elsewhere

This page highlights developments in other countries and regions. It covers -

• the USA
• European Union
• UK
• Canada
• New Zealand
• China
• Japan
• Other

Particular 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 and sciences'.

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 Rich (PDF) 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 It superseded the 1986 report by the US federal Office of Technology Assessment (OTA) on Intellectual Property Rights in an Age of Electronics & Information.

The US Association of Research Libraries has a page devoted to the DMCA. For a business perspective see Mark Radcliffe's overview in the Journal of Internet Law and Jonathan Band's article 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' 1999 paper Rights On The Net: The Digital Millennium Copyright Act.

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 (USCO) - an arm of the Library of Congress - with less clout and fewer responsibilities. 

     the EU

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 report 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 and 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.

The ECUP 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 Helpdesk. 

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, is profiled on the University of Amsterdam Institute for Information Law site. The Directive is discussed in Europe's Database Experiment (PDF) by Bernt Hugenholtz, Stephen Maurer & Harlan Onsrud and in the 2001 The New Database Right: Early Case Law from Europe paper by Hugenholtz.

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

does 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 of day.

    UK

[Under development]

    Canada

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 (here) 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 submission (PDF) 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, a report on the overall copyright regime.

Other discussion documents have included the paper on Database Protection & Canadian Laws and the paper 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) of 2000.

Other Canadian legislation, similar to that in Australia, includes

the Patent Act (here)

the Trade-marks Act (here)

the Industrial Design Act (here)

Comments on Canadian moral rights cases are here.

     New Zealand

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 are here), 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, 1997 and 1999. 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.

     China

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).

Scott Palmer's An Identity Crisis: Regime Legitimacy and the Politics of Intellectual Property Rights in China (PDF) 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).

     Japan

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.

     Other

WIPO has an online guide to the intellectual property systems of 219 countries.

 



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