic and social development, the need to safeguard flexibilities designed to protect the public interest, and the importance of promoting “development oriented” technical cooperation and assistance.  Additional proposals in support of a WIPO Development Agenda were submitted by other member countries and organizations, such as Chile, the Group of Friends of Development, and the Africa Group.  
The WTO has entered into an agreement with '''WIPO''' to provide advice to developing countries on the implementation of TRIPS.  Some in developing countries consider the advice provided by WIPO to be too weighted in favor of the interests of copyright holders.  In 2004, Brazil and Argentina submitted to the '''WIPO General Assembly''' a proposal for a “development agenda.”  [http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_31/wo_ga_31_11.pdf <span style="color:red;">The proposal</span>] called on WIPO to pay greater attention to the impact of intellectual property protection on economic and social development, the need to safeguard flexibilities designed to protect the public interest, and the importance of promoting “development oriented” technical cooperation and assistance.  Additional proposals in support of a WIPO Development Agenda were submitted by other member countries and organizations, such as Chile, the Group of Friends of Development, and the Africa Group.  


This initiative has made considerable progress.  The 2004 WIPO General Assembly agreed to hold a series of intergovernmental meetings to examine the proposals for a development agenda. Substantive reform proposals to establish a development agenda for WIPO passed during the 2007 WIPO General Assembly. The [http://www.wipo.int/ip-development/en/agenda/recommendations.html current WIPO Development Agenda contains 45 recommendations] for the General Assembly to pursue.  
This initiative has made considerable progress.  The 2004 WIPO General Assembly agreed to hold a series of intergovernmental meetings to examine the proposals for a development agenda. Substantive reform proposals to establish a development agenda for WIPO passed during the 2007 WIPO General Assembly. The [http://www.wipo.int/ip-development/en/agenda/recommendations.html <span style="color:red;">current WIPO Development Agenda</span>] contains 45 recommendations for the General Assembly to pursue.  


Organizations representing librarians have had a significant voice in the negotiations of the WIPO Development Agenda. Joint statements of the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), and Electronic Information for Libraries (eIFL) are available [http://www.eifl.net/cps/sections/services/eifl-ip/issues/wipo-development-agenda here]. Click here for more [[information on the WIPO development agenda]].
Organizations representing librarians have had a significant voice in the negotiations of the WIPO Development Agenda. Joint statements of the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), and Electronic Information for Libraries (eIFL) are available [http://www.eifl.net/cps/sections/services/eifl-ip/issues/wipo-development-agenda <span style="color:red;">here</span>].


====The Proposed Access to Knowledge (A2K) Treaty====
====The Proposed Access to Knowledge (A2K) Treaty====


The Argentina-Brazil proposal for a development agenda prompted a debate on whether WIPO should ensure effective technology transfer from developed to developing countries. Nongovernmental organisations (NGOs), academics, and researchers shared the concerns expressed by developing countries that aspects of the copyright system were actually impeding innovation and creating disadvantages for developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge; it has come to be known as the “access to knowledge” or '''“A2K”''' movement.  Librarians’ organizations, such as eIFL, were pioneers in the advocacy of a “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.
The Argentina-Brazil proposal for a development agenda prompted a debate on whether WIPO should work to ensure effective technology transfer from developed to developing countries. Nongovernmental organizations (NGOs), academics, and researchers shared the concerns expressed by developing countries that aspects of the copyright system were impeding innovation and creating disadvantages for developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge; it has come to be known as the “access to knowledge” or '''“A2K”''' movement.  Librarians’ organizations, such as eIFL, were pioneers in the advocacy of a “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.


One outgrowth of the movement has been a [http://www.cptech.org/a2k/a2k_treaty_may9.pdf proposal for a United Nations treaty]. The proposed treaty intends to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.”  It includes a list of exceptional circumstances under which copyright holders may not prevent the free use of their content, including:  
One outgrowth of the movement has been a [http://www.cptech.org/a2k/a2k_treaty_may9.pdf <span style="color:red;">proposal for a United Nations treaty</span>]. The proposed treaty intends to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.”  It includes a list of circumstances under which copyright holders may not prevent the free use of their content, including:  


* The use of works for purposes of library or archival preservation, or to migrate content to a new format.
* The use of works for purposes of library or archival preservation, or to migrate content to a new format.
* The efforts of libraries, archivists, or educational institutions to make copies of works that are protected by copyright but that are not currently the subject of commercial exploitation, for purposes of preservation, education, or research.
* The efforts of libraries, archivists, or educational institutions to make copies of works that are not currently the subject of commercial exploitation, for purposes of preservation, education, or research.
* The use of excerpts, selections, and quotations from copyrighted works for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.
* The use of excerpts, selections, and quotations from copyrighted works for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.
* The use of copyrighted works by educational institutions as primary instructional materials, if those materials are not made readily available by copyright holders at a reasonable price.
* The use of copyrighted works by educational institutions as primary instructional materials if those materials are not made readily available by copyright holders at reasonable prices.


In addition, the proposal advocates a '''First Sale Doctrine''' for '''Library Use''', stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.”  Finally, the A2K treaty proposal introduces provisions in support of distance education, as well as provisions accommodating the rights of persons with disabilities.  
In addition, the proposed treaty would establish a '''First Sale Doctrine''' for '''Library Use''', stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.”  Finally, the A2K treaty proposal introduces provisions in support of distance education, as well as provisions accommodating the rights of persons with disabilities.  


