PTC FORUM: Online Journal of the Patent, Trademark and Copyright Research Foundation

Editorial

Harmonisation of Copyright

In any sphere of intellectual property, global harmonisation seems little more than a distant dream; and, in a recent article on prospects of further copyright harmonisation, in the European Intellectual Property Review (Vol 25 No 5), Simon A Fitzpatrick sets out the fundamental problem as he sees it. "The most difficult issue that the internationalisation of copyright has faced is the tension between two conceptually different models for the doctrine. The first sees copyright as a social policy instrument calibrated to provide incentives for authors to produce works, while balancing consumers' interests in having access to a rich public domain (the utilitarian or incentive-based theory). The second focuses on the rights of authors to receive the fruits of their intellectual effort and accords less significance to the interests of the consuming public (the personality or authors' rights theory)."

In his view, the recent WIPO Copyright Treaty signals a substantial shift away from the personality theory: he cites the recital in the Preamble to the Treaty, to the effect that the signatories recognise "the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information". It is, however, arguable that the balance referred to in the Preamble is not entirely borne out in the text of the Treaty and that, in any case, the larger public interest is itself rather narrowly circumscribed. Nevertheless, the author's point has some force and is, at least in part, supported by the "utilitarian" tenor of the TRIPs Agreement, with its emphasis on copyright as trade.

Moreover, in spite of the attempts at an international level to promote some degree of harmonisation in national copyright laws, there are manifest differences in the ways in which, for example, national laws tackle the problems of digital copyright. A comparison between the provision of the United States Digital Millennium Copyright Act of 1997, Australia's Copyright Amendment (Digital Agenda) Act of 2000 and the European Union's Copyright Directive of 2001, emphasises only too well the divergences of treatment of the digital problem. In addition, there is a serious "digital divide" between the industrialised and developing countries.

All these factors suggest that further harmonisation is unlikely. At the same time, there is a faint possibility that, by taking greater account of the interests of consumers, irrespective of the "theory" of copyright on which national copyright laws are based, the kind of balance envisaged in the Preamble to the WIPO Treaty may be more readily achieved. The problem is that, as a general rule, consumers have no clear or expert voice in the copyright field. Consumers' associations are relatively ill-funded; they are hard put to it to pay for professional advice; their views are seldom heard in administrative hearings, let alone in legal proceedings; and they carry nothing like the weight of the copyright lobbies. Until consumers are adequately represented, and a proper balance struck between their interests and those of copyright owners, an acceptable degree of harmonisation of copyright laws is indeed unlikely. [10015]