links & tags
page highlights developments in other countries and regions.
It covers -
issues are discussed in more detail on the following pages
of this guide.
USA and the Digital Millennium
The US intellectual property regime, the leading example
of the 'utilitarian' tradition, derives from provisions
in the Constitution for encouragement of the 'useful arts
The legislation has been amended to reflect new technologies,
changing perceptions of the rights/responsibilities of
users and creators/investors and emergence of the US as
a major player in the global economy.
Interpretation of the Founding Fathers' intent - and subsequent
changes to the regime - differs widely. Jane Ginsburg's
2001 'The Exclusive Right to their Writings': Compensation
v Control in the Digital Age (PDF)
for example, in suggesting that the Constitution appropriately
embodies wide protection for authors, notes that there
is a "strong streak of copyright skepticism in US
jurisprudence". William Patry's 1997 The Failure
of the American Copyright System: Protecting the Idle
and Marci Hamilton's The Historical and Philosophical
Underpinnings of the Copyright Clause (PDF)
offer a more conventional criticism of commodification.
The US Digital Millennium Copyright Act (DMCA),
now in effect, updates the Copyright Act (here),
described in The Copyright Book: A Practical Guide
(Cambridge: MIT Press 1999) by William Strong and William
Fisher's 1999 paper
on The Growth of Intellectual Property: A History of
the Ownership of Ideas in the United States. The DCMA
resulted from a decade of often heated debate and criticism
of reports or proposals.
Intellectual Property & the National Information
Infrastructure, the detailed 1995 report
of the US Working Group on Intellectual Property Rights
(a subgroup of the Information Infrastructure Task Force
that led to the DCMA), is available online. It superseded
the 1986 report
by the US federal Office of Technology Assessment (OTA)
on Intellectual Property Rights in an Age of Electronics
The US Association of Research Libraries has a page
devoted to the DMCA. For a business perspective see Mark
in the Journal of Internet Law and Jonathan Band's
in the Stanford Law Review. Pamela Samuelson
critiqued US proposals for what became the DCMA in The
Copyright Grab, a characteristically biting article
in January 1996.
A more rounded description is provided by Intellectual
Property in the New Technological Age (New York: Aspen
00) by Mark Lemley & Robert Merges and by Ernest Samuels'
Rights On The Net: The Digital Millennium Copyright
Merges' 2000 paper (PDF)
Intellectual Property Rights & the New Institutional
Economics may also be of interest.
In the US the Patent & Trademark Office (USPTO) has
set the policy agenda, leaving the US Copyright Office
- an arm of the Library of Congress - with less clout
and fewer responsibilities.
Similar legislation similar to the DMCA is underway across
the EU, under the Directive on Copyright & Related
Rights In The Information Society (here).
A revised draft of the Directive was passed by the EU
Parliament in mid-February 2001 and agreed by EU Ministers
in mid-April of that year. It is expected that individual
EU states will amend their legislation to give effect
to the Directive.
The EC Green Paper preceding that Directive is here. Terence
Prime's European Intellectual Property Law (Aldershot:
Dartmouth 2000) is one of the better introductions, superseding
Adolf Dietz's Copyright Law in the European Community:
A Comparative Investigation of National Copyright Legislation,
with special reference to the provisions of the Treaty
establishing the European Economic Community (Alphen
aan den Rijn: Sijthoff & Noordhoff 1978). A UK perspective
is provided by William Cornish's Intellectual Property:
Patents, Copyrights, Trademarks & Allied Rights (London:
Sweet & Maxwell 1999) and David Vaver’s 2001 paper
The Copyright Mixture in a Mixed Legal System: Fit
for Human Consumption?
Thomas Dreier produced The Current Copyright Landscape
in the Age Of The Internet & Multimedia, a detailed
on the first version of the EU Directive.
It can be supplemented by Irini Stamatoudi's Copyright
& Multimedia Products: A Comparative Analysis
(Cambridge: Cambridge Uni Press 2001), Pascal
Kamina's excellent Film Copyright in the European
Union (Cambridge: Cambridge Uni Press 2002), Copyright
Exceptions: The Digital Impact (Cambridge: Cambridge
Uni Press 2005) by Robert Burrell & Allison Coleman
papers in Copyright in the New Digital Environment:
The Need to Redesign Copyright (London: Sweet & Maxwell
2002) edited by Stamatoudi and Paul Torremans.
Papers in Legal Convergence in the Enlarged Europe
of the New Millennium (Hague: Kluwer 2000) edited
by Paul Torremans are particularly valuable.
Copyright Focal Point is an EC body serving as "the
'one-stop shop' for information on European copyright
developments", although it competes with the EU IPR
The EC Legal Advisory Board (LAB)
has taken a particular interest in IP.
The 1996 EU Database Directive (here),
which reflects perceptions that a special Directive was
needed to provide copyright protection of computer databases,
on the University of Amsterdam Institute for Information
Law site. The Directive is discussed in Europe's Database
by Bernt Hugenholtz, Stephen Maurer & Harlan Onsrud and
in the 2001 The New Database Right: Early Case Law
from Europe paper
The proposed EU Directive
on Enforcement of Intellectual Property Rights deals
with the enforcement of copyright, patent, trademark and
other rights. Its promoters comment that it
not deal directly with the substance of IPRs (i.e. to
what extent intellectual property is protected in law).
That is already covered by an existing EU legal framework.
