Module 2: The International Framework: Difference between revisions

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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 describes the main instruments of the international copyright framework, the impact of that framework on developing countries, and opportunities for developing countries to influence the development or interpretation of the framework.
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== [[Image:casestudy.png|50px|]] 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.


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==[[Image:lesson.png|50px|]] 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.  


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


''“I want to participate to an international exchange program, what should I know?”''
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.


Nadia is currently working as a librarian in Mexico and has a very good knowledge of the copyright protection law in her country. Nadia is interested in applying for an exchange program for librarians in order to work for six months in another country. The countries she is considering working in are Ethiopia, Russia, India and Belgium.
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.
   
However, one of the requirements for participating in the exchange program is that she understands the general framework of copyright protection in the country that she will be working. More specifically she has to understand the following issues:
- general standards of protection of copyrighted works,
- protection of performers and producers of recordings,
- copyright protection of computer programs and databases,
- intellectual property rights of performers and of producers of phonograms.


Another librarian advised her to check whether the aforementioned countries have signed the same treaties that Mexico has signed, so that their copyright law resembles Mexican law to the extent required by such treaties. Nadia should however take also into account whether these treaties have an effective enforcement mechanism that ensures that the countries have transposed their provisions into their national law.
== 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.


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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 Rationale for the International System ==
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'''.


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 each country enjoys in adjusting and enforcing its own laws is limited by a set of international treaties. Why? Why do we need any international management of this field?
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.


There are two traditional answers to that question. First, in the absence of international controls, each country would be inclined to discriminate in favor of its own citizens or residents and against foreigners.  Indeed, in the nineteenth century, before any international regulations were imposed, such discrimination was common.
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.   


Second, individual authors would find it very difficult to learn and comply with the idiosyncratic rules adopted by every country in the world.  Thus, some degree of harmonization of the laws of separate countries seems necessary to enable authors to obtain effective copyright protection globally.
Click here for more on the [[stages of an international agreement]].


Recently, a third answer has been added to the first two. In the judgment of some copyright owners – in particular, record companies, film studios, and software firms – developing countries are insufficiently appreciative of the benefits of a copyright system.  On this view, treaties are necessary to compel those countries to adopt economically and socially beneficial copyright regimes. As one might imagine, the representatives of developing countries often disagree.
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 [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.


== International instruments ==
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You might expect that a single treaty, binding on all countries, would most effectively advance the three goals just mentioned.  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.
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.  


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 (arguably the most important one) by the World Trade Organization (WTO).  
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 ways in which the six agreements have been created and implemented have been similar.  Typically, the process begins when representatives of a group of countries agree that a particular set of issues requires harmonization. They enter into '''negotiations''', which can last several years.  During the '''negotiations''', draft provisions are presented to the delegations of each state, which then discuss them and may propose amendments to their content. Once consensus has been reached, the states 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 states assume obligations towards the other countries to implement the international agreement.  States that did not sign the treaty when it was initially concluded may join the treaty later by '''accession'''.  
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.  


None of the treaties contains a comprehensive recipe for the creation of a copyright system.  Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member states 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 adopt implementing legislation, they have no impact on their citizens or residents.
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]].  


Click here for more on the [[Stages of an international agreement]].
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.  


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


== Berne Convention ==
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 uncertainty and confusion that generated 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 Convention.  Any nation is permitted to join.
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.   


You can check if your country is a member of the Berne Convention on: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15. See bellow a map that indicates the countries that are today members
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]].


[[Image:Map1.png]]
====Universal Copyright Convention====


The Berne Convention established three fundamental principles. The first and most famous is the principle of the “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.  
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 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 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 third is the principle of the “automatic protection.” It forbids member countries to make copyright protection depend upon compliance with any formalities.  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 Convention; her novel will be automatically protected in all of these countries from the moment she has written it.  
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.  


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: namely, the life of the author plus 50 years. 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]].  
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]].


