International and Domestic IPR Legislation - Report Example

INTELLECTUAL PROPERTY 2005 INTRODUCTION Intellectual property rights (IPR) is an exceptionally complex legal, ethical, cultural and economic issue, and the recent explosion of literature covering various aspects of IPR management and protection is very indicative of this complexity. Moreover, recent development of digital and information technology has made it more controversial than ever before. The new technologies have substantial implications for literally each aspect of traditional IPR practices. The IPR issues in digital environment differ from those in traditional media in many ways. Copying materials from another medium, encapsulating content and software for emulation, or migrating content to new hardware and software, all involve activities which can infringe IPR. The main controversy of the current situation in realm of IPR can possibly be formulated as follows. On the one hand, IPR holders require that government should implement new laws ensuring absolute security of their intellectual property. This requirement seems logic and reasonable, especially if we take into consideration the growing number of intellectual property thefts that occur these days. Absence of effective legislation may lead to further growth of IPR infringements. Yet, on the other hand, in light of the recent developments in the realm of IPR protection, a number of experts express concern that requirements of IPR holders to fully protect their intellectual assets might potentially erode capabilities that have been previously permitted to the public by copyright law under the "fair use" doctrine or its cousins, such as 'first sale' or 'limited term' doctrine. This paper identifies the most controversial issues associated with intellectual property rights in contemporary environment and analyzes whether IPR are justified in the form they currently take. MAIN DISCUSSION International and domestic IPR legislation The traditional instrument, which regulates use of intellectual property, is intellectual property law. This law consists of numerous statutes and case laws covering copyrights, patents, and trade secrets. In Britain, the system of intellectual property law dates back to the 17th century: thus, in 1662, Britain saw the first Licensing Act, while Statute of Queen Anne, the earliest copyright statute, was passed in 1709. The statue protected British printers after the advent of the printing press, and also protected European book importers1. From legal perspective the IPR norms and regulations covering the digital environment are more complex and controversial than those applied for traditional media. As a result, many legal practices, which are highly effective for protection of the IPR in traditional environment, may not be applicable nowadays2. Despite recognition of the need to adjust traditional intellectual property laws in order to reflect the recent changes in this realm, the situation still leaves much to be desired, both domestically and internationally. As Boyle ironically noticed nearly ten years ago, ".modern international policy towards IPR much resembles previous 'freedom of the seas'3. Despite multiple declarations, the situation remains practically the same up to date. Notwithstanding efforts of the US and EU to unify national legislations, efforts of WTO, and in many cases outdated Acts regulate modern principles of digital data4. The issue of intellectual property in digital environment is covered by several Acts in the United Kingdom. UK legislation differentiates the IPR of physical materials (e.g. print data) and digital IPR. At the same time, British legislation does not cover as many aspects of digital IPR as, for example, American one. The old laws are still in use in many cases which hinders proper protection of IPR in digital domain5. According to British legislation, intellectual property rights are; "legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields"6. As well as American and pan-European legislation, intellectual property law in the UK aims at safeguarding creators and other producers of intellectual goods and services by granting them time-limited rights to control use of their goods/services. Modern legal framework is much based on Copyright, Design and Patents Act enrolled in 1988. Though it was originally produced to cover intellectual property in traditional, physical areas, many of Act's articles are still applied to protect IPR in digital environment. The 1988 Act covers literary, musical, dramatic, architectural or artistic works that may be published online. The author of material published in the public domain, or in some cases the publisher, owns all the rights to the object: it cannot be copied without the full consent of the creator. The copyright protection period lasts in the UK from 50 to 70 years depending on each case. Copyright is automatically understood at the point of creation as well as in the USA, Japan and Greece7. At the same time, British legislation has several important limitations. Thus, the 1988 Act copyrights only the data first published in the UK and created by British citizen. Therewith, if the USA legislation is aimed to protect the IPR in a global context, UK authorities pay attention exclusively to domestic issues8. British legislation also pursues the principles of 'fair use'. It means that a person can visit, download or archive any published material unless she is not going do obtain commercial benefit from doing so. In this case permission of the IPR holder is required9. Changing role of intellectual property While earlier on information was used to produce goods, these days it is used to produce other information. Information has become both the raw material and the final product: "what is specific to the informational mode of development is the action of knowledge upon knowledge itself as the main source of productivity"10. The changing role of information and knowledge coupled with further development of the digital technology has had strong effect on the public attitudes towards intellectual property and its protection. The major principle of intellectual property use is a reasonable balance between the interests of IPR holders and information consumers. While in pre-digital environment this balance has been already achieved, modern international legislation vividly demonstrates that much has to be done to achieve the same balance in digital environment. Violation of IPR is pregnant with substantial economic losses suffered by the copyright holders. Having no economic stimulus, authors and publishers lack motivation to create and disseminate. However, those whom seek to protect intellectual property and ensure fair reward for IPR holders should not forget about the initial goal of providing intellectual protection. This goal is "[to] promote the public interest in access to knowledge and innovation"11. Primary