Theos-Talk Archives (July 1999 Message tl00014)

T/theosophists view globally/universally. Internet is oneof the tools which
is going to help in this view.

>From a realistic view, the copyright issue is going to come up from time to
time. Many times people would try to use copyright "rights" infringement as
a big stick tool to silence free speech -- suppress dissemination of
information that one may consider either does not reflect well on the
individual/organization(s) with which one is associated/involved or one may
consider/perceive as an occult "secret".

It happened to me (some time ago) when a very well known T/thesophist tried
to claim infringement on a non literary document which was sent to many
others. This person also claimed that contents of un-published material
cannot even be disclosed. That was when I got interested in copyright
issues and found out that (a) there is a fair use doctrine and (b) US law
explicitly permitting dissemination of the contents of unpublished
material. Also coincidentally one of the main architects of (b) was
Illinois Senator Simon who was a newspaper man and who was fullly aware of
its implication of its effect on the rights of publishers and reporters.

I will not be surprised if again attempts are made by individuals on
matters we deal with on the maillists to mislead the ignorant in an attempt
to silence dissemination of information.

Here is a post which is one of the best I have seen in recent years. It
reviews the global situation regarding among other things - copyright.

As for those in the US, I found the following to be important if one is
ever challenged of copyright infringement.

" By contrast the operative concept in the United States
is 'fair use' which, in the simplest terms, means: Nonprofit use is
fair use."

I am sure the info may be useful to some.

mkr
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> Date: Fri, 9 Jul 1999 19:02:39 -0600
> Sender: owner-cni-copyright@cni.org
> From: "Harry Hillman Chartrand" <h-chartrand@home.com>
> To: Multiple recipients of list <cni-copyright@cni.org>
> Subject: Copyright & The New World Economic Order

COPYRIGHT AND THE NEW WORLD ECONOMIC ORDER

Much is made in the popular press of the emerging global knowledge-based
economy.  But what is the foundation upon which it is to be built?
Copyright, in my opinion, is one of the four cornerstones of this
emerging new world economic order.  The others are: patents, registered
industrial designs and trademarks.  Collectively, these constitute the
legal foundation for the industrial organization of the emerging global
knowledge-based economy.

Copyright (the subject of this note) varies significantly within the
world community of nations.  In effect, copyright is a distinct cultural
artifact defining the rights and privileges of a specific country's
artists, authors, creators and copyright proprietors.  Even the term
'copyright' is specific to the English-speaking world.

In Civil Code countries (that is most of the non-English-speaking world
including Japan but excepting bilingual Canada where the Civil Code
applies only in French-speaking Quebec and the multilingual, but former
British colonial possessions, the Republics of South Africa and India),
the appropriate legal term is droit d'auteur or 'author's rights'.
There are significant differences between the Anglo-American Common Law
and European Civil Code traditions of copyright vs. author's rights.
Such differences are explicit in the provisions and commentary of the
1976 UNESCO/WIPO Tunis Model Law on Copyright for Developing Countries
which "allow for the Anglo-Saxon or the Rome legal approach..."

Under the Civil Code, all moral rights and some economic rights are
granted exclusively to flesh and blood individuals, or so-called
'natural persons'.  Such creator's rights, to quote the Tunis Model
Law, are: "perpetual, inalienable and imprescriptible".  Furthermore,
most "may not be transferred" to another individual (except as an heir)
nor to a corporation.

This last point -- non-transferability to a corporation - highlights an
elemental difference between Common Law and Civil Code traditions, i.e.
the Common Law 'fiction' that a corporation has the same rights as a
'natural person'.  This has led to ongoing disagreement between, among
others, the United States and the European Union about extending to
American corporations the same Civil Code rights granted exclusively
to individual creators.

Even within the Anglo-American tradition, however, there are
significant differences.  Consider the generic treatment of
exemptions from copyright infringement.  In Canada, for example,
the operative concept is 'fair dealing' which, in essence, means:
Everything is an infringement unless specifically and clearly stated
in the law.  By contrast the operative concept in the United States
is 'fair use' which, in the simplest terms, means: Nonprofit use is
fair use.

In Canada we are now at the point that a library is required to assure
itself that a patron is engaged in bona fide 'research and private
study' before making any copies available to him or her.  The
Governor-in-Council, i.e. the Government in the name of Her Majesty,
is authorized by the Act to establish, by regulation, what steps must
be taken by a library to obtain this assurance.  This is required to
obtain a 'fair dealing' exception from copyright infringement!
Similarly, under the Canadian Copyright Act the only thing a teacher
can do in the classroom that does not constitute infringement is to
hand write information on an erasable surface.  It is, accordingly,
with great concern that I see, in the recent passage of the Millennium
Digital Copyright Act by the US Congress, 'fair dealing' slipping into
American copyright.

