BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE AND RECOMMENDATIONS FOR VIETNAMESE COPYRIGHT LAW

MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE AND RECOMMENDATIONS FOR VIETNAMESE COPYRIGHT LAW Major: International Trade Policy and Law PHẠM HƯƠNG LIÊN Ha Noi – 2016 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE AND RECOMMENDATIONS FOR VIETNAMESE COPYRIGHT LAW Major: International Trade Policy and Law Full Name: Phạm Hương Liên Supervisor: Assoc Prof Dr Hồ Thúy Ngọc Ha Noi – 2016 STATEMENT OF ORIGINAL AUTHORSHIP The work contained in this thesis has not been previously submitted to meet requirements for an award at this or any other higher education institution I certify that this is my own work and that the use of material from other sources has been properly and fully acknowledged in the text i ACKNOWLEDGEMENTS I would first like to thank my thesis advisor Assoc Prof Dr Hồ Thúy Ngọc – Dean of Faculty of International Education at Foreign Trade University The door to her office was always open whenever I ran into a trouble spot or had a question about my research or writing She consistently allowed this paper to be my own work, but steered me in the right the direction whenever she thought I needed it I could not have been able to complete this thesis without her positive suggestions and instructions I would also like to give my sincere thanks to the authors who provided me with valuable materials for my dissertation Gratitude is to the readers as well, whose feedback will contribute significantly to improving the thesis ii Contents INTRODUCTION 1 Rationale Scope of research Research questions Methodologies Literature review Dissertation structure CHAPTER 1: LITERATURE REVIEW ON BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE 1.1 Copyright laws in digital age 1.1.1 Copyright laws 1.1.1.1 Origin and development of copyright laws 1.1.1.2 Dual goals of copyright laws 1.1.1.3 What are copyrights and related rights? .10 1.1.2 Digital age 12 1.1.2.1 What is difference about “digital age”? 12 1.1.2.2 Digital age seen from the copyright perspective 13 1.2 Balance of interests 17 1.2.1 Copyright interests .17 1.2.2 What is “balance”? 19 1.2.3 “Balance” in copyright laws 20 1.2.4 Current imbalances of interests in digital age 21 1.2.4.1 Extended duration of copyright protection 22 1.2.4.2 Expansive scope of copyright protection and restricted copyright limitations .23 1.2.4.3 Newly added protection on technological measures .24 1.2.4.4 Media concentration and restricted freedom of user-generated creations 26 1.3 Regulations on balance of interests 27 iii 1.3.1 International regulations .27 1.3.1.1 Protection of authors’ interests .27 1.3.1.2 Protection of public interests 30 1.3.2 Regulations in some countries 35 1.3.2.1 Australia 35 1.3.2.2 The United States 39 CHAPTER 2: VIETNAMESE COPYRIGHT LAW ON BALANCE OF INTERESTS IN DIGITAL AGE 45 2.1 Protection of authors’ interests in relation with public interests 45 2.1.1 Protection of authors’ interests in subject matter of copyrights and related rights 45 2.1.2 Protection of authors’ interests in protection conditions of copyrights and related rights 48 2.1.3 Protection of authors’ interests in contents of copyrights and related rights .49 2.1.4 Protection of authors’ interests in duration of copyrights and related rights .53 2.1.5 Protection of authors’ interests in assignment and transference of copyrights and related rights 54 2.2 Protection of public interests in relation with authors’ interests 55 2.2.1 Protection of public interests in subject matter excluded from copyright protection 55 2.2.2 Protection of public interests in limitations on copyrights and related rights .57 2.2.2.1 Uncompensated limitations 57 2.2.2.2 Compensated limitations 59 2.2.3 Protection of public interests in duration of copyrights and related rights .60 2.2.4 Protection of public interests in assignment and transference of copyrights and related rights 61 iv 2.3 Findings 62 2.3.1 Is Vietnamese copyright law balanced or unbalanced in terms of interests? 62 2.3.2 Is Vietnamese copyright law capable of maintaining balance of interests in digital age? .65 2.3.2.1 Right to reproduce the work 65 2.3.2.2 Right to communicate the work to the public .68 2.3.2.3 Limitations and exceptions 69 2.4 Case studies 72 2.4.1 Nguyen Quang Tuan v Dao Thai Ton .72 2.4.2 First New Co v Australia International English School & Vietnam Australian English Association 73 2.4.3 Comments .74 CHAPTER 3: RECOMMENDATIONS TO VIETNAMESE COPYRIGHT LAW ON BALANCE OF INTERESTS IN DIGITAL AGE 78 3.1 Extending copyright regulations in digital age .78 3.2 Technological protection measures 81 3.3 Fair dealing or Fair use? 83 3.3.1 Fair use is flexible and adaptable to changes .83 3.3.2 Fair use is certain and predictable 85 3.3.3 Fair use is the better choice for Vietnam 87 3.4 Substantive limitations and exceptions 88 3.4.1 Limitations and exceptions for educational purposes 88 3.4.2 Limitations and exceptions for libraries and archives .95 3.4.3 Limitations and exceptions for persons with disabilities 101 CONCLUSION 105 REFERENCE LIST 108 v ABBREVIATIONS AND ACRONYMS Berne Convention Berne Convention for the Protection of Literary and Artistic Works ISP