WIPO, Berne, TRIPS, Copyright Law and their Implications for Google - Essay Example

WIPO, Berne, TRIPS, Copyright Law and their Implications for Google: The provision of adequate rewards to creators of works is considered to be dependent in modern times upon the adequate recognition and enforcement of the rights given to those creators by copyright law. Such recognition and enforcement can only take place at national level. International law attempts to support recognition and enforcement of such rights at national level. But full recognition and enforcement of such rights needs to limited by broader considerations of the public interest and societal needs, such as the need for cost-effective education, and broader considerations of journalistic freedom and freedom of speech. Thus all national copyright laws to a greater or lesser extent attempt to balance recognition and enforcement of copyright against broader interests and needs. International copyright law has recognised the need for this balance but the exact nature of the appropriate balance has been contentious. The nature of the balance envisaged in the Berne Convention may well have been different from that envisaged in subsequent legislation and this essay will begin by defining the dimensions of that balance. It will then proceed to consider the changes in international copyright law brought about by the TRIPS Agreement and the WIPO Copyright Treaty to establish whether the balance as now recognised in international copyright law is different from that originally recognised by the Berne Convention. Article 13 of TRIPs illustrates the essence of the Berne Convention and TRIPs, which is that the copyright holder's rights cannot be derrogated from except in special circumstances in the public interest. However, the test is very strict whereby the rights of the artist are paramount in the Berne Convention where it it widely accepted that the copyright holder and the artist was one and the same. This is because the Berne Convention was first formulated in 1888 before the international media trade came in force; therefore it was easy for the moral and economic rights of the copyright holder to be protected because they were the same person. TRIPs, on the other hand, was formulated after the televison and entertainment industry became global. In this world model the copyright holder is frequently not the artist because the caopyrights are owned by the employer, agent or company that commissions the individual's work. Therefore TRIPs focuses on the economic rights of the copyright holder and ignores the moral rights of the artist. Public interest rights in both of these conventions are ignored except for the cases of academic interest. It is not deemed as important that communal and indigenous rights should be protected or materials that are valuable to the development of the greater good of the community. This is especially so in the developing countries, where licenses and permissions for copyrighted material need to be obtained to educate and fund the development of their citizenry. The WIPO Copyright Treaty in many ways has been introduced to protect public interest rights and limit the copyright holder's rights, but in a balance with the moral rights of the artist. It still focuses too much on economic rights, but it is a move in the right direction. "Libraries will continue to play a critical role in ensuring access for all in the information society. Properly functioning national and international networks of library and information services are critical to the provision of access to information. Traditionally, libraries have been able to provide reasonable access to the purchased copies of copyright works held in their collections. However, if in future all access and use of information in digital format becomes subject to payment, a library's ability to provide access to its users will be severely restricted."1 Intellectual Property needs to understand that there are public interest rights as it deals with a variety of areas, stemming from inventions through to ideas and artistic writings and pictures. In relation to copyright if writings are pertinent to the safety or education of the greater public, then it should not be limited to the economic rights of the copyright holders or the personal rights of the creator. To limit data that is pertinent to the greater public interest is in fact a moral crime, because it can be used to further enslave the poor and in the international economic arena the poor. In the modern era of electronic data and the Internet Search Engines, such as Google allows for such protected information to be transmitted in ease without copyright license, as with other protected data. Therefore it allows for the public to have either sensitive or copyright protected information to be imparted upon them quickly; however without the correct copyright license this would be a breach of copyright law, both domestically and internationally if the Berne Convention was the only international copyright law in force. The growth and dominance of the Internet Search Engines, such as Google has made Copyright and Privacy rights regulation a very difficult to area conceptualise and enforce; the problems range from copyright breaches through to breaches of confidence, slander, invasion of privacy and criminal offences, such as child pornography and incitement to hatred. Each state has a varying interpretation of different laws, one example is the copyright laws surrounding downloads, in the USA it is an offence to upload or download files which contravene copyright laws; whereas in Canada it is an offence to upload but not download files which contravene copyright laws. Therefore the Internet Search Engines, such as Google cause a myriad of problems because the Canadian law does not prosecute those who procure downloads from sites based in the USA, but does prosecute those who upload sites in Canada, which seems very one-sided. This is because the USA prosecutes those citizens who upload and download files from sites in contravention