Proposed Dissertation:: Access Routes For The Poor

Nagoya University Graduate School of Law
Handout for CDS Presentation LL.D Candidate: KORK Boren

February 25, 2010 Academic Advisor: SUZUKI Masabumi
Proposed Dissertation:
ACCESS ROUTES FOR THE POOR
TO KNOWLEDGE TREASURED IN THE INTERNATIONAL COPYRIGHT JUNGLE
1. RESEARCH MOTIVE
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).

1
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 (Robert
P. Merges & Jane C. Ginsburg ed., 2004).

5 PAUL GOLDSTEIN, supra note 1, at 160.
2
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 interpretation
and administrative measures.
7 In this dissertation, I classify countries into only developed and developing ones, meaning if they are not yet
developed, 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.
3
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.
2. RESEARCH PROBLEM
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
8 See Hong Xue, What direction is the wind blowing? in THE DEVELOPMENT AGENDA, GLOBAL
INTELLECTUAL PROPERTY AND DEVELOPING COUNTRIES (Neil Weinstock Netanel ed., 2009).
9 See Proposal by Chile on the Subject “Exceptions and Limitations to Copyright and Related Rights, WIPO
Standing 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"
10 See Proposal by Mexico Relating to Article 10 “Limitations and Exceptions”, WIPO Standing Committee on
Copyright and Related Rights, SCCR/S2/4, June 19, 2007, at

"http://www.wipo.int/edocs/mdocs/copyright/en/sccr_s2/sccr_s2_4.doc"
11 See Proposal by Brazil, Chile, Nicaragua and Uruguay for Work related to Exceptions and Limitations, WIPO
Standing 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"
4
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.
3. RESEARCH OBJECTIVE AND METHODOLOGY
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
12 See Proposal by Brazil, Ecuador and Paraguay, relating to Limitations and Exceptions: Treaty proposed by the
World 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"
13 See William 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.
5
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.
6
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.
4. RESEARCH BOUNDARIES
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
7
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 author’s 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 author’s 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.
8
OUTLINE
CHAPTER 1- INTRODUCTION: FLEXIBILITIES IN THE RIGIDITY
1.1 Research Motive
1.2 Research Problem
1.3 Research Objective and Methodology
1.4 Research Boundaries
CHAPTER 2 - DIRECTION OF THE WIND: FROM THE WEST TO THE EAST
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
9
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
CHAPTER 3 - INTERNATIONAL COPYRIGHT INSTRUMENTS: RIGID BUT FLEXIBLE
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
10
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
CHAPTER 4 - LESS POWERFUL COUNTRIES AND FLEXIBILITIES:
A PRACTICE OF UNDER-USE
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
11
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
CHAPTER 5 - MORE POWERFUL COUNTRIES AND FLEXIBILITIES:
A LESSON TO BE LEARNT
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
12
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
13
CHAPTER 6 - CONCLUSION: POLICY RECOMMENDATIONS
14

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Nagoya University Graduate School of Law

Handout for CDS Presentation LL.D Candidate: KORK Boren

ACCESS ROUTES FOR THE POOR

TO KNOWLEDGE TREASURED IN THE INTERNATIONAL COPYRIGHT JUNGLE

essential questions within the copyright paradigm.

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

P. Merges & Jane C. Ginsburg ed., 2004).

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

Property Organization (hereinafter the WIPO).

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

Committee on Copyright and Related Rights.11

Standing Committee on Copyright and Related Rights, SCCR/12/3, November 2, 2004, at

Copyright and Related Rights, SCCR/S2/4, June 19, 2007, at

discuss any instrument on this matter.13

international copyright norms regarding limitations and exceptions.

3. RESEARCH OBJECTIVE AND METHODOLOGY

the research will build up four supportive arguments.

Intellectual Property Watch, 30 May 2009, at "http://www.ip-watch.org/weblog/2009/05/30/wipo-limitations-

international copyright treaties.

those flexibilities into their own copyright laws.

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

the provisions of the TRIPS Agreement in 2004.

regarded as the most powerful and influential negotiator of Asia.

CHAPTER 1- INTRODUCTION: FLEXIBILITIES IN THE RIGIDITY

1.1 Research Motive

1.2 Research Problem

1.3 Research Objective and Methodology

1.4 Research Boundaries

CHAPTER 2 - DIRECTION OF THE WIND: FROM THE WEST TO THE EAST

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

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

CHAPTER 3 - INTERNATIONAL COPYRIGHT INSTRUMENTS: RIGID BUT FLEXIBLE

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