Biotechnology is a field of technology of growing importance. Biotechnological inventions
may have a very significant effect on our future, in particular in the fields of medicine, food,
agriculture, energy and protection of the environment.
7.42 Biotechnology concerns living organisms, such as plants, animals, seeds and microorganisms, as well as biological material, such as enzymes, proteins and plasmids (which are used in “genetic engineering”). Biotechnological inventions fall into three categories: processes for the creation or modification of living organisms and biological material, the results of such processes, and the use of such results.
7.43 Biotechnology is one of the oldest technologies. For example, the production of wine or beer involves processes using living organisms, and such processes have been known for a long time. Likewise, the selective breeding of plants and animals has an equally long history.
7.44 In more recent times, scientists have developed biological processes to modify the genetic composition of living organisms (genetic engineering). For example, the microorganisms created by Chakrabarty (an inventor in the United States of America) were able to break down components of oil pollution in oceans and rivers. The patent on these microorganisms was the subject of a landmark decision by the United States Supreme Court, in which modified microorganisms were recognized as patentable subject matter. The Court noted that the laws of nature, physical phenomena and abstract ideas were not patentable. The claimed invention, however, was not directed to an existing natural phenomenon but to new bacteria with markedly different characteristics from any found in nature. The invention therefore resulted from the inventor’s ingenuity and effort. The United States Congress had defined statutory subject matter (any new article of manufacture or composition of matter) broadly to “include anything under the sun that is made by man.”
7.45 Genetic engineering processes are also used in the modification of microorganisms and plants for the production of new medicines. Biotechnology is expected to lead to important breakthroughs in medicine which may be effective in combating diseases such as cancer and AIDS. It may also lead to new opportunities for obtaining food and energy, and may provide solutions to the problems of pollution of the environment.
7.46 In many circles, the concept of invention was thought to be limited to the fields of physics and chemistry. However, with the increased ability to control and describe processes and products in the field of biotechnology, the concept of invention was enlarged to cover biotechnological
7.42 Biotechnology concerns living organisms, such as plants, animals, seeds and microorganisms, as well as biological material, such as enzymes, proteins and plasmids (which are used in “genetic engineering”). Biotechnological inventions fall into three categories: processes for the creation or modification of living organisms and biological material, the results of such processes, and the use of such results.
7.43 Biotechnology is one of the oldest technologies. For example, the production of wine or beer involves processes using living organisms, and such processes have been known for a long time. Likewise, the selective breeding of plants and animals has an equally long history.
7.44 In more recent times, scientists have developed biological processes to modify the genetic composition of living organisms (genetic engineering). For example, the microorganisms created by Chakrabarty (an inventor in the United States of America) were able to break down components of oil pollution in oceans and rivers. The patent on these microorganisms was the subject of a landmark decision by the United States Supreme Court, in which modified microorganisms were recognized as patentable subject matter. The Court noted that the laws of nature, physical phenomena and abstract ideas were not patentable. The claimed invention, however, was not directed to an existing natural phenomenon but to new bacteria with markedly different characteristics from any found in nature. The invention therefore resulted from the inventor’s ingenuity and effort. The United States Congress had defined statutory subject matter (any new article of manufacture or composition of matter) broadly to “include anything under the sun that is made by man.”
7.45 Genetic engineering processes are also used in the modification of microorganisms and plants for the production of new medicines. Biotechnology is expected to lead to important breakthroughs in medicine which may be effective in combating diseases such as cancer and AIDS. It may also lead to new opportunities for obtaining food and energy, and may provide solutions to the problems of pollution of the environment.
7.46 In many circles, the concept of invention was thought to be limited to the fields of physics and chemistry. However, with the increased ability to control and describe processes and products in the field of biotechnology, the concept of invention was enlarged to cover biotechnological
inventions. If it is possible to control a biotechnological process and to describe such a process in a
way that experts in the field can carry out on the basis of the description, then an invention in the
field of biotechnology has been made.
7.47 Today, biotechnology concerns the application of cellular and molecular biology to human needs and the use of cells and biological molecules to solve problems or make useful products. It includes scientific and industrial disciplines directed to understanding and manipulating living or biologically active material at the molecular level. Often it refers to recombinant deoxyribonucleic acid (DNA) techniques and analysis of genetic information.
7.48 The list of industries using biotechnology has expanded to include health care, agriculture, food processing, bioremediation, forestry, enzymes, chemicals, cosmetics, energy, paper making, electronics, textiles and mining. This expansion of applications has led to significant economic activity and development.
7.49 The number of modern biotechnology-based drugs has expanded and vaccines have increased. The genomes of a number of organisms have been sequenced, including human, mosquito and the malaria-causing organism, plasmodia falciparum. These and related developments are expected to accelerate the pace of drug and vaccine discoveries.
7.50 The area of farmland planted with transgenic crops has increased dramatically in recent years. This growth is expected to continue as more countries commercialize transgenic crops. Biotechnology has also been used to reclaim wasteland through the use of microorganisms and plants that remove or degrade toxic compounds.
7.51 This trend is encouraged by the positive impact of transgenic crops in reductions in pesticide applications and increased yields. Cassava, potatoes and rice are among the crops benefiting from alliances between institutions in developed and developing countries interested in generating products specifically for developing nations.
7.52 A recent report of the United Nations (shown in the Bibliography of this volume) summarized trends in the use of biotechnology, giving some definitions and detailed statistics.
Adoption and Dissemination
7.53 Developed countries have been the main investors in biotechnology and the principal beneficiaries of its adoption. Developing countries, however, are increasingly adopting this new technology, as illustrated by the use of genetically modified plants in increasing numbers of developing countries.
7.54 Cuba and India, for instance, are becoming centers of health-related biotechnology research, development, production and marketing. Cuban biotechnology institutions have developed or are developing vaccines, drugs and diagnostic kits for tropical diseases. Singapore and China have also focused on research in biotechnology and development projects in the health and agricultural sectors.
7.55 International public-private partnerships for vaccines and drug development are also of interest to developing countries. These are currently focused on developing drugs and vaccines against malaria, HIV/AIDS and tuberculosis with the aim of making final products affordable to developing countries. At least one vaccine is currently undergoing the first phase of trials in Kenya,
7.47 Today, biotechnology concerns the application of cellular and molecular biology to human needs and the use of cells and biological molecules to solve problems or make useful products. It includes scientific and industrial disciplines directed to understanding and manipulating living or biologically active material at the molecular level. Often it refers to recombinant deoxyribonucleic acid (DNA) techniques and analysis of genetic information.
7.48 The list of industries using biotechnology has expanded to include health care, agriculture, food processing, bioremediation, forestry, enzymes, chemicals, cosmetics, energy, paper making, electronics, textiles and mining. This expansion of applications has led to significant economic activity and development.
7.49 The number of modern biotechnology-based drugs has expanded and vaccines have increased. The genomes of a number of organisms have been sequenced, including human, mosquito and the malaria-causing organism, plasmodia falciparum. These and related developments are expected to accelerate the pace of drug and vaccine discoveries.
