INTERNATIONAL COPYRIGHT PROTECTION

I. INTRODUCTION

A copyright is an exclusive right conferred by law for a specified period of time to reproduce an original literary or artistic work fixed in any tangible medium of expression; to prepare derivative works based upon the original work; and to publicly perform or display the work (Netscape1, 1995).

Copyright protection means that uses of a copyrighted work are legal only with authorization from the copyright owner, but it does not apply to any idea, procedure used in the copyrighted work, only to an author's particular expression of the idea or procedure in a tangible medium.

International copyright protection refers to international recognition of an author's rights under copyright in other countries. But copyright is, intrinsically, created and enforced by national laws. Every country in the world has its own copyright law that applies within its own borders. There is no such a thing as international copyright law that automatically protects an author's writings throughout the world. Although theoretically cases on international copyright violation can be brought to the International Court of Justice, no case has ever been brought to the Court so far.

Given its "domestic" nature, international copyright protection has always been a complicated problem for all the countries, which, to their own benefits, have held varying views about the problem and how it should be solved.

II. "PRODUCERS" VS. "CONSUMERS"

Prior to the 19th century, copyright law was essentially a matter of domestic concern for most countries. However, as creative works began to be exchanged beyond national borders with increasing frequency, transnational protection for an author's work became more and more important for those countries where creative works were produced. They, the "producers," would demand compensation from "consumers", those countries where copyrighted works were used. An early example dates back to the chaos in the early days of bulk printing in the 15th century when Charles Dickens and other popular English writers suffered wholesale piracy of their works by American printers because, at that time, copyrights stopped at the borders of an author's native land. This practice was not stopped until the U.S. agreed by treaty to recognize English copyrights in the U.S. (Strong, 1981).

Now with the advance of communications technologies such as cable and computer digitalization, the world has become a global village. Copyright protection is not only important to printing and publishing industries, but also to broadcasting, computer software, high-tech and entertainment products. As a result, the ancient practice of commercial piracy has become so serious that it has emerged as a major economic and political problem between governments of developed countries, usually the "producers" of creative works, and developing countries, often the "consumers."

According to a report from USA Today (Cox, 1996), the U.S. government threatened to impose trade sanctions of $2 billion in Chinese imports if China does not crack down on pirate plants producing illegal computer software copyrighted by Microsoft, an American company. While willing to pursue illegal manufacturers more vigorously, the Chinese government said it would retaliate against sanctions by hitting U.S. goods with similar duties.

Throughout history, international infringement of copyright has usually occurred in developing countries ("consumers") where there is inadequate or ineffective copyright protection and/or with fewer authors and inventors. To some degree, copyright can also be seen as a historically inevitable development as nations become more mature in their knowledge industries. In the 1950s, India has serious doubts about international copyright and insisted that developing countries had special need with regard to knowledge transfer, translations and textbooks. India did a good deal of pirating at the time. However, as Indian publishing industry matured, India took a more favorable view towards international copyright. Piracy has diminished significantly (Altbach, 1988).

In fact, two trends can usually be detected as to how a developing country may infringe copyrights in the process of its economic development: (1) In an early stage, the emphasis in the infringing country is on promotion and exports, duplicating the industrial products or literary works. Later, the infringer may adopt less aggressive tactics, turning to borderline areas of infringement, rather than exact copying. Then the infringer may obtain a legitimate license, either as a business strategy or because the owner began to challenge the infringer. Finally, the infringer licensee may develop its own products. (2) As one government introduces or strengthens protective enforcement machinery, either because of foreign threats of retaliation or out of concern for safeguarding their own interests in other developing areas, the infringers will move on to another country or become legitimate suppliers (Stalson, 1987).

1. Varying Views

Because of the varying degrees in economic developments, developed and developing countries, or the "producers" and the "consumers," tend to hold different views on international copyright protection.

