Gartner G2 Copyright and Digital Media in a post Napster World: International Supplement By The Berkman Center for Internet Society and GartnerG2 January 2005
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Table of contents 0. Introduction 1. Basic Frameworks Berne convention TRIPS WIPO treaties 2. EU Legislative and Regulatory Developments 9 European copyright framework EU legislative developments EU regulatory developments 3. Asia/Pacific Legislative and Regulatory Developments Copyright ecosystems in Asia/Pacific region Asia/Pacific legislative and regulatory developments Selected Asia/Pacific cases 9035990599 4. Legal Campaign Against Online Piracy. Context and background Actions against individual file-sharers 5. Conclusions 31 Evolution of national copyright regimes Driving forces of international harmonization Differences remain Effects on stakeholders 6. Contributors For The berkman Center For GartnerG2 wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 1 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 1 of 35 ' 0. Introduction.........................................................................................2 1. Basic Frameworks ..............................................................................4 Berne Convention ..................................................................................................4 TRIPS ....................................................................................................................6 WIPO treaties.........................................................................................................7 2. EU Legislative and Regulatory Developments...................................9 European copyright framework ..............................................................................9 EU legislative developments ................................................................................10 EU regulatory developments................................................................................13 Selected European cases ....................................................................................15 3. Asia/Pacific Legislative and Regulatory Developments ...................19 Copyright ecosystems in Asia/Pacific region........................................................19 Asia/Pacific legislative and regulatory developments ...........................................20 Selected Asia/Pacific cases .................................................................................25 4. Legal Campaign Against Online Piracy............................................29 Context and background ......................................................................................29 Actions against individual file-sharers ..................................................................29 5. Conclusions ......................................................................................31 Evolution of national copyright regimes................................................................31 Driving forces of international harmonization .......................................................31 Differences remain...............................................................................................32 Effects on stakeholders........................................................................................33 Steps ahead.........................................................................................................34 6. Contributors ......................................................................................35 For The Berkman Center .....................................................................................35 For GartnerG2......................................................................................................35
0 Introduction The foundational White Paper"Copyright and Digital Media in a Post-Napster World, by the Berkman Center for Internet Society and GartnerG2, explores a variety of issues surrounding the current digital media ecosystem. The White Paper examines gal and regulatory developments regarding copyright and related intellectual property(IP)issues, discusses existing business models upset by digital media distribution and emerging models newly possible, and analyzes shifts in consumer attitudes and behavior. However, the emphasis of the foundational White Paper is on the u.s. law and market This Supplement to the White Paper focuses on international legal issues. It considers developments regarding copyright and related rights in jurisdictions outside the United states against the backdrop of earlier Digital Media Project works that reviewed the interplay among law, technology and the busin ecosystem. In the se of this su threefole st, it offers a broad knowledge base about international gal issues and the emerging legal framework relating to nalog/offline to digitalonlin Second, it aims to provide a rough overview of the different paths and stages of evolution of the copyright ecosystems across three continents: Europe and the Asia/Pacific region including Australia Third, it seeks to inform stakeholders--users, rightholders, business executives, intermediaries, policymakers, etc about basic similarities as well as conceptual differences in global and U.S. digital media laws at a time when U.s based services are expanding to international markets. In Part 1, we start with a brief discussion of the basic international copyright framework and provide an overview of three sets of important copyright agreements: The Berne Convention, Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS)and the World Intellectual Property Organization ( WiPo) treaties 3Seehttp://cyber.law.harvard.edu/mediaforfurtherinformationabouttheDigitalmEdiaProject 4 