Copyright Law

Volume III: Copyright in the 21st Century

Benedict Atkinson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351570992
• Edition: 1
• Topic: Historia
• Subtopic: Historia del mundo

This volume shows how, since 1950, the growth of copyright regulation has followed, and enabled, the extraordinary economic growth of the entertainment, broadcasting, software and communications industries. It reproduces articles written by an extensive list of leading thinkers. US scholars represented in readings include James Boyle, Lawrence Lessig, Pamela Samuelson, Mark Lemley, Alfred Yen, Julie Cohen, Peter Jaszi and Eben Moglen. Leading non-US contributors include Alan Story, Brian Fitzgerald and Peter Drahos. These and other authors explain copyright origins, the development of the law, the theory of enclosure, international trends, recent developments, and current and future directions. Today, the copyright system is often portrayed as an engine of growth, and effective regulation as a predictor of economic development. However, critics see dangers in the expansion of intellectual property rights. The articles in this volume focus principally on the digital age, examining how copyright regulation is likely to affect goals of dissemination and access.

Part I
International Developments

[1]
Burn Berne:¹ Why the Leading International Copyright Convention must be Repealed

Alan Story^*

TABLE OF CONTENTS

I. INTRODUCTION

A. International Trade in Copyrighted Works

B. Basics of the Berne Requirements and Their Implications for Countries of the South

C. Copyright as a Vehicle for “Development” inCountries of the South

II. NATIONAL TREATMENT: A CONTESTED EQUALITY ISSUE

III. INTERNATIONAL COPYRIGHT: AN UNBALANCED AND “UNBALANCEABLE” SYSTEM

IV. COPYRIGHT AS AN IDEOLOGY AND CONCEPT EXPORTED TO THE SOUTH

V. CONCLUSION

I. INTRODUCTION

Woe is the life of the modern day student living in “Darkest Africa” for obviously we are still being kept in the slave quarters of the world. Harsh words? My friends try and live in a society where such Acts as the Intellectual Property Acts of the world [impede] your advancement in life.²

If it is a sin for the poor to steal from the rich, it must be a much bigger sin for the rich to steal from the poor. Don’t rich countries pirate poor countries’ best scientists, engineers, doctors, nurses and programmers? When global corporations come to operate in the Philippines, don’t they pirate the best people from local firms? If it is bad for poor countries like ours to pirate the intellectual property of rich countries, isn’t it a lot worse for rich countries like the US to pirate our intellectuals?

In fact, we are benign enough to take only a copy, leaving the original behind; rich countries are so greedy that they take away the originals, leaving nothing behind.³

Copyright law scholarship, certainly in the United States but elsewhere as well, tends to be rather fixated on “the latest case” or controversy. The more favored issues include how recent technological developments, such as the Internet, or peer-to-peer sharing, or new statutory provisions, such as the Sonny Bono Copyright Term Extension Act,⁴ the Digital Millennium Copyright Act,⁵ or the E.U. Copyright Directive,⁶ are creating “new” copyright disputes and quagmires on almost a daily basis. These are the conference-generating copyright topics, colloquially the “sexy subjects” of the present conjuncture. By comparison, a critical analysis of the 117-year-old Berne Convention⁷ and, in particular, its negative effects on countries of the South⁸ and their citizens, appears to be decidedly out-of-fashion and, in fact, has never been in fashion. Articles on so-called copyright “piracy” in such countries have become the only occasion that copyright issues affecting more than three quarters of the world’s population receive any profile in mainstream legal commentary produced within the rich industrialised countries of the North. In other words, it is the legal complexities of the e-book rather than whether millions of people can get access to and read their first book or get affordable access to computer software—and copyright’s role in these and related global problems—that tends to preoccupy most copyright experts.⁹

Berne’s shadow appears to be a rather pale one at first glance. Although it has long been recognised as one of the two leading international copyright conventions, Berne itself has not been amended since 1979 and, as far as this Author is aware, no country in the world—let alone a country of the South—is actively making proposals for any significant changes to Berne or its core doctrines. Indeed, within the increasingly vexed intellectual property relationships between rich and poorer countries, controversies over patents—whether about pharmaceutical patents for anti-HIV/AIDS drugs or plant patents and the phenomenon of biopiracy—have generated far more conflict than those based on copyright.¹⁰ Until recently, international intellectual property treaties and conventions such as Berne were essentially ignored; Berne was just “there,” perhaps a keystone of international copyright relationships, but hardly a source of either cutting-edge conflict or a topic for cutting-edge analysis.¹¹

Yet over the past fifteen years, Berne’s profile has expanded and become more pronounced—first when the United States, the world’s largest producer of copyright-protected works,¹² became a signatory in 1988,¹³ and second when the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)¹⁴ incorporated the substantive provisions of Articles 1 through 21 and the Appendix to the Berne Convention within its text.¹⁵ More recently, new international agreements, such as the World Intellectual Property Organization (WIPO) Copyright Treaty, have self-consciously been built on Berne’s conceptual and philosophical foundations.¹⁶ For example, key phrases and concepts in Berne, such as “national treatment” and “normal exploitation of the work,” have been adopted in both TRIPS and the WIPO Copyright Treaty.¹⁷ And while some commentators have suggested that the long-term future of Berne as a distinct international instrument may, in time, be eclipsed by the scope and breadth of TRIPS,¹⁸ Berne’s provisions do provide a central element of the overall TRIPS package. More significantly for our purposes here, Berne’s key assumptions and ideology infuse the copyright agenda of both TRIPS and of the World Trade Organization that enforces its provisions.