Librarians and library patrons aren’t the only parties who could benefit from the A2K treaty.  The proposal includes rules protecting '''Internet Service Providers''' from copyright liability, and also mitigates the strict circumvention prohibitions contained in the international copyright treaties. Under the proposed treaty, '''Nonoriginal''' and '''orphan works''' (those works for which a copyright holder cannot be identified upon reasonable search) would be left in the '''public domain'''. The treaty would also guarantee access to publicly funded research works, government works, and archives of public broadcasting. Finally, the A2K treaty proposal also includes provisions on patent protection, anticompetitive practices, and transfer of technology to developing countries.
Librarians and library patrons aren’t the only parties who could benefit from the A2K treaty.  The proposal includes rules protecting '''Internet Service Providers''' from copyright liability and mitigates the strict prohibitions on circumvention of encryption contained in several international copyright treaties. Under the proposed treaty, '''nonoriginal''' and '''orphan works''' (those works for which a copyright holder cannot be identified upon reasonable search) would be left in the '''public domain'''. The treaty would also guarantee access to publicly funded research works, government works, and archives of public broadcasting. Finally, the A2K treaty proposal also includes provisions on patent protection, anticompetitive practices, and transfer of technology to developing countries.


Click this link for additional [[information on the A2K Treaty proposal]].
<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">
<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffff; margin: 3px 3px 1em 3px;">


== Back to the Case Study ==
== [[Image:casestudy.png|50px|]] Back to the Case Study ==


Nadia knows that Mexico is a member of the Berne Convention, Rome Convention, WCT and WPPT. Mexico is also a member of the WTO, and thus bound by the provisions of TRIPs. After checking the online databases provided on the WIPO website she discovered that:
To advise Angela, Nadia should review the lists of the member countries of all of the international agreements discussed in this lesson to ascertain whether their country has joined any of those agreements. She should then review the terms of any applicable agreements to determine whether they prevent expansion of the rights of teachers and students to use copyrighted materials without permission.  That inquiry will likely require Nadia to consider which of the various interpretations of the three-step test is most sensible and the extent to which that test limits a country's discretion in recognizing exceptions and limitations for educational purposes.  That analysis will be difficult and may require Nadia to consult with fellow librarians.


* Ethiopia isn’t a member of any of the international treaties on copyright protection. Thus, the national government of that country regulates copyright differently than the rest of the world. Therefore Nadia must separately study Ethiopian copyright law.
</div>
* Russia has signed the Berne Convention as well as the Rome Convention, but isn’t yet a member of the WTO. Neither the Berne nor the Rome Convention have a mechanism for other countries to challenge a member's implementation of its treaty obligations. Furthermore, the Rome Convention allows countries to make reservations with regard to the application of certain provisions, so Russia may not have implemented all of the treaty provisions. In addition, Russia has signed the WCT, but the treaty hasn’t yet entered into force in Russia.  In other words, although Russia has signed the treaty, it hasn’t yet been incorporated into Russian law, and thus does not bind Russian citizens.  Russia also isn’t a member of the WPPT.
* India is a party to the Berne Convention and the Rome Convention and is also a member of the WTO.  As a member of the WTO, India is bound by the TRIPs Agreement. TRIPs requires WTO members to comply with the substantive provisions of the Berne Convention, with the exception of the recognition of moral rights. Therefore, Nadia can rely on the fact that the substantive requirements for copyright protection in Mexico and India are similar. However, India hasn’t signed the WCT and the WPPT. Thus, Nadia would have to consult Indian copyright law to determine how it regulates copyright protection of computer programs and databases and the rights of performers and of producers of phonograms.
* Finally Belgium is a member of all of the international treaties on copyright protection discussed above.  Thus, Belgian copyright law is likely to be similar to Mexican copyright law in many respects.


As a result, Nadia can only apply for the exchange program in Belgium, as she knows the basic framework for copyright protection in Belgium, based on her knowledge of Mexican copyright law.  
==[[image:resource.png|50px|]] Additional resources ==


A thorough discussion of international copyright law may be found in Paul Edward Geller, ed., <i>International Copyright Law and Practice</i> (2 volumes, Matthew Bender), although its coverage of developing and transitional countries is thin.  (It is also [http://www.lexisnexis.com/store/catalog/productdetail.jsp?prodId=10440 prohibitively expensive]).  Other useful paper treatises include Paul Goldstein, <i>International Copyright: Principles, Law, and Practice</i> (Oxford University Press) and Silke von Lewinski, <i>[http://ukcatalogue.oup.com/product/9780199207206.do International Copyright Law and Policy]</i> (Oxford University Press 2008).


</div>
An online course on International Copyright Law, directed at librarians, may be found [http://sla.learn.com/learncenter.asp?page=258 here], but it is also expensive.
 
An excellent compendium of the copyright laws in over 100 countries has been assembled by [http://portal.unesco.org/culture/en/ev.php-URL_ID=14076&URL_DO=DO_TOPIC&URL_SECTION=201.html UNESCO: Collection of National Copyright Laws].
 
As indicated above, an especially important component of most international copyright agreements is the three-step test.  The most comprehensive and accessible examination of the history and meaning of that test may be found in [http://www.ivir.nl/publicaties/hugenholtz/finalreport2008.pdf <span style="color:red;">P. Bernt Hugenholtz & Ruth L. Okediji, Conceiving an International Instrument on Limitations and Exceptions to Copyright: Final Report, March 06, 2008</span>].  Other good analyses of the three-step test available in print but not online include Martin Senftleben, <i>Copyright, Limitations and the Three-Step Test</i> (Kluwer Law Int'l 2004); and Jane C. Ginsburg, "Toward Supranational Copyright Law? The WTO Panel Decision and the "Three Step Test" for Copyright Exemptions," 187 Revue internationale Du Droit D'Auteur 3, 49 (2001).
 
A thorough review of the principal exceptions and limitations to copyrights recognized by the main multilateral agreements -- combined with a argument for the clarification and expansion of those exceptions and limitations, emphasizing "the importance of access to creative works for developing countries" -- may be found in [http://www.iprsonline.org/unctadictsd/docs/ruth%202405.pdf <span style="color:green;">Ruth L. Okediji, "The International Copyright System:  Limitations, Exceptions and Public Interest Considerations for Developing Countries, International Centre for Trade and Sustainable Development and United Nations  Conference on Trade and Development," Issue Paper No. 15 (2006)</span>].  Included in Okediji's essay is an excellent discussion of the Berne Convention Appendix.
 
