U
e-Copyright Bulletin
April - June 2005
DOCTRINE AND OPINIONS
THE PERSISTENCE OF PIRACY: THE CONSEQUENCES FOR CREATIVITY,
FOR CULTURE, AND FOR SUSTAINABLE DEVELOPMENT1
Darrell Panethiere
1. INTRODUCTION
It is a maxim of the law in many countries that a right without a remedy is, in effect, no
right at all. This is well-illustrated in the field of intellectual property where authors and
other rightsholders are so often unable to enforce the rights which the law gives to them.
This in a nutshell is the problem of piracy. The rights of authors, performers, publishers,
broadcasters, and many others whose livelihoods depend upon the recognition of rights in
intellectual property, particularly of copyright, are too often ignored by persons
intentionally, deliberately, and systematically attempting to profit from the creations of
others. In a field as complex as that of intellectual property, it is no doubt true that some
people do not fully understand the rights of others, and thus may at times negligently
infringe copyright. But piracy, properly understood, derives entirely from a wilful
determination not to respect those rights.
A leading expert in the field of intellectual property has elaborated in the following
terms: "To some persons the term 'piracy' may have a slightly romantic connotation
conjuring up visions of swashbuckling Caribbean buccaneers; but there is nothing
romantic nor swashbuckling about the pirates of intellectual property. They are
criminals, usually operating on a large and organised scale, engaged in the theft of the
products of other peoples' talents, skills and investment.”2 Since this quotation was
published, in 1992, the problem of piracy has only grown and has been understood as a
worldwide phenomenon often involving the most advanced forms of organised crime. In
addition, piracy has in the past decade revealed an entirely new aspect through its
emergence and unprecedented growth over the internet.
The problem of piracy has attracted repeated and sustained attention from government
policy makers and from law enforcement officials. Treaties and international agreements,
implemented in national law, have focused on its elimination. UNESCO in particular has
1
This study was prepared by Mr. Darrell Panethiere at the request of UNESCO Secretariat for the 13th
Session of the Intergovernmental Copyright Committee. Darrell Panethiere is Attorney at Law (Member
Illinois Bar; US Supreme Court Bar). Former Chief Counsel, Intellectual Property, US Senate. The
opinions expressed in this study are not necessarily those of UNESCO Secretariat.
2
D. de Freitas, “Piracy of Intellectual Property and the Measures Needed to Counter It,” UNESCO
Copyright Bulletin, Vol XXVI, part 3 (Paris: 1992), p. 7. (Intergovernmental Copyright Committee,
10th Session, 1995). See: http://unesdoc.unesco.org/images/0010/001014/101440e.pdf
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April - June 2005
long recognised that the rights of authors and artists are jeopardized by the spread of
piracy and that measures to prevent piracy were crucial. This for the reason that,
“Cultural industries - including books, audiovisuals and multimedia - generate jobs,
income and revenue and are at the same time a central vehicle for promoting cultural
diversity at local and international level.”3 While the full eradication of piracy may not
be achievable, it is possible that its worst effects be limited or neutralised.
1.1. Piracy defined
In its usual sense, 'piracy' refers to the activity of manufacturing unauthorised copies
('pirate copies') of protected material and dealing with such copies by way of distribution
and sale.”4 The rights of authorisation infringed by those who make and deal in pirate
copies are the rights of authorship generally protected by copyright, as well as the rights
of ownership, particularly in the case of sound recordings, which are generally protected
by neighbouring rights regimes. In its wider sense, and as often spoken of in the popular
press, "piracy" may also refer to acts of "bootlegging" (the making of an unauthorised
recording of a live performance) and of "counterfeiting" (selling works made to resemble
a genuine copy, as by replicating the label, the packaging, or the recording itself).
1.1.1. Internet piracy
Traditional definitions, particularly as embodied in national criminal codes, generally
view piracy in the context of acts intentionally committed with the goal of obtaining a
commercial advantage of some kind. More modern formulations, however, recognise
that the essential sine qua non of piracy consists in significant damage to the interests of
those rightsholders whose protection is the aim of intellectual property regimes and that
this damage increasingly is sustained by conduct with little or no commercial motivation.
Thus it has already become common to see acts of unauthorised distribution of protected
works over the internet, such as occurs on a massive scale in the context of peer-to-peer
file sharing, termed "piracy", even if an economic motive for the rights violation may not
be present. This is appropriate. Infringement of IP rights occurs when the prohibited act,
whether of unauthorised copying, distribution or public performance, occurs.
Considerations of intent or commercial gain generally go to the issue of appropriate
damages rather than having relevance to liability.5 When the interests of rightsowners are
impacted to the degree that unauthorised copying over the internet has already affected
creative industries around the world, then it is no doubt appropriate to speak of this
conduct as "piracy."
3
UNESCO, Approved Programme and Budget, 2004-2005, at 201 par. 04321 et seq.
4
J.A.L. Sterling, World Copyright Law, London, 1999, art. 13.12.
5
D. Panethiere, "The basis for copyright infringement liability: the law in common law jurisdictions,"
[1997], European Intellectual Property Review, Special Report 15, at 15.
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2. THE EXTENT OF THE PROBLEM
That piracy of goods embodying intellectual property is an enormous worldwide problem
cannot be denied. The only significant difference of opinion among those who have
studied the issue relates to the extent of the problem. But even here there is a remarkable
agreement. The World Customs Organization, for example, has found in its most recent
survey that around 5% of all world trade is trade in pirated goods. The European
Commission has, in similar terms, concluded that between 5% and 7% of world trade
depends on piracy, representing 200 to 300 billion euro in lost trade. Surveying the same
terrain, OECD puts the estimated loss to world trade as somewhere in excess of 5%.6
Other international organisations, industry associations, and non-governmental
organisations have published estimates in the same range.
Another measure of the extent of the problem can be seen in the number of job losses
directly attributable to piracy. These have been estimated at 120,000 a year in the United
States of America and over 100,000 in the European Union (referring to the 15 member
states, constituting the EU pre-2004).7
2.1. Piracy of cultural goods embodied in physical carriers.
2.1.1. Music
The piracy of recorded music embodied in physical carriers - primarily of CD's, but also
in many territories of cassettes - continues without let-up. And despite widespread press
attention to the newer phenomenon of internet piracy, commercial piracy in its traditional
form continues to be an important, and in some territories, a growing problem. In its
most recent report summarising the extent of the problem, the International Federation of
the Phonographic Industry (IFPI) estimates that commercial piracy of physical formats in
the year 2003 accounted for US $4.5 billion in illegal sales worldwide. This compares to
an estimated global loss the previous year of US $4.6 billion8, and of US $4.3 billion in
2001.9 In 2003, more than one in three CD's sold in the world were pirate products. If
music cassettes are considered, the figure is even higher, as the IFPI estimates that piracy
now amounts to 40% of all music products sold worldwide.
But in measuring the full economic effects of the piracy of music, it is necessary to look
beyond just the losses of phonogram producers. There are in addition the recording
artists, from all over the world, whose principal source of income is derived from the
royalties that these sales, had they been legitimate, might have been expected to produce.
In addition, a significant percentage of this lost income would have gone to the music
publishers, and the songwriters and composers they represent, as all of these illegal CD's
6
K. Idris, Intellectual Property: A Power Tool for Economic Growth, Geneva, 2001, at 301.
7
Idris, supra, at 301.
8
IFPI, Commercial Piracy Report 2003, London, 2003.
9
IFPI, Music Piracy Report 2002, London, 2002.
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and cassettes embody the unauthorised mechanical reproduction of copyrighted songs
and other compositions. Secondary to these direct losses are all of the other
consequential losses that piracy inevitably triggers: loss of employment opportunities in
recording studios and retail stores, as well as losses from all of the other ancillary
industries which contribute to the music industry, such as graphic artists and musical
editors, video and film support, and marketing, promotional, and advertising experts. A
knock-on effect on live music and touring can also be expected, particularly in high
piracy territories, as recording companies have less incentive to develop and promote
touring opportunities where no incremental effect on legitimate sales can be expected.
Indeed, investment of all kinds that would traditionally have been devoted to developing
and marketing new music and new sound carriers is strangled by the spectre of piracy.
The music business is a risky enough enterprise even in the most secure of territories -
but when the spectre of piracy is added on top of the all the other variables, it is not
surprising that investors migrate to safer industries.
The reasons for the persistence of such a high level of commercial piracy of music,
despite some significant gains in enforcement in key territories, are various. One
significant factor is the rapid spread of CD-R burners. This is coupled with continuing
increases in the duplication speed that CD-R burners are capable of. It is now, for
example, possible to make a new copy of a standard 74 minute disc in just over three
minutes. Another factor is the rising global overcapacity for the manufacture of
legitimate discs. While this factor affects the piracy of film and computer software
products as well, its impact is perhaps felt most strongly in the music sector. IFPI
estimates that there are now approximately 1,040 optical disc plants worldwide, 300 of
them coming online in only the past four years, despite declining legitimate markets for
their products.10
2.1.2. Films
It is estimated that the U.S. motion picture industry loses in excess of US $3 billion
annually in potential worldwide revenue due to commercial piracy, without even taking
into account losses from internet piracy.11 The losses suffered by the film industries of all
the other nations of the world are, in aggregate, likely to amount to a further
US $1 billion in losses every year to the local economies of countries such as India
(which has the world’s largest film industry), as well as Japan, Egypt, and many other
countries which have established film industries.
With regard to online piracy losses, losses of an additional US $ 850 million for the year
2004 have been estimated.12 One in 5 European households already has a broadband
connection sufficient to send music and audiovisual files over computer networks.13 As
broader bandwidth capacities are developed for consumers around the world, the losses
attributable to online piracy are certain to grow considerably.
10
Id.
11
Source: Motion Picture Association of America; see: http://mpaa.org/anti-piracy/ .
12
See, W. Triplett, 'Online pic pirates face more lawsuits,' Daily Variety, 24 February 2005.
13
Keith Jopling, Director of Market Research, IFPI, quoted in 'Broadband boosts music piracy,' The
Australian, 8 February 2005.
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A look at specific countries reveals problems on an enormous scale. China already
generates US $2.3 billion annually in video revenues (there are more than 100 million
video and DVD players in Chinese homes), while box office receipts from motion picture
exhibition equal only US $300 million. And, according to film industry sources, only
around US $400 million of this multi-billion revenue is spent on legal product.14 In
Russia alone the US film industry is said to have lost more than US $500 million in
2004.15 Comparable figures have been reported for Brazil. Between 1998 and 2002,
economic losses to the US motion picture industry due to audiovisual piracy in Brazil
were estimated at US $605 million.16
But film industry losses from piracy are not a problem only for the major US studios.
Thousands of Bollywood DVDs and CDs are sold in the UK annually, yet it is estimated
that at least 4 out of 10 (and some would say as many as 7 out of 10) of these are pirate
products.17 That is a far higher average of piracy in the UK, than is experienced by
Hollywood movies or other western DVDs.
2.1.3. Software
In the field of computer software, the value of losses to the economy of developed and
developing countries alike is immense, far greater even than that seen with respect to
music and films. The Business Software Alliance, estimates that thirty-six percent of the
software installed on computers worldwide was pirated in 2003, representing a loss of
nearly US $29 billion.18 In other words, while US $80 billion in software was installed
on computers worldwide last year, only US $51 billion of that was legally purchased, a
worldwide piracy rate of 36%. In key regions of the world far greater rates of piracy
have been seen. The piracy rate in the Asia/Pacific region was 53%, with dollar losses
totalling more than US $7.5 billion. In Eastern Europe, the piracy rate was 70%, with
dollars losses at more than US $2.2 billion. The average rate across Latin American
countries was 63%, with losses totalling more than US $1.2 billion. In the Middle Eastern
and African countries, the rate was 55% on average, with losses totalling nearly US $900
million.
While the rates of piracy in Western Europe (36%) or in the United States (23%) may be
less, the costs in terms of lost sales are immense: US $7.2 billion and US $9.6 billion
respectively, in 2003 alone.
2.1.4. Book publishing
The cultural industry with the longest history of dealing with piracy is, of course, book
publishing. Piracy continues to plague authors, particularly in poorer countries where
trade in pirated books often exceeds the legitimate market, but also in established
markets. As of 2001, the annual turnover of the legal publishing industry in Latin
14
See, D. Groves, 'Warners steps up China bid; WB takes on piracy one market at a time,' Daily Variety.
15
N. Holdsworth, 'Piracy Group Urges Action Against Russia,' Hollywood Reporter, 15 February 2005.
16
Source: MPAA: '2003 Brazil Piracy Fact Sheet,' Washington: 2003.
17
See, O. Gibson, 'Bollywood claims scalp in fight against bootlegs,' The Guardian, 23 February 2005.
18
See, O. Gibson, op. cit.
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America and Spain was estimated to be US $5 billion a year, compared with a pirate book
market of US$8 billion. The specific loss to authors’ royalties was nearly US$500
million.19 In Mexico, by contrast, only 2 of every 10 books sold are pirate products, but
this still causes a loss to the Mexican publishing industry and its authors of 1.25 billion
Peso’s.20 In South Africa, to take another example, it is estimated that 40-50% of the
R400-million textbook market is lost to piracy and illegal photocopying.21 And the
Association of American Publishers estimates that American publishers lost over US$500
million in 2004 due to copyright piracy.22 This takes the form both of illegal commercial
photocopying, as well as print piracy, and electronic piracy of books and other printed
material in digital form. A growing problem of particular concern to book publishers is
the increasing numbers of illegal downloads of online journals, as well as the
unauthorized digitisation of collections by libraries, together with a marked rise in the
sharing of such digitised versions of works.
2.2. Broadcast, cable, satellite, and other forms of signal piracy
The market for broadcasts, and in particular for satellite transmissions, is worldwide, and
so is the growing problem of signal piracy. While in some developed markets such as
Germany and Australia, the level of signal piracy is as low as 1%; in others, such as the
UK, the level of signal theft piracy is thought to be approximately 10%.23
Broadcasters and others who transmit commercial programming have long complained
about the problem of signal piracy and view the existing international framework for
protecting broadcast organisations,24 as insufficient to adequately protect against this
form of theft of services. Presently, WIPO’s Standing Committee on Copyright and
Related Rights continues, after several years of deliberations, to consider a new draft
Treaty for the Protection of the Rights of Broadcasting Organizations. While the draft
Treaty contains provisions beyond those needed simply to regulate signal piracy on an
international basis, its most fundamental requirement would establish (or in the view of
some, merely reinforce) an international norm providing broadcasters with protection
against the unauthorised recording, retransmission, and reproduction of their broadcast
signals.
As an example of the problem in this area faced by regional broadcasters in smaller
markets, a broadcasting representative has given the following example: "If a
broadcaster in, say, Belize has paid for the right to broadcast the Olympics and takes its
feed from [US broadcaster] NBC, it needs broadcast rights to be able to get an injunction
19
L. I. Kuntz, “Pirates and the Paper Chase,” UNESCO Courier, March, 2001, at 41, citing figures
provided by the Interamerican Publishers’ Group.
20
“Mexico: Recording, Video Game and Software Sectors Lose US $ 1.5 Billion in 2004,” El
Economista, 29 March 2005.
21
B. Wafawarowa, “Legislation, law enforcement and education: copyright protection in the developing
regions,” BPN Newsletter, Issue No. 30, May 2002.
22
http://www.publishers.org/antipiracy/index.cfm
23
MPAA 2003 Full Ten Country Piracy Fact Sheet, p. 28;
http://www.mpaa.org/PiracyFactSheets/PiracyFactSheetTenCountries.pdf
24
Rome Convention, art. 4.1 infra.
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against other stations that might copy the feed and send it out.”25
2.3. Internet and online piracy
Online piracy is widespread, and its continued growth is a function of high-speed internet
access and improving forms of compression technology. Already, for example, 58% of
South Koreans internet users have, according to a recent study, downloaded a commercial
film without authorisation.26 It has been estimated that around the world almost 3 billion
copyrighted songs are illegally downloaded each month, the equivalent of 200 million
stolen compact discs or 85 million songs per day.27 The consequences of this
technological revolution for enabling even further piracy of cultural goods are obvious
and well-known. Yet some aspects of online piracy are fundamentally different from
traditional commercial piracy and should be borne in mind:
• online piracy is frequently not committed for profit or other commercial
gain, but the losses it causes can be catastrophic;
• online piracy is, at least from a technical perspective, more easy to detect
and its perpetrators more easily discoverable;
• online piracy cannot be wholly committed by a criminal enterprise, as
traditional piracy always is, but instead requires for its successful
completion the active participation, usually for profit, of legitimate
commercial enterprises, either as facilitators of the piracy or as processors of
illicit payments.
2.3.1. The nature of the internet
From the copyright perspective, it is important to note that the internet, in its essential
public aspect (World Wide Web), is a system designed primarily for the distribution of
works and information in the form of copies. These can be distributed - though much
more slowly and less efficiently - in other forms, as through pure transmission services
that leave no copies. But the internet is entirely a copy-based enterprise, and thus
engages the regimes of copyright and neighbouring rights in a fundamental sense. Copies
of works of any description that can be rendered in digital form are the heart of the
internet. This reliance upon multiple and repeated acts of copying in the transmission of
works is a design decision underlying the structure of the internet; it is not an inevitable
aspect of the technology nor of the internet's function as a vast public forum for
discourse. Many further instances of copying on the internet (particularly acts of
'caching') reflect further design decisions to achieve economies of scale, speed, and
reliability on the part of the copier.
25
Comments of Ben Ivins, Senior Associate General Counsel for the [US] National Association of
Broadcasters, quoted in W. Grossman, "Broadcast Treaty Battle Rages On", Wired Magazine Online,
Aug. 28, 2004.
