The Deeper-in-Time Approach to International Copyright

-- By JohnJeffcott - 16 Apr 2010

The First Slice

The alleged purpose of copyright law is easy enough to understand. My Property textbook puts it so: the idea behind copyrights “is to grant a limited monopoly over the protected material—a monopoly to promote creative activity.” Certainly, as a single-step approach, this logic makes sense for many copyrightable materials such as novels, the production of which might reasonably be expected to decline if authors could not profit monetarily from writing them. The effects of these limited monopolies do not cease after a single step, though, and this paper is concerned with exploring a step or two further into time, with special attention to international copyright.

Brief Background

International Adoption of Copyright Standards & the Berne Convention

The colonizing powers of history were also the forefathers of modern copyright law. As a consequence, many of the colonized countries of South America and Africa had the copyright law of their colonizers imposed upon them. This legacy has been perpetuated by the Berne Convention, an international agreement governing copyright with presently over 160 member countries. Though many countries initially held out, political pressure after the United States became a party to the convention in 1989 has led to over 75 new signatories in the past 20 years.

Minimum Protections

The Berne Convention sets certain minimum copyright protections that all member countries must recognize. Chief among these protections is national treatment protection, which provides that, within its own borders, Country 1 must protect copyrighted work originating in Country 2 just as it would protect its own citizens’ copyrighted work. A wide swathe of products must be copyrightable; minimum copyright durations are established; all copyright must be acquired automatically without need for application; and also interesting is the provision granting copyright owners control over translation of the copyrighted work into another language.

The Second Slice

One-way Traffic & Using Clout

The flow of copyrighted goods is generally unidirectional. Of all the Berne countries, only the U.S. is definitely a net exporter of copyrighted goods, though the U.K. may be as well (http://www.ic.gc.ca/eic/site/ippd-dppi.nsf/eng/ip01112.html). Because of national treatment provisions, which effectively globalize copyright protection for any given work, the owners of copyrighted products are dealing in the buying and selling of global monopolies, which, like their domestic equivalents have immense money-generating capabilities. It might be difficult to calculate the exact burden or benefit to specific countries, but one fact is evident: The largest copyright producers/exporters (whether in terms of countries or corporations) benefit most from this system.

On the other side of the coin, poorer countries must expend great amounts of money to license copyrighted goods such as textbooks from large countries and corporations. Hence, while perhaps promoting creative activity in the U.S., copyright is slowing the flow of information to places where it is needed. It is certainly more difficult to produce new ideas where old ones are hard to come by; as a corollary, new ideas are prevalent where old ones are abundant. Compounding this problem are provisions like the one granting power of translation to the copyright holder. Not only must an importer of American textbooks in Malawi pay for their initial costs, but if a translation is desirable to increase the utility of a particular book, that right must be licensed. The result is not only that copyright producers reap enormous financial rewards because of global enforceability, but also that the world (or at least Berne signatories) is pushed toward a static copyright economy in which producers and consumers maintain relatively the same position as time passes.

The good capitalist, seeing these economic results, will of course pressure smaller countries into adopting and enforcing stringent copyright laws. As an example, consider the U.S.-Chile Free Trade agreement, accepted on Chile’s side no doubt because of American economic clout and amicable historical relations, but supported by Americans seeking “to protect the rights of intellectual property holders in the United States against piracy in Chile” (10 Law & Bus. Rev. Am. 425). It is easy to imagine this process might repeat itself ad infinitum with the goal of maintaining the economic status quo.

Practical Enforceability

Adding to the one-sidedness of these circumstances is the fact that many less affluent copyright holders, though afforded the same legal rights as copyright holders worldwide, lack the means necessary to actually enforce those rights, rendering them merely theoretical. While the RIAA has the time and power to pursue individual copyright violators apparently endlessly, the independent Malaysian writer and musician, unable to secure costly legal representation (especially for violations outside their native country), are powerless to stop the illegal reproduction and distribution of their work. How, then, are the national treatment protections afforded them of any use?

In a sense, then, the more globalized copyright law becomes, the more we ensure that users of copyrighted products everywhere must pay for that use, and because some have a greater ability to pay for this use, the system invariably plays favorites despite being equal on its face.

The Third Slice

If legal advisors were to take up this cause, they might advise that, like homeowners who should abandon their underwater mortgages, nations on the losing end of the Berne Convention should consider abandoning it. In some cases, the political costs may be too high, but in others they would be outweighed by the ability to more freely distribute media. When the U.S. was still developing a couple hundred years ago, it chose not to recognize foreign copyrights, allowing it the power to copy and distribute British books it may not otherwise have been able to afford. Testament to this possibility, Iran still does not recognize foreign copyright in any official capacity, despite pressure to do so (especially if it becomes a member of the WTO) (http://en.wikipedia.org/wiki/Copyright_in_Iran)

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