Digital Environment and New Paradigm in Copyright Relations How Digital Media Changed Control Over Creative Expression Edición Única

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(2) INSTITUTO TECNOLÓGICO Y DE ESTUDIOS SUPERIORES DE MONTERREY CAMPUS MONTERREY ESCUELA DE GRADUADOS EN ADMINISTRACIÓN PUBLICA Y POLÍTICA PUBLICA. TECNOLÓGICO DE MONTERREY® DIGITAL ENVIRONMENT AND NEW PARADIGM IN COPYRIGHT RELATIONES How Digital Media Changed Control Over Creative Expression. TESINA PRESENTADA COMO REQUISITO PARCIAL PARA OBTENER EL GRADO ACADÉMICO DE. MAESTRÍA EN DERECHOS INTERNACIONALES. Por JAIME LEONEL SALAS SANJOSE. MONTERREY, NUEVO LEÓN. MAYO 2008.

(3) INSTITUTO TECNOLÓGICO Y DE ESTUDIOS SUPERIORES DE MONTERREY CAMPUS MONTERREY. ESCUELA DE GRADUADOS EN ADMINISTRACIÓN PUBLICA Y POLÍTICA PUBLICA. TECNOLÓGICO DE MONTERREY®. DIGITAL ENVIRONMENT AND NEW PARADIGM IN COPYRIGHT RELATIONS How Digital Media Changed Control Over Creative Expression.. TESINA. PRESENTADA COMO REQUISITO PARCIAL PARA OBTENER EL GRADO ACADÉMICO DE:. Maestría en Derechos Internacionales. POR: Jaime Leonel Salas Sanjose. MONTERREY, N.L.. MAYO DE 2008.

(4) INSTITUTO TECNOLÓGICO Y DE ESTUDIOS SUPERIORES DE MONTERREY CAMPUS MONTERREY. ESCUELA DE GRADUADOS EN ADMINISTRACIÓN PUBLICA Y POLÍTICA PUBLICA. Los miembros del comité de tesina recomendamos que el presente proyecto de tesina presentado por Jaime Leonel Salas Sanjose sea aceptado como requisito parcial para obtener el grado académico de: Maestría en Derechos Internacional. Comité de Tesina:. Dr. Roberto Garza Barbosa Asesor. Dr. Gabriel Cavazos Villanueva Sinodal. Lic. Noé G. Galván Martínez Sinodal. Dra. Teresa Almaguer Salazar Directora Académica de la EGAP Mayo, 2008.

(5) Table of Contents I. II.. III.. IV.. V.. VI.. VII.. Page Introduction 1 Evolution of Copyright Laws 5 A. Statute of Anne 1710 6 B. U.S. Copyright Act of 1790 7 C. 1886 Berne Convention & Important Revisions 9 1. Berlin Revision of 1908 11 2. Rome Revision of 1928 12 3. Brussels Revision of 1948 13 4. Paris Revision of 1971 13 International Policy & Neighbouring rights 17 A. General Agreement on Tariffs & Trade (GATT) 18 1. Intellectual Property Rights (IPRs) 20 B. Rome Convention of 1961 21 1. Relationship between Rome & Copyright Provisions 22 2. National Treatment Provisions 23 3. Duration & Deficiencies of the Rome Convention 24 Technological Evolution & Impact on International Copyright 26 A. World Intellectual Property Organization (WIPO) 27 B. Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994 (TRIPs) 29 1. TRIPs & Computer Programs 31 C. WIPO Internet Treaties: WCT and WPPT of 1996 34 D. Digital Millennium Copyright Act (DMCA) of 1998 40 Relevant Copyright Cases in the Digital Environment (DMCA Effect) 46 A. Sony Corp. v. Universal City Studios 46 B. Universal v. Reimerdes 47 C. RealNetworks v. Steambox 47 D. MGM et al. v. Groksters 49 E. Felten v. RIAA 50 F. U.S. v. ElmcomSoft 50 G. RIAA v. Verizon 51 H. 321 Studios v. MGM 52 Digital Rights Management (DRM) 54 A. Technological Protection Measures (TPMs) 55 1. Rights Model 56 2. U.S. First Amendment Challenge 58 B. Legal Support: WIPO of 1996 and DMCA of 1998 59 1. Limits on DRM Protection 60 2. Bad Use of DRM 63 3. Good Use of DRM 64 C. Social Impact: Balancing interest between Copyright Holder & Public.66 Conclusion 73.

(6) If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.". - Thomas Jefferson, from a letter to Isaac McPherson (1813).

(7) I.. Introduction. The impact that intellectual property rights (IPRs) have on economic and political issues has never been more important or controversial than it is today.. Digital technology has. revolutionized the way people access valuable information by making it easier and faster. The speed and ease in which digital information can now be retrieved, duplicated, or transferred without regards to geographic boundaries has altered the traditional manner that industries and governments regulate intellectual property rights on an international level. Although intellectual property covers different areas, the purpose of this analysis is solely on the evolution of copyright reform.. According to Title 17 of the United States Code, "copyright must be an original work of authorship fixed in a tangible medium of expression."1 This provision grants the creator of an original work with certain exclusive rights of use and control as long as the work is "fixed" in a tangible form. In 2005, the United States "total" copyright industries earned an estimated $1.38 trillion dollars or 11.12% of GDP, while in Europe copyright industries accounted for more than 5% of GDP.2. The impact that the copyright industry has on world economies and trade has made it a global issue. On an international level, the principle of territoriality asserts that there is no uniform copyright regulation that can be claimed around the world.3 The protection that a creative work receives outside of its country of origin is acquired from international treaties.4 This makes it more complicated to enforce copyright protection norms outside of the country of origin. The cost of developing a new product in any copyright field (e.g. publishing, software, entertainment) can range in the millions of dollars.. This creates an urgent need for both national and. international policy leaders to address the importance of developing effective copyright legislation.. 1. 17 U.S.C. § 102 (2000). See STEPHEN E. SlWEK, COPYRIGHT INDUSTRIES IN THE US ECONOMY: THE 2006 REPORT 2 (2006). 3 See Roberto Garza Barbosa, Revisiting International Copyright Law, 8 BARRY L. REV. 44 (2007). 4 See id. 2.

(8) However, the fundamental problem lies in formulating legitimate policy that balances the interest of authors and inventors with the interest of the public. Intellectual property regulation has always relied on governments to promote social welfare by protecting the rights of creative authors to their original work, but limiting these rights so that these innovations can be shared, enjoyed, and freely exploited by the public.5 These principles are accepted by the majority of the countries in the world as the building block to intellectual property rights.6. In fact, the concept of protecting published works for a limited time can be traced back to the original copyright act, the Statute of Anne of 1710. This is considered the world's first copyright act passed by the British Parliament to regulate the protection of creative works. This Statute served as the cornerstone for the first Federal U.S. Copyright Act of 1790. The main objective was to improve the welfare of society by balancing the relationship between private and public rights.. The initial framework of copyright reform was intended to be flexible and adaptable in order to encourage progress and economic growth. Thus, the pioneers of copyright reform realized the need to protect the rights of authors and inventors, but saw it only as a means to encourage public interest and creativity. By the late eighteenth century, the idea of copyright protection became a vital part of newly formed international treaties, like the Berne Convention for the Protection of Literary and Artistic Works of 1886 (hereinafter Berne Convention of 1886). The Berne Convention of 1886 was the first international treaty for the protection of intellectual property rights and was instrumental in improving relations among the major economic powers.7 Although the Berne Convention of 1886 followed a rights-oriented approach, it recognized the importance of balancing the interest of protection and access.. Ruth Okediji supports the idea of a free society and claims that "such access is important to facilitate the dissemination of knowledge, thus generating social welfare gains, and for the. 5. See Viktor Mayer Schonberger, In Search of the Story: Narratives of Intellectual Property, 10 VIRGINIA JOURNAL. OF LAW & TECHNOLOGY, n. 11 (2005). 6. See Ruth L. Okediji, The International Copyright System: Limitations, Exceptions, and Public Interest Considerations for Developing Countries, 15 ICTSD ISSUE PAPER 9 (2006). 1 See id. at 1..

