COPYRIGHT AND INTELLECTUAL PROPERTY

Copyright is one device among seven that protects intellectual property. The other six are patents, industrial design, trademarks, trade secrets, integrated circuit topography rights and plant breeders’ rights. These devices are used singly and in combination not just to protect intellectual property so that benefit may accrue to creators or, more generally speaking, those who own or license intellectual property. (These benefits are seen as incentives to undertake and publish intellectual work.) They are also structured to balance rewards to owners of intellectual property with the needs of society. Thus copyright, can be seen in the context of other devices as a weak form of intellectual property protection because it protects the expression of ideas, not ides themselves. Also, copyrights and patents have explicit terms in which the creator or owner can exploit monopoly control. At the end of the term, which is shorter for patents and longer (50 years after the death of an author) the work enters the public domain. Each provides for an orderly exploitation of rights. Copyright can be distinguished from other forms of intellectual property protection on the basis that it includes the concept of moral as well as property rights.

AUTHORSHIP AND INTELLECTUAL PROPERTY

The notion of copyright has at least two different roots. One is in a conception of intellectual effort. A second is in the desire of societies to control the publication and hence dissemination of ideas. Both roots have led to the establishment of national laws with respect to copyright and to international agreements dealing with the flow of copyrighted materials across borders and their protection in countries other than the one in which they were created.

The authorial root of copyright takes into account Foucault’s notion of authorship as “the privileged moment of individualization of ideas” (Rabinow, 1984:101). However, such a notion of the role of the author and the nature of what an author creates is rooted not in ancient history but in the Romantic period, a time in which the notion of the individuality and originality of authors was stressed. In contrast, for Plato and Aristotle, authors were seen as artisans. The approach of classical Greece carried through to Shakespeare’s day. The notion of authorship as creative individual genius was neither assumed nor pursued in the late 16th and early 17th centuries. Playwrights borrowed plot lines and dialogue freely and without attribution. The 17th century playwright was seen as a kind of wordsmith attached to a troop of players, a vision not too different from how a film scriptwriter is viewed in current times. The task of the playwright was to put into memorizable, understandable, and clever words a plot line that was agreed to by the troop.

Responsibility for the success of the play did not rest solely with the wordsmith. After all, the abilities of the actors to engage the audience did not derive solely from the words they spoke. (Saunders, 1992). Similarly, speaking historically, in China authorship and originality was eschewed in favour of editorship. Since everything, in the end, belonged to the emperor, and the main purpose of written work was to provide interpretations of the great books within the prevailing ideas of the time -Confucius only ever claimed to be an editor or explainer- to claim authorship was to risk all and to risk it for nothing (Ze, 1994).

Aide (1990) traces the Romantic conception of the author in the English-speaking world to Edward Young followed by Goethe, Kant, Schiller and Fichte. To Young he gives credit for the initial Romantic idea of authorship. Young’s idea was that an author was not merely an imitator of nature but an original creator, a genius whose originality rose spontaneously from his living being (Aide, 1990:215). To Kant Aide attributes the emphasis on genius as an internal organic force enabling the lucky person to “find Ideas for a given concept, and moreover to express those Ideas in such a way that the subjective state of mind accompanying the concept can be communicated to others” (Aide, 1990:215). Schiller extended Kant’s ides beyond fine art to all the arts underlining the sensitivity and naiveté of the artist. Fichte distinguished between the content of a book (the ideas the book presents) and its form (the combination of phrasing and wording in which the ideas are presented).

Aide also nods at Rousseau, Shelley, Keats, Wordsworth and Blake in describing the Romantic conception of the author. Rousseau’s iconoclasm and self-celebration placed the artist as a self-adsorbed solitary wanderer. He quotes Shelley: [a] poet is a nightingale who sits in darkness and sings to cheer its own solitude with sweet sounds”. And Keats: “I never wrote one single Line of Poetry with the least Shadow of Public thought.” From Wordsworth he selects: “Poetry is the spontaneous overflow of powerful feelings.” And, finally Blake: “Hear the voice of the Bard/Who Present Past and Future sees” (Aide, 1990: 217-218).

