Tuesday, April 29, 2014

Copyright    today; Perspectives on Local and International Copyright Issues

By Abiola Inniss LLM, Ph.D. Law and Public Policy Researcher, Walden University.U.S.A

Caribbean Copyright Consultant WIPO

.A presentation on the occasion of World Book and Copyright Day ,April 23rd,2014 at the National Library ,Georgetown,Guyana.              
              Chairman of the Guyana National Library Commission, Madam Chief Librarian, Members of the Diplomatic Corps, Distinguished Guests all, I am delighted to be here with you to celebrate this important event. I was extremely happy to accept the kind invitation from the National Library to come home to share some knowledge on the cutting edge issues of International Intellectual Property law and on Copyright in particular. Today on world book and copyright day we acknowledge the contributions of creative artists of every kind all over the world especially our local authors.       The World book and Copyright day was the creation of the UNESCO General Conference in 1995 in honour of a number of famous writers whose death anniversaries occur on April 23rd. Among those authors are Miguel de Cervantes Saavedra ,Maurice Druon, Inca Garcilaso de la Vega, Haldor Kiljan Laxness, Manuel Mej√≠a Vallejo, Vladimir Nabokov, Josep Pla and William Shakespeare. In the Caribbean region, we honour the works of those writers who have contributed to our cultural heritage as a region,Jean Rhys,Merle Hodge ,V.S Naipaul, Samuel Selvon and numerous others and most importantly the long list of Guyanese authors who have documented our history, moulded and promoted our culture, fed our curiosity, shaped our national consciousness and sense of belonging and fired our loyalties. I think of  the well known and celebrated authors, Martin Carter, Arthur,J Seymour, Edgar Mittelholzer,Wilson Harris, Jan Carew, A.L Luker (Composer of the lyrics of the National Anthem),  Walter Mac ,A, Lawrence ( who wrote the words for the National Song ,O Beautiful Guyana, the music was composed by the great Valerie Rodway) Ian McDonald and the lesser known such as Mercedes Pierre Dubois,J.W Chinapen,Mahadai Das,Shana Yardan, Helen Taitt, Henry Josiah,  Ivan Forrester,Maureen Prince,Donald Trotman and  Jacqueline De Weever. I think that it is only fitting that we create a Day of National Observance and establish a monument to honour  and promote the work of the hundreds of Guyanese authors and creators who remain unsung and unknown. It is important that we honour our literary heritage.

