1. Copyright, Information Communications Technologies and Access to Information and Technology presented by Sangeeta Shashikant (Third World Network) at ASIAN Regional Workshop on Free Trade Agreements 26-28 August 2005 Kuala Lumpur, Malaysia

2. Presentation  Copyright : Introduction  TRIPS plus provisions in FTA  Extension of Copyright Term  Technological Protection Measures  Enforcement of IPRs  General Obligation  Criminal Procedures and Remedies  Conclusion

3. Copyright  Grants exclusive rights to creators of original literary, scientific & artistic works….no formalities for CR protection  Important means of regulating the flow of ideas and knowledge based products  Central instrument for knowledge industries in the 21 st Century  For developed countries….a major source of wealth & employment e.g. US in ’99…$80 billion for exports and combined value of copyright industries - $ 260 billion

4. Copyright  For Developing Countries:  Opportunities -for countries able to create and commercially exploit their creative works e.g. Booming Indian Software industry (Bet. 1994-94 and 2001- 02…gross earnings $787 million to US$ 10.2 billion (mostly exports)  Costs - access to knowledge and knowledge based products is restricted….important for education, facilitate research and improve competitiveness - the advance in ICT….has led to strengthening of CR at national and international fora  Crucial: the right balance copyright protection and adequate access. Inclusion of appropriate exemptions are crucial!!

5. TRIPS Plus Provisions in Bilateral Free Trade Agreements

6. Term of Copyright Protection extended  Berne Convention: life + 50 years  TRIPS: same term  FTA (US-Singapore FTA) Art 16.4 (4): Life + 70 years  Follows US term of protection

7. Why Copyright term was extended?  extended by Sonny Bono Copyright Term Extension Act 1998  strong lobby by Disney - “Mickey Mouse Protection Act”.  US Copyright law has been extended twice  Original term was…max 56 years term…amended by 1976 Copyright Act and followed the term of the Berne Convention.  This extension gave allowed Mickey Mouse and other short animated films to not enter public domain in US  US acceded to Berne in 1998 and following accession…many strong lobbyists wanted extension of copyright term.  As a consequence…a second extension was granted…additional 20 years….no copyrighted works will enter the public domain in the US until I January 2019 at the earliest.

8. Implications of extension:  need to amend national law  material suppose to fall in public domain is further protected for 20 years….reduces public domain  continuous payment of royalties for additional 20 years  restricts access to information and knowledge that should be in public domain

9. Technological Protection Measures (TPMs) (1)  FTAs requires signatory countries to provide for “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” (A. 16.4.7 USSFTA) “Effective technological measure refers to any technology, device….that in the normal course of its operation controls access to a protected work…..” (known as anti-circumvention laws) e.g. copy-protected CD

10. Technological Protection Measures (TPMs) (2)  Is in accordance to the US anti-circumvention laws called the 1998 Digital Millennium Copyright Act (DMCA)  The DMCA was designed to implement the WIPO Copyright Treaty (WCT) but goes even beyond  The anti-circumvention law in US has faced a lot of domestic opposition Currently - attempts to revise this anti-circumvention law  Problems relating to US’ enforcement of anti-circumvention law…has led to other countries rejecting the passing of similar laws e.g. A 2003 study in Canada…rejected the passing of anti-circumvention laws in Canada e.g. UK Commission on IP warned developing countries against the passing of anti-circumvention laws

11. Technological Protection Measures (TPMs) (3)  FTAs go beyond WCT and US DMCA “…any person who “knowingly, having reasonable grounds to know, circumvents without authority any effective TPM”…shall be liable under civil and criminal procedures. DMCA : “Intentional” std. FTAs: No need “intentional” std. (e.g. USSFTA) It provides for “reasonable grounds to know”…..no need for actual knowledge (USSFTA) Some FTAs…the requirement of knowledge is removed. e.g. US- Bahrain FTA, US- Morocco FTA so even if accidentally circumvent…the person would be liable.

