APPENDIX III ARTICLES [Copyright Society of the United States (1980), reprinted with permission] 380. INTERNATIONAL COPYRIGHT IN THE 1980s-The Eighteenth Annual Jean Geiringer Memorial Lecture* By STEPHEN STEWART** INTRODUCTION Thank you for inviting me to deliver this memorial lecture. I consider it a great honour firstly because of the distinguished audiences attending these lectures; secondly because your lecturers have included such eminent jurists as Professor Bodenhausen and Professor Ulmer, such great practitioners of copyright as Erich Schulze and Jean-Loup Tournier, such great public servants as Elisabeth Steup and William Wallace; and last but not least because of the great admiration I have always had for the achievements of Jean Geiringer. When your former President invited me he asked me with typical generosity to suggest a topic. I chose International Copyright in the 1980s because I believe that the whole copyright system is approaching a crisis and that an analysis of the underlying causes of this crisis may help to overcome it. If I get it wrong there will be many in this audience, and even more outside, to put me right. If, however, the attempt of an analysis fosters an informed debate on how to deal with the crisis the choice will have been justified and, I think, Jean Geiringer would have approved. Consider that copyright, to be viable in the 1980s, has to be truly international and that international copyright as we understand it is of fairly recent vintage. There have been periods of great flowering of Western civilisation such as the Greek city state, the Roman Empire, the European Renaissance, during which copyright did not exist. There are still many countries today where copyright either hardly exists or where it does not effectively operate. Practical enforcement of international conventions, even in such vital matters as health or sea or air law, is *This lecture was delivered in the Auditorium of New York University School of Law on November 17, 1980. **Stephen Stewart is a member of the English Bar and a Queen's Counsel. He was from 1960-1979 Director General of IFPI (the International Federation of Producers of Phonograms and Videograms). 0010-8642/81/02/351 - 29/$2.00/0 352 Bulletin, Copyright Society of the U.S.A. proving very difficult. Consider further that copyright deals with the theft of immaterial or intellectual property which is a concept much more difficult to grasp than ordinary theft and far less deep rooted in the public consciousness of what is right and what is wrong. It is on that public consciousness that all laws and particularly those with a criminal content are based. Convincing the general public even in the great democracies that copyright infringement is theft is a long and arduous process, scarcely begun. Consider finally that technological development in the last twenty-five years has probably been faster and more far reaching than in any previous period of our history. Legislators will have constantly to be persuaded to revise copyright legislation to catch up with technology, when they have been used to doing it only every fifty years and, according to their lights, have “more important things to do." Taking all of this into consideration, you may, before you leave this hall, agree with me that we are entering a crucial period in the development of international copyright. To describe it as a crisis is not alarmist; to treat it as such is merely prudent. 1. The Challenges of the 1960s and '70s Before analysing the crisis of the 1980s and trying to see how it can be met, I would like to ask quite briefly what the challenges of the 1960s and 1970s have been. I would suggest that they were of three kinds, two of which have been largely met and one of which has not. The first challenge to international copyright in the 1960s and 1970s was the fear that a totalitarian philosophy may negate the whole concept of intellectual property on the grounds that all creative people should find their fulfilment in dedicating their work to the community represented by the state. The state, in return, will look after the artists' material needs. Therefore, in totalitarian countries, individual rights are unnecessary and may be positively harmful. As countries with that sort of philosophy became more common it was feared that the philosophy might spread to other still uncommitted countries and destroy the whole concept of copyright as a private and individual right. Or, it was feared, it would at least gradually reduce the international level of protection. The U.S.S.R., which was regarded as the original exponent of this philosophy, did not press the attack. And, although the Russian system differs in several material aspects from the patent and copyright systems of the Western countries, the U.S.S.R. has in the 1960s and 1970s joined both the Paris Union and the Universal Copyright Convention. The Russians struck a hard bargain. Since they joined the UCC in its original form and since their ratification was not retrospective, they became entitled to use the whole of the then-existing foreign repertoire without remuneration. Stewart. International Copyright in the 80's. 353 What matters most, however, is that the VAAP, the state-owned monopoly society in the Soviet Union, is building up a network of agreements with foreign collecting societies which are based on copyright principles. These agreements are being meticulously honoured. The fact that the countries of COMECON, with whom the Soviet Union has close trading ties, have old, established and rather sophisticated copyright laws and that these countries were early members of the international conventions has, no doubt, also played a part. Recent developments in the other major community power, the People's Republic of China, also suggest that the new government of China is not averse to recognising intellectual property rights. Bilateral agreements may be the first step to bringing China into the international copyright community. The day when it may join one of the international conventions is not as far away as it seemed until quite recently. The second challenge to international copyright in the 1960s and 1970s came from the developing countries. This challenge was not based so much on ideological grounds. It was based on the practical proposition that the developing countries needed and welcomed the intellectual property of the western world, but were too poor and certainly too short of hard currency to pay for it in the same way as developed countries did, and further they did not have any copyright material which could readily be offered in exchange. The implied challenge was that if the developing countries could not be accommodated, they might opt out of the