RAM Internet Service Providers Random-Access Memory TPM Technological Protection Measures TRIPS Agreement Agreement of Trade-Related Aspects of Intellectual Property Rights WCT World Intellectual Property Organization Copyright Treaty WIPO World Intellectual Property Organization WPPT World Intellectual Property Organization Performances and Phonograms Treaty WTO World Trade Organization vi INTRODUCTION Rationale To every country, the encouragement of creativity and inspiration always plays an important role in its policies as it is the key to development and progression Copyright law is established for the purpose of protecting the rights and interests of the copyright work author Once there is effective protection of rights, authors feel certain about their future of reaping the fruits of their own hard work and that is the best way to keep them create better works of art However, during its development, the copyright law has always been affected by another side of view which protects the welfare of public and holds that people should be given the right to use and exploit the works Advocates of this view believe that the works should be used to help the society become better and more well-knowledged because “works are not created out of thin air and most of them are actualized by borrowing from former works and materials.” (Hua, 2014, p.39) Consequently, the balance of interests between work authors and society might be considered the driving power of copyright law development and improvement Nowadays, a new issue has emerged as a demand for significant copyright law reform – technologies The Internet has made it easier than ever for anyone to access, use, reproduce, or disseminate different forms of copyright works, particularly at no cost While advocates of copyright as a private property of the authors support the expansion and strengthening of copyright law to fairly preserve the interests of authors, public policy supporters are concerned that stricter protection of copyright law will pose a threat to the information dissemination of the public and therefore the knowledge and culture of society will be limited As a consequence, the question of how to maintain the balance of interests in copyright law under the digital age has been asked for a long time since the advancement of technologies and answers for what is the limitation to copyright law expansion need to be found In Vietnam, where copyright property is not respected to its true value, the strengthening of copyright law in the digital network environment is of critical importance if the Government wants to encourage creative works and build up the country’s knowledge and culture to a higher level Thus, I decided to choose “Balance of Interests in Copyright Laws in Digital Age and Recommendations for Vietnamese Copyright Law” as my master dissertation Scope of research This study is conducted from research into regulations on balance of interests in international treaties and certain developed countries including the US and Australia While monopoly rights granted to creators of the works protect authors’ interests, the tool for preserving users’ interests is the three-step test (Berne Convention and other international treaties), the fair dealing and fair use doctrines (the US, Australia) Changes made by these countries to copyright law in digital age in order to maintain balance of interests are also analyzed From those sources of laws, the thesis focuses on how balance of interests is protected in Vietnam copyright law and provides recommendations to improve Vietnam legislations in digital age based on developed countries’ experience Furthermore, it should be noted that whereas Vietnam joined several copyright conventions and treaties and domestic copyright law is to be consistent with their requirements, analysis on Vietnam’s commitments in respective treaties is out of the reach of this master thesis Consequently, recommendations in the study are mainly based on Vietnam’s situation only Research questions Question What is balance of interests related to works in copyright laws? Why is it important to maintain balance of interests? Question How has the digital age affected the interests of copyrighted work authors and the users of such works? works for preservation, it is possible that the copyright owners still suffers from loss Therefore, it is suggested that a requirement to pay remuneration may help to balance interests of both sides This means that libraries must pay remuneration to the copyright owners, either by voluntary licensing or compulsory licensing schemes Voluntary licences for libraries are possible but not appreciated because it might be difficult for libraries to negotiate with copyright owners to obtain licences In many cases, according to Jane Ginsburg, transaction costs may be subdued by voluntary collective licensing (Ginsburg, 1990) Libraries in Vietnam are in poor conditions and tight budgets allocated from the government not cover voluntary licensing fees which are “very often higher than the royalties reasonably payable in respect of the reproduction of the work.” (Australian Copyright Law Committee, 1976) It is a good idea to apply the compulsory licencing scheme for libraries, so