Aide uses Walter Benjamin (1932:1978) to put romanticism in a modern perspective. From Benjamin he takes note of the technological closing of the gap between reader and writer. Mechanical reproduction allowed more and more readers to become authors and to have their writings distributed widely. This widening of access weakened the notion that all authors or artist were geniuses. But, Aide argues, it did not weaken the foundation of moral rights. Other authors e.g., Kernan, (1987:6) similarly treat mechanical reproduction as a turning point in the notion of the genius author but at the same time recognize the continuance of the notion of moral rights.

In contrast to the above, and writing in an anglo-saxon context, Saunders (1992) puts forward the thesis that the history of copyright might better be seen as an attempt to bring order to the book trade and that while it may be couched in terms of authors’ rights, in fact copyright has served primarily as a mechanism for the orderly exploitation of rights by publishers. Tied to this conception of copyright history are the politics of ideas and the control of society first by unitary and increasingly by diverse elites.

THE RIGHTS OF AUTHORS

In today’s world, so accepted is the notion of individuality and originality as intrinsic to artistic creation that the rights of creation of a literary work fall to the author in a seemingly natural fashion. Early hints of this seemingly natural process can be seen clearly in Fichte’s writings. In his notions of content and form Fichte provides an articulation of the basic nature of the modern form of copyright. His emphasis on the individuality in the form of an expression of content provides the foundation of a moral or personal right as well as a property right. He noted that the form of the expression was indeed the author’s and was perpetual in the sense that “each individual has his own thought processes, his own way of forming concepts and connecting them” (Aide, 1990:216). He noted further that ideas or content may not be owned but exist as part of the world at large.

A perspective such as that of Fichte’s puts the author’s personal or moral rights forward as supreme. The dualist perspective of copyright that prevails in France where authors’ personal rights (droit moral) exist in conjunction with property rights provides strong recognition of moral rights alongside property rights.

The anglo-saxon tradition provides both a different foundation and emphasizes property rights. The desire of society to have an orderly book trade and hence be able to hold someone accountable for what was made public, specially in an age of mechanical reproduction of writing, had much to do with the formulation of the 1709 Statute of Anne, the formal beginning of anglo-saxon copyright law. These concerns with accountability were extended into the 19th century when authors, building on the efforts of such notables as Samuel Johnson (Kernan, 1987:6) were becoming independent professionals free from the strictures imposed by patrons and capable of making a living from their writing. Vaver (1987) claims that it was really only in the 19th century that the moral rights movement gained momentum in the English-speaking world. By the early 20th century, traders were receiving protection for their goodwill against misrepresentation and others could not use names or marks deceptively similar to an existing trader. This, Vaver argues, translated into the moral or personal rights of authors (1987:754).
From a perspective emphasizing property rights, personal or moral rights provide the basis for an author to gain through attribution of his work, to establish individuality, independence and hence, market value. These rights go beyond the protection of an author’s reputation and, in the US reach for their roots into the notion of privacy where both dignity and freedom to conduct personal affairs are respected. Such was the opinion of the US Congress in considering whether there was a foundation for the acceptance of the notion of moral rights within US law when it was considering joining the Berne Convention (Damich, 1990).

THE MODERN INTERNATIONAL SCENE

The Berne Convention has become the basis of modern copyright law particularly because it has recently been accepted by the US, and indeed, by China, the former Communist bloc, and other Third World countries. Four particularly important elements of the Berne Convention are:

1. national treatment for all authors, that is, all authors, regardless of origin, are
   given the same level of treatment as that obtainable by nationals of a country;
2. a minimum time period of protection, for literary works it is 50 years after the 
   creation of the work, for film it is 75 years after the creation of the film;[3]
3. the acceptance of two sets of rights, property rights and moral rights;
4. the recognition of two elements of moral rights, paternity and integrity.

