The legal basket
Protection of the public interest – the ‘fair use’ of copyright materials Copyright was initially designed to encourage creativity and invention. This is the reason why it combined two elements: the protection of authors’ rights and the protection of the public interest. The main challenge was to stipulate how the public might consult copyrighted materials to enhance creativity, knowledge, and global well-being. Operationally speaking, this public interest was protected through the concept of the ‘fair use’ of protected materials. Fair use is defined as the ‘use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship’.19 Copyright and development Any restriction of fair use could weaken the position of developing countries. The Internet provides researchers, students, and others from developing countries with a powerful tool for participating in global academic and scientific exchanges. A restrictive copyright regime could have a negative impact on capacity building in developing countries. Another aspect is the increasing digitisation of cultural and artistic crafts from developing countries. Paradoxically, developing countries may end up having to pay for their cultural and artistic heritage when it becomes digitised, repackaged, and owned by foreign entertainment and media companies. WIPO and TRIPS As already mentioned, two main international regimes exist for intellectual property rights. WIPO manages the traditional IPR regime, based on the Bern and Paris Conventions. Another emerging regime is run by the World Trade Organization (WTO) and based on TRIPS. The shift of international IPR coordination from WIPO to WTO was carried out in order to strengthen IPR protection, especially in the field of enforcement. This was one of the major gains of the developed countries during the Uruguay Round of the WTO negotiations. Many developing countries are concerned with this development. WTO’s strict enforcement mechanisms could reduce the manoeuvring room of developing countries and the possibility of balancing development needs with the protection of international, mainly US-based, IPR. So far, the main focus of WTO and TRIPS has been on various interpretations of IPR for pharmaceutical products. It is very likely that future discussions will extend to IPR and the Internet.
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