(9) benefit of downstream creators who rely on the availability of a robust "public domain" from which to draw resources for productive ends."8. She emphasizes the importance of setting. limitations and exceptions to creative and knowledgeable works in order to encourage new generations to imitate and learn from past creativity.. However, globalization and digital. technology complicate the regulatory landscape for international copyright and, consequently, jeopardize the legitimacy of current international copyright regimes to deal with the global nature of the Internet and digital media. The expansion of digital technology and the Internet make digital piracy easy and inexpensive, creating an urgent need to address current copyright reform. In addition, copyright protection now expands from serving the mere interest of the author to serving the interest of multinational conglomerates.. Today, major corporations produce an enormous amount of money from copyright ownership, which has transformed them into strong advocates of new rules for more institutional protection that tends to extend copyright laws passed their legal limits. These issues have caused the public to criticize the legitimacy of current copyright policy and questioned whether these laws are serving private or public interest. In today's digital age, the power to control access to creative works seems to have shifted hands from policymakers to the private realm of copyright owners.. The purpose of this investigation is to elaborate on the evolution of intellectual property rights, to recognize the importance of finding a balance between protection and access, and to evaluate whether Digital Rights Management (DRM) technology presents an appropriate approach towards finding a respective solution to the threat of digital piracy and a key resolution to new copyright reform.. The first part of this paper takes a historical look at the origins of copyright law and its role in forming intellectual property regimes.. I will discuss the classic international treaties on. intellectual property rights, beginning with the Berne Convention of 1886 and continue with the most important revisions: Berlin Revision of 1908, Rome Revision of 1928, and Paris Revision of 1971. This discussion will take a look at how copyright regulation was introduced and how particular rules were formed to deal with issues like exclusive rights and national treatment. It %. ld. at xi..

(10) will center on the institutional framework of the Berne Convention of 1886 and how it served to coordinate national laws and practices into a model of international minimum standards for the protection of copyrighted works.9 The second part reviews the impact globalization and technology has had on modern treaties.10 This section highlights the regulatory landscape of modern international copyright treaties and their effort to find a balance between exceptions and limits. There is an important need to analyze both the strengths and weaknesses of current copyright regulation in order to find an optimal strategy that clearly outlines the rights and obligations of copyright owners.. For. instance, it is important to ask the following questions: Has the focus changed from social welfare to capital gains?. How effective has the Agreement on Trade-Related Aspects of. Intellectual Property Rights (TRIPs) of 1994 been on establishing a legitimate international copyright system? How far do the limits of copyright law go? Does the law still control the interest of technology and capitalism, or vice versa? These are just a few questions that need to be addressed in order to gain an idea of how complex the current situation is in the case of intellectual property rights. I will give special attention to current intellectual property right treaties, especially the World Intellectual Property Organization (WIPO) treaties and the Digital Millennium Copyright Act (DMCA), and how they apply to the questions asked above. This will require a thorough assessment of the legal entitlements provided by copyright regulation, such as the limits and exceptions of exclusive rights.. The final part of this paper gives a comprehensive analysis of the intricate problems that the digital media and technology are having on intellectual property rights. It will take a close look at some of the problems caused by the introduction of digital technologies, like Peer-2-Peer networks and "sampling". The Copyright Industry Organizations, led primarily by the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), have proposed DRM technology as a means to improve copyright protection against the illegal circumvention of copyright works. DRM technology is intended to provide a secure method to distribute digital content. "Right holders and technology companies alike have most 9. See id. at 5.. 10. Three modern treaties are; Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPs), World Intellectual Property Organization (WIPO) Treaties of 1996, Digital Millennium Copyright Act (DMCA) of 1998..

(11) frequently suggested a technological solution to this problem: to create a global information infrastructure- from networks to computers to software- that makes it easy and cheap to transact legally, and difficult and costly to copy without permission."11 Even though DRM is still in early stages of development, the technology is already being applied by major corporations and international treaties alike.. I will embark on a discussion on DRM and how it promises to cure the ill-effect of piracy and copyright infringement. Specifically, I will focus on the legal and economic aspects of applying such a system. It is my intention to answer the following questions: Does DRM improve social welfare? What does this technology mean to public interest? Is DRM a necessary evil? This assessment will outline the obstacles that DRM faces, examine whether it utilizes the advantages of digital technology to protect against piracy, and evaluate the role that DRM technology plays in international copyright law.. II.. Evolution of Copyright Laws. The origins of copyright law can be traced back to the eighteenth century when the British introduced the first piece of copyright legislation known as the Statute of Anne of 1710.12 The invention of the printing press transformed the expensive and laborious task of producing a written work into a cheap and efficient process. It was during this time that the private sector became concerned over the mass production of literary works. In England, the Licensing of the Press Act of 1662 restricted printing and enforced licensing of creative works.13 Although the Act of 1662 did address the need to protect literary works, it favored the interest of the printing companies over the interest of the authors and, therefore, granted printers monopolistic control over the distribution of copyright works. This Act expired in 1695 which led to the creation of the Statute of Anne Act of 1709, considered to be the first legitimate copyright law.. u. Schonberger, supra note 5, at 11. The bill was first presented to Parliament on December 12, 1709, but did not enter into force until April 10, 1710. It was named after Queen Anne, during whose rein it was enacted. See Dennis W. Khong, The Historical Law and Economics of the First Copyright Act, 2 ERASMUS L. & ECONOMIC REV. 43, n.l (2006). 13 Licensing of the Press Act of 1662. 12.

(12) frequently suggested a technological solution to this problem: to create a global information infrastructure- from networks to computers to software- that makes it easy and cheap to transact legally, and difficult and costly to copy without permission."11 Even though DRM is still in early stages of development, the technology is already being applied by major corporations and international treaties alike.. I will embark on a discussion on DRM and how it promises to cure the ill-effect of piracy and copyright infringement. Specifically, I will focus on the legal and economic aspects of applying such a system. It is my intention to answer the following questions: Does DRM improve social welfare? What does this technology mean to public interest? Is DRM a necessary evil? This assessment will outline the obstacles that DRM faces, examine whether it utilizes the advantages of digital technology to protect against piracy, and evaluate the role that DRM technology plays in international copyright law.. II.. Evolution of Copyright Laws. The origins of copyright law can be traced back to the eighteenth century when the British introduced the first piece of copyright legislation known as the Statute of Anne of 1710.12 The invention of the printing press transformed the expensive and laborious task of producing a written work into a cheap and efficient process. It was during this time that the private sector became concerned over the mass production of literary works. In England, the Licensing of the Press Act of 1662 restricted printing and enforced licensing of creative works.13 Although the Act of 1662 did address the need to protect literary works, it favored the interest of the printing companies over the interest of the authors and, therefore, granted printers monopolistic control over the distribution of copyright works. This Act expired in 1695 which led to the creation of the Statute of Anne Act of 1709, considered to be the first legitimate copyright law.. u. Schonberger, supra note 5, at 11. The bill was first presented to Parliament on December 12, 1709, but did not enter into force until April 10, 1710. It was named after Queen Anne, during whose rein it was enacted. See Dennis W. Khong, The Historical Law and Economics of the First Copyright Act, 2 ERASMUS L. & ECONOMIC REV. 43, n.l (2006). 13 Licensing of the Press Act of 1662. 12.

