Transcript Slide 1

The lack of coherence in
international agreements that relate
to access to information
Strategic Dialogue on Coherence Between Multilateral, Regional and
Bilateral Processes on Intellectual Property and a pro-Development
Agenda on IPRs
Working Towards Coherence in IPRs Issues
Manon Anne Ress
CPTech
November 20, 2003
1.
What do international agreements say
about access to information?
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2.
Declarations on education, development or
human rights
Trade agreement provisions on copyright
and related rights
How can we better incorporate
development and other social objectives
into trade agreements?
UNIVERSAL DECLARATION OF HUMAN RIGHTS
Adopted by UN General Assembly Resolution 217A (III) of
10 December 1948
Art. 19
Everyone has the right to freedom of
opinion and expression: this right includes
freedom to hold opinions without
interference and to seek, receive and
impart information and ideas through
any media and regardless of frontiers.
Article 27 - UNIVERSAL DECLARATION OF HUMAN
RIGHTS
1.
What does it say?
i.
ii.
2.
Everyone has the right freely to participate in the cultural life of
the community, to enjoy the arts and to share in scientific
advancement and its benefits.
Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or
artistic production of which he is the author.
What does it mean?
i.
ii.
Authors (does not mention owners), should benefit
Moral and material interests are not the same as exclusive
rights –
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the right of creators to benefit when works are commercially
exploited.
The International Covenant on Economic, Social
and Cultural Rights (ICESCR) December 1966
• Article 13, the longest provision in the Covenant,
is the most wide-ranging and comprehensive
article on the right to education in international
human rights law….
March 1990 UNESCO
The declaration was adopted by 155 governmental
delegations
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Therefore, we participants in the World Conference on Education for All,
assembled in Jomtien, Thailand, from 5 to 9 March, 1990:
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Recalling that education is a fundamental right for all people, women and
men, of all ages, throughout our world; Understanding that education can
help ensure a safer, healthier, more prosperous and environmentally sound
world, while simultaneously contributing to social, economic, and cultural
progress, tolerance, and international cooperation; Knowing that education
is an indispensable key to, though not a sufficient condition for, personal
and social improvement; Recognizing that traditional knowledge and
indigenous cultural heritage have a value and validity in their own right and
a capacity to both define and promote development; Acknowledging that,
overall, the current provision of education is seriously deficient and that it
must be made more relevant and qualitatively improved, and made
universally available; Recognizing that sound basic education is
fundamental to the strengthening of higher levels of education and of
scientific and technological literacy and capacity and thus to self-reliant
development; and Recognizing the necessity to give to present and coming
generations an expanded vision of, and a renewed commitment to, basic
education to address the scale and complexity of the challenge; proclaim
the following
World Declaration on Education for All:
Meeting Basic Learning Needs
• EDUCATION FOR ALL: THE PURPOSE
• ARTICLE I - MEETING BASIC LEARNING NEEDS 1. Every
person - child, youth and adult - shall be able to benefit from
educational opportunities designed to meet their basic learning
needs. These needs comprise both essential learning tools (such as
literacy, oral expression, numeracy, and problem solving) and the
basic learning content (such as knowledge, skills, values, and
attitudes) required by human beings to be able to survive, to develop
their full capacities, to live and work in dignity, to participate fully in
development, to improve the quality of their lives, to make informed
decisions, and to continue learning. The scope of basic learning
needs and how they should be met varies with individual countries
and cultures, and inevitably, changes with the passage of time.
6-8 September 2000
55/2. United Nations Millennium Declaration
9. We resolve further:
To ensure that, by the same date [2015], children
everywhere, boys and girls alike, will be able to complete
a full course of primary schooling and that girls and boys
will have equal access to all levels of education.
IV. Protecting our common environment
To ensure free access to information on the human
genome sequence.
V. Human rights, democracy and good governance
To ensure the freedom of the media to perform their
essential role and the right of the public to have access
to information.
The Berne Convention for the Protection of Literary
and Artistic Works (1886 amended1971) is the
most important treaty on copyright
(referenced by TRIPS and most IP trade agreements)
Article 9
Possible exceptions;
(2) It shall be a matter for legislation in the countries of the Union to
permit the reproduction of such works in certain special cases,
provided that such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably prejudice the
legitimate interests of the author.
