British Phonographic Industry Limited ("BPI")
Comments in response to the Patent Office Consultation on the Report
of the Commission on Intellectual Property Rights
"Integrating Intellectual Property Rights and Development Policy".
The British Phonographic Industry Limited (BPI) is the UK record industry
trade association representing over 300 companies ranging from small
independent labels to multinational corporations. Together these companies
account for over 90% of recorded music output in the United Kingdom.
The UK record industry is the third largest in the world, ranking
behind only the US and Japan.
to the Report "Integrating Intellectual Property Rights and Development
Policy" produced by the Commission on Intellectual Property Rights
established by the Secretary of State for International Development,
Clare Short ("the Report").
grateful to the Patent Office for inviting comments on the Report.
We are concerned that it contradicts current government policy in
relation to copyright. The Report recognises that copyright was and
remains the basis for making and publishing copyright works an economic
proposition by preventing copying. For the BPI and its members, copyright
is the fundamental right upon which the UK recording industry is based.
Our comments will therefore concentrate upon the immediate concerns
relating to adverse effects on copyright, leaving others to address
concerns relating to the other types of intellectual property referred
to in the Report.
suggests "there is no clear economic rationale for copyright
protection being so much longer than for patents". This fails
to take account of the economic realities for the record business
and the way in which the use and distribution of high profile works
secure a fair return for use which is vital for the support of research
and development, and the maintenance of diversity in the industry.
returns are secured from the use of copyright works in ways that recognise
the creativity and investment put into their creation. 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. Internationally respect for copyright
has evolved to include balances for exceptions and fair dealing in
circumstances where the fair return for rights owners can reasonably
be overruled by public interest in terms of access.
that balances are important, but the torpedo approach to the existing
system suggested by the Report would be particularly damaging to creative
industries, including the record industry, at a time when instant
world wide accessibility to copyright works is becoming increasingly
the norm. This accessibility is also exacerbating the challenges faced
by the creative industries from piracy. In many of the developing
countries at which the Report is targeted levels of piracy are already
at levels which dwarf legitimate copyright exploitation.
is not a time for the international protection to be weakened. Quite
the reverse. It is only with the support of Governments in the developing
countries that havens for the pirates can
be challenged, and legitimate business and avenues for the development
of local culture developed.
Effect on UK Government Policy
is not a government paper. It was launched in Geneva and has attracted
the attention of journalists. Clare Short referred to this report
as "setting the agenda for rethinking IP that may shift the world".
We are concerned that it will be perceived by developing countries
as a change in government policy in relation to copyright.
The Patent Office has been active in promoting strong copyright protection
in developing countries and we are concerned that all the achievements
to date, for example in the commonwealth countries, are undermined
by the Report. The record industry appreciates the work of the Patent
Office with WIPO and the WTO to establish an equal level of copyright
protection over the world. The Report's conclusion that "developing
countries would probably be unwise to endorse the WIPO Copyright Treaty"
advocates going back to a level of minimal protection and diminishes
everything the UK government has achieved so far for the UK record
industry and other copyright based industries.
8 of the Report reviews the "International Architecture".
The BPI supports the international system of existing multilateral,
regional and bilateral agreements.
agreements administered by WIPO are particularly supported by the
BPI. Developing countries are represented at WIPO and the WTO. The
Report makes recommendations to improve the representation of developing
countries but goes further. It questions the whole agenda of these
has organised numerous initiatives to promote intellectual property
rights in developing countries. Music plays a role of particular importance
here, for although developing countries may lack the domestic expertise
and business skills to bring music products to global markets, cultural
industries have grown faster than any other areas of economic activity
and intellectual property protection can stimulate artistic efforts
and ensure rewards for artists and other right holders.
WIPO has promoted the ratification of the WCT and the WPPT. Developing
countries 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 have an abundance of talent in music and culture, collective
management could translate this talent into a source of foreign exchange
earnings. Further, WIPO has organised conferences to provide information
on and improve awareness of intellectual property issues relating
to electronic commerce and to develop a framework of co-operation
for successful IP-related e-commerce initiatives.
for strong IPR Protection
concludes that retaining freedom to legislate for weaker levels of
IPR protection than those established by WIPO and TRIPS is better
for developing countries.
with this principle. It is the poorer countries that need strong copyright
laws to establish a local record industry. The Report acknowledges
the growth of the software industries in India, ¹ as a result
of strong IPR laws. Copyright underpins creativity.
