Creative Economy: A Feasible Development Option

ing at least until the first sale of copies, is a powerful tool inthe fight against piracy because it makes it possible for theofficials in charge of enforcement to seize illegal copieswhere they find them in the marketplace, in addition to havingto track down the person responsible for the act ofreproduction, who often will not be the person offering thecopies for sale to the public.To maintain a fair balance of interests between theowners of rights and the general public, the treaties furtherclarify that countries have reasonable flexibility in establishingexceptions or limitations to rights in the digital environment.Countries may, in appropriate circumstances, grantexceptions for uses deemed to be in the public interest, suchas for non-profit educational and research purposes. Thereare some issues to be dealt with in the context of the WIPODevelopment Agenda.According to the WIPO treaties, countries arerequired to provide not only the rights described above butalso two types of technological adjuncts to the rights. Theseare intended to ensure that right owners can effectively usetechnology to protect their rights and to license their worksonline. The first, known as the “anti-circumvention” provision,tackles the problem of “hacking”: it requires countriesto provide adequate legal protection and effective remediesagainst the circumvention of technological measures (such asencryption). The second type of technological adjunct safeguardsthe reliability and integrity of the online marketplaceby requiring countries to prohibit the deliberate alteration ordeletion of electronic “rights management information”,that is, information usually in the form of metadata that mayaccompany any protected digital material and that identifiesthe creator or other owner of the work, performers, rights,and the terms and conditions for its use.From a policy perspective, “anti-circumvention” and“rights management” technologies pose an important problem:content distributors are free to provide public-domaincontent in media that have “anti-circumvention” and“rights management” technologies in order to improve orenhance revenue streams. However, if the underlying contentis public domain, hacking these technologies to rightfullyaccess the content (in order to reuse, create derivativeworks, redistribute, etc.) becomes a copyright offence. Thusthey may be seen as tools to reintroduce public-domain contentinto the domain of proprietary copyright under traditionalrestrictive licence. Such an extension does absolutelynothing for new talent and provides no incentives to currentor future creators.Additional problems relate to the notion that “anticircumvention”and “rights management” technologies canbe used to decrease the scope of “fair use”. Clearly, makingprivate copies for use in one’s own household, while being an“exception and limitation” to copyright as discussed in part6.4.4, becomes an unauthorized activity if the content isprotected with “anti-circumvention” and “rights management”technologies.Critics of the current legislation argue that citizens’rights of fair use have been eroded. Another point is thatmany works of art are now produced collectively, particularlyin the area of digital media. Because it is based on individuality,copyright cannot adequately address this new context.In analysing the pros and cons of the legal and economicperspective, another approach is that the power of disposalshould be distributed more widely among the numerous culturalentrepreneurs, as a way to reduce the dominant force ofconglomerates control too much of the market. 24At present there is considerable debate around theprinciples of public domain. Some assert that public domainplays a capital role in the fields of education, science, culturalheritage and public sector information. In this sense, it isunderstood as the massive flow of information that is freefrom the barriers to access or reuse usually associated withcopyright protection, either because it is free from any copyrightprotection or because the right holders have decided toremove these barriers. Therefore, as this material is availableand its reproduction costs are close to zero, it becomes theraw material from which new knowledge is derived and newcultural works are created. 256The role of intellectual property in the creative economy24 Joost Smiers & Mariekevan Schijndel (2009), “Imagine there is no copyright and no cultural conglomerates too”. Amsterdam, Institute of Network Cultures, Issue N° 4, 2009.Available from www.networkcultures.org.25 See The Public Domain Manifesto at www.communia-project.eu or www.publicdomainmanifesto.org.CREATIVE ECONOMY REPORT 2010185