Developed nations view copyrighted products and works as valuable property that should be protected by law both domestically and abroad. They argue that (1) copyright protection is the principle of natural justice which entitles an author to the fruits of labor; (2) the expenses for research and development in production of many goods that are commonly infringed upon have increased enormously. This can only be compensated when the product is protected from unauthorized use by others; (3) copyright protection favors wide dissemination of works because they forge links between social classes, various races, ages and genders. The commercial sharing of the ideas contained in the works contributes to the advancement of society (Gasaway & Wiant, 1994).

However, developing countries consider international copyright protection to be a device to keep them eternally dependent on the technology and creativeness of the industrial world and to hamper their capacities to create and invent. They argue copyright protection is a Western concept which was created to maintain a monopoly over the production and distribution of knowledge and products. Some Asian countries even say copyright was not part of the Asian cultural tradition. To some extent, it was imposed on Asian countries by Western trading partners (Altbach, 1988).

Besides, they claim that knowledge is the heritage of all mankind and therefore should be respectfully shared by all, but protection denies them the educational and instructional tools available from copyrighted works because they are available only at prices they cannot afford and under conditions that may violate their sovereignty. They also assert that they are learning by copying, which is helpful for the later creation of their own technologies (Stalson, 1987).

One argument by Roberto Verzola even accused the West of being the real pirate when he talked about illegal copying software in Manila. Verzola regarded copying software as a benign case of piracy, compared with the malignant case of the U.S. pirating local doctors from the Philippines. He said, when the U.S. pirated their doctors, it took the irreplaceable resource for it takes 10 years to train a new doctor, and denied many people of the services of a doctor. But when the Filipinos pirate the computer program, they didn't deny any American citizen the use of the program (Verzola, 1992).

2. Progress

Yet, despite these conceptual arguments and practical problems, international copyright is increasingly accepted among developing countries, and is becoming entrenched , both in law and in practice, especially among Asian countries, such as China, Singapore and Malaysia, which have witnessed fast economic development in the past decade.

China started copyright legislation in 1990 and is moving to enforce copyright laws more aggressively through the State Administration of Industry and Commerce, the agency charged with overseeing copyright protection in China. The government says it is determined to control the rampant manufacture of fake compact and laser discs and software. Singapore passed a copyright act with teeth in 1986 and has been enforcing copyright with some vigor. Malaysia has also a law on the books and South Korea has begun to enforce controls over fake products as well (Goldstein, 1994).

Two major reasons can be cited for the remarkable progress of copyright in these countries which opposed international copyright protection in the past. The first one is a combination of carrots and sticks from the industrialized nations. The carrot in this instance was the willingness of developed nations to accept a version of compulsory licensing as a way of showing their understanding of the special problems in the developing countries. The stick is the pressure that has been applied to major pirating countries to implement and enforce copyright laws. The second reason is an understanding on the part of the developing countries that knowledge is an international commodity and requires international regulation, as well as a recognition that they have joined the international knowledge network and that they are "producers" as well as "consumers" of knowledge (Altbach, 1988).

It is this progress in the past decade that has motivated more nations, such as China, to join the two principal international conventions dealing in copyrights, namely, the Berne Union for the Protection of Literary and Artistic Property (the Berne Convention) and the Universal Copyright Convention (the UCC).

III. INTERNATIONAL CONVENTIONS

1. The Berne Convention

The Berne Convention is the first major copyright convention in the world. The original Convention for the Protection of Literary and Artistic Works was signed at Berne, Switzerland, on September 9, 1886, and went into force on December 5, 1887.

The original Berne Convention was intended to promote five objectives: (1) the development of copyright laws in favor of authors to bring about better worldwide copyright protection; (2) the removal over time of reciprocity as a basis for rights; (3) the elimination of discrimination in rights against foreign authors in all countries; (4) the reduction of formalities (formal requirements) for the recognition and protection of copyright in foreign works; and finally (5) the promotion of uniform international legislation for the protection of literary and artistic works (Copyright Office, 1989).

The first Berne Convention was a simple document in which two cardinal principles were established, both of continuing vitality today: (1) the concept of a union and (2) the rule of national treatment.

