Overview of International Intellectual Property
Adapted from Jon M. Garon
Entertainment Law & Practice (2004)
Copyright provides one of the earliest of modern legal doctrines protecting the intellectual endeavor. In 1710, England adopted the Statute of Anne which was designed both to create some legal property rights in authorship and to reduce the prior monopolies held by the printers, who had exclusive rights to print. Among the significant terms of the Statute of Anne were limits regarding the scope of protection to English language printing, a term of 14 years, which was renewable if author was living at the end of the term; the power to fine and destroy infringing works; and the reserved power to limit the price of a seller's books (recognizing the monopoly power granted by the Statute). By the end of the century, copyright protection was extended in both France (1791 and 1793) and the United States (1790) immediately following great political change.
Copyright protection has extended virtually worldwide. In general, each country's law of copyright governs only its own territory. Copyright does not extend extraterritorially. As a result, throughout the nineteenth century, works created in one country could be reproduced without need for a license in other countries. The ease of export for copyrighted works created the need for greater international coordination. Not surprisingly, these arrangements started as bilateral agreements between close, neighboring states, but they grew broader in scope throughout the nineteenth and twentieth centuries.
The Berne Convention.
This process culminated with the adoption of the Berne Convention for the Protection of Literary and Artistic Works in 1886. The most important of the international copyright laws, the Berne Convention rests on two primary principles. First, each member state must provide national treatment for all authors. National treatment requires that any work originating in a Berne Union country be afforded the same treatment as that state provided for its own nationals. With only a few limited exceptions, national treatment guarantees equality of protection within each Berne Union country. Second, each Berne Union country must provide minimum rights regarding the protections. In this way, the Berne Convention serves as an international floor for the scope of copyright protections afforded throughout much of the world. There are presently 148 member states who are members of the Berne Union.
The application of the Berne Convention to domestic law varies. In some countries, it is self-executing, meaning that the text is treated as the law of the land, analogous to any other statute. In other jurisdictions, such as the United States, it has no direct effect on domestic law. Instead, the national laws must be modified to comply with the terms of the convention.
In addition to the Berne Convention itself, there are a number of important related international treaties. These include the Trade Related Aspects of Intellectual Property Rights (The TRIPS Agreement), World Intellectual Property Organization Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT). Each is dealt with briefly below.
Original works or authorship.
Copyright provides the author or creator of an original work of authorship the exclusive ownership of that work. Although variously defined, authorship generally incorporates literary and artistic works. The enumerated list of the U.S. Copyright act is representative:
(1) Literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
The Berne Convention has a similar list of criteria that essentially covers the same broad range of categories, although drafted in a somewhat different manner:
The expression "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; 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 to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
In both categories, the list is broad and inclusive. Although neither specifically includes software, the U.S. and most countries extend copyright to software as well.
Ideas not protected.
Copyright limits the scope of the ownership afforded to the author of the work. The law protects only the expression of the work, not ideas, procedures, processes, or facts. This protects the creativity of the expression but does not give any author a monopoly on the facts or ideas presented.
Originality and creativity necessary.
To be afforded copyright protection, an author must have created the work, meaning that the work is original to that author. There is no requirement that the work is novel or unique, merely that the work derives from the person who is the author. Similarly, there must be some creative spark, no matter how minor, that serves to set the work apart.
Fixation requirements.
The copyright ownership initially vests in the author of the work. If the country has a fixation requirement, the copyright will vest upon fixation. In a large number of countries, copyright protection is available only once the work is fixed in a tangible form. Technology has made the fixation requirement increasingly easy to accomplish, so that today, a written copy of a speech, sheet music, or videotape of an improvisational dance all will serve to fix the work.
Despite the growing ease of fixation, it remains a barrier to copyright protection for some works, such as unwritten speeches or improvisational theater. As a result the Berne Convention and many other countries do not require fixation as a prerequisite to copyright protection. In the U.S., federal law imposes the fixation requirement, but most U.S. states will afford limited copyright protection for unfixed works.
Eligibility for Berne Convention.
An author shall be afforded the protections of the Berne Convention if that author is a national of one of the Berne Union countries, or if the work is first published in a Berne Union country. This may be accomplished by simultaneously publishing a work in a Berne Union country, which means that such publication occur within 30 days of any other publication. In addition, authors who are not nationals of one of the countries of the Union but who have their habitual residence in one of them shall be treated as nationals of that country.
Economic rights.
The exclusive property rights of the copyright owner fall into the following broad categories: (1) reproduction or copying; (2) translation, adaptation, modification, or the creation of derivative works; (3) distribution by sale, license or other transfer of ownership, or by rental, lease, or lending; (4) public performance; and (5) public display.
The exact scope of these exclusive rights may vary somewhat from country to country. For example, England provides for a lending right, which guarantees a minimal payment to the copyright holder when a work is transferred from the owner of the copy of the work to a new owner.
Moral rights.
In addition to the economic rights, the Berne Convention provides that an 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. In the U.S. these rights are extended by federal copyright law only to works of visual arts created in series of no more than 200 copies. Additional protections are afforded through the U.S. unfair competition laws which may approximate a portion of the moral rights granted to Berne Union members. As provided in the Berne Convention, moral rights are neither assignable nor waiveable and remain fully enforceable by the author of the work, even if that person is no longer the copyright owner.
Term of ownership.
The Berne Convention sets as the minimum protection for most works the life of the author, plus an additional 50 years. Increasingly, however, the European Union and many other countries have extended the term of copyright for the life of the author plus 70 years.
If the work is made as a work for hire, then the term is 95 years from publication or 120 years from creation, whichever is less. In the U.S., this is also the term provided for anonymous and pseudonymous works, but this term varies significantly from country to country.
The Berne Convention prohibits the member country from requiring any formalities as a prerequisite to receiving copyright protection. Nonetheless, there remain a few general formalities that are often encouraged by member countries, although they do not bar copyright protection. In some situations, the copyright holder is given additional remedies from infringement. In addition, registration can also serve as prima facie evidence of the information contained in the registration form, which can be helpful in any legal disputes relating to the use or ownership of the copyright.
