The Digital Media Project

Source

Philip Merrill

Title

TRU #53 of developing nations exception

No.

040612merrill01

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/06/12

 

#

Criteria

Description

1.

Name of TRU

Right of developing nations exception

2.

Summary description of TRU

Developing nations (as defined by treaty) enjoy relatively lax standards of copyright protection to enable socially valuable uses in countries that qualify as relatively underfunded participants in the global economy

3.

Use records of TRU

It is difficult for non-specialists to be informed on this topic, but in the most general terms, the United States once was a good example. The new republic chose not to participate in international royalty payments, and instituted unique requirements for registration of works and fixation of copyright information.

More recently, this would seem to apply primarily to what we think of as the third-world, "developing countries" given special treatment by the U.N. So in one sense, differing copyright restrictions between nations is nothing different or special, but it is special in how this highlights the tension of one-sided versus two-way trade practices. It is also special as a good illustration of how structuring terms for TRU translation or TRU reproduction can avoid interfering with the expected normal course of TRU economic exploitation (e.g., media exploitation chronology aspect of years elapsed before types of license are authorised).

It is also striking that the limited latitude described by treaty is much less than illegally grabbed by maniac copiers claiming "fair use" as they violate it. Also, in many developing countries, mass-produced items such as schoolbooks may more easily reach worthy recipients than in the West, because not everybody has an Internet connection and a desktop computer.

4.

Nature of TRU

Copyright - internationally - is somewhat like a pact to compete along certain rules. In between Berne-or-better protection and no copyright at all (or only for nationals), there lies a wide range of intermediate values of partial protection. As a usage, TRU developing nations covers aspects of everything, however as a Berne right to lax treatment - the definition is absolutely strict and governed by a dedicated appendix with six articles.

In International Copyright, Paul Goldstein says, "Economically developing contries must often strike the copyright balance differently than economically developed countries, favoring free use, or at least compulsory licenses, to meet deep-seated educational needs." [5.5.I.6.C] Goldstein at 2.I.2.2 describes the origin of the exception based on demands at the 1967 Stockholm Conference by developing countries prevented from exiting Berne for the more relaxed standards of the Universal Copyright Convention.

Berne treaty is online at http://www.wipo.int/clea/docs/en/wo/wo001en.htm

Article I.I of the developing countries appendix contains the basic provision that "Any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations" can take advantage of the Appendix's relaxed standards "by a notification deposited with the Director General".

Article II describes replacing the exclusive right of translation with "a system of non-exclusive and non-transferable licenses" (II.I) for "the purpose of teaching, scholarship or research" (II.5). One year after publication, translations are permitted for languages "not in general use" (II.3) although the more general term is "after the expiration of three years" (II.2.a) if no translation has been published. Translation is also permitted if all editions of an earlier translation are out-of-print (II.II.b). A broadcasting organization may also perform translations "for use in broadcasts intended exclusively for teaching or for the dissemination of the results of specialized technical or scientific research to experts in a particular profession" (II.9.a.ii) including translating incorporated text from materials that were originally published to be "used in connection with systematic instructional activities" (II.9.c).

Article III describes a similar system replacing the exclusive right of reproduction. The period after which the relaxed copying can be performed varies depending on the class of material. It is generally five years, but is shortened to three years "for works of the natural and physical sciences, including mathematics, and of technology" and is lengthened to seven years "for works of fiction, poetry, drama and music, and for art books" (III.3).

Article IV requires those seeking to translate or reproduce to attempt to gain permission from the owner of the right (IV.I) and prohibits the export of copies (IV.4.a) except that some sharing with users abroad is permitted "for the purpose of teaching, scholarship or research" if the language is not English, French or Spanish (IV.4.c). The article also provides "In the case of a translation, the original title of the work shall appear in any case on all the said copies" (IV.3) and "Due provision shall be made by national legislation to ensure a correct translation of the work, or an accurate reproduction of the particular edition, as the case may be" (IV.6.b).

5.

Benefits of TRU

Benefits End-Users and Right-Holders of the future because of its emphasis on assisting the development of literate (and therefore ultimately publishable) arts and sciences.

6.

Possible digital support

The general support needs for this TRU have been conceptually "with us" since the Digital Media Manifesto, as the need to accommodate different legislative rules has been clear. The specifics of the Berne appendix offer good instances of the granularity needed for rights management, although again this is in line with DMP's long-held expectations.

The two more interesting issues for digital support are informatory purposes and the needs of translation. It is at least worth asking how digital technology can provide more robust support or new uses for informatory and translated media.

As to informatory media and the need for access to support education and research, the simplest solution is to encourage development of Creative Commons-type public domain content provided royalty free. It is in every country's best interests to develop respectable minima for this, although written (and translated?) guidance might need to be provided.

Translation support could include access to the original language and support for learning it, however this might need to be restricted as far as supporting this TRU since no reproduction license is applied to common language original versions (e.g., English, French or Spanish). On the other hand, the original language could be present as a paid option.

7.

Requirements

none needed at this time