Because national treatment (foreign authors have the same rights as nations) and minimum time periods (e.g., 50 years beyond the death of an author) are relatively familiar to most authors and publishers, I wish to say a few words on assignment of rights and then turn to moral rights.

Perhaps the most contentious issue today is the assignment of electronic rights. Historically, a publishing contract between an author and a publisher has been, most often, an assignment –meaning a transfer of ownership of rights. Less common but more frequently used in the magazine industry and in modern Britain, is a license of certain rights by the author to the publisher for the purpose of mutual benefit. Publishers’ preferences for assignation of all rights and, indeed, their assumption that they should be able to extend their rights to cover electronic rights is unwarranted. Cases proceeding through the courts in both the periodical and book industries in the US, and the periodical industry in Canada suggest that their claims are unlikely to upheld. Authors’ agents have also been active in bearing back the claims of publishers and allocating only those rights, for example, reprint rights, translation rights, serialization, and electronic rights that a publisher is able to actively pursue (for the mutual benefit of author and publisher).

In cases where neither author nor publisher may be in a good position to pursue rights sales and/or when few rights sales can be anticipated beyond the initial sale, the development of a clause allowing each of the author and publisher to pursue jointly or separately the exploitation of rights beyond those intended to be exploited actively by the publisher would be a useful reminder of the nature of the publishing contract to both parties. Currently, in the scholarly community, a rather prodigious struggle is taking place between scientists and scientific journal publishers in which the control over copyright and hence dissemination of knowledge is being hotly debated.

MORAL RIGHTS: A REFRESHED ELEMENT IN COPYRIGHT

Moral rights have always been a part of Canadian copyright law. However, in so far as that law is largely inspired by the anglo-saxon tradition, moral rights have been a weak element that has not received much attention. Recent changes to the Copyright Act, the requirement that the US recognize moral rights in order to join the Berne Convention, and international trading disputes have renewed interest in moral rights. In joining the Berne Convention a deal was struck where the US did not include moral rights within its copyright act but determined that moral rights were not contradictory to US law.

Moral rights have nothing directly to do with morality. They are related to the reputation of an author and how the treatment by other rights holders of an author’s or creator’s work affects that reputation. They are akin to the historical sense of a trademark, a sign of the reputation of the trader. They might be better termed personal rights but, in keeping with their legal name, I shall refer to them as moral rights.

Moral rights derive from the work as an expression of the author’s personality. In theory, moral rights are most strongly expressed as perpetual, inalienable and imprescriptible. The provision of perpetual rights forbids anyone at any time from claiming authorship of, distorting, or mutilating any piece of intellectual property which the claimant did not create. The inalienability of moral rights means that they cannot be sold or otherwise transferred to another person, although, they may be waived and may descend after death. The notion of imprescriptibility forbids the taking away of such rights by any state or other authority.

In France, there is a history of protection of moral rights which Damich (1990) and Gibbens (1989) have reviewed, the former in a US context and the latter in a Canadian context. That history provides a perspective of the possible strength and operations of moral rights. The existence of moral rights in France leads to four derivative rights. The first is a right of disclosure. The author has the right to decide when and if a work should be disclosed to others. A delivered draft manuscript to a publisher for editorial input would not appear to allow publication by the publisher even if the author were under contract to produce the manuscript by a date already passed. The author’s consent must be obtained for publication. The second is a right of attribution. The creator of a work has the right to be identified with a work if s/he so wishes. Alternately, s/he may choose to have it identified pseudonymously but the author has that inalienable right. The third is a right of integrity. The author has a right to prevent any modification of a work without consent. The work must remain a true representation of the author after it has been disclosed and for that to happen any modification must be undertaken with consent. Thus a strict duty of fidelity is imposed on any reproducer, such as the performer of a song. The right of integrity does not forbid changes, for instance, modifications when moving between media, but it does forbid distortions without the author’s creator’s consent. The right of inalienability can be softened to provide for contracts to allow for modifications. Such contracts may provide for unconditional adaptation (as long as the adapter is working in good faith with respect to the character of the original), for adaptations that do not infringe upon the spirit and character of the original, or for no modifications without approval of the author providing that the author does not unreasonable withhold consent. The law also allows for parody and satire.

