Background Resources Commentary
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1. The underlying premise of the intellectual property (IP) system is to provide recognition and rewards associated with ownership of inventions and creative works, so as to stimulate further inventive and creative activity for social, cultural and economic growth. As noted copyright scholar Professor William Cornish has said, “Copyright will remain because it provides necessary protection for the investment of intellectual effort and capital in material which is not produced in order to be freely shared”¹, and because cultural creations are highly valued by society. Copyright achieves this by careful balancing of the scope of private economic rights as against limitations on those rights established in the public interest. The rights granted by copyright (such as the economic right to control reproduction of the work, its adaptation and distribution etc., and moral rights to be attributed as the author and to maintain the integrity of the work) are conferred by virtue of authorship status alone, provided the works created meet the requisite threshold of creativity or originality in national law.

2. There is ongoing debate over whether copyright protection adequately accommodates the increasingly collaborative nature of some creative processes. Artists, including painters, sculptors and authors are inspired by artists who precede them, and many works reference, borrow or source from earlier works. Conflict arises because what is inspiration to one person may be plagiarism to another. For example, when is the use of indigenous communities’ traditional cultural materials legitimate inspiration, and when is it inappropriate adaptation and copying? Consider the case of Deep Forest - popular “world music” that combined contemporary ambient music with recordings of traditional musical performances published by UNESCO², though - in the case of the song Sweet Lullaby apparently misattributing their cultural source; this in turn inspired musicians such as Jan Garbarek, but recognition of the valuable cultural heritage of the Baegu people seemed to be lost. ³. Or Andy Warhol, whose famous images of the Campbell Soup can are exhibited in major art galleries worldwide.

How should rights under copyright function in collaborative creative processes, and how will future creativity be affected? Formulating appropriate responses is the task of national governments, who implement copyright policies responsive to national cultural, social and economic needs, and in judicial interpretation of those policies. At the international level, debate focuses on the need for guiding principles to help governments carry out this task responsibly and sustainably.

3. The words “free” and “freedom” have many different connotations in discussions relating to the Information Society: free access, free of charge, free of legal or technical restriction, freedom to create, freedom to share (freedom not to share). Democratic societies are founded on freedom of expression, including freedom of the press, and copyright plays an important role in sustaining these democratic freedoms. In exchange for valuable rights, copyright holders contribute to free flow of information in society, stimulating research and education, facilitating criticism and news reporting. Indeed, the laws of many countries impose limitations on copyright to permit uses of a work for purposes of news reporting and criticism and review.

Moreover, freedom of expression means more than the freedom to express one’s thoughts. Copyright provides a right to be acknowledged as the author of that expression: this is recognized as the moral right to be identified as the author (the right of paternity), and the right against false attribution of a work.

Access to information is recognized as key in the WSIS Declaration of Principles: “The ability for all to access and contribute information, ideas and knowledge is essential in an inclusive Information Society.”⁴ At the same time as IP laws grant individuals rights over their works, they also stimulate production of knowledge by permitting authors to earn a livelihood from their creativity and to choose how to share their ideas with the public. Copyright laws, for example, enable developers of open source software to be identified as the author of their original code, and to provide contractually that any future uses of their work are consistent with open source principles. Among the numerous licensing options available to copyright holders, both the Creative Commons⁵ and the GNU Public License⁶ rely upon copyright for their applicability. While copyright grants authors rights over their work, it largely leaves the choice of how to exercise those rights up to the individual (at one end of the spectrum, to reserve all rights or, at the other end, to dedicate all transferable rights in the work to the public domain). Most copyright laws (and particularly in Continental legal systems) provide that some rights, such as the “moral right” to be acknowledged as the creator or performer, are non-transferable. This is designed to maintain the author’s personal connection to the work and to protect authors from unreasonable commercial exploitation, and is a reflection of the cultural value given to authorship.

Intertwined with freedom of expression, respect and recognition of the contribution of creators and promotion of the value of cultural diversity – these moral rights mean that a creator can be assured due acknowledgement as the creator of a work, and a right to have a say in how its integrity is preserved. Such respect for the creator can help promote confidence and encourage the dissemination of their creative expression and the expression of their ideas. When it is applied to expressions of folklore (as in the WPPT), it opens up the prospect of the contribution of diverse cultural communities to global cultural exchange, on the basis of mutual respect and recognition.

4. The IP system, and copyright in particular, helps to preserve cultural diversity in an increasingly globalized environment. Whereas the Internet began its development in the Anglo-American countries, by September 2004, some 64.8% of the online population was non-English-speaking,⁷ and a similar shift is occurring in the availability of non-English content online. Local copyright protection can help inspire, promote and protect national creativity, and strengthen diverse sources of content against cultural homogenization. The demand for diverse ethnic creative content has never been higher – ‘cross-over’ films and music, for example, from Bollywood to World Music, are satisfying this demand both on and offline.

5. There is also currently debate as to whether the duration of copyright protection is appropriate to meet the goals of the copyright system and the needs of the Information Society, including preservation and promotion of cultural diversity. The Berne Convention provides a minimum term of copyright protection of the life of the author plus 50 years after his or her death⁸, however governments may increase this term in national copyright law to suit local conditions. The duration of protection also varies depending upon the nature of the work, the date of its creation and the type of right in question.⁹ The EU Copyright Directive, implementing the WIPO Copyright Treaty (WCT), extended the term of authors’ protection in the European Union to 70 years.¹⁰ In the United States, the Sonny Bono Copyright Term Extension Act of 1998¹¹ extended copyright for authors to 70 years after their death, and to between 75 and 95 years for works of corporate authorship. The US Act is sometimes referred to as the “Mickey Mouse Act” because, without its passage, the Walt Disney Company’s animated character would have entered the public domain between 2000 and 2004. There is debate as to whether the extension of copyright duration is in the public interest, or is economically justifiable under copyright principles – however, it could also be argued that the restricted use of dominant cultural products, such as Mickey, promotes the development of diverse, localized and more traditional expressions of creativity. Similarly, it is noted that the unauthorized music most frequently downloaded in developing countries is the product of celebrity, often American, artists, and that this has a detrimental effect on the viability of indigenous musical artists both locally and internationally. In the field of software, copyright and patent protection may act to prevent any one operating system from becoming a de facto standard.

6. To the extent that copyright law promotes creativity, it also enhances economic growth and welfare. While copyright is not synonymous with economic progress – economic growth has taken place in periods of history and in countries where IP protection was not available – adoption of copyright law has been part of democratic transformations in society, creating opportunities that have best been realized in market economies. There is an open question whether viable alternatives to copyright exist to perform this function – certainly other systems of reward that do not operate on the basis of exclusivity may also promote creativity and novelty, but their long-term sustainability is unknown. It seems difficult to develop a strategic investment plan based on a system with incentives that stop at the point where the product is delivered. It may be technology could provide solutions that meet the same goals as copyright – although perhaps only in the short-term. In Alvin Toffler’s Third Wave, licences will be delivered by machines and creators will be rewarded by consumers on the basis of an ethical attitude – but would an honor system really work in the future? Alternative systems lack predictability, credibility and have unclear links to social values – all of which are inherent characteristics of copyright.



Questions to Consider

• What are the best means to promote diversity of, access to, and use of knowledge in the Information Society?
• Do IP rights, or exceptions to those rights (or both), provide guarantees of freedom of expression?
• How does the moral right, the right to be acknowledged as creator or performer, strengthen respect for cultural diversity?
• Does the IP system accommodate emerging forms of creativity (e.g., artistic sampling and remix)?
• What is the best means to reward and provide an incentive to creators and artists?
• What does the “free flow of information” mean in the Information Society?
• How can we reconcile private exclusive IP rights, and the role they play in fostering innovation, with the free sharing of information in the Information Society?
• What motivations and stimuli outside the IP system would promote diversity and access to information – and would these be economically viable?
• Is there an alternative to the IP system that could sustain the production costs of valuable information?

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1 William Cornish & David Llewelyn, Intellectual Property: Patents, Copyright and Trade Marks and Allied Rights (5^th ed., Sweet & Maxwell, 2003), at p. 373.

2 United Nations Educational Scientific and Cultural Organization (UNESCO).

3 Steven Feld, “A Sweet Lullaby for World Music” Deep in the Jungle (2001).

4 WSIS Declaration of Principles – B(3) at para 24.

5 http://www.creativecommons.org

6 http://www.gnu.org/copyleft/gpl.html

7 Source - Global Reach, Global Internet Statistics (2004).

8 Article 7 of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of July 24, 1972 as amended on September 28, 1979).

9 For a description of various national copyright terms, see The Online Books Page Frequently Asked Questions.

10 Directive 2001/29/EC of the European Parliament and of the Council
of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the Information Society.

11 The Sonny Bono Copyright Term Extension Act, 1998 (Public Law 105-298). (Adobe PDF)