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How Developing Countries Can Manage Intellectual Property Rights to Maximize Access to Knowledge

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How Developing Countries Can Manage Intellectual Property Rights to Maximize Access to Knowledge HOW DEVELOPING COUNTRIES CAN MANAGE INTELLECTUAL PROPERTY RIGHTS TO MAXIMIZE ACCESS TO KNOWLEDGE Edited by Xuan Li and Carlos Correa February 2009 THE SOUTH CENTRE In August 1995, the South Centre was established as a permanent inter-Governmental organization of developing countries. In pursuing its objectives of promoting South solidarity, South-South cooperation, and coordinated participation by developing countries in international forums, the South Centre has full intellectual independence. It prepares, publishes and distributes information, strategic analyses and recommendations on international economic, social and political matters of concern to the South. For detailed information about the South Centre see its website www.southcentre.org The South Centre enjoys support and cooperation from the governments of the countries of the South and is in regular working contact with the Non-Aligned Movement and the Group of 77 and China. The Centre’s studies and position papers are prepared by drawing on the technical and intellectual capacities existing within South governments and institutions and among individuals of the South. Through working group sessions and wide consultations which involve experts from different parts of the South, and sometimes from the North, common problems of the South are studied and experience and knowledge are shared. This South Perspectives series comprises authored policy papers and analyses on key issues facing developing countries in multilateral discussions and negotiations and on which they need to develop appropriate joint policy responses. It is hoped that the publications will also assist developing country governments in formulating the associated domestic policies which would further their development objectives. How Developing Countries Can Manage Intellectual Property Rights to Maximize Access to Knowledge was first published in February 2009 by the South Centre. Reproduction of all or part of this publication for educational or other non-commercial purposes is authorized without prior written permission from the copyright holder provided that the source is fully acknowledged and any alterations to its integrity are indicated. Reproduction of this publication for resale or other commercial purposes is prohibited without prior consent of the copyright holder. South Centre, POB 228, Chemin du Champ d'Anier 17, 1211 Geneva 19, Switzerland. © South Centre, 2009 ISBN 978-92-9162-035-7 Paperback HOW DEVELOPING C OUNTRIES C AN MANAGE INTELLECTUAL PROPERTY R IGHTS TO MAXIMIZE A CCESS TO KNOWLEDGE TABLE OF CONTENTS PREFACE .............................................................................. ix PART ONE NEW C HALLENGES TO A CCESS TO KNOWLEDGE Chapter I Intellectual Property, Norms, Common Goods and the Responsibility of Public Authorities Xuan Li.......................... 1 I.1 Introduction ......................................................................... 1 I.2 The Nature of IP and the Justification of IP Regimes............................................................................... 2 I.3 The Trend of IP Regimes and the Shrinking Public Domain .................................................................... 4 I.4 Responsibilities of Public Authorities ............................... 7 I.5 Conclusion........................................................................... 8 Chapter II The Threat of Technological Protection Measures to a Development-Oriented Information Society Viviana Muñoz Tellez ..................................................................... 11 II.1 Introduction ......................................................................... 11 II.2 Understanding Digital Rights Management...................... 14 iv II.3 The International Legal Framework for Copyright in the Digital Age .............................................. 15 The WIPO Internet Treaties................................................ 16 Implementation WCT and WPPT DRM-related obligations in National Laws.............................................. 18 II.4 Crafting Adequate Policy Responses to Copyright Challenges in the Digital Environment.............................. 21 II.5 Conclusion........................................................................... 23 Chapter III Intellectual Property, Standards, and Anti-Competitive Concerns: Trends, Challenges and Strategic Considerations Xuan Li ............................................................................................ 27 III.1 Introduction........................................................................ 27 III.2 How is a standard created? ............................................... 30 III.3 Conflicts between IP and Standards................................. 33 III.4 Current Practices Governing IP Rights in Standards ...... 35 III.5 The Challenge of IP in Standards: Anti-Competitive Concerns ............................................ 40 Problems with Current Solutions.................................... 40 Anti-Competitive Case Studies........................................ 43 DVD Manufacturing ........................................................ 45 Anti-Competitive Impact ................................................. 46 III.6 The Role of Government .................................................. 47 III.7 Conclusion ......................................................................... 51 PART TWO DEVELOPMENTS IN MULTILATERAL FORUMS Chapter IV The Proposed WIPO treaty on the protection of Broadcasting and Cablecasting Organizations Viviana Muñoz Tellez ......... 55 IV.1 Introduction ....................................................................... 55 IV.2 The New Broadcasting Landscape................................... 58 IV.3 A Development Analysis of the Proposed Treaty........... 59 The Treaty Beneficiaries ................................................. 60 Implementing a Signal-based Approach to Protection . 61 v IV.4 Technological Protection Measures and Enforcement ... 64 IV.5 Limitations and Exceptions .............................................. 66 IV.6 Conclusion ......................................................................... 67 Chapter V Multilateral Efforts to Extend Copyright Limitations and Exceptions Viviana Muñoz Tellez............................................... 69 V.1 Introduction ......................................................................... 69 V.2 Discussions at the WIPO on Limitations and Exceptions to Copyright...................................................... 71 Exceptions and Limitations Formally on the SCCR Agenda ...................................................................... 76 V.3 Evaluating the Need for Minimum International Exceptions and Limitations ................................................ 80 The Process for Future Work on Limitations and Exceptions at WIPO ............................................................ 82 V.4 Conclusion........................................................................... 83 PART THREE THE WAY FORWARD Chapter VI Open Access Models for Increased Access to Education and Research Viviana Muñoz Tellez.......................................... 89 VI.1 Introduction ....................................................................... 89 VI.2 Addressing Access Barriers.............................................. 91 VI.3 Open Access Initiatives .................................................... 93 Open-Access Licensing ....................................................... 93 Open-Access Literature....................................................... 94 VI.4 The Open Access Model and the Multilateral Debate.... 97 VI.5 Conclusion.........................................................................100 Chapter VII A Comprehensive Framework for Copyright Protection and Access to Knowledge: From a Brazilian Perspective and Beyond Pedro Paranaguá..........................................................103 vi VII.1 Introduction ......................................................................103 VII.2 The Brazilian National Copyright Forum ......................106 VII.3 Recommendations for Developing Countries................107 Minimum Term of Protection..............................................107 Parallel Importation............................................................110 Idea-expression Dichotomy ...............................................111 Educational Purposes .........................................................111 Exceptions to Quotation......................................................112 Official Texts and their Translations .................................113 Political Speeches and Judicial Proceedings....................114 Databases.............................................................................114 Private Copying...................................................................115 Libraries and Archives........................................................116 The Visually and Hearing Impaired...................................117 Fair Use-like Clause ...........................................................117 Technological Protection Measures - TPMs .....................118 Incidental and Transient Copying......................................120 Format Shifting and Interoperability .................................121 Compulsory Licences ..........................................................121 VII.4 Conclusion........................................................................122
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