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Nagoya University Graduate School of LawHandout for CDS Presentation LL.D Candidate: KORK BorenFebruary 25, 2010 Academic Advisor: SUZUKI Masabumi

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Ownership right translates the fact that a person owns a thing to his/her possibility to

exclusively and absolutely use, take benefits from, and dispose that thing. Consequently, within the

scope of real property law, there is no question with an owner of a comic book making copies thereof

and distributing them to others or scanning the book and uploading the soft version on the internet.

Real property law only deals with what is tangible and does not extend its arm to the intangible

content of the book. In turn, copyright law, of which subject matter is intangible information,

enables author of that comic book to refrain others, including its owner, from reproducing,

distributing, communicating to the public, and making derivative works based upon the content of

the book.

Nonetheless, it is in the nature of creative work for one author to draw on the works of

others.1 Illustratively, in writing the above comic book, the author could not avoid borrowing some

existing works of others. In this sense, new work is always a combination of previous works and

creative supplements. How much the creative supplements should be for a new work to be

protected and how much an author can legally borrow from the previous works are the two

essential questions within the copyright paradigm.

Copyright Law grants exclusive rights to authors who added sufficient creative supplements

to the existing works. At the same time, Copyright Law enables new authors to borrow from their

predecessors by permitting some exceptional uses, thus limiting those exclusive rights. Therefore,

Grant and Reservation has always been the two features of copyright law, whether it be domestic

or international.

1

PAUL GOLDSTEIN, COPYRIGHT HIGHWAY 2 (Revised ed. 2003).


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International Copyright Protection became necessary when literary and artistic works could

easily flow across the national boundaries and were very much vulnerable to piracy abroad,

following the industrial revolution in 19th century. The cross-border protection began with bilateral

agreements between civilized States in Europe.2 Yet, those reciprocity-based agreements were not

successful, giving the facts that, first, reciprocity rarely works as the level of literary and artistic

production was different from one country to another,3 and second, the bilateral and non-perpetual

nature of these agreements made it difficult to effectively apply the principle of most favored

nations.4

Following this unsatisfactory result, the first multilateral copyright treaty was given birth in

1886. The treaty, named as the Berne Convention for the Protection of Literary and Artistic Works

(hereinafter the Berne Convention), imposes on members obligation to grant, based on the principle

of national treatment, copyright protection consistent with the minimum standards set out thereby.

Since the Berne Convention provides possibility for a member to bring action before the

International Court of Justice (ICJ) but none has ever done so, this Convention was later regarded

as toothless in terms of enforcement.5 Then, there was an initiative to marry the protection of

copyright as well as of other intellectual property rights with the issues of international trade. As

the result, the Agreement on Trade Related Aspects of Intellectual Property Rights (hereinafter the

TRIPS Agreement) was formulated and given status as an annex (Annex 1C) to the Marrakesh

Agreement Establishing the World Trade Organization (hereinafter the WTO). The TRIPS

Agreement, which incorporates most of the provisions of the Berne Convention, was added teeth

through the mechanism that enables injured contracting party to file complaints against infringing

contracting party before the Dispute Settlement Body of the WTO, which has been regarded as an

effective and successful mechanism for the settlement of international trade-related disputes.

2 Id. at 147-48.3 Id.4 Sam Ricketson, The Birth of the Berne Union, in FOUNDATIONS OF INTELLECTUAL PROPERTY 293 (RobertP. Merges & Jane C. Ginsburg ed., 2004).5

PAUL GOLDSTEIN, supranote 1, at 160.


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The efforts to protect copyright internationally did not stop by the TRIPS Agreement. In

response to the development and convergence of information and communication technologies on

the creation and use of literary and artistic works, another treaty, named as the WIPO Copyright

Treaty (hereinafter the WCT), was adopted in 1996 under the auspice of the World Intellectual

Property Organization (hereinafter the WIPO).

