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'
0. Introduction.........................................................................................2
1. Basic Frameworks..............................................................................4
Berne Convention ..................................................................................................4
TRIPS ....................................................................................................................6
WIPO treaties.........................................................................................................7
2. EU Legislative and Regulatory Developments...................................9
European copyright framework ..............................................................................9
EU legislative developments ................................................................................10
EU regulatory developments................................................................................13
Selected European cases ....................................................................................15
3. Asia/Pacific Legislative and Regulatory Developments...................19
Copyright ecosystems in Asia/Pacific region........................................................19
Asia/Pacific legislative and regulatory developments ...........................................20
Selected Asia/Pacific cases .................................................................................25
4. Legal Campaign Against Online Piracy............................................29
Context and background ......................................................................................29
Actions against individual file-sharers ..................................................................29
5. Conclusions ......................................................................................31
Evolution of national copyright regimes................................................................31
Driving forces of international harmonization .......................................................31
Differences remain...............................................................................................32
Effects on stakeholders........................................................................................33
Steps ahead.........................................................................................................34
6. Contributors ......................................................................................35
For The Berkman Center .....................................................................................35
For GartnerG2......................................................................................................35
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%(
!
The foundational White Paper “Copyright and Digital Media in a
Post-Napster World,”1 by the Berkman Center for Internet &
Society and GartnerG2, explores a variety of issues surrounding
the current digital media ecosystem. The White Paper examines
legal and regulatory developments regarding copyright and
related intellectual property (IP) issues, discusses existing
business models upset by digital media distribution and
emerging models newly possible, and analyzes shifts in
consumer attitudes and behavior. However, the emphasis of the
foundational White Paper is on the U.S. law and market.
This Supplement to the White Paper focuses on international
legal issues.2 It considers developments regarding copyright and
related rights in jurisdictions outside the United States against
the backdrop of earlier Digital Media Project3 works that
reviewed the interplay among law, technology and the business
ecosystem.4 In essence, the purpose of this Supplement is
threefold:
? First, it offers a broad knowledge base about international
legal issues and the emerging legal framework relating to
the shift from analog/offline to digital/online media.
? Second, it aims to provide a rough overview of the different
paths and stages of evolution of the copyright ecosystems
across three continents: Europe and the Asia/Pacific region,
including Australia.
? Third, it seeks to inform stakeholders—users, rightholders,
business executives, intermediaries, policymakers, etc.—
about basic similarities as well as conceptual differences in
global and U.S. digital media laws at a time when U.S.-
based services are expanding to international markets.5
In Part 1, we start with a brief discussion of the basic
international copyright framework and provide an overview of
three sets of important copyright agreements: The Berne
Convention, Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) and the World Intellectual Property
Organization (WIPO) treaties.
1 See http://cyber.law.harvard.edu/home/uploads/254/2003-05.pdf.
2 Last update: 30 December 2004.
3 See http://cyber.law.harvard.edu/media for further information about the Digital Media Project.
4 The Berkman Center’s iTunes Case Study explores the interactions between legal regimes and business models in greater detail.
See “iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media,” available at
http://cyber.law.harvard.edu/media/itunes. A detailed study on online business models will soon be released by the Berkman
Center’s Digital Media Project (the study will be posted at http://cyber.law.harvard.edu/media/publications).
5 See, e.g., iTunes Europe: A Preliminary Analysis, at http://cyber.law.harvard.edu/media/itunes_europe.
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Part 2 discusses the copyright framework in Europe as
established by the European Copyright Directive and other
European Union (EU) legislation. In this context, we explore
legislative and regulatory developments both at the EU and the
EU member states level. A selection of cases from European
countries illustrates the current state of “digital media law in
action.”
Part 3 reviews legislative and regulatory developments in the
Asia/Pacific region and provides brief descriptions of the
copyright laws in Australia, Singapore, Malaysia, China, Japan
and South Korea. In this context, we examine the impact of the
international copyright treaties discussed in Part I. This section
also provides an overview of actions taken against file-sharing
Web sites and peer-to-peer (P2P) services in selected countries
in the Asia/Pacific region.
Part 4 summarizes the legal campaign against online piracy,
provides information about legal actions taken against individual
file-sharers and briefly outlines current attempts to fight online
piracy in coordinated operations across the world.
And finally, Part 5 offers some conclusions about how the legal
landscape is evolving in response to the challenges and
opportunities posed by digital media.
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)( !* +
This section provides a rough overview of international
agreements of particular importance to the still-evolving
international copyright framework. Because they establish rights
and responsibilities regarding intellectual property (IP) that
signatory countries have agreed to implement internally, later
sections will refer back to them.
A set of international treaties establish standards for copyright
protection, such as the Berne Convention for the Protection of
Literary and Artistic Rights; the Rome Convention for the
Protection of Performers, Producers of Phonograms and
Broadcasting Organizations; the Universal Copyright Convention
(UCC); and—of increasing relevance—the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS).6
Recently, two other important international treaties entered into
force: the World Intellectual Property Organization (WIPO)
Copyright Treaty of 1996 and the WIPO Performances and
Phonograms Treaty of 1996. These treaties essentially reiterate
the principles of the Berne Convention and the TRIPS
Agreement, while adding provisions that address digital
transmissions and technological protection measures.
To present some milestones in the evolution of the international
legal framework, we begin our discussion with the Berne
Convention, then present an overview of TRIPS, and finally
conclude with the WIPO Treaties of 1996.
,
The Berne Convention7 for the Protection of Literary and Artistic
Works is an international copyright agreement that was adopted
by an international conference in Berne, Switzerland, in 1886.
The signatories of the Berne Convention constitute a union for
the protection of the rights of authors in their literary and artistic
works, known as the “Berne Union.”
The Berne Convention protects “literary and artistic works.”
This expression includes a broad range of products. It covers, in
essence, every production in the literary, scientific and artistic
domain such as books, pamphlets and other writings; lectures,
addresses, sermons and other works of the same nature;
dramatic or dramatico-musical works; choreographic works and
entertainments in dumb show8; musical compositions with or
without words; cinematographic works and those created by
analogous processes; works of drawing, painting, architecture,
sculpture, engraving and lithography; photographic works and
6 The interactions among these Treaties are complex. The baseline is that each Treaty creates a separate set of obligations, often
between different parties. The provisions set forth in the Treaties are sometimes complementary, and sometimes similar (the “three-
step-test” for exceptions, for instance, can be found in several Treaties.) However, important conceptual differences (e.g., with
regard to enforcement of Treaty obligations) as well as differences in the substance of law (e.g., term of protection) remain.
7 See http://www.wipo.int/clea/docs/en/wo/wo001en.htm.
8 Dumb shows are performances using gestures and body movements without words.
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those created by analogous processes; works of applied art; and
illustrations, maps, plans, sketches and three-dimensional works
relative to geography, topography, architecture or science. It also
protects, among other things, translations, adaptations, and
arrangements of music and other alterations of literary and
artistic works, including cinematographic and photographic ones.
What are the main features of the Berne Convention? The term
of copyright for most types of works is the life of the author
plus 50 years, but some countries might have a longer term,
because the Convention only establishes a minimum standard.
Most importantly, the Convention sets forth the principle of
“national treatment,” which requires a Berne Union signatory to
provide the same rights established by its domestic laws for its
own nationals to the nationals of every Berne Union country.
Automatic protection is required for works published in any
Berne Union country and for unpublished works authored by a
citizen or resident of any Berne country. (Special provisions
apply where the work has been first published in a Berne country
but the author is a national of a non-Berne country.)
The Convention has been modified several times to expand the
works and rights that it covers in response to changes in markets
and technologies.9 The latest significant revision occurred in
1971. Since then, the WIPO, charged with the administration of
the Convention, has pursued a “guided development” approach
aimed at fostering the information exchange among member
states, and offering recommendations and model laws rather than
at making further substantive revisions of the Convention itself.
One consequence of this less-centralized approach has been
the differing development of copyright regimes in different
nations, despite the simultaneous emergence of global markets
for information goods. The tension between global markets and
idiosyncratic local copyright laws on the one hand and the lack
of an enforcement mechanism under the WIPO regime on the
other hand led to calls for a new set of rules at the level of public
international law. The starting point for the next phase of
international copyright treaties was not, however, triggered by
WIPO, but the General Agreement on Tariffs and Trade (GATT)
Uruguay Round, which led to the Uruguay Round Protocol that
includes the TRIPS Agreement.
9 Technological changes have necessitated that the Berne Convention be revisited approximately every two decades.
Supplementary agreements extending the initial Berne Convention include the 1928 Rome Convention for the Protection of
Performers, Producers of Phonograms & Broadcasting Organizations; the 1971 Geneva Convention for the Protection of Producers
of Phonograms Against Unauthorized Duplication of Their Phonograms; and the 1974 Brussels Convention Relating to the
Distribution of Programme-Carrying Signals Transmitted by Satellite.
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-
In order to catch up with globalization and to reduce differences
in the protection and enforcement of IP rights around the
world, new internationally adopted trade rules for those rights
were introduced by the 1994 TRIPS Agreement.10
TRIPS covers areas such as copyright and related rights,
trademarks, geographical indications,11 industrial design,
patents, layout designs and trade secrets. It addresses five
broad issues:12
? Application of basic principles of the trading system and
other international IP agreements (such as national
treatment and most-favorable-nation treatment).
? Obligations of member governments to provide for
adequate protection of IP rights.
? Responsibilities of member governments for effective
enforcement within their boundaries.
? Adoption of the World Trade Organization (WTO) dispute
settlement mechanism to disputes under TRIPS.
? Special transitional arrangements, including arrangements
for developing and least-developed countries.
As to copyright specifically, TRIPS requires that its signatories
comply with the substantive provisions of the Berne Convention.
The Agreement also ensures that computer programs will be
protected as literary works under the Berne Convention, and
lays down basic principles with regard to the copyright protection
of databases. Furthermore, the Agreement adds important
provisions on rental rights to the international copyright
framework. The term of protection must extend to at least 50
years after the year of authorized publication; special
requirements apply to phonographic works and other categories
of works. TRIPS also incorporates the “three-step-test,” which
requires that national exceptions to copyright must be limited to:
(i) certain special cases, (ii) which do not conflict with a normal
exploitation of the work and (iii) do not unreasonably prejudice
the legitimate interests of the rightholder.13
The TRIPS Agreement provides evidence for the increased
importance of trade rules in the realm of international IP law.
However, TRIPS was not a comprehensive response to the new
challenges and changes in the information environment. Rather,
the Agreement can be seen as a mere expansion in depth and
geographical coverage of IP protection along the lines of the
existing regimes of the industrialized world.