international copyright system, at least for the time being. In this case, they would take what they needed without payment, saying that that was, in effect, what the two super-powers had done in the not too distant past. An attempt to meet this challenge was made at the Stockholm Conference in 1967 and the Paris Revision Conference in 1971. A system of compulsory licences was developed, carefully structured to give mainly to the publishers of the western world an opportunity to meet the needs of developing countries before these compulsory licences come into effect. Although less than a decade is not long enough to judge, there are indications that workable, practical compromises are being found based on this system without actually having to resort to compulsory licences. The untiring efforts of WIPO, the World Intellectual Property Organisation in Geneva, to assist the developing countries in practical ways, and the catalogue of available works established by UNESCO contributed to making a successful solution of these problems in the 1980s and 1990s a practical possibility. The third challenge of the 1960s and 1970s—that posed by rapidly changing technology-has not yet been met. However, the problems posed have been well researched both nationally in several countries and internationally so that the areas where legislative action is necessary have 354 Bulletin, Copyright Society of the U.S.A. been identified. Possible solutions which should be adopted in the 1980s are emerging. The most important of the problems are (1) reprography, (2) storage and retrieval systems, (3) the illicit extension of the sphere of private copying as a challenge to the reproduction right, and (4) cable and satellite broadcasting as a challenge to the broadcasting right. The material copied by reprography which is copyrighted material—and a lot of it fortunately is not-consists mainly of literary works and particularly technical and learned journals. Private copying affects mainly musical copyrights and will affect motion picture copyrights as soon as videograms become widespread. Satellite broadcasting and distribution by cable affect a wide group of copyright owners. Although the problems of new technology affect different copyright owners, I submit that the solutions which are emerging have several essential characteristics in common. In trying to summarise these emerging solutions I shall probably be guilty of several over-simplifications, for which I apologise. I must also, where there are still differences of opinion, give my own-which I am sure you will scrutinize most critically. II. THE EMERGING SOLUTIONS 1. Computers After intensive research and debates it has, I think, been agreed that "software", i.e. the computer programme, is a "work" in the copyright sense and should enjoy copyright protection. It has also been agreed that the copyright owner has a right to control the use of his work at the input stage. What is still being debated is whether the copyright owner, in exercising his absolute right, can be left to make agreements with the computer users or whether compulsory licencing systems are necessary. However, these solutions have all been debated against the background of the technology of the 1960s. I believe that possibly already in the 1980s or at latest in the 1990s we may see the computer replacing the printing press to a large extent. Then, the user will be able in his office and perhaps even in his home to have a machine linked to a central information store by which he can have extracts or copies made of the works he wishes to use. Bearing in mind that the modern concept of copyright arose largely from the invention of the printing press, even the partial replacement of the printing press by computers would amount to a revolutionary change. The copyright owner will then have to exercise his reproduction right at the input stage and look to the computer disseminator for his royalties in the same way that he has looked towards his publisher in the past. I susggest that when that stage is reached, the burning question of whether there should be compulsory Stewart. International Copyright in the 80's. 355 licencing or whether the copyright owners can control this new reproduction right through their societies and bulk licencing will assume a second-rate importance for reasons which I hope to show later. 2. Videograms Videograms have been defined as audio-visual recordings fixed on any form of material support. Under most legislations a videogram will be a cinematographic work, although there is a school of thought originating in French law which takes the view that a mere sequence of images is not necessarily a work. A videogram differs, however, from a motion picture/film because it is intended to be used in the home and not in a theatre and because it will probably be sold as well as hired out. In both these respects it will resemble the phonogram. It is too early to say which material support will appeal most to the public and whether, therefore, videograms will be published mainly as video cassettes or video discs, or both. Video cassettes seem geared mainly to making recordings from television sets and video discs seem to be used with playback equipment, thus offering a wider repertoire at a lower price. If that proves correct, videograms will resemble phonograms in this respect also, using both tape and disc as material support. They will have the same piracy problems as phonograms have had and are still having in some parts of the world and the same problems of private copying, both from borrowed videograms and off the air. The videogram has so far been mainly used in industrial and technical instruction and for educational purposes. When it comes into its own in the entertainment field, it will, having at first used existing material, eventually develop its own art form for audio-visual entertainment and education in the home. The copyright problems it will pose will be those of the phonogram and the motion picture film combined. 3. "Private Copying" This constitutes a serious challenge to the reproduction right. It was originally viewed as an extension to the "private use" exception which exists in most legislations and in the international conventions. But examination of the history and the extent of the private use exception shows that this form of reproduction, although practiced mainly in the privacy of the home and not for commercial purposes, is in fact not an exceptional use but an abuse of the reproduction right. The proviso of Article 9/2 of the Berne Convention, which is contained mutatis mutandis in most copyright legislations, lays down that such exceptionally permitted private use must “not conflict with the normal exploitation of the |