For a WIPO study more skeptical of the value of those exceptions and limitations, see [http://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_7.pdf <span style="color:green;">WIPO Standing Committee on Copyright and Related Rights, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, 9th Session, June 23-27, 2003, WIPO Doc. SCCR/9/7 (April 5, 2003)</span>].
 
An excellent study of the process of implementing the TRIPS Agreement (including a detailed discussion of the complex processes that led to the revised Bangui Agreement among the OAPI countries) can be found in Carolyn Deere, <i>The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries</i> (Oxford UP 2009).  The Introduction, which sketches the argument of the book, is available online [http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=1405224 <span style="color:green;">here</span>].
 
For up-to-date information concerning the implementation of the EU Information Society Directive by individual countries, including a good bibliography of scholarly studies of the implementation process, see Instituut voor Infomatierecht (IVIR),  [http://www.ivir.nl/files/implementation_2001_29_EC/index_eng.html Report on the Implementation of the Information Society Directive] (2008).
 
==Cases==


== Assignment and discussion questions ==
The following judicial opinion and summaries of rulings issued in WTO dispute resolution proceedings explore and apply some of the principles discussed in this module:


'''Round 1 questions'''
[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61992J0092:EN:HTML <span style="color:red;">Joined Cases C-92/92 and C-326/92, Phil Collins v Imtrat Handelsgesellschaft mbH; Patricia Im-und Export Verwaltungsgesellschaft mbH and Another v EMI Electrola GmbH (1993)</span>] (Applicability of the EEC Treaty to IP rights)


1. Which international treaties governing copyright law has your country signed, ratified, and implemented?
[http://cyber.law.harvard.edu/people/tfisher/IP/Henry%202001.pdf <span style="color:green;">Sarah E. Henry, "The First International Challenge to U.S. Copyright Law: What Does the WTO Analysis of 17 U.S.C. § 110(5) Mean to the Future of International Harmonization of Copyright Laws Under the TRIPS Agreement?," 20 Penn State International Law Review 301 (2001).</span>] (EU vs. US)


2. If your country is a member of the Berne Convention, may your national legislature freely set the copyright term to either a) 120 years or b) 25 years? Why or why not?
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1516907 <span style="color:red;">Jan Bohanes & Adrian Emch, "WTO Panel Report on China IPR: A Mixed Result," China Law & Practice, pp. 19-20, March 2009</span>] (US vs. China)


3. Imagine that your country is a member of the Berne Convention, but not of the WTO. Thus, your country is not bouned by TRIPs.
== [[image:question.png|50px|]] Assignment and discussion questions ==
* May your national legislature require foreign copyright holders to register their works with your country in order to receive copyright protection?
* If your legislature ''did'' require registration, could other members of the Berne Convention take action against your country? How would your answer be different if your country was also a member of the WTO?


4. Imagine that both your country and the fictional country of Atlantis are members of the Rome Convention. Could your legislature allow music teachers in your country to freely use recordings of Atlantean singers in their classes? Could Atlantis demand that your legislature require the music teachers to compensate the Atlantean singers?
'''[[image:assignment.png|50px|]]Assignment'''


5. Atlantis has recently signed and ratified the WIPO Copyright Treaty. Its national legislature wants to implement the treaty. Atlantis only imports software from other countries and it has never before protected them under copyright law. The legislature believes that it is in the interest of Atlanteans to extend as little copyright protection to computer programs as possible. What provisions of the WTC would allow Atlanteans to freely use computer programs?  
1. Which international treaties governing copyright law has your country signed, ratified, and implemented?  


6. What do you consider to be the advantages and the disadvantages of enhanced copyright protection for creative works?
2. If your country is a member of the Berne Convention, may your national legislature set the copyright term to either a) 120 years or b) 25 years? Why or why not?


7. Do you think that both developed and developing countries should have the same rules for copyright protection? Why or why not?
3. Imagine that your country is a member of the Berne Convention, but not of the WTO. Thus, your country is not bound by TRIPS.
* May your national legislature require foreign copyright holders to register their works with your country in order to receive copyright protection?  
* If your legislature ''did'' require registration, could other members of the Berne Convention take action against your country? How would your answer be different if your country were also a member of the WTO?  


8. Read article 3-1 of the [http://www.cptech.org/a2k/a2k_treaty_may9.pdf draft text of the A2K treaty].  
4. Suppose that the fictional country of Atlantis has recently signed and ratified the WCT. Its national legislature wants to implement the treaty. Atlantis only imports software from other countries and it has never before protected them under copyright law. The legislature believes that it is in the interest of Atlanteans to extend as little copyright protection to computer programs as possible. What provisions of the WTC would allow Atlanteans to freely use computer programs?
Comment on the importance of one or two provisions for the missions you perform as a librarian.


'''Round 2 questions'''
5. Do you think that both developed and developing countries should have the same rules for copyright protection? Why or why not?


Please read the comments on the A2K treaty proposals that your colleagues provided to Round 1 question 8, and comment on one (or more) of them. You may give more examples based on situations you have faced at work, or projects you could develop.
6. Read article 3-1 of the [http://www.cptech.org/a2k/a2k_treaty_may9.pdf draft text of the A2K treaty].
Comment on the importance of one or two provisions for the missions you perform as a librarian.


'''[[image:discussion.png|50px]]Discussion Question(s)'''


<div style="border: 1px solid #ffcc01; padding: .5em 1em; background-color:#ffffcc; margin: 3px 3px 1em 3px;">
Please read the comments on the A2K treaty proposals that your colleagues provided to question 6, above, and comment on one (or more) of them. You may give more examples based on situations you have faced at work, or projects you could develop.