      The intention of the United Nations in the creation of World Book and Copyright Day is to pay tribute to all writers and their contribution to world culture, the books they wrote and the copyright which protect these works. This honour is now extended to all creators and those who deal with copyright protection. On this day as well in select years, the United Nations awards the UNESCO Prize for Children and Young People’s Literature in the Service of Tolerance. It is the aspiration of the United Nations that the celebration of this day will increase the awareness of and adherence to copyright laws as well as the understanding of intellectual property in general.         In recent decades intellectual property has become an imposing element in the world economy because of the exponential growth of the internet and internet based economic activities which touch every aspect of life from international trade to internet dating. The concept of intellectual property is premised on creations of the mind or so called intangibles which are literary and artistic works, symbols and designs and names and images used in commerce among others. Intellectual property is generally protected by law in the forms of patents, trademarks, and copyright which are part of the domestic laws in most countries but which now also extends to the International law in the form of international intellectual property law and have a number of international regimen attached such as the World Trade Organizations Trade Related aspects of Intellectual Property Rights.        International Intellectual Property law is a patchwork of intersecting multilateral and bilateral agreements and their resulting harmonization of national laws. This is an area that has increased in importance and has seen very frequent litigation, especially in the areas of patent, trademarks and copyright .Additionally there has been clamouring for the protection of domain names, software, databases, and traditional knowledge which are new forms of protection. These cutting edge intellectual property issues are often dealt with at the level of the World Intellectual Property Organization (WIPO). Along with these forms of protection trade globalization has had a direct effect on the harmonization of national laws through WTO and the TRIPS agreement as well as regional organizations such as the African Regional Intellectual Property Organization (ARIPO). The lesser known areas of law include rights of publicity, moral rights, misappropriation, unfair competition, geographical indications of origin ,trade dress, licensing, plant variety protection, integrated circuit protection and paracopyright (which includes laws which prohibit the circumvention of anti-pirating technology). Paracopyright is a term that refers to an umbrella of legal protections above and beyond traditional copyright. It is also sometimes called "pseudocopyright" or "metacopyright". The most often cited example is "legal protection for technical measures" from the 1996 WIPO Internet treaties. Paracopyright provisions in these treaties are not about the term or scope of copyright, but instead are about providing legal protections for the technologies that may be used by copyright holders.
Paracopyright affords legal protection to technologies that claim to be used to protect copyrights, but that are ineffective in doing so.  For example, a technical measure cannot stop a technically sophisticated person who decides to infringe copyright. To use the "digital locks" analogy, there is no need to "pick the lock" as the keys necessary to decode the content are  already embedded within authorized access technology. The locked content as well as the technology containing the key are commercially available to an infringer. As long as one person decodes a technical measure, the decoded content can be made available to others in the same way as if the technical measure never existed.The effects of these technical measures are to impose specific contractual license agreements on those conforming to copyright law. The concept of paracopyright is possibly better understood as a part of contract law and not copyright law. It is notable however that important regulations regarding consumer protection and the "freedom to contract" are not directly included in paracopyright laws, potentially creating imbalances in the law and harmful unintended consequences in the forms of open-ended legal issues.
         It is an interesting fact that physical property can sometimes contain elements of intellectual property as in the case where a piece of machinery is based on a patent ,a book may have material which has been previously copyrighted or a website may have copyrighted pictures. Intellectual property laws often define what a person can do or not with the intangible or with a copy of the tangible.      We are living in exciting times at the cutting edge of law and technology. More than ever before, the creation and dissemination of information is swift and easy and may take a variety of formats. For publishers traditional functions, processes and infrastructure technologies are fast becoming obsolete along with traditional copyright law. The Gutenberg system which was used by publishers for more than five hundred years is hardly relevant today. The Gutenberg press system mechanized copying and made copyright necessary, digitization has moved us far beyond ink and paper and created a complex web of issues which deal with international and municipal law, economics, public policy and the public interest, all of which are inevitably connected to the issue of enforcement of the laws.    The traditional methods of publishing comprises multinational conglomerates with many layers of management, producing several imprints, time sensitive physical inventories, and processes that takes months and sometimes years before a book gets published. In today’s world anyone, anywhere can be a published writer and anyone can be a publisher and it happens instantaneously. This occurrence has radically decentralized the marketplace and we have seen the results of this. In the United States major book stores have gone out of business or are severely challenged to remain competitive, that is to keep the interest of the general consumer. Borden bookstore chain filed for bankruptcy and went out of business a few years ago, because of competition from the Amazon conglomerate, which provides e-books at a far cheaper price and affords immediate access to them through a variety of means including several versions of its e-reader tablet called the Amazon Kindle, all the while retaining robust trade in hard copy books which can be shipped to your door by express in several countries world -wide. Barnes and Noble has remained competitive by providing similar services and a Nook series of tablet e-readers along with hard copy books. The smartphone and tablet innovations have added to options through which people can access information. This has caused some very specific challenges to arise both for general consumers and the legal systems.  Data found on a computer can be subject to attack anywhere in the world, forcing courts into an interesting analysis of conflicts of laws, particularly considering the variation remaining after the ratification of The Berne Convention for the Protection of Literary and Artistic Works. 