10 See http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm.
11 Roughly, geographical indications are signs used on goods that have a specific geographical origin and possess qualities (or a
reputation) that are due to that place of origin (e.g., “Roquefort” for cheese produced in France; see http://www.wipo.int/about-
ip/en/geographical_ind.html).
12 See http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm.
13See Art. 13 TRIPS.
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.
During the TRIPS negotiations, it became clear that the
Agreement would not catch up with recent developments in
digital communication and information technologies. Against this
backdrop and facing the threat of losing relevance, WIPO
suggested a new treaty for the online environment and an
update of the protections for performers, producers of
phonograms and broadcasting organizations. Since a revision of
the Berne Convention—requiring all signatory nations to vote
unanimously for the amendments—was not a feasible option,
WIPO appointed a committee of experts to draft a Special
Agreement.14 At a diplomatic conference in December 1996,
finally, the WIPO Copyright Treaty (WCT)15 and the WIPO
Performances and Phonograms Treaty (WPPT)16 were adopted.
They became law in May 2002. The United States signed both,
and the European Union (EU) implemented the treaties through
the European Copyright Directive. The EU member states are
following suit in the course of transposing EU copyright law into
national law.
In this section, we focus on the WCT of 1996. This Treaty
governs the protection of literary and artistic works and is in its
scope identical to the Berne Convention. It explicitly confirms
that copyright protection extends to computer programs and
databases. The Treaty clarifies three specific rights and
addresses three important issues.
? Right of distribution. The Treaty provides an exclusive right
of distribution to authors. Under the Berne Convention, this
right had only been granted with respect to cinematographic
works. The Treaty leaves it to its signatories to determine if
and under what conditions the exclusive distribution right will
apply beyond the first authorized transfer of ownership. In
the United States, for instance, the distribution right exhausts
after the first sale (the “first sale doctrine”).
? Right of rental. In addition, the Treaty grants a right of
rental to authors of certain kinds of works such as computer
programs, cinematographic works and works embodied in
phonograms. Accordingly, authors have the exclusive right
to authorize the commercial rental to the public of the
originals or copies of their works. The Treaty also sets forth
important exceptions to these rights.
? Right of communication to the public. Further, the Treaty
grants authors of literary and artistic works the exclusive
right to authorize any communication to the public of their
works, by wire or wireless means, including by making them
available via interactive on-demand services or the like.
Under the Berne Convention, this right had been limited
14 This lengthy process started in 1991 and involved many studies and reports submitted by national governments and other
players.
15 http://www.wipo.int/documents/en/diplconf/distrib/94dc.htm.
16http://www.wipo.int/documents/en/diplconf/distrib/95dc.htm.
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both to certain categories of works and with regard to the
means of communication.
The WCT deals with three particularly important issues among
others. First, the minimum duration of the protection of
photographic works is raised from 25 years after the author’s
death to 50 years to match all other works under the Berne
Convention. Second, the treaty establishes the framework for
limitations of and exceptions to copyrights: Signatory nations
may provide for limitations of or exceptions to the rights granted
under the WCT regime (for instance, “private copying
exceptions”) under the condition that they may apply only to
certain special cases, that the limitations or exceptions do not
conflict with the normal exploitation of the work, and that the
legitimate interests of the author are not unreasonably
prejudiced (the three-step-test). Third, and this aspect is
particularly important for online media, the Treaty obliges
ratifying member states to provide for adequate legal protection
and effective legal remedies against the circumvention of
effective technological measures—such as access and copy
control technology—that are used by authors in connection with
the exercise of their rights under the WCT or the Berne
Convention, and that restricts acts that are not authorized by the
authors concerned or permitted by law.
Thus, the WCT has introduced new international rules—such as
a comprehensive right of communication to the public and the
protection of technological protection measures, among others—
that benefit rightholders and the copyright industry at large.
Because the WCT is perceived to favor IP owners’ interests over
others, WIPO has recently been called upon to take a more
balanced view of the social benefits and costs of IP rights as a
tool for supporting creative activities. In the aftermath of the
“Geneva Declaration,”17 WIPO’s General Assembly decided to
advance a “development agenda” that acknowledges the need
for balance in worldwide policy on IP rights.18
In sum, the WCT introduced new international rules regarding
copyright, and also clarified how certain existing rules should be
interpreted given new technological developments. In doing so,
the WCT has helped level the playing field among national
copyright regimes. However, the WCT still leaves significant
leeway to the contracting states. As a consequence, significant
differences among national copyright regimes remain, as this
Supplement will illustrate.
17See http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf.
18 See http://www.cptech.org/ip/wipo/wipo10042004.html.
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#( /01
,
-
,
/ !
+
Copyright issues and related rights in Europe are governed not
by a single body of law, but by legislation both at the EU level
and the national level. EU member states, however, significantly
harmonized their national copyright laws between 1991 and
1996 as a result of several EU Directives aimed at vertical
standardization, including the Software Directive, Rental Right
Directive, Satellite and Cable Directive, Term Directive,
Database Directive and the Artists’ Resale Rights Directive.
Perhaps the most important pieces of EU legislation regarding
digital media are the European Union Copyright Directive
(EUCD)19 and the recently enacted IP Enforcement Directive.
Still pending implementation in some member states, the EUCD
aims to harmonize national laws horizontally and sets the
European Community legal framework for copyright by
standardizing three fundamental exclusive rights, introducing an
exhaustive list of copyright exceptions, and stipulating
obligations on safeguarding technical protection measures. The
IP Enforcement Directive concerns the measures, procedures,
and remedies necessary to ensure enforcement of IP rights,20 in
tandem with the earlier Directive on Electronic Commerce21 and
the Directive on Access Control Services.22
First, to achieve the harmonization of fundamental exclusive
rights, the EUCD:
? Specifies the acts covered by exclusive reproduction rights
for authors, performers, phonogram producers, producers
of films, and so forth.
? Grants authors an exclusive right to authorize or prohibit any
communication to the public—including interactive on-demand
transmission—of the originals and copies of their work.
? Harmonizes for authors the exclusive right of distribution to
the public of their works or copies thereof, and stipulates—
for tangible works—a communitywide principle of
exhaustion (“first sale”).
19 See Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects
of copyright and related rights in the information society.
20 See Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of IP rights.
21 See 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.
22 See Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services
based on, or consisting of, conditional access.
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Second, the EUCD stipulates an exhaustive list of exceptions to
the right of reproduction and the right of communication.
However, adoption of only one exception—regarding temporary
acts of reproduction integral to a technological process enabling
lawful use or transmission, such as proxy caching by an Internet
service provider (ISP)—is mandatory for member states, and the
provision’s wording creates a multitude of interpretative
questions. The Directive’s 20 optional exemptions and limitations
on rights of reproduction and communication concern the public
domain. For three of these exceptions—reprography, private
use, and broadcasts made by social institutions such as
hospitals or prisons—the rightholders should receive fair
compensation. Exceptions to distribution rights are granted
depending on the exceptions relating to reproduction or
communication.
Third, the EUCD implements the WIPO Treaties and requires
member states to enact anti-circumvention provisions that
impose legal liability for circumvention of any effective
technological measure protecting copyrighted materials or rights
management information. Technological measures are defined
as any technology, device or component that, in the normal
course of its operation, is designed to prevent or restrict acts not
authorized by the rightholder of a copyright or a related right.
The standard for the “effectiveness” of such measures has not
yet been determined. The Directive also requires that in the
absence of voluntary measures taken by rightholders, member
states ensure the implementation of exceptions or limitations for
certain privileged uses. EU member states may incorporate
additional exceptions and limitations—for instance, for private
use—if certain requirements are met. However, it is noteworthy
that these exceptions do not apply to on-demand services such
as an online music store. Further, the EUCD does not set forth
limitations on the legal protection of technological measures for
purposes such as news reporting, parody and criticism, or
quotation. Thus, the Directive differs significantly from its U.S.
counterpart and gives EU member states significant leeway to
define the scope of their own Digital Millennium Copyright Act
(DMCA) type of protections.
Finally, it is also important to recognize what the EUCD does not
harmonize. It does not deal with important issues such as
ownership of rights, copyright contracts, moral rights, collective
administration of rights, choice of law and jurisdictional issues.
/0
,
,
Although the EUCD has not yet been fully implemented by the
EU member states, in February 2003 the European
Commission proposed another directive to enforce IP rights and
bolster the fight against piracy and counterfeiting. Despite strong
criticism by civil liberties organizations, scientists and even some
industry groups, the controversial IP Enforcement Directive—
supported by the music and movie industries and the U.S.
government, among others—moved through the legislative
process with almost unprecedented speed and was adopted in a
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fast-track proceeding in April 2004 by the EU Parliament and the
Council.
The IP Enforcement Directive’s powerful new enforcement
measures ensure a high, equivalent and homogeneous level of
protection of IP rights across the EU common market. The
Directive, for instance, requires that EU member states
implement aggressive evidence preservation mechanisms,
including secret court authorizations for raids by plaintiffs’ agents
(“Anton Piller orders”); precautionary seizures of alleged
infringers’ property (e.g., servers, computers, etc.), including by
blocking bank accounts and other financial assets (“Mareva
injunctions”); and forced disclosures of personal and commercial
information, akin to the subpoena powers granted by the DMCA.
The IP Enforcement Directive, to be implemented by the
member states by 29 April 2006, applies to any infringement of
IP rights as provided for by community law or by the national law
of EU member states. Thus, the Directive’s scope is extremely
broad. It includes even minor, unintentional and noncommercial
infringements, including peer-to-peer (P2P) file-sharing, although
some of the measures set forth in the Directive (e.g.,
precautionary seizure and blocking of bank accounts) can be
applied only in cases where infringing acts are carried out on a
commercial scale. In sum, the Directive significantly increases
enforcement on behalf of IP owners.
More recently, an EU official confirmed that committees of the
EU Parliament and the Council are working on two pieces of
legislation aimed at criminalizing piracy and counterfeiting.
Both a draft directive and a draft decision were expected to be
introduced by the end of 2004, in tandem with a study on the
impact of piracy on the IP industry.23 However, no update was
published at the time of this writing in December 2004.
Moreover, the Commission recently assessed the coherence of
the existing legislation in a staff working paper reviewing the
legal framework in the field of copyright and related rights.24 The
working paper concludes that there is no need for a substantive
revision of existing directives,25 but that fine-tuning is necessary
to ensure that definitions (e.g., the term “reproduction right”),
exceptions and limitations set out in different sector-specific
Directives are coherent and in compliance with the standards set
forth by the EUCD. In the context of the working document, the
Commission notably recommends not to extend (from 50 years
to 95 years) the copyright protection for recorded music as
advocated by the entertainment industry.