7.50 The area of farmland planted with transgenic crops has increased dramatically in recent years. This growth is expected to continue as more countries commercialize transgenic crops. Biotechnology has also been used to reclaim wasteland through the use of microorganisms and plants that remove or degrade toxic compounds.
7.51 This trend is encouraged by the positive impact of transgenic crops in reductions in pesticide applications and increased yields. Cassava, potatoes and rice are among the crops benefiting from alliances between institutions in developed and developing countries interested in generating products specifically for developing nations.
7.52 A recent report of the United Nations (shown in the Bibliography of this volume) summarized trends in the use of biotechnology, giving some definitions and detailed statistics.
Adoption and Dissemination
7.53 Developed countries have been the main investors in biotechnology and the principal beneficiaries of its adoption. Developing countries, however, are increasingly adopting this new technology, as illustrated by the use of genetically modified plants in increasing numbers of developing countries.
7.54 Cuba and India, for instance, are becoming centers of health-related biotechnology research, development, production and marketing. Cuban biotechnology institutions have developed or are developing vaccines, drugs and diagnostic kits for tropical diseases. Singapore and China have also focused on research in biotechnology and development projects in the health and agricultural sectors.
7.55 International public-private partnerships for vaccines and drug development are also of interest to developing countries. These are currently focused on developing drugs and vaccines against malaria, HIV/AIDS and tuberculosis with the aim of making final products affordable to developing countries. At least one vaccine is currently undergoing the first phase of trials in Kenya,
another, targeting HIV, is undergoing initial clinical trials in the United States and a malarial vaccine
is undergoing the first phase of trials in the Gambia.
7.56 Industrial applications of biotechnology have occurred in textiles, wood, pulp, leather, food and mineral processing. South Africa developed a biotechnology-based gold-processing system, using microorganisms in hydrolyzing mineral ore, called the Biox process. The use of biotechnology in industry is expected to increase in developed and developing countries.
7.57 Development and adoption of intellectual property policies that balance public and private interests can help bridge gaps in the adoption and beneficial development of biotechnology in economies. Enhanced access to intellectual property systems by those working in developing countries, for instance, and stable, strategic partnerships between developed and developing countries are steps that can be taken.
7.58 Modern, flexible intellectual property systems and policies have contributed to fostering investment needed to establish biotechnology industries creating tangible products. Flexible intellectual property policies can play a role in favoring stable legal environments conducive to public-private partnerships, investment and other economic activity needed to spread biotechnological innovations to more countries.
Need for Protection
7.59 As in other fields of technology, there is a need for legal protection in respect of biotechnological inventions. Such inventions are creations of the human mind just as much as other inventions, and are generally the result of substantial research, inventive effort and investment in sophisticated laboratories. Typically, enterprises engaged in research only make investments if legal protection is available for the results of their research. As with other inventions, there is an obvious need for the protection of biotechnological inventions, not only in the interest of inventors and their employers, but also in the public interest in order to promote technological progress.
7.60 Legal protection of inventions is normally effected through the grant of patents or other titles. However, inventors in the field of biotechnology are faced with several obstacles when seeking protection for their inventions. These obstacles do not exist to the same degree in other areas of technology.
7.61 The first is the problem of whether there really is an invention rather than a discovery. If, for example, a microorganism as yet unknown is isolated by a sophisticated process, it may be argued that such a microorganism is not an invention but is a scientific discovery. The counter-argument would be that the isolation requires an important intervention by man using a highly sophisticated process, and that therefore the result is a solution of a technical problem. It may also be argued that the isolated microorganism is not different from a chemical substance extracted from nature, which is patentable subject matter.
7.62 The second obstacle is the existence of express legislative provisions that exclude certain categories of biotechnological inventions from patent protection, in particular, for reasons of public order and morality. Those provisions have their origin in developments which took place in Europe, but have also influenced countries outside Europe.
7.63 Although not all questions have been answered yet at the international level, a number of legal issues with respect to patent protection for biotechnological inventions have been addressed.
7.56 Industrial applications of biotechnology have occurred in textiles, wood, pulp, leather, food and mineral processing. South Africa developed a biotechnology-based gold-processing system, using microorganisms in hydrolyzing mineral ore, called the Biox process. The use of biotechnology in industry is expected to increase in developed and developing countries.
7.57 Development and adoption of intellectual property policies that balance public and private interests can help bridge gaps in the adoption and beneficial development of biotechnology in economies. Enhanced access to intellectual property systems by those working in developing countries, for instance, and stable, strategic partnerships between developed and developing countries are steps that can be taken.
7.58 Modern, flexible intellectual property systems and policies have contributed to fostering investment needed to establish biotechnology industries creating tangible products. Flexible intellectual property policies can play a role in favoring stable legal environments conducive to public-private partnerships, investment and other economic activity needed to spread biotechnological innovations to more countries.
Need for Protection
7.59 As in other fields of technology, there is a need for legal protection in respect of biotechnological inventions. Such inventions are creations of the human mind just as much as other inventions, and are generally the result of substantial research, inventive effort and investment in sophisticated laboratories. Typically, enterprises engaged in research only make investments if legal protection is available for the results of their research. As with other inventions, there is an obvious need for the protection of biotechnological inventions, not only in the interest of inventors and their employers, but also in the public interest in order to promote technological progress.
7.60 Legal protection of inventions is normally effected through the grant of patents or other titles. However, inventors in the field of biotechnology are faced with several obstacles when seeking protection for their inventions. These obstacles do not exist to the same degree in other areas of technology.
7.61 The first is the problem of whether there really is an invention rather than a discovery. If, for example, a microorganism as yet unknown is isolated by a sophisticated process, it may be argued that such a microorganism is not an invention but is a scientific discovery. The counter-argument would be that the isolation requires an important intervention by man using a highly sophisticated process, and that therefore the result is a solution of a technical problem. It may also be argued that the isolated microorganism is not different from a chemical substance extracted from nature, which is patentable subject matter.
7.62 The second obstacle is the existence of express legislative provisions that exclude certain categories of biotechnological inventions from patent protection, in particular, for reasons of public order and morality. Those provisions have their origin in developments which took place in Europe, but have also influenced countries outside Europe.
7.63 Although not all questions have been answered yet at the international level, a number of legal issues with respect to patent protection for biotechnological inventions have been addressed.
The EC Directive on the Legal Protection of Biotechnological Inventions, for instance, is an example
of an instrument that may prove useful to countries and policymakers. The Budapest Treaty on the
International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure,
concluded in Budapest in 1977, facilitates the processing of biotechnology inventions where
protection is sought in various countries. Details on this Treaty are given in Chapter 5.
Existing Protection
7.64 Patents are the most commonly used form of legal protection for encouraging biotechnological innovation and commercialization, although trade secret protection may also be available. Legal regimes other than patent systems are typically relied upon to address other public interests such as the environmental or medical safety of products, efficacy of products, and unfair competition.
7.65 Many countries are bound by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as part of their obligations as Members of the World Trade Organization (WTO). Analysis of TRIPS goes beyond the scope of this chapter (see Chapter 5) but in general, WTO Members are required to implement agreed minimum standards of intellectual property protection. This has given rise to discussions and debates about intellectual property systems and policies in countries that had previously not focused closely on these topics. Not surprisingly, there have been and continue to be concerns over issues such as the scope of patentable subject matter, what constitutes prior art, and how to implement patent-granting systems without unduly burdening struggling economies.
