1. 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

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

3. 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

4. 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)

5. 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)

6. 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

7. 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

8. 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

9. 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

10. 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)

11. 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

12. 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).

13. 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.

14. 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

15. 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.

16. 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

17. 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

18. Contact Christoph Spennemann Legal Expert Intellectual Property Team
Division on Investment and Enterprise (DIAE)
UNCTAD
Tel: ++41 (0)
Fax: ++41 (0)