23 See http://www.heise.de/newsticker/meldung/48232.
24See http://europa.eu.int/comm/internal_market/copyright/review/review_en.htm.
25 This statement is in tension with the Commission’s earlier discussion of a “Super Directive” on copyright and related rights in the
context the 2002 Santiago de Compostela revision conference. See http://www.edri.org/issues/copyright/eu.
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At the EU member state level, EUCD implementation is still in
progress.26 The implementation deadline of 22 December 2002,
was only met by two EU member states.27 As of today, 16
members28 have transposed the Directive into national law. The
remaining nine states have published draft legislation, and
implementation efforts continue. In December 2003, the
European Commission pursued infringement cases and referred
the defaulting member states to the European Court of Justice
for noncommunication of the national implementing measures.
Initial analysis of the enacted legislation reveals significant
differences in interpretations of the Directive by several member
states. In the provision on legal protection of technological
measures such as digital rights management (DRM) systems, for
example, the EUCD refers to “access controls” and “copy
controls,” but unlike the DMCA, it does not differentiate between
the two as far as circumvention acts are concerned. This
particular design generated diverging regimes: Under Danish law,
for instance, the circumvention of access controls—such as those
used in DVD region coding—is likely to be considered fair use. In
contrast, the U.K.’s EUCD implementation bans circumvention of
both access and copy controls by combining them under the
common label “technological measures.” The sanctions imposed
on circumventors or on those trafficking in circumvention devices
also vary among different EU member states. Under U.K. law, for
instance, violators of the anti-circumvention provision might be
subject to both fines and imprisonment. Similarly, Germany
contemplates fines and prison sentences, except that infringers
who circumvent technological measures for personal,
noncommercial uses are not subject to (criminal) prosecution.
The Danish system, by contrast, provides no criminal sanctions
for those who violate its anti-circumvention provision for whatever
purpose, imposing only civil damages and fines.
Beyond implementing the EUCD, some EU member states
amended their national laws to fight Internet piracy. The Italian
Parliament, for instance, recently enacted Europe’s toughest
penalties for illegal file-sharing and other forms of online piracy.29
The law imposes up to three years in prison and fines from
�2,500 to �15,500 for copyright infringements conducted over the
Internet. The law punishes merely downloading files for private
use by a fine of �1,500. ISPs that do not cooperate with law
enforcement authorities to fight Internet piracy risk administrative
sanctions. This legislation also implements some of the remedies
in the IP Enforcement Directive.
France, finally, enacted the Loi pour la confiance dans
l'économie numérique (LCEN) on 21 June 2004,30 which
transposes the EU Directive on Electronic Commerce into
26 For an overview, see Urs Gasser and Michael Girsberger, Transposing the Copyright Directive: Legal Protection of Technological
Measures in EU-Member States – A Genie Stuck in the Bottle?, Berkman Research Publication No. 2004-10, to be available at
http://cyber.law.harvard.edu/media/eucd.
27 Denmark and Greece.
28 Greece, Denmark, Italy, Austria, Germany, the United Kingdom, Malta, the Slovak Republic, the Czech Republic, Ireland,
Luxembourg, Hungary, Poland, Slovenia, Latvia and Lithuania.
29 See http://www.usatoday.com/tech/news/techpolicy/2004-05-28-italy-piracy-law_x.htm?POE=TECISVA.
30 See http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=ECOX0200175L.
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French law. The new law covers a broad range of topics,
including the limited responsibility of providers for content they
host, caching of content by ISPs, online advertising, digital
signatures, cryptography, online contracts and cybercrime.31
Recently, leading French ISPs and the music industry signed an
agreement under the auspices of the French Ministries of
Industry, Culture and Finance. According to the cooperation
agreement, any offender’s Internet account could be terminated
within a few hours after a judicial order at the request of a record
label monitoring P2P networks based on contractual termination
or suspension clauses in the subscriber’s agreement with the
ISP. In the past, such requests were subject to review by a penal
court.32 The French ISPs also agreed to send warning messages
to users upon request from rightholders and to provide P2P
filtering software to their users, allowing them to block access to
P2P systems such as eDonkey.33 Further, the Loi informatique et
libertés was amended in August 2004, allowing collecting
societies and other representatives of rightholders to collect and
process personal data (in particular the IP address) of alleged
infringers in order to secure the evidence necessary to initiate
proceedings or send warning messages about the economic and
legal consequences of infringement.34
/0
,
In its first decision regarding the collective management and
licensing of music on the Internet, in October 2002 the European
Commission granted an antitrust exemption to the International
Federation of the Phonographic Industry (IFPI) in Europe, which
represents a large portion of the international recording
industry.35 In the IFPI Simulcasting Agreement, members
agreed to a new category of multiterritorial copyright licenses for
the simultaneous broadcasting of music over traditional channels
(terrestrial or cable transmission) and the Internet. Accordingly,
TV and radio broadcasters whose signals originate in a member
state of the European Economic Area (EEA) can approach any
EEA-based collecting society to obtain a single license covering
most European countries and selected countries outside Europe.
Although the Commission supports the “one-stop-shop” principle
of online licensing, it recently warned 16 organizations that
collect royalties on behalf of music authors that their Santiago
agreement potentially violates EU competition rules.36 The
agreement’s purpose is to allow each of the participating
collecting societies to grant to online commercial users one-stop-
shop copyright licenses that include the music catalogs of all of
the societies and that are valid in all of their territories.37 In
31 See http://www.dmeurope.com/default.asp?ArticleID=2158.
32 See http://www.dmeurope.com/default.asp?ArticleID=2342.
33 See http://www.technologyreview.com/articles/04/07/ap_2072804.asp?trk=top.
34 See http://www.cnil.fr/index.php?id=1699.
35 See IFPI Simulcasting, decision of 8 October 2002, OJ L107 (30.04.2003), p. 58.
36 See http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/04/586&format=HTML&aged= 0&language=
EN&guiLanguage=en.
37 The Santiago agreement covers the performance rights of music authors for streaming and Webcasting as well as music and
music video on demand, including music in films available on the Internet. A similarly designed agreement, the Barcelona
agreement, covers the mechanical rights of authors.
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contrast to the IFPI simulcasting agreement for collecting
societies of recording companies, however, the Santiago cross-
licensing agreement—concerning collecting societies of music
authors—effectively locks up national territories because
commercial users can only obtain a license from the
monopolistic collecting society established in their own member
state. The territorial exclusivity imposed by the Santiago
agreement means the societies do not compete with one
another to provide licenses and may result in unjustified
inefficiencies for both licensees and consumers. A hearing was
held in November, and it is expected that the EU ruling will be
made public in a couple of months.38
A recent European Commission communication addresses
general concerns about the transparency and further
development of collecting societies39 The Commission
proposes a legislative framework at the community level for the
governance of collecting societies; the framework would
address, among other issues, the establishment and status of
collecting societies, their relationship with rightholders and
commercial users, and their supervision.
In the same communication, the Commission also addresses
DRM systems in general and the interoperability of DRM
systems and services in particular. The Commission argues that
the choice of the appropriate business model for the rightholders
and commercial users remains to be made, and suggests that
the use of DRM systems and services remain voluntary and
market-driven. However, the Commission also makes clear that
“the establishment of a global and interoperable technical
infrastructure on DRM systems based on consensus among the
stakeholders appears to be a necessary corollary to the existing
legal framework and a prerequisite for the effective distribution
and access to protected content in the internal market.”40 The
European Commission concludes that close monitoring of
market developments is essential to safeguard the public
interest; however, no immediate legislative action is proposed.
Similarly, a High-Level Group on Digital Rights Management,
established by the Commission in the context of implementing
the eEurope 2005 action plan, explored the interoperability
problem and identified different factors and scenarios for the
evolution of DRM standards.41 Recent DRM hearings in October
2004 organized by the Commission suggest ongoing tussles
between the content and hardware industries, between these
industries and collecting societies, and between industry
representatives and consumer advocates.42
38 See http://digital-lifestyles.info/display_page.asp?section=business&id=1783.
39 Communication from the Commission to the Council, the European Parliament and the European Economic and Social
Committee, The Management of Copyright and Related Rights in the Internal Market, 16.04.2004, COM(2004) 261 final.
40 Id. at 11.
41 See http://europa.eu.int/information_society/eeurope/2005/all_about/digital_rights_man/index_en.htm.
42 http://www.edri.org/edrigram/number2.20/DRM, http://www.edri.org/issues/copyright/drm/contact041011, and
http://docshare.beuc.org/4/DKHJIELCHKEAELGGHPLAMMFGPDBK9DWYPK9DW3571KM/BEUC/docs/DLS/2004-01224-01-E.pdf.
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!
/ !
This section seeks to provide an overview of recent case law
that is likely to have an impact on the further evolution of the
digital media ecosystem in Europe. Before we turn to national
courts’ rulings dealing with issues such as fair use, technological
protection measures and secondary liability, we take a look at
two important antitrust actions taken by the European
Commission.
The EU’s current antitrust case against Microsoft was initiated
by the European Commission in 1998 and concerns Microsoft’s
refusal to provide interface information for interoperability of
competing server operating systems as well as the bundling of
jukebox and media software with Microsoft’s Windows operating
system. In March 2004, the European Commission concluded
that Microsoft has violated EU competition law by leveraging its
near monopoly in the market for operating systems onto the
markets for workgroup server operating systems and for media
players. On this basis the Commission imposed a record �497.2
million (US$613 million) fine. Even more importantly, however,
the court ordered Microsoft to offer a version of its Windows
operating system stripped of Windows Media Player.43 Microsoft
tried to reach a settlement, offering to include the media players
of several of its competitors with Windows.44 However, since EU
regulators are reportedly extremely concerned with influencing
Microsoft’s monopolistic behavior in the future, a settlement was
not reached.45 Consequently, Microsoft challenged the
Commission’s decision and appealed to the European Court of
First Instance in Luxembourg.46 At the beginning of the hearings
in September 2004, Microsoft asked the Court to suspend the
Commission’s far-reaching antitrust order until the end of the
appeals process, which is expected to last at least two years.47
The European Court of First Instance recently dismissed
Microsoft's application for interim measures in its entirety, since
Microsoft "has not shown that it might suffer serious and
irreparable damage as a result of implementation of the
contested decision."48
In August 2004, the European Commission decided to open an
in-depth investigation into a proposed joint acquisition of the
U.S. DRM company ContentGuard by Microsoft and Time
Warner. After a routine review, the Commission decided to
investigate whether the deal might possibly create or strengthen
a dominant position for Microsoft in the market for DRM
solutions. The Commission pointed out that the joint acquisition
could slow down the development of open interoperability
standards. However, it is important to note that the opening of a
second-stage merger investigation does not prejudge the
Commission’s conclusions and final decision. This decision must
43 See
http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/04/382&format=HTML&aged=1&language=EN&guiLanguage=en.