The US and EU Responses 
The Berne Convention attempted to establish equal and automatic protections for copyrighted works throughout signatory nations, but has been somewhat unsuccessful in reducing differences in substantive issues. This is not surprising because the Berne Convention is not self- executing, meaning that countries which are signatories must still enact legislation to give local effect to the provisions of the convention. This is the difference between signing on and signing in, many countries sign on to treaties but never go any further to make them live within their borders.       As a result there are still considerable variations throughout signatory jurisdictions with regard to fair use defenses, duration of protection, authorship and ownership regarding works-for-hire, and a number of other issues.  With the increasing complexity and speed of data travel comes the need for swift action to establish uniform choice-of-law provisions within the Berne Convention as this family of treaties grows. The Berne Convention was drafted and ratified by over 150 nations in 1886 in an attempt to ensure copyright protection across the globe.  The Convention sought to establish equal treatment in each of its signatory nations’ jurisdictions by instigating minimum standards for protection.  The United States acceded to the treaty in 1988, over a century after its establishment.  Soon after the United States joined the Berne Convention, advances in technology made it clear that the provisions of the Convention would not suffice in the information age.The World Intellectual Property Organization (WIPO) Copyright Treaty was drafted and ratified in 1996 in order to help copyright law keep pace with the changing times.  The United States joined the WIPO Copyright Treaty through the implementation of the Digital Millennium Copyright Act (DMCA) and also created the Uniform Computer Information Transactions Act.While the DMCA would grant protection to software and place restrictions on the use of encryption circumvention programs, among other provisions, neither the WIPO Copyright Treaty nor the DMCA contain provisions providing direct guidance as to how the treaties should be applied in cross-border disputes.  The choice of law analysis involved in international copyright litigation has proven difficult for courts in the United States and this can be seen in the varied opinions as to how to interpret certain articles of the Berne Convention.  This choice of law analysis proves critical to international disputes because the minimum standards of the Berne Convention allow for variation among signatory nations. The European Union responded to the requirements of the Berne Convention by creating the Directive on Copyright and Ecommerce. The Copyright Directive requires member states to harmonize their laws concerning the reproduction right, the right of communication to the public, the distribution right, and technological measures against circumvention of copyright management and protection systems. Article One outlines the intended scope of the Directive. Article Two sets forth a broad, comprehensive definition of the reproduction right, covering all relevant acts of reproduction, on-line or off-line, in material or immaterial form.Article Three aims to achieve harmonization of the member states’ laws concerning the right of communication to the public, providing a broad, comprehensive definition of “communications to the public” that addresses the interactive nature of the digital environment. Article Four seeks to achieve harmonization of the right of distribution for all types of works where this has not yet been done, and Article Five sets out exceptions to the rights set forth in Articles One through Four.Articles Six and Seven address the protection of technological measures and rights-management information. Article Six sets forth member states’ obligations as to technological measures, and Article Seven addresses member states’ obligations concerning rights-management information.On February 14, 2001, the European Parliament formally adopted the European Copyright Directive. The Copyright Directive seeks to solidify the existence of an EU-wide “internal market in copyright and related rights,” emphasizes e-commerce, and creates a legislative framework that will be able to handle the impending challenges of the digital revolution.
The Caribbean
The establishment of Copyright policies and laws in the Caribbean region has received some attention in recent times because of the current trends in International Intellectual Property law and policy which see insistence on greater accountability and compliance with IP regimen especially with regard to the internet economy which encircles modern life. For the purpose of this discourse the reference to Caribbean countries is limited to the members of the Caribbean Community  and further refined to exclude Suriname and Haiti which have Civil law systems of judicature which require further and in depth research in order to make substantive evaluations .         Copyright policies and national laws are an important issue within the context of the countries of the Caribbean Community (Caricom) which in recent times have become more aware of the need to pay attention to the dynamics of International Intellectual Property Law and Policy, and to be cognizant of the effects that these areas have on them.         Within at least the past ten years the Caribbean region has experienced pressures to comply with International Intellectual Property regimes such as the TRIPS agreement, subscription and compliance with which became a requirement of the World Trade Organization (WTO) in order that developing countries should benefit from trade arrangements made through the WTO. Most Caricom countries are members of the WTO and were therefore required to enact legislation which gave effect to the TRIPS agreement. A few countries have attempted to enact legislation which reflects the requirements of the TRIPS agreement, Jamaica and St Lucia have modelled the more successful laws while Trinidad and Tobago has enacted strong copyright laws, most other countries have had partial or no enactment or compliance with the TRIPS even though most have signed on to the agreement. In the face of the reluctance or inability of most countries in the region to comply with the requirements of the TRIPS agreement, the question arises as to what factors in the legal and regulatory sphere create this dissonance between the TRIPS compliance and the implementation of laws which would reflect its requirements. Equally important is the question of what social, political, cultural and economic factors underwrite the absence of policies which are conducive to the creation of copyright policies and laws within Caricom Countries. It is quite clear that the legal and regulatory framework for intellectual property in the Caribbean is quite underdeveloped and of a piecemeal nature. Each country has its own laws and these range in strength, focus, modernity and flexibility. Enforcement, the twin sister of the law, possesses the same characteristics. In example, Guyana has one of the oldest Copyright laws dating back to 1956 because it was acquired through reception from the British legal system after Guyana became independent in 1966, in spite of WTO membership and the TRIPS agreement, there have been no new legislation, no supporting mechanisms or organizations, no awareness programs and the law is generally ignored. Jamaica on the other hand has put stringent Copyright laws in place and has also put strong supportive mechanisms and has perhaps the most active and progressive system for the promotion and enforcement of copyright laws in Caricom. St Lucia has legislation which is progressive, encompasses many developmental issues and has a modern outlook. The actual workings of the law will make for interesting observation.
The socio-economic background of Caribbean IP  
     On January 1, 2006, the CSME was formally established and adopted by 12 member countries (Belize, Barbados, Grenada, St Kitts and Nevis, St Lucia and St Vincent and the Grenadines, Jamaica, Suriname, Antigua and Barbuda, Guyana, Dominica, Trinidad and Tobago. The schedule of implementation required a formal framework to be in place by 2008, with the final completion date set for 2015. The CSME was originally proposed by CARICOM in the 1989 declaration of Grand Anse and was conceptually and legally formalized in the 2001 Revised Treaty of Chaguaramas. The Revised Treaty included provisions for the establishment of the Caribbean Court of Justice, which was formalized in 2005.The CSME was established with the intention of creating a cohesive framework through which the region could become internationally competitive. The main objectives of the CSME are set out as follows: “Full use of labour (full employment) and full exploitation of the other factors of production (natural resources and capital); competitive production leading to greater variety and quantity of products and services to trade with other countries. It is expected that these objectives will in turn provide improved standards of living and work and sustained economic development.”  It is submitted that in order for the objectives to be met in terms of growth and sustainable development, IPRs and responsibilities must be moved from their current state of disorder to one of productive engagement and holistic and regulated viability. It is inconceivable that the CSME will be able to achieve a high level of success in its implementation without the establishment of a legal and regulatory framework that promotes development of innovation in science, technology and other areas, while espousing the protection of rights and enforcing responsibilities in IP (Inniss. A (2012) 3 W.I.P.O.Journal., Issue 2 © 2012 Thomson Reuters (Professional) UK Limited).CARICOM and the TRIPs Agreement             The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement adopted within the frame work of the World Trade Organization (WTO) that establishes minimum standards for many forms of IP. It was negotiated as part of the Uruguay Round of General Agreement on Tariffs and Trade (GATT) trade negotiations and adopted in 1994.TRIPS provides requirements for national legislation in the IP area, including copyright, geographical indications, industrial designs, trademarks, patents, and trade secrets. TRIPS also specifies enforcement procedures, remedies and dispute resolution procedures. This agreement introduced IP law into the international trading system and remains arguably the most comprehensive international IP agreement. An analysis of IP legislation in 11 Latin American and Caribbean countries titled“Has the Implementation of the TRIPS Agreement in Latin America and the Caribbean Produced Intellectual Property Legislation that Favors Public Health[1]? determined that these countries are not adequately taking advantage of TRIPS flexibilities. In its analysis, the study considered the term of patents issued, patentable subject matter, transition periods (time until legislation was enacted),reversal of the burden of proof of patent infringement ,exhaustion of rights, compulsory licensing and the early working exception (which allows a country to complete all procedures necessary to register a multisource product before the original patent expires).The study concluded that access to medicines might be eroded in the future if new agreements establish more restrictive rules for IPRs. It recommended that CARICOM countries improve interaction between health and patent offices, be given technical support to assist in maximizing public health benefits in national legislation and trade negotiations, and prioritize access to medicines when determining how best to protect innovation. A 2005 Commonwealth Secretariat report by Dianne Daley titled Implementation of the Doha Decisions on Access to Medicines at Affordable Prices by Countries with no or Insufficient Manufacturing Capacities: The Caribbean Study[2] provides country-specific guidance and information for the following Caribbean countries: Antigua and Barbuda, Belize, Dominica, Grenada, Guyana, St Kitts and Nevis, Saint Lucia, St Vincent and the Grenadines, the Bahamas and Trinidad and Tobago.
     This information is pertinent to the issue of Copyright in so far as it demonstrates the dynamics of the International IP environment in which the Caribbean countries operate in 2013. There has been little change in the ways in which the countries in the region operate since the time of the report. International pressures have in fact increased on countries to comply with standards, even where no formal agreement exists. This situation was illustrated in September 2012 by the fracas between the British and Guyana governments over the wholesale copying of schoolbooks produced by a British publisher. The Guyana government openly stated its intention to contract the photocopying of school texts for distribution in the public schools for large sums of money in contravention of the country’s laws. The publishers reacted by filing a court action while at the same time engaging diplomacy through the British government .It is to be noted here that even though Guyana is a signatory to the WTO and the TRIPS agreement, no laws have been passed that bring the standards of TRIPS into effect and the reliance by the plaintiffs on the Berne Convention for relief had the same effect since its minimum standards had not been enacted. The end result was that economic diplomacy resolved the matter because the Guyana government could ill afford to endure any sanctions imposed upon it by the British government over the issue, and it was forced to scrap the plan to purchase photocopied books. It is quite clear that developed countries are no longer willing to sit back and allow developing countries to flagrantly disregard copyright and other IP agreements.    