Differences within the First World over intellectual property rights,
however, pale in comparison with other parts of the global village.  In
the so-called Second World which emerged out of Communist Revolutions in
twentieth century Russia, China, Cuba, etc., all "means of production"
were the property of the State.  With respect to intellectual property,
moral rights of the creator were recognized but economic rights were
limited to a onetime cash award with all subsequent rights and rewards
reverting to the State.

In the developing or Third World (or the South) there are historically
varied traditions governing copyright.  Early Islamic jurists, for
example, recognized a creator's rights or copyright and offered
protection against piracy.  However, traditional Islamic law treats
infringement as a breach of ethics, not as a criminal act of theft for
which amputation of the right hand is mandated.  Rather, punishment
takes the form of defamation of the infringer and the casting of shame
on his tribe.  Only in recent years have formal copyright statutes been
adopted in many Islamic countries, e.g. Saudi Arabia 1989.

In much of the Third World, however, a different tradition exists which
recognizes 'collective' or 'communal' or 'folkloric' copyright.  This
contrasts with the Western individual-based concept of intellectual
property rights.  Folkloric copyright recognizes rights to all kinds of
knowledge, ideas and innovations produced in what can be called 'the
intellectual commons', e.g. in villages among farmers, in forests among
tribal peoples, and even in universities among academics.  Such rights
are not limited to the lifetime of an individual but rather exist in
perpetuity with a specific group or an entire people.  In 1984, UNESCO
produced a Draft Treaty for the Protection of Expressions of Folklore
against Illicit Exploitation and Other Prejudicial Action.  It is not
yet in force.

In the Fourth World of 'aboriginal', 'indigenous' or 'native' peoples,
intellectual property rights are, like in much of the Third World,
rooted in a concept of collective or communal intellectual property
existing in perpetuity, i.e.  not limited to the life of an individual
creator plus some arbitrary number of years after his or her death.
To tribal peoples, a song, story or icon does not belong to an
individual but to the collective.  Rights are often exercised by only
one individual in each generation, often through matrilineal descent.

Unlike the Third World, aboriginal nations do not constitute 'States'.
They therefore seldom participate on the international stage.  Beyond
the 1984 draft treaty on folkloric copyright, UNESCO passed a
Recommendation on Safeguarding Traditional Cultures and Folklore in
1989.  Another instrument was drafted by indigenous peoples themselves
in 1994: the International Covenant on the Rights of Indigenous Nations.
This 'pseudo' covenant articulates a distinctive Fourth World approach
to intellectual property rights.  To date, however, 'folkloric' nor
'aboriginal heritage rights' have no standing in the courts of the
world.

Differences in the 'spirit' of copyright law in the different
neighbourhoods of the global village are increasingly important in an
emerging global 'knowledge-based' economy.  It is in the nature of a
global economy that national laws governing trade in goods and services
are increasingly subject to 'harmonization' for purposes of 'free'
trade.  For example, a common definition of a subsidy for purposes of
the World Trade Organization is under development.  All things being
equal, this definition will eventually be agreed upon and implemented.
This will inevitably inhibit the ability of national governments to
develop and apply different and distinctive economic policies, rules
and regulations favouring their own nationals - natural and corporate.

Copyright, however, since the Berne Convention of 1886, is subject to
a milder constraint: 'national treatment'.  This means a nation extends
to foreigners the same rights and privileges that it grants to its own
citizens - both natural and legal, i.e.  corporations.  Such rights
need not be the same.  Rather, the same rights must be extended to
citizen and foreigner alike within any Member State.  Thus the rights
of a Canadian artist in Canada are not the same as those of an American
artist in the United States but the rights of a Canadian artist in the
United States are the same as a resident American artist.  In addition,
Civil Code countries tend to recognize rights like "droit de suite" or
'rights of following sales' ensuring that visual and literary artist
receive a percent of any subsequent sale of their works.

Beyond the narrow definition of copyright (or author's rights) other
related matters lay lurking waiting to emerge into the full light of
a new millennium.  In my recent compilation of 43 copyright related
multilateral agreements, conventions, covenants and treaties, two
deal with the trafficking or circulation of obscene materials -- a
hot subject on the Web today.  Others deal with: the 'Status of the
Artist'; integrated circuits; satellites; broadcasts from outside a
nation's frontiers, sound and visual recording; and many more subjects.
In addition some countries are already taking steps to use copyright
as an economic development incentive.  The Republic of Eire (Ireland],
for example, exempts copyright income earned by individuals from income
tax.  One can expect that new and ingenious fiscal and tax policies
will be adopted by various countries in an attempt to generate the
'creativity haven' of the 21st century.  Or, as suggested by Frank
Llyod Wright: With respect to intellectual property, the American
Revolution is not yet complete!

Harry Hillman Chartrand
Cultural Economist & Publisher
Compiler Press

and Editor of:

The Compleat Canadian Copyright Act 1921 to 1997 plus Annual Update '98

The Compleat Multilateral Copyright and Related Agreements, Conventions,
Covenants & Treaties 1998

For more information, please contact h-chartrand@home.com