[note, refers to legitimate interests of author. For works not owned by
authors, author interests are much narrower than owner interests. Author
may want the owner to be protected for a short term to make enterprise
economic, but there is no basis for excessive term, and conflict with author
interest in being read.]
Berne, Article 10: Certain Free Uses of Works:
1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author
(1) It shall be permissible to make quotations from a work which has
already been lawfully made available to the public, provided that
their making is compatible with fair practice, and their extent does
not exceed that justified by the purpose, including quotations from
newspaper articles and periodicals in the form of press
summaries.
(2) It shall be a matter for legislation in the countries of the Union, and
for special agreements existing or to be concluded between them,
to permit the utilization, to the extent justified by the purpose, of
literary or artistic works by way of illustration in publications,
broadcasts or sound or visual recordings for teaching, provided
such utilization is compatible with fair practice.
(3) Where use is made of works in accordance with the preceding
paragraphs of this Article, mention shall be made of the source,
and of the name of the author if it appears thereon
Appendix to the Berne Convention
Special Provisions Regarding Developing Countries
Article III (1)
Any country which has declared that it will
avail itself of the faculty provided for in this
Article shall be entitled to substitute for the
exclusive right of reproduction provided for
in Article 9 a system of non-exclusive and
non-transferable licenses, granted by the
competent authority under the following
conditions and subject to Article IV.
Berne Appendix (con’t)
Article III (2)
(a) If, in relation to a work to which this article applies by virtue of paragraph (7), after the
expiration of
(i) the relevant period specified in paragraph (3), commencing on the date of
first publication of a particular edition of the work, or
(ii) any longer period determined by national legislation of the country referred
to in paragraph (1), commencing on the same date,
copies of such edition have not been distributed in that country to the general
public or in connection with systematic instructional activities, by the owner of the
right of reproduction or with his authorization, at a price reasonably related to
that normally charged in the country for comparable works, any national
of such country may obtain a license to reproduce and publish such edition at that or
a lower price for use in connection with systematic instructional activities.
(b) A license to reproduce and publish an edition which has been distributed as described
in sub-paragraph (a) may also be granted under the conditions provided for in this
article if, after the expiration of the applicable period, no authorized copies of that
edition have been on sale for a period of six months in the country concerned to the
general public or in connection with systematic instructional activities at a price
reasonably related to that normally charged in the country for comparable works.
Berne Appendix Article III, con’t
(3) The period referred to in paragraph (2)(a)(i) shall be five years, except that (i) for
works of the natural and physical sciences, including mathematics, and of
technology, the period shall be three years; (ii) for works of fiction, poetry, drama
and music, and for art books, the period shall be seven years.
(4) (a) No license obtainable after three years shall be granted under this article until a
period of six months has elapsed (i) from the date on which the applicant complies
with the requirements mentioned in Article IV(1), or (ii) where the identity or the
address of the owner of the right of reproduction is unknown, from the date on which
the applicant sends, as provided for in Article IV(2), copies of his application
submitted to the authority competent to grant the license.
(b) Where licenses are obtainable after other periods and Article IV(2) is
applicable, no license shall be granted until a period of three months has elapsed
from the date of the dispatch of the copies of the application.
(c) If, during the period of six or three months referred to in sub-paragraphs (a)
and (b), a distribution as described in paragraph (2)(a) has taken place, no license
shall be granted under this article.
(d) No license shall be granted if the author has withdrawn from circulation all
copies of the edition for the reproduction and publication of which the license has
been applied for.
Berne Appendix, Article III, con’t
(5)
A license to reproduce and publish a translation of a work shall not be granted
under this article in the following cases:
(i)
(ii)
where the translation was not published by the owner of the right of translation or with his
authorization, or
where the translation is not in a language in general use in the country in which the license is
applied for.
(6)
If copies of an edition of a work are distributed in the country referred to in
paragraph (1) to the general public or in connection with systematic instructional
activities, by the owner of the right of reproduction or with his authorization, at a
price reasonably related to that normally charged in the country for comparable
works, any license granted under this article shall terminate if such edition is in the
same language and with substantially the same content as the edition which was
published under the said license. Any copies already made before the license
terminates may continue to be distributed until their stock is exhausted.