12. TPM & Implications  It allows right holders to enforce exclusive rights in excess of those granted by local copyright.  limits fair use of copyrighted material e.g. unable to make copies for personal use  Chills freedom of expression and scientific research e.g. In Oct 2003, SunnComm threatened to sue a Princeton researcher who discovered that by simply holding down a key on the keyboard…bypasses the Co’s TPM. The CEO claimed that the shares prices dropped by US 10 million and threatened to sue e.g. Scientific conferences moving to outside US where anti circumvention laws are not in place as scientists and conference organizers risk criminal prosecution for providing info that could help someone circumvent restrictions.

13. TPM & Implications  Restrains trade and creates monopolies -TPMs are employed in many consumer products e.g. DVDs, printer toner cartridges….prevent competitors from selling compatible parts e.g. Lexmark, the second largest printer distributor in US used the DMCA to obtain an injunction to ban a microchip manufacturer from selling chips which circumvent TPM device by Lexmark and that enabled Lexmark’s competitor to manufacture cartridges for Lexmark printers.  Technological Innovation Stifled - Prevents reverse engineering e.g. Sony Corporation used the DMCA to sue the creators of reverse- engineered emulator software programs which allow consumers to play Playstation video games on their computers rather than on Sony’s proprietary Playstation game console.

14. TPM & Implications  Resale, lending and donation of information goods prevented. e.g. adobe ebooks are goods that use TPMs and cannot be sold on, lent or given away - In developing countries….used school books, computers and instructional materials are a mainstay of development efforts around the world  Libraries: - Libraries provide access to digital material through license agreements, exceptions under national copyright law, the public domain - TPMs lock in digital content behind technical barriers - TPMs prevent or place restrictions on copying or sharing or lending material, current awareness services, book reviews, exhibitions, sending information to students who cannot come into the library - Digital divide increase as under resourced libraries or those in smaller, rural or underprivileged communities (ironically standing to benefit most from the digital technologies lose out their statutory rights

15. TPM & Implications  Free and Open Source Software - These programs allow anyone to improve on them….important for development as it allows the programme to be modified according to local needs - TPM cannot be embodied in FOSS because TPM requires that users cant modify or examine the devices that they own  Distance education: - Laws on copyright and related rights often provide special rights to distance educator which has a variety exceptions for distance education - TPM can be used to eliminate these rights by raising the costs of providing instructional materials, by placing barriers to storing, transmitting, using distance education materials

16. Enforcement IPRs  Some General Obligations for a party:  Decision to distribute resources- not excused from complying with its obligations  Has to inform the public of its efforts to provide effective enforcement of IPRs in its civil, criminal, administrative and criminal system  May provide procedures for private criminal actions

17. Enforcement of IPRs  Criminal Procedures and Remedies (TRIPS plus) - TRIPS supports criminal sanctions in cases of “willful trademark counterfeiting or copyright piracy” done on “a commercial scale” with penalties to “include imprisonment and/or monetary fines sufficient to provide a deterrent” - FTAs define “willful trademark counterfeiting or copyright piracy” on a commercial scale” as: i) infringements that have no direct or indirect motivation of financial gain ii) willful infringements for purposes of commercial advantage or financial gain - remedies to include “imprisonment as well as monetary fines”

18. Enforcement of IPRs  Only very recently in the US has imprisonment been possible for infringements that involve no financial gain or motivation. e.g. In November of 1999 an Oregon college student was convicted of sharing music over the Internet under the NET Act. Facing three years in prison and hefty fines, Jeffrey Levy, pleaded guilty to the charges

19. Conclusion  Many aspects of the IP chapter in FTAs may have adverse impacts - on development by restricting access to essential goods - for consumers - are burdensome for developing countries  Many aspects are TRIPS plus, US – plus and currently being opposed or under reform in US or in WIPO….so be cautious in adopting these provisions