The Berkman Center's ITunes Case Study explores the interactions between legal regimes and business models in greater detail See iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media, available a cyber law. harvard. edu/ media/tunes. a detailed study on online business models will soon be released by the Berkman r'sDigitalMediaProject(thestudywillbepostedathttpcyberlawharvardedu/media/publications, e.g.,itunesEurope:ApReliminaryAnalysisathttp://cyber.lawharvardedu/media/itunes_europe wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 2 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 2 of 35 %( ! The foundational White Paper “Copyright and Digital Media in a Post-Napster World,” 1 by the Berkman Center for Internet & Society and GartnerG2, explores a variety of issues surrounding the current digital media ecosystem. The White Paper examines legal and regulatory developments regarding copyright and related intellectual property (IP) issues, discusses existing business models upset by digital media distribution and emerging models newly possible, and analyzes shifts in consumer attitudes and behavior. However, the emphasis of the foundational White Paper is on the U.S. law and market. This Supplement to the White Paper focuses on international legal issues. 2 It considers developments regarding copyright and related rights in jurisdictions outside the United States against the backdrop of earlier Digital Media Project 3 works that reviewed the interplay among law, technology and the business ecosystem. 4 In essence, the purpose of this Supplement is threefold: • First, it offers a broad knowledge base about international legal issues and the emerging legal framework relating to the shift from analog/offline to digital/online media. • Second, it aims to provide a rough overview of the different paths and stages of evolution of the copyright ecosystems across three continents: Europe and the Asia/Pacific region, including Australia. • Third, it seeks to inform stakeholders—users, rightholders, business executives, intermediaries, policymakers, etc.— about basic similarities as well as conceptual differences in global and U.S. digital media laws at a time when U.S.- based services are expanding to international markets. 5 In Part 1, we start with a brief discussion of the basic international copyright framework and provide an overview of three sets of important copyright agreements: The Berne Convention, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the World Intellectual Property Organization (WIPO) treaties. 1 See http://cyber.law.harvard.edu/home/uploads/254/2003-05.pdf. 2 Last update: 30 December 2004. 3 See http://cyber.law.harvard.edu/media for further information about the Digital Media Project. 4 The Berkman Center’s iTunes Case Study explores the interactions between legal regimes and business models in greater detail. See “iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media,” available at http://cyber.law.harvard.edu/media/itunes. A detailed study on online business models will soon be released by the Berkman Center’s Digital Media Project (the study will be posted at http://cyber.law.harvard.edu/media/publications). 5 See, e.g., iTunes Europe: A Preliminary Analysis, at http://cyber.law.harvard.edu/media/itunes_europe.
Part 2 discusses the copyright framework in Europe as established by ht Directive and othe European Union(EU) legislation. In this context, we explore gislative and regulatory developments both at the EU and the EU member states level. A selection of cases from European countries illustrates the current state of "digital media law in action Part 3 reviews legislative and regulatory developments in the Asia/Pacific region and provides brief descriptions of the copyright laws in Australia, Singapore, Malaysia, China, Japan nd South Korea. In this context, we examine the impact of the international copyright treaties discussed in Part I. This section also provides an overview of actions taken against file-sharing Web sites and peer-to-peer(P2P) services in selected countries in the Asia/Pacific region Part 4 summarizes the legal campaign against online piracy, provides information about legal actions taken against individual file-sharers and briefly outlines current attempts to fight online piracy in coordinated operations across the world And finally, Part 5 offers some conclusions about how the legal landscape is evolving in response to the challenges and opportunities posed by digital media wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 3 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 3 of 35 Part 2 discusses the copyright framework in Europe as established by the European Copyright Directive and other European Union (EU) legislation. In this context, we explore legislative and regulatory developments both at the EU and the EU member states level. A selection of cases from European countries illustrates the current state of “digital media law in action.” Part 3 reviews legislative and regulatory developments in the Asia/Pacific region and provides brief descriptions of the copyright laws in Australia, Singapore, Malaysia, China, Japan and South Korea. In this context, we examine the impact of the international copyright treaties discussed in Part I. This section also provides an overview of actions taken against file-sharing Web sites and peer-to-peer (P2P) services in selected countries in the Asia/Pacific region. Part 4 summarizes the legal campaign against online piracy, provides information about legal actions taken against individual file-sharers and briefly outlines current attempts to fight online piracy in coordinated operations across the world. And finally, Part 5 offers some conclusions about how the legal landscape is evolving in response to the challenges and opportunities posed by digital media