(13) K.. Statute of Anne 1710. Wthough the word "copyright" was never actually used, the term was clearly expressed in the toterpretation of the law. The official title of the Statute was, "an act for the encouragement of teaming."14 The Statute of Anne granted all rights of a literary work to the author rather than the publisher, ending the monopoly that British booksellers and publishers previously enjoyed.15 For over a century, authors of creative works faced the harsh reality that once a publishing company bought their story they gave up the right to any additional royalties. This meant that it really did not make a difference to an author whether his creative work became famous because all the author would ever see was one initial payment. Imagine Stephen King collecting one check for "The Shining" or "Misery" and then watching someone else reap the rewards of two classic novels that became movie hits. This type of treatment would have discouraged Stephen King's passion and creativity for writing and, consequently, would have limited society from a collection of unique stories.. Influenced by John Locke's utilitarian approach, the Statute of 1710 granted authors the exclusive rights to their works for a limited period and, thus, established the first set of copyright laws that protected authors against the threat of infringement.16 Locke's theory proclaimed that property belonged to any individual who invested labor to transform it. This theory applied well to the creative dimensions of artists and helped translate real property to intellectual property. This treaty signified an attempt to encourage authors to develop new creative works in order to stimulate competition and economic growth. However, by limiting the terms of copyright, the Statute recognized the importance of adopting public interest norms to ensure that these innovations became available to everyone. This created a "public domain" by ensuring that once a copyright had expired, the works were legally available for anyone to use. The 1710 Statute set the framework for future copyright laws around the world.. 14. Khong, supra note 12, at 35, 69. The history of Anglo-Saxon can be traced back to the Stationers Company of London. The Stationers Company was founded in 1403. It was composed of booksellers, illuminators, and bookbinders. The Stationers Company received a Royal Charter in 1557 which allowed them to establish a monopoly on book production. This Charter ensured that once a member declared ownership of a specific work that no other member could publish it. See id. at 43. 16 See Schonberger, supra note 5, at 4. 15.

(14) B.. U.S. Copyright Act of 1790. Following the Statute of Anne, countries around the world began to enact their own copyright laws to protect the interest of their citizens. In the United States, the Federal Constitution in Article 1(8) established that property in copyright is governed by federal law and empowers Congress to enforce its objective.17 This law helped Congress introduce the Copyright Act of 1790 to foster the "encouragement of learning" by granting authors the exclusive right to print or publish their work for a term of fourteen years, with the possible renewal of another fourteen years.. The Act empowered Congress to articulate a rational and pragmatic strategy, both by. encouraging innovation by rewarding authors and by facilitating the dissemination of creative works to promote public interest. This assured that, through a compromise between protection rights and access rights, copyright owners were compensated for their creations and, consequently, the "public domain" was rewarded with wide public access to these creations after a limited period of time.. According to William Patry, the 1790 Act displayed three major deficiencies: i) it failed to answer the problems of administrative procedures for registration or enforcement; ii) it adopted a model of strict formalities and restrictions like the Statue of Anne of 1710; iii) rather than provide copyright protection to all authors around the world, it only applied to American citizens.19 Critics argued that the Copyright Act of 1790 was vague and failed to provide an efficient means for authors to protect their rights. The failure to comply with all the formalities demanded by the law caused authors to forfeit their rightful claims to their works. The exclusive protection granted to American authors meant that the United States did not honor foreign copyrights.. What was the United States logic for limiting copyright protection to national citizens? One main reason was that the United States relied heavily on the cultural wealth of Europe. In the 1790s, the United States just declared independence from Britain and in the early stages of 17. U.S. Const, art. I, § 8, cl. 8. Copyright Act of 1790. 19 William F. Patry is an American lawyer specialized in copyright law. Patry served as a copyright counsel to the US House of Representatives in the 1990's, where he took part in forming copyright legislation in the Uruguay Round Agreement Act. He is currently a Senior Copyright Counsel for Google, Inc. Patry has practiced copyright law for 25 years. See William Patry, Patry on Copyright, WIPOMAGAZINE, July 2007, at V7. 18.

(15) development and international copyright protection was not a top priority. Consequently, from 1790 to 1891, The U.S. denied foreigners copyright protection and became known as a major pirating nation.. American publishers freely copied the works of famous European authors such. as Charles Dickens, Anthony Trollope, and Victor Hugo claiming that the heritage of mankind belonged in the "public domain".21. The problem with this predicament was that these. discriminatory tactics harmed both American authors and foreign authors, alike. For instance, American publishers were allowed to flood the domestic market with cheap copies of famous foreign works.. The easy access to pirated copies made purchasing creative works from. American authors less attractive and, consequently, harmed their ability to earn any revenue from their works.. It was not until 1891 that the United States ratified the Chace Act and complied with international copyright standards.22 Under the Chace Act of 1891, foreign authors were allowed to copyright their published works in the United States. The Act protected any foreign work whose nation offered reciprocal protection to an American work. This meant that the Chace Act protected foreign works only when the same type of protection was offered to American works in a foreign country.23. Prior to the Chace Act, the United States refused to recognize international copyright protection and, now, in an effort to incorporate international copyright law, it crafted the principle of reciprocity in order to avoid retaliation on American works.. The Chace Act contained a. controversial "manufacturing clause" that required all books, whether foreign or domestic, be printed from type set or plates made from the United States.24 Basically, this denied copyright protection to American authors whose books were printed abroad. American printers lobbied over such a scheme in order to secure some protection for their industry before opening the doors. 10. See TAD CRAWFORD & KAY MURRAY, THE WRITERS LEGAL GUIDE: AN AUTHORS GUILD DESK REFERENCE 85 (3rd ed. 2006). 21 See id. at 85, 87. 22 Formally known as The International Copyright Act of 1891, the Chace Act is named after Senator Jonathan Chace of Rhode Island and is the first US congressional act to extend protection to foreign copyright holders from selected nations. See id. at 86. 23. See id. "See id..

