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property regimes. This report emphasizes human knowledge as a global public good and
recommends that States should guard against promoting the privatization of knowledge to
an extent that deprives individuals of opportunities to take part in cultural life and enjoy the
fruits of scientific progress (ibid., para. 65).
B.
International regulation of copyright
15.
“Intellectual property” is an umbrella term encompassing a number of distinct legal
regimes that create private property rights related to intangible assets. Specific legal
regimes pertaining to copyrights, patents, trademarks, industrial designs, trade secrets, etc.,
each regulate different forms of intellectual property, defining the types of creations it
applies to, the rules for determining whether specific material qualifies for legal protection
and which types of conduct will be considered to infringe the owner’s exclusive rights, and
establishing the legal penalties for such acts.
16.
Legal protection of copyright interests originated in Europe centuries ago at the
municipal and national levels. Because printing press technology enabled mass
reproduction of written materials, those laws originally related to the reprinting of books
and sheet music. As technology advanced, other genres such as visual art and musical
performances, came to be included.
17.
Bilateral agreements between European States constitute the first supranational lawmaking on copyright. The 1886 multilateral Berne Convention for the Protection of Literary
and Artistic Works was initially signed by fewer than a dozen countries; nevertheless, its
geographic sweep was significant as it also applied to the colonies of signatory nations.
Today, the Berne Convention has 168 contracting parties. In 1994, the World Trade
Organization (WTO) announced its Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS). Incorporating most elements of the Berne Convention by
reference, the TRIPS Agreement establishes a new enforcement mechanism based on
international dispute resolution and trade sanctions. It applies to all WTO members,
although least developed countries have until at least 2021 to comply.
18.
The Berne Convention and TRIPS Agreement are supplemented by several
international conventions regulating copyright and related rights, administered by WIPO.
The International Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations was agreed in 1961; the WIPO Copyright Treaty and the
WIPO Performances and Phonograms Treaty, jointly known as the Internet Treaties, in
1996. International law-making on the topic of copyright continues within WIPO, as well as
through bilateral and multilateral trade agreements.
19.
Considerable concern is expressed today about an apparent democratic deficit in
international policymaking on copyright. Of particular concern is the tendency for trade
negotiations to be conducted amid great secrecy, with substantial corporate participation
but without an equivalent participation of elected officials and other public interest voices.
For example, the recent negotiations around the Anti-Counterfeiting Trade Agreement and
the Trans-Pacific Partnership have involved a few countries negotiating substantial
commitments on copyright policy, without the benefit of public participation and debate. In
contrast, treaty negotiations in WIPO forums are characterized by greater openness,
participation, and consensus-building. Regardless of the forum, concern is often expressed
that powerful parties may use international rule-making to restrict domestic policy options,
advancing private interests at the expense of public welfare or human rights.
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