(7)
(a) Subject to sub-paragraph (b), the works to which this article applies shall be
limited to works published in printed or analogous forms of reproduction.
(b) This article shall also apply to the reproduction in audio-visual form of
lawfully made audio-visual fixations including any protected works incorporated
therein and to the translation of any incorporated text into a language in general
use in the country in which the license is applied for, always provided that the
audio-visual fixations in question were prepared and published for the sole purpose
of being used in connection with systematic instructional activities.
Some weaknesses of the Berne
appendix:
1. The appendix discourages rather than encourages the use or
licensing of rights by making it complex to negotiate separate use,
arrangements.
2. Some critics believe developing countries do not have the capacity
to overcome the complex procedural barriers to obtain compulsory
licensing schemes
3. Negotiated in the pre-photocopier/internet era, there was no explicit
attention to the role of new information technologies in increasing
access to materials. The entire focus was to authorize local
publishers to reproduce materials.
In general, exports of copies authorized
under a compulsory license are prohibited
Appendix, Article IV
4(a) No license granted under Article II or Article
III shall extend to the export of copies, and any
such license shall be valid only for publication of the
translation or of the reproduction, as the case may
be, in the territory of the country in which it has
been applied for.
Only exceptions to IV.4(a) are for nationals living abroad
Berne is more restrictive than Article 31(f) of TRIPS regarding limits of exports under compulsory license of a patent
31(f) required use to be predominately for domestic market (allows exports up to 49 percent)
31(k) waives 31(f) when licenses are issued as remedy to anticompetitive practices
TRIPS (1994) is the most important
trade and IP agreement
(first broad IP agreement to include effective dispute resolution mechanisms)
Article 7 Objectives
The protection and enforcement of intellectual property
rights should contribute to the promotion of
technological innovation and to the transfer and
dissemination of technology, to the mutual advantage
of producers and users of technological knowledge and
in a manner conducive to social and economic
welfare, and to a balance of rights and obligations.
TRIPS: Article 8 Principles
1.
Members may, in formulating or amending their laws and
regulations, adopt measures necessary to protect public
health and nutrition, and to promote the public interest in
sectors of vital importance to their socio-economic and
technological development, provided that such measures
are consistent with the provisions of this Agreement.
2.
Appropriate measures, provided that they are consistent
with the provisions of this Agreement, may be needed to
prevent the abuse of intellectual property rights by right
holders or the resort to practices which unreasonably
restrain trade or adversely affect the international
transfer of technology.
TRIPS Agreement
Relationship to Berne, and general exceptions clause
Part II, Section 1: Copyright and Related Rights
Article 9 Relation to the Berne Convention
1. Members shall comply with Articles 1 through 21 of the Berne Convention
(1971) and the Appendix thereto. However, Members shall not have rights
or obligations under this Agreement in respect of the rights conferred under
Article 6bis of that Convention or of the rights derived therefrom.
[6bis is the moral rights clause in the Berne Convention]
Article 13 Limitations and Exceptions
Members shall confine limitations or exceptions to exclusive rights to certain
special cases which do not conflict with a normal exploitation of the work
and do not unreasonably prejudice the legitimate interests of the right
holder.
The 1996 WIPO Copyright Treaty
(WCT)
Preamble
recognizing the large public interest,
particularly education, research and
access to information, as reflected in the
Berne Convention
UK Commission on Intellectual
Property Rights Report p.104
“In order to improve access to copyrighted works
and achieve their goals for education and
knowledge transfer, developing countries should
adopt pro-competitive measures under copyright
laws. Developing countries should be allowed to
adopt or maintain broad exemptions for
educational, research and educational uses in
their national copyright laws”.
Who is to be protected?
• Declaration on Human Rights – “authors”
• Berne – “authors”
• Rome “performers, producers, broadcasting
organisations”
• WIPO 1996 Copyright treaty – “authors”
• TRIPS – “right-owners”
• US/Chile FTA: fn 7, References to "authors" in this
chapter refer also to any successors in interest.
• US/Singapore: “authors, performers, producers of
phonograms and their successors in interest.”