1。 Basic Frameworks This section provides a rough overview of international agreements of particular importance to the still-evolving international copyright framework. Because they establish rights and responsibilities regarding intellectual property(IP)that signatory countries have agreed to implement internally, later sections will refer back to them A set of international treaties establish standards for copyright protection, such as the Berne Convention for the Protection of Literary and Artistic Rights; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the Universal Copyright Convention UCC): and-of increasing relevance--the Agreement on Trade- Related Aspects of Intellectual Property Rights(TRIPS).6 Recently, two other important international treaties entered into force: the World Intellectual Property Organization(WIPO) Copyright Treaty of 1996 and the WIPO Performances and Phonograms treaty of 1996. These treaties essentially reiterate the principles of the Berne Convention and the TRIPS Agreement, while adding provisions that address digital transmissions and technological protection measures To present some milestones in the evolution of the international legal framework, we begin our discussion with the Berne Convention, then present an overview of TRIPS, and finally conclude with the WiPo Treaties of 1996 Berne Convention The Berne Convention for the Protection of Literary and Artistic Works is an international copyright agreement that was adopted by an international conference in Berne, Switzerland, in 1886 The signatories of the berne Convention constitute a union for he protection of the rights of authors in their literary and artistic works, known as the"Berne Union The Berne Convention protects "literary and artistic works This expression includes a broad range of products. It covers, in essence, every production in the literary, scientific and artistic domain such as books, pamphlets and other writings; lectures, addresses. sermons and other works of the same nature: dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works and those created by analogous processes; works of drawing, painting, architecture, sculpture, engraving and lithography, photographic works and The interactions among these Treaties are complex. The baseline is that each Treaty creates a separate set of obligations, often between different parties. The provisions set forth in the Treaties are sometimes complementary, and sometimes similar(the thre step-test"for exceptions, for instance, can be found in several Treaties. However, important conceptual differences(e.g, with regard to enforcement of Treaty obligations) as well as differences in the substance of law (e.g, term of protection) remain. Seehttp://www.wipoint/clea/docs/en/wo/wo001en.ht Dumb shows are performances using gestures and body movements without words. wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 4 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 4 of 35 )( !* + This section provides a rough overview of international agreements of particular importance to the still-evolving international copyright framework. Because they establish rights and responsibilities regarding intellectual property (IP) that signatory countries have agreed to implement internally, later sections will refer back to them. A set of international treaties establish standards for copyright protection, such as the Berne Convention for the Protection of Literary and Artistic Rights; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the Universal Copyright Convention (UCC); and—of increasing relevance—the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS). 6 Recently, two other important international treaties entered into force: the World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 and the WIPO Performances and Phonograms Treaty of 1996. These treaties essentially reiterate the principles of the Berne Convention and the TRIPS Agreement, while adding provisions that address digital transmissions and technological protection measures. To present some milestones in the evolution of the international legal framework, we begin our discussion with the Berne Convention, then present an overview of TRIPS, and finally conclude with the WIPO Treaties of 1996. , The Berne Convention 7 for the Protection of Literary and Artistic Works is an international copyright agreement that was adopted by an international conference in Berne, Switzerland, in 1886. The signatories of the Berne Convention constitute a union for the protection of the rights of authors in their literary and artistic works, known as the “Berne Union.” The Berne Convention protects “literary and artistic works.” This expression includes a broad range of products. It covers, in essence, every production in the literary, scientific and artistic domain such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show 8 ; musical compositions with or without words; cinematographic works and those created by analogous processes; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works and 6 The interactions among these Treaties are complex. The baseline is that each Treaty creates a separate set of obligations, often between different parties. The provisions set forth in the Treaties are sometimes complementary, and sometimes similar (the “threestep-test” for exceptions, for instance, can be found in several Treaties.) However, important conceptual differences (e.g., with regard to enforcement of Treaty obligations) as well as differences in the substance of law (e.g., term of protection) remain. 7 See http://www.wipo.int/clea/docs/en/wo/wo001en.htm. 8 Dumb shows are performances using gestures and body movements without words.