(16) to foreign competition. This was a mild improvement in comparison to the actual laws that were needed to foster the large growth of creativity being introduced.. C.. 1886 Berne Convention & Important Revisions. In 1875 a Royal Commission, Association Litteraire et Artistique Internationale, led by famous poet Victor Hugo orchestrated an international convention for the protection of creator's rights that led to the adoption of the Berne Act of 1886 in Switzerland.25 The initial treaty was ratified by ten countries that included members from leading economic powers of that time.26 However, the United States refused to join and waited over hundred years before signing the Berne Convention in 1988. As previously mentioned, it was speculated that one main reason the United States refused to recognize international copyrights was because at the time of the Berne Convention of 1886 the United States was still a developing country and, primarily, a net copyright importer,. "...when the United States was still a relatively young and developing. country, for example, it refused to respect international property rights on the grounds that it was freely entitled to foreign works to further its social and economic development."27 The United States was in the early phases of reconstruction and believed that international copyright protection created an unfair trade balance. Another important reason the United States was reluctant to sign the original Berne Convention was that America was strongly against moral rights. Article 6bis of the Berne Convention of 1886 defines moral rights as a right to claim ownership of a work and to object to any distortion or derogatory modification of the original OR. work.. In essence, the idea was to protect the author's rights to the integrity of the work and to. the right to be affiliated with the work. 25. The Association Litteraire et Artistique Internationale was formed by Victor Hugo, a famous French poet, as an organization for European artists and literary authors. They are recognized for their commendable efforts in promoting new regulation against international piracy which led to the Berne Convention for the Protection of Literary and Artistic Works in 1886. [hereinafter Berne Convention of 1886] See PAUL GOLDSTEIN, INTERNATIONAL COPYRIGHT: PRINCIPLES, LAW, AND PRACTICE 19 (2001). 26 The original ten countries that signed the Berne Convention of 1886 were; Belgium, France, Spain, Germany, Italy, Liberia, Tunisia, Switzerland, Haiti, and the United Kingdom. The French and British Governments declared that their accession combine their colonies and foreign possessions. The 'UK ratified the Berne Convention on behalf of her principle self-governing dominions; Australian colonies, Canada, Cape-Colony, India, Natal, New Zealand, and Nova Scotia. See id 27 ABDULQAWIA YUSUF, INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE: THE TRIPS AGREEMENT 4 (Carlos M. Correa & Abdulqawi A. Yusuf eds., 1998). 28 Berne Convention of 1886, art. 6bis(l), Sept. 9, 1886, reprinted in the World Intellectual Property Organization, last revised July 24, 1971 in Paris, amended Oct. 2, 1979, S. TREATY DOC. NO. 99-27,828 U.N.T.S. 221 [hereinafter Berne Convention]..

(17) The Berne Act's main objective was to coordinate a mutual understanding between sovereign nations on sound principles for copyright protection. The Berne Convention of 1886 provided that copyright protection was not forced to comply with formalities, such as registration or deposit of copies. However, to the extent that formalities existed in the country of origin, member states were required to act in accordance with the rules and formalities of the country of origin. This rule would later be replaced in the 1908 Berlin Revision by the principle of formality-free protection reflected in the current Berne Convention.. These modifications. generated new provisions that introduced a uniform copyright regime for European nations so that copyright for creative works was automatically in force without being asserted or declared. The Berne Convention of 1886 was based on three fundamental principles; i.. ii. iii.. Instead of enforcing a reciprocity approach, like the bilateral treaties of the past, it established national treatment (where one state extends the same protection to a foreign state as it does to its own authors). Minimum standard of protection related to the work and rights to be protected that all member state must meet. Automatic protection for copyright works at the moment of creation.29. The national treatment clause was adopted to deal with the issue of non-discrimination by replacing the system of material reciprocity. The Berne Convention of 1886 would later be revised to include a version of reciprocity as an exception to the rule.30 The claim for material reciprocity was allowed only in cases when the application of national treatment went against the interest of local norms and practices. National treatment extended to any national of one of the member states, to those who had habitual residence in one of these countries, and to authors who were not citizens of a member country, but their works were first published in a member county.31 The principle of national treatment during this era made sense because it consolidated different elements of national laws and practices into one international copyright system. The external pressures from international trade were mild and, thus, domestic policy consumed top priority over all international affairs.. The Berne Convention of 1886 established a set of. minimum standards applicable to all member nations that with their incorporation harmonized national laws and created an obligation to protect foreign works regardless of domestic. 29. Watarts. 2, 5. National Treatment in the original Beme Convention of 1886 replaced material reciprocity. However, the Act was later revised in order to include material reciprocity as an exception to the rule. Id. 31 Id art. 5. 30. 10.

(18) treatment.. Under the principle of automatic protection, a creative work would still be protected. even if it failed to meet certain formalities.. The Berne Convention of 1886 is commended for creating a Copyright Union. Article 1 of the Convention established a union composed of member states as a means to protect the rights of creators of artistic and literary works.33. The Convention also created an administrative. secretariat recognized as the United International Bureau for the Protection of International Property. This secretariat later merged with the secretariat instituted by the Paris Convention to form the World Intellectual Property Rights Organization (WIPO) of 1967.34 The adoption and provisions of the WIPO will be discussed in more detail at a later time.. The Berne Convention of 1886 has been updated and revised numerous times in order to accommodate the rapid advancement in technology and the aggressive expansion of globalization. Some of the most notable modifications of the Convention took place in Berlin in 1908, Rome in 1928, Brussels in 1948, and Paris in 1971.35. 1. Berlin Revision of 1908 The Berlin Conference of 1908 extended copyright to photography, sound recordings, and cinematography. Literary works produced as sound recordings were included. The application of authorized or assigned usage of sound recording was also covered.. It was the Berlin. Conference that instituted a minimum fifty-year term of protection after an author's death.36 One notable amendment was the introduction of the formality-free principle.. Formalities are. conditions that a creative work must fulfill in order to receive copyright protection. However, the introduction of the principle of formality-free protection, which is illustrated in Article 5(2) of the current Berne Convention of 1971, prohibits the requirement of formalities.. 32. See YUSUF, supra note 27, at 16. Berne Convention, supra note, at art. 1. 34 See SAM RlCKETSON & JANE C. GlNSBURG, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS: THE BERNE CONVENTION AND BEYOND 1006-1007, v. 2 (2ed. 2002). 35 See id. at 1082-1094. 36 See GOLDSTEIN, supra note 25, at 21. 33. 11.

(19) 2. Rome Revision of 1928 The Rome revision of the Berne Convention in 1928 addressed the moral rights of authors and broadcasters to works of literature, sound recordings, and cinematography. Article 6bis defines moral rights as: Independently of the author's economic right, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honor or reputation.37 Moral rights and economic rights are not one in the same. Moral rights of an author are considered alienable and unaffected by an author's economic right. Article 6bis(2) insures the existence of moral rights after the death of an author at least until the expiration of economic rights.. Even if an artist releases his economic claim to a creative work, he or she maintains the. moral rights to that work. For example, a writer may own the moral writes to a creative work, but a publisher may own the economic rights to the work. Moral rights protect the right of an author to object to any changes that are considered degrading to the original work or to the reputation of the author of the work.. France and Germany consider moral rights as the centerpiece of copyright law. French and German law acknowledge four basic moral rights: i) the right to publish-the right to determine when, how and by whom the work will be made public; ii) the right of attribution-the right to be recognized for a published work in the fashion that the author wishes; iii) the right of integritythe right to prohibit or be compensated for any actions that mutilate, damage, or materially alter the substance of the authors original work and that do harm to the authors honor or reputation; iv) the right to retract-the right to object a public dissemination of the work prior to or after publication, given that the author meets certain conditions.39 The Berne Convention of 1928 covers two of these principles in its definition of moral rights; the right of integrity and the right of attribution. The United States was hesitant to join the Berne Convention of 1928 largely because it refused to acknowledge the principles of moral rights. The United States finally joined the Berne Convention in 1986 primarily to strengthen its credibility in trade negotiations. 37. Berne Convention, supra note 28, at art. 6bis. Id 39 See Michael B. Gunlicks, A Balance of Interest: The Concordance of Copyright Law and Moral Rights in the Worldwide Economy, 8 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 608 (2001).. 38. 12.

