Creative Economy: A Feasible Development Option

defined in national legislation. The basic concepts in nationallaw are, however, largely consistent with the provisions ofinternational instruments. The most important of these isthe Bern Convention for the Protection of Literary andArtistic Works; at the time of drafting this report, there were163 contracting parties to the Convention. 4The economic necessity for copyright legislation arisesfrom the need to provide an incentive and a reward for thecommercial production and dissemination of creative works.Copyright supports creativity by giving individuals — andthe creative industries in which they are involved — incentivesto invest time, efforts and money in creating, producingand distributing works. In principle, copyright assures theownership of a tradable right that can be used to secure afinancial return on their investment. 5 Certain legal philosophiesconsider copyright law as originating from the everincreasingneed of society to consume products of creativeindustries and see copyright as the tool to bring the largestnumber of quality products to market where consumers willultimately judge their merit. Others seek the legitimacy ofcopyright in order to gain respect for works of the humanmind and rely on the moral principle that individuals shouldbe rewarded for their creative labour and contribution to culturaldiversity.6.4.1 Exclusive rightsCopyright consists of a system of rights given tocreators in their literary and artistic works at the moment ofcreation provided they are not under contract that specifiesotherwise. 6 These rights are tradable and may be sold to otherindividuals and firms. Creators and ultimately their heirs, orrights owners, hold the exclusive rights to use or licenseothers to use the work on agreed terms. The holder of thecopyright of a work can prohibit or authorize, for example:■ its reproductions in various forms, such as printed publicationor a CD;■ its public performance, as in a play or musical work;■ its broadcasting, including by radio, television or satellite;■ its translation into other languages or its adaptation, suchas the adaptation of a novel into a screenplay.These economic rights have a time limit, according tothe relevant WIPO treaties, of 50 years after the creator’sdeath. National law may establish longer time limits. 7 Thislimit enables both creators and their heirs to benefit financiallyfor a reasonable period. Once the copyright term hasexpired, works fall into the public domain.Copyright provides exclusivity only over the form ofexpression of an idea but not to the idea itself. The creativityprotected by copyright law is creativity in the choice andarrangement of words, musical notes, colours, shapes and soon. For example, it is the way in which an artisan has creativelyexecuted the idea of creating a tea set or the way aphotographer has taken a picture of a specific subject that iscopyrightable, not the idea itself. Copyright law protects theowner of rights in artistic works against those who “copy”,i.e., those who take and use the form in which the originalwork was expressed by the author. Ideas, processes, procedures,methods of operation and facts by themselves may befreely taken and applied or used, subject, of course, to othertypes of limitations.6.4.2 Moral rightsCopyright protection also includes moral rights, whichinvolve the right to claim authorship of a work and the rightto oppose changes to it that could harm the creator’s reputation.Moral rights correspond to the interests of creators inbeing identified as the originators of a particular work, andthe ability to control the conditions that surround its dis-6The role of intellectual property in the creative economy4 According to the Bern Convention, literary and artistic works are protected without any formalities by the contracting parties. If a creator is a national or resident of a country partyto that Convention (or a member of the WTO), or has published the work initially in one of the member countries, his/her copyright will be automatically protected in all theother countries that are party to the Convention. Other major legal instruments include the International Convention for the Protection of Performers, Producers of Phonogramsand Broadcasting Organizations (at the time of drafting this report, there were 86 parties to the Rome Convention, as it is commonly known), the Agreement on Trade-RelatedAspects of Intellectual Property Rights (commonly known as the TRIPS Agreement; at drafting time, there were 151 WTO members, all of which are parties to the TRIPSAgreement), and the WIPO Copyright Treaty (WCT) of 1996 and the WIPO Performances and Phonograms Treaty (WPPT) of 1996 (at drafting time, there were 64 contractingparties to the WCT and 62 to the WPPT).5 For a thorough analysis of the economics of copyright, see Landes and Posner (1989:325, 325-333, 344-353).6 If a creative product is produced under a “work [made] for hire” contract — which is common in the music and publishing industries — the contractor or employer is consideredthe legal author. In this case, the creator of the work may or may not be publicly credited for the work (attribution) and this has no effect on the ownership status. For example,news journals may attribute news articles as written by their staff but will retain the ownership and, from a copyright perspective, the authorship of the articles. In such cases, eventhough the commercial component of the copyright is detached from the real creators, countries that are signatories of the Bern Convention recognize certain non-commercial moralrights that are inalienable under work-for-hire contracts.7 For example, in India, the term is 60 years after the creator’s death; in the European Union and the United States, 70 years; and in Mexico, 100 years. Copyright laws of a widerange of countries can be consulted in the Collection of Laws for Electronic Access (CLEA) database of WIPO at http://www.wipo.int/clea/en/index.jsp.CREATIVE ECONOMY REPORT 2010173