Access to knowledge in the public domain

Copyright, as indeed all intellectual property rights, do not grant the owner absolute rights. The owner's rights are qualified with limitations and exceptions so as to enable the public to gain access to such materials under certain conditions. The public is granted access when it is for instance

These limitations and exceptions are contained, albeit to a differing degree, in each of the international treaties - the Berne Convention, the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) and the World Intellectual Property Organization Copyright Treaty (WCT). Any country that becomes a party to these international treaties, is entitled to avail itself of these 'flexibilities' in order to ensure that public access to copyrighted materials is ensured.

Consumers International (CI) recently conducted a study and published a report on 'Copyright and Access to Knowledge' (2006).

The CI study sought to determine:

* the extent to which the Berne Convention, the TRIPS Agreement and the WCT each provide for flexibilities for public access to knowledge of copyrighted works, and

* the extent to which the national copyright laws of 11 developing countries in Asia (Bhutan, Cambodia, China, India, Indonesia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea, the Philippines and Thailand) take advantage of these flexibilities.

The CI study also reviewed the World Intellectual Property Organization (WIPO) draft laws on Copyright and Related Rights and the United States-Singapore Free Trade Agreement (FTA) with respect to its provisions on intellectual property rights.

In addition, a comparative price study of educational textbooks in Indonesia, Thailand and the United States was conducted.

The CI report reveals that:

* the international instruments have progressively ratcheted upwards the scope of protection, the rights accorded to copyright owners and the duration of protection for copyright owners;

* all the 11 developing countries have not taken advantage of all the flexibilities available to them in the international treaties they signed and in fact, provide copyright owners far more rights than they need to under the treaties they signed;

* the WIPO draft laws on copyright do not provide for all the flexibilities available in the international treaties and is more restrictive than need be of public access to knowledge.

* the US-Singapore FTA has ratcheted even higher the copyright protection of owners than is required by the three international treaties;

* the same books are far more costly in Indonesia and Thailand than in the US, when compared in terms of the gross domestic product per capita of the countries concerned and in terms of the purchasing power parity.

International copyright regime

The Berne Convention (1886) was the first international instrument that defined the scope and duration of copyright protection. It also specified limitations and exceptions to the rights it conferred. These limitations and exceptions were further expanded in the Appendix (1971) due to representations made by developing countries. The Berne Convention and the Appendix remained the sole international regime for copyright until 1994 and bound those countries that became a party to it. The TRIPS Agreement (1995) committed all the member countries of the World Trade Organization to adhere to the Berne Convention and the Appendix (except for the moral rights provisions of the Berne Convention) and this regardless of whether they were a party to the Berne Convention. The TRIPS Agreement raised the threshold set out in the Berne Convention. It added computer programs and databases to the categories of copyright works. It also expanded the bundle of rights accorded to copyright owners to include the right to control commercial rental of computer programs and cinematographic works.

Then came the WCT in 1996, purportedly to address the challenges posed by the digital world. It expanded the scope of the right to communication to include communication via the internet. In addition, the WCT requires legal remedies against the circumvention of technological protection measures (TPMs). TPMs pose problems. They are being used not only to prevent unauthorised access to copyrighted material but also to deny access to material that rightfully belongs in the public domain. For example, both the TRIPS Agreement and the WCT provide that copyright protection does not extend to the data or material contained in compilations of such data or material but TPMs are being used for example to control access to only users who pay a fee. TPMs can also be used to deny access to educational material that is in fact allowed by copyright exceptions.

Developed countries using their influence at the WIPO and through bilateral and regional trade agreements to further their trade and commercial interests have further expanded copyright protection for owners. The space available to developing countries to adopt policy options suited to their development needs have consequently been reduced. Each of the international treaties and FTAs served to further reduce the options that can be used to enhance access to knowledge and to facilitate education.

The Berne Convention, the TRIPS Agreement and the WCT each provide a different set of flexibilities for developing countries: the exact mix of flexibilities available to a country depends on the treaties to which it has become a party.

A country not a party to any of the international treaties is free to fashion its copyright law in any manner it chooses. In the Asia Pacific region, there are at least 14 such countries (as at 28 November 2005). However, the vast majority of the developing countries in the world have signed on to at least one of the international treaties. In total, 80 countries have signed the Berne Convention and TRIPS while 52 are parties to all three.

National copyright laws

Access to educational materials especially in the field of higher scientific and technical education is crucial for the poor countries to develop their human resources and achieve economic progress. In order to educate people, schools, universities and libraries need access to affordable teaching and learning materials. Copyright laws if crafted intelligently can contribute to knowledge and the development agenda.