'''Quick Access'''
== Contributors ==


* [http://cnx.org/content/col10698/latest/ Connexions]
This module was  created by [[Contributors#vantsiouri|Petroula Vantsiouri]]. It was then edited by a team including [[Contributors#diaz|Sebastian Diaz]], [[Contributors#fisher|William Fisher]], [[Contributors#gasser|Urs Gasser]], [[Contributors#holland|Adam Holland]], [[Contributors#isbell|Kimberley Isbell]], [[Contributors#jaszi|Peter Jaszi]], [[Contributors#maclay|Colin Maclay]], [[Contributors#moshirnia|Andrew Moshirnia]], and [[Contributors#peterson|Chris Peterson]].
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]


'''The textbook modules are available both on [http://cnx.org/content/col10698/latest/ Connexions] and on this wiki'''


* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''


</div>
{{NavFooter}}

Latest revision as of 22:03, 26 January 2013

Key.png Learning objective

This module explains how international copyright law works, how it affects developing countries, and how developing countries can affect it.

Casestudy.png Case study

Angela is troubled by the restrictions that copyright law places upon her ability to assemble and distribute course materials. She is considering writing a short article, arguing that her nation's copyright law should be reformed to give teachers and students more latitude. However, she has heard that international agreements may restrict the freedom that each country enjoys to define its own copyright laws. Before drafting her article, she asks Nadia's help in determining which, if any, international agreements are applicable in their own country.

Lesson.png Lesson

The Rationale for the International System

As we saw in Module 1: Copyright and the Public Domain, each country in the world has its own set of copyright laws. However, the flexibility that most countries enjoy in adjusting and enforcing their own laws is limited by a set of international treaties.

Why do we need any international management of this field? There are two traditional answers to this question.

First, without some international standardization, nations might enact legislation that protects their own citizens while leaving foreigners vulnerable. Such discrimination was common prior to international regulation. As copyright owners become increasingly interested in global protection for their creation, mutual recognition on fair terms of rights across borders becomes ever more important.

Second, some copyright holders believe that developing nations would not adopt adequate copyright protections unless forced to do so by treaty. Representatives of developing nations strongly dispute this argument.

International Instruments

The simplest way to achieve these goals would be a single treaty signed by all countries. Unfortunately, the current situation is more complex. Instead of one treaty, we now have six major multilateral agreements, each with a different set of member countries.

Each of the six agreements was negotiated within - and is now administered by - an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO); one by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one by the World Trade Organization (WTO).

The six agreements have been created and implemented in similar, though not identical, ways. Typically, the process begins when representatives of countries think that there should be international standards governing a set of issues. They enter into negotiations, which can last several years. During the negotiations, draft provisions are presented to the delegations of each country, which then discuss them and may propose amendments to their content in order to reach a consensus. This "consensus" may reflect genuine agreement among all of the participating countries that the proposed treaty is desirable, or it may result from pressure exerted by more powerful countries upon less powerful countries. Once consensus has been reached, the countries conclude the treaty by signing it. Thereafter, the governments of the participating countries ratify the treaty, whereupon it enters into force. Countries that did not sign the treaty when it was initially concluded may join the treaty later by accession.

In many countries -- especially those that follow the civil-law tradition -- treaties are regarded as "self-executing." In other words, once they are ratified, private parties can rely on them and, if necessary, bring lawsuits against other private parties for violations of the treaties' provisions. However, in other countries -- especially those influenced by the British or Scandinavian constitutional traditions -- treaties lack this self-executing authority. Instead, the national legislatures must adopt statutes implementing them, after which private parties rely on the terms of the implementing legislation, rather than on the terms of the treaties themselves.

None of the six treaties pertaining to copyright law contains a comprehensive set of rules or standards for a copyright system. Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member countries considerable discretion in implementing its requirements.

Click here for more on the stages of an international agreement.

Set forth below are brief descriptions of the six major treaties, with special attention to their impacts on developing countries.

Berne Convention

In 1886 ten European states signed the Berne Convention for the Protection of Literary and Artistic Works (referred to hereafter as the "Berne Convention") in order to reduce confusion about international copyright law. Since then, a total of 164 countries have joined the Berne Convention. However, there have been several revisions of the Berne Convention, and not all countries have ratified the most recent version. Any nation is permitted to join. You can check to see if your country is a member of the Berne Convention by consulting this link. Below is a map showing which countries are currently members.

Map1.png

The Berne Convention established three fundamental principles. The first and most famous is the principle of “national treatment,” which requires member countries to give the residents of other member countries the same rights under the copyright laws that they give to their own residents. So, for example, a novel written in Bolivia by a Bolivian citizen enjoys the same protection in Ghana as a novel written in Ghana by an Ghanian citizen.

The second is the principle of “independence” of protection. It provides that each member country must give foreign works the same protections they give domestic works, even when the foreign works would not be shielded under the copyright laws of the countries where they originated. For example, even if a novel written in Bolivia by a Bolivian national were not protected under Bolivian law, it would still be protected in Ghana if it fulfilled the requirements for protection under Ghanian law.

The third is the principle of “automatic protection.” This principle forbids member countries from requiring persons from other Berne Convention member countries to undergo legal formalities as a prerequisite for copyright protection. (They may impose such requirements on their own citizens, but usually do not.) The effect of this principle is that the Bolivian author of a novel doesn’t have to register or declare her novel in Ghana, India, Indonesia or any other member state of the Berne Convention; her novel will be automatically protected in all of these countries from the moment it is written.

In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements. For instance, they must enforce copyrights for a minimum period of time. The minimum copyright term for countries that have ratified the most recent version of the Berne Convention is the life of the author plus 50 years for all works except photographs and cinema. The Berne Convention also requires its members to recognize and enforce a limited subset of the “moral rights” discussed in Module 1.

The Berne Convention sets forth a framework for member countries to adopt exceptions to the mandated copyright protections. The so-called "three-step test" contained in Article 9(2) (discussed in more detail below) defines the freedom of member countries to create exceptions or limitations to authors' rights to control reproductions of their works. Other provisions of the Berne Convention give member countries discretion to create more specific exceptions.