those created by analogous processes; works of applied art; and illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. It also protects, among other things, translations, adaptations, and arrangements of music and other alterations of literary and artistic works, including cinematographic and photographic ones What are the main features of the berne convention? The term of copyright for most types of works is the life of the author plus 50 years, but some countries might have a longer term, Most importantly, the Convention sets forth the principle dard because the Convention only establishes a minimum stan own nationals to the nationals of every Berne Union coun isto national treatment, "which requires a Berne Union signator provide the same rights established by its domestic laws fo Automatic protection is required for works published in any Berne Union country and for unpublished works authored by a citizen or resident of any Berne country (Special provisions apply where the work has been first published in a Berne country but the author is a national of a non-Berne country. The Convention has been modified several times to expand the works and rights that it covers in response to changes in markets and technologies. The latest significant revision occurred in 1971. Since then, the WIPo, charged with the administration of the Convention, has pursued a"guided development approach aimed at fostering the information exchange among member states, and offering recommendations and model laws rather than at making further substantive revisions of the Convention itself One consequence of this less-centralized approach has been the differing development of copyright regimes in different nations, despite the simultaneous emergence of global markets for information goods. The tension between global markets and idiosyncratic local copyright laws on the one hand and the lack of an enforcement mechanism under the WiPo regime on the other hand led to calls for a new set of rules at the level of public international law. The starting point for the next phase of international copyright treaties was not, however, triggered by WIPO, but the General Agreement on Tariffs and Trade(GATT) Uruguay Round, which led to the Uruguay Round Protocol that ncludes the TRIPS Agreement. gical changes have necessitated that the Berne Supplementary agreements extending the initial Berne Convention include the 1928 Rome Convention for th tion of Performers, Producers of Phonograms Broadcasting Organizations: the 1971 Geneva Convention for the on of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms: and the 1974 Brussels Convention Distribution of Programme-Carrying Signals Transmitted by Satellite wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 5 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 5 of 35 those created by analogous processes; works of applied art; and illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. It also protects, among other things, translations, adaptations, and arrangements of music and other alterations of literary and artistic works, including cinematographic and photographic ones. What are the main features of the Berne Convention? The term of copyright for most types of works is the life of the author plus 50 years, but some countries might have a longer term, because the Convention only establishes a minimum standard. Most importantly, the Convention sets forth the principle of “national treatment,” which requires a Berne Union signatory to provide the same rights established by its domestic laws for its own nationals to the nationals of every Berne Union country. Automatic protection is required for works published in any Berne Union country and for unpublished works authored by a citizen or resident of any Berne country. (Special provisions apply where the work has been first published in a Berne country but the author is a national of a non-Berne country.) The Convention has been modified several times to expand the works and rights that it covers in response to changes in markets and technologies. 9 The latest significant revision occurred in 1971. Since then, the WIPO, charged with the administration of the Convention, has pursued a “guided development” approach aimed at fostering the information exchange among member states, and offering recommendations and model laws rather than at making further substantive revisions of the Convention itself. One consequence of this less-centralized approach has been the differing development of copyright regimes in different nations, despite the simultaneous emergence of global markets for information goods. The tension between global markets and idiosyncratic local copyright laws on the one hand and the lack of an enforcement mechanism under the WIPO regime on the other hand led to calls for a new set of rules at the level of public international law. The starting point for the next phase of international copyright treaties was not, however, triggered by WIPO, but the General Agreement on Tariffs and Trade (GATT) Uruguay Round, which led to the Uruguay Round Protocol that includes the TRIPS Agreement. 9 Technological changes have necessitated that the Berne Convention be revisited approximately every two decades. Supplementary agreements extending the initial Berne Convention include the 1928 Rome Convention for the Protection of Performers, Producers of Phonograms & Broadcasting Organizations; the 1971 Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms; and the 1974 Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite
TRIPS in the protection and enforcement of IP rights around hoces In order to catch up with globalization and to reduce differend world, new internationally adopted trade rules for those rights were introduced by the 1994 TRIPS Agreement. TRIPS covers areas such as copyright and related rights trademarks, geographical indications, industrial design patents, layout designs and trade secrets. It addresses five broad issues Application of basic principles of the trading system and other international IP agreements(such as national treatment and most-favorable-nation treatment) Obligations of member governments to provide for adequate protection of IP rights Responsibilities of member governments for effective enforcement within their boundaries Adoption of the World Trade Orga n(wTO) dispute settlement mechanism to disputes under TRIPS Special transitional arrangements, including arrangements for developing and least-developed countries As to copyright specifically, TRIPS requires that its signatories comply with the substantive provisions of the Berne Convention The Agreement also ensures that computer programs will be protected as literary works under the Berne Convention, and lays down basic principles with regard to the copyright protection of databases. Furthermore, the Agreement adds important provisions on rental rights to the international copyright framework. The term of protection must extend to at least 50 years after the year of authorized publication; special requirements apply to phonographic works and other categories of works. TRIPS also incorporates the"three-step-test, which requires that national exceptions to copyright must be limited to certain special cases, (i)which do not conflict with a normal exploitation of the work and(ti) do not unreasonably prejudice the legitimate interests of the rightholder The TRIPS Agreement provides evidence for the increased importance of trade rules in the realm of international IP law However, TRIPS was not a comprehensive response to the new challenges and changes in the information environment. Rather, the Agreement can be seen as a mere expansion in depth and geographical coverage of IP protection along the lines of the ing regimes of the industrialized world Seehttp://www.wto.orge e/t agm_e. htm sed on goods that have a specific geographical origin and possess qualities (or a reputation) that are due to that place of g.,"roquefOrt"forcheeseproducedinFranceseehttp://www.wipo.int/ab wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 6 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 6 of 35 - In order to catch up with globalization and to reduce differences in the protection and enforcement of IP rights around the world, new internationally adopted trade rules for those rights were introduced by the 1994 TRIPS Agreement. 10 TRIPS covers areas such as copyright and related rights, trademarks, geographical indications, 11 industrial design, patents, layout designs and trade secrets. It addresses five broad issues: 12 • Application of basic principles of the trading system and other international IP agreements (such as national treatment and most-favorable-nation treatment). • Obligations of member governments to provide for adequate protection of IP rights. • Responsibilities of member governments for effective enforcement within their boundaries. • Adoption of the World Trade Organization (WTO) dispute settlement mechanism to disputes under TRIPS. • Special transitional arrangements, including arrangements for developing and least-developed countries. As to copyright specifically, TRIPS requires that its signatories comply with the substantive provisions of the Berne Convention. The Agreement also ensures that computer programs will be protected as literary works under the Berne Convention, and lays down basic principles with regard to the copyright protection of databases. Furthermore, the Agreement adds important provisions on rental rights to the international copyright framework. The term of protection must extend to at least 50 years after the year of authorized publication; special requirements apply to phonographic works and other categories of works. TRIPS also incorporates the “three-step-test,” which requires that national exceptions to copyright must be limited to: (i) certain special cases, (ii) which do not conflict with a normal exploitation of the work and (iii) do not unreasonably prejudice the legitimate interests of the rightholder. 13 The TRIPS Agreement provides evidence for the increased importance of trade rules in the realm of international IP law. However, TRIPS was not a comprehensive response to the new challenges and changes in the information environment. Rather, the Agreement can be seen as a mere expansion in depth and geographical coverage of IP protection along the lines of the existing regimes of the industrialized world. 10 See http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm. 11 Roughly, geographical indications are signs used on goods that have a specific geographical origin and possess qualities (or a reputation) that are due to that place of origin (e.g., “Roquefort” for cheese produced in France; see http://www.wipo.int/aboutip/en/geographical_ind.html). 12 See http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm. 13 See Art. 13 TRIPS