In order to maximize access to knowledge, the copyright laws of developing countries should therefore provide for public access to copyrighted materials, especially educational materials. They should take advantage of all available flexibilities in the international copyright treaties. The CI study found that this has not happened.

For instance:

* Bhutan has granted copyright protection to computer programs and compilations of data when this is not necessary under the Berne Convention, of which Bhutan is a party.

* Ten out of the 11 countries studied (except for the Philippines) have extended the duration of copyright protection for some or all work forms beyond the minimum duration required by their treaty obligations.

* The Berne Convention does not prohibit the utilisation of the whole of a work for the purpose of teaching, so long as it is justified by the purpose and is compatible with fair practice. However, only three of the 11 countries studied (Indonesia, Malaysia and the Philippines) allow such a possibility.

* The Berne Convention does not restrict the number of copies of publications or sound or visual recordings that can be made for the purpose of illustrations for teaching. However, five out of the 11 countries studied, (China, India, Indonesia, Kazakhstan and Papua New Guinea) expressly restrict the number of copies of these materials for teaching purposes.

* The Berne Convention expressly allows national lawmakers to impose a requirement for works to be 'fixed in some material form' before they become qualified for copyright protection. Such a requirement will permit countries to provide copyright protection only to materials that appear in some physical form. Member states are also entitled to give a narrow meaning to the term 'material form' so as to, for example, exclude digital materials from copyright protection. Unfortunately, ten out of the 11 countries studied have not specified 'fixation in material form' as a condition for conferment of copyright. Only Malaysia has done so.

* Copyright protects not the idea, but the expression of the idea. This principle serves the important public policy of preserving and enriching the public domain and ensuring that new expressions, such as electronic databases, do not 'lock up' ideas. China, India and Indonesia have not incorporated in their copyright legislation a provision excluding ideas from protection.

WIPO's legislative advice

The CI study reviewed the WIPO Draft Laws on Copyright and Related Rights (versions 1 and 2). The Draft Laws do not address many of the flexibilities identified above. Indeed, in WIPO's draft laws, 'public lending' is included as one of the economic rights of the copyright owner. Public lending is denned as:

'The transfer of the possession of the original or a copy of a work... for a limited period of time for nonprofit making purposes, by an institution, the services of which are available to the public, such as a public library or archive'.

This right is not required by any of the international copyright treaties. Such an extension of the copyright owner's rights is particularly restrictive of public access to knowledge since it means that a library cannot lend books without prior permission of the copyright owner. Libraries the world over are the repositories of knowledge at low cost. This important public and social service libraries perform will now be curtailed if they have to seek permission and pay fees to copyright owners for the books they lend out.

The right to control 'importation of copies of the work' is included in the draft laws in parenthesis. The footnote clarifies that such a right is not based on any of the international copyright instruments, but is aimed at safeguarding the principle of 'territoriality in copyright'. Thus, the draft laws explicitly do not recommend the parallel import of copyright works.

Although the duration of copyright provided in the main text of the draft laws is the minimum required by current international copyright instruments, a footnote is included to advise countries that 'the present tendency at the international level is to extend the term of protection to 70 years after the author's death'. What WlPO seems to be doing is to recommend the longer duration of protection that is only practiced in the US (since 1998) and the EU (since 1995).

Further, the draft laws do not provide for:

* compulsory licensing of copyright works;

* works to be fixed in a material form before they become eligible for copyright protection;

* limitations and exceptions for the provision on circumvention of TPMs;

* the whole of a work to be used for illustration in teaching;

* more than one copy of a copyrighted work to be reproduced for face-to-face teaching in educational institutions;

* quotations to be used in full - only a 'short part' may be quoted;

* unpublished works to be quoted;

* exclusion of political speeches from copyright protection;

* exceptions to allow copyright works to be used in broadcasts for educational purposes; and

* 'minor' reservations for educational purposes in respect of performance, broadcasting, recitation, recording and cinematograph rights.

WIPO is clearly not providing proper legislative advice to developing countries so as to enable them to take full advantage of all the flexibilities available to them. CI has called on WIPO to undertake a thorough review of its draft laws to ensure that all permitted limitations and exceptions are incorporated into its drafts laws.

Free trade agreement

The CI study also reviewed the US-Singapore Free Trade Agreement (FTA) to determine how copyright protection is addressed. The US-Singapore FTA commits the contracting party to accede to the WCT; includes the right to prohibit all reproductions, including temporary reproduction in electronic form; increases the duration of protection to life of author plus 70 years; and makes mandatory legal protection and legal remedies against the circumvention of TPMs. In this manner, the FTA has ratcheted upwards the copyright protection prescribed in the Berne Convention, the TRIPS Agreement and the WCT.