The first requirement is notice that the work is protected by copyright, which typically includes the copyright symbol "©" or the word or abbreviation for copyright along with the year of publication and the name of the copyright holder. This should be featured prominently in a place a reader would expect to look, such as the title page of a book.
The second formality is registration, which often requires payment of a filing fee and submission of a copy of the work the country's copyright office. In the U.S., for example, while registration is no longer required, it does provide some benefits if a legal dispute ever erupts regarding the work, including prima facie evidence of the facts in the copyright application and statutory damages and attorneys fees if filed in a timely fashion.
The U.S. also requires that the author provide the Library of Congress two copies of the best edition of every published work made in the United States. This deposit, however, is generally made as part of the registration process. In the situation where a copyright holder of a published work elects not to register the work, he or she is still obligated to submit the copies to the Library of Congress. If the copyright owner refuses to send the copies after receiving a demand letter, then the copyright office can levy substantial fines.
Copyright is often described as a "bundle of rights" that can be separated into any number of exclusive and non-exclusive transfers. Exclusive rights can be granted for period of time, for a geographic location, or for a particular use. In most countries, the transfer of rights is accomplished either by a license of some portion of the copyright holder's interest or an assignment of the copyright holder's entire interest. In some countries, however, an assignment of copyright is not permitted. Even in these countries, a license of the copyright holder's interest remains valid, so long as the license encompasses something less than the entire copyright holder's interest. As a result, the practical effect can place the licensee in the same position as if it were an assignee of the copyright.
When first developed, copyright extended only to books, maps, and fine arts. The expansion of copyright to broadcasters, performers, and sound recordings has evolved slowly in the past century. As a result, the protection for these rights are sometimes incorporated into the copyright laws of a country but are sometimes treated as rights related to copyright. In those countries that do not incorporate these art forms directly into their copyright law, there may be shorter duration for protection than under traditional copyright laws.
Typically, the related rights focus on the rights of (1) performing artists, such as actors and musicians, in their performances, (2) producers of sound recordings, and (3) broadcasting organizations in the broadcast of their programming. In each of these three areas, international treaties require at least a grant of minimal protection from unauthorized exploitation.
For performing artists, such as actors and musicians, the neighboring rights regime codifies mandatory minimal protection, providing that a person's performance cannot be fixed, broadcast or sold without the performer's permission. This right is particularly important where the culture relies heavily on an oral tradition, recognizing the moral and economic interest of the performer in the activity.
For the producers of sound recordings, the neighboring rights regime recognizes the interest in the phonogram (or CD, cassette tape, or other technological format) that embeds a musical composition. The author of the musical composition is often not the author of the phonogram. Instead, modern law acknowledges that there is sufficient artistry and economic interest in the creation of the phonogram so that it should be treated as a separately protected work. This has become particularly important because the phonogram has seen the greatest technological change and stands on the forefront of much of the anti-piracy protection today.
For the broadcast organizations, protection of the broadcast signal requires controls over international rebroadcast of the signal by satellite to jurisdictions around the globe. Protection of the interest of the broadcasters in the control of their transmission serves to protect the interest of the industry and the national interest in regularizing the global telecommunications among countries.
These principles have been made the subject of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, the Rome Convention of October 26, 1961. Under the Rome Convention, the parties are granted the protections of national treatment, and protections in each of the three performance rights identified by the neighboring rights. Many of these same protections have been expanded under the Trade Related Aspects of Intellectual Property Rights (The TRIPS Agreement).
Subsequent Treaties & Conventions.
Many of the same topics covered by the Rome Agreement have been the subject of expanded protection through a series of additional international agreements. In particular, the areas of sound recordings and broadcast require increasing protection and enforcement authority because of the constant advances in technology, concomitant growth of piracy, and the constant danger of copyright infringement.
TRIPS Agreement.
In 1994, significant advances were made in the international protection of copyrighted works with the TRIPS Agreement, which expanded the protection for copyright holders or holders of neighboring rights. The TRIPS Agreement extended the obligations to all members of the World Trade Organization (WTO), rather than just the signatories to the TRIPS Agreement itself. The TRIPS Agreement required all WTO members to protect all recordings released within the past fifty years. In addition, the TRIPS Agreement provided the phonogram copyright holder the ability to control rental of their recordings. The TRIPS Agreement also clarified and expanded the subject matter of copyright protection to specifically include computer programs, compilations of data, cinematographic works, and sound recordings.
The TRIPS Agreement also supplemented and expanded the Rome Convention by extending the protection of neighboring rights to all WTO members and by increasing the term of protection for sound recordings from 20 to 50 years.
It furthered the goal of protecting copyright holders from piracy of the works by requiring that members of the WTO to ensure that effective enforcement procedures are available. Similarly, the TRIPS Agreement includes provisions requiring action by customs authorities against suspected counterfeit or pirated goods.
Finally, the TRIPS Agreement also establishes that countries can bring an action against other countries for infringement of these rights through the World Trade Organization. While the WTO can't change a country's laws, it can impose tariffs as penalties if a country is found to be in violation of TRIPS.
WIPO Copyright Treaty.
After the adoption of the TRIPS Agreement, work continued to address issues not yet resolved through the TRIPS Agreement. This process culminated with the "WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions" which took place in Geneva from December 2 to 20, 1996. The Diplomatic Conference adopted two treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
The WCT expands the protection of the TRIPS Agreement by granting to copyright owners the exclusive right of distribution of the physical copies of their work. It also reflects the growing importance of the Internet by treating on-demand communication of works to individuals as public performances. Finally, like the TRIPS Agreement, it articulated requirements concerning technological measures intended to safeguard copyright through rights management protection that may be digitally embedded within the music, software, and/or hardware. Rights management information is that which identifies the work, the author, the owner of any right of the work, the conditions of use, and any data that represent this information. Increasingly, protection of the copyrighted work is tied to the digital transmission or reproduction of the work.
Countries must prohibit the circumvention of technological measures used by copyright holders to protect their works. Similarly, the nation must provide adequate and effective legal remedies against persons who remove or alter electronic rights management information without authority, or knowingly distributes works that have been stripped of the electronic rights management without authority.
WIPO Performances and Phonograms Treaty.
The WPPT expressly granted that producers of phonograms would have the exclusive right of direct or indirect reproduction of their works, in any form. This expanded the control over the neighboring rights first protected by international convention in the Rome Convention. It gave producers and performers the exclusive right to authorize on-demand transmissions, providing an excellent platform for international e-commerce. Finally, the WPPT provided limited rights to both producers and performers regarding remuneration for broadcasting or any communication to the public of their work As a result, the international sound recording industry has moved to the forefront of legal protection and international treaty in copyright.
Individual claims.
Copyright claims are enforced in the country where the unauthorized activity or infringement actually took place. Because copyright does not apply extraterritorially, a copyright holder cannot sue in his or her home country for infringements that take place in another country.
Typically, the copyright holder must establish that he or she is the valid owner of the copyright. The copyright holder must also establish that the defendant in the lawsuit copied or otherwise violated one of the exclusive rights reserved to the copyright holder. Typically this is shown by establishing the access the defendant had to the work and the similarity between the two works.
A court can order the seizure and destruction of infringing copies of a work. Depending on the country, fines may be levied, the profits made by the infringement may be paid to the copyright holder, or the damages sustained by the copyright holder may be paid by the infringer. In addition, criminal charges may be brought by the appropriate government prosecutors. Criminal suits generally follow the country's laws regarding criminal procedure and process.
Performing rights societies.
Since the middle of the nineteenth century, copyright owners have recognized that individual lawsuits are economically inefficient in stopping copyright infringement. A composer simply cannot spend $1,000 to collect $10.00 in copyright royalties. Instead, composers recognized that the only method of effective collection and compensation is through organized societies that collect royalties on behalf of their members.
The performing rights societies typically license their library of music to performance halls, broadcasters and similar venues. The licensee pays a fee for the right to publicly perform the music to the performing rights society. Organizations generally operate nationally or regionally, including ASCAP (American Society of Composers, Authors, and Publishers), SACEM (Societe Des Auteurs Compositeurs Et Editeurs De Musique) and SIAE (Societa Italiana Degli Autori Ed Editori), to name a few. The revenue received from the sale of licenses is then divided among the members based on the internal formula adopted by the organization. These payments are generally tied to the proportion of public performance attributed to each author in any given period. In some countries the performing rights society is part of the government itself while in other jurisdictions the societies are separately organized.
With the growth of the Internet, performing rights societies have taken on increasing importance as a method of protecting the rights of holders of various copyright interests. Depending on the country, the rights to publicly perform a song may now require the authorization of the composer, the phonogram copyright holder, and the performers on the recording. Through the use of performing rights societies, these authorizations can be coordinated, payments collected, and funds distributed.
Public Domain.
With few exceptions, copyright does not have a perpetual duration. Instead copyright holders' exclusive rights to works eventually expire and those works become freely available to the public. Once a work has ceased to be protected by copyright, it is considered to be in the public domain and free for any party to use in any manner.
A person may take a public domain work and modify, translate or adapt that work into something new. The author of this new work receives copyright protection for the new creation, but does not receive any ownership or protection of the source work that has fallen into the public domain. In this way, many different authors can create works based on popular works that have fallen into the public domain.
Fair Use.
The Berne Convention and most laws limit the exclusive rights of the copyright holder at least to the extent necessary to allow for some general criticism, comment, news reporting, scholarship, or research. This protects the public's need to comment on a work, to quote portions in other critical works, and to build upon the works that have gone before. The laws protecting unauthorized use of a work for comment or criticism vary considerably from country to country, but virtually all recognize that the absolute ownership of copyright must be tempered to some degree with the need for public discourse.
At its heart, copyright protects the creations of the mind - the literature, art, music, and content that an individual creates. These works serve as the economic and cultural heart for every country in the world. The protection of these works and the promotion of the unique voice of each author and nation has gained increased importance in the world economy as these works take priority in international trade.
Through international agreements such as the Berne Convention, the TRIPS Agreement and other WTO understandings, the common basis for copyright protection has grown dramatically over the past twenty years. Although there continues to be much work to be done to include all nations, the expansion and growth of copyright protection and international harmony is unparalleled. As a result, copyright will serve as the basis for much of the international trade in the years to come.
1. WIPO Copyright Treaty
The WIPO Copyright Treaty (WCT) is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works. It was adopted with an aim to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible. Article 11 of the WCT [adopted December 20, 1996] provides the obligations of members concerning technological measures. According to Article 11, the contracting states shall have an obligation to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under the WCT or the Berne Convention and restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.
Article 12 of WCT, provides the obligations of member states concerning Rights Management Information. As per Article 12, the member states shall have the obligation to provide adequate and effective legal remedies against any person for knowingly inducing, enabling, facilitating or concealing removal or alteration of any electronic rights management information without authority and for inducing, enabling, facilitating or concealing distribution, import for distribution, broadcast or communication to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.
2. WIPO Performances and Phonograms Treaty (WPPT)
WPPT was adopted with an objective to develop and maintain the protection of the rights of performers and producers of phonograms in a manner as effective and uniform as possible. This treaty would not disturb the existing obligations that Contracting Parties have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations done in Rome, October 26, 1961 (Rome Convention). Articles 182 and 193 of the WPPT provide similar obligations for performers and producers of phonograms to contracting states as provided under Articles 11 and 12 of the WCT.
Both the treaties obligate the member states to provide for laws prohibiting circumvention of digital rights management systems. They also obligate member states to provide for laws to prevent trafficking in tools meant for circumvention activities.
United States of America
[The United States] implemented the international treaties by passing the Digital Millennium Copyright Act (DMCA) in the year 1998. The Act has been codified under section 1201 of Title 17 of the United States Code which is the law relating to copyrights. Section 1201 prohibits circumvention of technologies that effectively control access to works protected under title 17. It also prohibits manufacture, import, sale or other traffic in any product, service, device, component or part, which is primarily designed or produced for the purpose of circumvention or which has a limited use other than circumvention. As per section 1201 "circumvention of a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.
Exemptions have been provided in the section for nonprofit library, archives, or educational institution to gain access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work. Exceptions have also been provided for reverse engineering, encryption research, minors and security testing.
Though the DMCA provides a list of exemptions, they are just a nullity because they are too narrow and the actual act of circumvention is prohibited irrespective of the purpose for which it has been done. The stringent provisions of DMCA have led to a large number of unintended consequences like arrest of scientists, numerous law suits, and stoppage of research.
European Union
The European Union Directive on copyright and related rights in the information society was adopted by the European parliament in the year 2001 with an aim to implement the provisions of WCT and WPPT. The Directive mandates the implementation of the WIPO treaties by EU member states.
The EU directive provides that the member states shall provide adequate legal protection against the circumvention of any effective technological measures, designed to prevent or restrict acts not authorized by the right holders of any copyright. It further provides that the member states shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which are promoted, advertised or marketed for the purpose of circumvention of, or have only a limited commercially significant purpose or use other than to circumvent, or are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
The directive further mandates that the member states shall provide for adequate legal protection against any person for knowingly removing or altering any electronic right management information and for distributing, importing for distribution, broadcasting, communicating or making available to the public of works or other subject-matter from which electronic rights-management information has been removed or altered without authority. The member states are required to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 22 December 2002. Only Denmark and Greece met this deadline. UK has made efforts to implement the directive through its 2003 regulations.
India
The Indian Copyright Law has not been amended to implement the anti-circumvention provisions under the WCT and WPPT. Therefore, there are no provisions that prohibit circumvention of digital rights management systems in India. .
Implementing strong laws against circumvention of DRM systems, which could stop piracy completely, promotes progress of useful arts in developed countries but will deprive access to information, knowledge and entertainment to people in developing countries like India. Because of the non-divisible nature of the Internet and the World Wide Web, it cannot be divided like land into different territories in order to make different rules for different countries based on the development status of the country. Under such a situation, a system that would be beneficial to the world as a whole should be adopted. After looking at the interests of both developed and developing countries, it would be advantageous for the world as a whole to have a strong legal protection against circumvention of DRM systems because that would encourage creativity in useful arts which would in turn be beneficial for mankind. If there is no creation there would be no information, knowledge and entertainment. Therefore, instead of putting an end to creation as a whole it is better to encourage its progress by implementing strong anti-circumvention laws in India and all nations of the world.
In 2003, a broad consortium of film, music, television, and technical service industries formed the Entertainment Industry Coalition for Free Trade (EIC) to reflect the vital interest trade represents for the industry and the importance entertainment related trade represents for the United States. According to the EIC, "[f]oreign sales and exports by the copyright industries in 2001 are estimated at $88.97 billion, surpassing all major industry sectors including: chemical and allied products, motor vehicles, equipment and parts, aircraft and aircraft parts, and the agricultural sector. Between 1997 and 2001, the copyright industries' average annual employment grew more than three times as fast as the remainder of the economy."
Worldwide, the results are similar though perhaps not as dramatic. The World Intellectual Property Organization (WIPO) estimates that the gross domestic product for the entertainment and copyright industries has grown at a rate twice that of the general economies.
For the United States, the scope of the revenue is further enhanced by the significant, positive balance of trade. The United States is a major exporter of content, in the form of film, television, music, video games, and computer software. These products are highly efficient to ship, and these exports tend to reinforce United States dominance in political and other spheres.
Interestingly, the United States was a latecomer to the primary copyright treaty, the Berne Convention, as well as to most of the international protection of copyright. The U.S. joined only as of March 1989. The U.S. had been a member of the Universal Copyright Convention beginning in 1955, and had had limited bilateral cooperation with other countries as far back as 1891. Because the primary international framework for the entertainment industries stems from the Berne Convention and a series of international copyright treaties, the international copyright fundamentals and related treaties are outlined in Chapter II-B, below.
Both inside and outside the United States, the political debate around copyright often stems from the issues of copyright piracy and the appropriateness of actions to stop consumers from illegally downloading MP3 and computer files or from buying unauthorized bootleg copies of films, CDs, and software.
While this dialogue continues in the developing as well as the developed nations, countries with smaller entertainment markets must also address the issue of trade barriers, governmental support, and protectionism for the industry. In reality, these topics are all part of the same debate over the appropriate economic framework. Each nation must ask what is needed to develop a sustainable entertainment enterprise.
The economics are simple. Pirated goods are sold at a cost vastly lower than authorized goods. For example, the cost to manufacture a motion picture DVD ranges from $0.25-$0.75, which covers the cost of the disk, the case, and the cover. The $19.99 suggested retail price represents the costs associated with the licensing of various rights to the packaging artwork, the novel on which the motion picture was based, the actors, director, technicians, musical score, musicians, production costs and overhead, and an assessment that the selected price will result in highest rate of return.4 The price has little to do with the cost of manufacturing the disk, case, and cover. As a result, the bootleg or pirated version of the work generates income for the pirate at any price over the cost of materials, but generates no income to the participants who created or financed the work.
Piracy, therefore, has the direct effect of reducing income to the creator of that work. While each piratical sale does not directly equate to a lost sale (since the purchaser willing to pay $1.00 may not be someone willing to pay $10.00 or $20.00), piracy has a direct, negative influence on the sales of copyrighted works.
Piracy has a second, more pernicious, impact on the entertainment industry in smaller markets. The pirated DVD directly replaces the commercially available DVD which sells for $20.00. For those unwilling to pay $20.00, however, there had been a market of $5.00 to $10.00 projects that were produced locally with a lower cost (and possibly a lower quality than the Hollywood product). If Hollywood films are illegally sold in smaller, foreign markets, these sales have the potential to financially cripple the local, more fragile entertainment economies. In Singapore, for example, the Wall Street Journal reported that the 300 films annually produced had dropped to below 20 in 2002 as a result of piracy.
The United States entertainment industries have found ready allies with countries both large and small which are embracing copyright laws to attack piracy. This should not be viewed as any endorsement of the U.S. content nor as a sign of political weakness. These countries recognize that to foster a local industry, the respect to copyright must apply to all works.
As a result, the primary focus for domestic protectionism takes the form of enforcement of international copyright treaties. Only by cracking down on piracy do the domestic producers have a chance to compete.