The fourth moral right is the right of retraction. Notwithstanding the transfer of the right of exploitation, the author, may, even after publication of the work, chose to modify or withdraw the work from the person to whom the author has transferred rights of exploitation. The exercising of this right may cause compensation to be awarded to the transferee for already committed investments.

MORAL RIGHTS IN CANADA

With the 1988 passage of a set of amendments to Canada’s (1924) Copyright Act, moral or personal rights have been strengthened. The author’s right of integrity now includes a right not to have the work used “in association with a product, service, cause or institution” which might damage the author’s honour or reputation. Artistic works are protected against distortion, mutilation, or modification, however, total destruction is not forbidden. Paternity (attribution of authorship) rights are accepted and defined as the right “to be associated with the work as its author.” The rights are not perpetual but are tied to the duration of the copyright and descend to the first direct beneficiary of the author’s estate. The amendments are silent on further extension. Moral rights may be waived but they may not be assigned. An author must take action against infringement within three years and the same range of remedies applies to moral rights as to property copyright infringements. Rights of retraction, rights to prevent destruction, and a perpetual term are not included. And, as Gibbens (1989:449) points out, there is no provision for the before-the-law representation of the community, that is to say, for someone to appear speaking on behalf a community that, for instance, values a piece of art as part of its milieu.

Vaver (1987; 1989) argues that the absence of retraction rights, anti-destruction rights and rights in perpetuity are serious omissions from the perspective of authors. The lack of retraction rights leaves authors only with the ability to disown a work publicly and with the inability to withdraw and modify a work. The lack of anti-destruction rights is most obviously applied to sculpture. In authorship, a purchased manuscript –as opposed to one which assigns distribution rights to a publisher- could conceivable by destroyed. The lack of protection of moral rights in perpetuity may open doors to unapproved use beyond whatever term the courts decide is appropriate. However, on the opposite side of this issue, the explicit and strong statement on the author’s right of integrity, i.e., not to have the work used “in association with a product, service, cause or institution which might damage the author’s honour or reputation” may inform the courts’ decisions. In opposition to perpetual moral rights is also the notion that no one but the author can know what choice the author might make in a particular situation and the author’s choices in life might take quite a different turn if s/he could speak from the grave. One of Sylvia Plath’s diaries was apparently destroyed by her husband after her death. Since he controlled her moral rights the destruction was legal. However, her friends claimed that she would not have destroyed the diaries. Is an heir the best person and should s/he be the only person to judge? The placing of the moral rights of authors in the hands of heirs in perpetuity also pays no heed to the principle of the preservation of the artistic heritage of society.

The most serious flaw from the perspective of the moral rights of authors appears to be the opportunity for waiver of moral rights. Vaver (1987:774.775) argued that it would appear that a blanket waiver clause will become the norm in the industry and indeed, to a considerable extent, it has. Such a waiver would facilitate trade, for example the sale of subsidiary rights (the making of books into movies) and would thereby enhance the property rights associated with a work. The bargaining position of the single author in comparison to the publishing company suggests that for blanket waivers not to become the norm will require action by writers’ groups (Vaver, 1987:131). On the other hand, corporations many claim moral rights for photos and sound recordings and also as proxies for their employees moral rights and, with their economic power, prevent usage of their creations quite effectively (Vaver, 1987:129). Gibbens (1989:467) notes that society may lose from this situation through a lack of preservation of authenticity.