of copyright laws, which means these citizens may be downloading from sites in Canada; hence protecting the Canadian as well the USA's interests. The Internet Search Engines, such as Google will be an important media to impart information that is in the public interest; therefore there needs to be a change in copyright protection to allow information to be legally disseminated without specific license or through payment if it is in the public interest. Although there needs to some protection for the artist because they are the creator of the work and if there is no legitimate public interest defense their protections should be effective punishment of any breach using the media of the Internet Search Engines, such as Google. Yet it must be in benefit of the moral rights of the creator that is protected and NOT the economic rights of copyright holder: "Despite efforts by international organizations to unify copyright protection, these organizations view moral rights of artists differently. In addition, each country has its own ideas as to what type of moral rights protection an artist is afforded. This disparity in moral rights protection in the international marketplace leaves artists without sufficient protection in the sense that there is no uniform system that guarantees protection. Further, with no common rules of enforcement, international systems of copyright protection are severely hindered.2" International Copyright Law has to consider more that these economic rights, because human rights such as free movement of information, literary and artistic works have become a recognized right that needs to be protected internationally and this is not the aim of TRIPs and even the Berne Convention Moral Rights of the Artist's Integrity: "It is apparent that the moral right of the Digital Age may differ in a number of ways from the moral rights protected in the Berne Convention. Moral rights should probably encompass different rights from the 'bundle' of moral rights protected in Article 6bis. For example, a right that reflects the new realities of dissemination to the public might emphasise the moral aspect of the right of communication to the public, protected by Article 8 of the WIPO Copyright Treaty. The new moral rights should seek to achieve an appropriate balance between the right of the author and the right of the public to have access to new technologies, particularly for the purpose of further technological growth.3" The WIPO Copyright Treaty is the latest development on Copyright and the type of rights that are protected. This treaty does recognize that there a moral rights, but not just the rights of the artist it also tries to balance these rights with public interest rights. It re-visits moral rights and does positively introduce both sets of rights that the Berne Convention attempted to protect. The WIPO Copyright Treaty has tried to eliminate the problems that the Berne Convention encountered by balancing moral rights in a pure form, but has made the mistake of including economic concerns which both Pettenati and Nielander have argued create a difficult future for moral rights within Intellectual Property Law. This agreement tries to balance of the integrity of the individual and the welfare of society then a much fairer approach would arise; as well as respecting the copyright holder. This is because on one hand the economic interests of large record and movie producers are pushing the Internet Search Engines, such as Google as a form to gain capital but are trying to limit the use of illegal downloads on a perverted form of moral rights, i.e. economic rights. As Nielander argues this schizophrenic approach of the economic copyright giants are invalidating true moral rights of the artist and the protected rights of the society for their economic gain. This approach has been carefully constructed because if moral rights were purely translated to their economic concerns under international law they could then use modern right theory to run roughshod over the integrity of the artist and the public interest rights that are promoting the welfare of society, regardless of economic power: "The race for exploitation of entertainment content creates conflicts of laws issues in this increasingly complex sector of international trade. Proponents of the application of copyright protection in cyberspace assert that certain modifications to the existing international copyright regime will overcome the immediate obstacles to global distribution of copyrighted materials. However, significant disagreement remains over the extent of protection which should be afforded to those cousins of copyright's economic siblings, moral rights. The subject of moral rights is an area where large differences remain between national copyright regimes. In cyberspace, moral rights take on a special significance because they "adhere to the individual author" sometimes in perpetuity. This article asserts that, in particular, the so-called right of integrity may not survive the demand for entertainment products, in the headlong rush to the digital marketplace. This proposition may be analyzed both in terms of the technological attributes of the digital medium, and in light of public policy premises that will provide a basis, in choice of laws questions, for overriding strong moral rights protections required under certain national regimes.4" Bibliography: Nielander, 1997, Reflections On A Gossamer Thread In The World Wide Web: Claims For Protection Of The Droit Moral Right Of Integrity In Digitally Distributed Works Of Authorship Pettenati, 2000, Moral Rights of Artists in an International Marketplace Samuelson, Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations need to be revised, can be found at: http://www.sims.berkeley.edu/%7Epam/papers/Samuelson_IP_dig_eco_htm.htm Szczepanska, Digital is not Different - copyright in digital environment, Lovells Law Firm Warsaw can be found at: http://www.iatul.org/conference/proceedings/vol14/fulltexts/Barbara%20Szczepanska.pdf#search='WIPO%20and%20copyright%20holder' Read More