7.66 Article 27.1 of the TRIPS Agreement requires that patents be available in all fields of technology, without discrimination, provided that they are new, involve an inventive step and are capable of industrial application. Article 27.2 enables a Member to exclude from patentability inventions whose commercial exploitation may be contrary to public order or morality. Further, Article 27.3 also allows Members to exclude from patentability certain subject matter, such as plants and animals.
7.67 Protection does need to be provided, however, for microorganisms. In this context, there has been some concern over the impact of patents on “research tools,” in terms of freedom of action for research and development. This focuses on how patents are used and function in commerce. Studies available on this matter have not found widespread or insurmountable difficulties.
7.68 Concerning protection of plant varieties, Article 27.3(b) of the TRIPS Agreement provides that plant varieties shall be protected either by patents or by an effective sui generis system or by any combination thereof. Some plant variety protection systems are thought to constitute sui generis systems. Such systems differ from patent protection in the conditions required for protection and the nature of acts that can be prevented. The International Union for the Protection of New Varieties of Plants (UPOV) is explained in Chapter 5.
7.69 Flexibility has been necessary in TRIPS implementation. Deadlines for compliance, for instance, were recently extended to 2016 for least-developed countries. Other countries have worked to ensure compliance by 2005. In August of 2003, the WTO General Council agreed on changes that enable developing countries lacking pharmaceutical manufacturing capabilities to import drugs with fewer restrictions arising from patent rights. This agreement reflects efforts by
Existing Protection
7.64 Patents are the most commonly used form of legal protection for encouraging biotechnological innovation and commercialization, although trade secret protection may also be available. Legal regimes other than patent systems are typically relied upon to address other public interests such as the environmental or medical safety of products, efficacy of products, and unfair competition.
7.65 Many countries are bound by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as part of their obligations as Members of the World Trade Organization (WTO). Analysis of TRIPS goes beyond the scope of this chapter (see Chapter 5) but in general, WTO Members are required to implement agreed minimum standards of intellectual property protection. This has given rise to discussions and debates about intellectual property systems and policies in countries that had previously not focused closely on these topics. Not surprisingly, there have been and continue to be concerns over issues such as the scope of patentable subject matter, what constitutes prior art, and how to implement patent-granting systems without unduly burdening struggling economies.
7.66 Article 27.1 of the TRIPS Agreement requires that patents be available in all fields of technology, without discrimination, provided that they are new, involve an inventive step and are capable of industrial application. Article 27.2 enables a Member to exclude from patentability inventions whose commercial exploitation may be contrary to public order or morality. Further, Article 27.3 also allows Members to exclude from patentability certain subject matter, such as plants and animals.
7.67 Protection does need to be provided, however, for microorganisms. In this context, there has been some concern over the impact of patents on “research tools,” in terms of freedom of action for research and development. This focuses on how patents are used and function in commerce. Studies available on this matter have not found widespread or insurmountable difficulties.
7.68 Concerning protection of plant varieties, Article 27.3(b) of the TRIPS Agreement provides that plant varieties shall be protected either by patents or by an effective sui generis system or by any combination thereof. Some plant variety protection systems are thought to constitute sui generis systems. Such systems differ from patent protection in the conditions required for protection and the nature of acts that can be prevented. The International Union for the Protection of New Varieties of Plants (UPOV) is explained in Chapter 5.
7.69 Flexibility has been necessary in TRIPS implementation. Deadlines for compliance, for instance, were recently extended to 2016 for least-developed countries. Other countries have worked to ensure compliance by 2005. In August of 2003, the WTO General Council agreed on changes that enable developing countries lacking pharmaceutical manufacturing capabilities to import drugs with fewer restrictions arising from patent rights. This agreement reflects efforts by
the international community to balance the rights of intellectual property holders and the need for
access to certain drugs in developing countries.
7.70 Examples of approaches taken by various countries can be referred to that may be useful for policy-makers. The EC Directive 98/44 on the Legal Protection of Biotechnological Inventions, for instance, which entered into force on July 30, 1998, harmonized the rules concerning patent protection for biotechnological inventions. Article 3(2) provides that biological material, which is isolated from its natural environment or produced by means of a technical process, may be the subject of a patentable invention even if it previously occurred in nature. Article 4(1) excludes from patentability plant and animal varieties and essentially biological processes for the production of plants or animals. As regards public order and morality, Article 6(2) provides a non-exhaustive list of inventions which should be considered unpatentable. These are processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, uses of human embryos for industrial or commercial purposes and processes for modifying the genetic identity of animals which are likely to cause them suffering, without any substantial medical benefit to man or animal, and also animals resulting from such processes.
Traditional Knowledge
Introduction
7.71 A section in Chapter 2 discusses intellectual property and traditional cultural expressions (TCEs), also termed expressions of folklore. More recently, international intellectual property policy debate has broadened its focus to consider the related issue of traditional knowledge (TK), and particularly how traditional knowledge may be protected through the intellectual property system. Increasingly, traditional knowledge is considered as the content, substance or idea of knowledge (such as traditional know-how about the medicinal use of a plant, or traditional ecological management practices), as distinct from the form, expression or representation of traditional cultures (such as a traditional song, performance, oral narrative or graphic design), which are known as TCEs or expressions of folklore. This section reviews the current debate about traditional knowledge protection, which is at a more exploratory stage but is nonetheless an area of high policy priority for many countries, and is under active consideration within WIPO as well as several other international organizations.
7.72 Holders of Traditional Knowledge, such as indigenous and local communities, have stressed that there is a holistic relationship between their traditional knowledge, the genetic resources (such as plants) which form part of their environment, and the TCEs or expressions of folklore that reflect their cultural identity. The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) was established in 2001 to address these issues in a comprehensive way, and has therefore considered the protection of both traditional knowledge and TCEs, together with intellectual property aspects of genetic resources.
7.73 The call for protection of traditional knowledge through the intellectual property system raises challenging questions. To begin with, what is traditional knowledge? Can the astonishing diversity of indigenous and local intellectual and spiritual traditions be bundled together into one single definition, without losing the diversity that is their lifeblood? And what is meant by ”protection“ what is to be protected, and what is it to be protected from, for what purpose, and for whose benefit? If there are to be rights in traditional knowledge, who should own the rights, and how should they be enforced?
7.70 Examples of approaches taken by various countries can be referred to that may be useful for policy-makers. The EC Directive 98/44 on the Legal Protection of Biotechnological Inventions, for instance, which entered into force on July 30, 1998, harmonized the rules concerning patent protection for biotechnological inventions. Article 3(2) provides that biological material, which is isolated from its natural environment or produced by means of a technical process, may be the subject of a patentable invention even if it previously occurred in nature. Article 4(1) excludes from patentability plant and animal varieties and essentially biological processes for the production of plants or animals. As regards public order and morality, Article 6(2) provides a non-exhaustive list of inventions which should be considered unpatentable. These are processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, uses of human embryos for industrial or commercial purposes and processes for modifying the genetic identity of animals which are likely to cause them suffering, without any substantial medical benefit to man or animal, and also animals resulting from such processes.