Pollard, Senior Fellow at the centre for New Europe, writing in the
Independent states: -
IP protection would stimulate local invention and encourage overseas
IP-holders to engage in joint projects and investments". ²
CIPR conference in February 2002 Deana Daley, a Jamaican attorney
major policy premise for Caribbean countries is that copyright is
critical to the development of local cultural industries. Such creativity,
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 advantage".
IP laws are weak the talented musician does not get rewarded for his
creativity. He has every incentive to move overseas and sign to a
record label in a developed country. This results in a brain drain
of creative talent. There is an increasing interest in world music
in the developed countries. If this talent is to be developed in poor
countries and not in the developed countries there must be copyright
protection to provide the incentive.
suggests that IPR protection of knowledge stops its dissemination.
This ignores the fact that copyright protects individual creative
works, not (as the Report does recognise) the ideas upon which artistic
expression relies. Ideas can be freely exchanged without restriction
under copyright law. Ideas therefore act as a spring board for the
generation of new works and cultural diversity. These new works are
protected to provide an economic return for the creators. This encourages
more copyright owners to create in turn resulting in the creation
of more music, recordings and other works.
is the knock on effect of encouraging weak IPR systems? The view stated
in the Report is as follows: -
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".
We disagree with this view. Applying this premise to the music industry
means that countries can only develop by dealing in pirated music,
which is an extraordinary conclusion.
possible opportunity does this approach give to the development of
local copyright works that in turn will help to develop and maintain
cultural diversity to the benefit of the world?
97 of the CIPR Report
2. "This is the Worst Way to Protect the Third World"
3. Session 4, CIPR Conference - February 2003
Office is aware of the level of mass piracy threatening the music
industry increased by the easy dissemination of digital recordings
over the internet. The creation of copyright havens in developing
countries exacerbates the piracy problem.
penetration may not be large in developing countries but it only takes
one internet connection to disseminate recordings across the world.
The experience in the developing world is that piracy is now also
a cottage industry. Individuals burn CDs for colleagues in the workplace
and open up their entire collection of music to the world via peer
to peer (P2P) networks.
also well established that music and record piracy is connected with
organised crime. Countries with weak IPRs will attract organised crime
dealing in pirate UK records and not a legitimate local record industry
developing the talents of local artists.
the keys to ensuring effective protection from piracy is to ensure
the viability of technical measures to protect illegal copying of
recordings. 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.
technical measures have to be protected. This has been recognised
in the EC 'Copyright Directive (2001/29/EC)'. The Report notes that
similar provisions are contained in the WIPO Performance and Phonograms
in the Report, developing countries are advised not to implement such
is given to such countries developing their own record industry and
protecting local recordings. The Report views the developing countries
as consumers of copyright material prevented from accessing material.
This is in itself an odd concept. The music industry is in the business
of making recordings available to a mass audience wherever they live,
not restricting legitimate access.
copyright protection in developing countries is vital to the development
of local cultural industries including the music and recording industries.
Such protection also enables local artists to secure a fair return
for the use of their work over periods which recognise the on going
nature of the value of their work to others locally and further afield
around the world. The existence of copyright protection will also
prevent the brain drain of artists from developing countries to other
areas where greater levels of protection are available.
of copyright havens encourages piracy, often connected with organised
crime, which is already damaging to the record industry. As international
relay of information and works around the world becomes increasingly
the norm, the importance of owners being able to rely upon and international
system for the protection of their property becomes increasingly important.
We urge the Patent Office to oppose adoption of the Report as UK policy.
We hope that any government response will recognise that the Report
conflicts with currrentcurrent trade policy and undermines the work
carried out by the Patent Office, working with WIPO and the WTO, to
create strong IP laws throughout the world.
The British Phonographic Industry Limited.