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Comparative Analysis of National Approaches on Voluntary Copyright Relinquishment

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Comparative Analysis of National Approaches on Voluntary Copyright Relinquishment Comparative analysis of national approaches on voluntary copyright relinquishment Article (Published Version) Guadamuz, Andres (2014) Comparative analysis of national approaches on voluntary copyright relinquishment. Committee on Development and Intellectual Property (CDIP): Thirteenth Session. This version is available from Sussex Research Online: http://sro.sussex.ac.uk/id/eprint/49154/ This document is made available in accordance with publisher policies and may differ from the published version or from the version of record. If you wish to cite this item you are advised to consult the publisher’s version. Please see the URL above for details on accessing the published version. Copyright and reuse: Sussex Research Online is a digital repository of the research output of the University. Copyright and all moral rights to the version of the paper presented here belong to the individual author(s) and/or other copyright owners. To the extent reasonable and practicable, the material made available in SRO has been checked for eligibility before being made available. Copies of full text items generally can be reproduced, displayed or performed and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. http://sro.sussex.ac.uk E CDIP/13/INF/10 ORIGINAL: ENGLISH DATE: APRIL 14, 2014 Committee on Development and Intellectual Property (CDIP) Thirteenth Session Geneva, May 19 to 23, 2014 COMPARATIVE ANALYSIS OF NATIONAL APPROACHES ON VOLUNTARY COPYRIGHT RELINQUISHMENT prepared by Dr. Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex, United Kingdom1 1. The Committee on Development and Intellectual Property (CDIP), at its ninth session held in May 2012, discussed the document entitled “Scenarios and Possible Options Concerning Recommendations 1(c), 1(f) and 2(a) of the Scoping Study on Copyright and Related Rights and the Public Domain” (CDIP/9/INF/2). With respect to Recommendation 1(c), proposed Terms of Reference for a Comparative Study on Copyright Relinquishment would be submitted to the next session of the Committee. 2. The Committee discussed the said Terms of Reference (CDIP/10/14) at its tenth session held in November 2012 and requested the Secretariat to proceed with the Study, taking into account Member States’ comments. 3. Accordingly, the Annex to this document contains a Comparative Analysis of National Approaches on Voluntary Copyright Relinquishment, prepared by Dr. Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex, United Kingdom. 4. The CDIP is invited to take note of the information contained in the Annex to this document. [Annex follows] 1 The views expressed in this study are those of the author and do not necessarily reflect those of the WIPO Secretariat or any of the Organization’s Member States. CDIP/13/INF/10 ANNEX TABLE OF CONTENTS Executive Summary ............................................................................................................................... 2 1. Introduction ....................................................................................................................................... 4 2. Background to the issue of voluntary copyright relinquishment ...................................................... 5 2.1 The nature of copyright ............................................................................................................... 5 2.2 The public domain ....................................................................................................................... 7 2.3 Issues with copyright relinquishment ........................................................................................ 10 3. Survey of National Legislation and Jurisprudence on Voluntary Copyright Relinquishment .......... 15 3.1 Brazil .......................................................................................................................................... 15 3.2 Chile ........................................................................................................................................... 16 3.3 China .......................................................................................................................................... 17 3.4 Colombia .................................................................................................................................... 17 3.5 Egypt .......................................................................................................................................... 18 3.6 France ........................................................................................................................................ 19 3.7 India ........................................................................................................................................... 20 3.8 Kenya ......................................................................................................................................... 21 3.9 Republic of Korea ....................................................................................................................... 22 4. The practical elements of copyright relinquishment ....................................................................... 23 4.1 Licensing .................................................................................................................................... 23 4.1 Examples of copyright relinquishment ...................................................................................... 26 5. Conclusions ...................................................................................................................................... 30 Bibliography ......................................................................................................................................... 32 Appendix ………………………………………………………………………………………………………………………………………. 36 CDIP/13/INF/10 Annex, page 2 EXECUTIVE SUMMARY This report is the result of the ongoing work of the Committee on Development and Intellectual Property (CDIP), specifically arising from a report analyzing the different aspects of copyright and the public domain written by Professor Séverine Dusollier (CDIP/4/3/REV./STUDY/INF/1). As a result of the issues raised in that report, the World Intellectual Property Organization (WIPO) commissioned the present study to ascertain the legal issues surrounding the renouncement of copyright. The report considers first the question of how copyright is justified, as this may have some bearing on whether a country will allow an author to make a voluntary statement leading to the expiration of his/her rights. Copyright can variously be described as a natural right, as a reward for creators, as a stimulus for creativity, as a property right, as an economic reward and as part of the public interest. Two justifications are explored, the moral and the utilitarian. The moral justification places the existence of intellectual property as a natural result of the right of the creator to anything he or she produces. The moral element of copyright has given way to the economic one, but the existence of moral rights, particularly important in civil law jurisdictions, continues to strongly represent the elements of copyright as a personality right. On the other hand, the utilitarian justification for copyright can usually be characterized as one that states that such protection exists with the utilitarian purpose of encouraging creation by rewarding authors and inventors with the means of recuperating their investments. Where such a philosophy is prevalent, the economic rights will usually be more important. This report then explores the issue of the public domain from both negative and positive perspectives, namely, whether one can see the public domain as the absence of copyright, or if it should be seen as something not only that should be strived for and protected, but also as a place into which copyright owners can voluntarily place their works, if they so desire. This dichotomy lies at the heart of the question of copyright relinquishment.2 If one considers copyright simply as a right that can be disposed of as the author or owner sees fit, then it would be logical to expect that rights holders can dispose of their own property in whichever manner they see fit, including the possibility of unilaterally renouncing that property. The problem is that the law is not harmonized in this respect. In many jurisdictions it is not permissible to do so, while some other jurisdictions contain provisions that allow it, as is considered in detail in the second section of the report. The reason for this lack of clarity arises in great part from the very nature of copyright and the public domain that has been discussed in previous paragraphs. If copyright were an economic right more akin to traditional property, then it should be possible for owners to rent, sell or even give up those rights. If on the other hand, copyright were more like an inalienable right of personality, then giving it up would be impossible, just as it is not possible to renounce human rights. Moral rights are seen as the biggest stumbling block for any sort of declaration of works into the public domain. While there are
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