3.1 The New International Rule of Law

3.1.1 The Needs of the Developing Countries and the Interests of the Developed Countries

International protection of intellectual property rights, and especially of copyright, is “essentially concerned with the private interests of authors and with raising the level of protection that is accorded to them.” (98) These concerns are usually not of much interest for the developing countries, which are more concerned with fighting poverty and finding solutions for economic development. 

From this perspective things may appear different than how proponents of stronger international protection try to present their case.

First, international protection proponents suggest that international protection will benefit the authors of the developing countries. (99) While this may be true to a certain extent other factors should be considered. How many developing countries authors will be able to export their works in developed countries and in this way sustain economic development? Statistics show that the United States and the European Union are the biggest exporters of intellectual property protected products while exports of intellectual property from developing countries are not yet significant. (100)

Second, a goal of the developing countries is to promote education and research. These activities are connected to wide availability of copyrighted materials that are produced in the developed countries. Many developing countries, however, do not have the resources required to import such copyrighted works. Moreover the prices for the copyrighted works are set for the standards of developed countries. The authors in those countries do not have any interest in discriminating the prices in favour of the developing countries.

Moreover, the issues could be seen differently from the perspective of developed countries: Why should the small group of authors carry all the burden of helping developing countries? Help should come by financial and economic aids, which would in turn promote learning, education and research. (101)

The developed countries are representing, in many cases regarding intellectual property issues, the position of copyright-interested industries and pay less attention to the real needs of developing countries. The opposition to the Stockholm Protocol is an example. The Stockholm Protocol was not effective because of the opposition of the copyright-interested industries in the developing countries. (102)

These almost opposite interests lead to the discussions regarding the revision of the Berne Convention in the 1970s and to the adoption of the TRIPs agreement in 1994.

3.1.2 The Berne Convention Revisions of Stockholm and Paris

After the end of the Second World War many former colonies acceded to the status of independent countries. Before independence, many developing countries were parties to the Berne Convention because they were colonies of a major country party to the Convention. (103)

In 1963, 23 African countries and some other countries and institutional guests (e.g. ALAI) organized a meeting at Brazzaville regarding the future of copyright in the developing countries of Africa. The representatives of the countries present suggested that changes in the international copyright system were necessary to accommodate the situation of the developing countries. (104) The following negotiations between the developing and the developed countries finished with the Stockholm Protocol of the Berne Convention. The Stockholm Protocol contained some special rights for the developing countries. Developing countries could make special reservations to the Berne Convention regarding translations, reproduction, broadcasting and educational use of copyrighted works. The reservation regarding translations provided for the expiration of an author’s translation rights if they were not used for ten years in a particular developing country and also for compulsory license for the nationals of such country if the translation rights were not used for three years. A competent authority of the developing country, for educational or cultural purposes, could grant reproduction non-exclusive licenses if the work was not published in that country within three years from the publication in the country of origin. Developing countries could also grant compulsory licenses for purposes of teaching, study and research with regard to any exclusive right of the author. (105)

Although the Stockholm Protocol was adopted, most of the developed country failed to ratify it because of the strong opposition of copyright stakeholders. After four years of intense negotiations and studies, the developed and the developing countries finally agreed on the Paris Act and Appendix to the Berne Convention. The new Appendix provides for compulsory licenses for translation and reproduction, which the developing countries may use. Compulsory licenses are “non-exclusive and non-transferable licenses issuable on the expiration of prescribed periods, and after prior consultation of the right-owners, by the competent authority in the developing country, subject to provision for the payment of just compensation.” (106) The requirements to be fulfilled before granting compulsory licenses are more restrictive than under the Stockholm Protocol. There is also a complicated procedure to be followed before the licenses are granted by the “competent authority.” (107) It appears that the compulsory licenses system was crafted more as an incentive tool for copyright owners to authorize distribution of their works in developing countries.(108) The Paris Appendix is now in force among most of the countries party to the Berne Convention. (109)

The benefits of the Paris Appendix for the developing countries are hard to assess. Few developing countries have even “availed themselves of its provisions.” (110) In addition, there are no statistical data available for analysis to evaluate the impact of translation and reproduction licenses.

From the perspective of developed countries it seems that the Berne and Paris systems did not meet the demands regarding protection of intellectual property in the developing countries. A new step was to be taken in the recognition and enforcement of intellectual property rights and this was TRIPs.