TRADING REGIMES, MORAL RIGHTS, AND PROPERTY RIGHTS

The above discussion of moral rights focuses on the nature of authorship, creativity, individualism, and the association of those moral characteristics with a particular person. Property rights are distinct, although not separate, from moral rights. Their focus is on the economic benefit that can be enjoyed by the author and by others with whom the author contracts on the basis of what the author has created. However, it is property rights that form the basis for trading in intellectual property. Further, trade, especially international trade, is conducted within a set of procedures that pay some but not complete attention to the character of that which is being traded.

To be specific, trade is carried out within what has been termed trading regimes. Trading regimes are sets of principles, norms, rules and decision-making procedures which govern international relations in a defined area. Their purpose is to harmonize industry and policy, reduce transaction costs and uncertainty, and settle disputes (Krasner, 1983; Keohane, 1983, in Acheson & Maule, 1994a). Regimes may be made up of international trading agreements such as WTO, NAFTA and the FTA, agreements reached within international associations such as OECD, WIPO (World Intellectual Property Organization), the EC, the Council of Europe, specialized treaties (for instance on co-productions), the operations of and agreements between private organizations such as publisher’s associations and professional unions, and domestic policy delivery bodies such as the CRTC.

Trade in culture has emerged recently as a contentious issue. Cultural content may be viewed either as a service or a good. Trends, especially within NAFTA and the WTO point toward seeing cultural production as a service, a circumscribed right to material that can be traded and is carried by a good, a film, a recording or any other technological system (television broadcast and reception).

WTO

Viewed as a service, culture and cultural products may be given special treatment in trade negotiations as has happened since 1947 to the Uruguay Round of GATT and in more recent meetings of the WTO. From the Uruguay meeting forward, proposals have been put forward for a Framework Agreement as part of a General Agreement on Trade in Services (GATS). GATS pursues the liberalization of market access and the granting of national treatment to trading partners (as in copyright law). Countries may choose to list or not to list a service sector and Canada has indicated that it will not list the cultural service sectors. This is fine enough but the impact and viability of not listing cultural services depend on parallel actions in other countries, a clear demarcation of what is a cultural service as distinct from intellectual property that is non-cultural, and a continuing determination to resist pressure from the US for including all services as it attempted in NAFTA.

Two other draft WTO texts are relevant to cultural industries. They deal in Trade Related Intellectual Property measures (TRIPs) and Trade Related Investment Measures (TRIMs). TRIPs exclude the consideration of moral (personal) rights. The purpose of TRIMs is to restrict the ability of countries to provide special assistance to national producers and hence national expression.

THE CANADA-US FREE TRADE AGREEMENT (FTA)

While in the FTA Canada reserved the right to exempt cultural industries, such inputs as printing were not made exempt and national treatment for the cable redistribution of distant signals was extended to US stations. Divestitures of Canadian book publishing operations that were required by the Baie Comeau policy were maintained but with provision for recompense at fair market value. The provision to typeset and print magazines was maintained but has been successfully and permanently rendered obsolete by the actions of Sports Illustrated (owned by Time Warner). Sports Illustrated sent electronic signals to a Canadian printing plant for the printing of a Canadian edition of its magazine. But most importantly these rights were constrained by Paragraph 2 of Article 2005 permitting either country to retaliate in response to actions that would be inconsistent with the general principles of the FTA.

NAFTA

Nafta extends the provisions of the FTA with regard to cultural industries buy entrenches copyright norms consistent with Berne through changes made in 1993 to implement NAFTA. However, because NAFTA binds countries unless exemptions are explicitly stated (rather than the reverse with the FTA), the possible extension of NAFTA to other nations which may not insist on “keeping culture off the bargaining table” was viewed with some caution by Canada as it will weaken our position. When NAFTA was extended to Mexico and Mexico did not insist on setting cultural industries aside, this fear was borne out. Moreover, as the US proved in its actions with respect to exporting magazines into Canada, given the reality of massive US entertainment imports from the US, the NAFTA exemptions were a weak stop-gap measure which were defeated by a judgment of the WTO. Subsequent to the first publication of this paper, Canada attempted unsuccessfully to prevent US magazine publishers from printing Canadian editions of their magazines in Canada with new ads –so-called split-runs. Having been defeated by a combination of WTO rulings and US pressure, Canada has retreated to providing financial support to Canadian magazine industry in an attempt to strengthen it against potential US competition.

