Creative Economy: A Feasible Development Option

has developed rapidly over the last 50 years. These relatedrights grew up around copyrighted works and provide similarrights, although often more limited and of shorter duration.From the WIPO perspective, they provide protection to thosewho assist intellectual creators to communicate their messageand to disseminate their works to the public at large. Othersargue that this is an unfair practice, since the real authors ofthe artistic creation are somehow compelled to sell theirrights to publishers and distributors for insignificant amount,because they have no other choice.Recent technological developments have dramaticallytransformed the way in which related rights operate. Withregard to the rights of performers, the performance of actorsor musicians, which a century ago ended with the play orconcert in which they performed, may now be fixed on avariety of mechanisms, including radio, television, satellitetransmission and the Internet. What earlier was a localizedand immediate phase of a performance in a hall before a limitedaudience became an increasingly permanent manifestationcapable of unlimited and repeated reproduction and usebefore an equally unlimited audience that went beyondnational borders. The development of broadcasting andtelevision had similar effects.Likewise, the increasing technological development ofphonograms, mainly through the rapid proliferation of digitaland Internet-based media, has resulted in producers ofphonograms and broadcasting organizations calling for betterand greater protection for their produced content as wellas against retransmission of their own programmes by othersimilar organizations. In response, there have been suggestionsby both media industry insiders as well as consumerprotection groups that the current business model of therecording, film and broadcast industries, which requires evergreater content control and legal remedy, is out of step withthe realities of the nature and usage of Internet and digitaltechnologies.6.4.4 Exceptions and limitationsto copyrightDeveloping countries need to have access to productsof creative industries as they seek to bring education to all,facilitate research, improve competitiveness, protect their culturalexpressions and reduce poverty. There are twoapproaches to this problem. The first is to encourage access:certain acts normally restricted by copyright may, in circumstancesspecified in the law, be carried out without theauthorization of the copyright owner, for the benefit of society.The second is that developing economies need to raiseawareness of the existence and potential of content that,while not in the public domain, is copyrighted but madeavailable under alternative and often less restrictive licencessuch as those proposed by the Creative Commons principlesand the free and open-source technology communities.Concerning the first proposition, exceptions and limitationsembedded in the traditional copyright system arepart of the delicate balancing process between the needs ofcreators and creative businesses, and the interest of theirusers, society and the public in access to information andknowledge. The challenge is to achieve the right balancebetween the incentive to copyright owners to commercializethe product and the copyright-based restrictions placed onthe use of protected works.There are two basic types of limitations: free uses andnon-voluntary licences. Free uses are acts of exploitation ofworks that may be carried out without authorization andwithout an obligation to compensate the owner of rights forthe use. For instance, under most national copyright laws, itis permissible to reproduce a work exclusively for the personaland private use of the person who makes the reproduction,provided that this person has already acquired a user licenceby buying the media (a CD or DVD) or agreeing to termsand conditions when purchasing a content file from anonline supplier, or to make quotations from a protectedwork, provided that the source of the quotation, includingthe name of the author, is mentioned and that the extent ofthe quotation is compatible with fair practice. Exceptionsoften include permission for private non-commercial use,quotation, parody, news reporting, and certain educationaland research uses. Non-voluntary licences enable acts ofexploitation to be carried out without authorization but withthe obligation to compensate the owner of rights.In most countries, national legislation codifies exceptionsand limitations with great specificity. It generally designatesa restrictive set of limitations, specific permitted usesidentified and enumerated in detailed rules. Some countries,however, particularly in the common-law tradition, recognizemore open-ended concepts of “fair use” and “fair dealing”.6The role of intellectual property in the creative economyCREATIVE ECONOMY REPORT 2010175