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Challenges from Globalisation

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Conceptualizing Copyright Exceptions in China and South Africa

Part of the book series: China-EU Law Series ((CELS,volume 6))

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Abstract

The global shift towards knowledge-based economies and the expansion of international trade poses significant legal and political challenges in regulating access to information and knowledge. Societal well-being is particularly impacted if quality education and research are curtailed when information and knowledge networks have restrictive access. Copyright, one of the intellectual property rights, plays an important part in regulating educational and research materials subject to its protection.

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Notes

  1. 1.

    Westkamp (2005), p. 111. For an Asia discussion, see Antons (2004), pp. 109–121. For comments on the internal market of the European Union, see Lüder (2007–2008), pp. 1–60, describes current copyright harmonisation in the EU and calls for a further harmonisation on various rights to facilitate the free flow of digital products within the internal market of the EU.

  2. 2.

    National Telecommunications and Information Administration Falling through the Net II: New Data on the Digital Divide, available at http://www.ntia.doc.gov/report/1998/falling-through-net-ii-new-data-digital-divide.

  3. 3.

    Monroe (2004), p. 5.

  4. 4.

    National Telecommunications and Information Administration Falling through the Net II; Monroe (2004), pp. 8–14.

  5. 5.

    Servon (2002), p. 43.

  6. 6.

    Norris (2001), pp. 45–47.

  7. 7.

    The DOT Force was created at the G8 Heads of State Kyushu-Okinawa Summit in 2000 and consisted of 43 teams from governments, private sectors, non-profit organisations and international organisations, representing developed and developing countries.

  8. 8.

    Digital Opportunity Task Force Digital Opportunities for All: Meeting the Challenges DOTF, 4.

  9. 9.

    Ibid.

  10. 10.

    Litman (1996), pp. 19–48.

  11. 11.

    CIPR (2002), p. 100.

  12. 12.

    Sun (2005), p. 194 & accompanying notes.

  13. 13.

    Ibid.

  14. 14.

    Litman (2001), p. 13.

  15. 15.

    Gray and Seeber (2004), p. 45, report commissioned by the Department of Arts and Culture, South Africa, through the Print Industries Cluster Council (PICC).

  16. 16.

    For example, see Boyle (2004), pp. 1–12; Hugenholtz (2000–2001), pp. 77–90; Samuelson (1996), pp. 369–439. A number of non-governmental organisations, public interest groups and civil society activists have expressed similar views. Such organisations are: The Communication Rights in the Information Society, the International Federation of Library Associations and Institutions (IFLA), the Electronic Frontier Foundation (EFF), and the Union for the Public Domain.

  17. 17.

    May (2003), pp. 1–5; Ryan (2000), p. 661.

  18. 18.

    Walker (2001), pp. ix–x.

  19. 19.

    May (2003), pp. 1–5; Sell (2003), pp. 8–10; Finger (1999), pp. 432–434.

  20. 20.

    See WIPO Standing Committee on Copyright and Related Rights Proposal by Chile on the Analysis of Exceptions and Limitations SCCR/13/5 (2005). The proposal requested the WIPO Standing Committee to investigate national models of copyright limitations and exceptions and urged it to establish an agreement on limitations and exceptions for public interest. WIPO Provisional Committee Provisional Committee on Proposals Related to a WIPO Development Agenda PCDA/1/2 (2006). In this proposal Chile requested WIPO to appraise the importance of the public domain where users can use works without copyright restrictions. Chile also requested the WIPO to investigate such complementary measures as open licensing systems that can stimulate creativity. In a more recent report, WIPO Standing Committee on Copyright and Related Rights Study on the Limitations and Exceptions to Copyright and Related Rights for the Purposes of Educational and Research Activities in Latin America and the Caribbean (2009), SCCR/19/4, it is noted that the ‘[f]ailure to regulate the interface between the protection of technological measures and the exercise of limitations or exceptions results in all such limitations or exceptions being sacrificed in return for the legal protection of technological measures, a situation contrary to the necessary balance of rights and interests’, p. 162.

  21. 21.