26
B. Fritz, “Pic Piracy Rampant in South Korea,” Variety Technology, 8 July 2004.
27
Brief filed by 40 US State Attorneys General in Metro-Goldwyn-Mayer Studios Inc. v. Grokster (US
Supreme Court), http://www.copyright.gov/docs/mgm/StatesAG.pdf , citing L. Grossman, 'It’s All
Free', Time, 5 May 5 2003.
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These points are important to consider as an introduction to internet piracy, because so
much of the structure of the internet is presented in public discourse as inevitable, pre-
ordained, and essentially unalterable, whereas in point of fact there is no necessary reason
why this should be so. From the perspective of public policy, it is possible to regulate the
internet to serve the interests of authors, and of culture - just as the airways are regulated
- and to modify and restrain some of the worst features of an internet that has to date been
allowed to develop in an essentially unregulated manner, accommodating instead the
convenience of software designers, of telecommunications companies, and, it must be
said, of pirates.
2.3.2. The myth of internet anonymity
A commonly-misunderstood feature of the internet is reflected in the widespread view
that activities conducted through internet transmissions - including most acts of online
piracy - cannot be measured or traced. Thus, it is often said that new forms of piracy,
particularly over the internet, present problems not seen before because these acts are
often undetectable.28 This is not, strictly speaking, correct. No transaction, or act of
copying over the internet, particularly over the World Wide Web, is inherently
undetectable. Instead, common internet transactions are usually detectable unless barriers
to detection are intentionally erected. And more de-centralized operations, such as peer-
to-peer file-sharing, can be designed to be less anonymous. This after all is true of
traditional telephone calls, which are only tracked and recorded because systems have
been designed and implemented to do just that. Thus, it is simply a matter of software
design and corporate responsibility.
Many acts of unauthorised copying over the internet are carefully tracked, recorded, and
measured by volume of bandwidth consumed as well as by increments of time elapsed
down to the smallest micro-second. This contrasts sharply with the situation in the
physical world where every small market trader, car boot sale proprietor or street corner
vendor who might deal in pirated goods, enjoys an anonymity that an online pirate can
only aspire to. The reasons why online pirates appear to be anonymous, when in fact
they are not, have nothing to do with technology and have everything to do with policy
and government resolve, or lack thereof, to address the problem of online piracy.
Privacy concerns must be recognised, but only on the same terms as privacy concerns are
recognised in other aspects of private life. Internet piracy is not a form of free speech or
legitimate civil disobedience.29 And one surely has no greater expectation of privacy for
internet communications than for telephone calls or other private communications where
the full tools of law enforcement are regularly employed in the detection of crimes,
through wire taps, search warrants and other means.
28
See, e.g., BSA statement on internet piracy at http://www.bsa.org/usa/antipiracy/Internet-Piracy.cfm;
("The Internet allows products to move from computer to computer, with no hard media transaction and
little risk of detection").
29
"[T]he [free speech provisions of the] First Amendment do not protect copyright infringement. . . Nor is
this an instance where the anonymity of an Internet user merits free speech and privacy protections." In
re Verizon Internet Services, Inc, 257 F. Supp. 2d 244 (D.D.C. 2003).
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Last but not least, a certain lack of clarity and of a harmonised approach in the
application of the exceptions and limitations to copyright protection, to some acts of
exploitation of protected works on the Internet (particularly the acts of uploading and
downloading) can be considered another reason for the expanding phenomenon of
internet piracy. As provided in UNESCO’s Recommendation on the Promotion and Use
of Multilingualism and Universal Access to Cyberspace an updating of national
copyright legislation and adaptation to cyberspace should be undertaken, taking full
account of the fair balance between the interests of authors, copyright and related rights-
holders, and of the public, embodied in international copyright and related rights
conventions.30
2.3.3. The online criminal enterprise
Those who engage in piracy of physical goods generally manufacture, distribute, and
market their illicit goods themselves or through underground networks of accomplices.
At no stage in the process of committing their crimes, except perhaps in the context of
money laundering the profits, are traditional pirates forced to rely on obtaining assistance
from legitimate businesses. Online piracy is different. No online pirate has the ability,
acting solely through illegitimate operators, to infringe the rights of rightholders. The
internet transmission facilities required to commit acts of online piracy are too
complicated and expensive to be replicated by pirates. Instead, it is essential that pirates
employ legitimate online service providers and others to make and distribute the illicit
copies that they distribute in the millions; and, where online piracy is committed for
profit, that legitimate credit card and online billing services be used to facilitate these
crimes. Thus, there are, at least in theory, numerous points at which online piracy could
be stopped through the cooperation and assistance of legitimate businesses.31
Given these trends, it is perhaps not surprising that online piracy is growing far faster
than piracy in the physical world. One can only imagine how easily and uncontrollably
signal piracy, for example, would proliferate if pirates had no need to construct their own
transmission facilities but could simply, for a small monthly subscription fee, employ the
services of legitimate commercial transmitters to carry their pirated signals, safe in the
knowledge that the commercial facilitator of this piracy faced no liability for its conduct
Recommendation on the Promotion and Use of Multilingualism and Universal Access to Cyberspace, par. 23.
30
31
Internet service providers have consistently argued that the traditionally prevailing rules of liability for
direct infringement of copyright should not apply to their acts of copying and distributing illicit material
over electronic networks, and have sought legislative solutions to lessen their liability. Compromises
embodying a general exemption from direct liability for ISP's coupled with new obligations for ISP's to
cooperate in the control of online piracy have been enacted into law in both the US (Digital Millennium
Copyright Act of 1998; Pub. L. No. 105-304, 112 Stat. 2860 (1998)) and the European Union (Directive
on Electronic Commerce; Directive 2000/31/EC of the European Parliament and of the Council of 8
June 2000 on certain legal aspects of information society services, in particular electronic commerce, in
the Internal Market). Despite these solutions, rightsholders have still repeatedly been forced to pursue
litigation over several years simply to get to the first step in any piracy investigation, disclosure of the
identity of known pirates. See, e.g., Recording Industry of America, Inc. v. Verizon Internet Services,
Inc., 351 F.3d 1229 (D.C. Cir. 2003).
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and would even take affirmative steps to shield the pirate from detection.32
2.3.4. New piracy problems for additional cultural goods
Online piracy is also broader in scope. In addition to the creative industries traditionally
burdened with significant levels of piracy, online theft extends to categories of
rightholders - including photographers, illustrators, and graphic artists - whose works in
the physical world were more rarely pirated due to the difficulties involved in
reproducing photographic images, graphic arts, and quality books, through traditional
means. This development disadvantages traditional culture and regional heritage in a
way that traditional commercial piracy did not, and the widespread unauthorised online
copying of these works of local authorship threatens the secondary market for all those
industries. Another aspect of online piracy’s broader scope is the fact that it has sprung
up in developed countries, particularly in Nordic countries, where commercial piracy has
been largely held in check.
3. THE EFFECTS OF PIRACY
3.1. Negative effects on creativity and on the cultural sector generally
The cultural and information industries now form important and well-recognised
contributory components of the economic and cultural development of any country. They
add considerably to national wealth, and therefore pirate activities which undermine these
industries, have a corresponding negative effect on national wealth.
The copyright industry provides employment in Australia, for example, for over 200,000
workers (over 3% of the Australian labour force); in Germany, the same industries
account for 800,000 jobs (over 3.6% of the German labour force). Similar statistics are
seen in the United Kingdom, where just under a million people work in the copyright
sector, producing a share of the British Gross National Product that exceeds the share of
both the automobile and food manufacturing industries.33
3.1.1. Specific effects in developing countries
While it is possible to summarize the negative effects of piracy on the economy of any
developing country in purely economic terms - as so many jobs lost or so much in lost
investment dollars - it is important to appreciate as well the many other deleterious
effects of piracy. And while these effects - such as the presumed absence of works of art
that might otherwise have been created - are inherently difficult to measure, no one
32
See,. e.g., Recording Industry of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C.
Cir. 2003).
33
See generally, S. Alikhan, Socio-Economic Benefits of Intellectual Property Protection in Developing
Countries, Geneva, 2000, at 57 et seq.
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doubts their existence. Beyond the simple economic loss caused by piracy, inadequate
respect for cultural works, and the heritage they embody, is the inevitable further
consequence of piracy, an effect that runs entirely counter to national efforts to promote
indigenous culture and identity.34
To consider only the example of pirated music, it is plain to see that allowing pirated
musical products to be sold freely in local markets effectively eliminates all opportunities
for a national recording industry to develop. This is because pirates are only interested in
dealing in a small range of the most popular international recording artists, sure-fire in
demand entertainment products that are highly sought after and can be easily sold. They
have no interest in making works of local artists, or works less widely known, available.
And those independent producers who might in other circumstances have been willing to
invest in local recording artists find themselves unable to compete with illicit product.
Pirates pay no advances to performers, no royalties on sales, no licensing fees to
composers, songwriters, and music publishers, no fees to graphic artists and
photographers, and no tax revenues on their sales. They take no risks and ride along on
the promotional and marketing spend of legitimate producers of the musical albums that
they illicitly reproduce. A legitimate enterprise, which does incur all of those necessary
costs of production, cannot possibly compete with pirate CD's.
From this situation where the recording of local musical artists and local composers
becomes economically not viable, many consequential effects follow. Recorded music
represents the musical life of a society in a particular time. If the best of a nation's
performers are not being commercially recorded, then their works are not being preserved
and the losses to local culture are incalculable. A key element of the historical memory
of the nation is lost. Similar effects are seen with regard to all other creative works.
Another important aspect flows from the fact that music, films, and other copyright
works, represent a key cultural export by which countries, including some of the smallest
and least developed nations, have a voice and a presence in other lands. Small Caribbean
islands are known in very distant countries by people who will never visit them because
recordings of their calypso or reggae artists have found an international audience. With
familiarity of this kind, comes increased opportunities and demand for live touring of
local artists in foreign territories. But if those artists are not recorded in the first place,
then their songs, and the culture they represent, are necessarily exported no further than
the small audience within the sound of their voices.
3.2. Negative effects on creative industries and local economies
Wherever piracy flourishes, it is virtually impossible for local software, film, and music
industries to compete, to grow, or, in emerging economies, to develop at all. All of these
industries require significant investment and, even in the absence of piracy, involve
considerable risk to investors given the highly completive markets for these works and
the difficulty of predicting consumer tastes and desires. Where any considerable degree
34
Supra, at 57.
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of piracy exists in a particular market, making the risk of success even slighter still, it is
not surprising to see investors staying away, with the consequence that new films are not
produced or CD's recorded, and all of the employment and trade opportunities that might
have derived from such investment is lost.
For example, Mexico was for many years among the 10 top-ranking markets for recorded
music. In 2000, its US $665 million market was 8th in the world. Only 3 years later,
retail sales had fallen by 50%, and job losses throughout the industry have halved the
number of individuals working in the music industry. Industry sources attribute these set-
backs directly to increased street-level piracy (51,000 points of sale for pirate music have
been identified in Mexico).35
Recent polls published in Russia are perhaps indicative of a common view: they show
that Russian citizens are not concerned about piracy involving music, films and software
products, because they believe the only victims of this type of piracy are major Western
recording and film studios, which, in their view, have no need for the extra revenue
generated by sales in Russia.36 While this view is short-sighted for many reasons, it may
be sufficient to point out that critically acclaimed Russian artists, such as the conductor
Valery Gergiev or the soprano Anne Netrebko, enjoy the benefits of being exclusive
recording artists for Western record companies, and thus suffer from the piracy of
'Western' CD's, just as Russians whose livelihoods depend on retailing and promoting
international music in Russia lose out when those same CD's are pirated. It is an inter-
dependent enterprise, not a nationally demarcated one.
3.3. Negative effects on sustainable development
Investment in the cultural sector of any country can be significant and sustained over
many years, if investors find in place both an adequate legal system for the protection of
the rights in intellectual property and effective enforcement of those rights. If either
element of this formula is lacking, a nation's ability to attract such investment and to
develop its own cultural industries - together with all of the additional benefits of
increased employment opportunities, wealth creation, and tax revenues - will be lost.
Examples of successful IP industries flourishing in countries throughout the world are
numerous. One could cite, for example, the Indian software industry which expects its
worldwide outsourcing business to grow overall by 26-28 % in 2005 (38 percent
worldwide for higher-level business process outsourcing). India's information technology
sector exported US $10 billion worth of goods and services in 2004 and projects that it
will reach US $21-24 billion by 2008.37 So long as its market is not undermined by
increasing piracy.
35
IFPI, Commercial Piracy Report 2003, London, 2003, p. 8.
36
See, "Piracy Against Progress," Remarks of Alexander Vershbow, U.S. Ambassador to Russia, The
Moscow Times, 25 Nov. 2003.
37
Source: [Indian] National Association of Software & Service Companies (Nasscom), quoted in J.
Kulkami, 'Best Practices in IP Protection When Of Shoring', website of [UK] National Outsourcing
Association, www.noa.co.uk .
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3.4. Negative effects on society
Failing to deal adequately with the problem of piracy clearly has wide-ranging
consequential effects on society. The close connection between organised crime and
many forms of piracy has long been recognised and has recently been authoritatively
documented in the report “Proving the Connection,” published by the UK Alliance
Against Counterfeiting and Piracy.38 For the purposes of this study, the definition of
‘organised crime’ propounded by the UK National Crime Intelligence Service was
followed: “Organised crime constitutes any enterprise, or group of persons, engaged in
continuing illegal activities which has as its primary purpose the generation of profits,
irrespective of national boundaries.”
Less widely publicized are the links between intellectual property crime and the financing
of international terrorism. Interpol has already identified such a connection amongst
terror organisations and piracy.39 Involvement by these groups ranges from control or
investment in manufacturing to taxing the market stalls where counterfeit goods are sold.
Given the fact that piracy and counterfeiting are more profitable than drugs trafficking,
that the penalties are significantly less, and that the entire enterprise is less likely to
attract the attention of law enforcement, Interpol has predicted that this connection is
nearly certain to increase in the future. A UK legislator studying the problem has
summarised it succinctly: “Perhaps the most invidious thing about copyright theft and
piracy is that organised crime has realised that it’s a high margin, low risk way of funding
so many other activities – from drugs and paedophilia, to even gunrunning and
terrorism.”40
A more wide-ranging effect of continuing to allow piracy to flourish around the world is
the negative effect this has on the basic respect for the rule of law and for the property
rights of others. A mentality has clearly developed on the internet in particular that views
any activity that can be committed over the internet as permissible unless and until some
authority affirmatively acts to stop it. Far beyond the confines of copyright
infringements, it is common now to see internet users committing violations of local laws
regulating matters as disparate as gambling; dealing in stocks, securities, and insurance;
or selling alcohol, pharmaceutical products, or other controlled substances. Local and
national laws that otherwise would constrain this conduct are apparently thought no
longer applicable if the prohibited conduct can be committed through the agency of an
online partner, particularly one located in another country. While empirical evidence on
this commonly-seen phenomenon is difficult to come by, it must be likely that any
significant success in breaking the cycle of online piracy of intellectual property can be
38
See: http://www.aacp.org.uk/Proving-the-Connection.pdf.
39
See, "The links between intellectual property crime and terrorist financing," Testimony of Ronald K.
Noble, Secretary General of Interpol, before the US House Committee on International Relations, 16
July 2003.
40
Dr Vincent Cable MP, Liberal Democrat Trade and Industry, quoted in British Video Association
Yearbook 2002, London, 2002, at 23.
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April - June 2005
expected to have the further benefit of instilling a renewed respect for the law and for the
rights of others generally.
4. COMBATING PIRACY
4.1. The international legal framework
From it's inception in 1886 the Berne Convention for the Protection of Literary and
Artistic Works has recognised, in specific terms, the problem of piracy, providing in its
original text that, "Pirated works may be seized on importation into those countries of the
Union where the original work enjoys legal protection”. (Art. 12). Yet the Berne
Convention, even in its several subsequent versions, never imposed detailed obligations
on member states to address the problem of piracy. Protection for works and categories
of creators outside the scope of Berne was embodied in the Rome Convention of 196141
providing important rights to record producers, recording artists, and broadcasting
organisations and, with respect only to sound recordings, in the Geneva Phonograms
Convention of 1972.
The details as to how rights under these Conventions were to be enforced were largely
left to national legal developments. This gap in the international legal framework was
filled in significant part by the WTO's 1994 Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS). That agreement obliges all WTO members to
comply with the substantive provisions of the Berne Convention, imposes obligations
mirroring the Rome Convention protections against unauthorised copying of sound
recordings (art. 14) - but applying them to a far larger number of countries than those
who belong to the Rome Convention - and provides detailed requirements relating to the
enforcement of rights. The goal of the TRIPS enforcement provisions is "to permit
effective action against any act of infringement of intellectual property rights" covered by
the agreement. (Art. 41.1).
The TRIPS agreement now applies to all 135 WTO members, having come into effect on
1 January 2005 for least-developed countries. Thus, it has only been for a few months
that most countries of the world have been constrained by international agreement to
provide significant and detailed provisions in their law to effectively deter and punish
piracy of intellectual property. Should WTO member states fail adequately to implement
the TRIPS minimum enforcement provisions - and rightsholders frequently complain that
they do not - the agreement, like others administered by the WTO, may ultimately be
enforced by a complaint brought by one member country against another.
4.2. National and regional solutions
Increasingly over the past two decades, regional and bi-lateral trade agreements have
included chapters on intellectual property rights and their enforcement. Examples
41
International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting
Organisations (Rome Convention, 1961).
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include the Free Trade Agreement of the Americas (FTAA) and the North American Free
Trade Agreement (NAFTA). This is also a useful means of focusing national legislatures
on the importance of upgrading national law to achieve the higher levels of protection
that would encourage increased regional, and worldwide, trade in this important sector of
a nation's economy.