   The Influence of Culture and Politics    
   It is hardly debatable that the variations in copyright laws across the Caribbean are the result of the peculiarities of the various jurisdictions compounded by the lack of a regional regulatory scheme. It is also trite knowledge that Caribbean musicians and other artists often struggle to obtain adequate protection of their productions and where they do, it is localized within specific countries. This means that while a Jamaican musician may have protected rights in Jamaica, this will not necessarily apply to the same work in Guyana or Antigua, and so on; though section 3 of the Jamaican Copyright Act no 5 of 1993 (Jamaica Copyright Act, 1993), specifies that where a work has been first published in a specified country it shall be an offence in Jamaica to republish it without permission. A January 2010 report of the International Confederation of Societies of Authors and Composers (CISAC) revealed that royalties accruing to Caribbean music and Art in 2009 had dipped by 27 percent to Euros 3.3 million. CISAC reported that it had been some three years since such a marked decline had occurred in the Caribbean and suggested that apart from the worldwide economic decline; the inability of some Caribbean governments to deal with their Intellectual Property issues had contributed significantly to these problems. Trinidad and Tobago, Jamaica, Cuba, the Dominican Republic, Barbados and St. Lucia are members of CISAC which is an international organization promoting the rights of authors and composers while others are less than interested. Four years later, there is no reported improvement in this situation.
                         There is some loose suggestion that the culture of the Caribbean is laid back and non-aggressive and that sharing everything without regard for ownership is the norm. This it has been said is the reason for the disregard for the rights of others in terms of property. This is a notion which has been imported from other developing countries and or perpetuated by the portrayal of the Caribbean as a region of sun, sand ,sea , unbridled fun and little care or responsibility , and with which this writer disagrees entirely (Inniss.A , Essays in Caribbean Law and Policy:A Comprehensive Discourse, 2011). The Caribbean Community as has been defined for this discussion comprises countries which with the exception of Haiti and Suriname have a Common Law history and in which the Common law operates to date. Strong property rights are a part of the Common Culture and this translates very easily to the intangibles of IP. The politics of IP are closely related to the economic conditions of the countries to which these regulations apply, and this seems to be the greatest point of contention. Governments are hard put upon to find methods which will allow citizens to access materials which are subject to IPRs for the purposes of education, livelihood, health and other areas which are now part of everyday life while adhering to stringent international agreements and simultaneously not placing onerous burdens of compliance on citizens.  As previously indicated many Caribbean territories do not have the human and intellectual resources to investigate, review and to construct the policy bases for Intellectual property and do not have the wherewithal to garner such resources (Inniss, Essays in Caribbean Law and Policy:a comprehensive discourse, 2011)