THE EC AND WTO

The actions of the European Union, led by France and the extension of those actions into the final minutes of the 1993 Uruguay Round of GATT are important precedents for Canada. The position of France is that cultural products are cultural first and economic secondarily. Basically France has refused to negotiate in the area of cultural activities partly because there is no cultural exemption possible in WTO or TRIPs. Such a position reflects the supremacy of moral rights in copyright law in France and builds upon de notion that cultural products are an expression of a community first and foremost. This position allows the preservation of the numerous domestic regulations in the operations of cable and broadcasting in Europe. In France, Scandinavia, Italy, the Netherlands and other countries the importance of broadcasting as a cultural activity is underlined. In France and in Scandinavia these policies extend into print. Within Europe, on the other side of this issue are anti-dirigistes, the British culture industry and the Eurocrats in Brussels, especially in the economics-oriented divisions.

THE OECD

The OECD code of Liberalization of Current Invisible Operation, known as the Code of Invisibles, also exhorts countries to liberalize trade in services. Within the OECD, however, are two mechanisms that may be used to exempt cultural activity from foreign investment and takeover. In the Code of Capital a list of reservations may be put forward. Canada lists activities related to cultural heritage or national identity including the communications and cultural industries. Member countries can allow use and instrument entitled National Treatment for Foreign-Controlled Enterprises which allows for the filing of exceptions.

PRIVATE ORGANIZATIONS: THE ILO

The International Labour Organization (ILO) produced a report on the Conditions of Employment and Work of Performers (1992). Among many other issues the report deal with performers rights and with the ability of performers to work in other countries. Such conditions come up for discussion in overall discussions of relevant policies.

REGIONAL ORGANIZATIONS

Regional organizations such as in Scandinavia, Europe, Latin America, and la francophonie also have agreements to promote and develop cultural industries and in film co-production treaties abound.

These various international agreements and activities interact with copyright law and other intellectual property law. Coming out of concerns with international trade, as is apparent from the above discussions with international trade, intellectual property is already differentiated from trade in goods by being considered a service. Yet even as a service, property rights are emphasized over moral rights except for performers in TRIPs. Such an emphasis has led to what has been termed “instrumentalism” and the postulation of an opposing approach, termed by the instrumentalists as “a natural rights approach”. Instrumentalism views creators’ rights as a prescription of policy for the benefit of society and manipulable for the benefit of society. It also tends to see benefits in economic rather than cultural terms. Instrumentalists see the natural rights approach as beginning with a premise of an inalienable or basic right and working with that premise as is possible. The natural rights approach tends towards an emphasis on the primacy of moral rights. The notion of instrumentalism appears to distort the consideration of intellectual property by downplaying its nature as developed by the Berne Convention. Thus on the one hand we have the US finding a way to abide by the inclusion of moral rights in Berne –jus- and then on the other we have the promotion of a perspective –instrumentalism- which runs counter to the acceptance of moral rights as an intrinsic element of intellectual property.

IMPLICATIONS –CIRCA 1995

This paper was originally published in 1995 and I drew the following implications from the above discussion. Intellectual property is nested in a variety of laws, customs, policies, export/import regulations, trade initiatives, international organizations, domestic regulation, and so forth. I have considered some of the more salient elements in this essay. They and others open up into other relevant areas such as status of the artist legislation, income tax regulation, even international differences in freedom of information and concepts of libel. All have an impact on the interest of artists and cultural entrepreneurs.