4.3. Means of enforcing copyright and best practices in the field of
enforcement of IP rights
But it is at national level, and through highly localized customs, police, and courts
systems that piracy must ultimately be confronted if it is to be successfully curtailed. In
recent years many countries have shown a greater willingness to tackle the problem of
piracy, demonstrated a greater awareness of its characteristics, cooperated more
frequently across national borders, and have undergone advanced training aimed at
developing best practices in this area. Nonetheless, specific problems in successfully
enforcing IP rights are frequently reported by rightsholders in the following areas.
4.3.1. Civil damages
Damages recoverable in civil actions must be sufficiently high so that potential pirates are
not tempted to take the risk of being caught. If the pirates know that the worst that can
happen is that they may ultimately be required to reimburse a rightsholder on the basis of
'lost profits' or some other insignificant nominal sum, there is little no deterrent effect
whatsoever. As a coalition of rightsholders most affected by these limitations has stated
in a joint communiqué, "An infringer that expects to pay the same price or less in
damages as it would have paid had it acted legally has no reason to obey the copyright
law.”42 It is also important that the costs of maintaining legal actions to enforce IPR’s be
among the compensable damages recoverable by successful plaintiffs. This is
particularly important if the goals of diversity and cultural pluralism are to be advanced
by an anti-piracy agenda, as there are far more small and individual rightsholders than
major corporations concerned with this problem. But enforcement of IP rights through
litigation is an unrealistic prospect for any small business or individual unless their costs
and attorneys fees are recoverable.43
42
"Enforcement of Intellectual Property Rights: Existing Shortcomings and Best Practices", Copyright
Industries' Response to WIPO Request for Information, Geneva, 2001.
43
In recent developments, the Recording Industry Association of America (RIAA) has pursued litigation
against online users that it identifies as the most prolific purveyors of unauthorised music files online.
It has filed suit against approximately 9,100 file swappers since September 2003. Settlements have
been reached in 1,925 cases. The lawsuits are generally against users who have uploaded, and not
simply downloaded music, and who have committed large numbers of copyright infringements. In light
of this, the average settlement of these cases - reported to be between $3,000 and $4,000 - is modest
considering the amount of statutory damages recoverable under US law for these offences. The British
and French recording industries and the US film industry have also recently begun similar litigation
campaigns. See, W. Triplett, 'Online pic pirates face more lawsuits,' Daily Variety, 24 February 2005;
L. Jury, “Music Fans Pay £50,000 Fine for Illegal Filesharing,” The Independent, 5 March 2005.
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4.3.2. Criminal penalties
Wide discrepancies in the penalties applicable to piracy are still encountered around the
world. In India, a convicted pirate may face a term of imprisonment between six months
and four years; in Hong Kong special administrative region, China, sentences may range
up to eight years; while in the UK, terms of imprisonment up to ten years are possible.44
Unfortunately, in some countries, penalties are so low that the full investigative powers of
the police, including the ability to obtain search warrants, are not applicable for that
category of crime. It is important as well that a minimum term of imprisonment be
available upon conviction in order to provide a true deterrent effect, as does the Indian
Copyright Act, cited above.
A further difficulty encountered in criminal prosecution of piracy stems from the fact that
in some countries, law enforcement authorities do not have the power to investigate
criminal infringements of intellectual property or to themselves initiate criminal actions,
unless a rightholder has first complained. The combined effect of low penalties and
restrictions on the investigative power of law enforcement is inevitably to reinforce the
view in some quarters that intellectual property offences are a low priority. The Council
of Europe, acknowledging this problem, underscored the importance of permitting ex
officio actions in a recent recommendation: "In cases of piracy, member states should
provide for appropriate criminal procedures and sanctions. Over and above action based
on complaints by the victims, member states should provide for the possibility of action
by public authorities at their own initiative.”45
4.3.3. Provisional measures
Prosecutions in the field of IP depend on reliable evidence gathered usually in the face of
concerted efforts to destroy the evidence. It is thus necessary that effective provisional
measures, permitting rightsholders to seize evidence of IP crimes, as well as relevant
documentary evidence in the possession of pirates. While most countries do provide
some form of provisional relief, such measures are often cumbersome and law
enforcement authorities in criminal prosecutions, as well as rightsholders maintaining
civil actions, frequently are unable to secure such measures with the necessary speed.
4.3.4. Rights to obtain information and related measures
Because commercial piracy involves the concerted actions of numerous individuals, often
in various territories, it is essential that courts have the power to order defendants to
disclose other persons involved in infringing activities. The TRIPS agreement recognises
the importance of this ‘right of information’ in a general sense46, and national laws such
as the German Copyright Act, have enacted this principle in specific terms, requiring,
44
Indian Copyright Act (section 63); Hong Kong Copyright Ordinance (section 119); UK Copyrights,
Designs, and Patents Act of 1988 (sections 107, 198).
45
Council of Europe, Rec. (2001) 7.
46
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights , art. 47.
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among other things, that those who infringe copyright may be required to divulge
information as to the origin and distribution channels of the infringing copies in their
possession.47
4.3.5. Evidentiary rules
Rightsholders also frequently assert that they are faced with unreasonably restrictive
evidentiary rules concerning proof of ownership and subsistence of rights in seized and
obviously pirated works. These rules have the effect of delaying court procedures, and,
in many instances, of allowing pirates to escape justice and are fundamentally
incompatible with the Berne Convention, WTO TRIPS agreement, and the national laws
which all require that the person whose name is on the protected material should be
presumed to be the rightsholder. It is common for seizures of significant pirate
operations to include literally hundreds of thousands of different infringing optical discs
of pirated CDs, DVDs, CD-ROMs, and other protected works. Requiring proof of
ownership of every disc, or sometimes even of every track or program embodied on every
disc, obviously represents an unjustified expenditure of time and resources for
rightsholders as well as for courts and law enforcement. The availability of workable
presumptions thus is a critical element of effective enforcement.
4.4. Training and public awareness
Given the vastness of pirate operations now underway and the necessity to deploy
numerous individuals to investigate, regulate, and prosecute offences in this area, a great
deal of training and instruction in best practices is needed on a continual and worldwide
basis. It is necessary to train both the officials and to train the trainers too, in a consistent
program of shared information and principles for any headway to be made here. It is
beyond the scope of this paper to summarise the programs of education, public
information, and training currently being undertaken by UNESCO, particularly within the
framework of the Global Alliance for Cultural Diversity,48 by WIPO, by the European
Union, and by national governments around the world, except to note that these efforts
have resulted in training being offered to concerted local authorities and their staff in
virtually every country of the world. The continuation of, and enhanced support for, the
work of this training programs is essential to seeing any true improvement in the situation
of piracy worldwide.
4.5. Regulation of optical media manufacturers
As indicated above, a significant indicator of the continued growth of worldwide piracy is
seen in the ever-increasing global overcapacity for the manufacture of optical discs. A
47
German Copyright Act, art. 101(1).
48
The site http://www.unesco.org/culture/alliance contains detailed description of on-going projects in
this area.
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April - June 2005
program of regulating manufacturing plants to ensure that this enormous pressing
capacity is not used to produce pirate products has produced impressive results, but so far
only in a limited number of territories (China, Malaysia, the Philippines, Bulgaria,
Ukraine, and Poland).49 While legislative instruments to regulate optical disc plants are
under discussion also in Indonesia, Singapore, and Thailand, the IFPI identifies Russia,
India, and Pakistan as countries in which such regulation is most urgently needed.
5. THE ARGUMENT AGAINST STRICT ENFORCEMENT OF IP RIGHTS
It must be acknowledged that there are those who challenge the need for strict
enforcement of intellectual property rights. They usually base their argument on two
principal points: (1) that piracy, properly understood, actually provides considerable
benefits to rightsholders in the form of free promotion in the form of increased visibility
for their cultural goods; and (2) that the alleged damage caused by piracy is misleading
when calculated in terms of lost legitimate sales being equivalent to the level of
transactions in pirate works.
Both arguments are fundamentally flawed. The only authors and artists who would, even
in theory, benefit from accidental promotional effects arising from the circulation of
pirated works such as CD's would largely be the most popular and most sought-after
international artists. It seems doubtful that these artists, already well-established, receive
much, if any, incremental promotional benefit in this way. A further weakness of the
argument is that it depends on there being in existence a flourishing and vibrant local
legitimate market in order for the promotional goodwill to be translated into legitimate
sales. But, as seen above, piracy drives out legitimate markets, particularly in the
developing economies. The benefits, therefore, if any, of widespread circulation of pirate
titles can only be quite illusory in this context.
And one further point must be made in refutation of this argument. In order for the
critics' view that piracy actually provides significant promotional benefits to be correct, it
is necessary that virtually all rightsholders affected - whether in the music, film,
publishing, software, or other fields - must be fundamentally mistaken as to the economic
forces that underlie their industries. This is because any book publisher, music company
or film studio is free to allow its works to be circulated solely for the supposed
promotional benefits that this may provide, and such a company could also realise
significant savings by not investing in anti-piracy efforts. Surely, at least some
rightsholders would follow this business model if, as the critics postulate, it were actually
in their economic interest to do so. But it is very hard to find examples of this occurring.
The author submits that it cannot be due to sheer coincidence, and is even less likely to be
attributable to universal ignorance, that no significant rightsholder has accepted the
promotional benefits argument by voluntarily acting upon it.
The argument that piracy losses should not be measured in equivalent terms has a surface
attraction. Of course, works which can be purchased for significantly less than legitimate
49
IFPI, Commercial Piracy Report 2003, p. 17, London: 2003.
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product can be expected to sell more units. But pirated works do not always sell for less
than legitimate,50 and lost sales alone is not the full measure of the cost of piracy to
rightsholders. To conceive of piracy only in these terms is to ignore its character as a
civil wrong, in all cases, and as a crime in many. It is precisely because infringement of
copyright is a species of civil wrong, or tort, that the measure of damages recoverable for
even a single instance of copyright infringement is often far higher than the economic
value of the works being pirated. When copyright infringements can also be prosecuted
as crimes, fees and other penalties seeking to have a deterrent effect are also in order. In
territories that guarantee minimum statutory damages, infringers do not simply have to
return the profits they have wrongly realised from their infringing activity but are
required, in most cases, to pay damages far in excess of the lost sales that the rightsowner
could claim. These principles then - and not the concept of lost sales alone - reflect the
true measure of the economic loss suffered by rightsowners whose works are pirated.
Even if all losses from piracy suffered by authors and performers could be calculated in
terms of lost sales alone, this would still only address the issue of losses deriving from
infringement of an author's economic rights. The droit d'auteur recognises that authors
enjoy further rights and that injuries to reputation, honour, and integrity are also
actionable and can provide the basis for the recovery of damages.51 Given this further
dimension, the simplistic view that missed sales alone should constitute the measure of
loss suffered by rightsowners must be seen as incompatible with the basic principles that
underlie the protection of intellectual property and which signify its role as a component
of every country’s cultural heritage.
6. CONCLUSION
While the problem of piracy clearly persists, improvements are seen on many fronts; and
the goal of actual eradication of piracy continues to be at the forefront of policy goals for
the world’s literary and artistic communities and for the industries that have grown up
around them. But this goal cannot be achieved by a single means, such as litigation –
whether civil or criminal – or through training and education alone. As the Director
General of the World Intellectual Property Organization, Dr. Kamil Idris, has observed,
"Concerted action, enhanced public awareness, and galvanization of political will to
eventually eradicate this problem and its negative effects on society” are all required.52
50
See, Kuntz, supra, at 41, for examples of pirated books selling at higher prices than original legitimate
titles in Latin American markets.
51
See, Berne Convention, art. 6bis; WIPO Performances and Phonograms Treaty [1996], art. 5
52
K. Idris, supra, at 300.
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July - September 2005
LEGAL DEVELOPMENTS
COLLECTIVE ADMINISTRATION OF COPYRIGHT IN CHINA
Chao XU*
Contents
I. Development of collective administration of copyright in China........................................ 3
1. The Music Copyright Society of China (MCSC) ......................................................... 3
2. Present situation of the China Literary Works Copyright Society................................ 4
3. Present situation of the China Audio-Visual Products Copyright Society.................... 4
II. Provisions of the Chinese Copyright Law itself.................................................................. 4
1. Important aspects of Art. 8 Chinese Copyright Law .................................................... 4
2. Organizations for collective administration of copyright (OCAC) and copyright
agencies ........................................................................................................................ 7
III. An overview of the “Regulations on Collective Administration of Copyright” ............. 8
1. Preparation and Legislative Aim of the Regulations .................................................... 8
2. Definitions .................................................................................................................... 9
3. Establishment of OCACs ........................................................................................... 10
4. Organizational structure of OCACs............................................................................ 10
5. Relation with Copyright Owners................................................................................ 10
6. Scope of Management ................................................................................................ 12
7. Collection and Distribution of Licensing Fees ........................................................... 12
8. Measures for Dispute Settlement................................................................................ 13
9. Supervision................................................................................................................. 14
10. Legal liabilities ............................................................................................................ 15
* Deputy Director General of the Copyright Department of the National Copyright Administration of
China (NCAC), Beijing, China. The following text represents the author’s elementary
understanding of the system of collective management of copyright in China as well as of the new
Regulations on Collective Administration of Copyright. In cases of doubt the Articles of the
Regulations should always prevail to achieve correct understanding thereof.
e-Copyright Bulletin
July – September 2005
Introduction
According to legal doctrine of civil law countries, the system of collective
administration (or management) of copyright is part of the comprehensive system of
copyright protection in broad sense. 1 The system of collective administration of rights
is specific for copyright law and does not exist in the other fields of IP protection,
such as in patent and trademark law.
In China, the system of collective administration of copyright is brand new. While
the historically very first Chinese Copyright Law was adopted already in 1910, the
system of collective management of copyright did not exist until 1992 when the first
organization for collective administration of copyright was established. In addition to
that, Chinese scholars have made much less effort to do research in the field of
collective administration of copyright, as compared to research on substantive
copyright law issues and international copyright treaties. For that matter, it seems that
there was no adequate expert opinion and experience to draw on in the course of
establishment of the system of collective administration of copyright in China, and
many theoretical questions are yet to be addressed in that field.
In October 2001, the revised Copyright Law2 set forth special provisions on
collective administration of copyright, the significance of which lies in the following
aspects: first, collective administration of copyright is recognized as part of the
legislative system of copyright protection; second, the establishment of organizations
for collective administration of copyright is based directly on the law; and third, it is
shown that the Chinese legislation on collective administration of copyright is more
closely modeled on the copyright legislation of civil law countries since only that
legislation has incorporated the relevant part of collective administration of copyright,
while the copyright laws of the common law countries are not concerned with that
matter (except for the mechanism of dispute settlement concerning copyright
licensing fees).3
1
See A. Dietz, “Draft Report on the Amendment of Chinese Copyright Law” – Elaborated at the
Request of National Copyright Administration of the People’s Republic of China, published in
Chinese and English in Zhishi Chanquan Yanjiu/Intellectual Property Studies (Beijing) No. 10
(2000), p.187 et seq. (Chinese text) and p. 234 et seq. (English text).
2
Copyright Law of the People’s Republic of China of Sept. 7, 1990 as revised on October 27, 2001;
revised text published in consolidated form in Guowuyuan Gongbao 2001 No. 33 p.10; English
translation published in China Patents and Trademarks (Hong Kong) 2002 No 1. p. 83 and
German translation in GRUR Int. 2002, p. 23.
3
For details see Chao XU, “Analysis of and Comments on Difficult Issues Relating to Copyright”,
Zhejiang Education Press, 2000, p. 250 (in Chinese).
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July – September 2005
This article is intended to present an overview of the development of collective
administration of copyright in China and to give an analysis of the relevant provisions
of the Chinese Copyright Law itself as well as of the “Regulations on Collective
Administration of Copyright” as recently passed by the State Council on December 22,
2004 and announced by Decree No. 429 of December 28, 2004.4
I. Development of collective administration of copyright in China
Collective administration of copyright in China started relatively late and
developed slowly. Since 1992 only one organization for collective administration of
copyright (OCAC) has been established in China, namely the Music Copyright
Society of China (MCSC) dealing with collective administration of copyrights in
musical works; two other organizations, the China Literary Works Copyright Society
for collective administration of copyrights in literary works and the China
Audio-Visual Products Copyright Society for collective administration of copyrights
in audio-visual products are actually in the phase of preparation.
1. The Music Copyright Society of China (MCSC)
MCSC was established in 1992 further to a joint initiative of the National
Copyright Administration of China (NCAC) and the Musicians Society of China. The
members of MCSC are mostly composers and lyricists, but there are also some
audio-visual producers and creative societies. MCSC is dealing with the
administration of copyright in musical works, in particular the performing rights
(including live performance and performing of recorded music), broadcasting rights
and mechanical reproduction rights (including making of programs for radio and TV,
background music, audio-visual products and downloading from the internet etc.).
At the beginning, MCSC had very few members; the number of authorized
licenses and the sum of fees received were almost irrelevant. After several years of
development, at the end of 2003 the membership of MCSC was 3103; it administered
14 million musical works among which 160,000 from copyright owners from
mainland China, 4 million from the publishers’ repertoires and 10 million from sister
organizations overseas. The licensing fees for the whole year 2003 amounted to
27.514 million RMB (Chinese currency - Renminbi), 22.389 million of which were
distributed to its members. As from the middle of 1993 until the end of 2003, the total
revenue of MCSC amounts to 92.279 million RMB. MCSC has set up 17 local offices
in Shanghai, Beijing, Sichuan and Jiangsu provinces etc., whose main task is to
provide licenses and collect fees; they are not responsible for distribution of the
revenues which is uniformly undertaken by the head office of MCSC.
4
Published in Guowuyuan Gongbao 2005 No. 7, P. 6; English translation published in China
Patents and Trademarks (Hong Kong) 2005 No. 2, p. 94 and German translation in GRUR Int.