Existing minimum terms of Protections
• Berne – life plus 50 years, except for photographs, which
are protected for 25 years
• WIPO 1996 WCT – life plus 50 years
• Rome – 20 years
• TRIPS
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Copyright owners – 50 years
Performers and Producers – 50 years
Photographs – (Berne) 25 years
Broadcasting organizations – 20 years
• Proposed WIPO – Broad/cable/webcasting treaty – 50
years
• US/Chile FTA – 70 years
• US/Singapore FTA – 70 years
FTAA Copyright Provisions
Article 10. Term of protection
[10.1. With respect to the term of protection, the provisions of the Berne Convention
shall be applicable.]
[10.1. Each Party shall provide that: a) where the term of protection of a work (including a
photographic work), performance or phonogram is to be calculated on the basis of
the life of a natural person, the term shall be not less than the life of the author and
70 years after the author’s death; b) where the term of protection of a work
(including a photographic work), performance or phonogram is to be calculated on a
basis other than the life of a natural person, the term shall be not less than 95
years from the end of the calendar year of the first authorized publication of the work,
performance or phonogram or, failing such authorized publication within 25 years
from the creation of the work, performance or phonogram, not less than 120 years
from the end of the calendar year of the creation of the work, performance or
phonogram.]
[10.2. The term of protection for authors of photographic works shall be 50 years counted
from the end of the calendar year of their making.]
Other terms of protection
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Data for registration of products
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Orphan Drug development – 7 years in US, 10 years in Europe
Pediatric testing exclusivity – 6 months in the US
Database protection (includes protection of collections of non-original or noncopyrighted works)
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pharmaceuticals – 3 to 5 years in the US, 7 years in Australia, 6 to 10 years in Europe
Agricultural products – 10 years in US with mandatory compulsory license
15 years in Europe, renewed when database is updated
Semi-conductor design – TRIPS requires 10 years
Other Industrial designs
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TRIPS – at least 10 years
US
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Boat hull designs – US sui generis protection for 10 years
design patents – 14 years for new, original, and ornamental design for an article of manufacture
UK – 5 years, renewable for up to total of 15 years of protection subject to compulsory
license after first 10 years of protection
EU – 5 years, renewable for up to 25 years
Plant breeder rights
–
FTAA, no less than 15/20 years, except for vines and trees, no less than 18/25 years.
The FTAA Place holder for a treaty on Broadcaster Related
Rights is Objectionable
• The WIPO proposals for a broadcaster/webcaster treaty would allow
broadcasting organizations to exercise 50 years of exclusive rights
over material they did not create or own, including information that is
in the public domain, or even when the author encourages free
dissemination.
• The US and some other countries have proposed extending this
instrument to computer networks such as the Internet. If the
definition of covered subject matter is broad, it could create an
entirely new layer of IP rights that would apply to every web page.
• Bad precedent to agree to 50 year term for investment based
protection.
– (even less deserving than database protection)
Could FTAA provisions on copyright related issues
have been useful?
(thinking about what we would have done)
• Minimum standards for exceptions relevant for Internet
– No IP claims for hypertext linking
– Agree to permit reverse engineering necessary to achieve interoperable
products
• Joint approach to require disclosure of assertions that
implementation would infringe on patents
• Public Funded R&D to enter public domain
– Open journals
• Support for Open Source/Free software
– Governments require use of open standards for file formats
– Limit scope of software patents
• Agreement to support public domain distance education tools
• Technological measures
– Least privacy restrictive methods
– Minimum exceptions to protect the visually impaired,
Strategies for Civil Society
• Differentiate rights of authors from owners
– Support economic interests of authors,
– oppose excessive levels of protection, and promote non-exclusive rights
models where appropriate.
• In trade proceedings, elevate discussions of software, focusing on
abuses of Microsoft monopoly
– Microsoft and Bill Gates are polarizing and unsympathetic figures
– Cost of Microsoft monopoly is high in terms of price and (low quality) of
software
– Frame issue in terms of “open source” or “free” software development
models.
• Open new front on access to essential learning tools
– April 5 meeting in NYC at Ford Foundation
• Textbooks, journals, databases, software and distance education tools