Beyond the common goal of copyright enforcement, there is some notable disagreement as to the protectionist measures that are appropriate. Some countries compete with the United States by funding arts organizations or content producers. Unlike the United States, many countries have government-owned or wholly-funded entertainment companies. Other countries place content requirements on the entertainment distributors. These regulations may include a requirement that a certain portion of each television station's broadcast be produced locally or is produced in the native language of that country; a certain percentage of motion pictures shown in each theater be domestically produced; tax incentives for local productions; or excise taxes on foreign projects.
One of the objectives of the various free trade agreements is to eliminate anti-competitive tariffs. The entertainment industries generally benefit from such treaties. The Berne Convention is not directly tied to these agreements, so countries may provide copyright protection without participating in free trade agreements.
Without copyright protection and enforcement, however, it is quite unlikely that a country can develop a strong entertainment community. Since the costs of developing a music industry and even a film industry are quite low, many nations have come to recognize that copyright protection and enforcement is a rather low cost method to enter the world trade markets.
The other concern raised in developing countries is the risk of exploitation of indigenous knowledge and folklore traditions. Indigenous knowledge includes the common wisdom of non-industrialized communities, knowledge held by leaders, healers, or elders in such communities, and highly prized knowledge, traditions and practices. A rough translation into U.S. legal parlance would be that indigenous knowledge is akin to trade secrets which are owned by communities rather than corporations, and the secret may range from a highly select group of recognized individuals to a more broadly held trade secret held by the community as a whole. In her paper "The Role of Intellectual Property Rights in the Sharing of Benefits Arising from the Use of Biological Resources and Traditional Knowledge," Anil K. Gupta5 describes indigenous knowledge as follows:
When individual knowledge is shared with the community, whilst the general relationship between, for example, a plant and its uses may be known to the community, the more specialized uses associated with the plant may still be restricted to individual experts; for instance, individual healers who know how to calibrate the dose and combination of herbal drugs according to the condition of the patient. Such an expert may, or may not, be free to share their knowledge, according to the rules of the community, since there may be taboos implying that a particular remedy might loose its effectiveness if revealed to others. Such a taboo leads to erosion of knowledge when such a knowledge expert dies without ever sharing the secret.
While the analogy to trade secrets may be helpful, this is not the legal construction historically given to indigenous knowledge. Foreign corporations have been known to identify valuable information - such as the use to which a particular plant may be made for a medical remedy or the efficacy of a rare combination of chemicals - in order to exploit the knowledge. This exploitation has two components. First, European and American companies treat developing regions imperialistically whenever such a company "discovers" a commonly known practice, if the only discovery is to document the indigenous knowledge. If the knowledge is commonly held, then such knowledge should be sufficient to invalidate the patent claim. Second, assuming the discovery is patentable, the revenue should be shared in an appropriate and equitable manner among the holders of the indigenous knowledge. To usurp such knowledge without permission or remuneration is akin to the theft of a trade secret.
The folklore debate takes these same concepts to the issues of copyright. Many local communities have dance, music, craft, and art histories that are collective in nature. Often, these works have never been fixed in a tangible form, so no copyright has ever existed. In some cases, third parties from outside the community observe these works and then adapt them for sale without prior permission. In other situations, members of the communities take personal authority to copyright and publicly exploit these historically communal works. In both cases, difficult issues are faced regarding ownership, exploitation, and the moral or legal right to exploit the works.
With respect to both indigenous knowledge and folklore, WIPO is working closely with member nations and others to identify solutions to provide ownership schemes that balance the competing interests involved in these culturally significant disputes. Nonetheless, as Professor Gupta acknowledges, "[t]he discussions in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore demonstrate a detailed understanding of the tensions existing among different countries on the issues of IP and access and benefit-sharing. However, the more difficult and challenging issue of providing incentives within a country for different kind of resource regimes and knowledge domains has not been adequately pursued so far." Reconciling the competing demands and interests involving indigenous knowledge and folklore will be an ongoing process for years to come.
Lucinda A. Low, Patrick M. Norton, and Daniel M. Drory, International Lawyer's Deskbook (2d Ed. ABA 2004).
William Patry, Choice of Law and International Copyright, 48 Am. J. Comp. L. 383 (2000).
Graeme W. Austin, Domestic Laws and Foreign Rights: Choice of Law in Transnational Copyright Infringement Litigation, 23 Colum.-VLA J.L. & Arts 1 (1999).
Websites:
Janke, T., Minding Culture - Case Studies on Intellectual Property and Traditional Cultural Expressions, prepared for WIPO (WIPO/GRTKF/Study/2) (available www.wipo.net).
WIPO Secretariat, "Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions" (WIPO/GRTKF/IC/5/3) (available www.wipo.net).
WIPO Secretariat, "Comparative Summary of Sui Generis Legislation for the Protection of Traditional Cultural Expressions" (WIPO/GRTKF/IC/5/INF 3) (available www.wipo.net).
World Intellectual Property Organization http://www.wipo.int/
WIPO, Traditional Knowledge and Cultural Expressions http://www.wipo.int/tk/en/index.html
Guide on Surveying the Economic Contribution of the Copyright-Based Industries http://www.wipo.int/copyright/en/publications/pdf/copyright_pub_893.pdf
Voice of America http://www.voa.gov/index.cfm?sectionTitle=Internet
The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated in the 1986-94 Uruguay Round, introduced intellectual property rules into the multilateral trading system for the first time.6
The areas covered by the TRIPS Agreement
Copyright and related rights
Trademarks, including service marks
Geographical indications
Industrial designs
Patents
Layout-designs (topographies) of integrated circuits
Undisclosed information, including trade secrets
Ideas and knowledge are an increasingly important part of trade. Most of the value of new medicines and other high technology products lies in the amount of invention, innovation, research, design and testing involved. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, not usually because of the plastic, metal or paper used to make them. Many products that used to be traded as low-technology goods or commodities now contain a higher proportion of invention and design in their value - for example brandnamed clothing or new varieties of plants.
Creators can be given the right to prevent others from using their inventions, designs or other creations - and to use that right to negotiate payment in return for others using them. These are "intellectual property rights". They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brandnames and product logos can be registered as trademarks; and so on. Governments and parliaments have given creators these rights as an incentive to produce ideas that will benefit society as a whole.
The extent of protection and enforcement of these rights varied widely around the world; and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. New internationally-agreed trade rules for intellectual property rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically.
The Uruguay Round achieved that. The WTO's TRIPS Agreement is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. In doing so, it strikes a balance between the long term benefits and possible short term costs to society. Society benefits in the long term when intellectual property protection encourages creation and invention, especially when the period of protection expires and the creations and inventions enter the public domain. Governments are allowed to reduce any short term costs through various exceptions, for example to tackle public health problems. And, when there are trade disputes over intellectual property rights, the WTO's dispute settlement system is now available.
The agreement covers five broad issues:
how basic principles of the trading system and other international intellectual property agreements should be applied
how to give adequate protection to intellectual property rights
how countries should enforce those rights adequately in their own territories
how to settle disputes on intellectual property between members of the WTO
special transitional arrangements during the period when the new system is being introduced.
Basic principles: national treatment, MFN, and balanced protection
As in GATT and GATS, the starting point of the intellectual property agreement is basic principles. And as in the two other agreements, non-discrimination features prominently: national treatment (treating one's own nationals and foreigners equally), and most-favoured-nation treatment (equal treatment for nationals of all trading partners in the WTO). National treatment is also a key principle in other intellectual property agreements outside the WTO.
The TRIPS Agreement has an additional important principle: intellectual property protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced, the agreement says.
How to protect intellectual property: common ground-rules
The second part of the TRIPS agreement looks at different kinds of intellectual property rights and how to protect them. The purpose is to ensure that adequate standards of protection exist in all member countries. Here the starting point is the obligations of the main international agreements of the World Intellectual Property Organization (WIPO) that already existed before the WTO was created:
the Paris Convention for the Protection of Industrial Property (patents, industrial designs, etc)
the Berne Convention for the Protection of Literary and Artistic Works (copyright).
Some areas are not covered by these conventions. In some cases, the standards of protection prescribed were thought inadequate. So the TRIPS agreement adds a significant number of new or higher standards.
The TRIPS agreement ensures that computer programs will be protected as literary works under the Berne Convention and outlines how databases should be protected.
It also expands international copyright rules to cover rental rights. Authors of computer programs and producers of sound recordings must have the right to prohibit the commercial rental of their works to the public. A similar exclusive right applies to films where commercial rental has led to widespread copying, affecting copyright-owners' potential earnings from their films.
The agreement says performers must also have the right to prevent unauthorized recording, reproduction and broadcast of live performances (bootlegging) for no less than 50 years. Producers of sound recordings must have the right to prevent the unauthorized reproduction of recordings for a period of 50 years.
The agreement defines what types of signs must be eligible for protection as trademarks, and what the minimum rights conferred on their owners must be. It says that service marks must be protected in the same way as trademarks used for goods. Marks that have become well-known in a particular country enjoy additional protection.
A place name is sometimes used to identify a product. This "geographical indication" does not only say where the product was made. More importantly, it identifies the product's special characteristics, which are the result of the product's origins.
Well-known examples include "Champagne", "Scotch", "Tequila", and "Roquefort" cheese. Wine and spirits makers are particularly concerned about the use of place-names to identify products, and the TRIPS Agreement contains special provisions for these products. But the issue is also important for other types of goods.
Using the place name when the product was made elsewhere or when it does not have the usual characteristics can mislead consumers, and it can lead to unfair competition. The TRIPS Agreement says countries have to prevent this misuse of place names.
For wines and spirits, the agreement provides higher levels of protection, i.e. even where there is no danger of the public being misled.
Some exceptions are allowed, for example if the name is already protected as a trademark or if it has become a generic term. For example, "cheddar" now refers to a particular type of cheese not necessarily made in Cheddar, in the UK. But any country wanting to make an exception for these reasons must be willing to negotiate with the country which wants to protect the geographical indication in question.
The agreement provides for further negotiations in the WTO to establish a multilateral system of notification and registration of geographical indications for wines. These are now part of the Doha Development Agenda and they include spirits. Also debated in the WTO is whether to negotiate extending this higher level of protection beyond wines and spirits.
Under the TRIPS Agreement, industrial designs must be protected for at least 10 years. Owners of protected designs must be able to prevent the manufacture, sale or importation of articles bearing or embodying a design which is a copy of the protected design.
Patents
The agreement says patent protection must be available for inventions for at least 20 years. Patent protection must be available for both products and processes, in almost all fields of technology. Governments can refuse to issue a patent for an invention if its commercial exploitation is prohibited for reasons of public order or morality. They can also exclude diagnostic, therapeutic and surgical methods, plants and animals (other than microorganisms), and biological processes for the production of plants or animals (other than microbiological processes).
Plant varieties, however, must be protectable by patents or by a special system (such as the breeder's rights provided in the conventions of UPOV - the International Union for the Protection of New Varieties of Plants).
The agreement describes the minimum rights that a patent owner must enjoy. But it also allows certain exceptions. A patent owner could abuse his rights, for example by failing to supply the product on the market. To deal with that possibility, the agreement says governments can issue "compulsory licences", allowing a competitor to produce the product or use the process under licence. But this can only be done under certain conditions aimed at safeguarding the legitimate interests of the patent-holder.
If a patent is issued for a production process, then the rights must extend to the product directly obtained from the process. Under certain conditions alleged infringers may be ordered by a court to prove that they have not used the patented process.
An issue that has arisen recently is how to ensure patent protection for pharmaceutical products does not prevent people in poor countries from having access to medicines - while at the same time maintaining the patent system's role in providing incentives for research and development into new medicines. Flexibilities such as compulsory licensing are written into the TRIPS Agreement, but some governments were unsure of how these would be interpreted, and how far their right to use them would be respected.
A large part of this was settled when WTO ministers issued a special declaration at the Doha Ministerial Conference in November 2001. They agreed that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. They underscored countries' ability to use the flexibilities that are built into the TRIPS Agreement. And they agreed to extend exemptions on pharmaceutical patent protection for least-developed countries until 2016. On one remaining question, they assigned further work to the TRIPS Council - to sort out how to provide extra flexibility, so that countries unable to produce pharmaceuticals domestically can import patented drugs made under compulsory licensing. A waiver providing this flexibility was agreed on 30 August 2003.