2005, p. 472. Quotations from the new Regulations in the following text are based on that English
translation.
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July – September 2005
2. Present situation of the China Literary Works Copyright Society
This Society was set up in May 2000 after NCAC had approved its application
in November 1999, but it has not yet been approved by the Administrative
Department for Civil Affairs under the State Council. The China Copyright Protection
Center and the Interests Protection Commission of the Literary Society of China are
jointly responsible for preparing its establishment. Its administration field mainly
covers the collection and distribution of remuneration for use of literary works under
statutory licenses, as well as for the communication through information networks,
digital reproduction etc. At present, the main task of the Society is to develop its
membership and in the meantime to redistribute to the rights holders the remuneration,
collected by the previous Chinese Copyright Center for Reception and Redistribution
of Exploitation Remuneration. Now its membership is more than 2200 and mainly
consists of domestic copyright owners of various literary works.
3. Present situation of the China Audio-Visual Products Copyright Society
On November 5, 2001, the NCAC approved the application of the China
Audio-Visual Society as a collective management organization for audio-visual
products. Its main task is to administer the performing, broadcasting and rental rights,
as well as the right of communication through information networks and part of the
reproduction and distribution rights, as far as specially authorized by the right owners.
Since 2001, when the preparation work for collective administration of copyright in
audio-visual works started, more than 70 audio-visual producers have signed
agreements with the Society authorizing it to undertake its administration business.
II. Provisions of the Chinese Copyright Law itself
1. Important aspects of Art. 8 Chinese Copyright Law
Article 8 of the revised Copyright Law reads as follows: "Copyright owners or
owners of rights related to copyright may authorize an organization for collective
administration of copyright to exercise their copyright or rights related to copyright.
After authorization, the organization for collective administration of copyright may
exercise the copyright or the rights related to copyright in its own name for the
copyright owners or owners of rights related to copyright, and participate as a party in
legal or arbitration proceedings concerning the copyright or rights related to copyright.
Organizations for collective administration of copyright are non-profit organizations,
and Regulations concerning the way of their establishment, their rights and
obligations, their collection and distribution of copyright licensing fees, and their
supervision and administration shall be formulated separately by the State Council.”
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These provisions have at least five important aspects as follows:
1. The copyright owners and owners of rights related to copyright (hereinafter
referred to as owners) join an OCAC on a voluntary basis; they are not obliged
to do so by the law. This principle is consistent with the practice of most
countries, which shows that the legislators are fully aware of the fact that
copyright is first of all a private right and that competition should be introduced
when setting up the system of collective administration of copyright. A few
countries, such as Italy,5 however, provide in their respective law that some
rights (e.g. the right of public performance and the right of broadcast) may only
be administered by certain OCACs designated by the State, or else by only one
OCAC.6
This shows that different countries have formulated their system of collective
administration of copyright according to their own practical situation and
necessities. Opinions in China originally were divided as to whether China
should adopt a voluntary system as most countries do, or rather a compulsory
system as those to be found in Italy and in the former Soviet Union. The current
legislation in China was finally adopted according to the opinion of the majority.
It remains to be tested by practice whether or not this model is in line with the
practical situation and necessities in China.
2. The administration of the respective rights must be authorized by the copyright
owners; without such an authorization for collective administration, the
organization could not exercise it. That issue is closely related to the previous
one; the question, however, is whether such an organization has the right to
administer rights of non-members. If it does not have such a right, an insoluble
problem would come up in practice: when an OCAC would grant the users a
license or collect licensing fees, the users would be reluctant to accept the
license because it would not cover all works to be used; the users would also be
unwilling to pay remuneration for it since the licensing fees as paid to the
organization would not include those from non-members. As a result, there
would be no legal barrier to block the users from using others' works, nor would
there be any guarantee for the OCAC to collect the remuneration. Considering
the various provisions on statutory licensing in the Copyright Law with the
5
Art. 180 of the Italian Copyright Law states: “The right to act as an intermediary in any manner
whether by direct or indirect intervention, mediation, agency or representation, or by assignment of
the exercise of the rights of performance, recitation, broadcasting, including communication to the
public by satellite, and mechanical and cinematographic reproduction of protected works, shall
belong exclusively to the SIAE.”
6
In the former Soviet Union there was only one monopoly organization for collective administration
of copyright – VAAP, which exercised collective administration of copyright in all categories of
works. Presently in Russia, however, the situation has changed under the Russian Copyright Act of
1993.
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effect that a user can use published works of others without authorization, but
with the obligation to pay remuneration according to the provisions, said worries
are quite justifiable. That question has been resolved, at least partly, by the new
Regulations as will be demonstrated later.
3. It should be self-evident that an OCAC may operate and participate in litigation
and arbitration on its own. However, with a long history of planned economy,
China is short of practical experience in the area of collective management of
rights, so that it had to be regulated in statutory form.7 This suffices to show
that copyright protection is in its early stage, and there is still a long way to go.
4. An OCAC can only be a non-profit organization. Under the Chinese civil law
system, legal persons are divided into corporate persons and institutional
persons; that is different from the system of legal person in case law countries as
well as from that in civil law countries whose civil laws and commercial laws
are regulated separately. Since under Article 8 Chinese Copyright Law an
OCAC must be a non-profit organization, from the aspect of the Chinese legal
person system it could only be a non-governmental or an "institutional" entity.
However, be it non-governmental or "institutional", such a concept cannot
embrace all the characteristics of an OCAC. In particular, the acts of an OCAC
to issue licenses to and collect remuneration from users are actually
business-like activities.
Consequently, the non-profit character of an OCAC cannot lie in the absence of
such business activity, but rather in the basic principle that it should distribute
one hundred percent of its net income to the copyright owners (after reduction of
the necessary administrative expenses). That difficult question of how to
determine the true character of an OCAC as a legal person under civil legislation
also shows that in China that legislation falls far behind the necessities of
transition from a planned economy to a market economy. Therefore it appears
urgent to determine by new law the precise legal status of organizations with
strong market economy character, such as the OCACs.
5. Finally, specific administrative provisions on organizations for collective
administration of copyright had to be established separately by the State Council,
namely in form of the Regulations of December 2004.8 A comparison with the
legal situation in other countries and regions shows that, while the copyright
laws of most civil law countries contain provisions on copyright collective
management, the provisions are usually set forth in a separate chapter thereof.
Only some countries such as Germany and Japan as well as Taiwan Region of
7
For detail, see Chao XU, On “China’s First Litigation Involving the Participation of an Institution
of Collective Administration of Copyright”, in China Patents & Trademarks, 1998, No. 4, p. 46 et
seq (in Chinese) and p. 49 et seq. (in English)
8
See supra note 4.
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China have enacted a separate Law on Collective Management of Copyright. It
seems that the latter, a more advanced form of legislation, is more conducive to
the establishment and amplification of the system of collective management of
copyright. Obviously, the form of legislation chosen in the Chinese Copyright
Law is more in keeping with the trend of the international development.
2. Organizations for collective administration of copyright (OCAC) and
copyright agencies
The provisions of Article 8 Copyright Law also show that OCAC and copyright
agencies carry out two different kinds of activity. Since there is often a confusion
between them, it seems necessary to clarify the difference.
The difference between OCACs and copyright agencies does not lie in the fact
that the former mainly base their management of the relevant rights on trust (an
OCAC operates on the basis of licensing or an agency contract9) while the latter act as
agents in trade. The two are substantially different in the nature of their organization
and way of operation.
In terms of its nature of organization, an OCAC is an organization of the
copyright owners, whereas a copyright agency is not a copyright owner, but an
intermediary between copyright owners and users. In addition, according to the
Copyright Law, an OCAC must be a legal person and a non-profit organization; the
copyright agency may be a legal or a natural person and also a profit or a non-profit
organization.
As for the scope of operation, an OCAC serves the users nationwide and
provides works of all countries, while a copyright agency serves only determined
users and trades only with determined works.
OCACs collect fees and conduct centralized distribution thereof and, in general,
are set up in the various countries for only one category of works, while several
copyright agencies co-exist, competing with each other.
OCACs have a relatively stable income, stemming mainly from "small rights"
which copyright owners cannot exercise themselves, such as the public performance
and broadcasting rights, while revenues of copyright agencies are not stable. The latter
often act with respect to the “grand rights”, such as those of publication, theatrical
performance, and are seldom concerned with the minor rights.
9
Art. 2(1)(ii) of the Japanese Law on Management Business of Copyright and Neighbouring Rights
states: “a mandate contract by which a consignor entrusts a consignee to act as an agent or a proxy
to authorize the exploitation of his or her works, etc. and manage copyright, etc. correspondingly.”
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The extensive representativeness of an OCAC effects that it should be under
governmental supervision, while a copyright agency carries on purely private trade so
that the government normally does not interfere with its business.
In conclusion, the two organizations are quite different from each other as far as
their operation and also their position within the copyright system are concerned. The
presence of OCACs has a direct bearing on whether or not the authors can effectively
realize their performing or broadcasting rights. For that matter, the Europeans deem it
an integral part of the copyright system in its broad sense.
III. An overview of the “Regulations on Collective Administration of
Copyright”10
1. Preparation and Legislative Aim of the Regulations
In accordance with Art. 8 of the revised Chinese Copyright Law,11 in 2003 the
National Copyright Administration of China (NCAC) elaborated a first draft of the
Regulations on Collective Administration of Copyright and reported it to the State
Council for review. The State Council, after a couple of revisions, finally adopted it at
the 74th Session of its Standing Committee on December 22, 2004, not without
having heard on a large scale the opinions of representatives from various fields of
activity. The “Regulations on Collective Administration of Copyright” (hereafter
referred to as “Regulations”) have 7 Chapters and 48 Articles, regulating a number of
important aspects discussed in detail here.
The legislative aim of the new “Regulations”, as Article 1 clearly states, is to
regulate activities of collective administration of copyright and to facilitate copyright
owners and owners of rights related to copyright to exercise their rights, and users to
use works.
Concretely speaking, the new legislation primarily aims at three aspects: First, to
facilitate copyright owners and owners of rights related to copyright (hereinafter
referred to as “owners”) to exercise their rights. That was one of the primary focuses
when the provisions were concretely formulated. Second, to facilitate the use of works
by users. That element specifically characterizes collective management of copyright,
generally known as "one-stop-shop service". Third, regulating the operation and
activities of collective management of copyright, aims to prevent setting up of OCAC
everywhere in China. Otherwise than with normal civil agencies, the principle that
interested parties conclude contracts when and where their business affairs make it
necessary should not simply apply to collective management of copyright. Besides,
OCACs should not be established in all provinces as that is the case with copyright
agencies, but be set up according to the authorization of copyright owners and
10
See supra note 4.
11
See supra text at II.1.
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nationwide demand.
2. Definitions
Since the concept of collective administration of copyright is not familiar to
many people, the Regulations contain definitions of the following terms: “collective
administration of copyright”, "organization for collective administration of copyright"
and “agreement for reciprocal representation”.
According to Article 2 of the Regulations, “collective administration of
copyright” means the collective exercise of relevant rights of owners by an
organization for collective administration of copyright in its own name, with the
owner’s authorization. This definition makes the corresponding provision in Article 8
of the Copyright Law ("to claim the right for the copyright owners and owners of
rights related to copyright") more detailed and clarifies the main activities of OCACs
in the following way: to conclude licensing contracts concerning copyright or rights
related to copyright with users; to collect licensing fees from users; to distribute
licensing fees among the owners; and to participate as a party in legal or arbitration
proceedings concerning copyright or rights related to copyright .
According to Article 3 of the Regulations, “organization for collective
administration of copyright” means a mass organization which is legally established
for the benefit of right owners and which, with the owner’s authorization, collectively
administers their copyright or rights related to copyright. As compared with Article 8
Copyright Law, the definition of OCAC within the Regulations adds “legally
established” as an additional condition. Besides that, an OCAC is much more clarified
as a mass organization, i.e. as an institutional person.
Finally, according to Article 22, para. 2 of the Regulations “agreement for
reciprocal representation” means an agreement in which an OCAC in China and an
overseas organization of the same kind mutually authorize the other party to carry out
activities of collective administration of copyright in the country or region to which
the other party belongs. Since the exploitation of literary and artistic works usually
crosses the borders of each country, the repertoire of each OCAC not only includes its
own national works, but also the global repertoire. This global representativeness is a
consequence of the agreement for reciprocal representation, signed by OCACs of each
country or territory. That provision is important for the establishment and
development of the Chinese system of collective administration of copyright, in
particular since it recognizes the legitimacy of OCACs to protect and administer the
rights of foreigners.
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3. Establishment of OCACs
According to Article 7 of the Regulations, laying down the conditions for the
establishment of an OCAC, Chinese citizens, legal entities or other organizations that
enjoy copyright or rights related to copyright have the right to initiate the
establishment of an OCAC. In addition, the following conditions shall be met: (1) the
number of owners who initiate the establishment of such an organization shall not be
less than fifty; (2) the envisaged operating scope of such an organization shall not
overlap or coincide with that of another OCAC which has already been registered
according to the law; (3) such organization must be able to operate on behalf of the
interests of the relevant owners nationwide; and (4) the statute, the rates for collecting
licensing fees, and the methods for distribution of licensing fees among the owners
(hereinafter the ‘methods for distributing licensing fees‘) of such an organization must
have been drafted.
Worth mentioning are in particular the conditions (2) and (3), since, as already
pointed out, only one OCAC may be established for one category of works. This is an
international practice, and China is no exception. The requirement set forth in the
Regulations for the establishment of the OCACs is in keeping with such practice.
In addition to that, the Regulations also contain a detailed regulation of the
content of the statute of an OCAC, the procedure of approval by NCAC, the
procedures for registration at the Administrative Department for Civil Affairs under
the State Council, the record of the certification issued by that Department, its
publishing and the establishment of branch organizations.
4. Organizational structure of OCACs
Article 17 and 18 of the Regulations, within its Chapter III entitled “Structure of
Organizations for Collective Administration of Copyright”, regulate the legal position,
the convening procedure and competence of the general assembly of members, as well
as the establishment and the composition of the board of directors. Strictly speaking,
the content of this Chapter should be regulated normally in the statute of an OCAC.
However, since collective management of copyright is brand new in China, it is
practically very important to abstractly mention these two general institutions of an
OCAC to be found in the statutes of every OCAC in the world, and to give them legal
justification.
5. Relation with Copyright Owners
Under Article 8 Copyright Law, the relation between OCACs and copyright
owners is a relation of authorizing and authorized party. More precisely, according to
Article 19 of the Regulations, an OCAC, upon request, shall, and may not refuse to,
conclude a contract for collective administration of copyright with the owner,
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provided that he meets the conditions for joining the organization prescribed in its
statute. An owner, having concluded a contract for collective administration of
copyright with an OCAC and having gone through the relevant procedures prescribed
in its statute, becomes a member of that organization.
Drawing from the successful experience of OCACs throughout the world, it is
stipulated by Article 20 of the Regulations that an owner, once having concluded a
contract for collective administration of copyright with an OCAC, shall not, during
the term agreed upon in the contract, exercise, or authorize others to exercise, the
rights stipulated in the contract to be exercised by that organization.
Additionally, Article 21 of the Regulations allows an owner to resign from an
OCAC. Article 22 of the Regulations more concretely addresses the relationship
between a foreign and a Chinese OCAC.
Since the Chinese Copyright Law highlights the relation of authorization
between OCACs and copyright owners, in matters relating to non-members the
Regulations cannot be quite different from the law. However, there are a considerable
number of provisions on statutory licenses in the Chinese Copyright Law; more than a
decade of their enforcement also shows that it is impossible to rely on individual
persons to ensure the right of remuneration stemming from application of the statutory
licenses. With this in mind, according to Article 47 of the Regulations, enforcement of
some statutory licenses will be improved by resorting to the help of OCACs. To this
end, any user who has used another’s work in accordance with certain statutory
license provisions12 of the Copyright Law, but has been unable to pay licensing fees
to the owner, shall deliver the licensing fees, together with the postage, and the
information concerning the specific use, to the OCAC which administers the relevant
right so that such fees can be transmitted to the owner by that organization.
Insofar, according to Article 47 paragraphs 2 and 3, an OCAC which has such a
duty to transmit licensing fees shall develop an information system for consultation by
the owners and users. In that case the OCAC may retain, in the proportion as fixed by
its general assembly, administering fees to be reduced by half, and shall not retain any
other fees.
It is to be noted that these provisions only concern some cases of statutory
licenses as mentioned above,13 but not all of them. They do not concern the case of
statutory license of broadcasting rights (Article 42 paragraph 2 and Article 43
Copyright Law), and also not the case of non-statutory (contractual) licenses. That
means that, beyond the provisions in Article 47, Chinese OCACs have no right and no
duty to collect and transmit licensing fees for non-member right owners.
12
Article 23 concerning publishing of text books, Article 32, para. 2 concerning reprint of newspaper
articles etc.; and Art. 39, para. 3 concerning production of sound recordings.
13
See preceding note.
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6. Scope of Management
More or less similar to other countries' systems of collective management of
copyright, in China, according to Article 4 of the Regulations, rights which are
difficult for owners to effectively exercise on their own, such as those of performance,
presentation, broadcasting, rental, communication through information networks, and
reproduction, may be collectively administered by an OCAC. Said reproduction right
refers to the right to record musical works.
As can easily be seen here, OCACs mainly administer pecuniary rights under
copyright, namely rights which copyright owners themselves find it difficult to
exercise effectively. The personal or moral rights of copyright owners are not subject
to administration by the organizations, which is consistent with common practice in
other countries.
Besides, according to Article 2 of the Regulations, OCACs not only have the
right to grant licenses to users and to collect licensing fees from them, but also the
right to participate as a party in legal or arbitration proceedings concerning copyright
or rights related to copyright.