When the Berne Convention was revised most recently in Paris in 1971, the signatory countries added an Appendix, which contains special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from the minimum standards of protection with regard to the right of translation and the right of reproduction of copyrighted works. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses to translate works for the purpose of teaching, scholarship or research, and to reproduce works for use in connection with systematic instructional activities.

While the Berne Convention outlines broad standards for copyright protection, it mandates few specific rules. As a result, the legislature in each member country enjoys considerable flexibility in implementing its requirements. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify for membership.

The Berne Convention does not contain an enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.

To learn more about the Convention you may read its text or consult a brief discussion of the history of the Berne Convention.

Universal Copyright Convention

The Universal Copyright Convention (or UCC) was developed by UNESCO and adopted in 1952. It was created as an alternative to the Berne Convention. The UCC addressed the desire of several countries (including the United States and the Soviet Union) to enjoy some multilateral copyright protection without joining the Berne Convention.

The UCC’s provisions are more flexible than those of the Berne Convention. This increased flexibility was intended to accommodate countries at different stages of development and countries with different economic and social systems. Like the Berne Convention, the UCC incorporates the principle of national treatment and prohibits any discrimination against foreign authors, but it contains fewer requirements that member countries must comply with.

The UCC has decreased in importance as most countries are now party to the Berne Convention or are members of the WTO (or both). The copyright obligations of members of the WTO are governed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), discussed below.

You may check if your country is a member of the UCC by reviewing this list. For more information about the UCC you may read its text or consult the Examination of the UCC.

Rome Convention (1961)

By 1961, technology had progressed significantly since the Berne Convention was signed. Some inventions, such as tape recorders, had made it easier to copy recorded works. The Berne Convention only applied to printed works and thus did not help copyright holders defend against the new technologies. To address the perceived need for strong legislative protection for recorded works, members of WIPO concluded the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations on October 26, 1961. It extended copyright protection from the author of a work to the creators and producers of particular, physical embodiments of the work. These "fixations" include media such as audiocassettes, CDs, and DVDs.

The Rome Convention requires member countries to grant protection to the works of performers, producers of phonographs, and broadcasting organizations. However, it also permits member countries to create exceptions to that protection -- for example, to permit unauthorized uses of a recording for the purpose of teaching or scientific research.

Eighty-eight countries have signed the Rome Convention. Below is a map of the member states:

Map2.png

Membership in the Rome Convention is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention. Like many international treaties, joining the Rome Convention has an uncertain effect on domestic law. Countries that join the convention may "reserve" their rights with regards to certain provisions of the treaty. In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.

For more information on the Rome Convention you may read its text or read more about the Rome Convention provisions.

WIPO Copyright Treaty (WCT)

The way that copyright owners reproduce, distribute, and market their works has changed in the digital age. Sound recordings, articles, photographs, and books are commonly stored in electronic formats, circulated via the Internet, and compiled in databases. Unfortunately, the same technologies that enable more efficient storage and distribution have also facilitated widespread copying of copyrighted works. Concerned about the effects of these new technologies, the governments of developed countries advocated for and ultimately secured two treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.

The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that entered into force on March 6, 2002. It is the first international treaty that requires countries to provide copyright protection to computer programs and to databases (compilations of data or other material).

The WCT also requires members to prohibit the circumvention of technologies set by rightsholders to prevent the copying and distribution of their works. These technologies include encryption or “rights management information” (data that identify works or their authors and are necessary for the management of their rights).

Eighty-eight countries are now parties to the WCT.

For more about the WCT read its text or read the Examination of the WCT.

WIPO Performances and Phonograms Treaty (WPPT)

The WIPO Performances and Phonograms Treaty (WPPT) was signed by the member states of WIPO on December 20, 1996. The WPPT enhances the intellectual property rights of performers and of producers of phonograms. Phonograms include vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings.

The WPPT grants performers economic rights in their performances that have been fixed in phonograms. It also grants performers moral rights over these performances. By contrast, the producers of phonograms are only granted economic rights in them.

Eighty-six countries are party to the WPPT.

For more about the WPPT read its text or consult the Examination of the WPPT.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

The TRIPS is an international agreement administered by the WTO that was negotiated and concluded in 1994. A map showing the current membership of the WTO is available here. TRIPS establishes minimum standards for many forms of intellectual property protection in member countries of the WTO, including copyright.

The substantive provisions of TRIPS do not differ drastically from the Berne Convention. The major difference is that TRIPS requires member countries to grant copyright protection to computer programs and data compilations. However, TRIPS does not require the protection of authors' moral rights, which the Berne Convention requires.

The most important innovations of TRIPS are the remedies it requires. Unlike the Berne Convention, TRIPS requires member countries to provide effective sanctions for violations of copyrights. In addition, it creates a dispute resolution mechanism by which WTO member countries can force other members to comply with their treaty obligations. It is sometimes said that, unlike the Berne convention, TRIPS has "teeth."

TRIPS allows for some flexibility in its implementation. This flexibility is intended to permit developing nations to balance the incorporation of the general principles of TRIPS with development concerns. You can study additional information concerning the flexibilities of TRIPS for developing nations.

The text of the TRIPS Agreement is available here.

The proposed Anti-Counterfeiting Trade Agreement (ACTA)

The six multilateral treaties described above may soon be joined by a seventh. In October 2007, the United States, the European Community, Switzerland, and Japan simultaneously announced that they would negotiate a new intellectual property enforcement treaty, the Anti-Counterfeiting Trade Agreement (ACTA). Australia, the Republic of Korea, New Zealand, and Mexico have since joined the negotiations. Several rounds of negotiations have occurred. The participants have stated publicly that they expect to finish negotiations in 2010.

Among other issues, ACTA will contain provisions to address "Internet distribution and information technology," such as authorizing officials to search for illegally downloaded music on personal devices at airports, or forcing Internet Service Providers to provide information about possible copyright infringers without a warrant.

