Impact of digital technologies on global copyright developments : Impact of digital technologies on global copyright developments
Lucinda Jones
World Intellectual Property Organization
Copyright Law & Practice Symposium
Sydney
November 17, 2005
Overview : Overview Digital technologies & intellectual property
Evolving WIPO Digital Agenda
WIPO treaty developments
New legal developments
broadcasting
audiovisual performers’ rights
limitations & exceptions
Information Society & copyright
Nature of digital technologies : Nature of digital technologies Emergence of digital technologies - WWW
Scale & speed
Internet as a source of information
network of networks a communication channel
value in intangibles
business assets intellectual, as opposed to physical
Internet as a tool for IP owners & users
‘information society’ ‘knowledge economy’
Policy challenges... : Policy challenges... Global development
only 11% of world’s population is online
‘digital divide’
greatest growth in developing countries
more than 65% of users are non-native English speakers
need for information infrastructure
physical – (telecommunications, bandwidth, hardware and software)
intellectual – (skilled technical know-how, public awareness, language, education and consumer confidence)
governmental – (effective government strategy, competition, financial support and positive legal framework)
Legal challenges.. : Legal challenges.. Digitization ‘bits and bytes’
IP ideally suited to digitization
intangibles… perfect, instant, infinite copies
globally distributed, transient, changeable
worldwide piracy as bandwidth increases, in music, software and film industries
870 million infringing copyright music files online (Jan 2005)
90% of files shared over P2P are unauthorized
400,000 - 600,000 illegal film downloads per day
RIAA commenced over 11,000 individual law suits against alleged illegal file-sharers
Legal challenges... : Legal challenges... Enforcement
detection, anonymity and privacy
technological protection measures (DRM)
alternative dispute resolution
Jurisdiction
multi-jurisdictional
dispute resolution and enforcement of judgements
Evolving role of WIPO : Evolving role of WIPO Convention Establishing the World Intellectual Property Organization (Stockholm, July 14, 1967)
entered into force in 1970, amended 1979
WIPO’s mission to “promote the protection of intellectual property throughout the world through cooperation among States” in order to encourage creativity and innovation
Agreement between the United Nations and WIPO (1974)
WIPO’s purpose is the “promotion of creative intellectual activity and the facilitation of the transfer of technology related to intellectual property to the developing countries in order to accelerate economic, social and cultural development” (article 1)
WIPO’s main activities : WIPO’s main activities Normsetting
treaty-making
Providing international IP services to private sector
registration services for patents, trademarks and designs
dispute resolution (WIPO Arbitration & Mediation Center)
Enhancing access to the IP system
assists developing country members, as well as SMEs to use IP as a tool for economic development
distance learning programs (WIPO Worldwide Academy)
seminars, conferences, studies and documents
International copyright policy-making : International copyright policy-making Traditional treaty-making
WIPO administers 23 international treaties
10-15 years to develop (fast-tracked 6 years)
International copyright agreements:
Berne Convention for the Protection of Literary and Artistic Works (1967/1971)
Rome Convention for the Protection of Performers, Producers of Phonograms & Broadcasting Organizations (1961)
TRIPS Agreement (1994) - WTO
WIPO “Internet Treaties” - Copyright Treaty and Performances and Phonograms Treaty (1996)
Changes in international IP policy-making : Changes in international IP policy-making Digital environment:
flexible ‘soft law’ approaches
joint recommendations (e.g., use of trademarks online)
Uniform Domain Name Dispute Resolution Policy (UDRP)
new ways to reach global public (relations with civil society and NGOs, online delivery of information, interactive online fora, distance learning)
speed of technological change risks excluding some countries from meaningful participation
more cross-sectoral communication and collaboration among international and national organizations
Changes in policy-making... : Changes in policy-making... New stakeholders
greater public involvement in IP (as creators, distributors and consumers)
greater value and investment in IP as intellectual capital in the knowledge society
Participation at WIPO
only States members of WIPO (183)
traditionally open to non-State observers
permanent observer status currently held by 66 IGOs, 194 international NGOs, and 28 national NGOs
WIPO Digital Agenda : WIPO Digital Agenda Digital Agenda (10 points) - 1999 - including copyright issues:
entry into force of WCT and WPPT before December 2001
protection of audiovisual performances
adaptation of broadcasters’ rights to digital era
protection of databases
liability of online service providers
global licensing of digital assets
WIPO Internet Treaties : WIPO Internet Treaties WIPO Copyright Treaty (WCT)
in force March 6, 2002
56 States ratified or acceded
WIPO Performances and Phonograms Treaty (WPPT)
in force May 20, 2002
55 States ratified or acceded
ensure that rightsholders control dissemination of protected material over Internet, including right to make available ‘on demand’
Balance in the IP system : Balance in the IP system WIPO Copyright Treaty (WCT) 1996
negotiators recognized “the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information as reflected in the Berne Convention” and also:
the need to “provide adequate solutions to the questions raised by the new economic, social, cultural and technological developments”
“the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works”
“the outstanding significance of copyright protection as an incentive for literary and artistic creation.”