importance of public access to copyrighted works has been emphasized by well-known decisions ruled by the Supreme Court of the US in United States v. Paramount Pictures, Inc. and Fox Film Corp. v. Doyal, 286 U.S. 123, 127 cases12. Thus, the key difficulty is obvious: ensuring public access to intellectual property assets - the primary underlying reason for providing IPR protection - without any serious damage done to IPR holders. Tools previously used to maintain this balance are not always applicable to digital environment. For example, 'fair use' doctrine allows making a limited number of copies of materials that are subject to copyright for restricted purposes. Practically, it means that a person whom intends to analyze the material or comment on can make a digital copy without being accused of copyright infringement13. The goal of 'fair use' is absolutely clear and consistent with Supreme Court's decision in Sony Corp. v. Universal City Studios, Inc (see above): to promote public access to copyright works thus establishing the balance between IPR holders and public. However, the doctrine seems fair and simple only until we analyze it in depth. Legally, "fair use" doctrine is based upon four key factors: - the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; - the nature of the copyrighted work; - the amount and substantiality of the portion used in relation to the copyrighted work as a whole; - the effect of the use upon the potential market for or value of the copyrighted work14. Despite clarity of formulations, assessment of these factors is a difficult task even for most experienced experts, let alone laymen. Evidently, understanding and interpretation of the term 'fair use' from the common sense perspective and expert perspective varies greatly, which raises the problem of juridical definition of fairness versus perceived fairness. The 'limited duration' doctrine limits duration of rights provided to the IPR holder under copyright law. The core idea of this doctrine is that every intellectual property that is subject to copyright eventually becomes part of the public domain. However, this doctrine is flawed as well: "public domain status can have an opposite effect as well. A public domain work may go (or stay) out of print if no one is willing to invest in preserving the work without the ability to assert exclusive rights as a way of recouping the investment. Contractual arrangements can attempt, as a matter of contract between two parties, to create protection beyond the date of copyright expiration"15. The 'first-sale' rule, a limitation on the right of rights holders to control copies of their works that have been distributed to the public is another way to prevent the IPR holders from total monopolization of their assets. This doctrine provides that "the first sale of a copy of a work to a member of the public "exhausts" the rights holder's ability to control further distribution of that copy. A library is thus free to lend, or even rent or sell, its copies of books to its patrons"16. Libraries, bookstores, art galleries, auction houses, and many other institutions depend on the 'first-sale' rule. We often make use of this rule in everyday life, for example when a person gives some book, CD, or videotape to her friend. CONCLUSION Intellectual property rights and their protection involve a wide range of controversial issues some of which will probably never be resolved. Justification of IPR is one of such issues. Any discussion concerning justification involves two opposite points of view one reflecting interests of IPR holders, another reflecting public interest. Each of these perspectives implies various understanding of the extent to which intellectual property must be protected. Therefore, any attempt to establish full consent between them is doomed to failure. The only solution is to develop a flexible system which would respect the underlying meaning of IPR protection institute and produce the least number of complaints from both sides. Despite absence of clarity what exactly has to be done to develop such system, one thing is absolutely clear: the onset of digital technology has seriously disturbed the balance between public interest and IPR holders' interests. Legislative mechanisms used to protect intellectual property in non-digital environment fail to provide effective protection of intellectual assets to those whom produce and disseminate them. Coupled with increasing value of information as a central strategic resource in industrial and economic development, this fact is disturbing: absence of proper protection of IPR may result in decreasing motivation to create new intellectual property, and, in the long run, will negatively impact industrial and economic development. The British government has recently launched a review of IPR legislation to reflect the peculiarities of digital environment. Launching this process despite numerous 'experts' saying intellectual property rights can hardly be justified in the form they currently take is the best evidence that British government has recognized the threat of leaving the balance between public and IPR holders' interests disturbed. Restoring the pre-digital balance of interests will improve the current situation in realm of IPR protection - the first important step in developing an effective and flexible system of protecting intellectual property in digital environment. REFERENCES Beagrie, N. and Jones, M. (2005). Preservation Management of Digital Materials; A Handbook. Digital Preservation Coalition Bently, L. and B. Sherman (2004). Intellectual Property Law. Oxford University Press Committee on Intellectual Property Rights in the Emerging Information Infrastructure, National Research Council (NRC) (2000) The Digital Dilemma: Intellectual Property in the Information Age, The National Academies Press May, Ch. (2003). Why IPRs are a Global Political Issue. European Intellectual Property Review Vol.25, No. 1: 1-6. Data Protection Act (2004). Retrieved December 5, 2005 from http://www.lib.ed.ac.uk/sites/digpres/acts.shtml Foster, Ed. (1998) "What's in a Name Not Even the Real Pirates Want Us to Call It Software Piracy" Infoworld, 20(52): 79. Ginsburg, J.C. (1998) Authors and Users in Copyright. Journal of Copyright Society of the U.S., 44 (1):1-20. Hefter, L. R. and R.D. Litowitz (2004). What is Intellectual Property, online article retrieved December 05, 2005 from http://usinfo.state.gov/products/pubs/intelprp/ Ho, K. (1995) A Study into the Problem of Software Piracy in Hong Kong and China. M.S. Thesis. London School of Economics and Political Science Mishel, L., R. J. Bernstein, and J. Schmitt (1997). The state of working America, 1996-97 Armonk, N.Y.: M.E. Sharpe Robinson, J. (2001). Protecting Intellectual Property in Russia. D-Lib Magazine, June Torremans, P. (2005). Holyoak and Torremans: Intellectual Property Law. Oxford University Press Read More