    Trade-Related Aspects of Intellectual Property Rights Agreement (Uruguay, 1-1-1996) negotiated in the 1986–1994 Uruguay Round, introduced intellectual property rules into the multilateral trading system for the first time.

  22. 22.

    Berne Convention for the Protection of Literary and Artistic Works of 1886. Copyright entered the international arena with the Berne Convention. The Paris Convention for the Protection of Industrial Property (Paris, 20-3-1883), came into force in 1884 and was designed to help people in one country obtain protection in other countries for their intellectual creations in the form of industrial property rights, known as patents, trademarks and industrial designs.

  23. 23.

    The WIPO Copyright Treaty was adopted by the World Intellectual Property Organization (WIPO) in 1996. It provided additional protections for copyright deemed necessary in the modern information era.

  24. 24.

    The WIPO Performances and Phonograms Treaty was adopted 20 December 1996.

  25. 25.

    Within the European Union, several directives relate to copyright and related rights in the digital era. They are the European Parliament Directive on the legal protection of computer programs (14-5-1991) Directive 91/250/EEC, granting them protection; the European Parliament Directive on rental right and lending right and on certain rights related to copyright in the field of intellectual property (19-11-1992) Directive 92/100/EEC 4, obliging Member States to introduce a rental and lending right for authors, performers, phonogram producers, and film producers and a series of rights related to copyright for performers, phonogram producers, film producers, and broadcasting organisations; the European Parliament Directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (27-9-1993) Directive 93/83/EEC, that introduces a broadcasting right for satellite transmissions and a clearance mechanism for cable retransmissions; the European Parliament Directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (27-9-1993) Directive 93/83/EEC; the European Parliament Directive on the legal protection of databases (11-3-1993) Council Directive 96/9/EC that grants legal protection to databases; and the European Parliament Directive on the resale right for the benefit of the author of an original work of art (27-09-2001) Directive 2001/84/EC that introduces the artist’s resale right.

  26. 26.

    European Parliament Directive on certain legal aspects of information society services, in particular electronic commerce, in the Internet Market (08-06-2000) Directive 2000/31/EC. The purpose of this Directive is to improve the legal security of electronic commerce in order to increase the confidence of Internet users. It establishes a stable legal framework by making information society services subject to internal market principles and by introducing a limited number of harmonised measures.

  27. 27.

    European Parliament Directive on the harmonization of certain aspects of copyright and related rights in the information society (22-5-2001) Directive 2001/29/EC. It adapts legislation on copyright and related rights to technological developments and particularly to the information society. The objective is to transpose at the community level the main international obligations derived from the WCT and the WPPT.

  28. 28.

    The WIPO Internet Treaties consist of two treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both adopted in 1996 in Geneva and entered into force in 2002.

  29. 29.

    For more details, see Executive Summary.

  30. 30.

    Luo (2005) Global Law Working Paper 08/05; Zhao (2006). Available at http://www.chinadaily.com.cn/bizchina/2006-02/16/content_535146.htm. Also see Liu (2015), p. 1.

  31. 31.

    May (2003), pp. 1–5.

  32. 32.

    For example, the restrictions can be a restriction on users’ printing and downloading or emailing copies of the materials; restrictions on libraries’ inter-library loan services; restrictions on libraries’ copying the work for preservation purpose.

  33. 33.

    The First Sale Doctrine is an exception to copyright that is codified in § 109 of the Copyright Act of 1976 17 U.S.C. §§ 101 et seq. The Doctrine allows the purchaser to transfer a legally acquired copy of a protected work without permission once it has been obtained. That means the distribution rights of a copyright owner are terminated for that copy once the copy is sold.

  34. 34.

    See Art 9 of the World Intellectual Property Organization Copyright Treaty (Geneva, 20-12-1996) as amended by Agreed statement concerning Article 1(4) of the WCT, Agreed statement concerning Article 10 of the WCT, Agreed statement concerning Article 6 of the WCT & Agreed statement concerning Article 8 of the WCT; Art 17 of the World Intellectual Property Organization Performances and Phonograms Treaty (Geneva, 20-12-1996); European Parliament Directive on harmonizing the term of protection of copyright and certain related rights (29-10-1993) Directive 93/98/EEC. In the US, the Copyright Term Extension Act of 1998 (112 Stat 2827; Public Law 105-298) extended the terms from the death of the author plus 50 years or 75 years for a work of corporate authorship under Copyright Act of 1976 to death of the author plus 70 and 95 years respectively; in the UK, the amendment of Copyright, Designs and Patents Act of 1988 (Ch 48) which was meant to comply with the Directive on Harmonizing Term of Protection extended the term for musical works from 50 to 70 years beyond the author’s death.

