14 November 2002
Commission on Intellectual Property Rights 'Integrating Intellectual
Property Rights and Development Policy' - British Music Rights' comments
Music Rights is the consensus voice of Britain's 34,500 composers
and songwriters, 2,500 music publishers and their collecting societies
published recently by the Commission on Intellectual Property Rights,
which was an initiative set up by the Department for International
Development, raises serious concerns for us. We do not agree with
the general conclusion that the global extension of Intellectual Property
Rights (IPRs) will not benefit developing countries at different stages
of development. Neither do we agree with its specific conclusions
the Government to reject this report and to distance itself from the
conclusions which, if followed through, could be damaging for both
developing and developed countries. The adoption of any of the recommendations
would represent a U-turn by the UK Government in its policy on IPRs
addresses economic problems in developing countries. Development programmes
are desperately needed for developing countries, but to drive this
through concessions on IPRs is the wrong solution. The emergence of
a solid IPR framework in developed countries has enabled intellectual
endeavour and creativity to be harnessed and turned to economic advantage
with the result that IPRs now account for a significant proportion
of their GDP and also provide much needed employment. Rather than
enabling and encouraging developing countries to achieve similar objectives,
the recommendations of the report would ultimately hinder developing
countries' ability to build their own economies founded on IPRs. Assistance
should instead come through properly targeted financial assistance.
on three main points:
needs to differentiate between copyright, a right granted to individuals
to reward their creativity, and industrial property rights such as
patents and trade marks.
Copyright as an incentive for investment in local markets. Policy
should take account of the way copyright can promote economic and
cultural development and poverty reduction.
The criticism of the adoption of measures to protect technology and
rights management information, such as those in the WIPO Copyright
Treaty and EU Copyright Directive, is based on a misunderstanding
of the liberalising effect that technology will have on the dissemination
of copyright works.
1. The difference between copyright and IPRs with an industrial application
does not differentiate in its conclusions between IPRs, lumping together
both the creations of individuals protected by copyright and inventions
and devices protected by patents and trade marks which are applied
industrially. This leads to misleading generalisations and inaccurate
forecasting of the effect of IPR policy on developing countries. It
will also aggravate the confusion that already exists between creative
and industrial IPRs.
grants an economic right to an individual in the first instance rather
than a company. Though companies such as music publishers and record
companies do take an interest in the copyright for the exploitation
of the copyright in music, there is always an individual composer
at the start of the value chain who depends on royalties to earn his
or her living. This is in contrast to the normal practice in the case
of industrial property where the first owner of the rights is generally
a company that pays its staff a salary to come up with new products.
is also very important to the interests of small and medium enterprises
(SMEs) which in turn are vital contributors to the economy and employment,
certainly in the UK and presumably therefore in other developed countries.
Over 90% of the music publishers represented by British Music Rights
are SMEs. It is misleading of the report to suggest that copyright-based
industries have "generated millions of high-paying jobs".
Whilst some individuals have been fortunate to achieve notable success
in the music business through producing music that happens to appeal
to a very large market, the vast majority of people working in the
music business earn less than those employed in most other non-creative
sectors (according to figures collected by PRS for 2000, only 5% of
their writer members receive a substantial income (i.e. more than
£10,000 per annum) for the public performance of their works.
also concerned that the report does not take into account the existence
of different kinds of copyright works. We agree with the report insofar
as it states that easy and cheap access to information is a necessity
for developing countries, but stress that musical works with their
cultural focus involve very different considerations from, for instance,
works that are information based. A "One size fits it all"
approach in the area of copyright, will not deliver adequate solutions
for this complex area.
promotes almost unrestricted exceptions to copyright for educational
use and preferential pricing for libraries in stocking copyright materials.
It is in our interest that UK music is disseminated throughout the
world, but there is no justification for it being freely or even too
cheaply available at the expense of individuals and SMEs in developed
and developing countries for all the reasons we have said above.
to take a differentiated approach and failing to take into account
the intricate and specific nature of copyright, the recommendations
of the report are flawed.
as the incentive for investment in local markets
of local markets is crucial for the development of local economies
in developing countries. In the long term, only a vibrant and independent
local economy will enable developing countries to thrive. A genuine
local market however will only develop if there is sufficient incentive
for companies to invest in local enterprise. An adequate legislative
framework protecting their investments is therefore an indispensable
case of publishers, protection of copyright is an essential requirement
for any activity. Copyright also benefits local authors and composers.
Under the Berne Convention, authors and composers of music in developing
countries will have their rights protected in developed countries.
