International Protection of Copyright Significant issue in the modern global market. West - the main producer of copyright material and the associated technology and the rest are the primary users. The North-South divide reached a consensus after a prolonged and somewhat contentious debate – the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Western industrialised nations: without adequate protection, the flow of copyright material would be hampered, the licensing and technology transfer would be discouraged. All of these would eventually damage the international economy, benefiting no one. 1

International Copyright?  Copyright is one of most international kinds of rights  Unlike patent protection – copyright protection has no territorial boundaries.  Copyright protection becomes available as soon as a work is produced. 2

International Arrangements  Berne Convention for the Protection of Literary and Artistic Works 1886 (last revised 1971) provides for:  Each member state to accord “national treatment” to foreign authors  This means giving outsiders the same protection as is accorded domestically.  Automatic protection – enjoyment and exercise of protection w/o formalities  Universal Copyright Convention 1952 (last revised 1971) – a bridge between Berne Union and US (and former Soviet Union)  Rome Convention for the Protection of Producers of Phonograms, Broadcasting Organisations and Performers 1961 provides for  the protection of performers, record manufacturers and broadcasters  Agreement on Trade-Related Aspects of Intellectual Property Rights 1993 (TRIPS) provides for  multilateral minimum international standards; and  a dispute resolution mechanism in the event of a member state fails to implement or enforce the rights  WIPO Copyright Treaty 1996 and WIPO Performances and Phonograms Treaty 1996 (Internet Treaties) provide for  Standards for the enhanced protection of works, performers and record manufacturers in the digital and online environments, as well as extending protection to technological protection and rights managements systems. 3

Berne Convention for the Protection of Literary and Artistic Works 1886 Basis of the international system for the protection of copyright 159 countries are members, see /e-berne.pdf US joined the convention in 1988 WIPO is the secretariat of the Berne Union For the full text of the convention, see html 4

The principle of National treatment Keystone of the convention Each member state must grant the same protection to nationals of the other member countries as it grants to its own nationals. No discrimination so far as foreigners are concerned In addition to national treatment, each country is to accord “the rights specially granted by this Convention.” This had led to a solid core of basic rights and entitlements at national level. 5

Independence of protection An author from one member country can claim protection in another member country independently of any protection which that person might otherwise have in his/her own country of origin Thus, no regard is to be had to any qualification or limit to protection to which the author may be subject in his/her own country. 6

Independent of formalities The country in which protection is claimed is not to be subject to any kind of formality No requirement of registration, deposit, notice or the like upon foreign claimants However, open for national laws to retain such requirements for domestic claimants, e.g., US. 7

Works and rights protected The subject matter of the convention is “literary and artistic works” Interpreted very widely to include all the traditional categories of works, including computer programs The convention also contains a list of the exclusive rights that member countries must accord, including the exclusive rights of reproduction, public performance, broadcasting, adaptation and translation. Protection of moral rights under Article 6bis which US and Australia are only now beginning to satisfy Exceptions relating to news reporting, quotation and review, and certain educational uses Strict requirements as to the duration – life of the author plus 50 years (shorter terms in the case of photographs and films). 8

WCT & WPPT An attempt to face the new copyright issues within the technological environment of the digital era WCT has adopted the communication to the public as a neutral exclusive right In the WCT Treaty, the right of making available has been conceived as an element of the author’s broader right of communication to the public. It covers the offering of works for access and extends to the entire transmission to the user, if such transmission takes place. Accordingly, the mere establishment of a server which may be accessed individually by members of the public and at their choice regarding time and place constitutes the act of making available under Article 8 WCT. 9

WIPO Copyright Treaty Makes clear that computer programs are protected as literary works under Article 2 of Berne. Makes clear that the contracting parties must protect databases that constitute intellectual creations (and pass the Feist test). Affords authors a new right of distribution: Authors have the exclusive right to authorise the making of their works "available to the public.". Grants authors of computer programs, motion pictures, and musical works embodied in sound recordings, with certain exceptions, the exclusive right to authorise the commercial rental of their works. Gives authors the exclusive right to authorise "any communication to the public of their works, by wire or wireless means, including the making available to the public of their work in such a way that members of the public may access these works from a place and at a time individually chosen by them." Increases the term of protection for photographic works to life plus fifty. Requires contracting states to protect anti-copying technology and copyright management information that is embedded in any work covered by the treaty. 10

WIPO Performances and Phonograms Treaty Gives new rights for singers and musicians on sound recordings: the treaty specifies moral rights, the right to authorise the fixation of their unfixed performances (an anti-bootlegging measure), the right to authorise the reproduction of the recording, and the right to authorise the distribution of copies of the sound recordings that contain their performances. Gives performers on sound recordings the right to authorise in most cases the rental of their works. Gives performers on a sound recording the right to make the recording "available to the public" in the online and/or interactive environment. Gives producers of the sound recordings the right of reproduction, distribution, rental and making available to the public. Gives producers and performers a right of equitable remuneration for public performances of the sound recordings via traditional broadcasts, or for any communication of the performances to the public. Extends the term of protection for sound recordings to 50 years after fixation. Requires the contracting states to enact national legislation that protects anti- copying circuitry against manufacturers of devices that circumvent the anti- copying circuitry. Requires protection of copyright management information that the copyright owner embeds on the work to control the conditions of use. 15

TRIPS Agreement Objectives: Promotion of foreign investment and technology transfer Not possible without adequate IP protection Trade sanctions were imposed to persuade “defaulting” countries to upgrade the content and enforcement of their IP laws TRIPS signed by 116 countries in 1993, came into effect in 1995 (see, National treatment principle adopted - both domestic and foreign holders have the same rights 16

Berne-plus While TRIPS Agreement deals with all IPRs, those concerned with copyright are contained in Section 1 of Part II. The most significant “Berne-plus” obligations relate to: –the protection of computer programs as literary works, –compilation of data, –commercial rental rights for computer programs and films; and –enhanced levels of protection and terms of protection for performers, sound recordings and broadcasting organisations 17

Salient Features Minimum universal standards Higher levels OK Adoption of Substantive Standards of Berne in toto Enforcement of IP rights (absence from Berne Revamping of IP laws Adequate penalties Fair and equitable Procedures Non-discriminatory Protection - MFN and National Treatment Dispute resolution mechanisms – WTO Disputes between WTO members re. compliance- Imposition of Trade sanctions 14