  35. 35.

    The Berne three-step test imposes restrictions on exclusive copyrights under national copyright laws. Art 9 (2) of the Berne Convention for the Protection of Literary and Artistic Works of 1886 (Berne, 9-9-1886) as amended in 1908, 1928, 1948, 1967, 1971 and 1979 provides that contracting parties of the Convention should permit reproduction of copyrighted works in certain special cases as long as the reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. The three-step clause first applied to reproduction right under the Berne Convention and then has been extended and adopted by many international and regional treaties such as the TRIPS Agreement and the EU Information Society Directive.

  36. 36.

    Geiger et al. (2008), p. 493.

  37. 37.

    Mtima (2015–2016), p. 463.

  38. 38.

    Libraries now transcend their traditional practice of collecting paper copies of books and journals and have become providers of materials in alternative formats, such as audio books and digitised materials.

  39. 39.

    See, e.g., Watt (2014); Landes and Posner (2003); Benkler (2002), pp. 81–107; Lunney (1996), p. 483; Lemley (1996–1997), pp. 989–1084; Gordon (1982), pp. 1600–1657.

  40. 40.

    Samuelson (2005), pp. 1–22.

  41. 41.

    Coase (1960), pp. 1–44.

  42. 42.

    Business Wire (2007), available at http://www.mobilitytechzone.com/news/2007/04/02/2457667.htm.

References

  • Antons C (2004) Harmonisation and selective adaptation as intellectual property policies in Asia. In: Antons C, Blakeney M, Heath C (eds) Intellectual property harmonisation within ASEAN and APEC. Kluwer Law International, The Hague

    Google Scholar 

  • Benkler Y (2002) Intellectual property and the organization of information production. Int Rev Law Econ 22(1):81

    Article  Google Scholar 

  • Boyle J (2004) A manifesto on WIPO and the future of intellectual property. Duke Law Technol Rev 9:1

    Google Scholar 

  • Business Wire (02-04-2007) EMI music launches DRM-free superior sound quality downloads across its entire digital repertoire, at mobility tech zone, available at http://www.mobilitytechzone.com/news/2007/04/02/2457667.htm. Accessed 27 Aug 2017

  • Commission of the European Communities Copyright in the Knowledge Economy Green Paper of the Commission of the European Communities Brussels COM (2008) 466/3Commission on Intellectual Property Rights Integrating Intellectual Property Rights and Development Policy.CIPR, London, September (2002)

    Google Scholar 

  • Coase RH (1960) The problem of social cost. J Law Econ 3:1

    Article  Google Scholar 

  • Digital Opportunity Task Force Digital Opportunities for All: Meeting the Challenges DOTF (DOTF, June 2001)

    Google Scholar 

  • Finger JM (1999) The WTO’s special burden on less developed countries. Cato J 19:425

    Google Scholar 

  • Geiger C, Griffiths J, Hilty RM (2008) Towards a balanced interpretation of the “three-step test” in copyright law. Eur Intellect Prop Rev 4:489–496

    Google Scholar 

  • Gordon WJ (1982) Fair use as market failure: a structural and economic analysis of the Betamax case and its predecessors. Columbia Law Rev 82(8):1600

    Article  Google Scholar 

  • Gray E, Seeber M (2004) PICC report on intellectual property rights in the print industries sector. PICC, Cape Town. report commissioned by the Department of Arts and Culture, South Africa, through the Print Industries Cluster Council

    Google Scholar 

  • Hugenholtz PB (2000–2001) Copyright, contract and code: what will remain of the public domain. Brooklyn J Int Law 26:77

    Google Scholar 

  • Landes WM, Posner RA (2003) The economic structure of intellectual property law. Harvard University Press, Cambridge