It would be a nonsense in such circumstances that their rights would
not be protected fully in their own countries, especially since the
likely result would be to encourage the creation in those countries
of unlicensed copies which may find their way to developed countries
and ironically deprive the authors and composers of the developing
countries of their royalties in the developed countries.
talked above about the importance of copyright to SMEs. SMEs are recognised
as a driving force for local economic development but they would be
undermined if developing countries felt they could have a lower standard
of protection than the international conventions on copyright. The
WIPO press release of 8th November 2002 on their work with IP Wales
states "The value of intellectual property amongst the SME community
is often not adequately appreciated and its potential for providing
opportunities for future profit is widely underestimated. In a market
place driven by demand for IP-protected products and services IP becomes
a valuable business asset". This is something the creative industries
have known and relied upon for many years - their businesses are built
on the exploitation of rights and the payment of royalties to the
creators of the original works.
of utmost importance for the confidence and identity of developing
countries to establish their own creative industries, instead of simply
importing "western" culture. Moreover, the recent world-wide
success of "World Music" proves that the cultural contributions
of developing countries can compete on a global level. The worldwide
appreciation of Jamaican music, for instance, provides a significant
source of income for Jamaica's music and tourism sector. A sine qua
non for this economical and cultural success story had been the adequate
protection of copyright in Jamaica.
this aspect, it seems rather short sighted to lessen the legal protection
at this stage. The report itself states on page 99 that "in the
long term, stronger copyright protection may help to stimulate local
cultural industries in developing countries if other conditions affecting
the success of such industries are also met. But in the short to medium
term, it is likely to reduce the ability of developing countries and
poor people to close this gap by getting the textbooks, scientific
information and computer software they need at affordable cost."
It is illogical to address short term issues by cutting off the key
to long term success, but in any event the argument simply does not
work when it comes to other cultural works such as musical works.
With the rich musical traditions of these developing countries, how
will it help them to get free or reduced price Western music?
protection of creations by individuals, traditional indigenous art
and culture will die out and traditional skills will sink into oblivion.
The likely evaporation of cultural diversity is not in the interest
of developing countries, neither is it the purpose of the Commission's
that developing countries need assistance but this cannot be done
without an assessment of the repercussions on the development of a
viable local market as well as on the interests of music creators
and publishers in the UK. The effect of the report's recommendations
would be to prevent the natural development of a market in the long
term, and unintentionally damage music creators and publishers around
standard laws and protection of technological measures
statement that it would be premature for developing countries to sign
the WIPO "Internet" Treaties and should not consider equivalent
legislation to DMCA and the EU directive is based on two separate
countries with lower standard of protection for rights will merely
become piracy havens, to which illegal operators move, forcing out
legitimate businesses who do pay rewards to creators. This would be
true for both physical businesses and internet operators who can operate
in a borderless environment. The Government is aware of the links
between organised crime and counterfeiting and piracy. The Government
needs to be aware that encouraging piracy in developing countries
will have a potentially disastrous knock-on effect on the economies
of developed countries: once unlicensed free copies are available
on-line in a copyright unfriendly country the dissemination throughout
the world is inevitable, and the Napster case shows how difficult
in practice it is to prevent such copies being used.
the DMCA and the Directive protect both the technology that will be
used to secure modes of distribution on the internet (DRM) and the
rights management information which links works in digital form to
information about their owners, their terms of usage etc. The full
potential of technological protection measures such as these in the
long term will be to promote access to copyright material. Copyright
owners who are confident of secure distribution will be able to make
works available on differential terms i.e. could themselves distinguish
between certain purposes and developing country destinations. Countries
with no protection for DRM technology risk copyright owners being
reluctant to distribute their works there because there is insufficient
protection to protect the investment.
the Government not to accept the recommendations in the Commission's
report on copyright law. Any IPR policy for developing countries should
take a differentiated and specific approach to copyright. Many developing
countries have their own very strong musical culture and so this is
the one area which they could develop, through copyright, into a business
which could contribute to their own economic development (without
the requirement of a high technological standard).
research is needed regarding other tools to enable developing countries
to take advantage of their own resources without damaging the whole
members of British Music Rights are the British Academy of Composers
and Songwriters, the Music Publishers Association, the Mechanical-Copyright
Protection Society and the Performing Right Society.
2. As an illustration, on 8th November 2002, WIPO reported on a meeting
with IP Wales, the UK's first custom-made intellectual property business
support initiative 'to exchange ideas and explore areas for future
co-operation with a view to strengthening use of intellectual property
by small and medium enterprises. The global SME sector which is highly
dynamic and employs large numbers of people is the backbone of many