7. Collection and Distribution of Licensing Fees
Collection and distribution of licensing fees are the primary tasks performed by
OCACs. It is fair to say that, without these tasks, it would be senseless for OCAC to
exist. For that matter, OCACs used to be called "royalty collecting societies".
However, such a designation seems to stress too much its economic attribute, to which
many OCACs take a dislike. For them, the task of such organizations should not be
limited to just collecting and distributing money. They should also make efforts in
circulating outstanding works of literature and art, supporting young people's creation
and improving the welfare of the authors. Therefore, their activities should be
correctly called "collective management" or “collective administration”.
In spite of all that, there are many provisions in the Regulations relating to
collection and distribution of remuneration (licensing fees) which can be summarized
as follows:
a) Licenses granted to users by OCACs are non-exclusive (Article 23
paragraph 2). This provision is directly related to the principle that OCACs
should not discriminate users when granting licenses to them.
b) An OCAC shall not refuse to conclude a licensing contract with a user
(Article 23 paragraph 3), which is consistent with the aforementioned
principle of non-discrimination.
c) The rates of licensing fees should be fair and transparent.
d) In principle the concrete tariff shall be agreed by the OCAC and the user
pursuant to the rates of licensing fees as published (Article 25).
e) An OCAC shall draw up the rates for collecting licensing fees pursuant to
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the following factors: (1) the time, manner and territory in which works and
audio-visual products, etc. are used; (2) the category of the right; (3) the
degree of difficulty in activities to conclude licensing contracts and to collect
licensing fees (Article 13).
f) An OCAC shall draw up the methods for distributing fees, according to the
specific use of the owners’ works, sound recordings or video recordings, etc.
(Article 14).
g) For statutory licenses, the rates shall be provided for in the relevant law.14
h) The administrative fee deducted by the OCAC shall only be used to maintain
its normal operation (Article 29, para. 1).
i) When paying the remunerations, users shall inform the OCAC of the titles of
the works, sound or video recordings used, of the names of the copyright
owners, of the manner, amount and time of the use, and of other relevant
information, except as otherwise stipulated in the contract (Article 27
paragraph 1).
j) OCACs, when distributing remuneration, shall prepare distribution reports,
spelling out the total sum of the remuneration collected, the amount of the
administrative expenses, the names of the copyright owners, the titles and
specific use of the works, sound or video recordings, and the amount of the
remunerations distributed to the owners, etc. The distribution reports shall be
kept for at least 10 years (Article 29, para. 2).
8. Measures for Dispute Settlement
With regard to possible disputes with OCACs, in addition to settlement through
lawsuits at the people's court, the Regulations also provide for other measure to solve
dispute, as compared to practice in common law countries and civil law countries.
Thus, according to Article 25 of the Regulations, an OCAC shall, pursuant to the
rates for collecting licensing fees published by NCAC, agree with the user the exact
amount of licensing fees. This provision not only shows the principle of priority of
agreement but also provides for a measure to solve the dispute, when a conflict
between an OCAC and the user exists regarding the rate of the licensing fee; the rate
of the licensing fee as published by NCAC shall be the standard to judge whether the
concrete licensing fee rate is fair.
Furthermore, according to Article 26 of the Regulations, where two or more
OCACs collect licensing fees from the same user for use in the same manner, they
may, after consultation between them, determine that one of them would collect all
the licensing fees together. The licensing fees collected in such a way shall be
distributed between these organizations by agreement. In contrast to Article 25, the
14
See Article 25 of the Regulations and the provisions of the Copyright Law mentioned therein.
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latter provision is not a binding one but only a recommendation. When introducing
that provision the lawmakers have also been influenced by the usual practice of
OCACs in the world.
9. Supervision
As stated above, in most countries and regions, for one category of works there
is usually one OCAC, which is thus placed virtually in a monopoly position. While
monopoly is advantageous for copyright protection, it also holds the potential danger
of breeding bureaucracy and abusing one's power. In order to prevent OCACs from
abusing their monopoly power, most countries and regions have developed a system
of supervision of the acts of OCACs. This is the first empirical reason that supervision
over the activities of CCMOs was needed also in China.
Secondly, based on that reason, those countries and regions have all provided,
be it within their copyright laws (such as in France, Italy, Spain and Switzerland) or in
a separate law (such as in Germany, Japan and Taiwan/China), that OCACs should be
subject to supervision by the government.
Thirdly, when granting licenses and collecting licensing fee, an OCAC does not
represent one particular author, but all the authors of a particular category of works.
Furthermore, the result of the transaction between an OCAC and users has a direct
bearing on the interests of consumers and the public at large. Business activities of an
OCAC do thus not only involve the ordinary activities of non-governmental or
privately owned companies, but also concern the interests of the public as a whole.
Therefore, the principles of free trade and free contract, which generally apply to
ordinary business, are not suitable for the management of OCACs. When necessary,
the Government should intervene in their operation.
The provisions (altogether 9 Articles) of Chapter 5 of the Regulations, entitled
“Supervision over OCACs”, deal differently with the internal organization, social and
governmental aspects of supervision in the following way:
The organizational-internal aspect of supervision over OCACs is dealt with in
Articles 30 to 32. According to these provisions, an OCAC shall establish a financial
and accounting system, and an assets management system according to the law, the
use of which shall be supervised by NCAC and by the Administrative Department for
Civil Affairs under the State Council. At the end of each accounting year, the OCAC
shall prepare a financial and accounting report, appoint a public accounting firm to
conduct an audit according to the law, and publish the audit result. Finally, the OCAC
shall record the items relating to the condition of the licensing use of works, the
collection and distribution of licensing fees and the deduction and spending of
administrative fees for consultation by owners and users.
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Articles 33 to 36 of the Regulations deal with supervision over OCACs from the
social aspect. According to these provisions, right owners, users and even anyone who
is neither right owner nor user, may file a complaint to NCAC (or at least inform it) if
they believe that an OCAC violates any provision of the Regulations. NCAC shall
investigate the matters and deal with them according to the law.
Article 37 and 38 of the Regulations deal with supervision over OCACs from
the governmental aspect. According to these provisions, NCAC may supervise
OCACs in the following manners: (1) by examining whether activities of those
organizations conform to the provisions of the Regulations and of their statutes; (2) by
checking their accounting books, annual budget and finance reports, as well as other
relevant administrative documents; (3) by sending a representative, as an observer, to
attend major meetings, such as the general assembly of members and meetings of the
board of directors of those organizations. NCAC shall record its supervising activities.
In addition to that, OCACs shall also be supervised by the Administrative Department
for Civil Affairs under the State Council and other relevant departments.
10. Legal liabilities
Chapter 6 of the Regulations, entitled “Legal Liabilities” relates to the
provisions on punishment. Although Chapter Five of the revised Copyright Law,
entitled “Legal Liabilities and Enforcement Measures”, and in particular its Articles
46 and 47 have already spelled out detailed provisions on legal liabilities to be
imposed in case of various infringements, the Copyright Law itself lacks explicit
provisions on illegal practices such as violation by OCACs of the relevant laws and of
its statute, users' concealment of facts of use, and unauthorized operation of activities
of collective management of copyright. Therefore, the Regulations have set forth
special provisions on such illegal acts.
Five circumstances have been specified here:
a) According to Articles 39 to 41 of the Regulations, in cases different from other
violations, administrative measures are taken by NCAC; e.g. where an OCAC
has not – as prescribed by Article 22 paragraph 3 of the Regulations - provided a
copy of the agreement for reciprocal representation concluded with an overseas
organization of the same kind to NCAC for the record; where it has not
established a rights information consulting system; where it has not agreed with
a user on the exact amount of licensing fees pursuant to the published rates of
collecting licensing fees, it shall be ordered by NCAC to make a correction
within a specified time.
If an OCAC administers rights beyond its proper scope of administration, it shall
also be ordered to make a correction; the contracts between that organization
and users in such a case shall not be valid. If damage is therefore caused to
owners or users, the organization shall bear civil liabilities according to law.
If an OCAC violates the provisions of the Regulations, refusing to conclude a
contract for collective administration of copyright with an owner; or refusing to
conclude a licensing contract with a user; or refusing a member’s request to
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resign from the organization; or deducting administrative fees or distributing
licensing fees in such a way as to violate the Regulations; or refusing to provide
its accounting books, annual budget and finance reports, and other professional
material, or offering false ones, it shall be ordered by NCAC to make a
correction within a specified time; if the correction is overdue, its general
assembly or its board of directors shall be ordered to remove or dismiss,
pursuant to the competence as provided in the Regulations, the persons in direct
charge.
If, without reasonable ground, an OCAC has not carried out, or has discontinued,
activities of collective administration of copyright for more than six months
from the date on which the Administrative Department for Civil Affairs under
the State Council has issued to it the registration certificate, its permit for
collective administration of copyright shall be suspended by NCAC, and its
registration shall be revoked by the Administrative Department for Civil Affairs
under the State Council.
b) If, according to Article 42 of the Regulations, an OCAC operates for profit
purposes, it shall be banned, and its illegal gains shall be confiscated by the
Administrative Department for Industry and Commerce. Where a crime is
committed, criminal liabilities shall be imposed pursuant to the law.
c) If, according to Article 43 of the Regulations, users refuse to supply the relevant
use information that they can supply, or if they provide false information, they
shall be ordered by NCAC to make corrections, and the relevant OCAC may
discontinue the licensing contracts.
d) If, according to Article 44 of the Regulations, an OCAC or its branch is
established without permission, or activities of collective administration of
copyright are carried out without authorization, it shall be banned, and the illegal
gains shall be confiscated by NCAC or the Administrative Department for Civil
Affairs under the State Council pursuant to the division of responsibilities
between them. Where a crime is constituted, criminal liabilities shall be imposed
according to law.
e) If, according to Article 45 of the Regulations, a functionary of the relevant state
administrative body, in his work of examining and approving of OCACs or of
supervising their activities, neglects his duty, abuses his power, or does wrong to
serve his friends or relatives, so as to constitute a crime, criminal liabilities shall
be imposed on him according to law. To the extent that his acts do not constitute
a crime, he shall, according to law, be subject to disciplinary sanction.
July 2005 Ch.X.
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UNESCO ACTIVITIES
FINAL REPORT
INTERGOVERNMENTAL COPYRIGHT COMMITTEE
Paris, 22-24 June 2005
Introduction
1. The Intergovernmental Copyright Committee (hereinafter referred to as “the Committee”), set
up by Article 11 of the Universal Copyright Convention as revised at Paris on 24 July 1971, held its
13th ordinary session at UNESCO Headquarters, Paris, from 22 to 24 June 2005, with Mr Mayer
Gabay (Israel) as Chairperson.
2. The 18 Member States of the Committee were represented, namely: Algeria – Argentina –
Austria – Cameroon – China – Croatia – Cuba – France – Greece – Guatemala – India – Israel –
Japan – Morocco – Portugal – Russian Federation – Ukraine – United States of America.
3. The following 23 States Parties to the Universal Copyright Convention but not members of
the Committee sent observers: Albania – Andorra – Brazil – Canada – Costa Rica – Czech Republic
– Dominican Republic – Ecuador – Finland – Germany – Holy See – Italy – Lebanon – Mexico –
Monaco – Paraguay – Peru – Republic of Korea – Republic of Moldova – Saudi Arabia – Slovakia
– Switzerland – Venezuela.
4. The following 11 States not Parties to the Universal Copyright Convention were also
represented: Bahrain – Benin – Egypt – Gabon – Indonesia – Kuwait – Madagascar – Myanmar –
Sudan – Thailand – Turkey, as well as the Palestinian Authority.
5. The representatives of the Director-General of the United Nations Educational, Scientific and
Cultural Organization (UNESCO) and of the Director-General of the World Intellectual Property
Organization (WIPO) attended the meetings of the Committee in an advisory capacity.
6. The European Commission was represented by an observer. The representatives of the
following four international non-governmental organizations also attended the meetings of the
Committee as observers: International Literary and Artistic Association (ALAI), International
Federation of the Phonographic Industry (IFPI), International Federation of Reproduction Rights
Organisations (IFRRO), International Federation of Library Associations and Institutions (IFLA).
7. The list of participants is annexed to the final report.
(CLT-2005/CONF.205/CLD.7)
e-Copyright Bulletin
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Opening of the session
8. The session of the Committee was opened by Mr Gabay, Chairperson of the Committee who
stressed the continuing importance of the Universal Copyright Convention, regardless of the fact
that more recent international copyright instruments had been adopted.
9. The Director-General of UNESCO, Mr Koïchiro Matsuura, welcomed the participants and
stressed the importance that UNESCO attached to this 13th session of the Committee, which
provided an opportunity to discuss the challenges in the field of copyright that the world was facing
nowadays. He indicated that the meeting was taking place at a crucial moment, when issues relating
to copyright protection were also discussed in the framework of the process of elaboration of a draft
Convention on the protection of cultural contents and artistic expressions, as well as in the ongoing
preparation process of the second phase of the World Summit on Information Society. He
underlined that the items included in the agenda were of utmost significance for the international
protection of copyright. With regard to UNESCO’s approach to the challenging issues of the digital
age and its activities in the copyright field, he emphasized the importance which the Organization
attached to awareness-raising on copyright protection, as well as to the teaching of the subject at
university level, to the prevention of piracy and fight against unauthorized exploitation of protected
works as a key condition for encouraging creativity, cultural industries and sustainable
development. After having pointed out the importance that UNESCO attached to reaffirming the
need for equitable balance between the interests of rights-holders and the public interest, as well as
to the development of a vibrant public domain, he wished the participants every success in their
work and expressed his belief that the session would represent an important contribution towards
finding the best answers to the challenges which technological developments have posed to the
international copyright community and to governments, creators, users and the public at large.
The speech of the Director-General was made available to all delegates.
Adoption of the Agenda
10. On the proposal of the Chairperson of the Committee, the Committee unanimously adopted
the agenda contained in document IGC(1971)/XIII/1 Prov. Rev.
Information on the state of accession to the international conventions administered by
UNESCO alone or jointly with WIPO and ILO (document IGC(1971)/XIII/2)
(i) Universal Copyright Convention – 1952 text
11. The Secretariat informed the Committee that since its 12th ordinary session
(20-22 June 2001) three States made a declaration according to which they considered themselves
bound by the obligations arising from the 1952 text of the Convention: Albania, Serbia and
Montenegro (succession) and Togo. The number of Member States Parties to the Convention, as at
18 March 2005, was 99.
(ii) Universal Copyright Convention – text revised in 1971
12. The same States – Albania, Serbia and Montenegro and Togo, had notified the Director-
General of UNESCO, of their adherence to the text of the Convention of 24 July 1971. Thus, the
current number of States Parties is 64.
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(iii) International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations (Rome Convention)
13. The Secretariat informed the Committee that, since its 12th session, the following 13 States
had deposited their instruments of adherence to the Rome Convention: Andorra, Armenia, Belarus,
Georgia, Israel, Kyrgyzstan, Portugal, Russian Federation, Serbia and Montenegro, Togo, Turkey,
Ukraine and the United Arab Emirates. Those new accessions had brought the number of States
Parties to the Convention, as at 18 March 2005, to 80.
(iv) Convention for the Protection of Producers of Phonograms against Unauthorized
Duplication of their Phonograms (Phonograms Convention)
14. The Secretariat informed the Committee that, since its 12th session, the following eight States
had adhered and become Parties to the Convention: Albania, Armenia, Azerbaijan, Belarus,
Kazakhstan, Kyrgyzstan, Serbia and Montenegro, and Togo. As at 18 March 2005, the number of
States Parties to the Convention stood at 73.
(v) Convention relating to the Distribution of Phonogram-carrying Signals
Transmitted by Satellite (Satellite Convention)
15. The Secretariat also informed the Committee that, since its 12th session, four States had
adhered to that Convention: Rwanda, Serbia and Montenegro and Singapore and Togo. By
18 March 2005, the States Parties to that Convention totaled 27.
(vi) Multilateral Convention for the Avoidance of Double Taxation of Copyright
Royalties
16. No further State had adhered to that Convention. As of 18 March 2005, seven States had
deposited their instrument of ratification, acceptance of accession, or declaration of succession to
this Convention: Czech Republic, Ecuador, Egypt, India, Iraq, Peru and Slovakia. In accordance
with its Article 13, this Convention would enter into force only with the deposit of the
10th instrument of ratification, acceptance or accession.
17. The Committee took note of all the information provided by the Secretariat. The Chairperson
of the Committee stressed again the importance to adhere to the Universal Copyright Convention
and encouraged the Secretariat to continue its efforts to promote it.
Legal and technical assistance to States (document IGC(1971)/XIII/3)
18. Introducing that document, the Secretariat provided information on the activities carried out
since the 12th session of the Committee in June 2001. These included:
(i) information and awareness-raising activities;
(ii) teaching and training activities;
(iii) studies and research;
(iv) activities related to enforcement and management of rights;
(v) legal and technical assistance provided on specific request by Member States.
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19. With regard to the information and awareness-raising initiatives, an emphasis was placed on
the new language versions and the new electronic format of the Copyright Bulletin in all six official
UNESCO languages, available online and accessible free of charge. Since 2001, the online Chinese
version and the Russian online edition had been published (in 2003 and the first quarter of 2004
respectively). The Arabic language version had been launched in 2004 directly as an electronic
edition. Another useful online tool was the electronic Collection of National Copyright Laws,
launched in 2003.
20. Special emphasis was placed on the teaching of copyright and neighbouring rights at
university level. After the 12th session in June 2001, Copyright Chairs had been established in
Georgia and China, and the procedure for establishing a Copyright Chair in Cameroon had just been
finalized. The possibility of creating chairs in Egypt, Nigeria and Senegal was currently under
discussion. The basic tool for teaching of copyright in the framework of the UNESCO Copyright
Chairs programme, the Manual on Copyright and Neighbouring Rights, after its publications in
Spanish, French and English, had been translated into Chinese in 2001, into Russian in 2002 and
into Arabic in 2004. In 2004, UNESCO published the second volume of the Manual Nuevos temas
de derecho de autor y derechos conexos (New Topics in the field of Copyright and Related Rights).