Traditional Knowledge
Introduction
7.71 A section in Chapter 2 discusses intellectual property and traditional cultural expressions (TCEs), also termed expressions of folklore. More recently, international intellectual property policy debate has broadened its focus to consider the related issue of traditional knowledge (TK), and particularly how traditional knowledge may be protected through the intellectual property system. Increasingly, traditional knowledge is considered as the content, substance or idea of knowledge (such as traditional know-how about the medicinal use of a plant, or traditional ecological management practices), as distinct from the form, expression or representation of traditional cultures (such as a traditional song, performance, oral narrative or graphic design), which are known as TCEs or expressions of folklore. This section reviews the current debate about traditional knowledge protection, which is at a more exploratory stage but is nonetheless an area of high policy priority for many countries, and is under active consideration within WIPO as well as several other international organizations.
7.72 Holders of Traditional Knowledge, such as indigenous and local communities, have stressed that there is a holistic relationship between their traditional knowledge, the genetic resources (such as plants) which form part of their environment, and the TCEs or expressions of folklore that reflect their cultural identity. The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) was established in 2001 to address these issues in a comprehensive way, and has therefore considered the protection of both traditional knowledge and TCEs, together with intellectual property aspects of genetic resources.
7.73 The call for protection of traditional knowledge through the intellectual property system raises challenging questions. To begin with, what is traditional knowledge? Can the astonishing diversity of indigenous and local intellectual and spiritual traditions be bundled together into one single definition, without losing the diversity that is their lifeblood? And what is meant by ”protection“ what is to be protected, and what is it to be protected from, for what purpose, and for whose benefit? If there are to be rights in traditional knowledge, who should own the rights, and how should they be enforced?
7.74 In addressing these issues, the IGC’s work on traditional knowledge protection has also
highlighted deeper concerns. For instance, there are concerns that attempts to protect traditional
knowledge within the intellectual property system could turn traditional knowledge into an asset
sought by third parties, thereby separating it from the very communities that create and nurture it,
and consequently depriving them of vital benefits. So communities have maintained that any
protection of traditional knowledge should remain true to its spiritual, scientific and legal roots. For
many communities, the ancestral customary laws and practices that determine how knowledge
should be protected are integral to the knowledge itself: traditional law and knowledge form an
indivisible whole. Should these roots – the community life, the traditional practices and beliefs that
are integral to traditional knowledge – be protected just as much as the intellectual and cultural
fruits they have yielded?
Traditional Knowledge and the Intellectual Property System
7.75 This means that the search for traditional knowledge protection can amount to a fundamental reassessment of the basic principles and assumptions of the intellectual property system, and a complex debate about how traditional knowledge relates to the formal concepts and structures of the modern intellectual property systems. Some argue that intellectual property facilitates the assertion of illegitimate property rights over material derived from traditional knowledge. But practice has shown how intellectual property systems can strengthen the authority of the holders of traditional knowledge and associated genetic resources, and can help to define and structure how their intangible assets are used and the benefits equitably shared.
7.76 Much depends on opening up more practical options to indigenous and local communities, and enhancing their capacity for benefiting from their options. This poses the crucial question: what is the immediate need? Is it to create new forms of legal protection for traditional knowledge, to strengthen communities’ capacity for making use of existing mechanisms or to build coordinated links between development and adaptation of legal systems and practical capacity-building?
Traditional Knowledge and the Global Marketplace
7.77 The debate about traditional knowledge protection has come to a head because of the increased perceived value of traditional knowledge in the global marketplace. Traditional knowledge and associated genetic resources have been drawn on to create new products, pharmaceuticals and agricultural products. In addition, the cultural, spiritual and technological dimensions of many traditional knowledge systems have survived, often adapting to the challenges of contact and interaction with modern technological society: traditional knowledge remains part of the life of many living communities, and should not be relegated to the archives as a historical curiosity. Certainly, traditional knowledge is a new concept in international intellectual property. WIPO initiated work on traditional knowledge in 1998, and the Convention on Biological Diversity, a landmark in the recognition of traditional knowledge in international law, was concluded in 1992.
7.78 Yet traditional knowledge constitutes some of humankind’s oldest intellectual traditions and systems of knowledge and belief. Technical know-how, TCEs and the natural environment interact and interplay in a complex manner, finding expression in customary practices, community laws and ethical standards. For some traditional communities, customary law creates a vital link between access to and custodianship of traditional knowledge, and a sense of responsibility to respect, preserve and use it appropriately. These forms of knowledge, law and custodianship long predate the emergence of modern intellectual property law. So one concern is to respect and safeguard these traditional legal concepts and traditional knowledge management systems. Traditional wisdom has also been vital for the conservation of the natural environment, and is an essential source of information about the preservation and sustainable use of biological resources. It is
Traditional Knowledge and the Intellectual Property System
7.75 This means that the search for traditional knowledge protection can amount to a fundamental reassessment of the basic principles and assumptions of the intellectual property system, and a complex debate about how traditional knowledge relates to the formal concepts and structures of the modern intellectual property systems. Some argue that intellectual property facilitates the assertion of illegitimate property rights over material derived from traditional knowledge. But practice has shown how intellectual property systems can strengthen the authority of the holders of traditional knowledge and associated genetic resources, and can help to define and structure how their intangible assets are used and the benefits equitably shared.
7.76 Much depends on opening up more practical options to indigenous and local communities, and enhancing their capacity for benefiting from their options. This poses the crucial question: what is the immediate need? Is it to create new forms of legal protection for traditional knowledge, to strengthen communities’ capacity for making use of existing mechanisms or to build coordinated links between development and adaptation of legal systems and practical capacity-building?
Traditional Knowledge and the Global Marketplace
7.77 The debate about traditional knowledge protection has come to a head because of the increased perceived value of traditional knowledge in the global marketplace. Traditional knowledge and associated genetic resources have been drawn on to create new products, pharmaceuticals and agricultural products. In addition, the cultural, spiritual and technological dimensions of many traditional knowledge systems have survived, often adapting to the challenges of contact and interaction with modern technological society: traditional knowledge remains part of the life of many living communities, and should not be relegated to the archives as a historical curiosity. Certainly, traditional knowledge is a new concept in international intellectual property. WIPO initiated work on traditional knowledge in 1998, and the Convention on Biological Diversity, a landmark in the recognition of traditional knowledge in international law, was concluded in 1992.
7.78 Yet traditional knowledge constitutes some of humankind’s oldest intellectual traditions and systems of knowledge and belief. Technical know-how, TCEs and the natural environment interact and interplay in a complex manner, finding expression in customary practices, community laws and ethical standards. For some traditional communities, customary law creates a vital link between access to and custodianship of traditional knowledge, and a sense of responsibility to respect, preserve and use it appropriately. These forms of knowledge, law and custodianship long predate the emergence of modern intellectual property law. So one concern is to respect and safeguard these traditional legal concepts and traditional knowledge management systems. Traditional wisdom has also been vital for the conservation of the natural environment, and is an essential source of information about the preservation and sustainable use of biological resources. It is
therefore no coincidence that the first recognition of traditional knowledge as such in an
international legal setting was in relation to the conservation of biological diversity.
