Abstract
The years after 1950 might reasonably be referred to as the third phase of development of international copyright law. During the 150 years following the enactment of the Statute of Anne in 1710, the semblance of a philosophy of copyright emerged to accompany the appearance of legislation in countries like the United States and France. Whether legislatures passed laws ostensibly to encourage learning (the United Kingdom and United States) or to recognize inalienable personal rights (France), all acknowledged the author as a figure of social value, deserving of reward.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Cf. Convention Establishing the World Intellectual Property Organization 1967, Article (vi): ‘[WIPO] shall assemble and disseminate information concerning the protection of intellectual property, carry out and promote studies in this field, and publish the results of such studies.’ The Berne Convention does not refer to dissemination.
- 2.
These phrases form part of the preamble of the UCC signed by 36 nations on 6 September 1952. Formed as an agency of the United Nations in 1945, UNESCO’s stated purpose is ‘to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for … human rights and fundamental freedoms’ (Article 1.1 UNESCO constitution, adopted 16 November 1945). The preamble states that ‘since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed’.
- 3.
Signatories to the UCC included the US, a large number of Berne Union members and nearly 30 South American, Asian and African countries that were not signatories to the Berne Convention.
- 4.
This was first officially stated in the Australian Spicer Committee Report (Report of the Committee Appointed to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth 1959) and repeated regularly in general copyright literature.
- 5.
In the United Kingdom, the old law of fair abridgement ultimately found its way, in modified form, to the statute books (beginning with the 1911 Copyright Act) as fair dealing, which, like the US fair use doctrine, permits free use of copyright material subject to a user satisfying certain criteria. UK legislation, like that of other common law countries such as Australia, permits fair dealing for specified purposes, such as research and study. The founding case on fair use in the US is Folsom v. Marsh 9 F.Cas. 342 (1841).
- 6.
The literature on fair use is copious, and expresses wide divergence of opinion on the doctrine’s utility and value. See, for example, Gordon (1982).
- 7.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated in the 1986–1994 Uruguay Round of talks on the General Agreement on Trade and Tariffs, Annex 1C of Marrakesh Agreement creating the World Trade Organization; WIPO Copyright Treaty 1996 (WCT) and WIPO Performances and Phonograms Treaty 1996 (WPPT).
- 8.
The genesis of UNESCO lay in wartime meetings of Allied educational ministers who recommended in 1945 that the United Nations create an educational and cultural organization to help create a new moral and intellectual order for humanity. Dedicated to help spread through the world the benefits of peace, security, justice, education and respect for human rights and human freedoms enunciated in the Charter of the UN, UNESCO expressed a moral vision different from that of the Berne Convention. It could only be expected that the framers of the UCC would adopt an attitude friendlier to public interest than that of the founders and supporters of the Berne Convention, which contains no preamble asserting the public interest in dissemination. On the other hand, it should be remembered that the Berne Union collaborated closely with UNESCO and the UCC’s intergovernmental committee on issues concerning developing countries in the 1960s and 1970s.
- 9.
This is reflected in the initiative, lasting for about a decade from the late 1950s, and involving the Berne Union, to negotiate on behalf of less developed countries privileges permitting access to copyright material published in the developed world.
- 10.
The movements (free software, open source, creative commons, Wikimedia, peer-to-peer and so on) stress the importance of users exercising their freedom to allow copying and modification of their work without significant proprietary restriction. The resulting flow of information creates a ‘commons’ of information freely accessible to the public.
- 11.
The literature on the UCC is surprisingly sparse, and accounts of its purpose differ. Some observers depict it as an instrument designed to bring the United States into the mainstream of international law and eventually the Berne Union. See Ringer (1968), pp. 1055–1062; Jaszi (1989), pp. 47–72; Yu (2004), pp. 323–443.
- 12.
See ‘General Report of the Brazzaville Session’ [1963] RIDA, Vol. 1.
- 13.
Developing nations were not obliged to protect the copyright of a foreign author for more than a posthumous period of 25 years. They could allow local interests to make unauthorized translations of untranslated foreign works and publish translations. Most importantly, they could license local interests to copy foreign literary and artistic works for teaching, study and research purposes. See Berne Convention for the Protection of Literary and Artistic Works, revised Stockholm 14 July 1967, Protocol Regarding Developing Countries, entry into force 29 January/26 February 1970.
- 14.
For example, the International Publishers Association domiciled in Geneva and the International Group of Scientific, Technical & Medical Publishers, founded in 1968 in Amsterdam to, among other things, lobby for copyright protection.
- 15.
British publishing representatives were in the vanguard of opposition to the idea of special needs. US observers included the future Register of Copyrights, Barbara Ringer, a key influence on the content of the 1976 US Copyright Act.
- 16.