(20) The significance of this alliance is that it withdrew the United States from the Universal Copyright Convention of 1952.40. 3. Brussels Revision of 1948 The Brussels Revision of the Berne Convention in 1948 addressed enforcement regulations within signatory states. The 1948 Act also ratified the droit de suite clause in works of art and manuscripts under Article \4ter.41 Droit de suite or resale royalties are the rights of authors to be compensated with a percentage of the profits made from the resale of their works.42 This right is reflected by the majority of the member countries in the European Union (EU).. 4. Paris Revision of 1971 The 1971 Paris revision of the Berne Convention, which is the current version of the treaty, is significant because it added the Appendix entitled "Special Provisions Regarding Developing Countries" that reflects special provisions that provide developing countries, under certain conditions, access to the dissemination and reproduction of copyright works .43 The Appendix provides a compulsory licensing scheme that limits copyright owners control over access to their creative works. The objective of the Appendix is to improve the availability of creative works for developing countries.. The most important aspect of the Appendix is that it provides. developing countries with an opportunity to benefit from proprietary knowledge whose access would have otherwise been limited.44. Developing countries can take advantage of the two. compulsory licensing options provided by the Appendix. The first option permits translations for the purpose of teaching, scholarship and research, and for the publication of such translations.45 The second option permits the reproduction for the use in connection with systematic. 40. The Universal Copyright Convention (UCC) was ratified at the UNESCO conference in Geneva in 1952. The UCC was created as an alternative to the Berne Convention. The UCC was implemented mainly to serve the interest of the United States. At the time, the United States did not want to comply with the Berne Convention because the Berne Convention required significant changes to US copyright law, particularly with regards to moral rights and the formal registration of copyright works. The UCC quickly gain status due to its soft rules and regulations. See RUTH RlKOWSKI, GLOBALISATION, INFORMATION, AND LIBRARIES: THE IMPLICATIONS OF THE WORLD TRADE ORGANIZATION'S GATS AND TRIPS AGREEMENT 213 (2005). 41 Berne Convention, supra note 28, at art. \4ter. 42 Id. 43 Id. at Appendix: Special Provisions Regarding Developing Countries. 44 See YUSUF, supra note 27, at 5. 45 Berne Convention, supra note 28, at Appendix, art. II.. 13.

(21) instructional activities.46 Thus, the Appendix of the Berne Convention of 1971 provides a tool to stimulate the dissemination of creative works in an effort to promote public welfare.. The. Appendix has been incorporated into the TRIPs Agreement of 1994 and the WIPO Copyright Treaty.47. The Berne Convention of 1971 preserves a broad application of national treatment along with a set of minimum standards and exceptions offered to signatory members.. Thus, the main. objective is to institute a legitimate international copyright treaty where member states agree on a minimum set of copyright standards. Accordingly, the Berne Convention of 1971 expands the scope of minimum subject matter to include photographic works, musical works, and cinematographic works. Article 2 of the Convention defines subject matter as, literary and artistic works shall include every production in the literary, scientific, and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings... musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting,...; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps,... ,48 The list of works protected is not a closed list.. It also includes translations, adaptations,. arrangements of music and other alterations of a literary or artistic work, and collections of literary or artistic works, such as encyclopedias and anthologies, which constitute intellectual creations.49 Article 2(2) leaves it up to member countries to prescribe, through their national legislation, which works qualify for protection based on rules of fixation.50. The Berne. Convention of 1971 excludes any facts from copyright protection. Article 2(8) explicitly states that "news of the day" or "miscellaneous facts having the character of mere items of press information" shall not be protected.51. 46. Id. art. III. World Intellectual Property Organization (WIPO) Copyright Act, art. 1, § 4, Dec. 20, 1996, S. TREATY DOC. NO. 105-17,361.L.M. 65 [ hereinafter WCT]. 48 Berne Convention, supra note 28, at art. 2. 49 Id. 50 Id. art. 2, §2. 51 Id. art. 2, § 8.. 47. 14.

(22) In order to express a commitment to public interest, exceptions are made that allow public access to protected works without the consent of the owner of the copyright. In reference to special exceptions, Article 9(2) allows a member country to regulate exceptions to the reproduction right in certain special cases, provided that such exceptions do not conflict with a normal exploitation of the work and do not unreasonably prejudice the author's legitimate interest.52 This is applied through a three-step test that determines the limitations and exceptions of reproduction rights. Article 13 of the TRIPs Agreement incorporates the three-step test as a standard to decide whether certain limitations and uses are permitted.. Article 10(2) imposes limitations and. exceptions on copyright by allowing the utilization of literary or artistic works by way of illustration in publications, broadcasts, or sound or visual recordings for teaching, provided that the use of such exceptions are compatible with fair practice.53 Article \0bis grants an exception to authorize the reproduction of copyright works by the press for the purpose of reporting or broadcasting current events to the public.54 Article 1 Ibis protects an author's rights to authorize the broadcasting of their works and the communication thereof by wireless diffusion of signs, sounds or images.55 These exceptions are instituted to encourage public interest by ensuring that they have access to creative goods and knowledgeable information. These are just a few of the core elements that outline the Berne Convention of 1971.. The Berne Convention of 1971 offers two diverse alternatives to copyright law. One alternative reflects an author-centric approach focused on protecting the rights and interest of the author. This view encompasses a Continental approach to copyright law that is favored by most European countries, primarily France and Germany.56 The other alternative emphasizes a public interest approach by promoting a need to reinforce the principles of limits and exceptions in order to ensure the public optimal access to creative works and knowledgeable information. The idea behind these principles is to encourage the dissemination of innovate works in order to promote basic social and economic goals. This is a fundamental reason why the pioneers of. 52. Id. art. 9, § 2. Id. art. 10, §2. 54 Id. art. 10bis. 55 Id. art. Ubis. 56 See Gunlicks, supra note 39, at 10. 53. 15.

(23) copyright legislation never granted authors an absolute right to control their creative works and is in accordance to a Common law approach that is applied by the United States.57. Ruth Okediji claims that "at its genesis, the Berne Convention primarily served a coordinative function, which was to correlate existing national laws and practices into a core of international minimum standards for the protection of copyrighted works."58 The main objective has always been to reach a consensus among member states on practical norms that preserve the rights of authors and the interest of the public, appropriately. It is worth mentioning that the legitimacy of the Berne Convention of 1971 is based on the protection of author's rights through the principle of national treatment. The application of national treatment clearly permeates a minimum level of protection for authors that member states have to enforce, while the ability to identify limits and exceptions are left to the sovereign discretion of the signatory states. The lack of substance in the concept of limits and exceptions in the Berne Convention of 1971 has meant that arguments in favor of these rules remain a theoretical construct rather than a legitimate reflection of a balanced system.59. National treatment has the tendency to off balance the economic interest between developed and developing countries.. For example, the principle of providing equal treatment can be. cumbersome to a developing country. Increased protection can potentially stimulate innovation and produce higher economic growth, but, doing so can simultaneously debilitated the circulation of new goods and lead to higher prices and less innovation downstream.60 If the cost of providing national treatment outweighs the benefits, most developing countries will choose against adopting such policy.. Most developing countries lack the institutional infrastructure and resources to organize and administer a copyright protection regime. New copyright legislation has to focus on eliminating the gap that exists between the interests of developed and developing countries by strengthening. 57. See id. Okediji, supra note 6, at 5. 59 See id. at 8. 60 See Kenneth Shadlen et al., The Political Economy of Intellectual Property Protection: The Case of Software, 49 INTERNATIONAL STUDIES QUARTERLY 50 (2005). 58. 16.

