The global voice for consumers La voix des Consommateurs à travers le monde La voz global para la defensa de los consumidores

Consumers International Study on Copyright and Access to Knowledge Rajeswari Kanniah Head Consumers International Kuala Lumpur

Focus of Presentation What was attempted in the CI study What can be attempted in each country

What was attempted in the CI study Two parts: 1. What countries can do and have done to enable the public to access copyrighted material 2. Case studies of Thailand and Indonesia to examine the factors that determine access to knowledge

Copyright – A Limited Monopoly Copyright is a monopoly given to the owner over certain works (books, paintings, movies, songs, photographs, computer software, etc.) The monopoly is limited by law in 4 ways: 1. Type of works 2. Bundle of rights granted 3. Duration of protection 4. Limitations and exceptions These are referred to as the flexibilities permitted by copyright law

Flexibilities in Copyright Law The more the monopoly is restricted by these flexibilities the greater will be the public access to copyrighted material However the number of flexibilities that a country can provide will depend on the accession status of the country – i.e. the exact treaties to which it is a signatory

International Copyright Treaties National copyright laws are framed according to the international treaties the country has signed: Berne Convention for the Protection of Literary and Artistic Works 1886 Trade Related Aspects of Intellectual Property Rights (TRIPS) 1994 WIPO Copyright Treaty 1996 Not all countries have signed all three treaties. There are five possible combinations.

Accession to Copyright Treaties 1. Berne Convention only 2. TRIPS only (in effect Berne and TRIPS) 3. Berne and WCT 4. Berne, TRIPS and WCT The flexibilities available for each of these combinations is set out in Tables 1 to 4 of the CI report.

CI Study Sample A total of 11 countries representing each of the four possible combinations of accession Countries studied: Bhutan, Cambodia, China, India, Indonesia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea, Philippines and Thailand For each of these countries the flexibilities available but not provided for in their national law have been tabulated as country briefing papers in Appendix 3 of the CI report

CI Study Sample The study also listed the flexibilities found in all the three treaties and therefore available to all 11 countries. (Listed in Table 5 in the CI report) All the 11 developing countries have not taken advantage of all the flexibilities available. They provide copyright owners far more rights than they need to

The Findings Of the 11 developing countries: 10 countries have extended the duration of copyright protection for some or all works beyond minimum duration required by their treaty obligations. 0 explicitly permit parallel import 8 countries have not made declaration under the Berne Appendix to take advantage of compulsory licensing for translation, reproduction and publication of copyrighted works. 5 countries have included the anti-circumvention provision even though they are not parties to the WIPO Copyright Treaty.

The Findings Only 3 countries allow use of the whole of a work for teaching purposes 9 countries limit the types and forms of utilisation for teaching to only reproduction of materials 9 countries have not included distance education in the teaching exception 5 countries restrict number of copies that can be made for illustrations for teaching 6 countries impose conditions allowing only published works to be quoted and restrict quotations to only a short part or extracts.

The Findings 10 countries have not excluded political speeches and speeches delivered in legal proceedings from copyright protection 0 have included exceptions to allow the use of copyrighted works in broadcasts for educational purposes 6 countries have not provided for minor reservations that allow use of copyrighted works for e.g in schools for educational purposes

Implications of the Findings Hard won concessions at the international level are not being translated into public benefit at the national level Possible reasons: Advice given by WIPO and foreign experts WIPO draft laws take a maximalist approach and are adopted by developing countries Countries negotiating membership to WTO being coerced to adopt higher IP protection than required by their accession status Civil society in these countries not sufficiently organised or informed of the issues

Case Studies – Indonesia & Thailand Copyright does play a role in determining access to knowledge. Monopoly created results in: High price of imported books Licences for translation difficult and expensive to obtain Flexibilities not used e.g. compulsory licensing and parallel import

Case Studies – Indonesia & Thailand Other factors contributing to lack of access to knowledge: Indonesia – 52% live on less than US$2 a day; signed all 3 treaties. Primary school textbooks replaced every year Corruption in supply of school textbooks increases prices 10% VAT on textbooks except those in the local language 10% VAT on all materials used in publishing Library budgets insufficient University students unable to buy textbooks, resort to photocopying Lack of access to the internet – only 7% connectivity.

Case Studies – Indonesia & Thailand Thailand - signed Berne Convention and TRIPs. Prices of English language university textbooks high Libraries lack budget to stock English language textbooks and journals 7% VAT imposed on all materials used for publishing 20% tax on all imported CD ROMs

Case Studies – Indonesia & Thailand Fundamental difference between Indonesia and Thailand is that access to knowledge is a shared value of Thai society. The legislature, the executive and judicial arms of government have each given meaning to this. National philosophy that textbooks are not for profiteering – books cannot be changed for 5 years, production at low cost, incentives to teachers to write books, government negotiates for consortia of university libraries, government translates and distributes for free to teachers books for teaching. Judiciary considers development objectives when determining IP related cases, e.g. photocopying of whole text for educational non profit purpose permitted.

CI Study on Copyright and Access to Knowledge All materials in the study available on the project website: