BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE AND RECOMMENDATIONS FOR VIETNAMESE COPYRIGHT LAW

MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE AND RECOMMENDATIONS FOR VIETNAMESE COPYRIGHT LAW Major

MINISTRY OF EDUCATION AND TRAINING

FOREIGN TRADE UNIVERSITY

DISSERTATION

BALANCE OF INTERESTS IN COPYRIGHT LAWS

IN DIGITAL AGE AND RECOMMENDATIONS

FOR VIETNAMESE COPYRIGHT LAW

Major: International Trade Policy and Law

PHẠM HƯƠNG LIÊN

Ha Noi – 2016

MINISTRY OF EDUCATION AND TRAINING

FOREIGN TRADE UNIVERSITY

DISSERTATION

BALANCE OF INTERESTS IN COPYRIGHT LAWS

IN DIGITAL AGE AND RECOMMENDATIONS

FOR VIETNAMESE COPYRIGHT LAW

Major: International Trade Policy and Law

Full Name: Phạm Hương Liên

Supervisor: Assoc Prof Dr Hồ Thúy Ngọc

Ha Noi – 2016

STATEMENT OF ORIGINAL AUTHORSHIP

The work contained in this thesis has not been previously submitted to meet requirements for an award at this or any other higher education institution I certify that this is my own work and that the use of material from other sources has been

properly and fully acknowledged in the text

ACKNOWLEDGEMENTS

I would first like to thank my thesis advisor Assoc Prof Dr Hồ Thúy Ngọc – Dean of Faculty of International Education at Foreign Trade University The door to her office was always open whenever I ran into a trouble spot or had a question about my research or writing She consistently allowed this paper to be my own work, but steered me in the right the direction whenever she thought I needed it I could not have been able to complete this thesis without her positive suggestions and instructions

I would also like to give my sincere thanks to the authors who provided me with valuable materials for my dissertation

Gratitude is to the readers as well, whose feedback will contribute significantly to improving the thesis

INTRODUCTION 1

1 Rationale 1

2 Scope of research 2

3 Research questions 2

4 Methodologies 3

5 Literature review 3

6 Dissertation structure 5

CHAPTER 1: LITERATURE REVIEW ON BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE 6

1.1 Copyright laws in digital age 6

1.1.1 Copyright laws 6

1.1.1.1 Origin and development of copyright laws 6

1.1.1.2 Dual goals of copyright laws 8

1.1.1.3 What are copyrights and related rights? 10

1.1.2 Digital age 12

1.1.2.1 What is difference about “digital age”? 12

1.1.2.2 Digital age seen from the copyright perspective 13

1.2 Balance of interests 17

1.2.1 Copyright interests 17

1.2.2 What is “balance”? 19

1.2.3 “Balance” in copyright laws 20

1.2.4 Current imbalances of interests in digital age 21

1.2.4.1 Extended duration of copyright protection 22

1.2.4.2 Expansive scope of copyright protection and restricted copyright limitations 23

1.2.4.3 Newly added protection on technological measures 24

1.2.4.4 Media concentration and restricted freedom of user-generated creations 26

1.3 Regulations on balance of interests 27

1.3.1 International regulations 27

1.3.1.1 Protection of authors’ interests 27

1.3.1.2 Protection of public interests 30

1.3.2 Regulations in some countries 35

1.3.2.1 Australia 35

1.3.2.2 The United States 39

CHAPTER 2: VIETNAMESE COPYRIGHT LAW ON BALANCE OF INTERESTS IN DIGITAL AGE 45

2.1 Protection of authors’ interests in relation with public interests 45

2.1.1 Protection of authors’ interests in subject matter of copyrights and related rights 45

2.1.2 Protection of authors’ interests in protection conditions of copyrights and related rights 48

2.1.3 Protection of authors’ interests in contents of copyrights and related rights 49

2.1.4 Protection of authors’ interests in duration of copyrights and related rights 53

2.1.5 Protection of authors’ interests in assignment and transference of copyrights and related rights 54

2.2 Protection of public interests in relation with authors’ interests 55

2.2.1 Protection of public interests in subject matter excluded from copyright protection 55

2.2.2 Protection of public interests in limitations on copyrights and related rights 57

2.2.2.1 Uncompensated limitations 57

2.2.2.2 Compensated limitations 59

2.2.3 Protection of public interests in duration of copyrights and related rights 60

2.2.4 Protection of public interests in assignment and transference of copyrights and related rights 61

2.3 Findings 62

2.3.1 Is Vietnamese copyright law balanced or unbalanced in terms of interests? 62

2.3.2 Is Vietnamese copyright law capable of maintaining balance of interests in digital age? 65

2.3.2.1 Right to reproduce the work 65

2.3.2.2 Right to communicate the work to the public 68

2.3.2.3 Limitations and exceptions 69

2.4 Case studies 72

2.4.1 Nguyen Quang Tuan v Dao Thai Ton 72

2.4.2 First New Co v Australia International English School & Vietnam Australian English Association 73

2.4.3 Comments 74

CHAPTER 3: RECOMMENDATIONS TO VIETNAMESE COPYRIGHT LAW ON BALANCE OF INTERESTS IN DIGITAL AGE 78

3.1 Extending copyright regulations in digital age 78

3.2 Technological protection measures 81

3.3 Fair dealing or Fair use? 83

3.3.1 Fair use is flexible and adaptable to changes 83

3.3.2 Fair use is certain and predictable 85

3.3.3 Fair use is the better choice for Vietnam 87

3.4 Substantive limitations and exceptions 88

3.4.1 Limitations and exceptions for educational purposes 88

3.4.2 Limitations and exceptions for libraries and archives 95

3.4.3 Limitations and exceptions for persons with disabilities 101

CONCLUSION 105

REFERENCE LIST 108

ABBREVIATIONS AND ACRONYMS

Berne Convention Berne Convention for the Protection of Literary and Artistic

Works

TRIPS Agreement Agreement of Trade-Related Aspects of Intellectual Property

Rights WCT World Intellectual Property Organization Copyright Treaty WIPO World Intellectual Property Organization

WPPT World Intellectual Property Organization Performances and

Phonograms Treaty

INTRODUCTION

1 Rationale

To every country, the encouragement of creativity and inspiration always plays an important role in its policies as it is the key to development and progression Copyright law is established for the purpose of protecting the rights and interests of the copyright work author Once there is effective protection of rights, authors feel certain about their future of reaping the fruits of their own hard work and that is the best way to keep them create better works of art However, during its development, the copyright law has always been affected by another side

of view which protects the welfare of public and holds that people should be given the right to use and exploit the works Advocates of this view believe that the works should be used to help the society become better and more well-knowledged because “works are not created out of thin air and most of them are actualized by borrowing from former works and materials.” (Hua, 2014, p.39) Consequently, the balance of interests between work authors and society might be considered the driving power of copyright law development and improvement

Nowadays, a new issue has emerged as a demand for significant copyright law reform – technologies The Internet has made it easier than ever for anyone to access, use, reproduce, or disseminate different forms of copyright works, particularly at no cost While advocates of copyright as a private property of the authors support the expansion and strengthening of copyright law to fairly preserve the interests of authors, public policy supporters are concerned that stricter protection of copyright law will pose a threat to the information dissemination of the public and therefore the knowledge and culture of society will be limited

As a consequence, the question of how to maintain the balance of interests in copyright law under the digital age has been asked for a long time since the advancement of technologies and answers for what is the limitation to copyright law expansion need to be found

In Vietnam, where copyright property is not respected to its true value, the strengthening of copyright law in the digital network environment is of critical importance if the Government wants to encourage creative works and build up the country’s knowledge and culture to a higher level

Thus, I decided to choose “Balance of Interests in Copyright Laws in Digital Age and Recommendations for Vietnamese Copyright Law” as my master dissertation

2 Scope of research

This study is conducted from research into regulations on balance of interests

in international treaties and certain developed countries including the US and Australia While monopoly rights granted to creators of the works protect authors’ interests, the tool for preserving users’ interests is the three-step test (Berne Convention and other international treaties), the fair dealing and fair use doctrines (the US, Australia) Changes made by these countries to copyright law in digital age

in order to maintain balance of interests are also analyzed From those sources of laws, the thesis focuses on how balance of interests is protected in Vietnam copyright law and provides recommendations to improve Vietnam legislations in digital age based on developed countries’ experience

Furthermore, it should be noted that whereas Vietnam joined several copyright conventions and treaties and domestic copyright law is to be consistent with their requirements, analysis on Vietnam’s commitments in respective treaties is out of the reach of this master thesis Consequently, recommendations in the study are mainly based on Vietnam’s situation only

3 Research questions

Question 1 What is balance of interests related to works in copyright laws?

Why is it important to maintain balance of interests?

Question 2 How has the digital age affected the interests of copyrighted work

authors and the users of such works?

Question 3 How is Vietnam’s copyright law on balance of interests in digital

5 Literature review

Regarding English materials, there exist quite a plentiful of research and

paper The first trend is in balance in copyright “International Copyright Law and

“Fair Dealing” as a “User Right” by Myra J Tawfik (2005) explained the extent

to which the “user right” or “fair dealing” conforms to the normative framework established under the international copyright law system In this paper, “fair dealing” was explored under Canadian Copyright law, Berne Convention and

TRIPS Another one is “Rethinking the “Balance in Copyright”: 3 Parts to the

Balance, not just one!” by Ruth Rikowski, which innovatively put emphasis on

parts composing the balance of interests According to the writer, maintaining balance in copyright also requires balance within each half of the balance, which not many people pay attention to

In addition, the balance of interests in copyright in the emergence of

technology has also been mentioned in a number of works “Balance: Resolving the

Conundrum between Copyright and Technology” – Danilo Mandic (2011), Chapter

2 - “Balance of Interest in Copyright Systems and Imbalances Under Digital

Network Environments” – J J Hua, Toward a More Balanced Approach:

Rethinking and Readjusting Copyright Systems in the Digital Network Era (2014)

or “As I See It – Copyright in the Digital Age: Has the Balance of Interest Between

Owners and Users Really Changed?” – Against the Grain: Vol 22: Iss 6, Article

39, John Cox (2010) In these works, the writers showed the effects of the Internet and digital network to copyright and analyzed how countries have reacted to this by reforming their copyright laws They also make an analysis on what extent of such strengthening of the protection is enough so that the rights to disseminate information of users are still preserved

There has been research on balance of interests in certain countries as well, for

example Canada, America, or Australia “Protecting Speech or Copyright: A

Question of Balance” by Benjamin Cohen and “The Balance of Interests in US Copyright Law” by Michael J Remington and Kexin Li (2013) both provided an

inside look into the US copyright law “Interests in the Balance” by Teresa Scassa

explored the “underlying purpose of Canadian copyright as a balance between a series of competing interests with the consideration of “massive technological

changes” in Canada Besides, in “The Balancing Act of Copyright: The Copyright

Laws of Australia and the United States in the Digital Era” (2003), Dilan J

Thampapillai analyzed how Australia and the United States, two common law countries, have adjusted their jurisdiction to the digital era In particular, this essay focused on fair use, fair dealing and digital rights management in the context of the balance of interests between the users and owners of copyright Another work

namely “How to Balance Interests: Comparative Legal Aspects on the Limitation of Copyright in International Law” by Tatiana Brazhnik (2014) even compared

limitations to exclusive rights of protected work authors in legal families, civil law countries have a “closed regime” of copyright limitations and common law countries have an “open regime” of copyright limitations

Despite such abundant analysis from English sources, there is not much attention paid to this issue in Vietnam yet Doctor Le Thi Nam Giang is one

dedicated person that had several works on balance of interests, including “Nguyên

tắc cân bằng quyền và lợi ích của chủ SHTT và lợi ích xã hội” and “Nguyên tắc cân bằng quyền và lợi ích của chủ SHTT và lợi ích xã hội trong bắt buộc chuyển giao quyền sử dụng sáng chế” One thesis named “Cân bằng lợi ích trong bảo hộ quyền

sở hữu công nghiệp đối với sáng chế” by Nguyen Van Bay puts emphasis on the

balance of interests in patent law However, none of these materials provides a close look at copyright law in Vietnam and assesses the current situation of balance of interests in Vietnam copyright system

CHAPTER 1: LITERATURE REVIEW ON BALANCE OF INTERESTS IN

COPYRIGHT LAWS IN DIGITAL AGE 1.1 Copyright laws in digital age

1.1.1 Copyright laws

1.1.1.1 Origin and development of copyright laws

The most initial concept of modern copyright existed in the Roman publishing system (Ploman, 1980) Libraries were established to lend manuscripts and receive land, cattle or money in exchange, which was one of the earliest type of remuneration for copies of literary works

The emergence of printing technology promoted the birth of modern copyright laws Thanks to printing technology, the stationers who used to reproduced the texts by hand invested in facilities and turned their book business into “a mass production” (Hua, 2014) Printing privileges were granted to book publishers in Italy and other European countries such as Germany, Netherlands, and the United Kingdom since the 15th century to encourage the development of book publishing industry More than that, leading book publishers also reached noninterference agreements to protect their businesses against piracy and competition (Bettig, 1997)

In the United Kingdom, the privilege was in the form of the Licensing Act of

1662 (Kim, 2005) When it expired in 1694 and failed to be renewed, stationers switched their lobbying target from monopolization of the market for themselves to the legal rights of authors which were natural and inherent, leading to the passing of the Statute of Anne in 1710 (Bettig, 1997) This is considered the first copyright law

in the world Under the statute, copyright protection for existing works in the Stationers Register was 21 years and the protection term for new works finished after the statute became effective was 14 years upon expiration with another 14 years of protection granted afterwards The Statute of Anne focused only on property rights, and did not mention the moral right of authors To fully enjoy the rewards of having property rights, an author had to assign his/her copyright to the stationers (Hua, 2014)

Following the United Kingdom, from 1783 to 1786, 12 original states in the United States issued copyright laws In 1790, the Copyright Act was passed granting authors “exclusive rights to print, reprint, publish and sell their works” (Hua, 2014)

A common feature of copyrights in their early period is that there were two views coexisted The legislators of the Statute of Anne took on a public policy view

to restrict the market monopolization by granting authors with a limited time of

exclusive rights (Hua, 2014), describing it as “an Act for the encouragement of

learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.” However, facing the risk of losing

market monopolization, the stationers attempted to regain their “perpetual right” on

printing and publishing They took on a private property stance by claiming that copyright is a natural right and authors’ original works should be protected without

a finite term and so should stationers owning a copyright through transfers by the authors (Kim, 2005)

The base for such natural copyright was John Locke's labor theory of property According to Locke, people had the natural right to owning their bodies, as a consequence, “the labor of his body and the work of his hands, are properly his.” (Locke, 1974, p.134) Even though intangible assets like literary and artistic works were not mentioned in his labor theory of property, stationers and supporters of the private property view have used Locke's labor theory of property and expanded it to intangible goods (Hua, 2014)

Nevertheless, the public policy view appeared to prevail and determined the modern copyright legislations The “natural right” aspect was rejected by the courts

in the United Kingdom (Donaldson v Beckett, 1774) and the United States (Wheaton v Peters, 1834) In both countries, the courts found that copyright is a

limited right created by the legislature under statutes and that an author only enjoys his/her natural copyright when his/her work is not published Sir John Darylmple once questioned: “What property can a man have in ideas? While he keeps them to himself they are his own, when he publishes them they are his no longer”

(Goldstein, 2003, p.39) In the case Donaldson v Beckett, Lord Camden also stated

that “knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated What situations would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work to be put forth?” The importance of the Donaldson and Wheaton cases encouraged lawmakers in the United Kingdom and the United States to be “more concerned about public welfare” and established trend in copyright systems that focused more

on “granting a limited monopoly to authors and securing access by the public” instead of infinite copyright protection as a natural right (Hua, 2014)

The concept of intellectual property was introduced into South and East Asia much later China passed its copyright law in 1991 with its prime purpose of public

welfare and cultural prosperity stated in Article I: “This Law is enacted, in

accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the progress and flourishing of socialist culture and sciences”

1.1.1.2 Dual goals of copyright laws

Based on the development of copyright laws, especially the Statue of Anne

1710, the “dual goals” of copyright systems are to “protect creations and intellectual labor” of the work authors and to “promote advancement of knowledge, learning, culture and art” of the public (Hua, 2014)

According to Locke, “people are entitled to hold, as property, whatever they produce by their own initiative, intelligence, and industry” (Craig, 2002) The authors are entitled to exclusive rights to control the use and distribution of the works made from their own mental labor and representing their personality Such exclusive rights are incentives to guarantee continous creation subsequent to the works The remunerations paid to the authors recognize their attempts and

contribution to society and also play the role of material and financial compensation for what the authors spent on creating the works On the other hand, many authors

do not create for the purpose of earning money but expanding their reputations Therefore, in addition to property rights of the authors, personal rights are protected

in copyright systems Personal rights include the right of atribution, mutilations and distortions (Hua, 2014) This first goal of copyright systems can be seen in judicial

decisions in copyright disputes In Harper & Row v Nation Enterprises, the

Supreme Court stated that “the rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors” (Hua, 2014) Nevertheless, protecting authors’ interests is not the only purpose of copyright systems It should be noted that copyright laws are created also to “safeguard public interest by promoting advancement of knowledge and learning, preserving public domain and forming a democratic civil society” (Hua, 2014) This purpose is reflected through the following three aspects

First, the purpose of promoting the advancement of knowledge and learning is specified in constitutions and copyright laws The Report of the Register of Copyrights on the General Revision of the U.S Copyright Law pointed out that the primary goal of copyright is to “foster the growth of learning and culture for the public welfare” As mentioned above, Article 1 of the Copyright Law of China demonstrated this goal as “promoting the development and prosperity of socialist culture and science’ Court decisions were consistent with this ultimate purpose, in

Mazer v Stein, “the encouragement of individual effort by personal gain is the best

way to advance public welfare through the talents of authors and investors in

‘Science and useful Arts’” In Twentieth Century Music Corp v Aiken, the court

stated that “the immediate effect of our copyright law is to secure a fair return for an author’s creative labor But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good The sole interest of the United States and the primary object in conferring the monopoly lie(s) in the general benefits derived by the public from the labors of authors” (Hua, 2014)

Second, copyright systems ought to preserve the public domain, which means the protection of copyrights should be restricted to a certain period of time and within a certain scope The owners’ exclusive rights can be fully enforced unless it

is outside of the scope and public users can use them at no cost

Third, copyright systems are also in charge of forming a democratic civil society Copyright systems play a role of “an engine for creative and free expression” (Hua, 2014) Under the protection of copyright systems, authors are encouraged to develop their ideas on a variety of topics including political, economic, cultural and recreational issues, which is the foundation for a democratic civil society

1.1.1.3 What are copyrights and related rights?

Copyrights are temporarily limited monopolies given to authors to allow or prohibit different uses of their work Copyright reflects in most countries two sets of interests generally referred to as property rights (or economic rights) and personal rights (or moral rights) Property rights include the right to record, to perform, present or show, to reproduce, to distribute, to broadcast or rebroadcast By exercising property rights, authors can earn remuneration for his living In addition

to the property rights, copyright protects the personal relationship, or moral rights,

of the author to the work as an expression of his creativity and personality Moral rights protect him from acts that would damage the integrity of his work In addition, the author can determine whether, when and under which conditions his work shall be made public Furthermore, he has the right to be named “author.” While economic rights can be licensed or transferred to others, moral rights cannot The term neighbouring rights (or related rights) is usually understood as rights that protect the interests of certain groups of right holders, whose activities are associated with the reproduction and dissemination of works, such as:

(i) Performers;

(ii) Producers of sound recordings;

(iii) Broadcasting organizations

Protection under neighbouring rights is similar to copyright, although it is often more limited and of shorter duration The labelling as “neighbouring/related” indicates some degree of relationship between these rights and copyright, and at the same time distinguishes them from copyright

The object of copyrights and related rights is literary and artistic works To be protected, a work has to be more than a mere idea The distinction between protected works and ideas is considered the most important part of copyright law The protection of a given work applies to the expressions of ideas Accordingly, in order for copyright in a work to be infringed, one has to copy the form in which the ideas are expressed The mere use of ideas found in a work does not commit a copyright infringement For example, the author who has written an article on how

to build a boat will be protected against the making and selling of copies of the article (the expression) without his or her consent However, copyright protection cannot prevent anyone from using the instructions (the idea) in the article so as to build a boat, nor to write another article on the same subject

In order to illustrate what forms of expression may be protected, most copyright laws contain an elaborate, but usually not exhaustive, list of examples The enumerated categories generally comprise articles, novels, poems, songs, plays, choreography, applied art and architecture, alongside more recent additions such as computer programs and, in certain countries, databases Scientific theories, marketing concepts and algorithms could be given as examples of unprotected ideas

Furthermore, to qualify for copyright protection an expression must have a sufficient degree of originality Broadly speaking, a work is original when it reflects the personality of its creator Yet, there are no universally agreed standards on how

to assess originality

1.1.2 Digital age

1.1.2.1 What is difference about “digital age”?

From what started with the printing press in the 15th century and continued into the 21st century, from the invention of radio and television to the establishment of the Internet, digitization and global networking - currently being discussed under different keywords “multimedia,” “Internet,” “data superhighway” and “global information society” – markedly change the methods people communicate with one another

In his article, Marshall A Leaffer (1995) described three aspects of digital age that brings significance differences to copyright systems People in the digital enviroment are able “to store, manipulate, and transmit data in ways that greatly transcend our previous techniques of storage, replication, and dissemination of information”

Firstly, data storage has been revolutionized and improved at a phenomenal

speed Digitization allows information to be recorded in a binary format in “0’s” and “l’s” Therefore, with the development of digital technologies, there exists now

a universal format to record any types of information in the world Together with the advances in compression techniques, data storage devices are getting smaller than ever According to Leaffer (1995), one compact disk can digitally store a twenty-six volume encyclopedia, not only words, but images and sounds as well In

1980, the first hard disk drive having gigabyte capacity was as big as a refrigerator Nowadays, hundreds of gigabytes of storage capacity are stored in computers and other handheld devices are capable of storing several gigabytes

Secondly, data manipulation is conducted in ways that were pure science

fiction in the past Once a work has been digitized, it is completely possible for software programs to isolate and modify any part of the work For instance, an image taken by a digital camera can easily be edited and particular aspects of the image such as colors, contrasts, or shapes can be separated Moreover, digitization allows us to modify data without degrading it For example, songs can be cut,

edited, added effects and mixed together to create a new musical work whose quality is comparable to the original ones

Thirdly, data transmission has also changed dramatically in the digital era

Without rapid development in communications networking, transmission of data is limited to one-to-one communication (e.g telephone communication) or one-to-many communications (e.g broadcasting) In the digital era, data can be trasmitted

by electronic means from everyone to anywhere with no limitation on the number of transmitted copies

1.1.2.2 Digital age seen from the copyright perspective

As mentioned above, copyright laws promote creativity and innovation It does this by providing exclusive property rights to copyright owners to control certain uses of their works At the same time, copyright law also seeks to promote the social benefits that arise from a free flow of knowledge and expression Exceptions to copyright help achieve this second objective

In the past, there were times when new technology emerged and put the dual goals of copyright systems under pressure For example, photocopy machines or video-cassette recorders appeared and allowed copyright works to be copied easily and at a low cost The use of these technologies threatened to reduce revenues of authors and producers, which would in turn threaten the future supply of creative works However, there were factors counteracting the drawbacks Whereas duplicating copyright material was often inexpensive, the quality of the copies was generally degraded Also copyright owners often found ways to exploit the technologies that generated new source of income and even increased market size overall

Nowadays, the rapid developments in digital technologies pose a far greater challenge for copyright law, perhaps the most significant threat that the copyright regime has ever confronted On the one hand, digital technologies create potential new revenue sources for copyright owners by allowing protected material to be sold, licensed and distributed in ever new ways On the other hand, Noam describes

contemporary copyright law as “the copyright - crisis era” (Steinmueller, 2008), whilst other academics have commented the digital era has “propelled the music industry into chaos” (Spinello, 2006), that “the emerging global communication network erodes intellectual copyright control,” (McNair, 2006) and that “challenges

to copyright in this area are made particularly apparent by the wide acceptance of downloading… which copyright protection has been altogether ineffective in managing” (Golvan, 2007) Innovations to personal computers and consumer electronics have altered user behaviours and expectations It is now easy to store huge quantities of music on a personal computer to be further copied on CDs or in the embedded memory of a portable player With the assistance of computer softwares, users are no longer only passive consumers of digital content but can make changes to it, partaking in the creative chain Materials in digital form can be flawlessly and inexpensively reproduced and distributed worldwide through the Internet Copyright owners therefore are worried that unauthorized copying and redistribution will destroy the value of their works It also creates legitimate enforcement concerns for them In short, digital technology is causing growing tension between copyright owners who see a commercial necessity to exercise greater control over access to and distribution of their works and copyright users who have got accustomed to exploiting materials relatively freely using new technologies

According to Pamela Samuelson and Randall Davis (2000), the trio of technological advances that have led to far-reaching changes in the economics of information include: (1) digitized information has changed reproduction, (2) computer networks have changed distribution, and (3) the World Wide Web has changed publication

First, digitized information considerably reduces the difficulties and cost of reproduction (Samuelson & Davis, 2000) Moreover, it produces perfect replicas, each of which is a seed for further flawless copies An obvious advantage of these characteristics for rights holders is reduced production costs, but users may also benefit from low cost, perfect digital copies This results in an erosion of previously

natural obstacles to infringement, which is the expense of reproduction and the decreasing quality of successive generations of copies in analog media

Another reason that digitized information creates difficulties for copyright system is because access to digital information inevitably requires making copies, even if only temporary copies, of that information Running a computer program, for example, occurs by copying the program from disk to memory This action seems inconsequential to most computer scientists Yet, courts have ruled that merely turning on a computer loaded with programs by a repair service not licensed

to use the programs constituted copyright infringement because unauthorized copies

of programs were made in the random access memory of the computer Getting access to digital information by making temporary copies is, of course, deeply rooted in the way computers work: Use a computer to read a book, look at a picture, watch a movie, or listen to a song, and you inevitably make one or more copies Contrast this with the use of traditional media: Reading a book does not involve making a copy of it, nor does watching a movie, nor listening to a song This intimate connection between access and copying has considerable significance in the context of intellectual property protection because the right to control reproductions of protected works in copies has been a hallmark of the law of copyright (as the name of this law alone indicates) In the world of traditional media, there is an obvious distinction between access and reproduction, such that the copyright owner’s control of reproduction does not generally provide control over access But if access requires reproduction, the law has a dilemma Some copyright owners and professionals think that rights holders should have a right to control digital access because it involves reproduction Others are concerned that granting such rights will undermine traditional public access to information in unprecedented ways

Second, digital information also creates difficulties because it has changed the way information products are distributed (Samuelson & Davis, 2000) For more than two hundred years, the dominant model of IP transaction has been the sale of a physical copy of a work However, digital information is often licensed rather than

sold There is a substantial difference between the two types of transactions Sales involve the complete transfer of ownership rights in a copy from the vendor to the purchaser Copyright law explicitly anticipates the sale of intellectual property products and, by its “first-sale rule,” this law prevents copyright owners from controlling publicly distributed copies once sold into the marketplace The purchaser is thereafter free to lend, rent, or resell the purchased copy In that sense, copyright law follows IP products into the marketplace and promotes the continued dissemination of the information they contain The first sale rule thus enables bookstores and libraries to operate free from copyright owner control Licensing, however, constitutes a limited transfer of rights to use an item on stated terms and conditions Licenses are governed by contract law and, as such, are essentially a private agreement between two parties Whether or to what extent such licenses can override public policy considerations is a matter of contention The point here is simply that the difference in transaction type is significant

Distribution of materials has been substantially changed by computer networks Networks enable people to send digital information worldwide, cheaply and almost instantaneously As a consequence, it is easier and less expensive not only for a rights holder to distribute its work to the public, but also for individuals

or commercial infringers to distribute unauthorized copies The problem is even more serious when third parties illegally appropriate works created by others so as

to commercially exploit them

Third, the development of the World Wide Web has radically changed how works are published Using the World Wide Web, anyone is capable of becoming a publisher with worldwide reach The amazing variety of documents, opinions, articles, and works of all sorts on the Web show that millions of people worldwide are taking advantage of such capability Again, this has a dual character, bringing both potential (e.g., the vastly increased ease of publication) and challenge (the current upheaval in the publishing industry)

In short, copyright protection has been shaken by the advancements of digital technologies Authors of copyrighted works have to face threats of losing their

economic and moral benefits to infringers who make use of digital technologies The laws have not been able to keep up with the rapid changes in the digital world, even though countries are on their way adjusting their legislations to extend copyright protection against technological developments On the one hand, legal uncertainty and the feared loss of control may impede investments in the digital infrastructure and lead to an undesired restraint in making available attractive material On the other hand, numerous users fear that a strengthening of copyright

in the digital field will increasingly exclude them from enjoyment of works

In the face of such conflicting interests, it is necessary to arrive at a balance that is both reasonable and takes into account as far as possible all the legitimate interests involved

1.2 Balance of interests

1.2.1 Copyright interests

From the dual goals of copyright laws, the two broad groups that have opposing interests when it comes to copyright can be categorized as those who own copyrighted material (creators and owners) and those who use copyrighted material (users and society) (Elia, 2015) However, these two groups can consist of different subgroups that have their own individual demands and interests (Scassa, 2005)

On the one side of the spectrum are the copyright owners and creators Creators have four objectives: the reproduction and distribution of their work, receiving credit for their work, earning a financial reward for their work and the creative engagement with other works (Kretchmer, 2003 cited in Elia, 2015, p 20) The investors or producers only have one objective: the exclusivity and transferability of the rights, in order to gain a profit from their investment (Kretchmer, 2003 cited in Elia, 2015, p 20) Strong copyright rules are considered

to promote the creativity and innovation of the creators by providing financial incentives to continue producing their work, while also securing the financial profit

of the companies and associations that represent and invest in the creators According to Adduono (2015), the interests of this group are predominantly concerned with their economic interests, copyright must facilitate exploitation of

work Copyright law must provide incentives to encourage rights holders to create socially useful work and provide adequate financial remuneration for their efforts whilst preventing others from appropriating their expression and competing with them If copyright law does not facilitate this aim, rights holders are discouraged and the output of useful works diminishes, negatively impacting on society's knowledge base

On the other side of the spectrum are those who use the copyrighted material, who are the individual users or the entire society The term “user” (which is the one that is mostly used in copyright legislation and case law) implies some kind of active engagement with the material, whether for teaching purposes, for review, parody etc, which makes the user a potential creator (Helberger & Guibault, 2012, cited in Elia, 2015, p.20) From the point of view of this group, strong copyright protection is problematic, as it hinders the creative use of copyrighted material, and they argue that the rules on copyright enforcement are a threat to their fundamental rights However, as Scassa analyzed in her work (2000), beyond the interests of users of works lies the broader public interest as well as the public domain, which relates to the ability of the public to use works and the area where copyright protection does not apply (Adduono, 2015) The public interest in copyright law requires that knowledge is not only disseminated but that the public can use copyrighted works where necessary, “copyright's purpose is to encourage the dissemination of works, in order to promote public access to them” (Litman, 2002, cited in Adduono, 2015, p.4) Disseminating knowledge is essential because it enables the public to access works so they can be enjoyed, critiqued and developed The public domain, “is that territory where no intellectual property rights apply, a domain where everyone is free to enter” (Benabou and Dusollier, 2007 cited in Adduono, 2015, p.5) The public domain is a fundamental part of balancing copyright law and is one of the most important areas that represent the public interest (Adduono, 2015) Broadly speaking the public domain is traditionally seen

as the area where works fall into once copyright has expired The public domain includes “the wealth of information that is free from the barriers to access It is the

raw material from which new knowledge is derived and new cultural works are created” (Adduono, 2015) Besides encompassing works whose copyright has expired, the public domain can be interpreted much wider as relating to how and when the public access copyrighted works In order to secure the public interest outlined above, it is essential to have a robust public domain because it defines what works the public can access and what knowledge is free for public consumption, which is necessary to the social and economic well-being of society Excessive protection limits the public domain and inhibits future advancement

1.2.2 What is “balance”?

The generally accepted definition in regard to the ‘balance in copyright’ is the aim to maintain a balance between the rights of creators of works and the free flow

of information of these works (Rikowski, 2004)

In regard to, the accepted definition, the Committee on Copyright and Other Legal Matters (CLM) of the International Federation of Library Associations and Institutions (IFLA) outlines this quite clearly:

“The greater public interest is served in two ways: firstly, by giving authors

an incentive to create; and secondly, by encouraging the dissemination of new knowledge.” (CLM, 2002, p.2)

Furthermore, IFLA refers to the balance saying that it:

“…supports balanced copyright law that promotes the advancement of society

as a whole by giving support and effective protection for the interests of rightsholders as well as reasonable access in order to encourage creativity, innovation, research, education and learning.” (IFLA, 2000, revised 2001:1)

Gillian Davies when writing about copyright also refers to this overall balance

in general, saying that:

“The copyright system as it has developed over the past nearly 300 years, has created, in the public interest, a balance between the rights of the authors, on the

one hand, and the interest of the public in access to protected works, on the other.” (Davies, 2002, p.7)

Meanwhile, Paul Pedley makes an interesting and valid point when he says that, in reality, library and information professionals often find themselves playing a

‘piggy in the middle’ role when endeavouring to achieve this balance, and that:

“Library and information service professionals find themselves in a difficult situation playing the role of ‘piggy in the middle’, acting as guardians of intellectual property whilst at the same time being committed to supporting their users’ needs to gain access to copyright works and the ideas that they contain.” (Pedley, 2003, p 47)

Therefore, in essence striving to achieve this balance becomes necessary in order to ensure that knowledge, information and ideas continue to be both developed and disseminated Creators of works will have little incentive to create if they are not given any rights - and there are two types of rights here – moral and economic rights However, once they are given some rights it is also important to ensure that information flows as freely as possible – i.e that intellectual property rights do not unduly hinder the free flow of information

1.2.3 “Balance” in copyright laws

The term “balance” has not received mention in international copyright treaties and legislation until recently

The TRIPS Agreement is the first major international treaty to mention the term “balance” in Article 7 in the context of objectives of IP protection:

“The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and

dissemination of technology, […] in a manner conductive to a balance of rights and

obligations.”

Building upon the wording of the TRIPS Agreement, the 1996 World Intellectual Property Organization Copyright Treaty (WCT) recognizes “the need to

maintain a balance between the rights of authors and the larger public interest,

particularly education, research, and access to information.” In a similar vein, the

1996 WIPO Performances and Phonograms Treaty (WPPT) recognizes “the need to

maintain a balance between the rights of performers and producers of phonograms

and the larger public interest, particularly education, research, and access to information.”

Not surprisingly, however, the term “balance” has not proloferated into bilateral agreements which are more targeted at preserving national interests Out of the 17 United States (US) – FTAs there is only the US-Chile Free Trade Agreement

that explicitly recognizes “the need to achieve a balance between the right of right

holders and the legitimate interest of users and the community with regard to protected works.” None of other agreements follows this recognition

1.2.4 Current imbalances of interests in digital age

Under the digital network, as technologies and the Internet facilitate the reproduction and dissemination of copyright works, the need to protect author’s interests against infringement conducted thanks to technological advancements has been rising Nowadays, copies have almost the same quality as the originals Authors face a situation in which the works that they have spent months or years creating are reproduced without their authorization by a mere simple click of the computer mouse in seconds by someone else Thus, the supporters of the private property stance have called in favor of the widening of the scope of copyrights and strengthening of copyright protection to the copyright industries Otherwise, these authors will suffer serious financial loss and the copyright industries will perish

In practice, governments in many countries tend to promulgate new legislations and regulations that deal with piracy issues under the digital network environment with strong protection of copyrights Such legislative tendencies appeared in the Copyright Term Extension Act (CTEA) and the DMCA of the United States, Information Society Directive of the European Union, Communication and the Green Paper on Copyright in the Knowledge Economy and

the Digital Economy Act of the United Kingdom, graduated response scheme of France, and the 2006 Regulation of China These laws and regulations extend the duration of copyright protection, expand the scope of copyright protection to include databases and TPMs, aggravate the infringement liability of technological intermediaries and potentially restrict the limitations that are possible under traditional copyright regimes The expansion of copyright protection safeguards the interests of copyright owners, but to a certain degree, restricts the privacy and freedom of consumers

As a result, the advocates of the public interests have called for a restoring of the balance of interest between copyright owners and public users They regard digital technology and the Internet as exceptional means to facilitate the exchange

of knowledge and freedom of expression In their points of view, technologies should enrich individual creativity, global communication and the public domain rather than hinder access to information The Internet has changed the way that information is published and disseminated by decentralizing production and distribution which are traditionally under the centralized control of large publishing companies Thanks to the Internet, individuals and small enterprises can also participate by forming their own cultural communities and environments There is now a fear that strong copyright protection could suffocate innovation and creativity because of the following problems

1.2.4.1 Extended duration of copyright protection

In the beginning, the duration of protection was 14 years which could be renewed by the copyright owner for an additional 14 years The original protection time period was included in the United States Copyright Act of 1790 In 1831, Congress extended the initial term of 14 years to 28 years In 1909, the Copyright Act increased the duration of copyright protection to 56 years and changed it to the author's life plus 50 years in 1976 Even when the duration of copyright protection complies with the requirement in international conventions and copyright laws of most countries the United States enacted the CTEA in 1998, extending the copyright protection period by another 20 years and applying the revision

retrospectively to existing works This is a follow of the extension of copyright duration to the author's life plus 70 years by the Information Society Directive of the European Union According to professor Neil W Netanel indicated that the two decades that the CTEA added onto the already lengthy copyright term did not provide additional economic incentives for authors to make new creations, nor did the extension enhance the continued dissemination and availability of old works (Netanel, 2008, p.58) Due to the 20-year extension, “much of the literature, art, film, and music that serves as the wellspring for further creative expression, is subject to copyright holders' proprietary control” (Netanel, 2008, p.58)

1.2.4.2 Expansive scope of copyright protection and restricted copyright limitations

The subject matters of copyright protection has been expanded over time The Berne Convention of 1886 only included half of the current types of works, such as

“books, pamphlets and other writings; dramatic or dramatic-musical works; musical compositions with or without words; works of drawing, painting, sculpture, engraving and lithography; illustrations, plans, sketches relative to geography, topography, architecture or science; and translations” (Hua, 2014) The 1908 Berlin Act added other categories, such as “choreographic works and pantomime, works of architecture, photographic works and works of applied art”; the 1928 Rome Act included “lectures and other oral works,” and the 1948 Brussels Act added

“cinematographic works” The TRIPS Agreement and WIPO Internet Treaties followed this trend in widening the scope of protection to include computer programs and databases, especially in the face of drastic changes brought on by technology development and strong lobbying from technology-related industries Similar to the increase of subject matters that fall under copyright protection, the scope of the exclusive rights enjoyed by copyright owners is also under expansion to deal with the challenges brought on by the digital network technology Some of the exclusive rights originally existed in the Berne Convention, but were increased to cover more situations outlined in the TRIPS Agreement and the WIPO Internet Treaties, such as reproduction and distribution rights Some exclusive rights

were later acknowledged and introduced into international treaties because copyright industries advocated for them, such as the right of rental and the right of communication to the public

In addition, restrictions on copyright limitations have been settled by laws by protecting technological measures that control access and copying of copyright works By benefiting from legislative protection, copyright industries have widely adopted technological measures such as digital encryption to impede unauthorized access and reproduction As there are no general exceptions for permitted use under the protection of technological measures, users who circumvent technological measures to make fair use are likely to commit copyright infringement Or, even when the use is fair, lawful users might not have enough technological knowledge and tools to use the materials because they have been technologically protected

1.2.4.3 Newly added protection on technological measures

In the digital age, as there are master people with technological skills to break technological measures and make use of protected works, materials are placed under three layers of protection: copyright and neighboring rights provide the first layer from a legal aspect; technological measures work as a second layer from a technical aspect; and the anti-circumvention rules offer the third layer of protection which introduces legal remedies against circumventing acts of technological measures that protect copyright and neighboring rights

The WCT and WPPT protect all effective technological measures that are used

to control the access and copying of copyright works Article 11 of WIPO Copyright Treaty requires contracting parties 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 this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”

The DMCA of the United States includes provisions that protect technological measures that control access and use of copyrighted works Unauthorized circumvention of technological measures is deemed as infringement under the law Furthermore, the DMCA also prohibits the manufacture and dissemination of devices which facilitate the circumvention of access and copying controls The legislative model of the United States has influenced many jurisdictions to establish

a technological measure protection system The European Union, Australia, and Asian countries such as Japan and China, all have laws and regulations with regard

to the anti-circumvention of technological measures As scholars have commented, nowadays, it is not the court that enforces copyright laws and determines whether the use is fair It is the technology, software, and digital codes that control how users can access and use the protected works

The anti-circumvention rules expand copyright protection by providing copyright owners with the exclusive right of controlling access to their works Traditional copyright concerns only the use of copyright works, leaving access issues to be regulated by other laws, such as contract, tort or criminal law For example, one can freely read a book without the author's permission when s/he finds the book in a public library, buys the book at a bookstore, or even steals the book from someone else As long as the person does not reproduce, modify, translate, or prepare derivatives based on the work, s/he has not committed infringement of copyright, although s/he may be punished by tort or criminal law due to the act of theft However, under the situation where there is wide deployment of technological measures by industries and anti-circumvention rules imposed by the DMCA and laws in other jurisdictions, users no longer have the same freedom to read a book, listen to music or watch a video as in the traditional copyright regime More seriously, the tendency that industries use technology to control access to non-copyrighted material expands the industrial monopolization to the public domain and further hinders the freedom of the public in knowledge exchange and speech

1.2.4.4 Media concentration and restricted freedom of user-generated creations

According to Lawrence Lessig (2004, cited in Hua, 2014, p.65), the concentration of media has dramatically increased for the past 20 years, “eighty percent of the music distributed in the world is distributed by five companies; seventy percent of the radio market is controlled by just four firms Eighty percent

of television and cable in the United States is controlled by six firms.” The media concentration has constrained the creative freedom that people used to enjoy in life Before copyright industries monopolized the market and endeavored to counter infringement, the public was free to view the existing information, borrow from existing material, create, and comment on works by others as they felt appropriate The birth of the Internet has just enriched such personal freedom by allowing people

to write novels, blog their ideas and daily experiences, compose songs, clip and edit videos or produce short movies As long as people do not use their creations based

on copyright works for commercial purposes, their activities are like private or to-face communications in ordinary life, which impose no harm on the interests of the copyright owners The imposing of excessive liability and restrictions on personal use will negatively affect privacy, personal freedom and free expression However, as Professor Jane Ginsburg commented, prior to the advent of digital technology, “video recorders and photocopiers, individuals’ practical ability

face-to engage in personal copying was exceedingly limited and posed no threat face-to copyright markets or incentives” That digital technology and the Internet make reproduction and distribution much easier for users does not mean that copyright laws should step aside and not interfere with the potential negative effects brought

on by infringement activities that erode incentives for creativity Similarly, that digital technology gives copyright industries the potential power to control access and copying of information does not mean that copyright laws should grant such access rights to industries by sacrificing user privacy and right of free speech Therefore, as Professor Neil Netanel concluded, “adapting copyright doctrine to digital technology requires that we recalibrate copyright’s balance to reflect, not

stifle, digital technology’s empowerment of individual speakers Just as copyright need not countenance massive uncompensated copying of copyrighted works simply because file swappers perceive that activity to be a personal liberty, neither should we aim to give copyright holders the broad legal and technological control to re-create the predigital market structure and mass-media-to-passive-consumer model of public disclosure in the digital environment.” (Netanel, 2008)

1.3 Regulations on balance of interests

1.3.1 International regulations

Materials protected by copyright are easily moved between countries, and are

an important aspect of international trade Consequently, there have been efforts over many years to create an international system for copyright protection under which materials produced in one country will receive effective protection in others The key international copyright agreements are:

 Berne Convention for the Protection of Library and Artistic Works (Berne Convention)

 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)

 WIPO Copyright Treaty (WCT)

 WIPO Performances and Phonograms Treaty (WPPT)

1.3.1.1 Protection of authors’ interests

 Berne Convention

Article 2 of the Convention governs the type of works which it protects -

“every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.”1 Article 2 also contains an illustrative, but non-exclusive list of the types of works this broad definition is intended to encompass.2

1 Berne, article 2(1)

2 “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

Member countries are permitted to require that the work be fixed in a material form before protection may apply, but this is not a requirement of the treaty.3Additionally, Articles 2 and 2bis allow Berne members to exclude certain categories

of works from protection, such as legislative and administrative works, applied art, industrial models, political speeches, lectures, and public addresses

The Convention establishes a minimum term of protection.4 Member states are free to provide greater protections The term of protection may not fall below the life of the author plus 50 years Cinematographic works require only a minimum protection of 50 years from creation or publication.5 Another significant exception

to the life-plus-fifty minimum occurs in the case of photographic works, which need only be protected for 25 years from the date of their creation.6

Specifically, the Convention features two methods by which a work might qualify for protection, including the Personal Criterion7 and the Geographical Criterion8

Berne mandates two primary categories of protective rights for the works it affects These are economic rights to the use and proceeds from the use of the work and moral rights rooted in the work itself Currently, the major economic rights consist of the exclusive right of the authors of protected works to authorize translation; reproduction; performance; broadcasting; public recitation; adaptations, arrangements, and alterations.9

photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative

to geography, topography, architecture or science”

9 Berne, article 8-12

There are two primary moral rights, both of which are required under Article 6bis(1) of the Berne Convention: the right of attribution and the right of integrity Attribution refers to an author’s right to be credited by name for his work Integrity refers to an author’s right to object to particular uses of his work which may distort, mutilate, or modify it, even in cases where the work itself has been sold by its creator As such, moral rights are inalienable from the author, and Berne member states are not required to extend their application beyond an author’s death

 WIPO Copyright Treaty (WCT)

WCT is a special agreement under the Berne Convention that deals with the protection of works and the rights of their authors in the digital environment Any Contracting Party (even if it is not bound by the Berne Convention) must comply with the substantive provisions of the 1971 (Paris) Act of the Berne Convention for the Protection of Literary and Artistic Works (1886) Furthermore, the WCT mentions two subject matters to be protected by copyright: (i) computer programs, whatever the mode or form of their expression; and (ii) compilations of data or other material (“databases”), in any form, which, by reason of the selection or arrangement of their contents, constitute intellectual creations (Where a database does not constitute such a creation, it is outside the scope of this Treaty.) Regarding the rights granted to authors, the WCT upgraded Berne’s protections by requiring members to provide general rights of distribution, rental, and a broader right of communication to the public (addressing Internet distribution)

Concerning duration, the term of protection must be at least 50 years for any kind of work

 WIPO Performances and Phonograms Treaty (WPPT)

The WIPO Performances and Phonograms Treaty (WPPT) deals with the rights of two kinds of beneficiaries, particularly in the digital environment: (i) performers (actors, singers, musicians, etc.); and (ii) producers of phonograms (persons or legal entities that take the initiative and have the responsibility for the fixation of sounds) These rights are addressed in the same instrument, because

most of the rights granted by the Treaty to performers are rights connected to their fixed, purely aural performances (which are the subject matter of phonograms)

As far as performers are concerned, the Treaty grants performers economic rights in their performances fixed in phonograms (not in audiovisual fixations, such

as motion pictures): (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available

As to unfixed (live) performances, the Treaty grants performers: (i) the right

of broadcasting (except in the case of rebroadcasting); (ii) the right of communication to the public (except where the performance is a broadcast performance); and (iii) the right of fixation

The Treaty also grants performers moral rights, that is, the right to claim to be identified as the performer and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer's reputation

As far as producers of phonograms are concerned, the Treaty grants them economic rights in their phonograms: (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available

The Treaty provides that performers and producers of phonograms have the right to a single equitable remuneration for the direct or indirect use of phonograms, published for commercial purposes, broadcasting or communication to the public However, any Contracting Party may restrict or – provided that it makes a reservation to the Treaty – deny this right In the case and to the extent of a reservation by a Contracting Party, the other Contracting Parties are permitted to deny, vis-à-vis the reserving Contracting Party, national treatment (“reciprocity”) The term of protection must be at least 50 years

1.3.1.2 Protection of public interests

 General limitations relating copyright grant

 Limitations on copyrightable subject matter

Limitations and exceptions in international copyright regulations are both general and specific General limitations include broad standards reflecting what

kind of materials should be copyrightable and/or the appropriate scope of copyrightability For example, Article 9(2) of the TRIPS Agreement provides that ideas are not subject to copyright protection The idea/expression dichotomy has long been recognized as a major limitation to copyright in many countries, most notably the United States The WCT also incorporates the idea/expression principle

in Article 2 The internationalization of the ideal expression dichotomy is a positive step in the search for balancing principles in the international copyright system Article 2(8) of the Berne Convention provides explicitly that “The protection

of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information” Expressions of facts are protected, the facts are not

 Limitations on duration

Another general limitation to copyright would be the limited duration of copyright protection Prior to recent term extensions, first in the European Union and then the United States, the generally accepted duration for copyright protection was life of the author plus fifty years Although in principle this remains the international standard for duration both under the Berne Convention and the TRIPS Agreement, there is a clear push through regional and bilateral FTAs to extend the international standard to life plus seventy years (Okediji, 2006)

 Limitations imposed by conditions of protection

One of the distinctive characteristics of the Berne Convention is its insistence

on the ability of authors to enjoy their rights without any formalities (i.e., administrative requirements) being imposed The Convention, however, permits states to impose conditions as to what constitutes a copyrightable work Thus, the insistence on original works of authorship is a condition through which the Convention implicitly confirms that only works that reflect some level of intellectual creativity should be protected by copyright (Patry, 2000)

Another permissible condition for copyrightability is found in Article 2(2) of the Berne Convention, which provides that states may through their domestic

legislation prescribe that works (or certain categories of works) shall not be protected unless they have been fixed in a material form

States may also impose conditions on the manner in which oral works such as lectures and addresses delivered in public may be reproduced by the media for public dissemination However, Article 2bis(3) of the Berne Convention mandates that authors of such works shall have the exclusive rights to make collections of their works Thus, the conditions a state may impose should be directed only at the extent and form of dissemination of a work delivered to the public by the author Media dissemination, in this regard, is a means to enlarge the audience rather than

an end for the work itself

 Specific limitations allowed under the Berne Convention

The Berne Convention recognizes two types of limitations: compensated limitations and uncompensated limitations Uncompensated limitations usually mirror uses or practices that are not considered part of the legitimate scope of the author's proprietary grant Compensated limitations usually suggest that the copyright owner is not entitled to control whether the work is used, but is always entitled to remuneration as part of the copyright incentive scheme Compensated limitations are a form of compulsory licensing

 Uncompensated limitations

Article 10(1) of the Berne Convention uses mandatory language to confer an exception to copyrighted works Under this provision, quotations can be made from

a work that is already lawfully available to the public

Article 10(2) of the Berne Convention permits countries to enact legislation allowing the use of copyrighted works by way of illustration in publications, broadcasts or sound or visual recordings for teaching purposes

Article 10bis(1) of the Berne Convention permits countries to enact legislation authorizing reproduction by the press, broadcasting or communication to the public

of articles published in newspapers or periodicals on current economic, political or religious works, and of broadcast works so long as the author does not expressly