Christoph Spennemann, Legal Expert Basic Features of the Multilateral Copyright System Development Dimensions of Intellectual Property Rights Hanoi Foreign Trade University, 15 & 16 December 2008 Christoph Spennemann, Legal Expert Intellectual Property Team Division on Investment and Enterprise UNCTAD

Overview of presentation The Berne/TRIPS Framework on Copyright Copyright basic principles The WIPO « Internet Treaties » Conclusions

The Berne/TRIPS Framework on Copyright (1) Berne Convention (BC) for the Protection of Literary and Artistic Works (1886) Lays foundations of international copyright law Establishes basic principles protectable subject matter term of protection conditions of protection scope of protection rights under copyright limitations & exceptions

The Berne/TRIPS Framework on Copyright (2) TRIPS Agreement (1994/95) Makes BC mandatory for all WTO Members Even those that are not Parties to the BC Clarifies that computer programs & databases shall be protectable as literary works Introduces rights to commercial rental after first sale Makes copyright-related rights mandatory (performers, producers of phonograms; broadcasting organizations optional)

Copyright basic principles (1) Copyright provides authors exclusive rights in literary & artistic works (Art 14 IP Law Vietnam) E.g. books, teaching courses, lectures, musical works, dramatic works, art works, works of architecture, folklore works, computer programs, etc. Traditional exclusion/national laws: scientific theories Optional exclusion: political speeches (Art 2bis(1) BC) Other creators are also provided certain rights (« related rights ») (Art 17 IP Law) performers of copyrighted works producers of phonograms broadcasting organizations (optional under TRIPS)

Copyright basic principles (2) The term of protection of copyright is life of author + 50 yrs Longer in some countries (EU, US: life of author + 70 yrs) Shorter in Vietnam for cinematographic works, photographic works, dramatic works, works of applied art, anonymous works: 50 yrs from date of publication (Arts 7 BC, 27 IP Law) Article 27 Vietnamese Law on Intellectual Property, implementing Article 7 of the Berne Convention

Copyright basic principles (3) Conditions of copyright protection Personal creation, originality (-) e.g. in catalogues, price lists, address books Intellectual labor (= no copying of others’ works) No application & registration required Option to require fixation of work Scope of copyright protection Personal expression of an idea Not the idea as such Importance of ideas for follow-on creativity Art 14.3 IP Law

Copyright basic principles (4) Rights under copyright Moral right (to be associated with work; to preserve integrity of work) Economic rights (Art 20 IP Law) Make derivative works Display work to public Reproduce work Distribute & import work (import optional under TRIPS) Communicate work to public (also Internet) Lease cinematographic works & computer programs

Copyright basic principles (5) BC exceptions to copyright Case-specific legal proceedings uses by the press of public lectures right to make quotations (mandatory) teaching exceptions to broadcasting & public communication General exception to reproduction right

Copyright basic principles (6) General exception to reproduction right: « three-step test (3ST)», Art 9.2 BC limited to certain special cases (step 1) No conflict with normal exploitation of work (step 2) No unreasonable prejudice to author’s legitimate interests (step 3)

Copyright basic principles (7) TRIPS Agreement (Art 13) extends BC three-step test to other copyrights and related rights E.g. right of public communication may be limited, provided 3 steps are met WTO Panel in US-Copyright: Art 13 (3ST) applies also to BC case-specific exceptions 3ST and specific BC exceptions address different situations  justification under either one

The WIPO « Internet Treaties » WIPO Copyright Treaty (WCT), 1996 WIPO Performances and Phonograms Treaty (WPPT), 1996 Objective: to adapt international copyright to digital environment Vietnam not Party But digital copyright protection provided under 2005 IP Law Articles 4.10; 20.1(e); 29.3(d); 30.1(b); 31.1(d).

WCT and WPPT basics (1) Preambles refer to need to maintain balance between rights of copyright & related rights holders and the larger public interest, particularly education, research & access to information, as reflected in BC Extend authors’, performers’ and producers’ rights to the Internet, in particular Right of communication to the public Right of reproduction Art 8 WCT; 10, 14 WPPT (public communication); Art 10 WCT; 16 WPPT; Agreed Statements concerning Art 1(4) WCT and 7, 11, 16 WPPT.

WCT and WPPT basics (2) Authorizes Parties to apply BC limitations & exceptions (L&Es) in digital environment Subject to 3ST! Authorizes Parties to devise new L&Es as appropriate in digital environment

WCT and WPPT basics (3) Parties must provide adequate legal protection & effective legal remedies against circumvention of technological protection measures (TPMs) used by authors, performers & producers to restrict acts that are Not authorized by rights holders, or Not permitted under domestic law Art 12 WCT; 18 WPPT.

WCT and WPPT basics (4) Parties must provide adequate legal protection & effective legal remedies against Removal from protected works of information on electronic rights management (ERM) (i.e. identity of author & work; terms & conditions of use) Distribution/broadcasting/public communication of works knowing that ERM information has been removed/altered Objective: prevent activities that will induce, enable, facilitate or conceal infringement of digital copyrights/related rights

Conclusion Berne Convention (BC) establishes the basic principles of copyright TRIPS Agreement makes BC mandatory for all WTO Members makes certain related rights (performers & producers) mandatory WIPO Internet Treaties extend copyright & related rights into digital environment, emphasizing need to strike balance between rights holders and public interest

Contact Christoph Spennemann Legal Expert Intellectual Property Team Division on Investment and Enterprise (DIAE) UNCTAD E-mail: Christoph.Spennemann@unctad.org Tel: ++41 (0) 22 917 59 99 Fax: ++41 (0) 22 917 01 94 http://www.unctad.org/tot-ip