RESPONSE: The members of the British Screen Advisory Council
("BSAC") wish to respond formally to the report of the Commission
on Intellectual Property Rights ("Commission") entitled
"Integrating Intellectual Property Rights and Development Policy"
STATUS OF THE REPORT: The members of BSAC urge all
interested parties, including the Patent Office, the Department for
Trade and Industry and the Department for Culture, Media and Sport,
to take necessary steps to inform properly interested parties on a
national and international level as to the status of the Report. Namely,
that the Report (whilst a learned and interesting contribution to
the development debate) comprises the views of a panel, and does not
represent the views, or carry the endorsement, of the UK government.
DURATION OF COPYRIGHT: Our members question the Report's
view that there is no clear economic rationale for the duration of
copyright protection. This does not take account of the economic realities
of the creative sector, nor that the length of copyright protection
is mitigated by the development of permitted exceptions and fair dealing.
INFRASTRUCTURE: Our members believe that to the extent that
the Report advocates a path for developing nations not based on harmonisation,
and existing multilateral agreements and international organizations,
it is at odds with UK and EU policy on copyright matters.
PROTECTION OF IPR: It is, in the view of our members, incorrect
to encourage developing nations to legislate for weaker levels of
IPR protection as against those established by WIPO and TRIPS. Weak
IP laws deny reward to those involved in the creative processes behind
the development of audiovisual product, which can lead to a "brain
drain" of creative talent overseas and a dilution of the talent
pool in developing economies.
COPYING: The Report does not, in our members' view, take
sufficient account of the fact that piracy in developing countries
harms the potential for growth of a thriving domestic creative sector,
and a reduction in copyright protection may have the effect of creating
copyright havens, which in turn damages the ability of more developed
markets to grow their legitimate industry.
TREATY OBLIGATIONS: The tone and substance of the Report
suggests that developing countries "should" exploit
flexibilities under international agreements, rather than "may"
use these flexibilities, and our members believe that emphasis is
incorrect. Our members believe that the message to be sent to developing
countries ought not to be one recommending breach of international
OF RIGHTS ONLINE: In advocating an inconsistent international
approach to rights protection in respect of encryption, technical
protection measures and digital rights management, the members of
BSAC are concerned that the recommendations of the Report, if implemented,
directly challenge the ability of local rights owners to protect their
rights, and the economic viability of our members' own businesses
due to the global nature of the internet.
is an independent association representing a broad church of interests
including the leading UK figures in film, television, satellite, cable
and digital media.
of BSAC's members have already submitted their own responses to the
Report at the invitation of the UK Patent Office. In anticipation
of the publication of the definitive official UK government response
to the Report, the primary objective of this paper is to present the
broad consensus of the opinion amongst BSAC members.
activities of BSAC members are spread globally, and as such BSAC is
directly interested in the general Terms of Reference by which the
Commission prepared the Report (including how national IPR regimes
may best be designed to benefit developing countries within the context
of international agreements, how the related international framework
of rules and agreements might be improved and developed and the broader
policy framework needed to complement intellectual property regimes).
However, this paper is restricted (except as otherwise indicated)
to the immediate issues raised in Chapter 5 of the Report, entitled
"Copyright, Software and the Internet", and related parts
of the Report.
BSAC members acknowledge the valuable and important work of the Commission
in researching and compiling the Report. The Report is a learned and
interesting contribution to the development debate. BSAC members recognise
that in certain circumstances, the rigid enforcement of IPRs in relation
to agriculture, health and forms of traditional knowledge ought not
to be pursued without a serious and objective assessment of its development
impact and that, unlike the developed world, developing nations often
lack the economic strength and infrastructure to overcome associated
BSAC members fully support many of the Report's proposals in relation
to avoiding the negative impact of the enforcement of higher IP rights
on research, education and health.
Report recognises that copyrights are "an essential element
in the business model of publishers, television and record companies,
and software producers" because they afford their owners
exclusive rights over the reproduction and distribution of protected
works. Further, the Report acknowledges that copyright (by preventing
unauthorised copying) remains the basis by which the making and publishing
of work is an economically viable proposition across both the developing
and developed world. For all of BSAC's members, copyright is the fundamental
right upon which their industries are based, and without which their
industries could not survive.
BSAC members are therefore disappointed that the Report suggests that
"there is no clear economic rationale for copyright protection
being so much longer than that for patents" (1). This view,
in the opinion of our members, fails to take proper account of the
economic realities of the creative sector, and in particular the fact
that it is only the use and distribution of works over an extended
period that can secure a fair return for use which is vital for the
support of research and development of new content, and the maintenance
of diversity in the audiovisual field.