21. Among the research activities, a special focus was placed on the study undertaken by
UNESCO in 2002, on the exceptions and limitations to copyright protection, particularly in the field
of scientific research, education and culture, with a view, more specifically, to the striking of a fair
balance between the general interest tasks of transmission of knowledge and protecting the
legitimate rights of authors and other rights-holders.
22. Concerning the activities relating to enforcement and management of rights, special attention
was paid to the Anti-Piracy Training for Trainers (APTT) project, developed in the framework of
the Global Alliance for Cultural Diversity and designed as a training course for copyright
enforcement officials from countries belonging to the same region or subregion. The
implementation of the pilot project implemented in South-Eastern Europe had proved the efficiency
of the concept and the multiplier effect of the project due to the follow-up national anti-piracy
seminars organized by the participants of the regional workshop.
23. The Chairperson thanked the Secretariat for all the assistance provided to States, which was
most useful for the appropriate protection of copyright and neighbouring rights. Nevertheless he
pointed out that not all States had the facilities to easily access the digital format of the UNESCO
Copyright Bulletin and suggested to the Secretariat to consider the renewal of a printed version, at
least for the developing countries.
24. The delegate of Greece took the floor and drew attention to transnational piracy problems,
welcoming the efforts of UNESCO in its fight against it. He indicated that Greece was interested in
eradicating piracy in the region of South-Eastern Europe and would appreciate it if it could benefit
from UNESCO experience and contacts in the countries of the region.
25. The delegate of Ukraine informed the Committee that Ukraine would be interested in taking
part in UNESCO Anti-Piracy Training for Trainers (APTT). She underlined the difficulties of law
enforcement in Ukraine and the need for training copyright enforcement officials, as well as
training representatives of collective management organizations. She also informed the Committee
of the country’s current difficulties in collective management and, more specifically, of the problem
of collection of fees for exploitation of protected subject matter. She asked the Committee to
consider the elaboration of a mechanism assisting the transition of state or public collective
management bodies into privately-owned ones. Public awareness raising and training were therefore
of vital importance.
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26. The delegate of Morocco thanked the Secretariat for its work and the quality of the
documents. He asked for more information on the ongoing study concerning piracy in Africa.
Further, he drew attention to the efforts of Morocco concerning the fight against piracy and
presented the legislative and practical activities of Morocco in this regard, including a national
awareness-raising and anti-piracy campaign, as well as the setting up of a National Commission for
the fight against piracy and the elaboration of a plan of action and other appropriate initiatives
involving all stakeholders. He encouraged the other States to take part in the prevention of piracy
and invited the Secretariat to focus its efforts on anti-piracy.
27. The delegate of Benin thanked the Secretariat for its efforts and endorsed the comment of the
Chair stressing the need for a printed version of the Copyright Bulletin. He stated that piracy was a
very serious concern in West Africa and severe legal compulsory measures should be considered, as
simple persuasion was not enough. The delegate encouraged furthermore the extension of the
UNESCO anti-piracy training programme to Africa.
28. The representative of the Director-General of UNESCO thanked the Delegates for their
comments and provided information concerning the contact persons concerning the APTT project.
Further, the Secretariat pointed out that one of the reasons for no longer producing the printed
format of the Copyright Bulletin had been budgetary. The advantage of the digital format was the
possibility for simultaneous publication in six different languages, and its accessibility to a wider
audience, free of charge. However, visits to the Bulletin’s web page were carefully monitored.
Should the statistics show that certain regions do not access the Bulletin as regularly as others, it
could still be an option to be considered.
Certain legal problems related to the making available of literary and artistic works and
other protected subject matter through digital networks (document IGC(1971)/XIII/4)
29. Introducing the study prepared by Dr Silke von Lewinsky for UNESCO, the Secretariat
pointed out that it represented an overview of the main legal problems posed by the comparatively
new phenomenon of peer-to-peer (P2P) file-sharing which represented a serious challenge to the
efficient protection of copyright and related rights.
30. To facilitate the appraisal of the issues addressed in the paper, the study began with an
introduction of the technical background of P2P. Further, it looked into the economic aspects of the
file-sharing and the impact it had on the cultural industries, which, while important for appraising
the dimension of the phenomenon and its potential harm, remained irrelevant for the legal analysis
and for the justification of protection.
31. Further, the study made an analysis of the rights involved in file-sharing. From a legal point
of view, three different acts had to be distinguished, even if they occurred in one economic context:
the upload of a copy on a computer, which undoubtedly constituted reproduction in the meaning of
international copyright law, the act of making available the copy to other file-sharers, which was
covered by the exclusive right of “making available”, as provided by the 1996 WIPO Treaties and
the download of a copy by a user of the file-sharing system, which constituted also a form of
reproduction.
32. Limitations and exceptions had been considered separately for the three above-mentioned
acts, in a more general manner, as long as differences existed between national laws. The analysis
of different hypotheses led to the conclusion that the upload copy and the making available of files
in P2P networks would usually not be covered by a limitation or exception under national laws,
while the download may be so where national law allows the application of private/personal use
exemptions to such downloads.
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33. Further, the study addressed the issue of liability beyond that of the primary infringer. It
evoked the possible liability of providers of the software for file-sharing systems, as well as the
contributory or vicarious liability of service providers. Liability rules were subject to national law
and could not be dealt with comprehensively in the study, therefore only some examples were
given.
34. The study also outlined the practical problems and main difficulties for enforcement of rights.
These, among others, included the problem of accessing information about the identity of users,
which was an indispensable condition for filing court cases. The issue was resolved in a different
manner by national laws, of which examples were given.
35. Given the fact that the unauthorized use of protected works and other protected subject matter
in P2P networks regularly constituted an infringement and that the enforcement of rights and
strategies to diminish such illegal uses so far had not been sufficiently successful, different models
to cope with these problems were being experimented or considered, both at practical and
legislative levels.
36. From a practical perspective, new business models were continuously being developed. Legal
online services had grown worldwide, but were still not sufficiently well developed to make
consumers switch from illegal networks to authorized purchase of music and other files.
37. As to the discussed legislative models, different views had been expressed in academic
literature and by different stakeholders, from legalizing P2P file-sharing by different forms of
licences combined with statutory remunerations right to abolishing copyright in the digital
environment. After analysing the proposed approaches, the study commented that: firstly, the
proposals for establishing legal licences combined with statutory remuneration rights or levies
might look attractive, but would hardly, if at all, comply with the three-step-test under international
copyright law; secondly, voluntary collective licensing would certainly constitute a model in
compliance with international law with the advantage of allowing legal uses against the payment of
an equitable remuneration, which would be useful if the majority of repertoire was entrusted to
collecting societies; thirdly, a mandatory collective administration of the relevant exclusive rights
might constitute another model in compliance with international law; finally, the model of the so-
called extended collective license in respect of the upload copy and the act of making available to
the public, in combination with a legal license and statutory remuneration right in respect of the
downloading, which would be considered a private copy, would have the advantage of being in
compliance with international law, leaving the exclusive rights to right owners and regularly
allowing P2P uses against payment.
38. The study concluded that, since there did not seem to exist only one ideal or easily workable
solution among legislative models, and given the rapidity of factual developments, it might be wise
to observe developments in the near future.
All the delegations which took the floor congratulated UNESCO for the quality of the study.
40. The delegate of Austria fully agreed with the conclusions that developments should be
observed before taking legislative steps.
41. The delegate of France pointed out that this study brought out the culturally important role
played by copyright and the necessity for authors to be able to benefit from efficient protection. She
underlined the role of UNESCO as an essential link between copyright and creation of cultural
heritage. Further, she informed the Committee that the French Council of Literary and Artistic
Property was currently studying this question and was conducting consultations. She presented the
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French Charter for the Development of Legal Provision of Online Music, Intellectual Property and
the Control of Digital Piracy, signed between all key stakeholders in the copyright field in France.
42. The delegate of Guatemala stressed the importance of the Secretariat’s efforts in the field of
copyright, particularly of its training activities aiming to reduce the gap between industrialized and
developing countries. The delegate raised the need to elaborate a study on users’ rights and the
necessity for users to rely on valuable, reliable and high-quality information.
43. The delegate of Portugal stressed the complexity of this highly technical field and agreed with
the proposal of the author that developments should be observed. He raised the point as to whether
or not mandatory collective management was in compliance with the international copyright rules.
44. The delegate of India shared the concerns regarding the legal complexities of the protection of
copyright in the digital environment without affecting the legitimate aspirations of the society for
access to knowledge and information, and specifically those in the public domain. Standard-setting
at this stage of fast developing technology would prevent technological development in non-
industrialized countries. In this regard, the flexibility of WIPO Internet Treaties was needed. The
delegate noted that some countries had taken steps to place a measure of limited liability on the
Internet Service Providers (ISP). He opposed the creation of any international obligation in this
regard.
45. The delegate of Benin regretted that the study did not mention the broadcasting organizations
and, in particular, radio, which were also important with regard to education, science and culture
and which were not taken into account by the 1996 WIPO Treaties. Further, he added that the
interests of consumers should also be taken into consideration, for a really effective collective
administration of rights.
46. The delegate of the Palestinian Authority pointed out some paradoxes concerning copyright in
the digital environment. He suggested that UNESCO carry out a legal and philosophical reflection
on the concept and role of copyright.
47. The delegate of India recalled that UNESCO had adopted in 2003 a Recommendation
concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace
containing provisions that took into account the interests of users. At his request, copies of the
Recommendation were distributed to the participants.
48. The delegate of Morocco stressed the interconnection between file-sharing, applicable law
and the piracy phenomenon in the digital environment. In order to properly solve the conflict of law
and to reach a balance between the rights of authors and exceptions to protection, he found it
necessary to establish clear-cut rules in order to serve as a legally acceptable international basis to
help resolve all problems raised by the digital age.
49. The delegate of Mexico highlighted the importance of the updating of national and
international laws and emphasized the promotion of collective management of rights to foster
creativity.
50. The delegate of Algeria focused on the ethical aspect of the issue, wondering how best to
strike the balance between the ongoing technological progress, on the one hand, and the established
rules of copyright protection on the other. All developing countries wished to belong to the
knowledge society; this was why they had to start by organizing important awareness-raising and
training campaigns, taking into account the significance of the time factor to better realize the
dimension of the online piracy phenomenon. Algeria had adopted legal enforcement measures,
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organized information meetings on the subject, but it was evident that piracy went beyond its
borders. This explained the necessity for an exchange of experiences between different countries.
51. The delegate of Venezuela attracted the attention of the Committee to his country’s new
constitution, which included authors’ rights as an integral part of social rights. Concerns were also
expressed about the restrictions which copyright might impose on users.
52. The delegate of China thanked the Secretariat for the assistance it gave to China and informed
the Committee of the recent legal developments made in order to adapt copyright legislation to the
digital environment. More specifically, the Chinese delegation emphasized the remarkable results
achieved thanks to the adoption of new enforcement provisions and collective management rules.
53. The representative of the Director-General of the World Intellectual Property Organization
(WIPO) informed the Committee about the state of works of updating the rights of broadcasting
organizations, discussed currently by the WIPO Standing Committee on Copyright and Related
Rights (SCCR). At its September 2004 session, the General Assembly requested the SCCR to
accelerate its work on the protection of broadcasting organizations with a view to approving the
convening of a diplomatic conference by the WIPO General Assembly in 2005. Regional
consultations were being currently organized by the International Bureau, further to the request of
the Member States. This issue would be placed on the agenda of WIPO General Assemblies in
September-October 2005.
54. In response to the debate, the representative of the Director-General of UNESCO pointed out
that UNESCO was equally committed to protecting the interests of creators and authors, as well as
those of users, especially in the field of education, research and access to information.
55. In response to the question of Guatemala concerning users’ rights, she explained that users
had the right to receive reliable and authentic information. UNESCO had not carried out a study on
literary and scientific information available on the web, but has dealt with child abuse on the
Internet, a topic also related to consumer protection and freedom of information. Guidance to
quality portals administered by well-known content providers seemed to be the best way to access
quality information.
56. Concerning the request of Benin, she recalled that the issue of broadcasting organizations
would be addressed at the forthcoming 19th session of the Intergovernmental Committee of the
Rome Convention.
57. In response to the proposal of the Palestinian authority, she recalled that UNESCO could only
act under the authority of the Committee, which had to provide guidelines for the activities to be
developed in the copyright field.
Applicable law in copyright infringement cases in the digital environment
(document IGC (1971)/XIII/5)
58. Introducing the study prepared by Professor André Lucas, the Secretariat pointed out that the
issue of determining the law applicable to infringement cases in the digital environment had been
raised during the 12th session of the Committee, while discussing the study on the role of service
and access providers in digital transmission acts and their responsibility regarding copyright
(IGC(1971)XII/4).
59. The Secretariat pointed out that the term droit commun of the French original draft had been
translated by “general law”, with the agreement of the author.
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60. Before proceeding to analyse the specific difficulties raised by the digital environment in
regard to conflict of laws in the field of copyright, the study outlined the general principles
governing the determination of the applicable copyright law. Underlining the natural role of the law
of the forum (lex fori) regarding procedural matters and provisional measures, the study gave
consideration to two major controversies relating to the choice between the law of the country of
origin and the law of the country of protection. The elements of this debate differed according to
whether the arguments were grounded on conventional law or general law. As far as conventional
law was concerned, the analysis of the Berne Convention (Art. 5.2), as well as the Universal
Copyright Convention (Arts. II and IV.1) lead to the conclusion that the drafters of the instruments
did formulate a general choice-of-law rule, designating the law of the country of protection.
61. As far as general private international law was concerned, i.e. domestic law perforce, the issue
was more open. As national legislators had often not taken a stand on that issue, recourse had to be
sought in case law, where national experiences differed; in some countries the law of the country of
protection regulates all copyright matters, while in others the law of the country of origin is applied
in regard to the existence and initial ownership of copyright, therefore in the latter, the law of the
country of protection in this regard must only be questioned to determine what content was afforded
protection. The study raised the point that the second approach led to dissociation of copyright and
thus removed all consistency from the issue, as long as ownership of the right was in fact
indissociable from its content.
62. Further, the study considered the issues related to the determination and scope of the law of
the contract (lex contractus) and, given the specific difficulties that the subject matter raised in this
regard, considered the role to be played by general law concerning the specific nature of the rights
in question. Underlining the basic principle of freedom of contract, the study analysed the
hypothesis where there had been no express or implicit choice of competent law by the contracting
parties. In such cases the competent law might be determined by applying the principle of
“characteristic performance”, established by the 1980 Rome Convention. The study concluded that,
in the case of copyright, the characteristic performance might be presumed to be effected either by
the assignee or the licensee, or by the person who assigns or licenses the right. The study gave
preference to the latter approach because the characteristic performance should be determined in
relation to the transfer of rights, and not in relation to the effects of the transfer.
63. With regard to the application of the outlined general principles to the digital environment, the
study indicated that it revealed the key role to be played by the law of the contract, renewed the
controversy about the law of the country of origin and, above all, raised the problem of localization
of copyright infringement, crucial to the effectiveness of protection.
64. Regarding the law of the country of origin, the study argued that the traditional arguments,
usually indicated by those who supported this approach, namely the connecting factor to a specific
place which reflected the author’s wish to “naturalize” the work, failed when the work was
communicated for the first time on digital networks. The reason was the very nature of the Internet
as it could not be interpreted that publishing the work on the Internet with its undifferentiated
audience, was a wish of the author to link the work to a specific country.
65. With regard to localization of copyright infringement, the study made a comparison with the
problems that satellite transmission had raised, noting that differences existed in the degree and the
nature of the problem. It stated that the main controversies were between those in favour of what
was commonly known as the law of the country of transmission and those who argued for the
application of what was commonly known as the laws of the countries of reception. Both theories
rested on solid and well-balanced arguments, which meant that the choice had to be indeed a
political one, in the broad sense.
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66. As to the compromise solutions, several possibilities were considered. Among them was the
solution of designating the law that was presumed to be the most appropriate, leaving it to the
parties to rebut that presumption by demonstrating the existence of other connecting factors.
Further, perhaps “jurisdictional localization”, which involved linking of legislative competence and
jurisdictional competence, had not to be too readily ruled out. Another compromise solution would
be to exclude the competence of countries of reception that were not “targeted” by the transmitter,
which would be a response to the objection that it was impossible to require operators to comply
with all the laws in the world. Finally, the study concluded that all these possibilities required
further investigation.
67. The Committee took note of the various points raised by the study and the Chairperson
invited the floor to intervene.
68. The delegate of France drew the attention of the Committee to the European Union’s work in
progress concerning new regulations on non-contractual obligations (Rome II). Within this
framework, France proposed to keep the principle expressed in Article 5.2 of the Berne Convention
and to insert some expressis verbis clauses, inherent in the digital environment. Finally, the
adoption of a safeguarding clause would be necessary to prevent the abuse of the choice of a law
principle.
69. The delegate of Benin underlined the need for practical approaches to the matter of liability in
the context of the digital environment. More precisely, the question as to whether or not service
providers and users (Internautes) should be liable, was raised.
70. The delegate of Morocco, after recalling the difficulties of the States in renouncing their
sovereignty for accepting international standards, indicated the need for harmonization between the
different laws.
71. The Chairperson recalled that UNESCO’s competence in this field was to provide legal and
technical assistance to the States and not to deal with harmonization issues. The UNESCO
Secretariat took the opportunity to ask the Committee whether it would be appropriate to consider
this issue as an urgent one or whether it could be postponed. The Chairperson stressed the urgent
character of the issue.