Under the concept of a union, the countries adhering to the Berne Convention organized themselves into a "union," by which members established a permanent entity constituting a separate cooperative unit that would continue in existence regardless of future entrances into, or withdrawal from, the convention by individuals. For instance, the members of the Berne Convention has grown from 10 in 1886 to 108 in 1994, but the Berne Convention has been functioning and will continue to function as an international copyright treaty among member countries.

The rule of national treatment provides that authors enjoy the same protection for their works in other countries as those countries accord their own authors (Copyright Office, 1989). For example, Greece, a Berne country, must treat works from Germany (also a Berne member) as if the work had originated in Greece and was subject to Greek copyright law (Gasaway & Wiant, 1994).

The Berne Convention has been revised five times in the past. Thus, there are five Berne Convention texts with respective focuses on formalities, moral rights, duration of protection and national treatment.

Berne Union members adhering to the earlier texts are not required to ratify later acts, but the latest text is the only one available to new members. For example, Britain joined the Berne Convention on December 5, 1887. It was required to ratify the first Berne Act. The U.S. joined the Berne Convention on March 1, 1989, it is required to subscribe to the latest Paris Act of 1971.

Nevertheless, members of the Berne Union form a single cohesive whole. Linked together with other members of this separative cooperative unit, new members are obligated to give convention protection to other members of the union who have adhered to earlier texts. By the same token, members adhering to earlier texts have Berne Convention obligations to protect those who adhered to later acts.

Now with 38 articles, one appendix and a protocol, the Berne Convention has three general types of provisions: (1)specific rules that establish rights for authors and proprietors that should be provided for in national laws, either by legislation or direct application, depending on the country's legal system; (2) more general rules that also obligate member countries to adopt national laws consistent with the minimum standards; and (3) optional rights whose adoption is left entirely to the discretion of member countries.

As of October 31, 1994, the Berne Convention has 108 member countries (See Appendix 1). All member countries agree that a copyright is protected in the following ways:

a. No formalities No formalities, such as notice or registration, are required for copyright protection. In other words, simultaneous publication in a Berne country eliminates the need for such formality as a prerequisite for protection in all Berne countries.

However some countries offer greater copyright protection if a copyright is registered or carries a notice. For instance, in Japan and Canada, registration provides a means of making your work a public record and may thus be helpful in case of an infringement action (Fishman, 1992).

b. Minimal protection laws

Each member country must offer a minimum standard of copyright protection within its own borders. This protection must include:

* Copyright duration of at least the author's life plus 50 years.

* The granting of "moral right" to the author. Moral rights are generally defined as those rights an author can never transfer to a third party because they are considered an "extension of his or her being." Briefly, moral rights consist of the right to claim authorship, to disclaim authorship of copies, to prevent or call back distribution under certain conditions, and to object to any distortion. Moral rights are generally of most concern to visual artists (Netscape2, 1995).

An example of a "moral right" is the right to prevent colorization of black and white films (Fishman, 1992).

* Some provision allowing for the "fair" or "free use" of the copyrighted work. This includes materials used in quotations for educational purposes and for reporting current events (Fishman, 1992).

2. The Universal Copyright Convention (The UCC)

The Universal Copyright Convention was set up in Geneva in 1957 to bring the United States and countries in Latin America, Europe, Asia and Africa into an international convention to govern the copyrighting of literacy, scientific and artistic works (Jussawala, 1992). The UCC was revised only once in Paris in 1971.

Similarly, the UCC also requires reciprocal rights of nationals of a member country in all other member countries, but provides that national laws relating to formalities must be complied with. So far, the 92 member countries of the UCC have agreed that a copyright is protected in the following ways:

a. National treatment

An author from a UCC member country is entitled to copyright protection in every country which signed the UCC. The protection the author receives under the UCC is the same as each UCC signatory country affords its own nationals, as long as that protection meets certain UCC minimum standards. This basic reciprocity under the UCC is referred to as "national treatment."

Suppose John, a U.S. citizen, publishes a book in Japan, also a signatory to the UCC. John would be protected in Japan on the same basis as Japanese nationals because John is a U.S. citizen and Japan is a signatory to the treaty (Netscape2, 1995).

b. First publication in a UCC country

Under the UCC, if a work is first published in a UCC country, it is also entitled to protection in every other UCC country. This means that an author who is not a national of a UCC country can still obtain full UCC protection simply by first publishing in a signatory nation.