that they are able to access copyright works without permission, but reasonable payment must be made by the government to support this It is necessary to repeat the words of Ginsburg (1990) that “the real purpose of a compulsory license is to reduce the extent to which copyright ownership of the work conveys monopoly power, so that the copyright owner must make the work available to all who wish to access and exploit it.” Last, Vietnamese limitations and exceptions not extend privileges to other archives such as the State Record Management and Archives Department of Vietnam, Archives Departments in cities or provinces of Vietnam, and museums, galleries, or educational institutions that also have the role of collection, preservation and dissemination, and archiving documents including books, legal documents, maps, research theses, historical documents, artistic works, and unpublished works and so on.41 This overlaps with provisions of the Law on Archives.42 It is worth noting that the legislation of 20 member states in WIPO’s survey includes limitations and exceptions permitting certain other institutions to 41 42 Law on Archives Law on Archives 2011, article 100 engage in such acts Such institutions may encompass museums, galleries, schools, universities, other non-forprofit school-related and educational establishments, research institutions, and even national cinematographic archives (such as in Greece) (WIPO, 2010) The US,43 Australia,44 and Chile45 provide privileges for both libraries and archives Therefore, Vietnam should extend the subject of limitations and exceptions to the archiving institutions mentioned above 3.4.3 Limitations and exceptions for persons with disabilities Visually impaired people comprise a large proportion of the global population According to the World Health Organization (WHO), more than 161 million people worldwide are visually impaired This includes 37 million persons who are considered blind and 124 million persons with “low vision” The WHO also recorded that more than 90% of visually impaired persons live in developing countries In addition to those who are visually impaired are large numbers of persons who have other disabilities related to reading, including persons with inadequate access to reading aids, persons who cannot turn the pages of books, persons who cannot visit libraries, and persons suffering from dyslexia and other learning disabilities (Knowledge Ecology International, 2008) In Vietnam, the Ministry of Labor Invalids and Social Affairs recorded that approximately 5.1 million (7% of the population) are visually disabled people In promoting human development, it is important that people with disabilities have equity of access in order to fully participate in economic, social, and political life People with disabilities have “the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others”,46 as well as to “enjoy access to cultural materials in accessible formats”.47 43 Section 108 of US Copyright Act 1976 Sections 49, 50, 112AA and 200AB of the Copyright Act 1968 (Cth) of Australia 45 Articles 71 I, J, K, L and M of the Chilean Copyright Act 2010 46 United Nations Convention on the Rights of People with Disabilities, article 21 47 United Nations Convention on the Rights of People with Disabilities, article 30(1) 44 101 In order to ensure access equity, copyright law must not constitute an unreasonable or discriminatory barrier to access to cultural materials by persons with disabilities This means that there need to be provisions of limitations and exceptions that provide for people with disabilities Similar to almost all countries in the world, Vietnamese copyright limitations and exceptions allow users to transcript cultural work into Braille or other languages for the blind without consent or payment to the copyright owner.48 This shows great progress in comparison with the Civil Code 1995 and many other developing countries.49 However, the limitations and exceptions for the benefits of disabled persons are restricted to the blind, rather than other disabled persons Although a large number of persons are visually impaired, there are some other disabilities related to reading; namely, persons with inadequate access to reading aids, persons who cannot turn the pages of books, persons who cannot visit libraries, and persons suffering from dyslexia and other learning disabilities (Knowledge Ecology International, 2008) Such persons also have high demand for access to knowledge via accessible formats such as the DAISY format, Braille, audio recordings, and refreshable Braille display These people are excluded from the application of limitations and exceptions Meanwhile, the other disabled, such as deaf persons, are not included in the limitations and exceptions The United States’50 and Chile’s51 limitations and exceptions provide privileges for both the blind and other persons with disabilities In addition, there is a limitation and exception provision for importation for personal purposes that the blind can rely on, but only one copy is allowed Unfortunately, the majority of the blind in Vietnam are living under the subsidy of the government and other charitable organizations They are rarely able to afford to import