(24) the capacity and knowledge of domestic institutions. In doing so, a new copyright regime has to answer the following questions: How can developing countries be motivated to increase copyright protection? Does increased copyright protection improve developing countries social welfare?. Is strengthening copyright protection a necessity to achieve economic growth and. sustainable development?. On the surface, the Berne Convention of 1971 recognizes the need to establish an appropriate balance between protection and access in order to encourage social and economic growth. However, the evolution of technology and the liberalization of international trade have introduced a new set of economic, political, and social problems (both national and international) that have complicated the consistency of the Berne Convention of 1971 and have shifted the balance of copyright protection towards the interest of the private sector. The end of the 20l century generated a new age of rapid technological advances, an emergence of international trade relations, and a paradigm shift in the global governance of copyright legislation. The emergence of free trade regimes and new interest groups imposed tremendous pressures on old copyright regimes to adopt new standards and principles of copyright legislation. This prompted the need to improve the scope and effectiveness of international copyright regulation and introduce new provisions suited to deal with the problems of technological developments.. III.. International Policy & Neighbouring Rights. In the pre-industrial period, the concept of copyright was simple to define. Basically, copyright applied to works that were fixed in some tangible form and its main purpose was to protect the rights of individual authors. In that period, identifying an author of a creative work was not difficult and usually meant dealing with a small number of people. However, economic and technological changes generated new complex problems that international copyright regimes were not ready to address. Copyright was not just about the interest of the individual authors anymore, producers and broadcasting organizations began to surface as legitimate copyright holders demanding equal protection for their rights to control the use of the original copyright work.. Technological developments introduced new recording techniques that made the 17.

(25) the capacity and knowledge of domestic institutions. In doing so, a new copyright regime has to answer the following questions: How can developing countries be motivated to increase copyright protection? Does increased copyright protection improve developing countries social welfare?. Is strengthening copyright protection a necessity to achieve economic growth and. sustainable development?. On the surface, the Berne Convention of 1971 recognizes the need to establish an appropriate balance between protection and access in order to encourage social and economic growth. However, the evolution of technology and the liberalization of international trade have introduced a new set of economic, political, and social problems (both national and international) that have complicated the consistency of the Berne Convention of 1971 and have shifted the balance of copyright protection towards the interest of the private sector. The end of the 20l century generated a new age of rapid technological advances, an emergence of international trade relations, and a paradigm shift in the global governance of copyright legislation. The emergence of free trade regimes and new interest groups imposed tremendous pressures on old copyright regimes to adopt new standards and principles of copyright legislation. This prompted the need to improve the scope and effectiveness of international copyright regulation and introduce new provisions suited to deal with the problems of technological developments.. III.. International Policy & Neighbouring Rights. In the pre-industrial period, the concept of copyright was simple to define. Basically, copyright applied to works that were fixed in some tangible form and its main purpose was to protect the rights of individual authors. In that period, identifying an author of a creative work was not difficult and usually meant dealing with a small number of people. However, economic and technological changes generated new complex problems that international copyright regimes were not ready to address. Copyright was not just about the interest of the individual authors anymore, producers and broadcasting organizations began to surface as legitimate copyright holders demanding equal protection for their rights to control the use of the original copyright work.. Technological developments introduced new recording techniques that made the 17.

(26) reproduction and exploitation of copyrighted works faster and easier to transfer around the world. Under these new circumstances, it became apparent that new international measures needed to be adopted.. The aftermath of World War II marked a period of opportunity for rich countries, mainly the United States and Russia, to prosper in the reconstruction of Europe. Following the war, the international community began negotiating and structuring new organizations and agreements to promote free trade and international economic cooperation. Influenced considerably by U.S. pressures to restructure international policy, post-War World II gave root to the creation of the United Nations, the World Bank, GATT, and the International Monetary Fund.61. A.. General Agreement on Tariffs and Trade (GATT). GATT was ratified on January 1, 1948 as a multilateral trade agreement designed to stimulate international trade by reducing tariff barriers to traded goods.62 It provided an international forum to deal with issues and disputes arising between member states. GATT's two fundamental principles are national treatment and most-favoured nation treatment. In accordance to these rules, member states had to treat each other equally, to the point that if one party offered some trade incentive to another party, it had to do the same to all. The purpose was to coordinate nondiscriminatory international trade arrangements between member countries in order to promote economic development and fair competition.. At the time, GATT served as a provisional. instrument with a limited field of action, but, nevertheless, was monumental in liberalizing international trade. Its main objective was to promote the trade of physical goods. The treaty did not extend to areas like services, non-tariff barriers, or intellectual property rights.63. The original purpose of GATT was to form part of the International Trade Organization (ITO). The ITO was designed to be a specialized agency of the United Nations. The overly ambitious 61. The United Nations was established in 1948 to replace the League of Nations with a new organization better equipped to resolve international disputes. The World Bank was established in 1945 following the ratification of the Bretton Woods Agreement. The General Agreement on Tariffs and Trade (GATT) was introduced in 1947 and ratified on January 1, 1948 by 23 countries as a substitution for the failed negotiations of the International Trade Organization (ITO). GATT was formed to regulate trade and lower tariff barriers. GATT led to the World Trade Organization (hereonafter WTO) in 1995. See RlKOWSKl, supra note 40, at 17-20. 62 See id. at 36. 63 See id. at 36-37.. 18.

(27) charter was intended to reach beyond trade principles and cover areas like employment, economic development, international investment, and services.64. However, the failure to ratify the ITO left GATT as the only multilateral instrument to regulate international trade.. GATT was primarily designed to promote free trade, and although it. functioned like a permanent agreement, it never established a permanent institutional framework, leaving the provisional GATT an ad hoc agreement.65 Apart from the fact that GATT was never formally institutionalized, the treaty was paramount in promoting and strengthening the liberalization of international trade. From 1948 to 1994, GATT orchestrated the rules for world trade and transformed into the catalyst of international commerce. GATT was later superseded by the World Trade Organization (WTO) in 1995. The WTO embraced a broader range of trade activities that included physical good, services, and intellectual property.66. The 1960s initiated a period of significant technological developments in the use of sound recording devices. The United State introduced a new wave of high quality components that improved the quality and sound of discs and cassettes.67. These new innovations made it. relatively easy to record and reproduce music and performances. Inventions like "Hi-fi" and "Dolby" dramatically improved the sounds of cassette tape recordings. The Japanese quickly adopted this new technology and, eventually, flooded the world market with inexpensive, high quality components. The ease with which copies were made with these modern electronic gadgets generated a new threat of piracy from the clandestine copying and sale of recordings that had been lawfully made.68 The extent of this piracy soon affected, both authors and performers, all around the world. A major concern was that performances could now be widely reproduced and distributed anywhere. This led performers to fear that with the spread of new recording techniques they would soon be made redundant and furthermore, 'secondary uses' of performances yielded profits in which the performer wished to share. Consequently, performers wishing to preserve. 64l 65. Seeid at 17.. See RICHARD RAYSMAN ET AL., INTELLECTUAL PROPERTY LICENSING: FORMS AND ANALYSIS 3-11 (1999). 66 See RlKOWSKI, supra note 4 0 , at 3 7 . 67 See RlCKETSON & GlNSBURG, supra note 3 4 , at 1224. 6 *See id.. 19.