44 Id.
45 See http://www.microsoft.com/presspass/press/2004/mar04/03-18EC_NPR.asp.
46 See http://www.nytimes.com/2004/07/28/business/worldbusiness/28euro.html.
47 See http://www.nytimes.com/2004/10/01/technology/01soft.html.
48 See http://money.cnn.com/2004/12/22/technology/microsoft_eu.reut/index.htm?cnn=yes.
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be reached in a maximum of four months, by January 2005.49
Recently, however, the Commission has stopped the clock on its
review, because the structure of the transaction changed
fundamentally when French technology firm Thomson
unexpectedly joined the deal in November 2004.50
As in the United States, national courts of EU and EEA member
states have considered cases regarding, among other issues,
fair use, technical protection measures and secondary liability.
Specifically, a series of cases are dealing with the question of
whether rightholders can put technological protection
measures on DVDs and CDs, even if doing so vitiates existing
consumer rights, and whether consumers can legally circumvent
such technological measures to preserve those rights.
In December 2003, a Norwegian appellate court upheld a ruling
finding Jon “DVD-Jon” Johansen not guilty of violating
Norwegian criminal law against breaking into digital data that
one has no right to access.51 The teenager was charged for his
role in creating a program, DeCSS, to bypass the encryption on
commercial DVDs.52 The appellate court noted that DeCSS
enabled a legal right—the making of a copy of a legally
purchased DVD for one’s own use—and that this legal utility
made its publication on the Internet legal and outweighed the
danger of abuse it might pose by enabling illegal reproduction of
DVDs in competition with movie rightholders.53 Currently,
Norway—a member of the EEA, but not the EU—is transposing
the EUCD into national law pursuant to its WIPO obligations.
Interestingly, its proposed anti-circumvention provision, following
the rationale of the “DVD-Jon” ruling, still allows circumvention
for private and ordinary use. Moreover, the Norwegian
Consumer’s Ombudsman recently announced an evaluation of
the legality of copy protections on CDs (but not DVDs) under
Norway’s Marketing Act.54
In contrast, the District Court of Paris recently ruled in UFC v.
Films Alain Sadre et al.55 that a copy protection system on a
DVD does not conflict with provisions of the French Intellectual
Property Code, which limit copyright owners’ rights regarding
reproductions made strictly for the copier’s private use. UFC, a
consumer rights association, claimed it received complaints from
consumers about DVD copy protections that prevent purchasers
from making copies for private use. The court confirmed that
such technical protection measures comply with the EUCD,
though the EUCD is not yet transposed into French law.
Recently, however, French authorities have launched an
investigation of EMI France and Fnac, a leading music retailer in
France, over copy protection technology. The investigation is
based on consumer protection laws and was ordered by a
49 See
http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/04/1044&format=HTML&aged=0&language=EN&guiLanguage=en.
50 See http://www.washingtonpost.com/wp-dyn/articles/A22074-2004Nov30.html.
51 See http://www.theregister.co.uk/2004/01/06/us_inspired_copyright_laws_set/.
52 See http://www.itworld.com/Man/2683/030107dvdjon/page_1.html.
53 See http://efn.no/DVD-dom-20031222-en.html.
54 See http://www.forbrukerombudet.no/index.db2?id=1438.
55 Tribunal de Grande Instance de Paris, 3ème chambre, 2èeme section, N RG 03/08500, Judgement rendu le 30 Avril 2004.
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magistrate judge following a review of consumer complaints
suggesting that EMI France’s copy protection technology makes
CDs unplayable on some systems.56
In line with the French case, in May 2004 a Belgian court rejected
a complaint made by the consumer organization Test-Achats
against record companies in Belgium, which challenged the use
of technical measures to protect music on CDs. Test-Achats
asked the court to prevent the record companies from using
technical control measures on CDs and to remove all copy-
controlled CDs from the market.57 In its ruling, the court held there
is no right to make a private copy under Belgian law and rejected
Test-Achats’ demands. Test-Achats announced an appeal.58
At least two other cases have dealt with enforcing national
implementations of the EUCD anti-circumvention provisions. An
Italian court rejected the seizure of Sony Playstation game
consoles with modified chips that allow unauthorized uses of the
system. The court held that the new anti-circumvention provisions
were inapplicable because the modified chips were not primarily
intended to circumvent copyright protection measures. Rather,
the chips enabled consumers to exercise a fuller range of rights,
including reading imported discs and creating back-up copies of
games. The court determined that the owners of a product are
entitled to use their property as diversely as possible.59
In the Copy-Count case, a Munich regional court held that using
software to circumvent copy-prevention measures on a CD
constitutes copyright infringement under the recently amended
German Copyright Act. The court rejected the software
producer’s argument that a user’s right to make a private copy
also permits circumvention of copy-protection measures.60
At least one European case touched on the liability of major P2P
network for copyright infringements. The Dutch Supreme Court
addressed the question of secondary liability for operating the
file-sharing service KaZaA in the appellate case Buma/Stemra
v. KaZaA. It confirmed a 2002 ruling denying an order requested
by Buma that would have required KaZaA to take measures to
prevent infringement of copyrighted music on its P2P service.
According to the ruling, KaZaA successfully demonstrated that it
is impossible to implement filtering mechanisms that differentiate
between copyrighted works and other material.61 The Supreme
Court reaffirmed that such an order cannot be issued if
compliance would be technically impossible. Further, the
Supreme Court noted that KaZaA was not itself infringing
copyrights, and that Dutch law does not recognize the concepts
of contributory or vicarious infringement.62
56 See http://zdnet.com.com/2100-1104-5325887.html.
57 See http://www.theregister.co.uk/2004/01/03/belgian_watchdog_sues_record_biz/.
58 See http://www.edri.org/cgi-bin/index?id=000100000151.
59 See http://www.ipjustice.org/media/release20040112_en.shtml.
60 See http://www.zdnet.de/news/software/0,39023144,39120245,00.htm?h.
61 See http://news.com.com/2100-1023-870396.html..
62 See http://www.infoworld.com/article/03/12/19/HNcourtkazaa_1.html.
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Another Dutch court ruled in Techno Design v. Brein that the
MP3 search engine zoekmp3.nl does not infringe copyright law
by merely informing its users where they can find MP3 files for
download. The court ruled that it is possible to download
noninfringing files using zoekmp3.nl. Further, the court held that
copying/downloading a copyrighted MP3 file for personal use
without rightholders’ authorization does not constitute a violation
of Netherlands’ Copyright Act.63 However, it also ruled that
Techno Design, the operator of the search engine, might be
obliged, based on the standard of due care, to render its
assistance and take adequate measures as soon as it learns
that any link its search engine displays refers to a Web site
containing an infringing or otherwise illegal MP3 file.64 At the
same time, the court denied that Techno Design is under an
obligation to ascertain on its own initiative whether the files
referred to are authorized or not.
A recent ruling by a Belgian court addresses the obligations of
an ISP in cases where its users infringe copyrights. The Belgian
Society of Authors, Composers and Publishers (SABAM)
instituted in June 2004 a prohibitory injunction in the court of first
instance of Brussels against the ISP Tiscali. Through this
injunction, SABAM seeks to put an end to the use of P2P
networks in Belgium.65 Reportedly, the court ruled in November
2004 that Tiscali should disconnect customers if they violate
copyrights, and block the access for all customers to Web sites
offering file-sharing programs. The court also ordered a technical
investigation into the possibility of blocking access. The decision
is not public yet.66
A case of direct infringement was recently settled in Spain. The
Web site Puretunes.com sold music downloading subscription
for US$4 for eight hours a month access to the site, to US$168
for one year access in mid-2003. The operator of the Web site
argued that a loophole in Spanish copyright law allowed it to sell
to the United States music licensed through Spanish music
publishing agencies but without having to deal with the record
labels themselves.67 The Recording Industry Association of
America (RIAA) sued Puretunes’s operators and the firm that
owned it, Sakfield Holding Company SA, in July 2003, while the
site was shutting down. Recently, the defendants agreed to pay
US$10.5 million to the music labels to settle the copyright
infringement case.68 A lawsuit against a similar service is
pending in Australia,69 while comparable Russian Web sites such
as AllofMP3.com and mp3search.ru are still in operation.70
63 See http://www.solv.nl/rechtspraak_docs/District%20Court%20Haarlem%20120504.pdf (English translation).
64 Id.
65 See http://www.sabam.be/Web site/data/tiscaliangl.doc,
66 See http://www.edri.org/edrigram/number2.23/p2p.
67 See http://www.theregister.co.uk/2003/05/27/drmless_mp3s/.
68 See http://www.theregister.co.uk/2004/10/27/puretunes_settlement/.
69 See next section.
70 See http://www.technewsworld.com/story/34512.html.
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2( 3 4 ! !1
,
-
,
!
3 4 ! !
Tracking developments of (digital) copyright law in the
Asia/Pacific is challenging for several reasons.71 The Asia/Pacific
region includes many nations with different historical and colonial
backgrounds, divergent political ideologies (ranging from
capitalism to socialism or communism), and very different levels
of economic development. These factors, among other issues,
determine the manner how—and if, at all—copyright systems
have emerged and what today’s levels of protection are. Thus,
for instance, copyright law is much less developed in the Pacific
region—including the least-developed countries (e.g., Samoa,
Solomon Islands, Tuvalu and Vanuatu)—than in East Asia (e.g.,
Japan, South Korea) or in some Association of Southeast Asian
Nations (ASEAN) countries such as Singapore or Malaysia.
Against this backdrop, one might roughly distinguish between
three stages of development of copyright protection in the
Asia/Pacific region:72
? Copyright laws at a very nascent stage. Copyright laws
of countries in this category either do not exist at all (e.g.,
Laos), or have not incorporated the relevant protection
levels set forth by basic international treaties such as the
Berne Convention or TRIPS. Most of the countries in the
Pacific region fall into this category,73 as do nations in other
parts of the Asia/Pacific region such as Vietnam, Laos, Sri
Lanka and the Maldives.