Regional Agreements

The multilateral agreements we have just described contain the primary provisions that limit the freedom of each country in shaping its own copyright laws. But some countries also belong to regional organizations that have the power to influence the copyright laws of their members.

The most important such regional organization is the European Union, commonly known as the EU. (A map showing the current membership of the EU, as well as the candidates for admission to the EU, is available here.) Beginning in 1991, the EU has adopted several directives relating to copyright law. (A directive obliges the member countries to bring their laws into conformity with its requirements by a particular date, but leaves to each country's discretion some flexibility in achieving that goal.) For example, the Software Directive required member countries to grant copyright protection to the authors of software programs, regardless of how creative those programs are. The Rental Rights Directive required member countries to recognize "a right to authorize or prohibit the rental and lending of originals and copies of copyright works...." (The background of this innovation and its significance for librarians will be discussed in Module 4). The Copyright Duration Directive required member countries to extend copyright protection to the life of the author plus 70 years (20 years more than the term required by the Berne Convention). The controversial Information Society Directive (also sometimes known as the Copyright Directive) was adopted in 2001 to implement the WCT, discussed above. (The main provisions of the Information Society Directive will be discussed in subsequent modules.) And the Resale Rights Directive obliges member countries to grant the creators of original works of art a right to remuneration when those works are resold.

Equally important for many African countries is the revised Bangui Agreement (executed in 1999; effective in 2002), which governs the member countries of the African Intellectual Property Organization (OAPI) (Benin, Burkina Faso, Cameroon, Central Africa, Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad, and Togo). Articles 8 and 10 of Annex VII of the Agreement set forth an especially generous list of moral rights (reflecting its origins in French copyright law), while Article 9 sets forth a similarly generous list of economic rights, including the rental right. Articles 11 through 21 then carve out of those rights a long list of exceptions and limitations (to which we will return in Modules 4 and 5).

The North American Free Trade Agreement (NAFTA), which was entered into by Canada, the United States, and Mexico in 1994, limits the discretion of those three countries in defining their intellectual-property laws. However, with respect to copyright laws in particular, NAFTA closely parallels the TRIPS Agreement, discussed above, and thus has relatively little independent significance.

Other regional organizations that could influence their member countries' copyright systems -- but that have not yet, for the most part, done so -- include The Andean Community (Bolivia, Colombia, Ecuador, and Peru), Mercosur (Argentina, Brazil, Paraguay, Uruguay, and (perhaps soon) Venezuela), and the African Regional Intellectual Property Organization (ARIPO) (Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe).

Free Trade Agreements and Bilateral Investment Treaties

Multilateral treaties such as TRIPS can provide powerful global protection for copyright holders because they establish minimum standards for protection of copyrights that are binding on large numbers of countries. However, copyright holders sometimes try to obtain even stronger protections through bilateral treaties between countries or organizations of countries. Bilateral treaties on copyright law often address specific issues between the the two parties. Such agreements are commonly known as free trade agreements (FTAs) or Bilateral Investment Treaties (BITs).

Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under TRIPS or impose more stringent standards for copyright protection. For example, the U.S. government has included anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain and Oman. Similarly, the European Union has recently negotiated FTAs with developing countries that significantly limit the discretion of those countries in adjusting their copyright laws.

FTAs and BITs are highly controversial. Many scholars and representatives of developing countries regard them as abuses of the power of developed countries. Opponents of proposed FTAs or BITs have sometimes been able to prevent their adoption or modify them.

Click here for more Information on FTAs.

The Three-Step Test

Most of the major multilateral, regional, and bilateral agreements use a tool that has come to be known as the “three-step test” to define the freedom of member countries to create “exceptions and limitations” to copyrights. The three-step test was first created in the 1967 revision of the Berne Convention. It provides:

"It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works [a] in certain special cases, provided that [b] such reproduction does not conflict with a normal exploitation of the work and [c] does not unreasonably prejudice the legitimate interests of the author."

Most international copyright agreements since then have incorporated versions of this test. For example, versions of the test may be found in the TRIPS Agreement (Article 13), the WCT (Article 10), several of the EU copyright directives, and several bilateral agreements. Indeed, three-step tests may now be found in the national legislation of many countries, including France, Portugal, China, and Australia. Even when national legislation does not explicitly incorporate the test, judges sometimes rely upon it when construing and applying their nation's copyright laws.

The coverage of the different versions of the test varies somewhat. For example, whereas the Berne Convention three-step test only applies to exceptions and limitations to the right of reproduction, the three-step test contained in Article 13 of the TRIPS Agreement applies to exceptions and limitations to any of the “exclusive rights” associated with copyright. In addition, the language used in the different versions varies. For example, whereas the third step of the Berne Convention test (quoted above) requires that an exception or limitation “not unreasonably prejudice the legitimate interests of the author,” the third step of the TRIPS test requires that an exception or limitation “not unreasonably prejudice the legitimate interests of the right holder” – a change that shifts attention away from the interests of creators toward the economic interests of the companies that acquire copyrights from the original creators.

Given the prevalence of the three-step test and the long period of time in which it has existed, you might expect that the meaning of the test would by now be clear. Not so. The version of the test contained in the Berne Convention has never been interpreted officially. The version contained in Article 13 of the TRIPS Agreement has only been officially interpreted once by a dispute resolution panel, and how far that interpretation should control other countries in the future is not clear. Moreover, the courts in different European countries have construed the test in inconsistent ways in functionally identical cases.

Given this uncertainty, commentators and lobbyists disagree sharply about how restrictive the three-step test really is. At one extreme, some claim that the fair use doctrine in the United States (which we will discuss in Module 4) violates the test -- and thus that the United States should repeal the fair use doctrine and that developing countries may not adopt similar doctrines. As William Patry has demonstrated, this interpretation is implausible -- as shown most clearly by the failure of any of the countries involved in the negotiation of the TRIPS Agreement or the accession by the United States to the Berne Convention to object to the fair use doctrine in the United States.