WIPO treaties During the TRIPS negotiations, it became clear that the Agreement would not catch up with recent developments in digital communication and information technologies. Against this backdrop and facing the threat of losing relevance, WIPO suggested a new treaty for the online environment and a update of the protections for performers, producers of phonograms and broadcasting organizations. Since a revision of the Berne Convention--requiring all signatory nations to vote unanimously for the amendments--was not a feasible option WIPO appointed a committee of experts to draft a Special Agreement. At a diplomatic conference in December 1996, finally, the WIPO Copyright Treaty(WcT)and the WIPO Performances and Phonograms Treaty were They became law in May 2002. The United States signed both, and the European Union(EU)implemented the treaties through the European Copyright Directive. The EU member states are following suit in the course of transposing EU copyright law into national law In this section, we focus on the WCT of 1996. This Treaty governs the protection of literary and artistic works and is in its scope identical to the Berne Convention. It explicitly confirms that copyright protection extends to computer programs and databases. The Treaty clarifies three specific rights and addresses three important issues Right of distribution. The Treaty provides an exclusive right of distribution to authors Under the berne convention this right had only been granted with respect to cinematograph works. The Treaty leaves it to its signatories to determine if and under what conditions the exclusive distribution right will apply beyond the first authorized transfer of ownership. In the United States, for instance, the distribution right exhausts after the first sale( the "first sale doctrine) Right of rental. In addition, the Treaty grants a right of rental to authors of certain kinds of works such as computer programs, cinematographic works and works embodied in phonograms. Accordingly, authors have the exclusive right to authorize the commercial rental to the public of the originals or copies of their works. The Treaty also sets forth important exceptions to these rights. Right of communication to the public. Further, the Treaty grants authors of literary and artistic works the exclusive right to authorize any communication to the public of their works, by wire or wireless means, including by making ther available via interactive on-demand services or the like Under the Berne Convention this right had been limited This lengthy process started in 1991 and involved many studies and reports submitted by national governments and other wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 7 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 7 of 35 . During the TRIPS negotiations, it became clear that the Agreement would not catch up with recent developments in digital communication and information technologies. Against this backdrop and facing the threat of losing relevance, WIPO suggested a new treaty for the online environment and an update of the protections for performers, producers of phonograms and broadcasting organizations. Since a revision of the Berne Convention—requiring all signatory nations to vote unanimously for the amendments—was not a feasible option, WIPO appointed a committee of experts to draft a Special Agreement. 14 At a diplomatic conference in December 1996, finally, the WIPO Copyright Treaty (WCT) 15 and the WIPO Performances and Phonograms Treaty (WPPT) 16 were adopted. They became law in May 2002. The United States signed both, and the European Union (EU) implemented the treaties through the European Copyright Directive. The EU member states are following suit in the course of transposing EU copyright law into national law. In this section, we focus on the WCT of 1996. This Treaty governs the protection of literary and artistic works and is in its scope identical to the Berne Convention. It explicitly confirms that copyright protection extends to computer programs and databases. The Treaty clarifies three specific rights and addresses three important issues. • Right of distribution. The Treaty provides an exclusive right of distribution to authors. Under the Berne Convention, this right had only been granted with respect to cinematographic works. The Treaty leaves it to its signatories to determine if and under what conditions the exclusive distribution right will apply beyond the first authorized transfer of ownership. In the United States, for instance, the distribution right exhausts after the first sale (the “first sale doctrine”). • Right of rental. In addition, the Treaty grants a right of rental to authors of certain kinds of works such as computer programs, cinematographic works and works embodied in phonograms. Accordingly, authors have the exclusive right to authorize the commercial rental to the public of the originals or copies of their works. The Treaty also sets forth important exceptions to these rights. • Right of communication to the public. Further, the Treaty grants authors of literary and artistic works the exclusive right to authorize any communication to the public of their works, by wire or wireless means, including by making them available via interactive on-demand services or the like. Under the Berne Convention, this right had been limited 14 This lengthy process started in 1991 and involved many studies and reports submitted by national governments and other players. 