3.1.3 The TRIPs Agreement

During the 1980s, technological advances contributed to a large expansion of unauthorised reproduction of copyrighted works at international level. Among the developed states, the United States, as major exporter of intellectual property products pushed for a change of perspective in the field of international protection of intellectual property rights. The new perspective was based on the view that “failure to adequately and effectively protect intellectual property – especially foreign intellectual property – is as much an unfair trade practice as are high tariffs, dumping, or governmental subsidies.” (111)

The new perspective enabled the United States and other developed countries to move the intellectual property agenda from the WIPO to the GATT into the context of regulation of international trade. The argument was that disparities in intellectual properties regimes of different countries led to trade distortions. (112)

Consequently, during the Uruguay Round of GATT, not only the agreement on the new World Trade Organization (“WTO”, replacing GATT) was concluded, but also the “Agreement on Trade-Related Aspect of Intellectual Property Rights, Including Trade in Counterfeit Goods” (“TRIPs”). (113)

The origins of the new TRIPs agreement have been traced to the two most important shortcomings of the Berne and Paris Conventions:

First, within the conventions themselves there were few substantive obligations with respect to the enforcement measure which contracting states were to make available to persons claiming protection. For the most part, these were left as a matter for municipal law as a natural incidence of the principles of national treatment and independence of protection. Secondly, there were no effective mechanisms within either convention to enable states to ensure compliance with their convention obligations by other member states.  (114)

These shortcomings were both addressed in TRIPs. First, the minimum substantive provisions standard was enlarged. TRIPs signatories must comply with the provisions of the Paris and Berne Conventions and also with the separate new substantive provisions of the new treaty. With regard to copyright the new minimal substantive provisions concern protection of computer programs as literary works, larger protection of compilations of data, protection of rental rights at least for computer software and cinematographic works and larger protection of sound recordings, performers, and broadcasting organizations than under Rome.(115) Second, TRIPs brings for the first time the possibility to enforce the rights of the creators at international level. The treaty mandates availability in all TRIPs countries of institutions such as “discovery of evidence, rights to counsel, injunctions, damages, and temporary restraining orders.” (116)  Moreover, states can bring action against other states before WTO competent international bodies in the name of private parties affected by the non-compliance of the latter states. If a WTO panel finds that the respondent state is responsible, the claimant state is “entitled to cross-sectoral retaliatory sanctions to offset the economic loss resulting from nullification or impairment of the benefits to which that state was entitled.” (117)

We may conclude that international copyright protection is stronger than ever. However, not strong enough for the digital age, as peer-to-peer networks prove. We still have to see whether copyright protection goes in the right direction.

3.2 Justifying Copyright in the Information Age

3.2.1 The Same Old Theories

This thesis is about justification of copyright in the information and digital age. Are there any new justifications of copyright in this brave new world? It seems that the same old theories apply to the digital age too, although in different forms. And, of course, some results are different than under the old analysis. We will take some examples.

The modern equivalent of the utilitarian theory is the neoclassical economic theory. One author shows that the analysis of costs of transactions in the digital medium casts new lights on the justification of copyright. The protection of copyrighted works as a kind of property appears closer to economic efficiency than theories based on liability. (118)

The position of the new neoclassical economists has been described by Julie Cohen: “cybereconomists argue that the most efficient legal regime, measured by its success at inducing the creation of digital works and increasing consumers' access to information, is that which permits copyright owners to maximize control over the terms and conditions of use of their digital property.” (119)  This author then criticizes the above position arguing that a legal regime based on limited-ownership is more appropriate for sustaining creation and intellectual discovery (120) , and suggests inclusion of other explaining theories in the copyright paradigm:

A realistic model for the market in digital works should explore the effect of legal rules on the formation of market institutions, as the cybereconomists (in particular Merges) do. However, it also must attempt to understand the ways in which the existing distribution and social construction of property rights, and the convenient presumption of particularized assent to standard form contract terms, are themselves institutional choices that shape market outcomes. In addition, a model that attempts to relate "property" to "progress" must consider the public-good nature of creative and informational works, and cannot assume equivalency between private wealth and social gain. (121)

The strong criticism that neoclassical economic theory attracts follows from its failure to account for factors other than pure economical calculus. An example is the concept of private unauthorised copying (or “free riding”). Napster and other similar services took free riding to unprecedented levels and alarmed the industry. On the theory side this prompted the answer of neoclassical economy proponents who began to calculate the disastrous effects of the new levels of free riding. However, their basic assumption that every individual will make decisions taking into account only her own interests leaves out other motives individuals may have. Such motives include: 