Challenges For the Future
7.79 Future development of traditional knowledge protection therefore confronts a number of seeming paradoxes:
- this is a strikingly new area of international cooperation in intellectual property, but it concerns knowledge and systems of knowledge that have deep and ancient roots;
- it is an international issue, marked by a search for global solutions, but it concerns traditional knowledge systems that are highly diverse and are inherently embedded in local customary law and the natural environment;
- traditional knowledge and the formal legal means of protecting it are seen as
different things (just as an invention and the patent which protects it are distinct concepts),
but for indigenous communities, having traditional knowledge and also having the responsibility for safeguarding it and using it according to customary law form an indivisible whole.
7.80 International progress on traditional knowledge protection is currently at a crossroads. The debate has already yielded a much clearer shared understanding of the basic ideas and concepts for traditional knowledge protection, and a more focused understanding of what the policy choices are. Several specific initiatives have already enhanced the practical recognition of traditional knowledge within the patent system, so that traditional knowledge is less likely to be the subject matter of ill-founded patent claims. The possibilities for protecting traditional knowledge through existing legal tools, including the law of confidential information (traditional knowledge as undisclosed technical know-how), geographical indications (some products are literal embodiments of geographically-localized traditional knowledge) and patent law (over 20,000 patent applications have been filed in China for innovations in the field of traditional Chinese medicine). In addition, several countries have introduced sui generis protection of traditional knowledge, and this practical experience is helping to guide understanding of what further legal steps are needed to prevent the misappropriation and misuse of traditional knowledge.
7.81 The use of existing and new intellectual property approaches alone will not resolve the challenges confronting traditional communities today, who will need to draw on a range of legal and practical tools to strengthen respect for the customary laws that protect their traditional knowledge. Yet there are grounds for optimism that judicious use of the intellectual property system can be a useful support for these communities, and can contribute to their cultural and economic well-being and autonomy. Practical experience, in turn, should lead to greater understanding of what new legal measures are needed, at the national and international levels.
Reprography
Reprography and Intellectual Property
7.82 Reprography is the generic term now used to describe all the kinds of photocopying equipment currently available, which enable facsimile copies of documents of every kind to be
Challenges For the Future
7.79 Future development of traditional knowledge protection therefore confronts a number of seeming paradoxes:
- this is a strikingly new area of international cooperation in intellectual property, but it concerns knowledge and systems of knowledge that have deep and ancient roots;
- it is an international issue, marked by a search for global solutions, but it concerns traditional knowledge systems that are highly diverse and are inherently embedded in local customary law and the natural environment;
- traditional knowledge and the formal legal means of protecting it are seen as
different things (just as an invention and the patent which protects it are distinct concepts),
but for indigenous communities, having traditional knowledge and also having the responsibility for safeguarding it and using it according to customary law form an indivisible whole.
7.80 International progress on traditional knowledge protection is currently at a crossroads. The debate has already yielded a much clearer shared understanding of the basic ideas and concepts for traditional knowledge protection, and a more focused understanding of what the policy choices are. Several specific initiatives have already enhanced the practical recognition of traditional knowledge within the patent system, so that traditional knowledge is less likely to be the subject matter of ill-founded patent claims. The possibilities for protecting traditional knowledge through existing legal tools, including the law of confidential information (traditional knowledge as undisclosed technical know-how), geographical indications (some products are literal embodiments of geographically-localized traditional knowledge) and patent law (over 20,000 patent applications have been filed in China for innovations in the field of traditional Chinese medicine). In addition, several countries have introduced sui generis protection of traditional knowledge, and this practical experience is helping to guide understanding of what further legal steps are needed to prevent the misappropriation and misuse of traditional knowledge.
7.81 The use of existing and new intellectual property approaches alone will not resolve the challenges confronting traditional communities today, who will need to draw on a range of legal and practical tools to strengthen respect for the customary laws that protect their traditional knowledge. Yet there are grounds for optimism that judicious use of the intellectual property system can be a useful support for these communities, and can contribute to their cultural and economic well-being and autonomy. Practical experience, in turn, should lead to greater understanding of what new legal measures are needed, at the national and international levels.
Reprography
Reprography and Intellectual Property
7.82 Reprography is the generic term now used to describe all the kinds of photocopying equipment currently available, which enable facsimile copies of documents of every kind to be
made instantly and cheaply on apparatus that is simple to operate. Today, in almost all countries,
such equipment is ubiquitous, and very large numbers of copies of literary, dramatic, musical and
artistic material are made through the use of reprographic equipment around the world.
7.83 Article 9 of the Berne Convention (Paris Act l971) stipulates that “authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form,” and all contemporary copyright laws contain provisions implementing this principle. Paragraph (2) of Article 9, however, empowers national copyright laws to permit the reproduction of works in certain special cases, subject to two conditions:
7.86 In Germany a more advanced and comprehensive system has been instituted by amendments to the principal Copyright Act, a dual one of statutory payments together with blanket licensing. The statutory payments are made by the manufacturers and importers of photocopying equipment, the amount of the payment depending on the speed of operation of the equipment. In addition, when equipment of this kind is used in educational establishments, in public libraries or in other institutions which make the equipment available to the public on payment of a charge, copying royalties are to be collected and distributed by collecting societies under the blanket licenses.
Audio and Video Recording
7.87 Technological advances have made possible the high-quality copying of sound and audiovisual recordings. The copyright implications of this activity are the same as in the case of the copying of literary and other material by reprographic equipment — in other words it is a potential infringement of the fundamental right protected by Article 9 of the Berne Convention and by the provisions in national laws which implement that Convention requirement.
7.88 Home recording has also been the subject of very considerable study at national and international levels; a number of countries have enacted or are considering legislation to deal with the matter.
7.83 Article 9 of the Berne Convention (Paris Act l971) stipulates that “authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form,” and all contemporary copyright laws contain provisions implementing this principle. Paragraph (2) of Article 9, however, empowers national copyright laws to permit the reproduction of works in certain special cases, subject to two conditions:
-
- the permitted reproduction must not conflict with the normal exploitation of the work;
-
- the reproduction must not unreasonably prejudice the legitimate interests of the author.
7.84 Photocopying on the scale which exists today appears to conflict with the normal exploitation of those works, which are copied in such large numbers; and such a volume of copying may unreasonably prejudice the legitimate interests of the author and, of course, his publisher. A variety of solutions to the problem have been adopted in different countries.
7.86 In Germany a more advanced and comprehensive system has been instituted by amendments to the principal Copyright Act, a dual one of statutory payments together with blanket licensing. The statutory payments are made by the manufacturers and importers of photocopying equipment, the amount of the payment depending on the speed of operation of the equipment. In addition, when equipment of this kind is used in educational establishments, in public libraries or in other institutions which make the equipment available to the public on payment of a charge, copying royalties are to be collected and distributed by collecting societies under the blanket licenses.