The time during which it is fair for owners to be able to expect a
return for the use of their works by third parties has evolved differently
from other types of intellectual property precisely because of the
nature of copyright as a property right. However, as the Report recognises,
the length of copyright protection is mitigated on an international
level by the development of permitted exceptions and fair dealing
(or 'fair use') doctrines in circumstances where the fair return for
rights owners can reasonably be overruled by public interest in terms
BSAC members recognise that balances to copyright protection are important,
but are concerned that the Report advocates a hostile approach to
the existing system which would, in the view of our members, be detrimental
to their creative industries at a time when instantaneous worldwide
accessibility to copyright works is increasingly becoming the norm,
with the associated effect on our members businesses associated with
unauthorised digital copying (2) on a global scale.
many of the developing countries on which the Report focuses its attentions,
levels of piracy are already at levels which dwarf legitimate copyright
exploitation. It follows that, in the view of BSAC's members, this
is not a time for international protection of intellectual property
to be weakened. Conversely, it is only with the support of governments
in the developing countries that havens for those operating piracy
operations can be challenged, and legitimate business together with
avenues for the progression of local culture developed.
the final chapter of the Report, the Commission focuses on how permitting
developing countries to tailor their intellectual property regimes
to particular economic and social circumstances can be accommodated
within the complex international architecture of multilateral, regional
and bilateral intellectual property rules and standards. The members
of BSAC support the existing multilateral agreements, international
organizations, regional conventions and bilateral arrangements.
In particular, our members support the multilateral agreements administered
by the World Intellectual Property Organisation ("WIPO").
We would ask government to take note that WIPO's primary function,
endorsed by government at both the UK and European Union ("EU")
level, is to "promote the development of measures designed
to facilitate the efficient protection of intellectual property throughout
the world and to harmonize national legislation in this field".
To BSAC's members, it appears that to the extent that the Report advocates
a path not based on harmonisation, the Report is at odds with stated
UK and EU policy on copyright, itself the product of detailed debate
and negotiation over many years.
countries have representation at both WIPO and the World Trade Organisation
("WTO"). The Report makes recommendations to improve that
representation, which BSAC members would endorse. However, the Report
goes further, by questioning the underlying agendas of these organisations.
The Report states that "WIPO is, by its founding charter,
solely concerned with the promotion of IPRs. Its objectives and functions
do not include a development objective" and concludes that
a more balanced approach to the analysis of IPRs would be "beneficial
to both the organisation and the developing world, which forms the
majority of its membership". However, the Report does not
take full account of the fact that WIPO itself has organised numerous
initiatives to promote intellectual property rights in developing
countries. In the view of our members, such support is critical to
the growth of developing markets, since whilst many (but by no means
all) developing countries lack the domestic expertise and business
skills to bring audiovisual products to global markets, cultural industries
have grown faster than any other areas of economic activity and (as
noted in the Report) intellectual property protection can stimulate
local creative efforts, building local expertise by ensuring rewards
for artists and other rights holders.
WIPO has also promoted the ratification of the WCT and WPPT. Developing
countries have received assistance from WIPO in preparing new or updating
existing intellectual property laws in compliance with current international
standards such as TRIPs. WIPO has also offered assistance to developing
countries in the field of collective management. As all the developing
countries undoubtedly have an abundance of creative talent (a point
emphasised in the Report), collective management could translate this
talent into a source of foreign exchange earnings. BSAC's members
believe the potential economic value of such earnings is under-emphasised
in the Report.
The desire to protect intellectual property rights in general
Report concludes by recommending that the retention of freedom to
legislate for weaker levels of intellectual property rights protection
as against those established by WIPO and TRIPS is better for developing
BSAC members disagree with this principle, as we believe that it is
the poorer countries that need strong copyright laws to establish
a local audiovisual industry. The Report itself appears to support
this belief through an acknowledgement (3) that the growth of the
software industry in India owes much to the existence of strong IPR
laws. We consider this a perfect example of how copyright can be used
to underpin creativity and jobs.
In this regard, we would note with approval the comments of Stephen
Pollard, Senior Fellow at the centre for New Europe, writing in the
Independent, that: -
"strengthening IP protection would stimulate local invention
and encourage overseas IP-holders to engage in joint projects and
We would further note the contribution, at the CIPR conference
in February 2002, of Deana Daley, a Jamaican attorney, as follows:
"The major policy premise for Caribbean countries is that
copyright is critical to the development of local cultural industries.