At the opposite extreme, a group of prominent and influential copyright scholars have recently proposed "A Balanced Interpretation of the Three-Step Test in Copyright Law". They argue that an exception or limitation that fails to satisfy one of the three steps should not necessarily be deemed to violate the test. Rather, all three components of the test should be considered together in a "comprehensive overall assessment" that takes into account the threats that excessive levels of copyright protection pose to "human rights and fundamental freedoms," "interests in competition," and "other public interests, notably in scientific progress and cultural, social, or economic development" -- in addition to the important interests of copyright holders in fair compensation. This proposal has two strengths. First, it fits well the underlying purpose of the copyright system as a whole, which, as we have seen, seeks to balance the interests of creators with the interests of society at large in maximizing access to ideas and information. Second, it derives support from the reference in all versions of the test to the "legitimate" interests of either authors or right holders. It does, however, have one weakness: virtually all courts and tribunals that have considered the test to date have concluded that all three of its "steps" must be satisfied.

Another interpretation that does not suffer from this weakness but that preserves the strengths of the proposed "Balanced Interpretation" has been offered recently by Professors Hugenholtz and Okediji: "Limitations and exceptions that (1) are not overly broad, (2) do not rob right holders of a real or potential source of income that is substantive, and (3) do not do disproportional harm to the right holders, will pass the test." This proposal is grounded in a long and detailed discussion of the evolution of the three-step test and deserves careful consideration.

An important general lesson may be derived from this situation: The meaning of copyright laws of all sorts -- including international copyright agreements -- is often less clear than first appears. Many rules have not yet been interpreted authoritatively. This creates opportunities for librarians or other representatives of developing countries to argue for and act upon interpretations that give them more freedom when shaping their own laws. In subsequent modules, we will come across several such opportunities.

Perspectives For Developing Countries

The Benefits and Drawbacks of Copyright Law for Developing Countries

Some observers believe that governments should upgrade and harmonize copyright law globally because it promotes the arts and rewards creators. They argue that granting an exclusive right in creative expression provides a necessary incentive for copyright holders to invest in the creation and distribution of expressive works. This stimulates cultural expression and benefits citizens. Suppression of competition from "pirates," they argue, is necessary to allow local creative industries to flourish.

However, others argue that implementing the same copyright law in all countries has a disproportionate and negative effect on developing countries. Most developed nations have powerful and lucrative entertainment, educational, and research industries that export copyrighted works, and thus benefit from strong copyright law. Developing countries, on the other hand, typically import copyrighted works. Thus, it is argued, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection. It is also argued that restrictive copyright laws prevent many governments from addressing important social needs -- such as providing their citizens with good educations -- because critical information is locked up by the law.

The latter set of arguments have prompted a growing number of groups in developing countries to resist the imposition of the minimum standards of copyright protection set by the TRIPS Agreement and the even harsher duties that are imposed on developing countries by FTAs. They call for a better balance between, on one hand, providing incentives to creators and rewarding their creative activities and, on the other hand, promoting access to knowledge and research in order to spur economic growth and foster innovation in the developing countries.

WIPO Development Agenda

The WTO has entered into an agreement with WIPO to provide advice to developing countries on the implementation of TRIPS. Some in developing countries consider the advice provided by WIPO to be too weighted in favor of the interests of copyright holders. In 2004, Brazil and Argentina submitted to the WIPO General Assembly a proposal for a “development agenda.” The proposal called on WIPO to pay greater attention to the impact of intellectual property protection on economic and social development, the need to safeguard flexibilities designed to protect the public interest, and the importance of promoting “development oriented” technical cooperation and assistance. Additional proposals in support of a WIPO Development Agenda were submitted by other member countries and organizations, such as Chile, the Group of Friends of Development, and the Africa Group.

This initiative has made considerable progress. The 2004 WIPO General Assembly agreed to hold a series of intergovernmental meetings to examine the proposals for a development agenda. Substantive reform proposals to establish a development agenda for WIPO passed during the 2007 WIPO General Assembly. The current WIPO Development Agenda contains 45 recommendations for the General Assembly to pursue.

Organizations representing librarians have had a significant voice in the negotiations of the WIPO Development Agenda. Joint statements of the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), and Electronic Information for Libraries (eIFL) are available here.

The Proposed Access to Knowledge (A2K) Treaty

The Argentina-Brazil proposal for a development agenda prompted a debate on whether WIPO should work to ensure effective technology transfer from developed to developing countries. Nongovernmental organizations (NGOs), academics, and researchers shared the concerns expressed by developing countries that aspects of the copyright system were impeding innovation and creating disadvantages for developing countries. This reaction to WIPO’s current policies took the form of a movement calling for equality among citizens from developed and developing countries as regards access to knowledge; it has come to be known as the “access to knowledge” or “A2K” movement. Librarians’ organizations, such as eIFL, were pioneers in the advocacy of a “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.

One outgrowth of the movement has been a proposal for a United Nations treaty. The proposed treaty intends to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.” It includes a list of circumstances under which copyright holders may not prevent the free use of their content, including:

  • The use of works for purposes of library or archival preservation, or to migrate content to a new format.
  • The efforts of libraries, archivists, or educational institutions to make copies of works that are not currently the subject of commercial exploitation, for purposes of preservation, education, or research.
  • The use of excerpts, selections, and quotations from copyrighted works for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.
  • The use of copyrighted works by educational institutions as primary instructional materials if those materials are not made readily available by copyright holders at reasonable prices.

In addition, the proposed treaty would establish a First Sale Doctrine for Library Use, stating that “a work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.” Finally, the A2K treaty proposal introduces provisions in support of distance education, as well as provisions accommodating the rights of persons with disabilities.

Librarians and library patrons aren’t the only parties who could benefit from the A2K treaty. The proposal includes rules protecting Internet Service Providers from copyright liability and mitigates the strict prohibitions on circumvention of encryption contained in several international copyright treaties. Under the proposed treaty, nonoriginal and orphan works (those works for which a copyright holder cannot be identified upon reasonable search) would be left in the public domain. The treaty would also guarantee access to publicly funded research works, government works, and archives of public broadcasting. Finally, the A2K treaty proposal also includes provisions on patent protection, anticompetitive practices, and transfer of technology to developing countries.