Audio and Video Recording
7.87 Technological advances have made possible the high-quality copying of sound and audiovisual recordings. The copyright implications of this activity are the same as in the case of the copying of literary and other material by reprographic equipment — in other words it is a potential infringement of the fundamental right protected by Article 9 of the Berne Convention and by the provisions in national laws which implement that Convention requirement.
7.88 Home recording has also been the subject of very considerable study at national and international levels; a number of countries have enacted or are considering legislation to deal with the matter.
7.89 Just as in the case of reprography, the various national solutions adopted are not identical,
but they are all based on more or less the same approach which may be summarized in the
following way:
-
- the basic idea underlining the approach generally adopted is that in respect of each unit of
recording equipment, blank tape, or recordable compact disc (CD), of a kind likely to be
used for home recording, and which is released to the public, a statutory payment should
be collected;
-
- the rationale of this approach is that although it is not possible to identify each individual
home user, nevertheless it is possible to identify the users as a class because they are those
persons who buy the equipment and the blank tapes or CDs by means of which home
recordings are made; the payment takes the form of an element in the purchase price of
the equipment, blank tape and CD bought for the purpose;
-
- also, as it is the manufacturers and importers of the equipment, blank tape and recordable
CD who, by making those items available to the public, make it possible for the public to
use authors’ works in this way, it is reasonable to require the manufacturers and importers
to collect the statutory payment and account for it to the copyright owners;
-
- under these schemes the statutory payments — which in some countries are charged on
the equipment only, in some on the blank tape and sometimes recordable CDs only, and in
some on both — are made by the manufacturers and importers to collective agencies
representing the various categories of interested parties entitled to a share in them; the
collective agencies are responsible for distributing the amounts so received.
-
- the extent to which the total amount of statutory payments is distributed to individual
right-owners and other interested parties, or is applied to social purposes. In some
countries virtually l00% is distributed on an individual basis, whereas in other countries a
proportion, which in some cases may be 50%, is applied to general social purposes —
such as the granting of scholarships to authors and composers;
-
- the extent to which the copyright owners of non-national works (but which are protected
under the copyright law of the country) are entitled to participate in the distribution of the
statutory payments; in some countries all national works from other countries belonging
to the same Convention to which the country in question belongs, are entitled to
participate; in other countries only national authors and other interested parties
participate.
Communication Technologies
Introduction
of electromagnetic signals which, when received by suitable apparatus, could be converted into
sounds and visual images audible to, and perceivable by, human ears and eyes. Progressively, from
the mid-20th century to its end, the more sophisticated communications methods by satellite and
cable (described below) were important developments. Finally, from the 1990s, electronic
commerce and the Internet revolutionized communication technologies.
Satellites
7.92 In the middle of the 20th century, a significant development took place in the field of broadcast communications. Instead of the electromagnetic signals emitted by the original broadcast traveling directly — that is, without any man-made intervening assistance — from the original transmitter to the receiver, the transmitted signals were received first by a satellite placed in orbit some 22,500 miles above the earth’s surface. The satellite traveled at a speed and direction which kept it, in effect, motionless in relation to the earth in what is known as a geostationary orbit. From this satellite the received signals would then be transmitted back to earth where, at first, for technical reasons, they were receivable only by ground stations, but increasingly have become receivable by private receiving sets owned and operated by individual members of the public. This has meant that both radio and television programs originating in, and transmitted from, one country, are receivable in many other countries; indeed, some of the footprints of these satellites may cover as much as one-third of the earth’s surface.
Types of Satellites
7.93 Traditionally, one distinguishes between three types of telecommunication satellites: point-to-point, distribution and direct broadcast satellites, the first two of which are also referred to as communication satellites or fixed service satellites.
7.94 Point-to-point satellites are used for intercontinental communication between one emitting point and one or more receiving points. Their signals cover roughly one-third of the earth’s surface, so that with the aid of three such satellites, placed over the Atlantic, Indian and Pacific Oceans, signals from any country in the world can be transported — if necessary via double hop — to just about any other country in the world, provided that the necessary earth stations are available. These earth stations must be very powerful and in consequence are very expensive.
7.95 Distribution satellites cover smaller geographical areas (e.g. Europe or part of the United States of America), and their signals are generally destined for a multiplicity of receivers (such as broadcasters or cable system operators) spread out over that particular area. The signal is more concentrated and more powerful than that from a point-to-point satellite, and in consequence the earth stations required for receiving signals from such satellites are considerably smaller — and cheaper — than those needed in a point-to-point satellite communication system.
7.96 Direct broadcast satellites are instruments which transmit programs that are intended for direct reception by the general public. They are “ordinary transmitters hung up in space,” with all the advantages that such a bird’s-eye view carries with it.
7.97 Originally, fixed service satellites and direct broadcasting satellites were clearly distinct, because they operated on different frequency bands, allocated for each purpose. The development of inexpensive and efficient satellite reception equipment for use by private households has blurred that distinction, because a large number of satellites now transmit programs intended for direct reception by the general public, using frequency bands that were previously reserved for fixed
Satellites
7.92 In the middle of the 20th century, a significant development took place in the field of broadcast communications. Instead of the electromagnetic signals emitted by the original broadcast traveling directly — that is, without any man-made intervening assistance — from the original transmitter to the receiver, the transmitted signals were received first by a satellite placed in orbit some 22,500 miles above the earth’s surface. The satellite traveled at a speed and direction which kept it, in effect, motionless in relation to the earth in what is known as a geostationary orbit. From this satellite the received signals would then be transmitted back to earth where, at first, for technical reasons, they were receivable only by ground stations, but increasingly have become receivable by private receiving sets owned and operated by individual members of the public. This has meant that both radio and television programs originating in, and transmitted from, one country, are receivable in many other countries; indeed, some of the footprints of these satellites may cover as much as one-third of the earth’s surface.
Types of Satellites
7.93 Traditionally, one distinguishes between three types of telecommunication satellites: point-to-point, distribution and direct broadcast satellites, the first two of which are also referred to as communication satellites or fixed service satellites.
7.94 Point-to-point satellites are used for intercontinental communication between one emitting point and one or more receiving points. Their signals cover roughly one-third of the earth’s surface, so that with the aid of three such satellites, placed over the Atlantic, Indian and Pacific Oceans, signals from any country in the world can be transported — if necessary via double hop — to just about any other country in the world, provided that the necessary earth stations are available. These earth stations must be very powerful and in consequence are very expensive.
7.95 Distribution satellites cover smaller geographical areas (e.g. Europe or part of the United States of America), and their signals are generally destined for a multiplicity of receivers (such as broadcasters or cable system operators) spread out over that particular area. The signal is more concentrated and more powerful than that from a point-to-point satellite, and in consequence the earth stations required for receiving signals from such satellites are considerably smaller — and cheaper — than those needed in a point-to-point satellite communication system.
7.96 Direct broadcast satellites are instruments which transmit programs that are intended for direct reception by the general public. They are “ordinary transmitters hung up in space,” with all the advantages that such a bird’s-eye view carries with it.