? Copyright laws that provide a level of protection as set
forth by TRIPS. In the Asia/Pacific region, TRIPS has
certainly been the major driving force in legislative changes
over the past five years. Most ASEAN countries are in this
category,74 but also some East Asian nations75 and other
states (e.g., India). Some South Asian and Pacific
countries, by contrast, are considered to be least-
developed countries, and therefore the TRIPS obligations
are postponed until 2005.
71 For an overview, see Ang Kwee Tiang, Legislation on Copyright Protection in the Asia & Pacific Region, Scripted Online Journal,
at http://www.law.ed.ac.uk/ahrb/script-ed/elaw/Asia/Pacific.asp.
72 These categories are based on the state of the “law in the books.” Here, as elsewhere, the map of effective enforcement of
copyright law (“law in action”) might look somewhat different.
73 e.g., Fiji, Kiribati, Nauru, New Caledonia, Papua New Guinea, Solomon Islands, Tahiti, Tuvalu, Tonga, Vanuatu.
74 e.g., Singapore, Malaysia, Thailand, The Philippines, Indonesia, and Cambodia.
75 Most prominently Japan and South Korea, but also Hong Kong and—at least in part—Chinese Taipei.
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? Copyright laws that have incorporated the WIPO
Treaties or are otherwise in compliance with
WCT/WPPT. The most advanced legislations in the
Asia/Pacific region have recently been amended to bring
them into compliance with the WIPO treaties—although
many of them are currently not party to the WCT and WPPT
treaties. The list of countries in this category includes
Australia, Malaysia and Japan. Others, such as Singapore
and South Korea, are currently in the process of bringing
their copyright laws into compliance with the WIPO treaties.
The following section focuses on this third category. More
specifically, it provides a rough overview of recent developments
in the copyright laws of Australia, Singapore, Malaysia, China,
Japan and South Korea.
3 4 ! !
,
,
Australia’s copyright legislation is certainly one of the most
advanced in the Asia/Pacific region. The Australian Copyright Act
of 1968 is based on U.K. copyright law, but also reflects the
obligations under the Berne Convention and considers special
Australian circumstances. In the context of this White Paper,
particularly important is the Australian Copyright Amendment
(Digital Agenda) Act of 2000.76 This came into effect in March
2001, and addressed the challenges posed by the Internet, pay-
TV and other digital technologies. It also implemented the WIPO
treaties. The most significant change is the introduction of the
right of communication to the public, which gives copyright
owners a right to control how their works are electronically
transmitted to the public or made available online. It covers a
broad range of uses and forms of distribution, including
broadcasting, cable-diffusion, e-mail and Web publishing. The
Digital Agenda Act also introduced anti-circumvention provisions
aimed at protecting technological measures such as access
codes, encryption and software locks. The Copyright Act as
amended makes it illegal to produce or deal commercially in
devices or services that have only a limited commercial purpose
other than the circumvention of technological copyright
protection measures. This definition suggests that a device or a
service that has a commercially significant purpose other than
circumvention would be legal under Australian law.77 The act of
circumvention itself is not specifically prohibited under the Digital
Agenda Act. The Act sets forth certain exceptions to the ban on
trafficking in circumvention tools or services. Especially, it does
not prohibit a circumvention device that is supplied to a
beneficiary of an exception for a permitted use (e.g.,
reproduction of computer programs for purpose of
interoperability; lawful copying by libraries, educational
76 See http://www.austlii.edu.au/au/legis/cth/num_act/caaa2000n1102000321/.
77 See
http://www.dcita.gov.au/ip/digital_rights_management,_and_digital_and_online_ip/copyright_reform_and_the_digital_agenda/guide_
to_the_copyright_amendment_(digital_agenda)_act_-_fact_sheet.
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organizations, etc., but not “private copying”), if the person
provides the supplier with a signed declaration.78
The Act has also clarified the responsibilities of telecommunications
carriers and other service providers, including ISPs. These groups
are not liable for infringing material communicated via their
facilities, unless they have control over the content of the material
or they authorize an infringing act by another party such as a
subscriber.79
Important amendments to the Australian Copyright Act, finally,
result from the Free Trade Agreement between Australia and the
United States (AUSFTA),80 which aims—among other goals—to
strengthen the protection of IP rights. The relevant chapter 17 of
the AUSFTA on IP rights includes 29 articles and three
exchanges of side letters. It endorses, among other things,
multilateral treaties such as TRIPS, addresses parallel
importation, covers the protection of materials in digital form and
distributed over electronic networks, stipulates the principle of
national treatment, and extends, in the “Mickey Mouse clause,”
the duration of protection for copyrighted work from 50 years
under current Australian law to 70 years after the death of the
author. Further, the Agreement obliges the parties to provide
adequate legal protection and effective legal remedies against
the circumvention of effective technological measures. It has
been argued that the relevant article of the AUSFTA goes
beyond the protection granted by the Digital Agenda Act.
Arguably, it narrows the scope of exceptions under which
circumvention devices may be used and extends the scope of
criminal offences related to the trafficking in circumvention
devices.81 The Agreement also stipulates rules regarding ISP
liability, adopted by Australia in the form of a “notice and take-
down” system.82
The enabling legislation for the AUSFTA was passed by the
Australian Parliament in August 2004, and the Agreement will be
implemented by 1 January 2005. However, the government left
the IP enforcement measures out of the enabling legislations
and will deal with them in separate regulations.83 Most recently, a
draft regulation has been introduced to soften the impacts of the
AUSFTA copyright legislation on ISPs.84
Singapore’s Copyright Act has its roots in the Australian
Copyright Act of 1968 and, consequently, the U.K. Copyright Act
of 1956. It has been revised and amended several times since
1987. The 1999 amendments introduced new provisions in order
78 See Jeffrey P. Cunard, Keith Hill and Chris Barlas, Current Developments in the Field of Digital Rights Management, Standing
Committee on Copyright and Related Rights, Tenth Session, Geneva 2003, available at
http://www.wipo.int/documents/en/meetings/2003/sccr/doc/sccr_10_2_rev.doc, 87.
79 The elements that must be taken into account are discussed at
http://www.dcita.gov.au/ip/digital_rights_management,_and_digital_and_online_ip/copyright_reform_and_the_digital_agenda/guide_
to_the_copyright_amendment_(digital_agenda)_act_-_fact_sheet
80See http://www.dfat.gov.au/trade/negotiations/us_fta/final-text/index.html.
81 See http://www.aph.gov.au/Library/pubs/rp/2003-04/04rp14.htm.
82 See http://www.dfat.gov.au/trade/negotiations/us_fta/final-text/letters/17_isp_liability.pdf.
83 See http://www.theaustralian.news.com.au/common/story_page/0,5744,11077715%5E2702,00.html.
84 See http://www.smh.com.au/news/Breaking/Bid-to-soften-copyright-law-impact/2004/12/15/1102787130962.html.
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to protect works in cyberspace and clarified, among other things,
that the exclusive right to make copies includes electronic
reproductions. The Copyright Act provides an exception for
browsing of copyright materials made available on the Internet.
The exception may apply where the work is temporarily
downloaded for viewing or accessing material online, but is
limited and does not apply if the material is saved or stored in
any permanent form.85 The Singapore Copyright Act also
includes a notice and take-down procedure and remedies
against the removal or alteration of electronic rights
management information. In January 2004, the U.S.-Singapore
Free Trade Agreement (USSFTA) aimed at trade liberalization
between the two countries entered into force. Among many other
things, this Agreement demands that Singapore implements anti-
circumvention provisions similar to those of the DMCA.86
Consequently, Singapore’s parliament passed in November
2004 several amendments to its Copyright Act. The Copyright
(Amendment) Act of 2004 now bans, among other things, the act
of circumventing technological protection measures and
trafficking in circumvention devices, and introduces a new
criminal offence for direct infringements, according to which
anyone who downloads music or movies on a “commercial
scale” could face criminal charges, including fines of up to
US$11,920 (S$20,000) and six months in jail.87 At this stage, it
remains unclear what the term “commercial scale” means and
under what circumstances criminal liability would be triggered.88
Copyright protection in Malaysia, a signatory of the Berne
Convention but not a signatory to the WCT or the WPPT, is
governed by the Copyright Act of 1987, which provides
comprehensive protection for copyrightable works.89 The Act
outlines the nature of works eligible for copyright, the scope of
protection and the manner in which the protection is accorded. It
also sets forth provisions about the enforcement of copyright law.
The Copyright Act was amended in 1997, primarily in response
to new challenges imposed by the Internet. The amended
Copyright Act clarifies that any unauthorized transmission of
copyrighted works over the Internet is an infringement of
copyright, and the definition of a literary work has been
extended. The copyright owner has the exclusive right to control
the transmission of a work through wire or wireless means to the
public. This right includes making available a work to the public
in such a way that members of the public may access the work
from a place and at a time individually chosen by them. Further,
the Malaysian Copyright Act bans the circumvention of effective
technological protection measures and the manipulation of
electronic rights management information. In sum, the Malaysian
legislation has recently come close to the standards set forth by
the WIPO Treaties.90
85 See http://www.ipos.gov.sg/main/aboutip/copyright/copynetsoftware.html.
86 Art. 16.4 of the USSFTA, available at http://www.fta.gov.sg/. See http://news.com.com/2100-1025_3-1000154.html.
87See http://www.parliament.gov.sg/Legislation/Htdocs/Bills/0400048.pdf.
88 http://www.reuters.com/locales/c_newsArticle.jsp?type=technologyNews&localeKey=en_IN&storyID=6539749.
89 See http://www.unesco.org/culture/copy/copyright/malaysia/sommaire.html.
90 See Ang Kwee Tiang, Legislation on Copyright Protection in the Asia & Pacific Region, Scripted Online Journal, at
http://www.law.ed.ac.uk/ahrb/script-ed/elaw/Asia/Pacific.asp.
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Copyright law in China is a relatively new field of legislation—the
first copyright statute was passed in 1990 as part of the nation’s
effort to enter the WTO.91 Chinese copyright law promotes
cultural development within a socialist framework. Creators of
protected works enjoy personality and property rights that include
publication, identification, alteration, reproduction, distribution,
exhibition, performance, transmission and broadcasting. These
rights are protected by civil, administrative and criminal penalties
for infringement. China balances copyright entitlements with
limitations that permit uses without compensation or
authorization. These limitations are enumerated in the copyright
act and include—among other things—certain uses for private
study, research, self-entertainment and teaching. In 2003, China’s
National Copyright Administration strengthened copyright laws
with four new regulations, including ones that further protect the
rights of network information distribution.92 The Supreme People’s
Court of China, furthermore, has interpreted copyright law in the
context of Internet copyright disputes.93 The Court reaffirmed that
copyright protects digital embodiments of protected works and
that creators may distribute their works over the Internet.94 The
Court also promulgated rules for direct and contributory copyright
infringement by ISPs and created generous rules for damages.
