Software and the law
Software and the law

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Software and the law

2.2 International cooperation on IP

There are two major forms of legal system: common law, based on argument from previous cases made by knowledgeable and powerful independent judges; and civil code (introduced by Napoleon), based on carefully formulated laws that can form bases for judgement by magistrates. The legal systems of England and the US epitomise common law, while those of France and Germany epitomise civil code. These two systems now form the basis for legal systems around the world, having been spread by the European colonial activities during the 15th to 19th centuries.

With the coming of digital media and software, and digital communication networks facilitating cross-border flows, the need for international harmonisation and agreement has become ever more pressing. Without an international authority with jurisdiction across countries, commercial parties could exploit the variations in national laws or they could attempt to flout the law altogether through the uncertainty as to where exactly an illegal copy was being held. The idea of cyberspace as a territory in which the law should operate has become established.

This need for international agreement led in the 19th century to the Berne Convention on copyright, and then to subsequent conventions to further elaborate and refine the Berne Convention. Other conventions addressing other aspects of intellectual property law followed. The European Union as a collaboration between countries with advanced, linked economies but different legal systems has been important in movements towards international agreements.

The next three subsections below provide a brief summary of the international agreements and organisations, with current debates and open issues highlighted.

The Berne Convention

The original Berne Convention was agreed in 1886 and focused on protecting ‘Literary and Artistic Works’. The agreement was reviewed in Paris in 1896 and again in Berlin in 1908, before being ratified in Berne in 1914. A further review was held in Rome in 1928, with others in Brussels in 1948, Stockholm in 1967, and Paris in 1971. The most recent amendment was in 1979.

Countries sign up to this agreement, but may choose to implement only parts of it. So, for example, Canada signed up to the Rome version, and then moved on to the more exacting 1971 Paris version. Some 120 countries have now signed up – the US was very late in doing so, having only signed on 1 March 1989.

The Berne agreement lays down three basic principles and a minimum level of protection that its signatories must provide. The principles are that:

  1. The protection given to an original work in one Berne country must also be given in all other Berne countries.
  2. Protection should be automatic and not contingent upon any formalities such as marking the work as copyright using the special copyright symbol ‘©’.
  3. The protection given in a Berne country should not depend upon that same protection existing in the country of origin.

Because many important countries (including the US and various Latin American and Asian nations) did not adopt the Berne Convention until very late, the Universal Copyright Convention (UCC) was created in 1952 to build a bridge between the copyright systems of these countries and Berne members. When the US signed up to Berne in 1989, the importance of the UCC diminished.

GATT and TRIPS

The General Agreement on Tariffs and Trade (GATT) was made after the Second World War in a bid to regulate world trade. In 1995 this agreement was replaced by provisions made by the World Trade Organization (WTO). The GATT and WTO process has involved regular negotiations – in a series of meetings called ‘rounds’ – so as to reach agreement on areas of world trade. Various rounds have addressed intellectual property rights.

The Uruguay Round of GATT (1986–94) – which led to the establishment of the WTO – developed its own view of copyright, extending the Berne Convention in significant ways. This view has now become enshrined in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), administered by the WTO.

TRIPS introduces a most-favoured-nation (MFN) requirement on copyright, so that any one GATT/WTO member must be given as good copyright treatment as any other member. GATT-style dispute settlement and enforcement procedures are introduced. TRIPS is generally seen to favour developed rather than developing countries in increasing protection, with the only accommodation being that developing countries could take five years instead of one year to move to the TRIPS agreement.

More recent WTO meetings, notably that in Doha (Qatar) in 2001, have focused on pharmaceuticals. We anticipate that future meetings will focus on software.

WIPO

The World Intellectual Property Organization (WIPO) acts as the secretariat for the major intellectual property conventions, including the Berne Convention, and the more specialised Brussels, Geneva and Rome Conventions. WIPO’s role is to provide its members with information on and assistance with intellectual property, to ensure that international and regional agencies cooperate on intellectual property issues, and to help developing countries protect their own intellectual property and obtain developed countries’ intellectual property on favourable terms.

On 20 December 1996 the members of WIPO adopted two new treaties – the WIPO Copyright Treaty [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] for the protection of authors, and the WIPO Performance and Phonograms Treaty. The Copyright Treaty updates the Berne Convention of 1971 to cover digitisation and, in particular, the availability of work online, but no agreement on reproduction rights in this environment was reached.

At WIPO’s general assembly meeting in Geneva in September 2004 a proposal from Argentina and Brazil that economic development depends upon a freer use of intellectual property than normal IPR regulation expects was accepted. A very strong and cogent argument supporting the Argentinian and Brazilian ‘Friends of Development’ proposal was given by India – as seen in Case study 2. This important area clearly will develop over the coming decades.

Case study 2: The imbalance of IPR protection: the pharmaceuticals example

Consider the following, from Alsegård (2004).

When considering the differences between developed and developing countries in terms of IPRs, one of the most important areas has been pharmaceutical patents. On one side are the pharmaceutical companies, claiming their right to own their patents and to benefit from them with high prices, considering the high risks and costs of their research and development (R&D). On the other side are developing countries, claiming their rights to buy or manufacture existing medicines at low prices to prevent diseases and to help their people. These interests not only conflict, but it is also unclear how either one is best protected. Not everyone believes that strong IPR protection benefits the pharmaceutical industry, and weak protection is not necessarily good for the users of the drugs. Nevertheless, the general view is that the TRIPS Agreement helps the pharmaceutical industry but, with regard to medicines, makes the situation worse for many developing countries.

[...]

The general complaint made from developing countries regarding IP is that it has shifted too far in favour of producers. In the case of drugs this means that IPRs have shifted too far towards the protection of the pharmaceutical patents owners. According to the critics, IPRs are not inherent, natural rights and should not be treated as such. This debate revolves around the general issue of the monopoly and private rights granted through patents, as opposed to the public interest and social benefits deriving from science and technology. Due to this conflict, patent laws that are strong for protecting private interest are thus weak for protecting the public interest, at least initially.

The protection of intellectual property rights by law may not be in the wider social interest.

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