copyrighted works for themselves There is also the fact that in spite of 48 Article 25(1)(i) of the Intellectual Property Law 2005 A report on the Questionnaire on Limitations and Exceptions noted that 21 out of 39 countries not include limitations and exceptions for visually impaired persons (WIPO, Standing Committee on Copyright and Related Rights, 2010) 50 Section 121 of the US Copyright Act 51 Section 71 of the 2010 Chilean IP Law 49 102 having a lot of local book publishers, none of them have provided books for the blind (PWD Vietnam, 2011) The reason is that the production of such books is costly, while the customers of these products are few and have modest budgets Worldwide, it is estimated that 5% of published books are available for visually impaired persons This figure is less in developing countries due to the existing restrictions in global copyright norms regarding the import and export of works created without the authorization of copyright owners The statistics show that books for the blind in Vietnam have met around 60% of the demand and most of them are textbooks for compulsory education, not monograph books or entertainment works (PWD Vietnam, 2011) Importation is a good idea in this circumstance It is possible to resolve the problem if companies, organizations, the blind schools, or the government are allowed to import such books under the privileges of limitations and exceptions However, they are not entitled to so under current law Therefore, the law reform should add a provision to allow organizations that assist people with disabilities to import works for disabled people Extending privileges for disabled people does cause loss of revenue for the copyright owner, because the copyright could otherwise authorize their works with licensing fees However, this exception is justified by the social benefit as “increased access for disabled persons allows them to participate more fully in the cultural life of their society and become more productive citizens.” (Samuelson, n.d.) Increasingly, disabled people suffer disadvantages in participating in society, so they should be granted access to materials to encourage their involvement in economic, political and social life Supporting access to copyright works for disabled people can cause some harm to the copyright owners from the loss of licensing revenue, but the harm suffered is justified by fulfilling social and cultural policy goals Access helps to educate and improve the skills for disabled people so they are able to participate in the community as well as be self-sufficient These skills might reduce the government’s burden in subsidizing people with disabilities Therefore, sacrificing the interest of the copyright owner to for the benefit of society is necessary It will improve education and participation and encourage equality in society Coming back to the third step of the three-step test of the Berne 103 Convention, which assesses the balance between the interests of copyright owners and users, the prejudice to the owners by the usage proposed for disabled persons may be substantial or material, but it is not “unreasonable prejudice” in sense of being disproportionate, because it is justified by the social benefits.52 Furthermore, Vietnam has not ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled (so-called Marrakesh Treaty),53 so it does not take advantage of global knowledge-sharing for the blind It is said by the World Blind Union that “this was the first IP treaty benefiting public interest rather than the interest of rights holders” The Marrakesh Treaty allows accessible copies of books to be shared across national borders It also allows the blind to access books directly over the internet, dramatically decreasing the administration cost of providing access to people in developing countries By doing so, it increases the ability of people in developing countries to access global knowledge resources (Suzor & Wood, 2014) Digital technologies help to digitalize the world’s books into a form called “book famine” that is accessible to the blind By accession to the Treaty, Vietnam can bring massive information and knowledge to the blind and help them fully participate in the society “Signing costs nothing, but is the first step in providing massive benefits to people with print disabilities.” (Suzor & Wood, 2014) Therefore, it would beneficial for Vietnam, as a developing country where many people are print-disabled and a tremendous number of books accessible for the blind are imported from overseas, to sign this Treaty However, Vietnam has not yet signed the Treaty If Vietnam does not sign the Treaty, it will lose the opportunity to take advantage of the global knowledge-sharing network Moreover, the Treaty requires the ratification or accession of at least 20 nations to enter into force The accession of Vietnam may contribute to a great movement for the Treaty Sam Ricketson (2003) indicated that the interpretation to be adopted in the third step is that ‘unreasonable prejudice’ may be voided by the imposition of conditions on the usage’ 53 WIPO, Marrakesh Treaty, Preamble 52 104 CONCLUSION This thesis found that even though balance of interests is the goal of copyright laws and plays an