Casestudy.png Back to the Case Study

To advise Angela, Nadia should review the lists of the member countries of all of the international agreements discussed in this lesson to ascertain whether their country has joined any of those agreements. She should then review the terms of any applicable agreements to determine whether they prevent expansion of the rights of teachers and students to use copyrighted materials without permission. That inquiry will likely require Nadia to consider which of the various interpretations of the three-step test is most sensible and the extent to which that test limits a country's discretion in recognizing exceptions and limitations for educational purposes. That analysis will be difficult and may require Nadia to consult with fellow librarians.

Resource.png Additional resources

A thorough discussion of international copyright law may be found in Paul Edward Geller, ed., International Copyright Law and Practice (2 volumes, Matthew Bender), although its coverage of developing and transitional countries is thin. (It is also prohibitively expensive). Other useful paper treatises include Paul Goldstein, International Copyright: Principles, Law, and Practice (Oxford University Press) and Silke von Lewinski, International Copyright Law and Policy (Oxford University Press 2008).

An online course on International Copyright Law, directed at librarians, may be found here, but it is also expensive.

An excellent compendium of the copyright laws in over 100 countries has been assembled by UNESCO: Collection of National Copyright Laws.

As indicated above, an especially important component of most international copyright agreements is the three-step test. The most comprehensive and accessible examination of the history and meaning of that test may be found in P. Bernt Hugenholtz & Ruth L. Okediji, Conceiving an International Instrument on Limitations and Exceptions to Copyright: Final Report, March 06, 2008. Other good analyses of the three-step test available in print but not online include Martin Senftleben, Copyright, Limitations and the Three-Step Test (Kluwer Law Int'l 2004); and Jane C. Ginsburg, "Toward Supranational Copyright Law? The WTO Panel Decision and the "Three Step Test" for Copyright Exemptions," 187 Revue internationale Du Droit D'Auteur 3, 49 (2001).

A thorough review of the principal exceptions and limitations to copyrights recognized by the main multilateral agreements -- combined with a argument for the clarification and expansion of those exceptions and limitations, emphasizing "the importance of access to creative works for developing countries" -- may be found in Ruth L. Okediji, "The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries, International Centre for Trade and Sustainable Development and United Nations Conference on Trade and Development," Issue Paper No. 15 (2006). Included in Okediji's essay is an excellent discussion of the Berne Convention Appendix.

For a WIPO study more skeptical of the value of those exceptions and limitations, see WIPO Standing Committee on Copyright and Related Rights, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, 9th Session, June 23-27, 2003, WIPO Doc. SCCR/9/7 (April 5, 2003).

An excellent study of the process of implementing the TRIPS Agreement (including a detailed discussion of the complex processes that led to the revised Bangui Agreement among the OAPI countries) can be found in Carolyn Deere, The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries (Oxford UP 2009). The Introduction, which sketches the argument of the book, is available online here.

For up-to-date information concerning the implementation of the EU Information Society Directive by individual countries, including a good bibliography of scholarly studies of the implementation process, see Instituut voor Infomatierecht (IVIR), Report on the Implementation of the Information Society Directive (2008).

Cases

The following judicial opinion and summaries of rulings issued in WTO dispute resolution proceedings explore and apply some of the principles discussed in this module:

Joined Cases C-92/92 and C-326/92, Phil Collins v Imtrat Handelsgesellschaft mbH; Patricia Im-und Export Verwaltungsgesellschaft mbH and Another v EMI Electrola GmbH (1993) (Applicability of the EEC Treaty to IP rights)

Sarah E. Henry, "The First International Challenge to U.S. Copyright Law: What Does the WTO Analysis of 17 U.S.C. § 110(5) Mean to the Future of International Harmonization of Copyright Laws Under the TRIPS Agreement?," 20 Penn State International Law Review 301 (2001). (EU vs. US)

Jan Bohanes & Adrian Emch, "WTO Panel Report on China IPR: A Mixed Result," China Law & Practice, pp. 19-20, March 2009 (US vs. China)

Question.png Assignment and discussion questions

Assignment.pngAssignment

1. Which international treaties governing copyright law has your country signed, ratified, and implemented?

2. If your country is a member of the Berne Convention, may your national legislature set the copyright term to either a) 120 years or b) 25 years? Why or why not?

3. Imagine that your country is a member of the Berne Convention, but not of the WTO. Thus, your country is not bound by TRIPS.

  • May your national legislature require foreign copyright holders to register their works with your country in order to receive copyright protection?
  • If your legislature did require registration, could other members of the Berne Convention take action against your country? How would your answer be different if your country were also a member of the WTO?

4. Suppose that the fictional country of Atlantis has recently signed and ratified the WCT. Its national legislature wants to implement the treaty. Atlantis only imports software from other countries and it has never before protected them under copyright law. The legislature believes that it is in the interest of Atlanteans to extend as little copyright protection to computer programs as possible. What provisions of the WTC would allow Atlanteans to freely use computer programs?

5. Do you think that both developed and developing countries should have the same rules for copyright protection? Why or why not?

6. Read article 3-1 of the draft text of the A2K treaty. Comment on the importance of one or two provisions for the missions you perform as a librarian.

Discussion.pngDiscussion Question(s)

Please read the comments on the A2K treaty proposals that your colleagues provided to question 6, above, and comment on one (or more) of them. You may give more examples based on situations you have faced at work, or projects you could develop.

Contributors

This module was created by Petroula Vantsiouri. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Peter Jaszi, Colin Maclay, Andrew Moshirnia, and Chris Peterson.


Home

Introduction

Course Materials:

The Rotisserie


Retrieved from "http://cyber.harvard.edu/cx/?title=Module_2:_The_International_Framework&oldid=3914"