EDWARD HUMPHREYS (ed.) International Copyright and Intellectual Property Law Challenges for Media Content Producers Media Management and Transformation Centre Jönkoping International Business School P.O. Box 1026 SE-551 11 Jönköping Sweden Tel. + 46 36 15 77 00 E-mail: [email protected] www.jibs.se International Copyright and Intellectual Property Law: Challenges for Media Content Producers JIBS Research Report Series No. 2008-2 Research Report © Edward Humphreys and Jönköping International Business School 2008 Individual Chapters © the respective contributors 2008 ISSN 1403-0462 ISBN 91-89164-88-1 Printed by Ark Tryckaren AB 2 Foreword Copyright and related rights are central factors in media businesses and, in many cases, represent the largest assets of firms. Globalization and digitalization have increased the means of exploiting those rights, but those factors have simultaneously produced threats to the abilities of companies to financially benefit from their content. Recognizing the importance of international law on the subject, the Media Management and Transformation Center (MMTC) organized an invitational summit on the topic in Stockholm during October 2007. It brought together leading intellectual property scholars, policymakers, and company experts to explore contemporary issues and challenges involving copyright and related rights. This book includes presentations and summaries of discussions held during that meeting. It is edited by Edward Humphreys, a lecturer in commercial law and intellectual property at Jönköping International Business School and a researcher in MMTC. He is a solicitor in the United Kingdom, holds a postgraduate diploma in intellectual property law and practice, and has practiced law in the fields of intellectual property, e-commerce and commercial contracts. The Media Management and Transformation Centre is Europe’s leading centre for media business studies and offers doctoral studies and research fellowships, conducts research projects funded by industry associations, governmental organizations and foundations, and hosts conferences and workshops for researchers and media personnel that are designed to improve knowledge and understanding of media business issues. Prof. Robert G. Picard, Director Media Management and Transformation Centre 3 Table of Contents Introduction: International Copyright and Intellectual Property Law – Challenges for Media Content Producers Edward Humphreys........................................................................................................ 7 SECTION 1: NATIONAL COMPLIANCE WITH INTERNATIONAL OBLIGATIONS ............................................................................................................ 9 1. Compliance with international treaties: does the United Kingdom have or need a law of unfair competition? Jeremy Phillips.................................................................................................11 2. Copyright control in Sweden and internet uses: file sharers’ heaven or not? Jan Rosén........................................................................................................29 3. Protection and enforcement of international copyright in Sweden: the perspective of creators Kristina Lidehorn............................................................................................43 4. Protection and enforcement of international copyright in Sweden: the perspective of international copyright owners Monique Wadsted. .......................................................................................47 5. Swedish perspectives on complying – and being seen to comply – with international copyright law: panel discussion Jan Rosén, Monique Wadsted, Kristina Lidehorn and Johan Axhamn.....51 SECTION 2: INTERNATIONAL RULES, POLICY AND PRACTICE.........57 6. The impact of international treaties on national interpretation of copyright Gillian Davies..................................................................................................59 7. International copyright and the TV format industry Edward Humphreys.......................................................................................71 5 8. The WIPO copyright framework: a basis for business and development Dimiter Gantchev........................................................................................... 93 9. The changing media landscape: an industry perspective Martyn Freeman..........................................................................................111 Contributors.............................................................................................................127 JIBS Research Report Series..................................................................................129 6 Introduction: International Copyright and Intellectual Property Law – Challenges for Media Content Producers Edward Humphreys The interaction between national and international laws, and the realities of contemporary global trade in media content in a predominantly digital environment, raise challenges, uncertainties and opportunities for media companies. When it comes to licensing, protecting and enforcing copyright and other intellectual property rights, media companies and their advisers need to understand and make use of not only national but international legal rules – a far from simple task. Legal analysis and application becomes a multi-layered process, in which the law needs to be seen in terms not only of its content (and gaps), but also its context in policy, economics and varying legal systems and traditions. The chapters in this book offer a variety of perspectives on the relevance of international copyright and other intellectual property regimes to media businesses. What do these international rules mean in reality, how are they taken into account in national systems, what challenges do they pose, and what sort of future development are we likely to see? The answers to these questions address the implications for media businesses and how these businesses can benefit from their content production in the international arena. The book is comprised of papers and transcripts of talks delivered at a symposium of the same name which took place in Stockholm, Sweden in October 2007. The symposium, organised by the Media Management and Transformation Centre and the Institute of Foreign Law at Jönköping International Business School, Jönköping University, gathered together speakers from across Europe representing legal practice, academia, policy-making and media content production and distribution. The book, reflecting the symposium, is divided into two main themes: the extent to which national laws comply with international treaty obligations and how this affects media companies; and the effect which international law and policy has on international media trade. 7 Jönköping International Business School The first of these themes is discussed in the context of the UK and Sweden. In the former case, the question taken up for discussion by Jeremy Phillips is whether the UK properly complies with the Paris Convention requirement for a law of unfair competition, when it has no law of that name – and what are the implications of the position for media businesses. There then follow four chapters looking at the position of Sweden and at why that nation’s copyright laws and social traditions have attracted media attention in recent years amidst suggestions that it represents some kind of ‘Deadwood’ – a safe haven for illegal file-sharers. Jan Rosén addresses this last point by specifically asking whether Sweden really is such a place. Monique Wadsted and Kristina Lidehorn then discuss the respective positions of international media companies and local creators in Sweden. The last chapter on this theme records a debate between these three speakers, joined also by Johan Axhamn, on the overall ‘Swedish question’ and its effect on media content production and distribution. The second theme takes a naturally broader international perspective. Gillian Davies discusses the historical development of the key international treaties in the field, and how they impact on national interpretation – in particular in the UK, France and the USA. I then identify some of the varying specific interpretations of one of these treaties – the Berne Convention on copyright – in the context of the highly successful and growing trade in international television programme formats, and look at the effects this has for format producers. Dimiter Gantchev from the World Intellectual Property Organization adds a wider perspective on the policies and economics behind and potential development of these treaties, before the book concludes with Martyn Freeman of BBC Worldwide presenting a picture of the broad, varying and changing legal environment in which an international content producer trades and some of the implications of these changes. As a book addressing legal issues, it should perhaps be emphasised that these chapters reflect the position as seen by the authors as at 26 October 2007, except where specific updates have been noted in the text. 8 SECTION 1: NATIONAL COMPLIANCE WITH INTERNATIONAL OBLIGATIONS 9 1. Does the UK have or need a law of unfair competition? 1. Compliance with international treaties: does the United Kingdom have or need a law of unfair competition? Jeremy Phillips This chapter is an edited transcript of the talk that Jeremy Phillips delivered to the symposium on International Copyright Law on 26 October 2007 Introduction I am talking about