(1)Altruism: Some individuals contribute to the production of a public good because they derive satisfaction from the satisfaction others experience from the good's creation; 
(2)The "Warm Glow" Effect: Some individuals contribute to the production of a public good because they derive satisfaction directly from contributing; 
(3)Long-Term Self Interest: Some individuals contribute to the production of a public good because they recognize that their contributions help ensure the work's creation, from which they derive satisfaction; 
(4)Reputation: Some individuals contribute to the production of a public good because they derive satisfaction from their resulting reputation; and
(5)Informal Cooperation: Some individuals contribute to the production of a public good because groups develop informal mechanisms to encourage such contributions, and the individual derives satisfaction from being a member of the group. (122)

As always the theory copyright stakeholders and owners support most is the natural right theory. Moreover this support is more and more becoming propaganda: the word “pirate” does not suffice anymore to impress the public so the words “thief” and “steal” do a better job. Unfortunately, even if from a scientific point of view the discourse of the copyright owners has not much value, it surely impresses politicians and unaware members of the public. (123)

Social planning theorists also adapt their perspective on copyright to the digital age. The digital age is enhancing the vision of a democratic civil society as individuals may express themselves easier in the public fora and contribute more to the commons. The goals of a rich democratic civil society may be best served by enhancing the rights of the public over the works and not the exclusive rights of the authors. (124)

3.2.2 Developing Countries, Information Age and the Old Theories.

The scientific developments in the developed countries mentioned above and many others in the field of the justification of copyright fail to take into account some essential changes in the structure of interests related to copyright following the digital age. 

The digital age brought some fundamental evolutions to international relations and to the lives of individuals in any country. As Internet means a digital world without frontiers, there is a new world market for information circulating on the Internet. The new market could be available to everyone. The information products, incorporating works of authorship, could reach in theory any person owning or using a personal computer. For poor people in the developing countries, who cannot afford buying works of authorship from the developed countries, this brings a great promise of better access to learning, education and culture. Yet, if the actual copyright system continues to develop in the same ways as until now, the reality could turn to the contrary. Marginalization as known during the international age could turn into marginalization in the information age. Before the information age, groups and individuals were marginalized because of their geographic location, gender, colour, nationality or other similar criteria. The information age brings marginalization based on access to Internet and its resources. (125) The negative role of copyright here is to segregate even among persons with access to Internet, between those who have access to content and those who have not.

What appears to be missing from most of the new analyses on copyright justification in the information age is the fact that the balance between stakeholders and public does not have the same players as before the digital age. It is true that the content owners are largely the same, but this is not true anymore for the public. The public is not anymore the individuals in the United States or the European Union. The public is now, more or less, any individual on planet Earth. Copyright laws should be rebalanced having in mind this new reality. The developed countries, and especially the United States have enforced a strong intellectual property system in the form of TRIPs. TRIPs indirectly brings a host of obligations for every individual of any member country (and most countries are members already) and also brings a host of rights for the content owners. But what rights does it bring for individuals in developing countries? This is an open question but an intuitive answer is: few rights, maybe none. The question is: where is the balance here? It is obvious that a stronger and stronger copyright regime would probably provide a balance within the United States and the other developed countries. But what about the rest?

This is also an issue of fairness. United States use annually the contribution of over 550,000 foreign students and scholars to further their development. (126) All these people have been educated, with great effort, in their home countries for many years. The governments and ultimately the people of those countries have paid their education. Right after high school or after graduation they leave their home countries for a better life in the United States and after a short period of adapting to the US standards they start researching and producing results. Do any of these results come back to their home countries? Are they accessible to researchers in their home countries? The answer is in most of the cases no. The market systems do not work in this case. The market is limited to the United States and the developed countries. Fairness could be achieved in this case only by somehow permitting developing countries to use the results of research undertaken in the United States and other developed countries. One of the possible means to this end could be to modify the copyright system to permit some transfer of knowledge to developing countries.

Copyright proponents use economical analysis to underline the benefits of the developing countries coming from stronger intellectual property regimes. As many studies show: “The evidence supports the view that product innovation is sensitive to IPRS in developing countries, while FDI and technology transfer go up when patent rights are strengthened.” (127) Such studies also try to prove the beneficial effect of intellectual property protection on trade-flows and foreign direct investment. What is to be noted here is how copyright owners use the results of such studies to advocate improvements in the international copyright system. What they do not use is the understanding such studies bring to the issue. While it is true that stronger intellectual property regimes are usually associated with economic development, it does not mean that the economic development has been necessarily caused by the stronger intellectual property regimes. Authors of research on economic effects of intellectual property regimes in developing countries have mentioned that: 