For example, Muhammad is a national of Iran, which is not a UCC country. If he first published his work in Pakistan, which is a UCC country, Muhammad would be protected not only in Pakistan but in every other signatory of the UCC (Netscape2, 1995).

c. Limitation on formalities

The UCC requires that every UCC country accept several uniform minimum copyright standards. Thus, when it comes to copyright notice, the notice rules of all member countries are considered satisfied if the specific UCC-approved notice is placed on each copy of the work, which consists of c in a circle, the name of the author and the date of the first publication.

d. Scope of protection under the UCC

Under the UCC, each UCC country must (1) offer copyright protection for at least the life of the author plus 25 years; and (2) offer the author exclusive rights to translate it, with the exception that if a work is imported to another UCC country and not translated within seven years of the work's original publication, the government of that country has the right to make a translation in that country's language, but the government has to pay the author a fair fee (Netscape2, 1995).

IV. THE BERNE CONVENTION AND THE UCC: A COMPARISON

The Berne Convention and the UCC, working independently to deal with international copyright protection, have more differences than similarities.

1. Similarities

Both the Berne Convention and the UCC aim to protect international copyright, based on the principles of national treatment and nondiscrimination and provide for dispute settlement by the International Court of Justice, although no copyright dispute has ever been taken to it. Despite this, both conventions have little or no enforcement power.

Besides, the conventions cover almost the same categories of subject matter of protection, which includes such works as painting, architecture, photographic works, illustrations, three- dimensional works related to geography, topography, architecture or science, as well as books and cinematographic works. The protection can also extend to derivative works and collections of literary and artistic works, but protection of governmental or other official works is made optional for each member-state (Copyright Office, 1989).

2. Differences

First, the Berne Convention (1887) is much older than the UCC (1952). It is also interesting to note that the Berne Convention provides protection for authors, while the UCC protects works (Nasri, 1972).

Second, two conventions are supervised by different United Nations' agencies.

The Berne Convention is administered by the World Intellectual Property Organization (WIPO), a United Nations agency established in 1967. As the major international institution dealing with both copyright and patent matters, WIPO covers a broad range of international issues and is generally regarded as the preeminent source of technical knowledge. On the other hand, the UCC's administering body is the United Nations Educational, Scientific and Cultural Organization (UNESCO), which is also involved in issues regarding protection of copyrights. Its meetings are attended by representatives from various international nongovernmental organizations, including the International Publishers Association and the International Film and Television Council.

In terms of duration of copyright protection, the Berne Convention offers more extensive protection than the UCC. The Berne Convention provides for a minimum period of the author's life plus 50 years, the UCC for the author's life plus 25 years. In a few cases, the UCC has further reduced the period of protection, depending upon what it determines to be the social or scientific value of the work. For example, for published "applied arts," the 25-year duration is lowered to 10 years.

Besides, under the Berne Convention, a member-state must extend to Union authors an extensive body of minimum rights regardless of its national laws. These rights include copyright duration of author's life plus 50 years, moral rights and provisions for free use. Under the UCC, these rights, added at the 1971 Paris Convention, include only rights of reproduction, translation, control over public performance and the right of broadcasting (Gasaway & Wiant, 1994).

The Berne Convention also requires no formalities such as a notice for copyright protection, while the UCC requires three minimum copyright standards, namely, letter c in circle, the author's name and date of publication, for the work to be protected.

Finally, the Berne Convention requires a member-state to protect "moral rights" through its domestic legislation, while this is not part of the UCC. Moral rights are defined as rights extending beyond economic rights and are safeguarded even if the copyright is transferred (Stalson, 1987). This was an important issue that had prevented the U.S., a member of the UCC, from joining the Berne Convention until March 1, 1989.

3. Conflict

At present, most major industrialized countries belong to the Berne Convention as well as the UCC. These countries include the United States, Britain, most European countries, Japan, Australia and Canada. The list also includes large developing countries such as China and India.