Such protection stimulates creativity and innovation offering the
possibility of revenue generation. Of all the different forms of IPRs
we see copyright as the most positive as offering us a potential comparative
stated, the view of BSAC's members is that where IP laws are weak
those involved in the creative processes behind the development of
audiovisual product do not get rewarded for their creativity. In such
circumstances there is every incentive to move overseas and work for
an organisation in a developed country, contributing to a "brain
drain" of creative talent and a dilution of the talent pool in
developing economies. In the view of our members this would be a negative
step in an era in which there is increasing interest in the cultures
of developing countries and the creative output of the people who
embody those cultures. If talent is to be developed in poor countries
and not in the developed countries there must be copyright protection
to provide the incentive.
The Report also suggests that the protection of knowledge via intellectual
property stops its dissemination. Our members respectfully submit
that this overlooks the fact that copyright protects individual fixations
of creative works, not (as the Report does recognise) the ideas upon
which artistic expression relies. Mere ideas can be freely exchanged
without restriction under copyright law. BSAC members believe that
ideas act as a spring board for the generation of new works and cultural
diversity, and it is these new works which should correctly be protected
to provide an economic return for the creators, creating a "virtuous
The Report attempts to describe what the Commission deem to be the
knock-on effect of encouraging weak IPR systems as follows: -
“In the past, however, the evidence shows that weak levels
of copyright enforcement have had a major impact on diffusion of knowledge
and knowledge-based products in certain cases, such as computer software,
throughout the developing world. Indeed, it is arguably the case that
many poor people in developing countries have only been able to access
certain copyright material through using unauthorised copies available
at a fraction of the price of the genuine original product”.(6)
The members of BSAC do not agree with this view. Applying this
premise to the audiovisual sector means that countries can only develop
by dealing in pirated videos and DVDs, which is, in the view of our
members, an unsupportable conclusion, allowing little opportunity
for the development of local copyright works that in turn promote
and maintain cultural diversity.
It follows that BSAC members are concerned that the Report may be
construed as showing a lack of regard for the interests of rights
holders in developing countries. Rather than promoting the benefits
of a framework for local and international protection of intellectual
property, the Report concentrates its efforts on highlighting the
need for developed nations to ensure that access to content is enabled.
It is of some concern to our members that there is little recognition
in the Report of the steps taken by rights holders to accommodate,
and take reasonable steps to interpret in a practical way, the flexible
provisions provided through international treaties such as TRIPs.
some time now, it has been widely known that the level of mass "piracy"
threatening the music industry has been exacerbated by the easy dissemination
of digital recordings over the internet. As communications technology
improves and the cost barriers to online connectivity are lowered,
these problems have also begun to affect the audiovisual sector. The
creation of copyright havens in developing countries undoubtedly aggravates
this problem, as both the music industry and the film industry have
already experienced in relation to the operation of unauthorised online
music and/or film distribution websites in jurisdictions hostile to
internet penetration may not yet be large in some developing countries,
it only takes one internet connection to disseminate works across
the world. The internet can also support copyright infringement in
a way far removed from traditional film and music piracy operations.
It is open for individuals to use cheap, standard equipment to burn
video CDs and DVDs for friends and colleagues in the workplace, and
likewise to open up their entire collection of films and music to
the world via peer to peer (P2P) networks.
It is also well established that video and music piracy is connected
with organised crime. Countries with weak intellectual property regimes
will attract organised crime dealing in pirate UK discs and not a
legitimate local creative industry developing the talents of local
Commission believe that piracy in the developing countries has a lesser
economic effect than piracy in developed markets, and is therefore
less significant when considering a relaxation of the copyright protection
that might otherwise be put into place in a developing country. Our
members disagree, and take the view that piracy harms the potential
for development of a thriving domestic creative sector. There are
many artists from African, Asian and South American countries for
whom piracy at a local level, due to a reduction in copyright protection,
would harm their work at both local and international levels. Furthermore,
it is the experience of many BSAC members that, where piracy is rife
in developing countries, illegitimate copies move across borders,
and can harm the ability of more developed markets to grow their legitimate
The use of technical measures to protect copyrighted works
the advent of digital technology, and the combination of both the
ease with which perfect copies of works can be made together with
the explosion in the growth of the internet, BSAC members have come
to conclude that one of the keys to ensuring effective protection
from digital piracy is to ensure the viability of technical measures
to protect illegal copying of recordings.
our members believe that, if anything, the success of such measures
is more critical for small to medium size businesses and for developing
countries. Large businesses and developed countries have additional
means of protecting copyright, such as through traditional law enforcement.
