Harry Hillman Chartrand

Compiler Press Review #3, July 1999


Much is made in the popular press of the emerging global knowledge-based economy.  But what is the foundation upon which it is to be built?  Copyright, in my opinion, is one of the four cornerstones of this emerging new world economic order.  The other are: patents, registered industrial designs and trademarks.  Collectively, these constitute the legal foundation for the industrial organization of the emerging global knowledge-based economy. 

Copyright (the subject of this note) varies significantly within the world community of nations.  In effect, copyright is a distinct cultural artifact defining the rights and privileges of a specific country's artists, authors, creators and copyright proprietors.  Even the term 'copyright' is specific to the English-speaking world. 

In Civil Code countries (that is most non-English-speaking nation's of the world including Japan (but excepting bilingual Canada where the Civil Code applies only in French-speaking Quebec, the multilingual Republic of South Africa and India), the appropriate legal term is droit d' auteur or 'author's rights'. There are significant differences between the Anglo-American Common Law and European Civil Code traditions of copyright vs. author's rights. Such differences are explicit in the provisions and commentary of the 1976 UNESCO/WIPO Tunis Model Law on Copyright for Developing Countries which "allow for the Anglo-Saxon or the Rome legal approach..." 

Under the Civil Code, all moral rights and some economic rights are granted exclusively to flesh and blood individuals, or so-called 'natural persons'.  Such creator's  rights, to quote the Tunis Model Law, are: "perpetual, inalienable and imprescriptible".  Furthermore, most "may not be transferred" to another individual (except as an heir) nor to a corporation.

This last point - non-transferability to a corporation - highlights an elemental difference between Common Law and Civil Code traditions, i.e. the Common Law 'fiction' that a corporation has the same rights as a 'natural person'.  This has led to ongoing disagreement between, among others, the United States and the European Union about extending to American corporations the same Civil Code rights granted exclusively to individual creators.

Even within the Anglo-American tradition, however, there are significant differences.  Consider the generic treatment of exemptions from copyright infringement. In Canada, for example, the operative concept is 'fair dealing' which, in essence, means: Everything is an infringement unless specifically and clearly stated in the law. By contrast the operative concept in the United States is 'fair use' which, in the simplest terms, means: Nonprofit use is fair use.

In Canada we are now at the point that a library is required to assure itself that a patron is engaged in bona fide 'research and private study' before making any copies available to him or her. The Governor-in-Council, i.e. the Government in the name of Her Majesty, is authorized by the Act to establish, by regulation, what steps must be taken by a library to obtain this assurance. This is required to obtain a 'fair dealing' exception from copyright infringement!  Similarly, under the Canadian Copyright Act the only thing a teacher can do in the classroom that does not constitute infringement is to hand write information on an erasable surface.  It is, accordingly, with great concern that I see, in the recent passage of the Millennium Digital Copyright Act by the US Congress, 'fair dealing' slipping into American copyright.

Differences within the First World over intellectual property rights, however, pale in comparison with other parts of the global village. In the so-called Second World which emerged out of Communist Revolutions in twentieth century Russia, China, Cuba, etc., all "means of production" were the property of the State. With respect to intellectual property, moral rights of the creator were recognized but economic rights were limited to a onetime cash award with all subsequent rights and rewards reverting to the State.

In  the developing or Third World (or the South) there are historically varied traditions governing copyright. Early Islamic jurists, for example, recognized a creator's rights or copyright and offered protection against piracy. However, traditional Islamic law treats infringement as a breach of ethics, not as a criminal act of theft for which amputation of the right hand is mandated.  Rather, punishment took the form of defamation of the infringer and the casting of shame on his tribe. Only in recent years have formal copyright statutes been adopted in many Islamic countries, e.g. Saudi Arabia 1989. 

In much of the Third World, however, a different tradition exists which recognizes 'collective' or 'communal' or 'folkloric' copyright.  This contrasts with the Western individual-based concept of intellectual property rights. Folkloric copyright recognizes rights to all kinds of knowledge, ideas and innovations produced in what can be called 'the intellectual commons', e.g. in villages among farmers, in forests among tribal peoples, and even in universities among academics.  Such rights are not limited to the lifetime of an individual but rather exist in perpetuity with a specific group or an entire people.   In 1984, UNESCO produced a Draft Treaty for the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Action . It is not yet in force.

      In the Fourth World of 'aboriginal', "indigenous' or 'native' peoples, intellectual property rights are, like in much of the Third World, rooted in a concept of collective or communal intellectual property existing in perpetuity, i.e. not limited to the life of an individual creator plus some arbitrary number of years after his or her death. To tribal peoples, a song, story or icon does not belong to an individual but to the collective. Rights are often exercised by only one individual in each generation, often through matrilineal descent. 

Unlike the Third World, aboriginal nations do not constitute 'States'.  They therefore seldom participate on the international stage. Beyond the 1984 draft treaty on folkloric copyright, UNESCO passed a Recommendation on Safeguarding Traditional Cultures and Folklore in 1989 . Another instrument was drafted by indigenous peoples themselves in 1994: International Covenant on the Rights of Indigenous Nations. This 'pseudo' covenant articulates a distinctive Fourth World approach to intellectual property rights.  To date, however, 'folkloric' nor 'aboriginal heritage rights' have no standing in the courts of the world.

Differences in the 'spirit' of copyright law in the different neighbourhoods of the global village are increasingly important in an emerging global 'knowledge-based' economy.  It is in the nature of a global economy that national laws governing trade in goods and services are increasingly subject to 'harmonization' for purposes of 'free' trade. For example, a common definition of a subsidy for purposes of the World Trade Organization is under development.  All things being equal, this definition will eventually be agreed upon and implemented.  This will inevitably inhibit the ability of national governments to develop and apply different and distinctive economic policies, rules and regulations favouring their own nationals - natural and corporate.

Copyright, however, since the Berne Convention of 1886, is subject to a milder constraint: 'national treatment'. This means a nation extends to foreigners the same rights and privileges that it grants to its own citizens - both natural and legal, i.e. corporations. Such rights need not be the same.  Rather, the same rights must be extended to citizen and foreigner alike within any Member State.  Thus the rights of a Canadian artist in Canada are not the same as those of an American artist in the United States but the rights of a Canadian artist in the United States are the same as a resident American artist. In addition, Civil Code countries tend to recognize rights like "droit de suite" or 'rights of following sales' ensuring that visual and literary artist receive a percent of any subsequent sale of their works.

Beyond the narrow definition of copyright (or author's rights) other related matters lay lurking waiting to emerge in the full light of the new millennium.  In my recent compilation of 43 copyright related multilateral agreements, conventions, covenants and treaties, two deal with the trafficking or circulation of obscene materials - a hot subject on the Web today.  Others deal with: the 'Status of the Artist'; integrated circuits; satellites; broadcasts from outside a nation's frontiers; and many more subjects.  In addition some countries are taking steps to use copyright as an economic incentive.  The Republic of Eire (Ireland) thus exempts copyright income earned by individuals from income tax.  One can expect that new and ingenious fiscal and tax policies will be adopted by various countries in an attempt to generate the 'creativity haven' of the 21st century.