The persistence of piracy: the consequences for creativity, for culture and for sustainable
development (document IGC (1971)/XIII/6)
72. The study prepared for UNESCO by Mr Darrell Panethiere, was presented by the author
himself who made an outline of the background, structure and content of the document.
73. The study defined and analysed the piracy phenomenon as well as its consequences. It
focused on its negative economic impact on the different cultural industries – music, book
publishing, film, broadcasting – as well as on the detrimental effect to culture, creativity, the loss of
job opportunities and the negative impact on society in general. In this light, the argument of a
wider dissemination of protected works defended by pirates is nothing but illusive. Piracy, properly
understood, derived entirely from a wilful determination not to respect authors’ rights in operating
on a large and organized scale. Government policy makers, law enforcement officials and
international organizations had focused on its elimination. While the full eradication of piracy might
not be achievable, it was possible that its worst effects be limited or neutralized thanks to
enforcement rules, but also to educational programmes and training seminars, which could raise the
awareness of all the negative consequences of this persistent problem.
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74. In its conclusion, the study emphasized the many improvements seen on different fronts, and
the necessity that the issue stay at the forefront of policy goals.
75. The delegate of Ukraine informed the Committee about the recent legal developments of her
country concerning the fight against piracy, providing details on the newly adopted technological
measures in this regard in cooperation with IFPI. She also raised the question of considering
folklore as an object of copyright protection in order to preserve the cultural intangible heritage.
76. The delegate of Morocco made the link between the presented study and the legal measures
taken to fight piracy in Morocco. He wondered which could be the ideal a posteriori measures and
what strategic measures could be suggested in the light of the present study.
77. The delegate of India congratulated UNESCO for the excellent paper. With the largest
number of films produced anywhere in the world, India was also hit by cross-border piracy.
However, India had committed itself to combat this and put in place a very strong anti-piracy law.
India was committed to international cooperation in this regard.
78. The delegate of France noted that this complex issue required political will and the
cooperation of all stakeholders. It was necessary to involve not only public authorities but also
service providers that had to assist in fighting Internet piracy. To decrease the rate of Internet
piracy, it was also important that the cultural industries improve their legal online offers of cultural
products.
79. The delegate of Benin touched upon the legal aspects of piracy and noted that the persistence
of piracy was the result of social factors, which tended to be put aside. Poverty in developing
countries was one of these factors. No solid answer to the piracy problem had been found so far. He
pointed out the necessity of a political choice based on an international decision.
80. The delegate of Paraguay said that piracy was a worldwide problem. Poverty was an
explanation, but not a justification of piracy. He indicated that Paraguay had solid copyright
legislation in conformity with WIPO treaties, although traditional piracy was still persisting.
However, digital piracy was a new term.
81. The delegate of Croatia said that the study could help Member States in implementing
measures to fight against piracy.
82. The delegate of Mexico stressed the link between protection of copyright and cultural
diversity. He presented the measures taken at the national level by Mexico. Further, he stated that
the piracy phenomenon had no borders, therefore national policies were not sufficient and strong
international cooperation was needed.
83. The delegate of the Republic of Moldova underlined the importance of political will for the
fight against piracy. The problem in the Republic of Moldova, as a small country, was that
copyright holders were not present there, and therefore piracy could expand without any control on
behalf of the rights-holders. UNESCO support could be of great help.
84. The delegate of the Palestinian Authority addressed a question to the author concerning the
fact that the study focused more on the economic effects of piracy than those of creativity and
culture. The solution to fight piracy could only come from the international community. He
suggested that UNESCO initiate a collective reflection on the issue.
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e-Copyright Bulletin
July – September 2005
85. The delegate of Benin stated that pirate activities killed creativity. The real solution was to
attack pirates through mobilization of the society. He pointed out the need to strengthen the legal
measures, making them more repressive. Answers had to be found at the international level.
86. The delegate of the Russian Federation said that Internet piracy was very damaging to
copyright holders because all users worldwide had access to pirated products. Recently the Russian
Federation had launched a partnership between private and public sectors to fight against piracy.
UNESCO’s assistance could be very useful in the continuing efforts in this regard.
87. The delegate of Greece remarked that UNESCO could not solve the problem of piracy at the
international level since pirates were criminals infringing different national laws at the same time.
In his opinion, the problem could only be solved at national level. However, UNESCO could
usefully contribute through training and capacity-building, providing a forum of awareness-raising,
information exchange, preparation of appropriate tools, leaflets and similar products. The delegate
pointed out three levels of collaboration at national level (collaboration between organizations,
authorities, and members of the government), with UNESCO or WIPO acting as the international
umbrella. The main task of UNESCO, apart from training, was to make progress in exchanging
relevant information. To this end, he suggested the creation by UNESCO of a single website where
everybody could make all piracy-related information available, including best practices in various
countries.
88. The representative of IFPI stressed the need for exchanging more national experiences and
information. She thanked UNESCO for the work done in enforcement, including training. The
representative recalled the support of IFPI to UNESCO’s activities in the field of copyright and
enforcement.
89. The author of the study elaborated on the questions raised by the representatives of Morocco,
Paraguay, the Republic of Moldova and the Palestinian Authority.
90. The representative of the Director-General of UNESCO thanked all the delegates for their
valuable guidance and the author for his excellent study. Despite the efforts of governments, the
private sector and international organizations, piracy was growing in many countries and in an
increasing number of fields, instead of decreasing in all fields. She added that the social reasons
were not only linked to poverty, but also to internationally organized crime, including abuse of
immigrants. Facing other kinds of violence and crime, the tribunals often hesitated to impose tough
penalties with regard to copyright infringements. She summarized the rich array of proposals put
forward by the Committee, such as the creation by UNESCO of an observatory to monitor piracy
issues and to serve as an online platform (clearing house) for exchange of information and best
practices. In response to the needs, the possibility of organizing a global summit on piracy issues
could eventually be also explored. Regarding cross-border piracy, she evoked possibilities of
cooperation between UNESCO and Interpol, which already existed in other fields, such as stolen
cultural goods.
91. The debate continued at the morning session of the second working day.
92. The delegate of China informed the Committee of the measures taken by her country to fight
against piracy. She pointed out the serious negative effect of piracy on her the country’s sustainable
development. She said that piracy was a global issue. Therefore regional and international
cooperation was needed. She further expressed the wish that UNESCO and WIPO jointly play an
active role in providing guidance and assistance for efficient copyright enforcement, as well as
assistance in training and exchange of experience.
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e-Copyright Bulletin
July – September 2005
93. The delegate of Cuba recalled that every state should develop its own measures against
piracy, taking into account the national economic and social situation. However, international
cooperation was essential in the fight against piracy. In her country awareness-raising broadcasting
programmes had been developed.
94. The delegate of Sudan informed the Committee of the efforts undertaken in his country in the
context of the fight against piracy. He asked for UNESCO’s assistance on technical and
methodological issues.
95. The delegate of Brazil informed the Committee of the measures taken so far by his
Government, which included the setting up of a National Council for the Fight Against Piracy,
under the Ministry of Justice. The delegate also stressed that flexibility had to remain the key word
to let every country develop its legal framework and to promote access to knowledge and
information. The suggestions made in the report on piracy should be examined separately to take
into account the specificities of every country. Balance between rights of creators and public
interest was at the basis of intellectual property protection, which should be regarded as a tool for
development. The idea for an observatory, should it be retained, would have to be conceived taking
fully into account the diversity of national and regional situations and avoiding the establishment of
a unique standard.
96. The delegate of Ukraine stated that, in regard to the fight against piracy, there was a great
need for exchanging experiences and information, including relevant court decisions. Therefore it
would be timely to promote a new system facilitating such exchange. She supported the idea of
establishing an observatory.
97. The delegate of Morocco strongly supported the setting up of an anti-piracy observatory and
recommended the organization of international meetings on the fight against piracy, stating that
Morocco would be willing to host such meetings. Training of enforcement officers on a continuous
basis was highly needed.
98. The delegate of Algeria shared the previously raised suggestion concerning measures to be
developed, taking into consideration the national specificities and the need for international
cooperation. The time factor was a very important one. She also supported the proposal for setting
up an observatory.
99. The delegate of Gabon called for a continuation of UNESCO and WIPO studies aiming at a
better understanding of the financial losses due to piracy.
100. The delegate of the Palestinian Authority thanked UNESCO for its assistance and its active
support for the publication of the study on the subject of copyright in the Palestinian territory. The
study highlighted the specificities of the situation. In this regard, the delegate underlined that
UNESCO’s role was to initiate the process of harmonization and evoked the social and human
dimensions of the problem, which had to be equally taken into account.
101. The representative of WIPO also considered coordination between UNESCO and WIPO to be
fundamental, particularly in view of the work of the WIPO Intergovernmental Committee on
Enforcement of Intellectual Property Rights. Efforts had to be coordinated and consultations had to
be made in the preparatory stages, in order to avoid using resources and funds on overlapping
activities.
102. The representative of the Director-General of UNESCO thanked all the participants for their
interventions and for the initiatives proposed and ideas shared by them with regard to future
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e-Copyright Bulletin
July – September 2005
UNESCO action in this regard. He stressed that all nuances of the various proposals concerning the
ideas of setting up an observatory, holding an international high-level event and other forms of
exchange were duly noted by the Secretariat.
Partial renewal of the Committee (document IGC(1971)/XIII/7 Rev.)
103. The Secretariat reminded that the periodicity of ordinary sessions, as well as the length of the
mandate of the Committee Members had been modified at the Committee’s 12th session in 2001,
and Rules 42 and 43 had been accordingly modified. The mandate of Members was six years before
the modification, and 12 years according to the Rules of Procedure, currently in force. It was
suggested to the Committee to deliberate whether to make a partial renewal of the Committee and
replace the Members that had been elected in 1995, or to apply the modified 12-year rule and
therefore not proceed to a partial renewal at this session.
104. The delegation of Greece argued that the only legal possibility was to apply the current
Rule 42.
105. The Committee unanimously decided that it would make no partial renewal of the Members,
elected in 1995, at this 13th session.
Election of the Chairperson and Vice-Chairpersons
106. After having deliberated on this item and taking into account the criteria of Article 11 of the
UCC, the Committee Members decided to elect Mr Abdellah Ouadrhiri, delegate of Morocco, as
Chairperson, and France and India as Vice-Chairpersons.
Other business
107. The Secretariat informed the Committee that it had received applications from three non-
governmental organizations concerning obtaining observer status with the Committee, namely the
International Federation of Reproduction Rights Organisations (IFRRO), the International
Confederation of Music Publishers (ICMP) and Consumers International (CI). The Committee
decided unanimously to grant them such status.
108. The Chairperson Mr Mayer Gabay proposed to the Committee, for its 14th session, to address
the issue of competition and copyright.
109. The delegate of Greece suggested that the study should include, but not be limited to, the
question of competition law and the copyright monopoly of collecting societies.
Date and place of the next session
110. The 14th session of the Committee will take place at the end of the first half of 2009 at
UNESCO Headquarters.
Adoption of the report
111. This report was adopted unanimously with the amendments submitted by certain delegations.
Closing of the session
112. After the customary expression of thanks, the Chairperson declared the session closed.
- 14 -
INTERGOVERNMENTAL COPYRIGHT COMMITTEE
Thirteenth session of the Committee of the Universal Convention as revised in 1971 Paris 22-24 June 2005
COMITE INTERGOUVERNEMENTAL DU DROIT D'AUTEUR
Treizième session du Comité de la Convention universelle révisée en 1971 Paris 22-24 juin 2005
COMITÉ INTERGUBERNAMENTAL DE DERECHO DE AUTOR
Decimotercera reunión del Comité de la Convención Universal revisada en 1971 París 22-24 de junio de 2005
МЕЖПРАВИТЕЛЬСТВЕННЫЙ КОМИТЕТ ПО АВТОРСКОМУ ПРАВУ
Тринадцатая сессия Комитета Всемирной конвенции, пересмотренной в 1971 г. Париж 22-24 июня 2005 г.
اﻟﻠﺠﻨﺔ اﻟﺪوﻟﻴﺔ اﻟﺤﻜﻮﻣﻴﺔ ﻟﺤﻘﻮق اﻟﻤﺆﻟﻒ
2005 اﻟﺪورة اﻟﺜﺎﻟﺜﺔ ﻋﺸﺮة ﻟﻠﺠﻨﺔ اﻻﺗﻔﺎﻗﻴﺔ اﻟﻌﺎﻟﻤﻴﺔ اﻟﻤﻌﺪﻟﺔ ﻓﻲ 1791، ﺑﺎریﺲ، 22-42 ﺡﺰیﺮان/یﻮﻥﻴﻮ
IGC(1971)XIII/8
Annexe/Annex/Anexo
LISTE DES PARTICIPANTS
LIST OF PARTICIPANTS
LISTA DE PARTICIPANTES
I. ÉTATS MEMBRES DU COMITÉ/MEMBER STATES OF THE
COMMITTEE/ESTADOS MIEMBROS DEL COMITÉ
ALGÉRIE/ALGERIA/ARGELIA
Mme Zoubeida Djennas
Chargée d’études et de synthèse
Cabinet de Madame la Ministre de la Culture
M. Kamel Boughaba
Délégué permanent adjoint de l’Algérie auprès de l’UNESCO
M. Mohand Hocine Zidani
Conseiller
Délégation permanente de l’Algérie auprès de l’UNESCO
ARGENTINE/ARGENTINA
Sr. José Luis Fernández Valoni
Secretario de Embajador
Delegación Permanente de Argentina ante la UNESCO
AUTRICHE/AUSTRIA
M. Günter Auer
Chief Public Prosecutor
Federal Ministry of Justice
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 2
CAMEROUN/CAMEROON/CAMERÚN
M. Charles Assamba Ongodo
Deuxième Secrétaire
Délégation permanente du Cameroun auprès de l’UNESCO
CHINE/CHINA
Mme Xiuling Zhao
Division Director
Copyright Division, Copyright Department
National Copyright Administration
CROATIE/CROATIA/CROACIA
Mr sc. Željko Topić
Director-General
State Intellectual Property Office
Prof. Igor Gliha
Law Professor
Faculty of Law
University of Zagreb
CUBA
Sra. Diana Carmenate Pérez
Consejera
Delegación Permanente de Cuba ante la UNESCO
ÉTATS-UNIS D’AMÉRIQUE/UNITED STATES OF AMERICA/ESTADOS UNIDOS DE
AMÉRICA
H.E. Ms Louise Oliver
Ambassador
United States Permanent Representative to UNESCO
Mr Michael S. Keplinger
Senior Counsellor
United States Patent and Trademark Office
Department of Commerce
Mr Michael Shapiro
Attorney Adviser
United States Patent and Trademark Office
Mr Jule Sigall
Associate Register for Policy and International Affairs
United States Copyright Office
Library of Congress
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 3
Mr Raymond Tripp