7.97 Originally, fixed service satellites and direct broadcasting satellites were clearly distinct, because they operated on different frequency bands, allocated for each purpose. The development of inexpensive and efficient satellite reception equipment for use by private households has blurred that distinction, because a large number of satellites now transmit programs intended for direct reception by the general public, using frequency bands that were previously reserved for fixed
service satellites. Therefore, it has become more common in modern legislation to include, under
the term “satellite broadcasting,” satellites operating on frequency bands which are reserved for
closed, point-to-point communication, if the circumstances in which individual reception of the
signals takes place are comparable to those which apply in the case of direct broadcasting satellites.
Thus, for example, if equipment to decode signals is available to the general public with the consent
of the originator of the transmissions, such transmissions will normally be deemed broadcasts,
rather than closed point-to-point transmissions.
Copyright and Satellites
7.98 Satellite broadcasting raises a large number of problems of considerable interest in the copyright field. Under Article 11bis(1) of the Berne Convention, broadcasting is one of the forms of communication to the public that is covered by the rights granted under that Convention, and since that provision grants authors of literary and artistic works the rights to “broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images,” it is obvious that satellite broadcasting is covered by those rights.
7.99 In most cases, the signals are sent to the satellite from one specific country (or from exterritorial waters or other places outside the jurisdiction of any country), but they can be received in two or more countries. First of all, it must be determined which law or laws apply to such international transmissions; is it the law of the country from which the transmission originates only, is it the law of the countries in which it can be received, or is it — where applicable — both? This question is of particular interest in those cases where, under Article 11bis(2) of the Berne Convention, non-voluntary licenses apply in one country, for example the country from which the transmission originates, but not in others, for example the country or countries where the transmission is received. Another question concerns the identification of the relevant right-owners in those cases where the rights have been granted on a territorial basis, and where there are different owners of the rights in the country where the transmission originates and in the country or countries where it can be received.
7.100 A consensus seems to be emerging that the applicable law is that of the country from which the transmission originates. However, in those cases where the transmission originates from a country which does not grant exclusive broadcasting rights, there seems to be a tendency towards stretching the international applicability of national legislation as much as possible, in order to avoid to the extent possible the use of countries without copyright protection, or with inadequate protection, as “safe havens.”
7.101 As regards the question which owners of territorially divided rights can exercise their rights concerning international transmissions, the solution is first and foremost to be found in well coordinated international contracts which do not leave any doubt in that respect. As regards the rights that are administered by collective management organizations, the International Federation of Societies of Authors and Composers (CISAC) had adopted a rule according to which it is the society in the country in which the transmission originates that is empowered to give the necessary authorizations, but under an obligation to consult in advance the societies in the “footprint” of the satellite regarding issues of special interest to those societies, including the distribution of royalties between different owners of territorially divided rights.
7.102 Frequently, satellite broadcasters use encryption technology to limit the reception of their programs. They may, for example, broadcast a high-value program which is financed through subscription fees from the viewers, and in this case the equipment necessary to decode the program (that is, to make it visible and audible) is only furnished to the subscribers, for example, in the form of a “smart card” — a microprocessor installed in a card, to be inserted in the receiver’s decoding
Copyright and Satellites
7.98 Satellite broadcasting raises a large number of problems of considerable interest in the copyright field. Under Article 11bis(1) of the Berne Convention, broadcasting is one of the forms of communication to the public that is covered by the rights granted under that Convention, and since that provision grants authors of literary and artistic works the rights to “broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images,” it is obvious that satellite broadcasting is covered by those rights.
7.99 In most cases, the signals are sent to the satellite from one specific country (or from exterritorial waters or other places outside the jurisdiction of any country), but they can be received in two or more countries. First of all, it must be determined which law or laws apply to such international transmissions; is it the law of the country from which the transmission originates only, is it the law of the countries in which it can be received, or is it — where applicable — both? This question is of particular interest in those cases where, under Article 11bis(2) of the Berne Convention, non-voluntary licenses apply in one country, for example the country from which the transmission originates, but not in others, for example the country or countries where the transmission is received. Another question concerns the identification of the relevant right-owners in those cases where the rights have been granted on a territorial basis, and where there are different owners of the rights in the country where the transmission originates and in the country or countries where it can be received.
7.100 A consensus seems to be emerging that the applicable law is that of the country from which the transmission originates. However, in those cases where the transmission originates from a country which does not grant exclusive broadcasting rights, there seems to be a tendency towards stretching the international applicability of national legislation as much as possible, in order to avoid to the extent possible the use of countries without copyright protection, or with inadequate protection, as “safe havens.”
7.101 As regards the question which owners of territorially divided rights can exercise their rights concerning international transmissions, the solution is first and foremost to be found in well coordinated international contracts which do not leave any doubt in that respect. As regards the rights that are administered by collective management organizations, the International Federation of Societies of Authors and Composers (CISAC) had adopted a rule according to which it is the society in the country in which the transmission originates that is empowered to give the necessary authorizations, but under an obligation to consult in advance the societies in the “footprint” of the satellite regarding issues of special interest to those societies, including the distribution of royalties between different owners of territorially divided rights.
7.102 Frequently, satellite broadcasters use encryption technology to limit the reception of their programs. They may, for example, broadcast a high-value program which is financed through subscription fees from the viewers, and in this case the equipment necessary to decode the program (that is, to make it visible and audible) is only furnished to the subscribers, for example, in the form of a “smart card” — a microprocessor installed in a card, to be inserted in the receiver’s decoding
apparatus. Later, if payments cease, the decoding equipment can “close” the program for that
individual viewer, by means of special technical signals transmitted to the smart card alongside the
transmissions of the program. Such technology can also be used to limit the distribution of
programs geographically, by limiting access to decoding equipment to subscribers in certain
geographical areas. Even though the encryption technology is becoming more and more advanced,
there have been substantial problems with unauthorized smart cards being produced by pirates and
distributed widely, to the detriment of the broadcasters and — as a consequence — the owners of
rights in the works broadcast.
7.103 The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) address this problem by obliging the States party to those treaties to provide adequate legal protection and effective legal remedies against the circumvention of such technological protection measures. It is fully justified to consider such unauthorized production, import and distribution of smart cards as a kind of copyright piracy, and national legislation should respond with the same efficiency as it does to the well-known “classical” forms of piracy.
Cable Distribution
7.104 Cable distribution systems have existed for many years on a small scale, typically as so-called “community antennas” which served one or a few apartment blocks and thereby replaced the numerous antennas which previously were erected by the inhabitants themselves. Also, in areas where mountains or high buildings made reception difficult or impossible, such systems enabled reception in the “shadow areas” by means of a single, often high and well-placed antenna.
7.105 Eventually, and particularly in the 1980s and 1990s, these systems evolved significantly, both technologically in terms of their capabilities of carrying a multitude of programs, either from terrestrial broadcasting, satellites, or even programs fed directly into the cable systems (“ cable originated programs”), and quantitatively in terms of the size of the systems and their share of the total number of households in the various countries. In more and more regions of the world, cable television has become a commercial activity of significant importance.
