EVE GRAY & PRIA CHETTY28 SEPTEMBER 2009

Implications of IP Over Protectionism

Global Stage

o Towards an Information Societyo Developments in IP & Digital Domain

o Technology Protectionism (DRM) (TPM)o IP Policy Protectionism (TRIPS) (WCT) (WPPT)

o Development oriented responseso Criticism of DRMo Doha Declaration o Development Agenda

o Back Home/ ACA2K Project o ACA2K Project Outcomes

A Digital Age

The Dream of an Information Society

o “We declare our common desire and commitment to build a people-centred, inclusive and development oriented Information Society, where everyone can create, access, utilize and share information and knowledge, enabling individuals, communities and peoples to achieve their full potential in promoting their sustainable development and improving their quality of life, premised on the purposes and principles of the Charter of the United Nations and respecting fully and upholding the Universal Declaration of Human Rights...”

World Summit on Information Society, Declaration of Principles, Document WSIS-03/GENEVA/DOC/4-E, 12 December 2003, Para 1.

Threats to Information Society (Developing Countries)

o Practically Dealing with Divide & Effective Use of ICTo Policy Framework Appropriate balance: incentives and social

benefits & public domaino IP on Internet Presents opportunities & challenges – ease of

reproduction and distributiono Increased Protection Technology (limit or block access,

monitor and record use of works) Law (expansion of subject matter, rights and term of protection, increased enforcement)

TECHNOLOGY

Deciding on DRM

o Rights holders determine how rights are enforced (Licence)o Negatives for consumers iro access and usage restrictionso TPMs control copying, printing and altering post access

International Legal Framework

o 1996 WIPO Internet Treaties (in force 2002) (60 countries)o WIPO Copyright Treaty (WCT)o WIPO Performers & Phonograms Treaty (WPPT)o 3 main developments:

o Copyright extends to digital environmento TPMs may be used to control accesso Prohibition on circumvention of TPMs and remedies increase control

over content on internet.o Signatories are bound to obligations however flexibilities are

allowedo Different interpretation of TPMs & legal protection (and which laws)o Exceptions may be appliedo South Africa is signatory to both the WIPO Copyright Treaty (WCT) and

the WIPO Performances and Phonograms Treaty (WPPT) of 1996. However, has not implemented the provisions.

International Legal Framework

o Trade Related Aspects of Intellectual Property (TRIPS) (1994)o Term of protectiono Automatic copyright o Exceptions to copyright limited (3 step test)

o As a WTO member, South Africa is a party to the TRIPS Agreement.

o WTO Statement Doha Declaration (TRIPS interpreted in light of promotion of access to medicine)

o WIPO adopted Development Agenda (45 recommendations on IP and development) 2007

Back Home/ ACA2K

o Education - Learning Materials (Knowledge) – Copyrighto ACA2K Project probes the relationship between South

Africa’s copyright environment on the one hand and access to learning materials on the other hand ( 7 other countries)

o Hypotheses:o The South African copyright environment does not maximise effective

access to learning materials. o The South African copyright environment can be changed to maximise

effective access to learning materials.

Back Home/ ACA2K

o Copyright Act does not make use of most flexibilities contained in TRIPS

o Copyright Act does not permit the scanning, translation, adaptation or conversion of works for the sensory disabled in the absence of permission from the copyright holder

o No clarity on fair dealing of digitised works undermines ICT developments (technology and law)

o Anti-circumvention of DRM provisions in ECT Act may over-ride fair dealing provisions of Copyright Act

o Government funded research is not in public domain (IPR Bill)o No provisions for orphan works o Reasonable portion iro education exceptions is unclearo Does not facilitate distance learning (1 copy & not on behalf of)