(28) 'live' performances as a means of their employment began to seek protection to control the use of their performances.69 The potential economic losses reflected in this new age of record piracy prompted the sound recording and film industries to demand more protection. It was during this period that the basic economics of intellectual property evolved. The rise of large powerful trade groups, like the MPAA and the RIAA, expanded the nature and scope of intellectual property.70 Consequently, these changes had a correlating effect on the principles of copyright.. 1. Intellectual Property Rights How do changes in intellectual property affect social and economic development? What does intellectual property rights mean to social welfare? The answer to both of these questions lies in determining the objective of intellectual property rights and how rules to protect these rights impact the pursuit of sustainable development. In theory, the purpose of intellectual property rights is to promote innovation and economic growth. The idea is to create incentives that maximize the difference between the value of the intellectual property created against the cost of its creation.71 For example, ensuring intellectual property rights, like copyrights, encourages private producers and companies to continue to invest and develop new innovative products. If potential innovators are limited from maximizing the value of their work, then they become discouraged to continue exploring their ingenuity. Consequently, this will limit the creative activity in society and have a stifling impact on social and economic progress.. On the other hand, stringent intellectual property protection has the potential to cause more harm than good. Rigid protection rights facilitate greater control over access and distribution of information and knowledge. The concern is that strengthening copyrights grant right owners the opportunity to make unreasonable demands, thereby limiting public access to knowledgeable. 69. RlKOWSKI, supra note 4 0 , at 2 1 2 . Motion Picture Association of America (MPAA) was founded in 1922 as the trade association of the American film industry. It members consists of the big six major Hollywood Studios. The Record Industry Association of America (RIAA) was founded in 1952 as the trade group for the record industry in the United States. It members are composed of large private corporations such as record labels and distributors. These two organizations represent very powerful lobbying groups with tremendous influence on copyright regulation. See SlWEK, supra note 2, at 4. 71 See KEITH E. MASKUS, THE WTO, INTELLECTUAL PROPERTY RIGHTS AND THE KNOWLEDGE ECONOMY 125 (2004). 70. 20.

(29) goods.. As a consequence, from the time intellectual property was introduced onto the. international stage it manifested from a paradox between being an essential ingredient to a richly creative society but remained subservient to the value of creativity.72 The struggle to find a balance between private rights and fair use was further complicated with the progress of technology.. B.. Rome Convention of 1961. Neighbouring rights are a direct result of technological development. The first organization that demanded protection for related rights was the phonogram industry. Their main concern was to lobby for new protective rights against the unauthorized copying of phonograms. Copyright owners were protected against piracy by both national law and the Berne Convention of 1971 (hereinafter Berne Convention). Conversely, the Berne Convention failed to recognize neighbouring rights which left phonogram producers in a vulnerable state. Proposals to address neighbouring rights at the 1928 revision of the Berne Convention in Rome were dissolved by France, who did not want to recognize performers as authors, and felt that performances were not "works" as defined by the Berne Convention.73 Another attempt to incorporate neighbouring rights took place after WWII at the Brussels Conference in 1948. Although the conference acceded to the protection of droit de suite, it failed to include neighbouring rights.74. It became apparent at the Brussels Revision that there was strong opposition against incorporating protective rights for performers and producers of phonograms and broadcasting organizations into copyright legislation.. Finally, in 1960, three international organizations. composed of BIRPI (United International Bureaux for the Protection of Intellectual Property, the predecessor organization to WIPO), UNESCO (United Nations Educational, Scientific and Cultural Organization), and ILO (International Labor Organization) met at the Hague to deliberate over different draft proposals, which served as the basis for the final resolution ratified on October 26, 1961.75. 72. See LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROOL CREATIVITY 19 (2004). 73 See RlKOWSKI, supra note 4 0 , at 2 1 2 . 74 See RlCKETSON & GlNSBURG, supra note 34, at 1210. 15 See id. at 1211.. 21.

(30) In essence, this agreement protects three distinct areas: performers, producers of phonograms, and broadcasting organizations. ".. .each is closely connected to the creation and exploitation of literary and artistic works, as well as being concerned with the prevention of particular kinds of unfair appropriation of the efforts of others."76 The Rome Convention is described as being a pioneer convention. While old copyright conventions were regulated by national laws, the Rome Convention ventured into new fields of intellectual property and defined new standards of copyright protection.. 1. Relationship between Rome & Copyright Provisions During the preliminary deliberations in Rome, authors' groups strongly objected the agreement on fear that recognition of neighbouring rights would discriminate against already existing rights protected by national laws or by the Berne Convention.77 The Rome Act addressed this issue in Article 1 of the Convention with its own version of a "safeguard clause". Article 1 provides: Protection granted under this Convention shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Convention may be interpreted as prejudicing such protection.7 This means that in the case where both treaties are in disagreement, the principles of the original treaty will prevail. The rights of authors are respected in accordance to the copyright regulations of the country of origin. This prevents any dissonance between this Convention and previous ones, mainly the Berne Convention.. The Rome Convention's main objective is to ensure national treatment to foreign works equal to what member states grant under their domestic law to performers, producers of phonograms, and broadcasting organizations.79 National treatment is subject to the limited levels of protection specifically guaranteed by the Convention, but also to the limitations specifically provided for in the Convention.80. In other words, it means that not only do performer, producers of. phonograms, and broadcasting organizations receive a guaranteed minimum level of protection 76. Watl212. See id. at 1220. 78 International Convention for the Protection of Performers, Producer of Phonograms and Broadcasting Organizations, art.l, Oct. 26, 1961,496 U.N.T.S 43 [hereinafter Rome Convention]. 19 Id. at art. 2, § 1. 80 W. at art. 2, §2. 77. 22.

(31) from the Convention, but they also enjoy the same rights that member countries provide for nationals. The minimum protection guarantee clause is designed to improve the consistency of copyright regulation by providing an equal level of protection to foreign works and domestic works, alike.. 2. National Treatment Provisions Article 4 grants a performer national treatment: i) if the performance takes place in another contracting state, regardless of what country the performer is from; ii) if it is incorporated in a phonogram, or; iii) if it is transmitted live by broadcast.81 Article 7 establishes minimum rights for performers centered on preventing the broadcasting of a performance, the recording of an unfixed performance, and the reproduction of a fixed performance without the consent of the performer.. Prior to this right, performers were in a vulnerable position against defending their. rights from unscrupulous acts of piracy. This rule improved copyright protection for performers against the unauthorized use of their works.. Article 5 grants phonograms national treatment: i) if they are nationals of another contracting state (criteria of nationality); ii) if the first fixation of the sound was made in another contracting state (criteria of fixation), or; iii) if the phonogram was first published or simultaneously published in another contracting state (criterion of publication).83 Article 10 protects the right of phonogram producers to authorize or prohibit the direct or indirect reproduction of their phonograms.84. Article 6 provides broadcasting organizations national treatment if their headquarters is situated in another contracting state or if the broadcast was transmitted from a transmitter situated in another contracting state, regardless of whether the initiating broadcasting organization was situated in a contracting state. Broadcasting organizations have the right to authorize or prohibit: i) the rebroadcasting of their broadcast; ii) the fixation of their broadcast; iii) the reproduction of unauthorized fixations of their broadcast or authorized reproduction of fixations intended for 81. Id. at art. 4. Id at art. 7. 83 Id. at art. 5. 84 Wat art. 10. 82. 23.