When the Berne convention was revised in Paris in 1971, the signatory states included an Appendix, which contained special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from these minimum standards of protection with regard to the right of translation and the right of reproduction. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses in respect of translation for the purpose of teaching, scholarship or research, and reproduction for use in connection with systematic instructional activities of works protected under the Berne Convention.
====Rome Convention (1961)====


Due to the general and abstract content of most provisions of the Berne Convention, each national legislature enjoys considerable flexibility in implementing the Treaty. 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 it for membership.
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.  


Furthermore, at the time that Berne the Convention was signed, the signatory countries did not establish an enforcement mechanism. Thus, even if one member state did not implement fully in its national legislation the rules set by the Convention, the other signatory states had little power either to force the recalcitrant country to comply with its obligations or to punish it for not doing so.  It could be said that the Berne Convention was a treaty without “teeth.” 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 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.


For the full text of the Convention, see http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.
[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:


Click here for more  the [[Berne Convention]].
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== Rome Convention (1961) ==
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.


Technological progress – in particular, the invention of devices, such as tape recorders, that allowed creative works to be reproduced easily – created a perceived need for enhanced protections for the performers and producers of recordings. The Berne Convention, which was primarily concerned with the circulation of printed materials, was ineffective for this purpose. To address this need, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was concluded by members of the WIPO on October 26, 1961. It extended copyright protection from the author of a work to the creators and owners of particular, physical embodiments of the work, such as audiocassettes and DVDs.  
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]].


The Rome Convention requires member countries to grant protection to the performances of performers, the phonograms of producers of phonograms, and the broadcasts of 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.
====WIPO Copyright Treaty (WCT) ====
86 countries have signed the Rome Convention so far. For a list of the contracting parties, you can visit the link: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=17.  See bellow a map indicating the Member States of the Rome Convention.


[[Image:Map2.png]]
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.


Not any country can join the Rome Convention; it is open only to countries that are already parties to the Berne Convention or to the Universal Copyright Convention (which we will discuss shortly).  Countries that join the convention may make reservations with regard to the application of certain provisions.  In practice, this has enabled countries to avoid the application of rules that would require important changes to their national laws.  
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).


For the text of the Convention, see http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html.
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).


Click here for more on[[Rome Convention provisions]].
[http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16 Eighty-eight countries are now parties to the WCT].  


== WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty ==
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]].


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, are circulated via the Internet, and are 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 and ultimately secured two other treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty.
====WIPO Performances and Phonograms Treaty (WPPT)====


The WIPO Copyright Treaty (WCT) is a special agreement accepted 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 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 WCT further provides that member countries must prohibit effectively in their dominion the circumvention of technological measures set by the authors for their protection, such as decryption, as well as unauthorized modification of so-called “rights management information” (data that identify works or their authors, and that are necessary for the management of their rights).  
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.


For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html.
[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].


Click here for more on[[Examination of its provisions]].
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]].


The '''WIPO Performances and Phonograms Treaty (WPPT)''' was signed by the member states of WIPO in order to enhance the intellectual property rights of performers and of producers of phonograms (vinyl records, tapes, compact discs, digital audiotapes, MP3s, and other media for storing sound recordings).
====The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)====


The WPPT grants performers four kinds of economic rights in their performances '''fixed in phonograms''', three kinds of economic rights in respect of their live '''performances''', as well as '''moral rights'''.  By contrast, producers of phonograms are only granted economic rights in their phonograms.
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.  


For the text of the Treaty see http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html.
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.


Click here for more on [[Examination of the WPPT]].
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."


Both the WCT and the WPPT (like the TRIPs Agreement, which we will consider shortly) oblige every contracting country to adopt expeditious remedies to prevent infringement of their substantive provisions.
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.  


To determine whether your country has accepted the WCT see: http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16.  For the WPPT, see: http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY&search_what=C&treaty_id=20 
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>].