The three treaties mentioned above constitute predominant international norms covering

copyright issues. Not surprisingly, the treaties were structured following the same pattern. They

all set up unified minimum standards of protection and impose obligation on contracting parties to

ensure those standards in their domestic copyright law and policy. 6 Recognizing the need to

maintain a balance between the interests of copyright holders and those of the larger public, or in

other words, the need of enabling new authors to borrow from their predecessors, the treaties also

leave some rooms for contracting parties to provide for limitations and exceptions to the exclusive

rights to be granted to authors. It is beyond doubt that the one-size-fit-all rules do not work

properly, given the differences in culture, legal tradition, social need, and development stage of the

contracting parties. Therefore, those rooms enable contracting parties to mold their own copyright

law and policy in accordance with their domestic needs, as long as this does not go against the

treaties. As a matter of fact, the question on how a contracting party can match its own copyright

law and policy to the domestic needs without going against the treaties by which it is bound

requires deep and serious studies on both obligations imposed and flexibilities left by those

international norms. To this effect, countless studies and endeavors have been vested on

strengthening the conformity of contracting parties domestic copyright law and policy to the

international protection standards. Resources have been spent by developed members on educating

and assisting developing members 7 to have their laws and policies meeting rigid obligations

6 I use the words copyright law and policy here to refer to not only legislative texts but also judicial interpretationand administrative measures.7 In this dissertation, I classify countries into only developed and developing ones, meaning if they are not yetdeveloped, they are developing. Accordingly, least developed countries are included in the developing group. Yet,occasionally, I will replace the words developed countries by countries of the West and developing countries by

countries of the East respectively and interchangeably.


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imposed by international norms.8 At the opposite end of this spectrum, however, is the scarcity of

serious studies on how to make utmost exploitation of the flexibilities left by international

copyright instruments to formulate national laws and policies that would fit with the domestic

needs and development stage. Nonetheless, it is naturally understood that, for developed members

who always prefer greater copyright protection, this topic on flexibilities is not as attractive as that

on harmonization of national laws or conformity thereof to the international norms. Therefore,

developing members, which nowadays represent the majority in international copyright community,

shall initiate and undertake important role in the studies on this topic.

Against the above presented background, Chile in 2004 alerted the WIPO Standing

Committee on Copyright and Related Rights to the necessity of Analysis of Copyright Exceptions

and Limitations.9 The alert has gained attention not only from the WIPO Standing Committee on

Copyright and Related Rights, but also from other developing members. Illustratively, Mexico

submitted in 2007 the proposal relating to article 10 (Limitations and Exceptions) of the WIPO

Copyright Treaty.10 In 2008, Brazil, Chile, Nicaragua, and Uruguay submitted together a proposal

calling for work related to Exceptions and Limitations to be undertaken by the WIPO Standing

Committee on Copyright and Related Rights.11

8SeeHong Xue, What direction is the wind blowing? in THE DEVELOPMENT AGENDA, GLOBALINTELLECTUAL PROPERTY AND DEVELOPING COUNTRIES (Neil Weinstock Netanel ed., 2009).9SeeProposal by Chile on the Subject Exceptions and Limitations to Copyright and Related Rights, WIPOStanding Committee on Copyright and Related Rights, SCCR/12/3, November 2, 2004, at"http://www.wipo.int/edocs/mdocs/copyright/en/sccr_12/sccr_12_3.doc"10SeeProposal by Mexico Relating to Article 10 Limitations and Exceptions, WIPO Standing Committee onCopyright and Related Rights, SCCR/S2/4, June 19, 2007, at"http://www.wipo.int/edocs/mdocs/copyright/en/sccr_s2/sccr_s2_4.doc"11SeeProposal by Brazil, Chile, Nicaragua and Uruguay for Work related to Exceptions and Limitations, WIPOStanding Committee on Copyright and Related Rights, SCCR/16/2, July 17, 2008, at

"http://www.wipo.int/edocs/mdocs/copyright/en/sccr_16/sccr_16_2.doc"


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In 2009, further step was taken by Brazil, Ecuador, and Paraguay through the submission of

a proposed treaty on copyright limitations and exceptions for visual impaired persons and others.12

While this proposal finds its place in the continuous discussion of the WIPO Standing Committee

on Copyright and Related Rights, some developed members commented that it is premature to

discuss any instrument on this matter.13

It is actually recognized that developing members made an applausive start by appealing for

and taking initiative to carry out necessary analysis on copyright limitations and exceptions. Yet, it

is debatable whether they are moving too hastily by proposing a new instrument on this matter. In

fact, they may be skipping one important phase of making utmost exploitation of the flexibilities

available in the currently existing international copyright instruments. One important question

arises out at this point as to whether it is now the right time to make reform14 to the current

international copyright norms regarding limitations and exceptions.