Now the question: What if a country belongs to two or more conventions and treaties and the copyright protection is in conflict? For instance, John simultaneously publishes a book in Canada and the United States and then wants to know what protection he has in France, which belongs to both the Berne Convention and the UCC. The rule is that John is entitled to the most favorable copyright protection.

To provide a more specific example, since the minimum duration for copyright protection is life plus 50 years under the Berne Convention, and only life plus 25 years under the UCC, John's copyright is good for his life plus for 50 years. But, if John's book is published without a proper copyright notice, Berne Convention countries will give it protection, while some UCC countries will not.

Besides, if John's book is originally published in a Berne Convention country, John, a resident of a UCC country, is also entitled to all the protection allowed under the Berne Convention, without giving up any UCC rights (Netscape2, 1995).

4. Protection in Countries Not Covered by the Conventions

In the early 1990s, most countries joined either the Berne Convention or the UCC or both. But there are still a number of countries that belong to no international convention (see Appendix 3). To deal with the international copyright protection in non-member countries, member countries of the conventions usually sign bilateral or multilateral agreements with them, which makes it possible for copyrights to be protected in a country even though the country has no formal treaty relationships. For instance, the United States and China worked under this arrangement before China joined both the Berne Convention and the UCC in 1992 (Qian, 1988).

V. THE TRIPS AND THE WTO

The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) was concluded in 1994 as part of the Uruguay Round multilateral trade agreement. It provides for establishment of standards for protection of a full range of intellectual property rights and the enforcement of those standards both at home and abroad.

Under this accord, the signatories are obliged to rewrite their national laws to conform to internationally agreed norms for protecting patents, trademarks, copyrights, industrial designs, trade secrets, integrated circuits and geographical indications. The accord includes technological areas such as pharmaceutical products, compact discs and computer software -- not currently protected in many countries.

Industrialized countries are given one year for implementation from the accord's entry into force on July 1, 1995. Developing countries and those shifting from centrally planned to market economies, such as China, have four to nine additional years for implementation, depending on the sectors. Least-developed countries have until 2006 to comply.

In terms of copyrights, the trade related accord covers five new areas:

(1) obligates signatories to comply with provisions of the Berne Convention,except for Convention's requirements on moral rights.

(2) protects computer programs as literary work and databases as compilations under copyright.

(3) imposes an immediate obligation on signatories to grant owners of computer programs and sound recordings the right to authorize or prohibit the rental of their products.

(4) establishes a 50-year term for protection of sound recordings, as well as requiring signatories to provide protection for existing sound recordings.

(5) sets minimum 50-year term for protection of motion pictures and other works where companies may be the author (Netscape3, 1995).

More importantly, the accord also contains obligations to provide effective enforcement for copyrights both internally and at the borders. Under the accord, members are required to provide "expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements" (Netscape3, 1995).

The accord also requires that the rights holders have access to civil and administrative procedures and provides for criminal procedures "at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale" (Netscape3, 1995).

To settle disputes over copyrights, the Uruguay Round agreement also created the World Trade Organization (WTO) to replace the General Agreement on Tariffs and Trade (GATT). The WTO will facilitate the implementation and administration of the agreement. It integrates all the dispute-settlement procedures established under individual agreements. Disputes involving the accord or other aspects of the Uruguay Round agreement will be handled by the WTO General Council, acting as the Dispute Settlement Body. If a dispute settlement panel finds inadequate copyright protection or enforcement in a member country, the signatory bringing the complaint can retaliate in other sectors.

VI. CONCLUSION

International copyright protection becomes an important issue when creative works and products go beyond the borders of a country and when the country pursues to protect its copyrighted works in foreign countries. This is of special significance when modern technology has made the reproduction of protected works easier and cheaper.

However, transnational copyright protection involves cooperation among countries, not individual persons. That is why no effective international copyright enforcement has been set up to punish copyright infringement worldwide, as is the case in national copyright laws in many nations. International copyright protection can be achieved only under national laws in those countries, which are committed to adequate copyright protection for foreign citizens and companies under international conventions and/or bilateral treaties.