This Essay seeks to make and develop three main arguments:

(1) For countries of the South, Berne’s concept of “national treatment”¹⁹ essentially means that the state apparatus of these countries is deployed to protect—within their own borders—the copyrighted works produced in rich, developed countries. National treatment means “treating things that are different as though they were exactly alike.”²⁰ As implemented, national treatment promotes formal equality, but more importantly it reinforces substantive inequality and results in discriminatory and preferential treatment.

(2) The purported balance or equilibrium of copyright—that is, a system that acts to balance the interests of owners and users—does not work, as a practical matter, in this globally unequal circumstance. The power inequality between corporate copyright owners in rich countries and users in poorer countries of the South reveals the theoretical incoherence of treating copyright as a balanced or balanceable system and suggests the nonapplicability of the “balance” metaphor in international copyright discourse.²¹

(3) The notions (e.g., “authorship”) and value systems justifying copyright are not universal but rather “transitory social constructs which grew out of a very specific set of economic and social conditions”²² in Western Europe and, as such, copyright represents a coercive cultural and legal incursion onto the terrain of countries of the South.

As a result, the basic presumptions and practices of the Berne Convention work against the economic and access-to-knowledge or information interests of peoples living in the countries of the South. For such peoples and countries, Berne operates as a Western-based and unreconstructed colonial relic which they had no role in drafting and which was imposed on them without consultation in an earlier era.²³ Significant reform is extremely difficult, if not impossible: unanimity is required for amendment;²⁴ compared to many other international legal instruments, the possibility of reservations is slight indeed;²⁵ and the last serious attempt to reform Berne to better serve countries of the South during the 1960s led to the near collapse of the entire global copyright system during a period labelled “a crisis in international copyright.”²⁶ The one addition made to Berne during that era which purported to improve the situation of poor countries—incorporation of the Paris Appendix—has certainly not done so.²⁷ And there is nothing in the current international economic environment that suggests that radical reforms to Berne would be any more likely today than in the 1960s.²⁸ Hence, and as the subsequent analysis also tries to demonstrate, it is in the interests of countries of the South that Berne be repealed and a new framework be established on radically different grounds.

Before proceeding, a brief background is needed on three relevant trade, legal, and economic development issues:

A. International Trade in Copyrighted Works

In the current conjuncture, it is impossible to provide accurate figures on the dollar value of the international trade in copyrighted materials, and for the particular purposes of this Essay, on the value of the flow (or the aggregated transactions) between developed countries and countries of the South. Certainly numerous studies have found that industrialised countries are the main beneficiaries of intellectual property rights.²⁹ As the World Bank recently concluded, the TRIPS agreement, which incorporated much of Berne, “decidedly shifted the global rules of the game in favor” of rich countries.³⁰ Without doubt as well, countries of the South are primarily users of copyrighted works. But the paucity of data gives us only a rough approximation of the specifics of the sales and licensing figures for the copyrighted materials at stake; moreover, there are certain conflicts in the statistics that do exist. According to 1999 International Monetary Fund (IMF) figures on the global trade in royalties and licenses (derived primarily, though not exclusively, from intellectual property rights transactions), the United States received a total of $36.9 billion from its global intellectual property exports.³¹ Overall, the U.S. net surplus in its intellectual property trade with other countries was more than $23 billion.³² The United Kingdom, which was second to the United States, was the only other country to have an export-import surplus, but it trailed far behind with a surplus of $900 million. No country of the South had a surplus and, in fact, not a single one of the fifty least-developed countries had any calculable intellectual property revenues whatsoever.

The above statistics do not, however, distinguish between the revenues generated from copyright, patent, trademark, and other forms of intellectual property. In the case of the United States, what are sometimes labelled the “core copyright industries”³³ had total foreign sales and exports in 2001 of $88.97 billion, according to one report; this represented an increase, in times of overall economic recession, of 9.4% over 1999 levels and meant that U.S. foreign copyright sales and exports exceeded those for important U.S. sectors such as chemicals and allied products and motor vehicles and parts.³⁴ These industry-calculated copyright statistics are more than double IMF figures for U.S. exports of all forms of intellectual property, although the former statistics do include sales as well as licence and royalty payments. There is, however, another limitation in the existing data; the particular countries which have purchased or licensed U.S.-produced copyrighted materials are not specified. Despite these limitations in the statistics, it does seem reasonable to draw two broad conclusions. First, because of much higher per capita income levels, most copyright-related transactions occur, at present, between and among richer countries, with the United States being the main producer, seller, and beneficiary. Second, countries of the South—generally and especially countries with large populations, such as China, India, Brazil, Indonesia, and Nigeria—offer huge potential markets for the copyright properties of the rich countries.³⁵ In other words, there is a very large financial incentive for corporate interests in rich countries, especially the United States, to try to require countries of the South to provide the strongest possible protection to copyright-protected products with...