WIPO Internet Treaties - digital issues : WIPO Internet Treaties - digital issues Right of reproduction
temporary reproduction
Right of making available
Limitations and exceptions
Technological measures & anti-circumvention
Rights management information
General update
computer programs, databases, distribution and rental, enforcement, economic and moral rights for performers, economic rights for producers of phonograms
New legal developments : New legal developments Discussions on extension of treaty-based protection to:
Broadcasting organizations
Audiovisual performers
Non-original databases
Limitations and exceptions
Protection of broadcasting organizations : Protection of broadcasting organizations Growing digital signal piracy problem
Update protection in Rome Convention 1961
Second revised consolidated text (SCCR, Nov 2004)
Series of regional consultations (2005)
Possible diplomatic conference (end 2006 - 2007)
Issues:
what transmissions should be protected, and what rights granted?
duration or term of protection?
who should be protected (traditional broadcasters, cable programs, webcasters)
Protection of audiovisual performers : Protection of audiovisual performers Not covered by WPPT in 1996, but audiovisual works increasingly used, and vulnerable, in digital environment
Subject of Diplomatic Conference 2000
wide agreement, but issue of international recognition of transfer of rights unresolved)
Meetings 2003-2004, informal discussions, on agenda 2006
WIPO Study on Audiovisual Performers’ Contracts and Remuneration Practices in Mexico, UK, USA, France & Germany
WIPO Survey on National Protection of Audiovisual Performances
Study on Transfer of the Rights of Performers to Producers of Audiovisual Fixations-Multilateral Instruments
Limitations & exceptions to copyright : Limitations & exceptions to copyright 3 step test (Berne Convention, TRIPS Agreement, WCT and WPPT:
certain special cases; do not conflict with normal exploitation; do not prejudice the legitimate interests of rightholders
challenge to maintain ‘fair use’ exceptions in digital environment/TPMs
faced with increasing piracy of music, film, software
digitization and global distribution networks
P2P file sharing
use of contract to override exceptions
Limitations & exceptions... : Limitations & exceptions... WIPO work on limitations & exceptions:
Survey on the Implementation Provisions of the WCT and WPPT (2003)
Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment
Information Meeting on Digital Content for the Visually Impaired (2003)
Study on Current Developments in the Field of Digital Rights Management (2003)
forthcoming.. study of relation between limitations and exceptions and DRM-protected content
Information Society & copyright : Information Society & copyright Relevance of copyright to the Information Society
copyright-protected software provides digital infrastructure
‘information’ largely protected by copyright or other IP rights
raises questions of access to information, including for education and research
‘free’
rights and responsibilities of copyright owners
rights and responsibilities of users?
appropriate use of technology (DRM)
role of copyright in development (digital divide)
Information Society & copyright... : Information Society & copyright... Digital technologies & enjoyment of copyright
digital technologies enable more persons to become creators
narrow the gap between producer and consumer
no threshold for copyright protection
changing marketplace and value chains
multiplicity of rights, rightholders, users and uses
new uses (remix) raise questions of balance: duration and scope of copyright protection & public domain
New digital copyright business models : New digital copyright business models digital environment - new business models
expanded choice in licensing models
adapt to end-to-end distributed technology
digital film distribution
online music delivery (peer-to-peer)
digital libraries (e.g. Google)
open access publishing
open and shared source software
collaborative creativity, remix
Creative Commons licensing
WIPO & the Information Society : WIPO & the Information Society World Summit on the Information Society
Internet governance & IP
Online Forum on Intellectual Property in the Information Society (June 1-15, 2005)
WIPO Development Agenda
40 actionable proposals (meetings over 2005), all agree importance of development
Provisional Committee to accelerate and complete discussions on proposals
New digital copyright agenda…
Thank you : Thank you www.wipo.int
lucinda.jones@wipo.int