7.106 The dissemination of works and other protected subject matter in cable systems is a communication to the public. However, the status of such communication under the Berne Convention depends on whether the program is cable-originated or a broadcast. In the former case, which also includes programs which are transmitted by satellite to the cable system, provided that such satellite transmission is “closed” and therefore not a broadcast in itself, the applicable provisions of the Berne Convention are:
7.103 The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) address this problem by obliging the States party to those treaties to provide adequate legal protection and effective legal remedies against the circumvention of such technological protection measures. It is fully justified to consider such unauthorized production, import and distribution of smart cards as a kind of copyright piracy, and national legislation should respond with the same efficiency as it does to the well-known “classical” forms of piracy.
Cable Distribution
7.104 Cable distribution systems have existed for many years on a small scale, typically as so-called “community antennas” which served one or a few apartment blocks and thereby replaced the numerous antennas which previously were erected by the inhabitants themselves. Also, in areas where mountains or high buildings made reception difficult or impossible, such systems enabled reception in the “shadow areas” by means of a single, often high and well-placed antenna.
7.105 Eventually, and particularly in the 1980s and 1990s, these systems evolved significantly, both technologically in terms of their capabilities of carrying a multitude of programs, either from terrestrial broadcasting, satellites, or even programs fed directly into the cable systems (“ cable originated programs”), and quantitatively in terms of the size of the systems and their share of the total number of households in the various countries. In more and more regions of the world, cable television has become a commercial activity of significant importance.
7.106 The dissemination of works and other protected subject matter in cable systems is a communication to the public. However, the status of such communication under the Berne Convention depends on whether the program is cable-originated or a broadcast. In the former case, which also includes programs which are transmitted by satellite to the cable system, provided that such satellite transmission is “closed” and therefore not a broadcast in itself, the applicable provisions of the Berne Convention are:
-
- Article 11, which grants exclusive rights for communication to the public of performances
of dramatic, dramatico-musical and musical works;
-
- Article 11ter, which grants exclusive rights to authors of literary works for communication
to the public of recitations of their works;
-
- Article 14, which grants authors of literary and artistic works an exclusive right of
communication to the public by wire of works adapted and reproduced in audiovisual
works;
- - Article 14bis, which grants the same right to the owner of copyright in an audiovisual (cinematographic) work.
In addition, it should be noted that Article 8 of the WIPO Copyright Treaty (WCT) grants a right of
communication to the public, by wire or wireless means, for all categories of works. In practice, this
means that exclusive rights must be granted as regards cable-originated programs.
7.107 As regards cable retransmissions of broadcasts, the provisions of Article 11bis of the Berne Convention applies. According to paragraph (1) of this Article, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one. This limitation means that when the conditions and payments for broadcasts are negotiated, due attention must be paid to the extent of the communication made by the broadcaster, be it as original broadcasting, rebroadcasting or cable distribution.
7.108 Paragraph (2) of Article 11bis provides that national legislation may “determine the conditions under which [these rights] may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.” This provision means that non- voluntary license schemes may be established for cable retransmission of broadcasts. While such schemes can be found in some national laws, there seems to be a tendency towards giving right- owners a stronger bargaining position by granting them exclusive rights, rather than just a right of remuneration. At the same time, it is often recognized that it is necessary to shield cable operators from individual claims from right-owners, because the cable operators have no influence on the contents of the broadcasts that they retransmit, and in practice cannot cut off the retransmission whenever a work is broadcast to which they have not acquired the retransmission rights. One way of doing this is to establish compulsory collective management of the retransmission rights, whereby the cable operators can settle all questions regarding the retransmission rights by entering into agreements with collective management organizations.
Digital Distribution Systems
7.109 One of the most fundamental technological developments relating to the protection of copyright and related rights in recent decades is the use of computers and digital networks for storage, transmission and use of works. On the Internet, text, graphics, photographs and sound can be exchanged between computers at the click of a button, and real-time transmission of audiovisual works is also possible. As new business models are developed to make use of these technical possibilities, the Internet is increasingly taking a central position in the dissemination of works and other protected subject matter to the general public. Especially when networks are so powerful that they can disseminate audiovisual works in real time (or even faster than real time, in which case they will be stored by the receiver and viewed once or more in real time, during and after the transmission) to become accessible to ordinary consumers, such transmission has become an important means of distribution. It is possible that digital distribution may largely replace, for example, distribution of audiovisual works on videocassettes or DVDs.
7.110 Such a development raises several important questions relating to the protection of copyright and related rights, including the question of whether such a transmission “on demand” to, for example, a private home entails a “communication to the public” which is covered by the exclusive rights of the right-owners. Other important questions are the legal protection of the various encryption systems that are necessary to control the dissemination of the works against manufacture and distribution of unauthorized decoding devices, and the legal protection of such rights management information which it is necessary to attach to the works when transmitted, not
7.107 As regards cable retransmissions of broadcasts, the provisions of Article 11bis of the Berne Convention applies. According to paragraph (1) of this Article, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one. This limitation means that when the conditions and payments for broadcasts are negotiated, due attention must be paid to the extent of the communication made by the broadcaster, be it as original broadcasting, rebroadcasting or cable distribution.
7.108 Paragraph (2) of Article 11bis provides that national legislation may “determine the conditions under which [these rights] may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.” This provision means that non- voluntary license schemes may be established for cable retransmission of broadcasts. While such schemes can be found in some national laws, there seems to be a tendency towards giving right- owners a stronger bargaining position by granting them exclusive rights, rather than just a right of remuneration. At the same time, it is often recognized that it is necessary to shield cable operators from individual claims from right-owners, because the cable operators have no influence on the contents of the broadcasts that they retransmit, and in practice cannot cut off the retransmission whenever a work is broadcast to which they have not acquired the retransmission rights. One way of doing this is to establish compulsory collective management of the retransmission rights, whereby the cable operators can settle all questions regarding the retransmission rights by entering into agreements with collective management organizations.
Digital Distribution Systems
7.109 One of the most fundamental technological developments relating to the protection of copyright and related rights in recent decades is the use of computers and digital networks for storage, transmission and use of works. On the Internet, text, graphics, photographs and sound can be exchanged between computers at the click of a button, and real-time transmission of audiovisual works is also possible. As new business models are developed to make use of these technical possibilities, the Internet is increasingly taking a central position in the dissemination of works and other protected subject matter to the general public. Especially when networks are so powerful that they can disseminate audiovisual works in real time (or even faster than real time, in which case they will be stored by the receiver and viewed once or more in real time, during and after the transmission) to become accessible to ordinary consumers, such transmission has become an important means of distribution. It is possible that digital distribution may largely replace, for example, distribution of audiovisual works on videocassettes or DVDs.
7.110 Such a development raises several important questions relating to the protection of copyright and related rights, including the question of whether such a transmission “on demand” to, for example, a private home entails a “communication to the public” which is covered by the exclusive rights of the right-owners. Other important questions are the legal protection of the various encryption systems that are necessary to control the dissemination of the works against manufacture and distribution of unauthorized decoding devices, and the legal protection of such rights management information which it is necessary to attach to the works when transmitted, not
least in order to ensure a correct feedback for billing purposes and, eventually, for the purpose of
securing a correct distribution of the payments to the right-owners. Important answers to the
questions raised in this connection are given in the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT), which are discussed in detail in chapter 5 above.
This post was written by: Author Name
Your description comes here!
Get Free Email Updates to your Inbox!
Post a Comment