(32) illegal use; iv) the communication to the public of their television broadcasts by communication made from places accessible to the public for free.85 It is worth mentioning that states are empowered to determine when this right may be employed.. Like the Berne Convention, the Rome Convention supports the enforcement of limitations on rights. Under Article 15(1), states are entitled to make exceptions to access copyright works for: i) private use; ii) use of short excerpts in connection with reporting current events; iii) ephemeral fixation by a broadcasting organizations by means of its own facilities and for its own broadcasts; iv) use solely for the purpose of teaching or scientific research.86 In addition to these exceptions, states are allowed to apply the same rules to performers, producers of phonograms and broadcasting organizations in accordance to copyright regulation.87. 3. Duration & Deficiencies of the Rome Convention Article 14 of the Rome Convention established the minimum term of protection as twenty years from the end of the year in which: "i) fixation was made-for phonograms and for performances incorporated therein; ii) the performance took place-for performances not incorporated in phonograms, or; iii) the broadcast took place-for broadcasts."88. Perhaps the most controversial provision of the Rome Convention is reflected in Article 12, which provides that an equitable remuneration be paid to the performer, or to the producer of phonograms, or to both. This compensation is paid, "if a phonogram published for commercial purposes,..., is used directly for broadcasting or any communication to the public.". In the. absence of an agreement between the acting parties, national law will determine the conditions of remuneration. This rule is recognized as the right for remuneration for 'secondary uses' of phonograms.90 The degree of discretion in the application of this rule is rather ambiguous. By providing a single remuneration, the provision fails to establish an exclusive right either to the performers or the producers of phonograms. In fact, states are granted the liberty to determine 85. Mat art. 13. Id. at art. 15 § 1. 87 Id. at art. 15 §2. 88 Id. at art. 14. 89 Mat art. 12. 90 See R]CKETSON & GlNSBURG, supra n o t e 3 4 , at 1219. 86. 24.

(33) whether remuneration is mandatory and who qualifies as the main performer.. The most. controversial point is that a state may exercise Article 16 to alleviate itself from having to apply any of the provisions of Article 12. The ambiguity of this rule generated significant criticism from the broadcasting organizations.. The Rome Convention failed to address the rights of distribution. Mihaly Ficsor believed the Convention was created in such an early stage of the evolution of related rights that dealing with the issue of distribution rights was complex and inappropriate.91 However, with the advent of high quality recorders and reproduction devices, broadcasting organizations and phonogram producers became concern over the unauthorized distribution of their broadcasts and fixations.. The Rome Convention required that in order to become a member, a State had to be part of either the Berne Convention or the UCC.92. This criticized the Convention as being a "closed. convention" with excessive barriers to membership.. One main critic was the phonogram. industry who by the 1960s was in a fierce battle against the illegal copying and sale of recordings. Their biggest concern was that the market for piracy had become a worldwide issue that extended beyond the realm of these member countries. Many developing countries had become intermediaries for "black markets", which were markets where the illicit trading of copyright works was the basis for operations. This prompted the phonographic industry and the broadcasting organizations to take adequate measures to demand new reform against piracy.. This eventually led to the cultivation of the Geneva Phonogram Convention of 1971 and the Brussels Satellite Convention of 1974. The Phonogram Convention was designed strictly to protect the rights of producers of phonograms against the unauthorized distribution and importation of phonograms. The Satellite Convention prevented distributors from circulating any programme-carrying signal transmitted by satellite without the consent of the copyright owner.93 91. See MIHALY FICSOR, THE LAW OF COPYRIGHT AND THE INTERNET: THE 1996 WTPO TREATIES, THEIR INTERPRETATION AND IMPLEMENTATION 152 (2002). 92 Rome Convention, supra note 78, at art. 24, § 2. 93 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, Oct. 29, 1971,25 U.S.T. 309, 866 U.N.T.S 67; and Convention Relating to the Distribution of Programme-Carrying Signals by Satellite, May 21, 1974, T.I.A.S. No. 11,078, 1144 U.N.T.S. 3.. 25.

(34) The Rome Convention formed a cooperative agreement by establishing a connection between copyright protection and neighbouring rights. The first article of the Convention clearly states that that the protection granted under this agreement in no way damages the protection of literary and artistic works. The Rome Convention intended to eliminate the reservations system reflected in the Berlin Act, but was only partially successful in achieving this goal through the implementation of certain limitations.94. The Rome Convention played a prominent role in. defining standards for the protection of neighbouring rights at a time when the rights of performers, producers of phonograms, and broadcasting organizations were only gradually recognized under national legislation. However, the Rome Convention never experienced the level of acceptance as did the Berne Convention. The United States did not adhere to the Rome Convention of 1961 because the U.S. copyright system was devoted to rewarding the production of original works, and not the reproduction of creative works.. IV.. Technological Evolution & Impact on International Copyright. The technological revolution of the 21 st century generates skepticism over the efficacy and integrity of international copyright regimes.. Today, digital technology and commercial. developments overwhelmingly transform the manner in which works are created and transferred. The speed and ease with which protected works are copied and pirated around the world raise arguments for new reform to strengthen copyright legislation. It is not just about the interest of individual authors anymore, large multinational conglomerates and governments, alike, share a similar interest in enforcing copyright protection. The emergence of the global economy creates an urgent need for governments to address the need for reinforcement measures in copyright regulation in order to promote free trade. Multinational corporations invest incredible amounts of resources in research and development in order to produce new innovations and, therefore, are subject to incredible economic losses due to piracy. The digital environment engineers a global information infrastructure that integrates national markets into one dynamic universal market. The concern with the harmonization of national markets is whether the interest of all nations is weighed equally when articulating new international copyright policy.. 94. See RlCKETSON & GlNSBURG, supra note 34, at 1084.. 26.

(35) The Rome Convention formed a cooperative agreement by establishing a connection between copyright protection and neighbouring rights. The first article of the Convention clearly states that that the protection granted under this agreement in no way damages the protection of literary and artistic works. The Rome Convention intended to eliminate the reservations system reflected in the Berlin Act, but was only partially successful in achieving this goal through the implementation of certain limitations.94. The Rome Convention played a prominent role in. defining standards for the protection of neighbouring rights at a time when the rights of performers, producers of phonograms, and broadcasting organizations were only gradually recognized under national legislation. However, the Rome Convention never experienced the level of acceptance as did the Berne Convention. The United States did not adhere to the Rome Convention of 1961 because the U.S. copyright system was devoted to rewarding the production of original works, and not the reproduction of creative works.. IV.. Technological Evolution & Impact on International Copyright. The technological revolution of the 21 st century generates skepticism over the efficacy and integrity of international copyright regimes.. Today, digital technology and commercial. developments overwhelmingly transform the manner in which works are created and transferred. The speed and ease with which protected works are copied and pirated around the world raise arguments for new reform to strengthen copyright legislation. It is not just about the interest of individual authors anymore, large multinational conglomerates and governments, alike, share a similar interest in enforcing copyright protection. The emergence of the global economy creates an urgent need for governments to address the need for reinforcement measures in copyright regulation in order to promote free trade. Multinational corporations invest incredible amounts of resources in research and development in order to produce new innovations and, therefore, are subject to incredible economic losses due to piracy. The digital environment engineers a global information infrastructure that integrates national markets into one dynamic universal market. The concern with the harmonization of national markets is whether the interest of all nations is weighed equally when articulating new international copyright policy.. 94. See RlCKETSON & GlNSBURG, supra note 34, at 1084.. 26.