    Google Scholar 

  • Lemley MA (1996–1997) The economics of improvement in intellectual property law. Tex Law Rev 75:989

    Google Scholar 

  • Litman J (1996) Revising copyright law for the information age. Oreg Law Rev 75:19

    Google Scholar 

  • Litman J (2001) Digital copyright: protecting intellectual property on the internet. Prometheus Books, Amherst

    Google Scholar 

  • Liu H (2015) Consequences of legal transplantation: the unique justifications and roles of enforcement of intellectual property rights in China. J Law Technol Public Policy 1(3):1

    Google Scholar 

  • Lüder T (2007–2008) The next ten years in EU copyright: making markets work. Fordham Intell Prop Media Entertain Law J 18(1): 1–60. describes current copyright harmonization in the EU and calls for a further harmonization on various rights to facilitate the free flow of digital products within the internal market of the EU

    Google Scholar 

  • Lunney GS Jr (1996) Reexamining copyright’s incentive-access paradigm. Vanderbilt Law Rev 49(3):483

    Google Scholar 

  • Luo L (2005) Legal protection of technological measures — a comparative study of US, European and Chinese anti-circumvention rules, global law working paper 08/05

    Google Scholar 

  • May C (2003) Why IPRs are a global political issue. Eur Intellect Prop Rev 25(1):1

    Google Scholar 

  • Monroe BJ (2004) Crossing the digital divide: race, writing, and technology in the classroom. Teachers College Press, New York

    Google Scholar 

  • Mtima L (2015–2016) Copyright and social justice in the digital information society: three steps toward intellectual property social justice. Houst Law Rev 53:459

    Google Scholar 

  • National Telecommunications and Information Administration Falling through the Net II; Monroe Crossing the Digital Divide

    Google Scholar 

  • Norris P (2001) Digital divide: civic engagement, information poverty, and the internet worldwide. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Ryan M (2000) Cyberspace as public space: a public trust paradigm for copyright in a digital world. Or Law Rev 79:647

    Google Scholar 

  • Samuelson P (1996) The US digital agenda at WIPO. Va J Int Law 37:369

    Google Scholar 

  • Samuelson SP (2005) Should economics play a role in copyright law and policy? In: Takeyama L, Gordon WJ, Towse R (eds) Developments in the economics of copyright: research and analysis. Edward Elgar, Cheltenham

    Google Scholar 

  • Sell S (2003) Private power, public law: the globalization of intellectual property rights. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Servon LJ (2002) Bridging the digital divide: technology, community, and public policy. Blackwell Publishing, Malden

    Book  Google Scholar 

  • Sun H (2005) Copyright law under siege: an inquiry into the legitimacy of copyright protection in the context of the global digital divide. Int Rev Intell Prop Compet Law 36(2):192

    Google Scholar 

  • Walker S (2001) The TRIPS agreement, sustainable development and the public interest: discussion paper: IUCN environmental policy and law paper no 41, Gland: IUCN & Geneva: CIEL, pp ix–x

    Google Scholar 

  • Watt R (ed) (2014) Handbook on the economics of copyright: a guide for students and teachers. Edward Elgar, Cheltenham

    Google Scholar 

  • Westkamp G (2005) Convergence of intellectual property rights and the establishment of “hybrid” protection under TRIPs. In: McMillan F (ed) New directions in copyright law, vol 1. Edward Elgar, Cheltenham

    Google Scholar 

  • WIPO Standing Committee on Copyright and Related Rights Proposal by Chile on the Analysis of Exceptions and Limitations SCCR/13/5 (2005)

    Google Scholar 

  • Zhao HX “Copyright Protection to Improve” China Daily (16-02-2006). Available at http://www.chinadaily.com.cn/bizchina/2006-02/16/content_535146.htm. Accessed 27 Aug 2017

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  1. School of Accounting and Finance, The Hong Kong Polytechnic University, Hung Hom, Hong Kong

    Jia Wang

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Wang, J. (2018). Challenges from Globalisation. In: Conceptualizing Copyright Exceptions in China and South Africa. China-EU Law Series, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-71831-6_1

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