The adoption of stronger IPRS in developing countries is often defended by claims that this reform will attract significant new inward flows of technology, a blossoming of local innovation and cultural industries, and a faster closing of the technology gap between themselves and developed countries. It must be recognized, however, that improved IPRS by themselves are highly unlikely to produce such benefits. (128)

In other words even if developing countries adopt stronger intellectual property regimes, this will not necessarily be to their benefit. The stronger regimes will be effective in the presence of other policies undertaken by these countries such as: implementing procompetitive intellectual property standards, enhancing capacities to use intellectual property, promoting competitive markets generally and developing competition policies. (129)

There are several problems with the present studies on the economic effects of intellectual property rights. First, most of the studies analyse copyright and other intellectual property rights in a bundle. It seems to me that this is not a very good approach to analyse such a subtle reality as intellectual property rights. Maybe a strong intellectual property regime is connected to larger foreign investments, but what proves that both patents and copyright are factors of growth? Maybe only the patent system is attracting the investments. A valid research should be undertaken for each of the components of an intellectual property regime. This brings another question. In this new information age why should we still treat the copyright subject matters under the same umbrella? Books, music and movies do not perform the same social functions. They have completely different kinds of lives in the market and there are even sub-categories that could be treated differently such as entertainment movies, scientific movies, art movies and so on. Maybe we do not have yet the tools to accept different kinds of legislation for different categories of works or maybe a different unitary regime would work. Something does not work with the present system. At the present moment copyright is the most contested area in the realm of law. Maybe not without a reason.

Second, and most important, these studies do not account for the hidden effects of intellectual property rights on the general level of culture and development of a people. Books are one of the main tools for building a strong democratic society and for making a people understand and use culture. Developed nations build their culture on a rich past of written materials but at the same time they expect that developing nations improve their status without access to these materials. Digital age brought the promise of access, but extended copyright takes it away. Imagine a world where individuals of developing countries could access free of charge the educational and cultural materials from developed countries they are interested in. Wouldn’t this access foster development? Would it be so unfair for copyright owners? How many individuals from developing countries buy how many copyrighted materials from developed countries anyway? Maybe they buy some entertainment information products (such as movies and music) but that’s it. Take another example, software. I have personally witnessed the beginnings of a new software industry in the developing countries of Eastern Europe. All this new development would not have been possible without “pirate” computer programs. IT students had access to these “pirate” copies of very expensive software and they could learn programming languages. The next step was to create a small company and start programming for a few clients also with the aid of “pirate” copies. Then bigger clients from the developed countries would come and pay for the programming. This creates export and hard currency revenues for these small firms. The happy end is that after a while they become frustrated with the lack of support for the “pirate” copies and pay for the original software product. This is the anti copyright version of the story. The copyright version is that they cannot use the software from the very beginning (because they don’t have access, because we have DMCA and other similar statutes) or they go to prison because it’s criminal to pirate software. What are the advantages in the second course of the story? Do software programs owners, such as Microsoft, have any significant advantage? I believe the disadvantages are obvious.

3.3 What we could change

The developments during the last 30 years following the Paris revision of the Berne convention show that developing countries are not anymore a player in building a copyright system, fair not only for the content owners but also for these countries. Moreover the studies concerning effects of intellectual property rights in developing countries seem to be made only to prove the need for stronger enforcement. It is difficult to find studies questioning the actual system. We need at least to question the advantages of the international copyright system. Maybe it is a good system, but it will prove good only after it can answer the questions above and many others.

Extended studies of copyright effects in developing countries could lead to a better understanding of the present situation and to solutions for the future. I believe such studies should not be limited to economic effects but should analyse other strong effects such as sociological and psychological effects. Sociological studies could be relevant especially in the situation of books and other materials related to education, learning and culture. Such studies could be conducted to see what is the precise extent to which copyright owners would oppose free licensing schemes for developing countries or what are the benefits of making available information to larger groups of people in developing countries. Moreover, copyright scholars in developed countries and especially the United States should stop thinking in territorial terms. Copyright is now a global issue because of the digital and information age. Any solution thought only for the United States will necessarily fail because United States cannot turn into the copyright policeman of the whole world and cannot isolate itself from the global community. A good solution should make happy the content owners (who are located mostly in the developed countries) and the public of any country on the globe.

A fundamental change in the international copyright system is discussed by many scholars. (130) Some propose the transformation of copyright into a strictly commercial right while others suggest more limited solutions such as compulsory licensing.