First Secretary
Public Affairs Officer, Information, Communication
United States Permanent Mission to UNESCO
FÉDÉRATION DE RUSSIE/RUSSIAN FEDERATION/FEDERACIÓN DE RUSIA
Mr Sergey Fedotov
Chairperson
Russian Authors’ Society
Head of Delegation
Mr Vladimir Matetsky
Member of Authors’s Board
Russian Authors’ Society
Mr Vadim Dunin
Director
International Relations
Russian Authors’ Society
Ms Ekaterina Ananieva
Vice-Chairperson
Director
Legal Department
Russian Authors’ Society
FRANCE/FRANCIA
Mme Hélène de Montluc
Chef du Bureau de la Propriété intellectuelle et artistique
Sous-direction des Affaires juridiques
Ministère de la culture et de la communication
Mme Anne-Sophie Orr
Chargée de mission pour la propriété littéraire et artistique
Bureau des Affaires juridiques et multilatérales
Direction générale de la coopération et du développement
Ministère des Affaires étrangères
Mme Catherine Souyri
Chargée de mission communication
Commission nationale française pour l’UNESCO
Mlle Agnès Berche
Stagiaire
Direction Développement des médias
Ministère de la culture et de la communication
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 4
GRÈCE/GREECE/GRECIA
Prof. Konstantinos Polyzogopoulos
Directeur
Organisation grecque du droit d’auteur
GUATEMALA
Excma. Sra. Anaisabel Prera Flores
Embajadora Extraordinaria y Plenipotenciaria
Delegado Permanente de Guatemala ante la UNESCO
Sr. José Miguel Valladares
Primer Secretario
Delegación Permanente de Guatemala ante la UNESCO
INDE/INDIA
H.E. Ms Bhaswati Mukherjee
Head of Delegation
Ambassador
Permanent Delegate of India to UNESCO
Mr Ramalingam Parasuram
Joint Secretary
Government of India
Ministry of Information and Broadcasting
Mr Shailendra K. Sharma
Deputy Secretary
Ministry of Human Resources Development
Government of India
ISRAËL/ISRAEL
Dr Mayer Gabay
Président
Comité de révision des lois sur le droit d’auteur et brevets
Ministère de la Justice
JAPON/JAPAN/JAPÓN
Mr Shinichi Isa
Deputy Director
International Affairs Division
Japan Copyright Office
Agency for Cultural Affairs
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 5
MAROC/MOROCCO/MARRUECOS
M. Abdellah Ouadrhiri
Directeur général
Bureau marocain du droit d’auteur
Ministère de la communication
PORTUGAL
M. Nuno Gonçalves
Directeur
Cabinet du Droit d’auteur
Ministère de la culture
Mme Mónica Moutinho
Premier Secrétaire
Délégation permanente du Portugal auprès de l’UNESCO
UKRAINE/UCRANIA
Ms Tamara Davydenko
Head of the Department on Economic and Regional Policy
Ministry of Education and Science
II. ASSISTANT AUX SÉANCES DU COMITÉ AVEC VOIX
CONSULTATIVE/ATTENDING MEETINGS OF THE COMMITTEE IN AN
ADVISORY CAPACITY/ASISTIENDO A LAS REUNIONES DEL COMITÉ CON
VOZ CONSULTIVA
ORGANISATION DES NATIONS UNIES POUR L’ÉDUCATION, LA SCIENCE ET LA
CULTURE /UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL
ORGANIZATION/ORGANIZACIÓN DE LAS NACIONES UNIDAS PARA LA
EDUCACIÓN, LA CIENCIA Y LA CULTURA
M. Koïchiro Matsuura
Directeur général
ORGANISATION MONDIALE DE LA PROPRIÉTÉ INTELLECTUELLE/WORLD
INTELLECTUAL PROPERTY ORGNIZATION/ORGANIZACIÓN MUNDIAL DE LA
PROPIEDAD INTELECTUAL
Mr Jørgen Blomqvist
Director
Copyright Law Division
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 6
III. OBSERVATEURS/OBSERVERS/OBSERVADORES
(a) ÉTATS PARTIES A LA CONVENTION UNIVERSELLE SUR LE DROIT
D’AUTEUR QUI NE SONT PAS MEMBRES DU COMITÉ
INTERGOUVERNEMENTAL/STATES PARTIES TO THE UNIVERSAL
COPYRIGHT CONVENTION WHO ARE NOT MEMBERS OF THE
INTERGOVERNMENTAL COMMITTEE/ESTADOS PARTES EN LA
CONVENCIÓN UNIVERSAL SOBRE DERECHO DE AUTOR QUE NO SON
MIEMBROS DEL COMITÉ INTERGUBERNAMENTAL
ALBANIE/ALBANIA
S. Exc. Mme Tatiana Gjonaj
Ambassadeur
Délégué permanent de l’Albanie auprès de l’UNESCO
M. Luam Rama
Délégué permanent adjoint de l’Albanie auprès de l’UNESCO
ALLEMAGNE/GERMANY/ALEMANIA
Mr Christoph Henrichs
Deputy Head of Unit
Copyright and Publishing Law
Federal Ministry of Justice
Mme Annika Molls
Stagiaire
Délégation permanente de l’Allemagne auprès de l’UNESCO
ANDORRE/ANDORRA
Mme Maria Ubach
Délégué permanent adjoint
Délégation permanente d’Andorre auprès de l’UNESCO
ARABIE SAOUDITE/SAUDI ARABIA/ARABIA SAUDÍ
H.E. Mr Mohammed Al Debian
Permanent Delegate of the Kingdom of Saudi Arabia to UNESCO
BRÉSIL/BRAZIL/BRASIL
Mme Silvia Whitaker Ferreira
Deuxième Secrétaire
Délégation permanente du Brésil auprès de l’UNESCO
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 7
CANADA/CANADÁ
Mme Florence Bernard
Chargée de Programme
Délégation permanente du Canada auprès de l’UNESCO
COSTA RICA
Mlle Carla Sierra Zúñiga
Ministre Conseiller
Délégation permanente du Costa Rica auprès de l’UNESCO
Mlle Irazú López
Stagiaire
Délégation permanente du Costa Rica auprès de l’UNESCO
EQUATEUR/ECUADOR
Sr. Lautaro Pozo
Encargado de Negocios
Delegación permanente del Ecuador ante la UNESCO
Sra. Susana Cobo-Vermand
Funcionaria
Delegación permanente del Ecuador ante la UNESCO
FINLANDE/FINLAND/FINLANDIA
Mr Marko Rajaniemi
Secretary-General
Copyright Commission
Culture and Media Division
Ministry of Education and Culture
ITALIE/ITALY/ITALIA
Mme Marina Misitano
Responsable
Projets culturels
Délégation permanente de l’Italie auprès de l’UNESCO
LIBAN/LEBANON/LÍBANO
S. Exc. Mme Samira Hanna-El-Daher
Ambassadeur, Délégué permanent
Délégation permanente du Liban auprès de l’UNESCO
Mme Samia Moukarzel
Attachée culturelle
Délégation permanente du Liban auprès de l’UNESCO
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 8
MEXIQUE/MEXICO/MÉXICO
Sr. Victor M. Guizar
Director
Protección Contra la Violacion del Derecho de Autor
Instituto Nacional del Derecho de Autor
MONACO/MÓNACO
Mme Corinne Bourdas-Magail
Délégué permanent adjoint de Monaco auprès de l’UNESCO
PARAGUAY
Dr Carlos González Ruffinelli
Director Nacional del Derecho de Autor
Ministerio de Industria y Comercio
PÉROU/PERU/PERÚ
Sr. Carlos Cueto Carrrion
Consejero
Delegación Permanente del Perú ante la UNESCO
RÉPUBLIQUE DE CORÉE/REPUBLIC OF KOREA/REPÚBLICA DE COREA
Mr In-chul Kim
First Secretary
Permanent Delegation of the Republic of Korea to UNESCO
RÉPUBLIQUE DOMINICAINE/DOMINICAN REPUBLIC/REPÚBLICA DOMINICANA
Sra. Patricia Dore Castillo
Consejera
Delegación Permanente de la República Dominicana ante la UNESCO
REPUBLIQUE DE MOLDOVA/REPUBLIC OF MOLDOVA/REPÚBLICA DE MOLDOVA
Mr Chirosca Dorian
Vice-Directeur
Agence d’Etat pour la propriété intellectuelle
Sra. Stela Volontir
Secretaria Primera
Delegación Permanente de la República de Moldova ante la UNESCO
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 9
REPUBLIQUE TCHÉQUE/CZECH REPUBLIC/REPÚBLICA CHECA
Ms Adéla Faladova
Lawyer
Department of Copyright
Ministry of Culture
M. Michal Beneš
Chef de la Section pour l’UNESCO
Ministère de la culture
SAINT SIEGE/HOLY SEE/SANTA SEDE
Mme Florence Motte
Mission permanente d'observation du Saint-Siège auprès de l'UNESCO
M. Enrique Badimón-Sanz
Mission permanente d'observation du Saint-Siège auprès de l'UNESCO
SLOVAQUIE/SLOVAKIA/ESLOVAQUIA
Mme Lubica Erdelska
Délégué permanent adjoint de la Slovaquie auprès de l’UNESCO
SUISSE/SWITZERLAND/SUIZA
Mme Béatrice Micheli
Assistante
Délégation permanente de la Suisse auprès de l’UNESCO
VENEZUELA
Sr. Aristides Medina Rubio
Director-Presidente
Biblioteca Nacional
(b) AUTRES ETATS/OTHER STATES/OTROS ESTADOS
BAHREÏN/BAHRAIN/BAHREIN
Ms Shaikha Maha Al-Khalifa
Directorate of Publications & Press
Ministry of Information
Mr Mohammed Al-Jazi
Legal Researcher
Directorate of Publications & Press
Ministry of Information
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 10
BÉNIN/BENIN
M. Christian Agossou
Directeur adjoint de Cabinet
Ministère de la culture, de l’artisanat et du tourisme
M. Samuel Ahokpa
Directeur
Bureau béninois du droit d’auteur (BUBEDRA)
M. Hector Posset
Premier Conseiller
Délégation permanente du Bénin auprès de l’UNESCO
Mme Françoise Medegan
Premier Conseiller
Délégation permanente du Bénin auprès de l’UNESCO
EGYPTE/EGYPT/EGIPTO
H.E. Dr Ahmed Rifaat
Ambassador
Permanent Delegate of Egypt to UNESCO
Dr Mamdouh Mansour
Counsellor
Permanent Delegation of Egypt to UNESCO
GABON/GABÓN
M. François N’Dong-Obiang
Directeur général
Agence nationale de promotion artistique et culturelle
INDONÉSIE/INDONESIA
H.E. Mr Aman Wirakartakusumah
Ambassador
Permanent Delegate of Indonesia to UNESCO
KOWEIT/KUWAIT
M. Muhammad Al-Shatti
Délégué permanent adjoint du Koweit auprès de l’UNESCO
MADAGASCAR
M. Benjamin Babany
Conseiller
Délégation permanente de Madagascar auprès de l’UNESCO
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 11
MYANMAR
Ms L. Nang Tsan
First Secretary
Embassy of the Union of Myanmar
SOUDAN/SUDAN/SUDÁN
Mr Adil Hussain Khalafalla
Legal Advisor
Legal Department
Ministry of Education
Mr Abdelrhman Eltayeb Ali
Legal Advisor
Ministry of Justice
THAILANDE/THAILAND/TAILANDIA
Ms Preeyanuch Jariyavidyanont
Deputy Permanent Delegate of Thailand to UNESCO
TURQUIE/TURKEY/TURQUÍA
Mr Aydin-Sefa Akay
Legal Counsellor
Permanent Delegation of Turkey to UNESCO
AUTORITÉ PALESTINIENNE/PALESTINIAN AUTHORITY/AUTORIDAD PALESTINA
M. Mounir Anastas
Conseiller
Mission permanente d’observation de l’autorité palestinienne auprès de l’UNESCO
M. Mohammad Yakoub
Mission permanente d’observation de la Palestine auprès de l’UNESCO
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 12
(c) ORGANISATIONS INTERGOUVERNEMENTALES/INTERGOVERNMENTAL
ORGANIZATIONS/ORGANIZACIONES INTERGUBERNAMENTALES
COMMISSION EUROPÉENNE/EUROPEAN COMMISSION/COMISIÓN EUROPEA
Mlle Stéphanie Zurawski
Stagiaire
Délégation permanente de la Commission européenne auprès de l’OCDE et de l’UNESCO
(d) ORGANISATIONS INTERNATIONALES NON GOUVERNEMENTALES/
INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS/
ORGANIZACIONES INTERNACIONALES NO GUBERNAMENTALES
ASSOCIATION LITTÉRAIRE ET ARTISTIQUE INTERNATIONALE/INTERNATIONAL
LITERARY AND ARTISTIC ASSOCIATION/ASOCIACIÓN LITERARIA Y ARTÍSTICA
INTERNACIONAL (ALAI)
Maître Gaubiac
Secrétaire général
Mlle Dima Sari
FÉDÉRATION INTERNATIONALE DES ASSOCIATIONS DE BIBLIOTHÉCAIRES ET
D'INSTITUTIONS/INTERNATIONAL FEDERATION OF LIBRARY ASSOCIATIONS
AND INSTITUTIONS/FEDERACIÓN INTERNACIONAL DE ASOCIACIONES DE
BIBLIOTECARIOS Y BIBLIOTECAS (IFLA)
Mr Winston Tabb
Chair
Copyright and other Legal Matters Committee
Mme Michele Battisti
Chargée de mission (ADBS)
Membre de la Commission CLM
FÉDÉRATION INTERNATIONALE DE L’INDUSTRIE PHONOGRAPHIQUE/
INTERNATIONAL FEDERATION OF PHONOGRAPHIC INDUSTRY FEDERACIÓN/
INTERNACIONAL DE LA INDUSTRIA FONOGRÁFICA (IFPI)
Ms Ute Decker
Senior Legal Adviser
IGC(1971)/XIII/8
Annexe/Annex/Anexo – page 13
FÉDÉRATION INTERNATIONALE DES ORGANISMES DE DROITS DE
REPRODUCTION/INTERNATIONAL FEDERATION OF REPRODUCTION RIGHTS
ORGANISATIONS/FEDERACIÓN INTERNACIONAL DE ORGANIZACIONES DE
DERECHOS DE REPRODUCCIÓN (IFRRO)
Mr Olav Stokkmo
Secretary-General
AUTRES/OTHERS/OTROS
Mr Darrell Panethiere
Lawyer
United Kingdom
IV. SECRÉTARIAT/SECRETARIAT/SECRETARÍA
Mme Milagros del Corral
Sous-Directrice générale adjointe pour la culture
Directrice, Division des arts et de l'entreprise culturelle
M. Georges Poussin
Chef
Section de l’entreprise culturelle et du droit d’auteur
Division des arts et de l’entreprise culturelle
Mme Petia Totcharova
Juriste
Division des arts et de l’entreprise culturelle
M. Emile Glélé
Juriste adjoint
Division des arts et de l’entreprise culturelle
e-Copyright Bulletin
July-September 2005
SELECTED WORKS
NGOMBE, Laurier Yvon: Le droit d’auteur en Afrique. L’Harmattan. Paris, 2004, 178 pp.
This book, with a forward by Professor Andre Lucas, is one of the few to have filled the void
in the area of copyright in Africa. Beyond a comparative analysis, the work also offers a
synthesis on the topic from an African viewpoint, which it then sets back into a regional and
international context by analyzing Annex VII of the Bangui Agreement (of the African
Intellectual Property Organization (OAPI)) as well as international copyright conventions.
With the development of cultural industries, the Internet and the ever-growing phenomenon of
piracy, the field of copyright law is thriving in Africa. This work will be of interest not only to
lawyers, practitioners and researchers but also to students and other actors involved in the
cultural industries, who will find a survey of the main aspects of copyright law in Africa. The
uninitiated public will find, for its part, a simple and synthetic presentation of the theoretical
and practical aspects of a topic which is known for its complexity.
Table of contents:
Preface
Introduction
Chapter I: Protected works
I. Conditions for protection
II. Diversity of protected works
III. Objects excluded from protection
Chapter II: Owners of rights
I. Rights ownership rules
II. Ownership of certain categories of works
III. Neighbouring rights ownership
Chapter III: Categories of rights
I. Copyright
II. Neighbouring rights
Chapter IV: Implementing protection
I. Exploitation of works
II. Collective management
III. Proceedings and sanctions
e-Copyright Bulletin
July-September 2005
Chapter V: Regional Aspects
I. The OAPI
II. Annex VII of the Bangui Agreement
Chapter VI: International Aspects
I. The modest role of Africa in the elaboration of international copyright law
II. Compatibility of international treatises and conventions with the cultural and
socio-economic interests of Africa
III. International aid for the development of copyright in Africa
Conclusion
e-Copyright Bulletin
July – September 2005
SELECTED WORKS
Patent, Trademark, and Copyright Laws. Edited by Jeffrey M. Samuels, Washington, D.C.,
BNA Books, A Division of The Bureau of National Affairs, Inc. (BNA), 2005 Edition.
872 pp.
All intellectual property-related statutory changes enacted through June 1, 2005 relating to
piracy, counterfeiting, cybersquatting, and the skipping of audio and video content of motion
pictures are captured in the June 2005 Edition.
This edition covers the provisions of the “Intellectual Property Protection and Courts
Amendment Act of 2004.” This act amends the criminal copyright provisions of 28 USC 2318
to render unlawful the trafficking in counterfeit and illicit labels or counterfeit documentation
or packaging. The act also amends the trademark and copyright laws to state that providing
false contact information in a domain name registration creates a rebuttable presumption that
any infringement was wilful for purposes of determining relief.
The new edition also includes the provisions of the “Family Entertainment and Copyright Act
of 2005,” which was enacted on April 27, 2005. This act amends the copyright and trademark
laws to legalize the use of devices that allow viewers to skip objectionable portions of DVDs
and adds a new Section 2319B to the criminal code relating to the unauthorized recording of
movies in a movie theatre.
In addition, the June 205 Edition incorporates recent changes to intellectual property-related
trade laws and an amendment to Section 121 of the Copyright Act regarding reproduction for
blind and disabled individuals.
The 2005 Edition of Patent, Trademark, & Copyright Laws (ISBN 1-57018-520-4 or 978-1-
57018-520-5/ISSN 0741-1219/Order #1520-PRY5/$125.00 plus tax, shipping, and handling),
may be purchased from BNA Books, P.O. Box 7814, Edison, NJ 08818-7814. Telephone
orders: 1-800-960-1220. Fax orders 1-732-346-1624.
Website : www.bnabooks.com
e-Copyright Bulletin
July – September 2005
SELECTED WORKS
Patent, Trademark, and Copyright Regulations. Edited by James D. Crowne, Washington,
D.C., BNA Books, A Division of The Bureau of National Affairs Inc. (BNA), April 2005
Supplement.
All regulatory developments affecting patents, trademarks, and copyrights issued under
Volume 37 of the Code of Federal Regulations from November 1, 2004 through April 1,
2005, are covered in the April 2005 Supplement.
Patents, Trademarks, and Copyright Regulations includes the following developments:
• The Copyright Office’s announcement of a cost of living adjustment of 3.2 percent
in certain compulsory license royalty rates;
• Amendments to PTO regulations to implement legislation concerning the
obviousness standard for inventions arising out of joint R&D agreements;
• And amendments to PTO regulations to implement a new fee structure for filing,
searches, and examination; and more.
Patents, Trademarks, and Copyright Regulations is a convenient, one-volume compilation of
all the intellectual property regulations found in C.F.R Volume 37, plus extra materials not
published in Volume 37-agency policy pronouncements; citations to public laws, the Federal
Register, and BNA’s Patent Trademarks & Copyright Journal; vital information governing
the operations of the Patent and Trademark Office, Copyright Office, and Copyright
Arbitration Royalty Panels; and comprehensive indexes to help streamline legal research. In
addition, each supplement includes summaries of new material for quick reference.
The timeliness of regular updates to BNA’s Patent, Trademark, and Copyright Regulations
makes the book a valuable resource for IP practitioners. In addition, the looseleaf format
provides flexibility for adding new pages and substituting revised pages so that the volume, as
a whole, stays current.
Patent, Trademark, and Copyright Regulations is updated more often and includes more
information than any available government compilation.
April 2005 Supplement may be purchased alone (ISBN 1-57018-491-7/New 13-Digit ISBN:
978-1-57018-491-8/Order #1491-PRY2/$115.00 plus tax, shipping, and handling), from BNA
Books, P.O. Box 7814, Edison, NJ 08818-7814. Telephone orders: 1-800-960-1220. Fax
orders: 1-732-346-1624.
BNA Website : www.bnabooks.com