Gartner G2 Copyright and Digital Media in a post Napster World: International Supplement By The Berkman Center for Internet Society and GartnerG2 January 2005
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Table of contents 0. Introduction 1. Basic Frameworks Berne convention TRIPS WIPO treaties 2. EU Legislative and Regulatory Developments 9 European copyright framework EU legislative developments EU regulatory developments 3. Asia/Pacific Legislative and Regulatory Developments Copyright ecosystems in Asia/Pacific region Asia/Pacific legislative and regulatory developments Selected Asia/Pacific cases 9035990599 4. Legal Campaign Against Online Piracy. Context and background Actions against individual file-sharers 5. Conclusions 31 Evolution of national copyright regimes Driving forces of international harmonization Differences remain Effects on stakeholders 6. Contributors For The berkman Center For GartnerG2 wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 1 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 1 of 35 ' 0. Introduction.........................................................................................2 1. Basic Frameworks ..............................................................................4 Berne Convention ..................................................................................................4 TRIPS ....................................................................................................................6 WIPO treaties.........................................................................................................7 2. EU Legislative and Regulatory Developments...................................9 European copyright framework ..............................................................................9 EU legislative developments ................................................................................10 EU regulatory developments................................................................................13 Selected European cases ....................................................................................15 3. Asia/Pacific Legislative and Regulatory Developments ...................19 Copyright ecosystems in Asia/Pacific region........................................................19 Asia/Pacific legislative and regulatory developments ...........................................20 Selected Asia/Pacific cases .................................................................................25 4. Legal Campaign Against Online Piracy............................................29 Context and background ......................................................................................29 Actions against individual file-sharers ..................................................................29 5. Conclusions ......................................................................................31 Evolution of national copyright regimes................................................................31 Driving forces of international harmonization .......................................................31 Differences remain...............................................................................................32 Effects on stakeholders........................................................................................33 Steps ahead.........................................................................................................34 6. Contributors ......................................................................................35 For The Berkman Center .....................................................................................35 For GartnerG2......................................................................................................35
0 Introduction The foundational White Paper"Copyright and Digital Media in a Post-Napster World, by the Berkman Center for Internet Society and GartnerG2, explores a variety of issues surrounding the current digital media ecosystem. The White Paper examines gal and regulatory developments regarding copyright and related intellectual property(IP)issues, discusses existing business models upset by digital media distribution and emerging models newly possible, and analyzes shifts in consumer attitudes and behavior. However, the emphasis of the foundational White Paper is on the u.s. law and market This Supplement to the White Paper focuses on international legal issues. It considers developments regarding copyright and related rights in jurisdictions outside the United states against the backdrop of earlier Digital Media Project works that reviewed the interplay among law, technology and the busin ecosystem. In the se of this su threefole st, it offers a broad knowledge base about international gal issues and the emerging legal framework relating to nalog/offline to digitalonlin Second, it aims to provide a rough overview of the different paths and stages of evolution of the copyright ecosystems across three continents: Europe and the Asia/Pacific region including Australia Third, it seeks to inform stakeholders--users, rightholders, business executives, intermediaries, policymakers, etc about basic similarities as well as conceptual differences in global and U.S. digital media laws at a time when U.s based services are expanding to international markets. In Part 1, we start with a brief discussion of the basic international copyright framework and provide an overview of three sets of important copyright agreements: The Berne Convention, Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS)and the World Intellectual Property Organization ( WiPo) treaties 3Seehttp://cyber.law.harvard.edu/mediaforfurtherinformationabouttheDigitalmEdiaProject 4 The Berkman Center's ITunes Case Study explores the interactions between legal regimes and business models in greater detail See iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media, available a cyber law. harvard. edu/ media/tunes. a detailed study on online business models will soon be released by the Berkman r'sDigitalMediaProject(thestudywillbepostedathttpcyberlawharvardedu/media/publications, e.g.,itunesEurope:ApReliminaryAnalysisathttp://cyber.lawharvardedu/media/itunes_europe wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 2 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 2 of 35 %( ! The foundational White Paper “Copyright and Digital Media in a Post-Napster World,” 1 by the Berkman Center for Internet & Society and GartnerG2, explores a variety of issues surrounding the current digital media ecosystem. The White Paper examines legal and regulatory developments regarding copyright and related intellectual property (IP) issues, discusses existing business models upset by digital media distribution and emerging models newly possible, and analyzes shifts in consumer attitudes and behavior. However, the emphasis of the foundational White Paper is on the U.S. law and market. This Supplement to the White Paper focuses on international legal issues. 2 It considers developments regarding copyright and related rights in jurisdictions outside the United States against the backdrop of earlier Digital Media Project 3 works that reviewed the interplay among law, technology and the business ecosystem. 4 In essence, the purpose of this Supplement is threefold: • First, it offers a broad knowledge base about international legal issues and the emerging legal framework relating to the shift from analog/offline to digital/online media. • Second, it aims to provide a rough overview of the different paths and stages of evolution of the copyright ecosystems across three continents: Europe and the Asia/Pacific region, including Australia. • Third, it seeks to inform stakeholders—users, rightholders, business executives, intermediaries, policymakers, etc.— about basic similarities as well as conceptual differences in global and U.S. digital media laws at a time when U.S.- based services are expanding to international markets. 5 In Part 1, we start with a brief discussion of the basic international copyright framework and provide an overview of three sets of important copyright agreements: The Berne Convention, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the World Intellectual Property Organization (WIPO) treaties. 1 See http://cyber.law.harvard.edu/home/uploads/254/2003-05.pdf. 2 Last update: 30 December 2004. 3 See http://cyber.law.harvard.edu/media for further information about the Digital Media Project. 4 The Berkman Center’s iTunes Case Study explores the interactions between legal regimes and business models in greater detail. See “iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media,” available at http://cyber.law.harvard.edu/media/itunes. A detailed study on online business models will soon be released by the Berkman Center’s Digital Media Project (the study will be posted at http://cyber.law.harvard.edu/media/publications). 5 See, e.g., iTunes Europe: A Preliminary Analysis, at http://cyber.law.harvard.edu/media/itunes_europe.
Part 2 discusses the copyright framework in Europe as established by ht Directive and othe European Union(EU) legislation. In this context, we explore gislative and regulatory developments both at the EU and the EU member states level. A selection of cases from European countries illustrates the current state of "digital media law in action Part 3 reviews legislative and regulatory developments in the Asia/Pacific region and provides brief descriptions of the copyright laws in Australia, Singapore, Malaysia, China, Japan nd South Korea. In this context, we examine the impact of the international copyright treaties discussed in Part I. This section also provides an overview of actions taken against file-sharing Web sites and peer-to-peer(P2P) services in selected countries in the Asia/Pacific region Part 4 summarizes the legal campaign against online piracy, provides information about legal actions taken against individual file-sharers and briefly outlines current attempts to fight online piracy in coordinated operations across the world And finally, Part 5 offers some conclusions about how the legal landscape is evolving in response to the challenges and opportunities posed by digital media wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 3 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 3 of 35 Part 2 discusses the copyright framework in Europe as established by the European Copyright Directive and other European Union (EU) legislation. In this context, we explore legislative and regulatory developments both at the EU and the EU member states level. A selection of cases from European countries illustrates the current state of “digital media law in action.” Part 3 reviews legislative and regulatory developments in the Asia/Pacific region and provides brief descriptions of the copyright laws in Australia, Singapore, Malaysia, China, Japan and South Korea. In this context, we examine the impact of the international copyright treaties discussed in Part I. This section also provides an overview of actions taken against file-sharing Web sites and peer-to-peer (P2P) services in selected countries in the Asia/Pacific region. Part 4 summarizes the legal campaign against online piracy, provides information about legal actions taken against individual file-sharers and briefly outlines current attempts to fight online piracy in coordinated operations across the world. And finally, Part 5 offers some conclusions about how the legal landscape is evolving in response to the challenges and opportunities posed by digital media
1。 Basic Frameworks This section provides a rough overview of international agreements of particular importance to the still-evolving international copyright framework. Because they establish rights and responsibilities regarding intellectual property(IP)that signatory countries have agreed to implement internally, later sections will refer back to them A set of international treaties establish standards for copyright protection, such as the Berne Convention for the Protection of Literary and Artistic Rights; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the Universal Copyright Convention UCC): and-of increasing relevance--the Agreement on Trade- Related Aspects of Intellectual Property Rights(TRIPS).6 Recently, two other important international treaties entered into force: the World Intellectual Property Organization(WIPO) Copyright Treaty of 1996 and the WIPO Performances and Phonograms treaty of 1996. These treaties essentially reiterate the principles of the Berne Convention and the TRIPS Agreement, while adding provisions that address digital transmissions and technological protection measures To present some milestones in the evolution of the international legal framework, we begin our discussion with the Berne Convention, then present an overview of TRIPS, and finally conclude with the WiPo Treaties of 1996 Berne Convention The Berne Convention for the Protection of Literary and Artistic Works is an international copyright agreement that was adopted by an international conference in Berne, Switzerland, in 1886 The signatories of the berne Convention constitute a union for he protection of the rights of authors in their literary and artistic works, known as the"Berne Union The Berne Convention protects "literary and artistic works This expression includes a broad range of products. It covers, in essence, every production in the literary, scientific and artistic domain such as books, pamphlets and other writings; lectures, addresses. sermons and other works of the same nature: dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works and those created by analogous processes; works of drawing, painting, architecture, sculpture, engraving and lithography, photographic works and The interactions among these Treaties are complex. The baseline is that each Treaty creates a separate set of obligations, often between different parties. The provisions set forth in the Treaties are sometimes complementary, and sometimes similar(the thre step-test"for exceptions, for instance, can be found in several Treaties. However, important conceptual differences(e.g, with regard to enforcement of Treaty obligations) as well as differences in the substance of law (e.g, term of protection) remain. Seehttp://www.wipoint/clea/docs/en/wo/wo001en.ht Dumb shows are performances using gestures and body movements without words. wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. Page 4 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 4 of 35 )( !* + This section provides a rough overview of international agreements of particular importance to the still-evolving international copyright framework. Because they establish rights and responsibilities regarding intellectual property (IP) that signatory countries have agreed to implement internally, later sections will refer back to them. A set of international treaties establish standards for copyright protection, such as the Berne Convention for the Protection of Literary and Artistic Rights; the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; the Universal Copyright Convention (UCC); and—of increasing relevance—the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS). 6 Recently, two other important international treaties entered into force: the World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 and the WIPO Performances and Phonograms Treaty of 1996. These treaties essentially reiterate the principles of the Berne Convention and the TRIPS Agreement, while adding provisions that address digital transmissions and technological protection measures. To present some milestones in the evolution of the international legal framework, we begin our discussion with the Berne Convention, then present an overview of TRIPS, and finally conclude with the WIPO Treaties of 1996. , The Berne Convention 7 for the Protection of Literary and Artistic Works is an international copyright agreement that was adopted by an international conference in Berne, Switzerland, in 1886. The signatories of the Berne Convention constitute a union for the protection of the rights of authors in their literary and artistic works, known as the “Berne Union.” The Berne Convention protects “literary and artistic works.” This expression includes a broad range of products. It covers, in essence, every production in the literary, scientific and artistic domain such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show 8 ; musical compositions with or without words; cinematographic works and those created by analogous processes; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works and 6 The interactions among these Treaties are complex. The baseline is that each Treaty creates a separate set of obligations, often between different parties. The provisions set forth in the Treaties are sometimes complementary, and sometimes similar (the “threestep-test” for exceptions, for instance, can be found in several Treaties.) However, important conceptual differences (e.g., with regard to enforcement of Treaty obligations) as well as differences in the substance of law (e.g., term of protection) remain. 7 See http://www.wipo.int/clea/docs/en/wo/wo001en.htm. 8 Dumb shows are performances using gestures and body movements without words.