This research is designed to offer an appropriate answer to the above question. It will

ultimately suggest that reform to the current international copyright norms is premature at the

present situation. An important stage should not be skipped by developing countries. That is a

deeper study on all the flexibilities available in the rigid international copyright instruments

followed by the utmost exploitation thereof in molding their national copyright laws in a way

responsive to their domestic needs and development stage. In order to provide an answer as such,

the research will build up four supportive arguments.

First, the research will take an analytical look to the controversial evolution of the current

international copyright regime in order to prove that developed countries have been leading the

12SeeProposal by Brazil, Ecuador and Paraguay, relating to Limitations and Exceptions: Treaty proposed by theWorld Blind Union (WBU), WIPO Standing Committee on Copyright and Related Rights, SCCR/18/5, May 25, 2009,at "http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=122732"13SeeWilliam New, WIPO Limitations & Exceptions Treaty Advances; Audiovisual Treaty Gets New Life,Intellectual Property Watch, 30 May 2009, at "http://www.ip-watch.org/weblog/2009/05/30/wipo-limitations-audiovisual-treaty-gets-new-life/"14

I use the word reform here to broadly include amendment, revision, and addition.


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trend towards greater scope of copyright protection, while developing countries have always been in

no or lower position in the negotiation, and that the same pattern is likely to be followed in further

negotiations. Finally, this analytical look will come up with the conclusion that international

treaties are rigid legal instruments. Negotiation on establishing or making changes to them

consumes tremendous time, resources, and risks, which developing countries may find it hard to

afford.

Second, the research will study on how much flexibilities are left in the current international

copyright norms, by taking into consideration the provisions of the Berne Convention, the TRIPS

Agreement, and the WIPO Copyright Treaty. This study will bring about conclusion that the

current international copyright regime already leaves a substantial amount of flexibilities for

developing countries to shape up their national copyright laws suitable to their own stage of

development.

Third, the research will study on laws of three developing countries, namely India, Brazil,

and Cambodia, in order to prove a general assumption that in formulating their own copyright laws,

developing countries have not yet used up all the flexibilities available for them in the current

international copyright treaties.

Fourth, the research will dig out the root causes of unpopular use of flexibilities by

developing countries. It will bring about argument that flexibilities of the current international

copyright regime are usually hidden or unseen by developing countries because developed countries

have tried to build up barriers against their use by developing countries through bilateral or free

trade agreements, legislative advises, contents of intellectual property training, etc., while they

themselves have exploited those flexibilities in response to their domestic needs. To prove this, the

research will study on overall policies of developed countries towards use of flexibilities, and will

learn how three developed countries, namely France, the United States, and Japan, domesticate

those flexibilities into their own copyright laws.


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The research will finally provide recommendations to developing countries on how to make

exhaustive use of all the flexibilities available for them in the current international copyright

regime, in lieu of trying to seek for a far-reaching and risky reform thereto.

This research covers only copyright. It does not extend it arms to the neighboring rights,

known as the rights granted to performers, producers of phonograms and broadcasting

organizations.

As told by the title of this dissertation, focus will be put only on flexibilities available for

formulating domestic copyright limitations and exceptions that serve the purpose of education.

The international copyright regime as referred to in this research is concerned only with

three predominant treaties, namely the Berne Convention for the Protection of Literary and

Artistic Works (Berne Convention), the Agreement on Trade Related Aspects of Intellectual

Property Rights (TRIPS Agreement), and the WIPO Copyright Treaty (WCT). Other international

copyright instruments such as the Convention of Montevideo on Literary and Artistic Property

(1889), the Universal Copyright Convention (1952) etc. are therefore kept outside the scope of this

research.

Three countries are chosen as representative of developing countries in this research. First,

India is selected because its copyright law is influenced by Anglo-American system. Moreover, as a

developing country, India acceded to the Berne Convention at the very early stage (1928). Second,

Brazil is on the list because it is one of the most active developing countries in the WIPO as well as

in the WTO. Like India, Brazil also joined the Berne Convention at the very early stage (1922).

More than this, Brazil is one among other countries, which submitted to the WIPO the proposed

treaty on copyright limitations and exceptions for visual impaired persons and others. Third,

Cambodia is picked up because its copyright law follows the model of continental system. More


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interestingly, Cambodia is the first least developed country that joined the WTO, thus adhered to

the provisions of the TRIPS Agreement in 2004.

As for developed countries, three copyright super powers are chosen. First, France is selected

because this country is well known as mother of natural right based copyright system, which

focuses on authors interests. Second, the United States is picked up because the copyright law of

this country is well known as representative of the utilitarian concept based system, which put

more weight on the larger public in lieu of centering the authors interests. Furthermore, this

country is very powerful and influential in international copyright negotiation. Third, Japan is on

the list because the copyright law of this country has a hybrid character, which borrows from both

the natural right based system and the utilitarian concept based system. This country is also

regarded as the most powerful and influential negotiator of Asia.


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1.1 Research Motive

1.2 Research Problem

1.3 Research Objective and Methodology

1.4 Research Boundaries

2.1 Introduction

2.2 A Dilemma of Copyright Balance

2.2.1 Background behind Copyright Grant and Reservation

2.2.1.1 Natural-right explanation

2.2.1.2 Utilitarian-Concept explanation

2.2.1.3 Market-Failure explanation

2.2.1.4 External-influence explanation

2.2.2 Normative equation of the Copyright System

2.2.2.1 Characteristics of Copyright

2.2.2.2 Grant as incentives for creativity

2.2.2.3 Reservation as access routes

2.2.2.4 The Incentive-Access Paradigm

2.3 The Birth of Multilateral Agreement on Copyright Protection: Berne Convention

2.3.1 Berne Convention: an initiative of the West

2.3.2 Berne Convention: a one-way ratchet

2.3.3 Berne Convention: a base line for the West

2.4 A marriage of Copyright Protection and International Trade: TRIPS Agreement

2.4.1 TRIPS Agreement: a result of strong wind from the West


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2.4.2 TRIP Agreement: a higher ceiling for the East

2.4.3 TRIPS Agreement: a powerful tool of the West

2.5 International Copyright Protection in the Digital Era: WCT

2.5.1 WCT: a western response to the advancement of information technologies

2.5.2 WCT: a higher ceiling for the East

2.5.3 WCT: a shortfall for the West

2.6 Conclusion: Restoring the Balance in International Copyright System

3.1 Introduction

3.2 Rules of Interpretation of International Treaties

3.2.1 Article 31 of the Vienna Convention

3.2.2 Article 32 of the Vienna Convention

3.3 Flexibilities contained in the Berne Convention

3.3.1 Copyright Limitations

3.3.1.1 Scope of Copyright Protection

3.3.1.2 Legislative Exclusion

3.3.1.3 Term of Copyright Protection

3.3.2 Copyright Exceptions

3.3.2.1 Permitted Uses

3.3.2.2 Compulsory Licensing

3.3.3 Special Provisions in favor of Developing Countries

3.4 Flexibilities contained in the TRIPS Agreement

3.4.1 Incorporation of Berne flexibilities

3.4.2 TRIPS three-step test

3.4.2.1 Certain special cases

3.4.2.2 Conflict with the normal exploitation of the work


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3.4.2.3 Unreasonable prejudice to the legitimate interests of the right holder

3.4.3 Transitional Period

3.4.3.1 One-year transitional period

3.4.3.2 Five-year transitional period

3.4.3.3 Eleven-year transitional period

3.5 Flexibilities contained in the WCT

3.5.1 Incorporation of Berne flexibilities

3.5.2 Out-of-reach issue: exhaustion of rights

3.6 Conclusion

4.1 Introduction

4.2 Contour of legislative advices to developing countries

4.3 Flexibilities in the Copyright Law of India

4.3.1 An outlook of the Copyright Law of India


4.3.2.1 Scope of Protection


4.3.2.3 Term of Protection




4.3.4 Use of flexibilities in favor of developing countries

4.4 Flexibilities in the Copyright Law of Brazil

4.4.1 An outlook of the Copyright Law of Brazil



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4.5 Flexibilities in the Copyright Law of Cambodia

4.5.1 An outlook of the Copyright Law of Cambodia









4.5.4.1 Use of Berne Special Provisions

4.5.4.2 Use of Transitional Period

4.6 Conclusion

5.1 Introduction

5.2 Dual Policy of Developed Countries towards Use of Flexibilities

5.3 Flexibilities in the Copyright Law of France

5.3.1 An outlook of the Copyright Law of France


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5.4 Flexibilities in the Copyright Law of the US

5.4.1 An outlook of the Copyright Law of the US








5.5 Flexibilities in the Copyright Law of Japan

5.5.1 An outlook of the Copyright Law of Japan








5.6 Conclusion


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