Cultural and entertainment-exporting nations are anxious to expand further into international markets. Such countries, for example, the UK and the US and, to a lesser extent, Brazil, Mexico, India, Singapore and Japan tend to emphasis property rights, instrumentalism, entertainment versus culture, intellectual property over cultural products, and tradability. They use these emphases to challenge the basis that importing countries use to protect domestic industry. They also initiate actions in other theatres. Thus the requirement that satellite signals must obtain only copyright clearance from countries from which programs are unlinked –now the case in the EC but unresolved in North America- favours exporters who in turn lobby their governments for sympathetic legislation. The establishment of rental rights is just one element. Rental rights are a form of price discrimination allowing the producer to charge more to the purchaser who intend to rent to the end consumer. (As of 1995 they existed for audio products in the US but not for audio-visual products. They existed in Canada as of 1994 for computer programs and records and may be extended in the further amendments to the Copyright Act.) Such rights may reward artists and producer but they may also serve as a foundation for an assault on universal, free public access to information and knowledge. Indeed, Canada has instituted a tax on CD’s and cassettes which flows to the recording industry, much to the consternation of those in other industries who work with such materials.

Nations that are significant net exporters of cultural products desire to increase the tradability of intellectual property because the balance of trade is in their favour. This is not surprising but it does not mean that enhanced tradability is a negative element of cultural activity even for net importing nations. The international recognition and consumption of products produced at home by international audiences has economic as well as social benefits. The terms of trade are the important element. Most exporters rely on a variety of established practices and domestic rules, laws, and policies to protect their domestic markets while using international treaties to open up foreign markets. Policies as different as the promotion of a language (Collins, 1994) to the awarding of military contracts (Lorimer & Duxbury, 1994) may assist the competitiveness of cultural producers in relation to producers of other countries.

Other nations, are less interested in tradability and more interested in the reflection of cultural value. Their motivation in taking this position may be cultural or economic. If cultural, it may stem from a desire to protect their domestic position and the potential for future participation in world markets. Whichever motivation, such a position can work along with linguistic protection to form a basis for an import-resistant domestic market and an export-active international stance. As I have noted elsewhere (Lorimer & Duxbury, 1994) based on discussions by Musa (1990), Sinclair (1990), and Roach (1990), the establishment of production enclaves in a variety of world locations –Brazil, Mexico, Japan- signals a change in dynamics of trade in intellectual property but hardly and addressing of the global domination of ideas and images by the rich, dominant, information and entertainment exporting nations.

Within countries each element of the overall system for dealing with intellectual property requires close attention to see where benefits and challenges will fall. For example the establishment and operations of artists’ collectives to administer royalties collected in the name of artists and cultural entrepreneurs empowers its members as a whole but may disadvantage some. Collectives may establish policies that are inappropriate for some products and some of their members. They also tend to swallow up about 20% of revenues. They may also mount a campaign against public access which is detrimental to the overall public interest. They may lobby for the enhancement of moral rights in such a way that tradability is severely affected in an adverse fashion. For instance, were the interruption of video programs of a certain length by commercials forbidden on a moral rights basis, vast markets would be closed to such products. Collectives may unduly exploit their commonly held monopoly position or may establish rules which creates an aggressive cartel. Disadvantages may develop from such behaviour and compensatory action taken by governments. The establishment of compulsory licenses to provide for efficient dissemination and compensation may encourage rule-oriented behaviour designed to enfranchise fee recipients whose contribution is minimal or distorted by the set of operative administrative rules.

An important factor which has only been considered in the background of this paper is technology. The search by CD ROM producers for access to information for inclusion on their products is a case in point. Participation in this market requires caution. CD ROM products open the door to piracy, easy copying, and to profit for others with little extra investment through easy manipulation, and the production of derivative products. CD ROM products are also protected differently than are print materials and may lead to conflicting claims. Yet there is obviously a growing market that should produce major revenues for participants. Determining how to maximize benefit from participation is the difficult task.