Integrated circuits layout designs
The basis for protecting integrated circuit designs ("topographies") in the TRIPS agreement is the Washington Treaty on Intellectual Property in Respect of Integrated Circuits, which comes under the World Intellectual Property Organization. This was adopted in 1989 but has not yet entered into force. The TRIPS agreement adds a number of provisions: for example, protection must be available for at least 10 years.
Undisclosed information and trade secrets
Trade secrets and other types of "undisclosed information" which have commercial value must be protected against breach of confidence and other acts contrary to honest commercial practices. But reasonable steps must have been taken to keep the information secret. Test data submitted to governments in order to obtain marketing approval for new pharmaceutical or agricultural chemicals must also be protected against unfair commercial use.
Curbing anti-competitive licensing contracts
The owner of a copyright, patent or other form of intellectual property right can issue a licence for someone else to produce or copy the protected trademark, work, invention, design, etc. The agreement recognizes that the terms of a licensing contract could restrict competition or impede technology transfer. It says that under certain conditions, governments have the right to take action to prevent anti-competitive licensing that abuses intellectual property rights. It also says governments must be prepared to consult each other on controlling anti-competitive licensing.
Having intellectual property laws is not enough. They have to be enforced. This is covered in Part 3 of TRIPS. The agreement says governments have to ensure that intellectual property rights can be enforced under their laws, and that the penalties for infringement are tough enough to deter further violations. The procedures must be fair and equitable, and not unnecessarily complicated or costly. They should not entail unreasonable time-limits or unwarranted delays. People involved should be able to ask a court to review an administrative decision or to appeal a lower court's ruling.
The agreement describes in some detail how enforcement should be handled, including rules for obtaining evidence, provisional measures, injunctions, damages and other penalties. It says courts should have the right, under certain conditions, to order the disposal or destruction of pirated or counterfeit goods. Wilful trademark counterfeiting or copyright piracy on a commercial scale should be criminal offences. Governments should make sure that intellectual property rights owners can receive the assistance of customs authorities to prevent imports of counterfeit and pirated goods.
Technology transfer
Developing countries in particular, see technology transfer as part of the bargain in which they have agreed to protect intellectual property rights. The TRIPS Agreement includes a number of provisions on this. For example, it requires developed countries' governments to provide incentives for their companies to transfer technology to least-developed countries.
Transition arrangements: 1, 5 or 11 years or more
When the WTO agreements took effect on 1 January 1995, developed countries were given one year to ensure that their laws and practices conform with the TRIPS agreement. Developing countries and (under certain conditions) transition economies were given five years, until 2000. Least-developed countries have 11 years, until 2006 - now extended to 2016 for pharmaceutical patents.
If a developing country did not provide product patent protection in a particular area of technology when the TRIPS Agreement came into force (1 January 1995), it has up to 10 years to introduce the protection. But for pharmaceutical and agricultural chemical products, the country must accept the filing of patent applications from the beginning of the transitional period, though the patent need not be granted until the end of this period. If the government allows the relevant pharmaceutical or agricultural chemical to be marketed during the transition period, it must - subject to certain conditions - provide an exclusive marketing right for the product for five years, or until a product patent is granted, whichever is shorter.
Subject to certain exceptions, the general rule is that obligations in the agreement apply to intellectual property rights that existed at the end of a country's transition period as well as to new ones.
Agreement on Trade Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods Back to top
The agreement recognises that widely varying standards in the protection and enforcement of intellectual property rights and the lack of a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods have been a growing source of tension in international economic relations. Rules and disciplines were needed to cope with these tensions. To that end, the agreement addresses the applicability of basic GATT principles and those of relevant international intellectual property agreements; the provision of adequate intellectual property rights; the provision of effective enforcement measures for those rights; multilateral dispute settlement; and transitional arrangements.
Part I of the agreement sets out general provisions and basic principles, notably a national-treatment commitment under which the nationals of other parties must be given treatment no less favourable than that accorded to a party's own nationals with regard to the protection of intellectual property. It also contains a most-favoured-nation clause, a novelty in an international intellectual property agreement, under which any advantage a party gives to the nationals of another country must be extended immediately and unconditionally to the nationals of all other parties, even if such treatment is more favourable than that which it gives to its own nationals.
Part II addresses each intellectual property right in succession. With respect to copyright, parties are required to comply with the substantive provisions of the Berne Convention for the protection of literary and artistic works, in its latest version (Paris 1971), though they will not be obliged to protect moral rights as stipulated in Article 6bis of that Convention. It ensures that computer programs will be protected as literary works under the Berne Convention and lays down on what basis data bases should be protected by copyright. Important additions to existing international rules in the area of copyright and related rights are the provisions on rental rights. The draft requires authors of computer programmes and producers of sound recordings to be given the right to authorize or prohibit the commercial rental of their works to the public. A similar exclusive right applies to films where commercial rental has led to widespread copying which is materially impairing the right of reproduction. The draft also requires performers to be given protection from unauthorized recording and broadcast of live performances (bootlegging). The protection for performers and producers of sound recordings would be for no less than 50 years. Broadcasting organizations would have control over the use that can be made of broadcast signals without their authorization. This right would last for at least 20 years.
With respect to trademarks and service marks, the agreement defines what types of signs must be eligible for protection as a trademark or service mark and what the minimum rights conferred on their owners must be. Marks that have become well-known in a particular country shall enjoy additional protection. In addition, the agreement lays down a number of obligations with regard to the use of trademarks and service marks, their term of protection, and their licensing or assignment. For example, requirements that foreign marks be used in conjunction with local marks would, as a general rule, be prohibited.
In respect of geographical indications, the agreement lays down that all parties must provide means to prevent the use of any indication which misleads the consumer as to the origin of goods, and any use which would constitute an act of unfair competition. A higher level of protection is provided for geographical indications for wines and spirits, which are protected even where there is no danger of the public's being misled as to the true origin. Exceptions are allowed for names that have already become generic terms, but any country using such an exception must be willing to negotiate with a view to protecting the geographical indications in question. Furthermore, provision is made for further negotiations to establish a multilateral system of notification and registration of geographical indications for wines.