Besides, the issue of international copyright violation has always been closely related with national economic developments. This is especially true in developing countries which want to develop fast. For instance, countries, such as Japan, South Korea and Singapore, used to heavy pirates when their economies began to boom. However, when their knowledge industries become more mature, these countries gradually realize that they are both "producers" and "consumers" of knowledge and that they will also benefit from international copyright protection. Some developing countries, such as China, has taken a long-range perspective while fully understanding that they are now at a disadvantage in the international knowledge network.

Because of this general recognition of copyright protection, almost all major developed and developing countries have decided, in the past decade, to join both the Berne Convention and the UCC (See Appendix 1). The increasing double membership of both the Berne Convention and the UCC among most major developed and developing countries reflects willingness of these countries toward establishing a more unified world order of copyright protection that respects human knowledge and that benefits all the mankind.

Though with no strict enforcement power of international copyright violations, the two international conventions have, since their inception, provided a bridge among nations in the world to gain better understandings with each other as well as a set of flexible international rules with which nations, varied in their intentions and economic development levels, can play fair with each other.

Of course, this doesn't mean the two international conventions can serve as a cure-all for international copyright disputes in the future. In fact, it can be predicted that potential conflicts over international copyright protection will continue to exist, even among member-states of both international conventions.

Two reasons can be cited: (1) The Berne Convention and the UCC are still working independently with more differences and similarities, as discussed in Section IV. (2) Development of technologies, such as cable and satellite distribution and computer software, will continue to pose new challenges to international copyright protection as it did in the past. For instance, at present, the world is still divided as to whether computer software should be protected as equally as the other creative works.

Despite this, all the nations will still move toward concerted efforts of effective international copyright protection, especially when the world has now become a global village in the information age. The conclusion of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) and the establishment of the World Trade Organization to solve copyright disputes in 1994 are such an effort.

REFERENCES

Altbach, P. G., (1988). Economic progress brings copyright to Asia. Far East Economic Review, 3, 62-63.

Copyright Office, (1989). The United States joins the Berne Convention (pp. 2-8). Washington DC: U.S. Government Printing Office.

Cox, J., (1996). China faces trade sanctions over copyright piracy. USA Today, 5/2, B/1.

Fishman, S., (1992). The copyright handbook: How to protect and use written works (pp. 1-12). Berkeley: Nolo Press.

Gasaway, L. N. & Wiant, S. K., (1994). Libraries and copyright: A guide to copyright law in the 1990s (pp. 157-167). Washington DC: Special Libraries Association.

Goldstein, C., (1994). Pirates' Lair. Far Eastern Economic Review, 5, 55.

Jussawala, M., (1992). The economics of intellectual property in a world without frontiers: A study of computer software (p. 6). New York: Greenwood Press.

Nasri, W. Z., (1972). The factual -- international copyright. In A., Kent & H., Lancour (eds.), Copyright: Current viewpoints on history, laws, legislation (p. 8). New York: R. R. Bowker Company.

Netscape1, (1995). Protecting intellectual property: Copyrights.

Netscape2, (1995). International software law (pp. 2-6). USA: SYBEX Inc. (http://www.island.com/LegalCare/Chapter13/Chapter13.html)

Netscape3, (1995). Intellectual property provisions of GATT (pp. 1-4). Washington DC: USIA. (http://www.ladas.com)

Verzola, R., (1992). The west is the real pirate. World Press Review, 5, 52.

Qian, G., R., (1988). A view of a commercial official of People's Republic of China. In C., E., Walker & M., A., Bloomfield (eds.), Intellectual property rights and capital formation in the next decade (pp. 83-91). Lanham: University of Press of America.

Stalson, H., (1987). Intellectual property rights and U.S. Competitiveness in trade (pp. 2-50). Washington DC: National Planning Association.

Strong, W. S., (1981). The copyright book: A practical guide (pp. 165-169). Massachusetts: The MIT Press.

Appendix 1

The Berne and the UCC (with *) Member Countries

Appendix 2

The UCC members NOT listed in Appendix 1

Appendix 3

Countries that belong to neither conventions or are unclear