.Creating the policy based approaches          
Throughout the years there have been a number of attempts to regulate the varied forms of intellectual property usage by the establishment of conventions such as the Berne and Paris Conventions to which signatories agreed to implement laws within their own countries which would reflect the intention of those agreements and give reciprocity among signing nations. The World Trade Organization and the famous TRIPS agreement (Trade Related Aspects of Intellectual Property Rights) to which developing countries are forced to adhere if they wish to benefit from trade agreements with developed countries, is a stark reminder of the financial power of the intangible known as intellectual property rights and the quest for absolute control over it (Inniss, Copying, Copyright and the Internet: The issue of internet Regulation with regard to Copying and Copyrigh, 2011). Caricom and its Caribbean Single Market and Economy Secretariat are yet to respond to the growing complexity of International Intellectual Property in any comprehensive manner and to proffer its citizens some form of leadership on the issues. Internet law is as yet underdeveloped in the region and the lack of investment in technological research and development will serve to ensure that no forward movement is made in this direction.
                              The task of creating intellectual policies and laws for the Caribbean is not simply a question of the wholesale importation and application of rules which come from one regimen or another. Countries must look at their economic situations and policies in order to determine what plans would best serve their productive and developmental interests. This is especially related to the TRIPS agreement to which most are signatories and which has exceptions which are arguably useful in providing some leeway for them to pursue their goals while in compliance with the international obligations. This is not to suggest that it is necessary to frame the entire IP regulatory framework on the TRIPS requirements and exceptions or to engage TRIPS plus arrangements[5], the creation of public policy and the ensuing laws must take into account what constitutes the best value for the people who must earn a livelihood, performers, producers, resellers, creators and end users. It must also be attentive to the creation of a culture that is receptive to a new modus operandus and be mindful of the need to acquire buy-in (Bryson, 2011) so that the system would be more effective. It is a mistake made by many policy makers who merely legislate change and expect the public to adhere overnight. The value of copyright must be sold to the public as well as legislated in order to be successful. It is necessary to avoid the sui-generis creation and application of IP laws.            To conclude our discourse this evening, I quote the acclaimed American publisher Jason Epstein, “Our civilization has been enriched, preserved, interpreted and handed down to us mainly by writers. Our future too is in their hands. Copyright is the sine qua non of their survival. Without it, writers cannot afford to write, and how then shall we learn who we are? 

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