From the point of view of the interest of the developing countries I believe it is important to distinguish between categories of works. Works destined to further research, education and learning should somehow be disseminated in the developing countries. 

A change in the copyright system could be closely related to the digitisation of the works. If the digital age modified the structure of interests in the market, then the digital technology should be the solution to the problems too. If copyright owners pretend such strict control over their works maybe we, the public, can give them this control in exchange for a better position for us. If content owners could strictly control the distribution and, most important, use of their works, it means also strict valuation of the work’s use could be undertaken. Copyright could turn into a system of protecting works depending on their actual and true economical value. Suppose a work sells very well for the first ten years of its life and then not at all. Why should it be protected for 70 years after the death of the author? The proposed system would end protection of the work at the moment where the economical value of the work falls below a certain threshold (e.g. a percentage of the sales in the first three years). The end of protection would take the work into the public domain where people who could not afford to buy it could freely use it. The content owners would be protected until a fair return is made while the public could use the work much sooner.

The problems related to education and learning in the developing countries could be solved also with the help of digital technology by somehow forcing dissemination of works in these countries. I think one solution could be a kind of compulsory license in favour of schools and universities in developing countries (let us name them designated institutions). In such a system every content owner should not only be required to permit access to every work of authorship to any designated institution but also provide electronic copies at the time of publication to a central administration institution (provide copies in a similar way they are now forced to provide to the Library of Congress). The role of the central administration institution in this system would be to centralize requests from designated institutions, store electronic copies of the works (deposited by copyright owners under legal obligation) and permit access to or send copies of the works to designated institutions. The viability of such a system could come from the use of digital rights management systems. By using digital technology, content owners could make sure that nobody except designated institutions use their works.

Footnotes

(98) RICKETSON, supra note 14, at 590.
(99) See WIPO, Cooperation for Development Program, available at http://www.wipo.org/cfd/en/index.html  (last visited March 30, 2002).
(100) U.S. Department of Commerce, Digital Economy 2000 (June 2000), available at http://www.esa.doc.gov/de2000.pdf  (last visited March 15, 2002).
(101) RICKETSON, supra note 14, at 663.
(102) Id. at 622.
(103) Id. at 592-596.
(104) Id. at 596-597.
(105) Id. at 609-621.
(106) E. Ulmer, The Revisions of the Copyright Conventions, 2 INT'L REV. INDUS. PROP. & COPYRIGHT L. (IIC) 345, 356 (1971).
(107) RICKETSON, supra note 14, at 621-662.
(108) Ulmer, supra note 106, at 371.
(109) WIPO, Berne Convention for the Protection of Literary and Artistic Works, Status on February 13, 2002, available at http://www.wipo.org/treaties/documents/english/word/e-berne.doc (last visited on March 30, 2002).
(110) RICKETSON, supra note 14, at 663.
(111) JOYCE ET AL., supra note 1, at 43.
(112) Id. at 44, 45.
(113) Id. at 45.
(114) S. Ricketson, The Future of the Traditional Intellectual Property Conventions in the Brave New World of Trade-Related Intellectual Property Rights, 26 INT'L REV. INDUS. PROP. & COPYRIGHT L. (IIC) 872, 883 (1995).
(115) Id. at 886.
(116) J. H. Reichman, Universal Minimum Standards Of Intellectual Property Protection Under The Trips Component Of The WTO Agreement, 29 INT'L LAW. 345, 385 (1995).
(117) Id. at 385.
(118) Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. CHI. LEGAL F. 217, 259-260 (1996).
(119) Cohen, supra note 97, at 463.
(120) Id., at 466.
(121) Id., at 560.
(122) Glynn S. Lunney, Jr., The Death Of Copyright: Digital Technology, Private Copying, And The Digital Millennium Copyright Act, 87 VA. L. REV. 813, 861 (2001).
(123) Lawrence Lessig, Jack Valenti, The Future of Intellectual Property: A Debate, webcast available at http://cyber.law.harvard.edu/futureofip/archive.asp , (last visited March 30, 2002).
(124) See Netanel, supra note 48.
(125) Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 IND. J. GLOBAL LEGAL STUD. 117, 167 (1999).
(126) Data from the annual report of INS (the US migration agency), available at www.ins.gov (last visited on March 20, 2002).
(127) Keith E. Maskus, Intellectual Property Rights and Economic Development, 32 CASE W. RES. J. INT'L L. 471, 472 (2000).
(128) Id. at 495.
(129) Id. at 496-500.
(130) See e.g., LITMAN, supra note 67, at chapter XII.