15 http://www.wipo.int/documents/en/diplconf/distrib/94dc.htm. 16 http://www.wipo.int/documents/en/diplconf/distrib/95dc.htm
both to certain categories of works and with regard to the means of communication The wcT deals with three particularly important issues among others. First, the minimum duration of the protection of photographic works is raised from 25 years after the author death to 50 years to match all other works under the Berne Convention. Second, the treaty establishes the framework for limitations of and exceptions to copyrights: Signatory nations may provide for limitations of or exceptions to the rights granted under the WCT regime(for instance, "private copying exceptions")under the condition that they may apply only to certain special cases, that the limitations or exceptions do not conflict with the normal exploitation of the work, and that the legitimate interests of the author are not unreasonably prejudiced(the three-step-test). Third, and this aspect is particularly important for online media, the Treaty obliges ratifying member states to provide for adequate legal protection and effective legal remedies against the circumvention of effective technological measures--such as access and copy control technology-that are used by authors in connection with the exercise of their rights under the WcT or the Berne Convention, and that restricts acts that are not authorized by the authors concerned or permitted by law Thus, the wct has introduced new international rules-such as a comprehensive right of communication to the public and the protection of technological protection measures, among others- hat benefit rightholders and the copyright industry at large Because the WcT is perceived to favor IP owners interests over others, WiPo has recently been called upon to take a more balanced view of the social benefits and costs of IP rights as a ool for supporting creative activities. In the aftermath of the "Geneva Declaration, WIPO's General Assembly decided to advance a"development agenda" that acknowledges the need for balance in worldwide policy on IP rights In sum, the WCT introduced new international rules regarding copyright, and also clarified how certain existing rules should be interpreted given new technological developments. In doing so the WcT has helped level the playing field among national copyright regimes. However, the WCT still leaves significant leeway to the contracting states. As a consequence, significant differences among national copyright regimes remain, as this Seehttp://www.cptech.org/ip/wipo/wipo10042004.htm/. wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 8 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 8 of 35 both to certain categories of works and with regard to the means of communication. The WCT deals with three particularly important issues among others. First, the minimum duration of the protection of photographic works is raised from 25 years after the author’s death to 50 years to match all other works under the Berne Convention. Second, the treaty establishes the framework for limitations of and exceptions to copyrights: Signatory nations may provide for limitations of or exceptions to the rights granted under the WCT regime (for instance, “private copying exceptions”) under the condition that they may apply only to certain special cases, that the limitations or exceptions do not conflict with the normal exploitation of the work, and that the legitimate interests of the author are not unreasonably prejudiced (the three-step-test). Third, and this aspect is particularly important for online media, the Treaty obliges ratifying member states to provide for adequate legal protection and effective legal remedies against the circumvention of effective technological measures—such as access and copy control technology—that are used by authors in connection with the exercise of their rights under the WCT or the Berne Convention, and that restricts acts that are not authorized by the authors concerned or permitted by law. Thus, the WCT has introduced new international rules—such as a comprehensive right of communication to the public and the protection of technological protection measures, among others— that benefit rightholders and the copyright industry at large. Because the WCT is perceived to favor IP owners’ interests over others, WIPO has recently been called upon to take a more balanced view of the social benefits and costs of IP rights as a tool for supporting creative activities. In the aftermath of the “Geneva Declaration,” 17 WIPO’s General Assembly decided to advance a “development agenda” that acknowledges the need for balance in worldwide policy on IP rights. 18 In sum, the WCT introduced new international rules regarding copyright, and also clarified how certain existing rules should be interpreted given new technological developments. In doing so, the WCT has helped level the playing field among national copyright regimes. However, the WCT still leaves significant leeway to the contracting states. As a consequence, significant differences among national copyright regimes remain, as this Supplement will illustrate. 17 See http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf. 18 See http://www.cptech.org/ip/wipo/wipo10042004.html