A map indicating the Member States to the WCT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map4.png/ here]; a map indicating the Member States to the WPPT is available can be accessed [http://cyber.law.harvard.edu/copyrightforlibrarians/sites/copyrightforlibrarians/images/Map5.png/ 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.


== Universal Copyright Convention ==
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 '''Universal Copyright Convention''' (or '''UCC'''), was developed by UNESCO and was adopted in Geneva in 1952, as an alternative to the Berne Convention. It was developed in order to satisfy the desire of countries, such as the U.S.A. and the Soviet Union, to participate in some form of multilateral copyright protection without joining the Berne Convention.
===Regional Agreements===


The UCC’s provisions are more flexible than those of the Berne Convention, 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 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.


Nowadays the importance of the UCC is minimal as most countries have acceded to the Berne Convention and almost all states in the world are either members or aspiring members of the World Trade Organization, and thus conforming to the Agreement on Trade-Related Aspects of Intellectual Property Rights (which we will discuss in a moment).
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 the text of the Treaty see http://www.ifla.org/documents/infopol/copyright/ucc.txt
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]]).
For a list of the countries members of the UCC see: http://portal.unesco.org/culture/en/files/7816/11642786761conv_71_e.pdf/conv_71_e.pdf


Click here for more on [[Examination of the UCC]].
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 [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''').


== The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) ==
===Free Trade Agreements and Bilateral Investment Treaties===


The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) is an international agreement administered by the World Trade Organization (WTO) that establishes minimum standards for many forms of intellectual property protection, including copyright. The TRIPs Agreement was negotiated and concluded in 1994.
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).


In terms of its substantive provisions, TRIPs adds little to the Berne Convention.  It requires member countries to extend copyright protection to computer programs and data compilations – and thus extends the reach of the copyright regime.  On the other hand, it excludes moral rights, which Berne, as we have seen, mandates.   
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.


The principal innovations of the Agreement pertain, not to the substance of copyright law, but to two issues involving remedies.  First, unlike Berne, the TRIPs Agreement requires member countries to provide effective sanctions for violations of copyrights.  Second, it creates a a dispute resolution mechanism by which countries can be forced to comply with their treaty obligations.  In other words, TRIPs has teeth.
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.   


In an effort to balance public interests and the private interests of copyright owners, the TRIPs Agreement allows member states to establish limitations and exceptions to the exclusive rights of copyright holders – but only if they meet a set of related requirements known collectively as the “three-step test”.
Click here for more [[Information on FTAs]].


Click here for more [[Information concerning the three-step test]].
===The Three-Step Test===


Finally, the TRIPS Agreement incorporates certain "flexibilities" with respect to member countries’ compliance with its requirements concerning copyright protection. These flexibilities aim to permit developing and least-developed countries to use TRIPS-compatible norms in a manner that enables them to pursue their own public policies, either in specific fields, such as access to pharmaceutical products, or more generally, in establishing the institutional framework that contributes to their economic development.
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:


Click here for more [[Information concerning the flexibilities]].
''"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."''


For the full text of the Agreement, see http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.html.
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.


Click here for more on[[Examination of the TRIPS provisions]].
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.


== The Anti-Counterfeiting Trade Agreement proposal (ACTA, 2007) ==
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.


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, or ACTA. Australia, the Republic of Korea, New Zealand and Mexico have since joined the negotiations.
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.


Among other issues, the ACTA will deal with tools targeting "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.
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.


== Free Trade Agreements and Bilateral Investment Treaties ==
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.


Multilateral agreements, such as the TRIPs Agreement, can provide effective protection to copyright holders worldwide, because they establish minimum substantive standards binding on large numbers of countries.  However, they do not eliminate the incentives for bilateral treaties – either to address specific issues in which only two countries have an interest, or to enable interests groups within a powerful country to extract concessions from a weaker one.  Such agreements are commonly known as free trade agreements (FTAs) or Bilateral Investment Treaties (BITs).
== Perspectives For Developing Countries ==


Typically, such bilateral agreements either narrow the flexibilities that a developing country would enjoy under the TRIPS Agreement, 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.
====The Benefits and Drawbacks of Copyright Law for Developing Countries====


Click here for more [[Information on FTAs]].
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.  