WIPO, an agency of the United Nations, came into being in 1967, succeeding BIRPI, or the Bureau Internationaux Réunis pour la Protection de la Propriété Intellectuelle, the administrator of the Berne Convention. WIPO is empowered ‘in order to encourage creative activity, to promote the protection of intellectual property throughout the world’ (Preamble para 2).
- 17.
The conferences were held in Paris in 1971 and amendments took effect (after sufficient ratification) in 1974.
- 18.
A developing country’s central copyright agency could issue a licence if the originating publisher:
-
Enjoyed the exclusive reproduction right in the jurisdiction for specific periods (3–7 years for copies, 1–3 years for translations)
-
Did not offered works for sale in the jurisdiction at a reasonable price
-
Did not respond to publisher requests for voluntary licences, or refused to grant a licence for consideration.
Restrictions favoured foreign publishers, who could dispute the grounds on which a licence might be claimed. The requirement to pay royalties approximate to those payable under voluntary licences, the limited educational purposes for which licensed material could be published and the prohibition on selling material for profit discouraged local publishers from applying for licences. See Berne Convention, Paris Text, 24 July 1971, Appendix [concerning Developing Countries].
-
- 19.
UNESCO worked closely with the WIPO in the 1960s to 1980s and, increasingly, the latter, a specialist United Nations agency, assumed a naturally dominant role in international copyright policy formation. Its larger membership, more ready alignment with the economic goals of powerful producer interests and, increasingly, greater specialist expertise ensured that its voice became dominant in international discussion.
- 20.
Brazil and Argentina’s representatives presented to the WIPO General Assembly the WIPO Development Agenda. The Development Agenda challenges assumptions about the benefits of implementing rigorous intellectual property (IP) legal regimes in developing countries. It calls for adoption of a ‘development agenda’ in international IP policy-making and proposes a treaty to, among other things, promote access to publicly funded research in developed countries. In 2007, WIPO established a Development Agenda and a related Committee on Development and Intellectual Property (CDIP). The CDIP is charged with monitoring, implementing and discussing WIPO’s development programme. In May 2013, the CDIP agreed to continue work towards implementation of the 45 recommendations adopted by the WIPO General Assembly in 2007. At the meeting, Brazil, on behalf of the Development Agenda Group, expressed concern that some WIPO members were not maintaining commitment to effective implementation of the Development Agenda.
- 21.
WIPO-UNESCO Committee of Governmental Experts, ‘Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions’ (1982).
- 22.
UNCHR Sub-Commission o[n] Prevention of Discrimination and Protection of Minorities Working Group on Indigenous Populations, Mataatua Declaration on the Cultural and Intellectual Property Rights of Indigenous Peoples, First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, 12–18 June 1993, Whakatane (NZ), (Commission on Human Rights, WIPO, 1993);UNHCHR, Sub-Commission on Prevention of Discrimination and Protection of Minorities (renamed Sub-Commission on the Promotion and Protection of Human Rights in 1999), Draft Declaration of the Rights of Indigenous Peoples (United Nations, 1994, adopted by the General Assembly in 2007). See also OCHR Leaflet No 12, WIPO and Indigenous People (www.ohchr.org/Documents/Publications/GuideIPleaflet12en.pdf).
- 23.
Available at www.wipo/int/tk/en/consultations/draft_provisions/draft_provisions.html (8 March 2007).
- 24.
Fitzgerald and Hedge (2008).
References
Fitzgerald B, Hedge S (2008) Traditional cultural expression and the internet world. In: Antons C (ed) Traditional knowledge, traditional cultural expression and intellectual property in South East Asia. Kluwer, Dordrecht, http://eprints.qut.edu.au/13675
Gordon W (1982) Fair use as market failure: a structural and economic analysis of the “Betamax” case and its predecessors. Columb Law Rev 82(8):1600–1659
Jaszi P (1989) A garland of reflections on three international copyright topics. Cardozo Arts Entertain Law J 8:47–72
Ringer B (1968) The role of the United States in international copyright – past, present, and future. Georget Law J 56:1055–1062
Spicer Committee (1959) Report of the committee appointed by the Attorney-General of the commonwealth to consider what alterations are desirable in the copyright law of the commonwealth, Commonwealth of Australia, Canberra
Verma SK (2004) Protecting traditional knowledge: is a sui generis system an answer? J World Intellect Prop 7(6):765–805
Yu PK (2004) Currents and crosscurrents in the international intellectual property regime (symposium: intellectual property at a crossroads). Loyola Los Angel Law Rev 38:323–443
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Atkinson, B., Fitzgerald, B. (2014). UNESCO, The UCC and Copyright Access. In: A Short History of Copyright. Springer, Cham. https://doi.org/10.1007/978-3-319-02075-4_9
Download citation
DOI: https://doi.org/10.1007/978-3-319-02075-4_9
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-02074-7
Online ISBN: 978-3-319-02075-4
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)