The US-Singapore FTA is seen as the model for the US negotiations for bilateral agreements with Asian countries. The US is now negotiating FTAs with Thailand and Malaysia. Clearly, access to knowledge will be jeopardised in these two countries if the same model is applied.

Pricing copyrighted materials

The comparative price survey of educational textbooks in Indonesia, Thailand and the US shows that when the price of a book is considered in the context of a country's GDP per capita (that is, the average individual income), these books become prohibitively expensive to the average Indonesian and Thai. For example, when a student in Indonesia is made to pay US$81.70 for Goodman & Gilman's The Pharmacological Basis of Therapeutics, it is equivalent to a student in the US paying US$3,170.97 for the same book in GDP per capita terms and US$913.07 when compared using the GDP per capita calculated at purchasing power parity (PPP) exchange rate.

CI's field research studies in Thailand and Indonesia revealed that most copyrighted English university textbooks are imported and priced beyond the affordability of the average university student. Students then resort to photocopying copyrighted books and this is a rampant and everyday occurrence in both countries.

Even academic libraries in Indonesia and Thailand are increasingly unable to afford subscriptions to foreign published journals. The state-owned Indonesian Institute of Science has substantially cut its subscription to foreign journals, from 1,610 before the 1997 financial crisis to 42 since. Similarly in Thailand, many libraries regularly conduct evaluations to cull subscriptions to those journals that are not widely used or referred to. In addition, publishers of digital journals often impose legal and technological barriers, such as limiting the number of users from accessing the content at any one point by the IP address or User ID authentication or Digital Rights Management. Libraries thereby do not get the full use of the journals they have paid for, unlike printed copies where there is no restriction on the number of users. Such restrictions have the effect of severely limiting access to knowledge for research and development.

Increasing access to knowledge

Policy makers in developing countries need to be better aware of their obligations under the international treaties they have signed. For national copyright laws to even take advantage of the flexibilities common to all three international treaties, they have to:

* keep the duration of copyright protection to the minimum required: literary and artistic works life of author plus 50 years; cinematographic works - 50 years; anonymous or pseudonymous works - 50 years; and works of applied art - 25 years;

* allow parallel import;

* provide for compulsory licensing options for translation, reproduction and publication of copyrighted works;

* make 'fixation in material form' a condition for conferment of copyright;

* provide protection only for the expression of the idea, not the idea itself;

* provide the power to deal with anti-competitive practices;

* include a general 'fair use' provision;

* use all the teaching exceptions: allow the use of the whole of a work, not limit the types and forms of utilisation, apply the teaching exception to all classes of education including distance education, not restrict the number of copies that can be made for teaching purposes;

* use all the quotation exceptions: not restrict the ways quotations can be made, not limit the types of works that can be quoted, provide the widest interpretation for the quoted work to have been 'lawfully made available to the public', not limit the length of the quotation, and not limit the purpose of the quotation;

* exclude from copyright protection official texts, political speeches, speeches delivered in the course of legal proceedings and their translations;

* allow the use of copyright works in broadcasts for educational purposes; and

* provide 'minor reservations' for educational purposes in respect of the following: performing, recitation, broadcasting, recording and cinematographic rights.

Conclusion

The CI report reveals that the space for access to knowledge is shrinking not only because of increased pressure for more rights from copyright owners but also because developing countries are giving away public rights.

Developing countries are net importers of copyrighted material. They are in no position to be magnanimous in protecting the rights of copyright owners, yet they are bowing to pressure and granting more protection and rights to copyright owners than they need to by their treaty obligations. This has grave implications for the access to knowledge of their people. By increasing the restrictions and excluding the limitations and exceptions, they are permitting for less and less information to be freely available in the public domain. Such curtailment serves the interest of a privileged few at the expense of the millions in need.

Moreover, the overwhelming emphasis on the protection of the rights of copyright owners has led to the misguided notion amongst the public (especially students, teachers and librarians), that there is no free access to information. They fear that they may be infringing on someone's copyright and consequently do not exercise their own rights in relation to copyright owners.

Governments need to commit to expanding, not reducing access, to information and knowledge in the public domain. They should reform their copyright laws to permit for all the limitations and exceptions that they are entitled to. They should also commit resources towards launching an awareness campaign to educate the public on how best they (students, teachers, archivers, academics and librarians) can leverage and capitalise on the free access to copyrighted materials that they are entitled to.

This article is based on the CI report 'Copyright and Access to Knowledge' (2006), available for free download at www.cimap.org/a2k. For free printed copies - e-mail consint@ciroap.org. The CI report is funded by grants from the Open Society Institute Development Foundation (OSI) and the International Development Research Centre (IDRC).