== Perspectives for developing countries ==
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.


Upgrading copyright legislation and enforcement worldwide can be viewed as the duty of governments towards their citizens, as copyright protection promotes the arts and rewards authors for their creative efforts.  Arguably, granting an exclusive right in creative expression provides a necessary incentive to invest in the creation and distribution of expressive works and, thus, stimulates cultural advancement.  
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.


On the other hand, it has been argued that instituting the same rules for copyright protection in all countries, regardless of their development status, can be detrimental for the cultural development of developing countries. Most developed counties have powerful entertainment, education, and research industries, whereas developing countries typically import embodiments of the copyrighted works generated by those industries. Thus, the residents of developing countries have to pay more royalties and fees as a result of enhanced copyright protection.  In addition, it has been argued that strict IP rules can restrict the ability of many governments to fulfil their human rights obligations, such as ensuring that their residents have fair access to educational goods.
====WIPO Development Agenda====


The latter set of arguments have has prompted a growing number of 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 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.  


== WIPO Development Agenda ==
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.


In 2004, Brazil and Argentina submitted to the WIPO General Assembly a proposal for a “development agenda.”  In general, the proposal sought to ensure that WIPO in its various activities 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.  The text of Brazil’s and Argentina’s proposal is available at:
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>].
http://www.wipo.int/documents/en/document/govbody/wo_gb_ga/pdf/wo_ga_31_11.pdf.  Additional proposals in support of a WIPO Development Agenda were submitted by other member states and organizations, such as Chile, the Group of Friends of Development, the Africa Group, and Colombia.  


This initiative has made considerable progress.  In the 2004 WIPO General Assembly, states 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 General Assembly. The 45 development recommendations currently on the development agenda are available at: http://www.wipo.int/ip-development/en/agenda/recommendations.html
====The Proposed Access to Knowledge (A2K) Treaty====


Organizations representing librarians have had a significant voice in the negotiations of the 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 at:
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.
http://www.eifl.net/cps/sections/services/eifl-ip/issues/wipo-development-agenda


Click here for more [[Information on the WIPO development agenda]].
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 access to knowledge treaty proposal==
* 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.


The Argentina-Brazil proposal for a development agenda gave rise to a debate concerning 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 some aspects of the copyright system were actually impeding innovation instead of promoting it and were creating disadvantages for the 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 people’s “right to knowledge” and have called upon WIPO to establish minimum exceptions and limitations to copyright protection.
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.  


One outgrowth of the movement has been a proposal for a United Nations treaty, the current draft of which is available at: http://www.cptech.org/a2k/a2k_treaty_may9.pdf.  The treaty proposal aims to “protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries.”  It includes a list of occasions when copyright holders should not be able to invoke their exclusive rights, such as:
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.


· The use of works for purposes of library or archival preservation, or to migrate content to a new format.
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· 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.
== [[Image:casestudy.png|50px|]] Back to the Case Study ==


· The use of excerpts, selections, and quotations for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship.
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.


· The use of works, by educational institutions, as primary instructional materials, if those materials are not made readily available by right-holders at a reasonable price.
</div>


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 and other provisions accommodating the rights of persons with disabilities.  
==[[image:resource.png|50px|]] Additional resources ==


Librarians and library patrons aren’t the only ones 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 that are applied by the international treaties. Nonoriginal and orphan works would be left in the public domain under the treaty proposal, and people would be afforded 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.
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).


Click here for more [[Information on the A2K Treaty proposal]].
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].


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


Nadia knows that Mexico is a member of the Berne Convention, WIPO, Rome Convention, WCT and WPPT. After checking the online databases provided in the WIPO website she found out the following about the countries where she is interested in working:
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.