However, it is obvious that a property right is not
worth having if it is unenforceable. For example, there
is little point being the legal owner of a car if there
are no means available to stop people stealing it.
Intellectual property rights need to be protected and
enforced within carefully defined limits ...for copyright,
the point is to protect the expression of a creative
work such as a book, a piece of music, or a film. This
allows the creator of the work and other rightholders,
to market creative content. IP serves to make available
such content on appropriate terms. It also stimulates
future creation and ensures the availability of high
quality content for others to enjoy. Put simply, if
an artist could not participate actively in the marketing
of his or her work and get a share of the financial
benefits, they would in most cases not be able to create
and invest in their creation. If an intermediary like
a film or record company did not get paid, they would
not be able to produce and distribute it. Many major
works enjoyed by millions would never see the light
Review of the Copyright Act 1985 (here)
in Canada is currently underway. Canadian copyright and
other intellectual property legislation has been largely
modelled on that in the UK and Canadian courts have tended
to favour UK rather than US precedents,although the latter
have considerable influence.
In June 2001 the Canadian government released
a Consultation Paper on Digital Copyright Issues
and a complementary paper
on the Application of the Copyright Act's Compulsory
Retransmission Licence to the Internet. Useful background
to the latter is provided by Ben Edelman's 11 page 2001
on Shortcomings & Challenges in the Restriction
of Internet Retransmissions of Over-the-Air Television
Content to Canadian Internet Users. In October 2002
the government released Supporting Culture & Innovation,
on the overall copyright regime.
Other discussion documents have included the paper
on Database Protection & Canadian Laws and
on Innovation & Intellectual Property. The
latter area is discussed in the independent Canadian
Intellectual Property: The Politics of Innovating Institutions
& Interests (Toronto: Uni of Toronto Press 2000) by
Bruce Doern & Markus Sharaput.
Four recommended introductions to the Canadian copyright
regime are David Vaver's crisp Copyright Law
(Toronto: Irwin Law 2000), his The Essentials of Canadian
Law: Intellectual Property (Toronto: Irwin Law 1997),
Canadian Legislation on Intellectual Property (Toronto:
Carswell 1998) by Ysolde Gendreau & Ejan Mackay and
In The Public Interest: The Future of Canadian Copyright
Law (Toronto: Irwin Law 2005) edited by Michael Geist.
The Canadian Intellectual Property Office (CIPO)
- a federal agency responsible for patents, trademarks,
copyright and industrial designs - has published a range
of guides, such as 26 page Guide to Copyright (PDF)
Other Canadian legislation, similar to that in Australia,
Patent Act (here)
the Trade-marks Act (here)
the Industrial Design Act (here)
on Canadian moral rights cases are here.
A comprehensive review of New Zealand's intellectual
property regime was announced in 2001 and is still underway.
It embraces trade marks, patents, designs and copyright.
Changes to the Copyright Act are expected to address debate
about intellectual property and other protection for Indigenous
(Maori) traditional knowledge and cultural expression.
The 2001 Trademarks Bill - described in a report by a
Parliamentary Committee (PDF)
- is modelled on the Singapore Trademarks Act and would
replace 1953 legislation based on a 1938 British enactment.
Changes to the Patents Act 1953 and Design
Act 1953 would update legislation modelled on the
equivalent 1949 UK laws.
The Copyright Act 1994 (here),
described in a three page government note (PDF),
is similar to that in Australia. The regime includes a
ratesetting Copyright Tribunal (decisions from 1977 onwards
collecting societies (most shared with Australia) and
special provisions for educational and other uses. The
legislation has been amended - eg to deal with parallel
importation and other questions - in 1996,
A government consultation paper
regarding copyright and digital technologies was released
in July 2001.
Like Australia, New Zealand does not have a government
agency solely responsible for copyright. The Intellectual
Property Office of New Zealand (IPONZ)
is a government agency concerned with the NZ trademark,
patent and design regime. It is the counterpart of IP
Australia and the USPTO.
As an introduction for considering Chinese intellectual
property law and practice we recommend William Alford's
To Steal a Book is an Elegant Offense: Intellectual
Property Law in Chinese Civilisation (Stanford: Stanford
Uni Press 1995) and Peter Yu's The Second Coming of
Intellectual Property Rights in China (PDF)
and 2000 From Pirates to Partners: Protecting Intellectual
Property in China in the Twenty-first Century (here).
Palmer's An Identity Crisis: Regime Legitimacy and
the Politics of Intellectual Property Rights in China
argues that new IP law and accession to multilateral agreements
such as TRIPS underpin official efforts to secure foreign
investment and enable Beijing to legitimate its broader
'modernization' initiatives. However, the elaborate new
body of law lacks the political and social foundations
for effective enforcement and as a result is often little
more than a wish list.
A description of that list is provided by Robert Hu's
Guide to China Copyright Law Studies (Buffalo:
William Hein 2001). Other perspectives are provided in
Stanley Lubman's Bird in a Cage: Legal Reform in China
after Mao (Stanford: Stanford Uni Press 1999) and
Randall Peerenboom's China's Long March toward Rule
of Law (Cambridge: Cambridge Uni Press 2002).
Copyright law in Japan dates from 1887, with Japan acceding
to the Berne Convention in 1899 following the 1894 Japan-UK
treaty on commerce and navigation. There's a succinct
overview of development since that time in the 1999 Outline
& Practices of the Japanese Copyright Law (PDF)
by the Japan Patent Office.
WIPO has an online guide
to the intellectual property systems of 219 countries.
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