Industrial designs are also protected under the agreement for a period of 10 years. Owners of protected designs would be able to prevent the manufacture, sale or importation of articles bearing or embodying a design which is a copy of the protected design.
As regards patents, there is a general obligation to comply with the substantive provisions of the Paris Convention (1967). In addition, the agreement requires that 20-year patent protection be available for all inventions, whether of products or processes, in almost all fields of technology. Inventions may be excluded from patentability if their commercial exploitation is prohibited for reasons of public order or morality; otherwise, the permitted exclusions are for diagnostic, therapeutic and surgical methods, and for plants and (other than microorganisms) animals and essentially biological processes for the production of plants or animals (other than microbiological processes). Plant varieties, however, must be protectable either by patents or by a sui generis system (such as the breeder's rights provided in a UPOV Convention). Detailed conditions are laid down for compulsory licensing or governmental use of patents without the authorization of the patent owner. Rights conferred in respect of patents for processes must extend to the products directly obtained by the process; under certain conditions alleged infringers may be ordered by a court to prove that they have not used the patented process.
With respect to the protection of layout designs of integrated circuits, the agreement requires parties to provide protection on the basis of the Washington Treaty on Intellectual Property in Respect of Integrated Circuits which was opened for signature in May 1989, but with a number of additions: protection must be available for a minimum period of 10 years; the rights must extend to articles incorporating infringing layout designs; innocent infringers must be allowed to use or sell stock in hand or ordered before learning of the infringement against a suitable royalty: and compulsory licensing and government use is only allowed under a number of strict conditions.
Trade secrets and know-how which have commercial value must be protected against breach of confidence and other acts contrary to honest commercial practices. Test data submitted to governments in order to obtain marketing approval for pharmaceutical or agricultural chemicals must also be protected against unfair commercial use.
The final section in this part of the agreement concerns anti-competitive practices in contractual licences. It provides for consultations between governments where there is reason to believe that licensing practices or conditions pertaining to intellectual property rights constitute an abuse of these rights and have an adverse effect on competition. Remedies against such abuses must be consistent with the other provisions of the agreement.
Part III of the agreement sets out the obligations of member governments to provide procedures and remedies under their domestic law to ensure that intellectual property rights can be effectively enforced, by foreign right holders as well as by their own nationals. Procedures should permit effective action against infringement of intellectual property rights but should be fair and equitable, not unnecessarily complicated or costly, and should not entail unreasonable time-limits or unwarranted delays. They should allow for judicial review of final administrative decisions. There is no obligation to put in place a judicial system distinct from that for the enforcement of laws in general, nor to give priority to the enforcement of intellectual property rights in the allocation of resources or staff.
The civil and administrative procedures and remedies spelled out in the text include provisions on evidence of proof, injunctions, damages and other remedies which would include the right of judicial authorities to order the disposal or destruction of infringing goods. Judicial authorities must also have the authority to order prompt and effective provisional measures, in particular where any delay is likely to cause irreparable harm to the right holder, or where evidence is likely to be destroyed. Further provisions relate to measures to be taken at the border for the suspension by customs authorities of release, into domestic circulation, of counterfeit and pirated goods. Finally, parties should provide for criminal procedures and penalties at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies should include imprisonment and fines sufficient to act as a deterrent.
The agreement would establish a Council for Trade-Related Aspects of Intellectual Property Rights to monitor the operation of the agreement and governments' compliance with it. Dispute settlement would take place under the integrated GATT dispute-settlement procedures as revised in the Uruguay Round.
With respect to the implementation of the agreement, it envisages a one-year transition period for developed countries to bring their legislation and practices into conformity. Developing countries and countries in the process of transformation from a centrally-planned into a market economy would have a five-year transition period, and least-developed countries 11 years. Developing countries which do not at present provide product patent protection in an area of technology would have up to 10 years to introduce such protection. However, in the case of pharmaceutical and agricultural chemical products, they must accept the filing of patent applications from the beginning of the transitional period. Though the patent need not be granted until the end of this period, the novelty of the invention is preserved as of the date of filing the application. If authorization for the marketing of the relevant pharmaceutical or agricultural chemical is obtained during the transitional period, the developing country concerned must offer an exclusive marketing right for the product for five years, or until a product patent is granted, whichever is shorter.
Subject to certain exceptions, the general rule is that the obligations in the agreement would apply to existing intellectual property rights as well as to new ones.
1 Kalyan C. Kankanala, LL.M. (Intellectual Property, Commerce and Technology), J.S.D. (pending, National Law School of India University); Director of Viswamedho Consultants (www.patentlawsolutions.com) (reprinted with permission).
2 Article 18: Obligations concerning Technological Measures: Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law. Article 18, WIPO PERFORMANCES AND PHONOGRAMS TREATY, adopted by the Diplomatic Conference on December 20, 1996.
3 Article 19: Obligations concerning Rights Management Information: (1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty: (i) to remove or alter any electronic rights management information without authority; (ii) to distribute, import for distribution, broadcast, communicate or make available to the public, without authority, performances, copies of fixed performances or phonograms knowing that electronic rights management information has been removed or altered without authority. Article 19, WIPO PERFORMANCES AND PHONOGRAMS TREATY, adopted by the Diplomatic Conference on December 20, 1996.
4 The home video market was originally conceived on the economic assumption that most people would choose to rent rather than own a motion picture. The pricing was set generally at $80.00 to $100.00 per copy, a price at which few consumers elected to buy the tape, but which provided the video rental companies a modest return. To generate the same revenue, a producer would have to sell slightly more than four times as many tapes at $20.00 to $25.00 to make the same income. (The "slightly more" reflects the packaging and distribution costs.) Legend suggests that Steven Spielberg recognized this axiom of pricing and created the "sell-through" market with the release of E.T. priced to encourage consumer purchases.
5 Chair Professor of Entrepreneurship, Indian Institute of Management, Ahmedabad and Executive Vice Chair, National Innovation Foundation, Department of Science and Technology, Government of India, Ahmedabad. See, http://www.sristi.org http://www.gian.org, http://www.nifindia.org.
6 http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm