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A Pragmatic Approach to Intellectual Property and Development: a Case Study of the Jordanian Copyright Law in the Internet Age

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A Pragmatic Approach to Intellectual Property and Development: a Case Study of the Jordanian Copyright Law in the Internet Age American University Washington College of Law Digital Commons @ American University Washington College of Law Joint PIJIP/TLS Research Paper Series 4-2012 A Pragmatic Approach to Intellectual Property and Development: A Case Study of the Jordanian Copyright Law in the Internet Age Rami Olwan Queensland University of Technology, [email protected] Follow this and additional works at: https://digitalcommons.wcl.american.edu/research Part of the Intellectual Property Law Commons, and the International Trade Law Commons Recommended Citation Olwan, Rami. 2012. A Pragmatic Approach to Intellectual Property and Development: A Case Study of the Jordanian Copyright Law in the Internet Age. PIJIP Research Paper No. 2012-07. American University Washington College of Law, Washington DC. This Article is brought to you for free and open access by the Program on Information Justice and Intellectual Property and Technology, Law, & Security Program at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Joint PIJIP/TLS Research Paper Series by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. A PRAGMATIC APPROACH TO INTELLECTUAL PROPERTY AND DEVELOPMENT: A CASE STUDY OF THE JORDANIAN COPYRIGHT LAW IN THE INTERNET AGE Rami Olwan1 ABSTRACT On October 4, 2004, Brazil and Argentina requested that WIPO adopt a development-oriented approach to IP and to reconsider its work in relation to developing countries. In October, 2007, WIPO member States adopted a historic decision for the benefit of developing countries, to establish a WIPO Development Agenda. Although there have been several studies related to IP and development that call for IP laws in developing countries to be development-friendly, there is little research that attempts to provide developing countries with practical measures to achieve that goal. This article takes the copyright law in Jordan as a case study and shows how, in practical terms, a pro- development-oriented approach could be implemented in the copyright laws of developing countries. It provides specific recommendations for developing countries to ensure that their IP laws are aligned with and serve their social and economic development objectives. 1 LLB, Yarmouk University, Jordan; LLM, Buckingham University, United Kingdom; LLM, Columbia University, New York, United States; PhD, Queensland University of Technology (QUT)), Brisbane, Australia, Postdoctoral Research Fellow at QUT. 2 A Pragmatic Approach to IP and Development TABLE OF CONTENTS ABSTRACT ....................................................................................................................... 1 I. INTRODUCTION ............................................................................................... 3 II. CONTEXT: WHY LOOK AT JORDAN? ............................................................... 4 III. THE CORRELATION BETWEEN INTELLECTUAL PROPERTY AND DEVELOPMENT5 IV. THE JORDANIAN IP SYSTEM............................................................................ 6 V. THE UNITED STATES - JORDAN FREE TRADE AGREEMENT (USJFTA) ............ 7 A. Overview of Internet use in the Arab world ................................................... 13 B. The copyright laws of Arab countries ............................................................ 15 C. Introduction to the copyright law in Jordan .................................................. 22 VI. FUNDAMENTALS OF THE COPYRIGHT LAW IN JORDAN.................................. 24 A. Copyright subject matter ................................................................................ 24 B. Economic or financial rights .......................................................................... 25 C. Moral rights ................................................................................................... 26 D. Authors ........................................................................................................... 28 E. Ownership and duration/term ........................................................................ 29 F. Treatment of foreign copyright ...................................................................... 30 G. Work for hire .................................................................................................. 31 H. Limitations to author’s exclusive rights ......................................................... 31 1. Reproduction for translation purposes (Article 11(A)) ....................... 33 2. Reproduction of published works (Article 11(B)) ............................... 33 3. Reproduction for private purposes (Article 17(A) and (B))……… .... 33 4. Reproduction for teaching and educational purposes (Article 17(C)) . 34 5. Reproduction in the form of quotation (Article 17(D)) ....................... 35 6. Reproduction for information purposes (Articles 18 and 19)………. 35 7. Reproduction for libraries, non-commercial documentation centers, educational, scientific and cultural institutions (Article 20) ................ 35 I. Infringement and remedies ............................................................................. 36 VII. CRITIQUE OF THE COPYRIGHT LAW IN JORDAN ............................................. 37 A. The right of reproduction ............................................................................... 37 B. The right of communication to the public ...................................................... 41 C. Protection of technological protection measures (TPMs).............................. 42 D. Limitations to author’s exclusive rights ......................................................... 48 1. Limitations for teaching purposes and libraries .................................. 49 2. Limitations for disabled persons ......................................................... 50 E. Public domain ................................................................................................ 51 F. Liability of Online Service Providers (OSPs) ................................................ 52 G. Software Protection........................................................................................ 56 H. Database protection ....................................................................................... 57 VIII. WHAT NEEDS TO BE DONE? .......................................................................... 59 A. Educate policymakers and the public on IP and development issues ............ 59 B. Integrate the development dimension into Jordanian IP laws ....................... 60 C. Consider seriously alternative approaches to IP ........................................... 61 D. Take advantage of the flexibilities of international copyright treaties ........... 62 E. Conduct a review of the copyright law in Jordan .......................................... 63 F. Popularize and promote A2K ......................................................................... 64 G. Promote open access and create open access institutional repositories ........ 65 H. Expand the range of limitations and exceptions for the Internet environment65 I. Give particular consideration to copyright misuse ........................................ 66 IX. CONCLUSION................................................................................................. 67 WCL.AMERICAN.EDU/PIJIP 3 PIJIP Research Paper No. 2012-07 ―For too long IPRs have been regarded as food for the rich countries and poison for poor countries.... [I]t is not as simple as that. Poor countries may find them useful provided they are accommodated to suit local palates.‖2 I. INTRODUCTION Since 2004, the WIPO Development Agenda has renewed interest in the role of intellectual property (IP) in development.3 While “development” is a term contested by scholars, organizations and development experts throughout the world, it is generally understood to mean improving the lives of people socially and economically.4 The value of an IP system to a developing country (or for that matter a developed country) is the subject of increasing debate. On one side, IP evangelists argue that IP laws can stimulate untold innovation and provide a foundation for economic progress. On the other side, IP skeptics or abolitionists question whether IP laws really incentivize innovation or simply represent a burden on social and economic development. Too often, an uninformed adoption of international IP systems is seen as a “shortcut” to development. For development to be 2 JOHN BARTON ET AL., COMM‟N ON INTELLECTUAL PROP. RIGHTS, INTEGRATING INTELLECTUAL PROPERTY RIGHTS AND DEVELOPMENT POLICY, (2002), available at http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf. 3 In 2004, Brazil and Argentina presented a comprehensive proposal on behalf of developing countries to establish the Development Agenda in the World Intellectual Property Organisation (WIPO). They put forward a view that IP laws in their current form are not helping those countries in their development, as is constantly being suggested by developed countries, and that there is a need to rethink the international IP system and the work of WIPO. See GEN. ASSEMBLY, WIPO, PROPOSAL BY ARGENTINA AND BRAZIL FOR THE ESTABLISHMENT OF A DEVELOPMENT AGENDA FOR WIPO (2004), available at http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_31/wo_ga_31_11_add.pdf. 4 There is no single international definition of what is meant by the term “developing countries.”
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