Moreover, the Chinese Copyright Act sets forth anti-circumvention
provisions, making it illegal to circumvent or destroy technological
measures taken by a rightholder for protecting the copyright or
copyright-related rights in his work without the permission of the
copyright owner95
Beside these developments, China recently unveiled a new IP
rights policy strategy aimed at promoting innovation and
protecting foreign imports,96 which began with an educational
campaign including press events, seminars and outreach via TV
and print media. In the light of the new strategy, China also
launched a Web site designed to help inform its citizens of IP law
and encourage them not to infringe copyrights.97 Further, the
Chinese government released new anti-piracy seals for CDs,
DVDs and other media to combat counterfeiting,98 and the
National Copyright Administration and the Ministry of Information
Industry plan to issue measures for the administrative protection
of the right to dissemination over information networks, which
will include a notice-and-takedown procedure for ISPs.99 The
Supreme People’s Court, finally, recently announced that it will
91 Brent T. Yonehara, Enter the Dragon: China’s WTO Accession, Film Piracy and Prospects for Enforcement of Copyright Laws, 22
DePaul-LCA J. Art & Ent. L. 63, 65 (2002).
92 See http://www.infomonkey.com/edigest/125/2,1,1,75875,9,1006,1019,1.mspx.
93 Judicial Committee of the Supreme People’s Court, Interpretations of the Supreme People’s Court on Laws for Trying Cases
Involving Internet Copyright Disputes (Nov. 22, 2000), translation available at http://www.chinaiprlaw.com/english/laws/laws3.htm.
94 See http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf.
95 http://www.chinaiprlaw.com/english/laws/laws10.htm.
96 See http://uk.news.yahoo.com/040603/323/ev4er.html. See also the action plan under the U.S.-China Joint Commission on
Commerce and Trade (JCCT) at http://www.ustr.gov/Document_Library/Fact_Sheets/2004/The_U.S.-
China_JCCT_Outcomes_on_Major_U.S._Trade_Concerns.html.
97 See http://www.siliconvalley.com/mld/siliconvalley/news/editorial/7927945.htm.
98 See http://www.siliconvalley.com/mld/siliconvalley/news/editorial/7918904.htm.
99 See http://www.usito.org/uploads/281/weekly_nov19.htm.
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issue judicial interpretations to elaborate criteria of IP crimes and
strengthen IP protection.100
Japan has a well-established copyright system and has updated
its laws to address technological changes. Authors of creative
works automatically enjoy moral and economic rights such as
the rights to reproduce the work, to perform or publicly transmit
the work, to distribute the work and to transfer its ownership, to
lend it, and to create derivative works based on it. Copyright
entitlements are protected by civil and criminal penalties for
infringement. The economic rights are limited by enumerated
exceptions, including private copying rights, protection of
scholastic and journalistic uses, etc. Japan amended its
copyright statutes in 1997 to specifically address Internet
transmissions.101 These amendments, among other things,
broadened the exclusive rights of copyright owners to include
authorizing public transmission over the Internet. The anti-
circumvention provisions of the WIPO treaties have been
implemented in 1999 amendments to the Copyright Act and the
Unfair Competition Prevention Law.102 However, the Japanese
anti-circumvention provisions differ in several respects to the
DMCA.103 Japanese law, for instance, does not prohibit
circumvention acts directly.104 Japan has also adopted a notice
and take-down system.
South Korea is a signatory to the Universal Copyright
Convention and a member of the Berne Union, but has not yet
become a party to the WIPO Treaties. South Korea has a well-
established copyright system that meets the TRIPS obligations.
The 2003 revision of the Korean Copyright Act was aimed at
accommodating copyright law to the digital environment. The
amendments include the introduction of a notice and take-down
system similar to the provisions set forth by the DMCA. Further,
the Korean Copyright Act as amended prohibits the production of
and trafficking in devices aimed at circumventing technological
protection measures. However, access control technologies do
not lie within the scope of the anti-circumvention provisions.
Moreover, current Korean copyright law—in contrast to U.S. and
European law, but similar to the Japanese law—does not
specifically prohibited the act of circumvention.105
100 See http://news.xinhuanet.com/english/2004-09/08/content_1953924.htm.
101 See Daniel J. Gérvais, Transmissions of Music on the Internet: An Analysis of the Copyright Laws of Canada, France, Germany,
Japan, the United Kingdom, and the United States, 34 Vand. J. Transnat’l L. 1363, 1382 (2001).
102 See Jeffrey P. Cunard, Keith Hill and Chris Barlas, Current Developments in the Field of Digital Rights Management, Standing
Committee on Copyright and Related Rights, Tenth Session, Geneva 2003, available at
http://www.wipo.int/documents/en/meetings/2003/sccr/doc/sccr_10_2_rev.doc, 91.
103 For example, the provision is limited to devices and computer programs. Unlike the DMCA, the Japanese statute requires a
tangible circumvention measure to find liability.
104See http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf
105 See www.amchamkorea.org/publications/ 2004ikbc/Intellectual%20Property%20Rights.doc.
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!
3 4 ! !!
The following section provides a selection of actions taken
against file-sharing Web sites and P2P services in the
Asia/Pacific region, focusing on Australia, China, Japan and
South Korea.106
In Australia’s largest copyright infringement case, three
university students received criminal sentences for running a
Web site called MP3/WMA Land, which offered more than 1,800
pirated songs for download.107 In light of their age at the time
and the fact that they never profited from their actions, the court
warranted 18-month suspended sentences for two of the
students and an additional fine of US$5,000 for one of them.
Moreover, one student and a third participant were given 200
hours of community service.108
Another investigation into a different Australian MP3-sharing
Web site has resulted not only in the shutdown of the Web site
and a US$360 million lawsuit against its operator,109 but also in a
lawsuit against the Web site’s ISP, marking the first time the
music industry has accused an ISP of being directly involved in
copyright infringement by allowing its network to be used for file-
sharing activities.110 At the center of the legal controversy is
mp3s4free.net, a Web site alleged to contain MP3 audio files
that infringe upon the copyrights of the record labels, but is, in
fact, a collection of links to other Web sites on the Internet, and
other MP3 files distributed by permission of the rightholders.111
The litigation addresses the question of whether linking to
copyright infringing material from a Web page is itself an
infringing act. Against the record labels’ demands, the host of the
Web site, ComCen, refused to remove the site, claiming that
since no music files were located on the servers that hosted the
site, the Web site was merely analogous to a search engine or
directory, and that there was no liability on the part of the ISP.112
In response, the record labels included ComCen in their lawsuit,
arguing the ISP should take responsibility for the copyright
infringing behavior of its subscribers.113 The trial against Stephen
Cooper, the operator of mp3s4free.net, started at the end of
October 2004 at the Federal Court in Sydney.114
The Asia/Pacific legal development that has attracted the most
attention in the United States is the Australian trial of Sharman
Networks, the owners of KaZaA. In Ferbruary 2004, the
Australian Music Industry Piracy Investigations (MIPI) obtained a
court order that allowed MIPI to enter the premises of Sharman
Networks, some universities and, among others, ISP Telstra in
106 See also an earlier report by Renny Hwang of the Berkman Center’s Digital Media Project, available at
http://cyber.law.harvard.edu/media/uploads/52/Asia/Pacific.pdf.
107 Id.
108 See http://www.mp3newswire.net/stories/2003/tran.html.
109 See http://www.news.com.au/common/printpage/0,6093,11103594,00.html.
110 See http://www.zdnet.com.au/newstech/ebusiness/story/0,2000048590,20279975,00.htm.
111 See http://news.zdnet.co.uk/internet/0,39020369,39117400,00.htm.
112 Id.
113 See http://www.zdnet.com.au/news/business/0,39023166,20281016,00.htm
114 See http://www.zdnet.com.au/news/business/0,39023166,39164069,00.htm.
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order to search for and seize documents and electronic evidence
to support its case against the P2P software provider.115 The
validity of the “Anton Pillar” orders had been challenged by
Sharman Networks and Telstra.116 A federal court’s decision
allowing the admission of evidence obtained under the particular
search order had later—unsuccessfully—been appealed by
Sharman117 and other procedural matters raised in court, while
the directed discovery and affidavit proceedings were completed
by October. The trial on civil copyright infringement charges
started mid-November 2004, and a ruling is pending.118
Reportedly, China has become a leading exporter of counterfeit
and pirated goods to the world.119 The U.S. industry estimates
the value of counterfeit goods in China at US$19 billion to
US$24 billion, with losses to U.S. companies exceeding
US$1.8 billion a year.120 The severe piracy problems derive from
a combination of cultural, historic and economic factors and are
further aggravated by inconsistent, weak enforcement by
officials.121 File-sharing Web sites and networks such as Jelawat
and Kuro have been developing rapidly, too. The distributors of
P2P software claim that file-sharing falls within the private use
exception to copyright, but the Supreme People’s Court of China
rejected this interpretation.122 Increasingly, copyright owners and
right organizations are challenging file-sharing Web sites on
copyright infringement claims.
For example, in December 1999, China Record, Sony Music,
Universal Music and Warner Music filed a lawsuit against
MyWebInc.com in the Second Intermediary People's Court of
Beijing. The music industry claimed that MyWeb—a leading TV
portal facilitating Internet usage through television set-top
boxes—set up pages on its China-based portal that enabled
Internet surfers to illegally download copyrighted sound
recordings in MP3 format through hyperlinks and search
engines. The lawsuit was settled in 2000. Under the agreement,
MyWeb paid the court costs, apologized to the plaintiffs, took
down its hyperlinks to unauthorized MP3 files and launched a
copyright campaign with the IFPI.123
In November 2003, Huaxia Film Distribution Company—a major
film distributor in China—filed a lawsuit against chinadotcom, a
major Internet portal in China, accusing the Web site of providing
unauthorized downloads of “Terminator 3.”124 Similarly, Warner
115 See http://www.zdnet.com.au/news/business/0,39023166,39116016,00.htm.
116 See http://www.zdnet.com.au/news/business/0,39023166,39116050,00.htm and
http://www.zdnet.com.au/news/business/0,39023166,39116067,00.htm. See also
http://www.zdnet.com.au/news/communications/0,2000061791,39116240,00.htm.