- Ethiopia isn’t currently a member of any of the international treaties on copyright protection. Thus, the national government of that country has the freedom to regulate copyright independently from other states in the rest of the world. Therefore Nadia cannot have an understanding of the copyright legislation in Ethiopia, unless she had studied Ethiopian copyright law.
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>].
- Russia has signed the Berne Convention as well as the Rome Convention, but isn’t yet a member of the WTO. Because both the Berne and the Rome Convention lack an effective enforcement mechanism, other signatory states have little leverage to force Russia to comply with their obligations. Furthermore, Rome Convention affords states that join the treaty the liberty to make reservations with regard to the application of certain provisions.


In addition, Russia has signed the WCT, but that treaty hasn’t entered into force yet.  In other words, although Russia has undertaken an obligation towards the other signatory countries to implement the treaty, it hasn’t yet been incorporated into Russian law, and its content is not binding on Russian citizens. Russia isn’t a member of the WPPT.
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>].


- India is a member state of the Berne and Rome Conventions and is also a member of the WTO.  All members of the WTO are bound by the TRIPS Agreement, which imposes on member countries the obligation to enforce copyright adequately in their own territories, an obligation enforced by the WTO dispute settlement procedure. The TRIPs Agreement 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. On the other hand India hasn’t signed the WCT and the WPPT. Thus Nadia cannot know how India regulates copyright protection of computer programs and databases and the intellectual property rights of performers and of producers of phonograms.  
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).


- Finally Belgium is a member of all of the aforementioned international treaties on copyright protection. As a result, Nadia can only apply for the exchange program in Belgium, as she knows the basic framework on copyright protection in Belgium, based on her knowledge of Mexican copyright law.
==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:


</div>
[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)


== Assignment and discussion questions ==
[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)


'''Round 1 questions'''
[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)


1. Which international treaties in the field of intellectual property law has signed and ratified your country? Feel free to use the links and maps provided in this module to help you.
== [[image:question.png|50px|]] Assignment and discussion questions ==


2. If your country were a member of the Berne Convention, could your national legislator issue a law according to which copyrighted works would be protected for a) 120 years b) 25 years? Why?
'''[[image:assignment.png|50px|]]Assignment'''


3. Imagine that your country is a member of the Berne Convention, but not of the WTO.
1. Which international treaties governing copyright law has your country signed, ratified, and implemented?  
3a. Could your country’s legislator decide that authors of third countries should first register their works in a national archive in order for the works to be protected in your country?
3b. Could members states to the Berne Convention react to this requirement to protect the rights of their authors?
3c. Could they react if your country was a member of the WTO?


4. Imagine that your country, as well as Atlantis, are members to the Rome Convention. Could your legislator permit that music teachers in your country use freely in their classes recorded performances of singers from Atlantis? Could Atlantis demand from your country to oblige the music teachers to pay royalties to the Atlantian singers?
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?


5. Atlantis has just signed and ratified the WIPO Copyright Treaty and now the national legislator wants to issue a law that will implement the treaty. Atlantis had never provided copyright protection to computer programs in the past and, as it is a country that only imports computer software from third countries, the national legislator believes that it is the in the interest of the Atlantians to provide as little protection to computer programs as possible. Skim the WCT and find the provision that would enable the national legislator to allow Atlantians, under certain circumstances, to freely use computer programs.
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?


6. List the advantages and the disadvantages of enhanced copyright protection for creative works.  
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?


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


8. Read article 3-1 of the draft text of the A2K treaty: http://www.cptech.org/a2k/a2k_treaty_may9.pdf
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.
Comment on the importance of one or two provisions for the missions you perform as a librarian.


'''Round 2 questions'''
'''[[image:discussion.png|50px]]Discussion 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 [[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]].
 
 


Please read comments on A2K treaty proposals that your colleagues provided to Round 1 question 2, and comment on one (or more) of them. You may give more examples based on situations you faced at work, or projects you could develop.
{{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.


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