However, as recognised in the EU Copyright Directive (7), technical
measures have to be protected. The Report notes that similar provisions
are contained in the WIPO Performance and Phonograms Treaty 1996.
members are therefore concerned that the Report advises developing
countries not to implement laws prohibiting the circumvention of technological
protection measures, which does not, in our members' opinion address
the need for such countries to develop their own audiovisual product
and protect local fixations.
members believe that in dismissing the implementation of anti-circumvention
legislation, the tone of the Report does not pay sufficient regard
to the debate which had taken place surrounding the adoption of the
Copyright Directive, and the balances which had been regarded as important
for the use of technological measures against the background of that
Report appears to view the developing countries as consumers of copyright
material prevented from accessing material. BSAC members are in the
business of making their product available on a legitimate basis to
a mass audience wherever they live, and are not in the business of
restricting legitimate access.
publication of the Commission's Report, our members have digested
its contents with considerable interest. There is much of value in
the Report's findings, although we do feel that the principal signal
being sent to developing countries with respect to intellectual property
is unnecessarily negative. Regretfully, the majority of our members
find themselves taking issue with many of the Report's fundamental
conclusions in the ways explained in this paper.
members believe that strong copyright protection in developing countries
is vital to the development of local cultural industries, including
all participants within the audiovisual sector. Through the existence
and enforcement of such protection, local companies and individuals
are able to secure a fair return for the use of their work over periods
which recognise the ongoing nature of the value of their work to others
locally and internationally. The existence of copyright protection
can also help to prevent the brain drain of creativity from developing
countries to other areas where greater levels of protection are available.
The creation of copyright havens encourages piracy, often connected
with organised crime, which is already damaging to the entertainment
industry. As international relay of information and works around the
world becomes increasingly the norm, the importance of owners being
able to rely upon an international system for the protection of their
property becomes increasingly important.
The Patent Office has been active in promoting strong copyright protection
in developing countries and we are concerned that all its achievements
to date, for example in the commonwealth countries, might be undermined
by the Report. BSAC members appreciate the work of the Patent Office
with WIPO and the WTO to establish an equal level of copyright protection
all over the world. The Report's conclusion that "developing
countries would probably be unwise to endorse the WIPO copyright treaty"
suggests returning to a level of minimum protection which diminishes
the UK government's achievements so far for the entertainment industry
and other copyright-based industries.
BSAC is concerned to ensure that the official response of the UK government
should clarify that the recommendations made by the Report do not
represent or reflect formal, approved UK government policy. BSAC members
feel it ought to be clarified that the Report comprises only the views
of a panel, and not those of the UK government. There is considerable
concern that the translation and dissemination of the Report on an
international basis might give the impression that the Report already
has the endorsement of the UK government, which we know not to be
members believe that the importance of this distinction cannot be
overstated in the context of potential confusion (both domestically
and overseas) and would urge all interested parties, including the
Patent Office, the Department for Trade and Industry and the Department
for Culture, Media and Sport, to take whatever measures are deemed
necessary to avoid any misapprehension as to the status of the Report.
Our members hope that in any case the official response of the UK
government will represent the definitive statement of UK policy on
the matters covered by the Commission's work, and would hope that
the necessary budgetary allocation can be made to facilitate the translation
and dissemination of such to all interested parties who took delivery
of the original Report.
Our members also believe that it is vital to ensure that the conclusions
of the Commission, whilst making stimulating and provocative reading,
should not spill over into any formal proceedings in the sphere of
international intellectual property regulation. In short, our members'
fear that the overriding conclusion that may be drawn from both the
tone and substance Report – whether intended by the Commission
or not – is that developing countries are being recommended
to break international treaty obligations.
way of example, the underlying message throughout the Report appears
to be one suggesting that developing countries "should"
exploit flexibilities under international agreements, rather than
"may" use these flexibilities. We consider that
it would be highly unfortunate if developing countries were moved
to fail to comply with TRIPS provisions agreed in previous rounds
of negotiation, or were to proceed to resist adoption of the WIPO
great many BSAC members are also deeply troubled by the approach taken
by the Report to the protection of their intellectual property rights
in the online sphere. Whilst there is rightly a certain degree of
flexibility afforded by TRIPS in relation to adoption of provisions
for traditional local market, it is essential that a different methodology
is embraced as regards encryption, digital rights management and other
technical protection measures in the online world. Our members believe
that "havens" without a consistency of approach
to rights protection in this environment directly challenge the economic
viability of their businesses in other territories due to the global
nature of the internet and digital networks (8).