2 EU Legislative and Regulatory Developments European copyright framework Copyright issues and related rights in Europe are governed not by a single body of law, but by legislation both at the EU level and the national level. EU member states, however, significantly harmonized their national copyright laws between 1991 and 1996 as a result of several irectives aimed at vertical standardization, including the Software Directive, Rental Right Directive. Satellite and Cable Directive. Term Directive Database Directive and the Artists Resale Rights Directive Perhaps the most important pieces of EU legislation regarding digital media are the European Union Copyright Directive EUCD) and the recently enacted IP Enforcement Directive Still pending implementation in some member states, the EUCD aims to harmonize national laws horizontally and sets the European Community legal framework for copyright by standardizing three fundamental exclusive rights, introducing an exhaustive list of copyright exceptions, and stipulating obligations on safeguarding technical protection measures. The IP Enforcement Directive concerns the measures and remedies necessary to ensure enforcement of IP rights, in the directive on Access Control Services. 22 First, to achieve the harmonization of fundamental exclusive rights, the EUCD Specifies the acts covered by exclusive reproduction rights for authors, performers, phonogram producers, producers of films, and so forth Grants authors an exclusive right to authorize or prohibit any communication to the public-including interactive on-demand transmission-of the originals and copies of their work Harmonizes for authors the exclusive right of distribution to the public of their works or copies thereof, and stipulates for tangible works-a communitywide principle of exhaustion ("first sale") See Directive 2001/29EC of the European Pariament and of the Council of 22 May 2001 on the harmonization of certain aspects ee Directive 2004/48/EC of the European Pariament and the Council of 29 April 2004 on the enforcement of IP rights See Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market. See Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of service wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 9 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 9 of 35 #(/0 1 , - , / ! + Copyright issues and related rights in Europe are governed not by a single body of law, but by legislation both at the EU level and the national level. EU member states, however, significantly harmonized their national copyright laws between 1991 and 1996 as a result of several EU Directives aimed at vertical standardization, including the Software Directive, Rental Right Directive, Satellite and Cable Directive, Term Directive, Database Directive and the Artists’ Resale Rights Directive. Perhaps the most important pieces of EU legislation regarding digital media are the European Union Copyright Directive (EUCD) 19 and the recently enacted IP Enforcement Directive. Still pending implementation in some member states, the EUCD aims to harmonize national laws horizontally and sets the European Community legal framework for copyright by standardizing three fundamental exclusive rights, introducing an exhaustive list of copyright exceptions, and stipulating obligations on safeguarding technical protection measures. The IP Enforcement Directive concerns the measures, procedures, and remedies necessary to ensure enforcement of IP rights, 20 in tandem with the earlier Directive on Electronic Commerce 21 and the Directive on Access Control Services. 22 First, to achieve the harmonization of fundamental exclusive rights, the EUCD: • Specifies the acts covered by exclusive reproduction rights for authors, performers, phonogram producers, producers of films, and so forth. • Grants authors an exclusive right to authorize or prohibit any communication to the public—including interactive on-demand transmission—of the originals and copies of their work. • Harmonizes for authors the exclusive right of distribution to the public of their works or copies thereof, and stipulates— for tangible works—a communitywide principle of exhaustion (“first sale”). 19 See Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. 20 See Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of IP rights. 21 See Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market. 22 See Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access.