117 See http://www.zdnet.com.au/news/business/0,39023166,39116545,00.htm, and
http://www.zdnet.com.au/news/business/0,39023166,39162227,00.htm.
118See http://www.washingtonpost.com/wp-dyn/articles/A14701-2004Nov26.html?nav=rss_technology, and
http://news.com.com/Witness+assaults+Kazaa+filter+claims/2100-1027_3-5474498.html.
119 See http://www.ustr.gov/reports/2004-301/special301-306.htm.
120 See http://economy.news.designerz.com/report-on-chinas-wto-compliance-highlights-copyright-market-access-concerns.html.
121 See http://www.ustr.gov/reports/2004-301/special301-306.htm.
122 See Wei Yanliang & Feng Xiaoqing, Comments on Cyber Copyright Disputes in the People’s Republic of China: Maintaining the
Status Quo While Expanding the Doctrine of Profit-Making Purposes, 7 Marq. Intell. Prop. L. Rev. 149, 181 (2003), 182.
123 See http://www.ifpi.org/site-content/press/20000323.html.
124 See http://www.asianlaws.org/cyberlaw/newsletter/issues/cl_nl_32.htm#04.
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recently sued Net263, a Chinese ISP, for facilitating the
distribution of copyrighted materials, especially songs, over its
network. Reportedly, Net263 agreed to stop the online
transmission of songs, to apologize to Warner and to pay
compensation.125
The Beijing No 1 People’s Court ruled in April 2004 that the Web
site chinamp3.com violated the IP rights of Hong Kong-based
entertainment companies Go East Entertainment and Sony Music
Entertainment (Hong Kong), and ordered the site to pay
US$19,000 in damages. The suit concerned the unauthorized
distribution of MP3 music files. The defendant argued that he had
merely provided links for download and not a direct download
service, and therefore should not be held responsible for the IP
rights violations. According to observers, the court’s ruling may
prove to be a significant development in the nascent field of
Chinese copyright enforcement in the digital age.126
In Japan, file-sharing operators and online pirates have
increasingly found themselves under greater legal scrutiny over
the past few years. In 2001, for instance, the Recording Industry
Association of Japan (RIAJ), 19 record companies and the
authors’ society JASRAC sued Japan MMO, the operator of the
popular FileRogue P2P service. The plaintiffs successfully
demonstrated that the vast majority of the 70,000 files available
on the service were commercial CD tracks put on the Internet
without permission from the rights owners. In April 2002, a
preliminary injunction required Japan MMO to suspend the
service, and one year later, the Tokyo District Court found that
both Japan MMO and its principal Michio Matsuda were liable for
copyright infringement.127 The court subsequently ordered Japan
MMO to pay 71 million yen in compensation to the plaintiffs for
damages.128
In May 2004, Japanese authorities arrested Isamu Kaneko, a
well-known software engineer and research associate at the
University of Tokyo, for authoring Winny, a popular P2P file-
sharing program.129 He was charged with infringing copyright law
by allowing his software program to assist other people in
downloading and sharing copyrighted movies, music and game
files.130 If he is convicted, he will face steep penalties, including
up to three years in prison and a fine of up to 3 million yen
(about US$27,500).131 This move is unprecedented,132
representing the first criminal charges in Japan against a P2P
software creator. The trial started in September 2004.133
125 Premium Global E-Law Alert, Baker & McKenzie, 28 November 2004.
126 See http://www.jetrobkk-ip.com/Monthly_Report/may04en.pdf.
127 See http://www.ifpi.org/site-content/press/20030129a.html.
128 See http://www.japantoday.com/gidx/news282503.html.
129 See http://www.abc.net.au/news/newsitems/s1105174.htm.
130 See http://www.asahi.com/english/nation/TKY200406010157.html.
131 See http://www.smh.com.au/articles/2004/05/10/1084041324598.html?oneclick=true.
132 See http://www.technewsworld.com/story/ptech/33774.html.
133 See http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20040902a6.htm.
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In South Korea, the P2P music site Soribada has been sued for
both its first and second incarnations. Soribada launched its first
version in 2000, which facilitated music exchange for its nearly
4.5 million users through central file servers. Soribada 2.0
debuted in July 2002, with searching that did not use central
servers. The cases’ results proved identical to the Napster and
Grokster decisions: The first Soribada version led to fines for
contributory copyright infringement for Soribada’s creators,134 but
the same court ruled that Soribada’s second version, with its lack
of caching and centralized searching, did not engender liability
for contributory infringement.135 However, the software
developers—two brothers—also face criminal charges in the
Seoul District Court.136 If convicted, they could be jailed for up to
five years. The district court initially dismissed the charges due
to insufficient evidence regarding whether Soribada had
secondary liability for copyright infringements committed by its
users. Although the case was later revived by the prosecutors
with the introduction of new evidence, the district court has
indicated that it is leaning toward not holding the brothers liable
for the criminal charges.137
In August 2004, South Korea’s largest music streaming site,
bugs.co.kr, announced it had reached an agreement with the
Korean Association of Phonogram Producers (KAPP) on
longstanding copyright conflicts. Previously, KAPP and other
recording labels filed lawsuits against Bugs in 2003, arguing that
the Web site operator made unauthorized use of copyrighted
songs. According to a local Internet market research firm, Bugs
was the fifth-most-visited site in Korea, with a total of 12.8 million
users logged on in July 2004.138
134 See http://www.siliconvalley.com/mld/siliconvalley/news/editorial/7094236.htm?template=contentModules/printstory.jsp.
135 See http://times.hankooki.com/lpage/tech/200310/kt2003102920305811800.htm.
136 See http://www.siliconvalley.com/mld/siliconvalley/news/editorial/7094236.htm?template=contentModules/printstory.jsp.
137 See http://times.hankooki.com/lpage/tech/200310/kt2003102920305811800.htm.
138 See http://times.hankooki.com/lpage/200408/kt2004082717245553460.htm.
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5( 1
3
. !
6
' !
Since 1999, the legal campaign against online piracy—
accompanied by legislative initiatives and educational
campaigns—has evolved across three components. Initially, the
copyright industry fought against file-sharing Web sites and P2P
services such as Napster, Aimster, KaZaA and Grokster. These
legal battles are described in more detail in the GartnerG2 and
Berkman Center’s foundational White Paper, and the
international developments have been discussed in the
preceding sections.139
In a second step, rightholders and their representatives—most
prominently in the United States and Europe—have systematically
taken legal actions against individual file-sharers, specifically
focusing on large-scale uploaders of copyrighted materials,
especially music files. These legal actions have gained much public
attention and are discussed in greater detail in the next section.
In a third and most recent step, the anti-online piracy efforts
have been internationally orchestrated and include not only
rightholders and international IP rights organizations, but
increasingly governmental task forces and law enforcement
authorities. These organized efforts are taking action against
P2P services, individual file-sharers and those engaging in
organized piracy for commercial gain. The April 2004
international campaign against online piracy organized by the
U.S. Department of Justice is illustrative. Reportedly, law
enforcement authorities from 11 countries, including the United
States, conducted over 120 searches worldwide to dismantle
some of the most well-known and prolific online piracy
organizations. Legal actions were taken in European countries,
but also in the Asia/Pacific region. The operation—the largest
global enforcement action so far—also targeted so-called
“warez” release groups that specialize in online distribution of
pirated material.140
3!
,
The international recording industry was not as quick to sue
individual personal-use file-sharers as was the RIAA, which—
recently supported by actions of the U.S. Department of
Justice141—has sued more than 6,950 American music file-
sharers since August 2003.142 International industry associations
139 http://cyber.law.harvard.edu/home/uploads/254/2003-05.pdf.
140 See http://www.usdoj.gov/opa/pr/2004/April/04_crm_263.htm.
141 On 25 August 2004, federal agents seized computers and software as part of an investigation targeting an Internet network used
to illegally share copyrighted music, movies, software and games. See http://www.justice.gov/opa/pr/2004/August/04_ag_578.htm.
142 See http://www.siliconvalley.com/mld/siliconvalley/news/editorial/10216917.htm. Recently, the Motion Picture
Association of America (MPAA) filed its first round of lawsuits against alleged file-traders, see
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in general and the European industry in particular frequently
mentioned a desire to start a similar legal campaign. But until
recently, they have relied instead on alternative strategies like
using DRM for content protection, promoting public awareness
through education campaigns about the illegality of file-
swapping, and cooperating with ISPs to close Web sites offering
music illegally.143
In March 2004, however, the IFPI and its national recording
associations brought legal actions on behalf of their member record
companies, and in some cases by record labels, against over 200
alleged illegal file-sharers in Denmark, Germany, Italy and
Canada.144 Similarly, the Swiss IFPI branch launched a legal
campaign against individual file-sharers.145 The IFPI has also
announced a new series of legal actions against alleged illegal file-
sharers in Europe’s two largest music markets, the United Kingdom
and France, as well as in Italy, Denmark and Austria.146 This
second wave of litigation brings the total number of cases in the
EU, both criminal and civil suits, to more than 650.
Due to different civil and criminal procedure laws across Europe,
the proceedings against alleged file-sharers may vary
significantly. For instance in the United Kingdom,147 the industry
can ask courts to issue subpoenas to ISPs to obtain subscribers’
names. In other cases—for example, under German law—the
music industry has to ask prosecutors to initiate criminal
investigations of file-sharers to get the names of users
associated with file-sharing IP addresses, since German law
does not include a DMCA-like subpoena provision.
Sanctions imposed have included fines and compensation of a
magnitude to be significant to individual noncommercial
infringers and, in some cases, criminal liability as well. The first
German to be convicted for swapping copyrighted music on the
Internet via P2P, a 23-year-old trainee from Cottbus, was fined
�400 by the court and settled with the German music industry for
an additional �8,000 in civil damages. Most recently, a German
teacher agreed to pay �10,000 in damages for illegally offering
2,000 songs over the Internet. He is also expected to face
criminal sanctions.148 In Denmark, 17 individuals agreed to pay
compensation averaging �3,000 each. Further criminal
proceedings against individual file-sharers are pending in
Germany and Italy.
http://www.wired.com/news/digiwood/0,1412,65730,00.html, and against P2P BitTorrent trackers as well as eDonkey
servers (see http://news.com.com/MPAA+targets+core+BitTorrent%2C+eDonkey+users/2100-1025_3-
5490804.html?tag=nl and http://news.com.com/BitTorrent+file-swapping+networks+face+crisis/2100-1025_3-
5498326.html?tag=nefd.lede.)