important role in both providing personal and property incentives for authors and copyright owners to continue creating future works and providing appropriate access for public users to take advantage of human being’s intellectual and cultural knowledge, it is an international copyright law’s problem Facing the rapid changes in the digital age, the balance is being swung to the favor of authors and copyright owners In other words, the copyright protections are being extended in an effort to protect authors’ interests against rampant piracy created thanks to Internet and other digital advancements As a result, the public interests are being threatened as the regulations on copyrights limitations and exceptions are not being improved to keep up with the changes of digital technologies and the copyright protections Vietnam is also faced with the same problem The overly strong copyright protection forced by international standards cannot encourage knowledge access, taking into consideration that Vietnam is a developing country and requires much more information access to develop in comparison with developed countries – the source of creating international copyright laws Vietnam should move towards broad or flexible limitations and exceptions to facilitate knowledge access to improve education and health, and enrich the culture, politics, and enjoyment of its citizens In order to construct a broad scope of copyright limitations and exceptions, Vietnam should remove restrictions existing in current limitations and exceptions In particular:  Vietnam should remove the three-step test from legislation to ensure the laws are clear and flexible  Vietnam should adopt the fair use doctrine in its limitations and exceptions Fair use can fix the issues emerging in the digital age It is flexible, adaptable and certain; therefore, it can accommodate circumstances 105 of time-shifting, format-shifting for private use, parody or satire, and reverse engineering currently missing in copyright law Its flexibility will help the courts to react promptly to new circumstances Fair use will work well in Vietnam because precedent has already been recognised as a source of law Moreover, judges’ IP knowledge has increased  More limitations and exceptions for educational uses must be inserted into copyright law: (1) limitations and exceptions for self-study and distance learning must be added into legislation; (2) the one-copy reproduction rule of educational materials for teaching must be removed from the law; (3) compulsory licences should be introduced so that teachers and students can use or reproduce entire textbooks, articles, course-packs, and other educational materials for a small payment, instead of using illegal photocopying shops  Copyright exceptions for libraries and archives should be updated to better enable preservation and other legitimate uses in accordance to keep pace with rapid technological change Copyright law should: (1) remove the one-copy rule for preservation or replacement and enable to some extent reproduction of copies of copyright materials for preservation and security; (2) allow libraries to reproduce and disseminate single copies of small portions of all types of works, regardless of format, for legitimate purposes such as scholarship, research, study, or upon the request of users or other libraries, and digitalise works and communicate with users and other libraries in digital forms; (3) extend these privileges to other public archiving organisations, such as museums and public galleries; (4) search and preserve collections of publicly available online content based on the needs and interests of local communities and make them available to users; (5) convert the format of works when the equipment for retrieving the work is obsolete and the copyright owner has not distributed the work in the newer format  Vietnam should expand privileges to all disabled people, not only the blind, as at present Moreover, Vietnam should allow organisations that assist people with disabilities to import works for disabled people Vietnam should 106 also join the Marrakesh Treaty for the blind to be able to take advantage of the international knowledge-sharing network Although Vietnam needs to expand its limitations and exceptions to copyrights so that the public interests are better preserved, it should also be noted that the protections of authors’ interests are now struck by the digital age The regulations, whereas strict, are not updated with the changes in the digital environment, creating loopholes for Internet users to unlawfully exploit copyrighted works Therefore, 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REVIEW ON BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE 1.1 Copyright laws in digital age 1.1.1 Copyright laws 1.1.1.1 Origin and development of copyright laws ... IN COPYRIGHT LAWS IN DIGITAL AGE 1.1 Copyright laws in digital age 1.1.1 Copyright laws 1.1.1.1 Origin and development of copyright laws The most initial concept of modern copyright existed in. .. copyright law on balance of interests in digital age Chapter 3: Recommendations to Vietnamese copyright law on balance of interests in digital age CHAPTER 1: LITERATURE REVIEW ON BALANCE OF INTERESTS