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INTERNATIONAL COPYRIGHT P

By Rebecca Cunningham,2014-03-03 20:34
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INTERNATIONAL COPYRIGHT P

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    INTERNATIONAL COPYRIGHT PROTECTION

I. INTRODUCTION

    A copyright is an exclusive right conferred by law for a specified period of time to reproduce an original literary or artistic work fixed in any tangible medium of expression; to prepare derivative works based upon the original work; and to publicly perform or display the work (Netscape1, 1995).

    Copyright protection means that uses of a copyrighted work are legal only with authorization from the copyright owner, but it does not apply to any idea, procedure used in the copyrighted work, only to an author#39;s particular expression of the idea or procedure in a tangible medium.

    International copyright protection refers to international recognition of an author#39;s rights under copyright in other countries. But copyright is, intrinsically, created and enforced by national laws. Every country in the world has its own copyright law that applies within its own borders. There is no such a thing as international copyright law that automatically protects an author#39;s writings throughout the world. Although theoretically cases on international copyright violation can be brought to

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    the International Court of Justice, no case has ever been brought to the Court so far.

    Given its "domestic" nature, international copyright protection has always been a complicated problem for all the countries, which, to their own benefits, have held varying views about the problem and how it should be solved.

II. "PRODUCERS" VS. "CONSUMERS"

    Prior to the 19th century, copyright law was essentially a matter of domestic concern for most countries. However, as creative works began to be exchanged beyond national borders with increasing frequency, transnational protection for an author#39;s work became more and more important for those countries where creative works were produced. They, the "producers," would demand compensation from "consumers", those countries where copyrighted works were used. An early example dates back to the chaos in the early days of bulk printing in the 15th century when Charles Dickens and other popular English writers suffered wholesale piracy of their works by American printers because, at that time, copyrights stopped at the borders of an author#39;s native land. This practice was not stopped until the U.S. agreed by treaty to recognize

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    English copyrights in the U.S. (Strong, 1981).

    Now with the advance of communications technologies such as cable and computer digitalization, the world has become a global village. Copyright protection is not only important to printing and publishing industries, but also to broadcasting, computer software, high-tech and entertainment products. As a result, the ancient practice of commercial piracy has become so serious that it has emerged as a major economic and political problem between governments of developed countries, usually the "producers" of creative works, and developing countries, often the "consumers."

    According to a report from USA Today (Cox, 1996), the U.S. government threatened to impose trade sanctions of $2 billion in Chinese imports if China does not crack down on pirate plants producing illegal computer software copyrighted by Microsoft, an American company. While willing to pursue illegal manufacturers more vigorously, the Chinese government said it would retaliate against sanctions by hitting U.S. goods with similar duties.

    Throughout history, international infringement of copyright has usually occurred in developing countries ("consumers") where there is inadequate

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    or ineffective copyright protection and/or with fewer authors and inventors. To some degree, copyright can also be seen as a historically inevitable development as nations become more mature in their knowledge industries. In the 1950s, India has serious doubts about international copyright and insisted that developing countries had special need with regard to knowledge transfer, translations and textbooks. India did a good deal of pirating at the time. However, as Indian publishing industry matured, India took a more favorable view towards international copyright. Piracy has diminished significantly (Altbach, 1988).

    In fact, two trends can usually be detected as to how a developing country may infringe copyrights in the process of its economic development: (1) In an early stage, the emphasis in the infringing country is on promotion and exports, duplicating the industrial products or literary works. Later, the infringer may adopt less aggressive tactics, turning to borderline areas of infringement, rather than exact copying. Then the infringer may obtain a legitimate license, either as a business strategy or because the owner began to challenge the infringer. Finally, the infringer licensee may develop its own products. (2) As one government introduces or strengthens protective enforcement machinery, either because of foreign threats of retaliation or out of concern for safeguarding their own interests in other developing areas, the infringers will move on to another country

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    or become legitimate suppliers (Stalson, 1987).

1. Varying Views

    Because of the varying degrees in economic developments, developed and developing countries, or the "producers" and the "consumers," tend to hold different views on international copyright protection.

    Developed nations view copyrighted products and works as valuable property that should be protected by law both domestically and abroad. They argue that (1) copyright protection is the principle of natural justice which entitles an author to the fruits of labor; (2) the expenses for research and development in production of many goods that are commonly infringed upon have increased enormously. This can only be compensated when the product is protected from unauthorized use by others; (3) copyright protection favors wide dissemination of works because they forge links between social classes, various races, ages and genders. The commercial sharing of the ideas contained in the works contributes to the advancement of society (Gasaway & Wiant, 1994).

    However, developing countries consider international copyright protection to be a device to keep them eternally dependent on the

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    technology and creativeness of the industrial world and to hamper their capacities to create and invent. They argue copyright protection is a Western concept which was created to maintain a monopoly over the production and distribution of knowledge and products. Some Asian countries even say copyright was not part of the Asian cultural tradition. To some extent, it was imposed on Asian countries by Western trading partners (Altbach, 1988).

    Besides, they claim that knowledge is the heritage of all mankind and therefore should be respectfully shared by all, but protection denies them the educational and instructional tools available from copyrighted works because they are available only at prices they cannot afford and under conditions that may violate their sovereignty. They also assert that they are learning by copying, which is helpful for the later creation of their own technologies (Stalson, 1987).

    One argument by Roberto Verzola even accused the West of being the real pirate when he talked about illegal copying software in Manila. Verzola regarded copying software as a benign case of piracy, compared with the malignant case of the U.S. pirating local doctors from the Philippines. He said, when the U.S. pirated their doctors, it took the irreplaceable resource for it takes 10 years to train a new doctor, and

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    denied many people of the services of a doctor. But when the Filipinos pirate the computer program, they didn#39;t deny any American citizen the use of the program (Verzola, 1992).

2. Progress

    Yet, despite these conceptual arguments and practical problems, international copyright is increasingly accepted among developing countries, and is becoming entrenched , both in law and in practice, especially among Asian countries, such as China, Singapore and Malaysia, which have witnessed fast economic development in the past decade.

    China started copyright legislation in 1990 and is moving to enforce copyright laws more aggressively through the State Administration of Industry and Commerce, the agency charged with overseeing copyright protection in China. The government says it is determined to control the rampant manufacture of fake compact and laser discs and software. Singapore passed a copyright act with teeth in 1986 and has been enforcing copyright with some vigor. Malaysia has also a law on the books and South Korea has begun to enforce controls over fake products as well (Goldstein, 1994).

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    Two major reasons can be cited for the remarkable progress of copyright in these countries which opposed international copyright protection in the past. The first one is a combination of carrots and sticks from the industrialized nations. The carrot in this instance was the

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