143 See http://cyber.law.harvard.edu/media/uploads/72/7/breakingnews.htm.
144 See http://www.ifpi.org/site-content/press/20040330.html.
145See http://www.swissinfo.org/sen/swissinfo.html?siteSect=105&sid=4862096. Reportedly, however, IFPI Switzerland has been
targeting file-sharers since 1999. According to an IFPI spokesman, the industry settled approximately 800 cases by June 2004 with
users. The file-sharers had received civil demand letters from the IFPI via ISPs, demanding they stop illegal file-sharing and pay
compensation or face legal action. (See http://www.nzz.ch/2004/06/27/wi/page-article9OVJB.html.)
146 http://www.ifpi.org/site-content/press/20041007.html.
147 See http://news.bbc.co.uk/1/hi/entertainment/music/3743596.stm.
148 See http://www.chip.de/news/c_news_12051604.html.
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&( !
This Supplement provided a brief introduction to the basic
frameworks of international copyright law. It has reviewed some
of the key legislative and regulatory developments in Europe—
surveying both EU legislation and national implementations of
EU law—and in selected countries of the Asia/Pacific region. We
have analyzed the different paths and stages of evolution of the
copyright ecosystems on both continents. The report has also
described current trends in case law and private and public
responses to piracy in the above-mentioned jurisdictions. In this
final section, we offer some tentative conclusions based on the
preceding analysis.
/,
!
The discussion so far has made clear that copyright regimes still
vary significantly among continents and across regions, despite
globalization of commerce, communication and some law. With
regard to what we might call the evolutionary state of copyright
regimes, three rough categories can be described:
? Nascent regimes. Copyright laws of countries in this
category either do not exist at all or have not incorporated
the relevant minimal protection levels set forth by the Berne
Convention or other international treaties. Many countries of
the Pacific region belong to this category.
? Well-developed regimes. Certainly those legal regimes
that are TRIPS-compliant (even in the nontechnical sense)
belong to this second category. As demonstrated, most of
the Western countries as well as many countries in the
ASEAN region fall into this category.
? Most advanced regimes. Countries in this category have
copyright laws incorporating the WIPO Treaties or that are
otherwise in compliance with WCT/WPPT. These regimes
are advanced in the sense that they have already
responded to the transition from offline/analog to
online/digital media and information. Examples of countries
belonging to this category include the United States, the
European countries that have implemented the EUCD,
Australia, Japan and Malaysia.
, !
7
Despite continuing differences in the levels of copyright
protection, we have identified a trend toward harmonization—or
convergence—of copyright laws. What are the driving forces
behind this phenomenon?
In many parts of the world, trade interests have become the
major driving force for further development of national and
regional IP regimes. Accordingly, TRIPS seems to be the key
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mechanism aimed at creating a level playing field of IP
protection, including copyright. Today, TRIPS plays a particularly
important role in the transition from what we called “nascent” to
“well-developed” copyright regimes. The implementation of the
WIPO Treaties, somewhat in contrast, can be understood as the
“fine-tuning” of copyright legislation, often triggering the transition
from “well-developed” to “most advanced” copyright regimes.
More specifically, the need for bilateral trade agreements drives
some countries to adopt the highest standards of IP protection.
As the frequently stronger party in negotiations for such
agreements, the United States and other exporters of information
goods and entertainment products (e.g., music and movies),
make them contingent on the other contracting nation to meet
TRIPS or WIPO standards. The AUSFTA and the USSFTA are
examples mentioned in this White Paper.
Thus, the international treaty system—including the Berne
Convention, TRIPS, WCT, WPPT and other treaties—works as a
leveler by harmonizing fundamental issues and cornerstones of
national copyright system. Prerequisites of copyright protection,
duration and scope of protection, and basic rules regarding
limitations and exceptions to copyright are only a few examples
of areas and issues increasingly harmonized by international
copyright law.
!
Despite these forces for harmonization, as we have pointed out
in this Supplement as well as in other reports of the Berkman
Center’s Digital Media Project, significant differences among
national copyright laws remain.149 Even in the context of the
most advanced copyright regimes, one can identify differences in
the substance of law. Thus, one might conclude that, despite
powerful international attempts to create a level playing field,
national policymakers still have some leeway in the way they
design their copyright ecosystem. In fact, international copyright
treaties harmonize some of the most important elements of a
copyright system but often do not necessarily mean to achieve
uniformity. Rather, international copyright treaties as well as
regional legislation leave some degree of freedom regarding
how to comply with the (minimal) standards they set forth.
Varying EU nation state efforts to implement EU legislation on
the legal protection technological measures illustrate the point
that national legislators often may consider and implement
alternative approaches without violating treaty obligations.150
Moreover, the laws aimed at governing digital media—even
among most advanced regimes—vary significantly when it
comes to the “law in action” as opposed to the “law in the
books.” The reasons for differences in copyright enforcement are
diverse and include fundamental differences in civil and criminal
149 See, e.g., iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media, available at
http://cyber.law.harvard.edu/media/itunes.
150 In the EU and WCT context, see Urs Gasser and Michael Girsberger, Transposing the Copyright Directive: Legal
Protection of Technological Measures in EU-Member States–A Genie Stuck in the Bottle?, Berkman Research Publication
No. 2004-10, to be available at http://cyber.law.harvard.edu/media/eucd.
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procedure laws—an area of law that has not been harmonized to
the same extent as substantive copyright law—as well as
economic, cultural, historical and other differences in law
enforcement practices.
However, this Supplement has also described how law
enforcement efforts regarding online piracy are evolving to
become increasingly internationally orchestrated multi-actor
efforts involving rightholders, rights organizations, governmental
task forces and other stakeholders across national boundaries.
/ !
Given the harmonizing trends yet persistent differences, what are
the effects of international copyright frameworks and
corresponding national legislation on a certain information
environment? To approach this question (a comprehensive answer
must be saved for later), one might want to distinguish among
different stakeholders such as rightholders, businesses (the
“copyright industry”), consumers and creators. In this White Paper,
we have not presented empirical data to support comprehensive
statements on the precise effects of legislative developments on
each group of stakeholders. However, we can at least suggest
certain trends based on our review of the legislative and
regulatory developments as well as current case law.
Rightholders and the copyright industry have benefited from
international harmonization because it has tended to expand
their rights and to decrease local idiosyncrasies in laws and
enforcement that make cross-border operations more complex
and expensive. Arguably, current international copyright
frameworks and, consequently, the most advanced copyright
systems have a bias toward strong protection of rightholders
and their representatives, including the copyright industry.
International treaties and national copyright laws have expanded
the scope of protection, copyrightable subject matters, term of
protection, etc., over the past decades. By contrast, limitations
and exceptions to copyright—aimed at balancing between the
interests of rightholders and the public—have been narrowed
down or have diminished in practice, for instance in the context
of technological protection measures.
However, rightholders and businesses have to master regional
and national differences not only in copyright, but also contract
and consumer protection laws and the like. Further, rightholders
and the digital media industry must deal with varying enforcement
practices against copyright infringements across the world. From
a business perspective, both circumstances are significant
impediments to the global distribution of digital media services
such as online music stores, on-demand video services, etc. The
staggered expansion of Apple’s iTunes Music Store into new
markets might illustrate some of the consequences of different
legal and regulatory regimes and practices.151
151 See e.g., iTunes Europe—A Preliminary Analysis, available at http://cyber.law.harvard.edu/media/itunes_europe.
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Rights cannot be expanded for one party without a contraction for
another, here borne by the consumers of IP. Users are
increasingly constrained in what they are allowed to do with digital
content. Digital capturing and sharing are more and more
restricted. Copy and access control technologies and supporting
laws—promoted by international treaties like the WCT/WPPT and
embodied in free trade agreements—along with reluctant
application of traditional exemptions (like first sale or fair use), limit
users’ access to and use of digital content. This shift in the delicate
balance between rightholders’ interests on the one hand and the
public’s interests on the other hand is troubling in its implications.
The resulting constraints on consumers might even undercut the
greatest promise of the Internet—that it can transform passive
receivers of information into active users and creators of
content—and thus the shift is likely to chill creativity.152
The findings of this Supplement suggest, among others, two
topics for future research. One topic focuses on commercial
aspects, the other one on legislative and regulatory issues.
? Online media services like Napster, MusicMatch, Real
Networks’ Rhapsody and iTunes are expanding their markets
across national boundaries. Assessing the degree to which
the success of this expansion depends on the further
evolution of the international copyright system and on further
improvements to national digital law ecosystems will be a
provocative exercise in understanding the evolving global
online economy. Further, it will be interesting to observe and
analyze whether rightholders and other digital media industry
participants pursue different business models and practices
driven by the particular legal regime in which they find
themselves physically located, or whether convergence will
happen too quickly to permit such experimentation to develop.
? From a legal and regulatory perspective, the question of
“best practice models” of copyright legislation in the digital
age is up for discussion. In other words: Given the
obligations under international treaty law, what degrees of
freedom exist to create a legal and regulatory environment
for digital media that take into account all relevant interests
and seek to achieve a new equilibrium between them? Such
best practice models could be particularly important for
countries finding themselves at an earlier stage in the
evolution of their copyright ecosystem, but hopefully also for
advanced legal regimes that are required to find sustainable
responses to powerful challenges imposed by digital
technology on the one side and persistent expectations of
users on the other.
152 See e.g., Lawrence Lessig, Free Culture, How Big Media Uses Technology and the Law to Lock Down Culture and Control
Creativity, New York 2004.
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8(
'
*
? Urs Gasser (author)
*"
"#
? Mike McGuire
9
!
'
! '
? John Palfrey, Executive Director, Berkman Center for
Internet & Society at Harvard Law School:
jpalfrey@cyber.law.harvard.edu
? Mike McGuire, research director, GartnerG2:
michael.mcguire@gartner.com
Entire contents ? 2004 Gartner, Inc., and/or its affiliates and The Berkman Center for
Internet & Society. All rights reserved. Gartner’s prior written permission is required
before this publication may be reproduced in any form. The information contained in this
publication has been obtained from sources Gartner believes to be reliable. Gartner does
not warrant the completeness or accuracy of such information. Gartner shall have no
liability for errors, omissions or inadequacies of the information contained in this
publication or for any interpretations of that information. Any opinions expressed herein
are subject to change without notice.
| 课件名称： | 法学相关资料合集（20篇英文） |
| 课件分类： | 法学 |
| 课件类型： | 参考资料 |
| 文件大小： | 2.45MB |
| 下载次数： | 2 |
| 评论次数： | 1 |
| 用户评分： | 7 |
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