Droit et économie - Droit et économie de la propriété intellectuelle - 38

La propriété intellectuelle à l'heure de la mondialisation

Section I
the

actors of globalization

This remark leads me to the question of who are the actors of globalization.
In the first place, they are the states, among which in particular the USA and
the European Communities (from December 2010: European Union) are to be
highlighted. In the recent past, also developing countries have strengthened their
proactive agenda. At the same time, one must not forget NGOs (non-governmental organizations), and multinational enterprises (formed on a large scale
from the 1980s on). In order to illustrate the influence of NGOs on global
solutions, I would like to evoke an early example, namely, the activities of the
computer industries in the 1970s and 1980s aimed at preparing the ground for
the recognition of copyright protection for computer programs. Indeed, in the
1970s, most academics and governmental experts were not yet convinced that
computer programs would qualify as works under author's rights protection;
one could rather observe different approaches, including that of a sui generis-protection as proposed by the Swiss legislature at the time.3 However, the computer
software industry had a clear interest in the recognition of author's rights
protection for computer programs, since the international framework through
the Berne Convention already existed, and since author's rights protection was
usually granted at a high level and did not require the fulfilment of any formalities. Consequently, industry started convincing legislatures throughout the
world to introduce author's rights protection for computer programs - an activity
that has considerably facilitated the recognition of author's rights protection for
computer programs at the international level, as it occurred for the first time in
the framework of the NAFTA and the TRIPs Agreement.4 In more recent times,
however, NGOs representing users' interests have played a major role in international law-making, such as the World Blind Union, with other user-driven
NGOs as a driving force behind it5 for the Marrakesh Treaty of 2013;6 users'
NGOs continue to lobby strongly in WIPO and otherwise worldwide for
extended and mandatory exceptions to rights, and giant internet companies
especially from the USA strongly lobby, in a more hidden way,7 at international
and worldwide levels for the weakening of copyright protection, in particular
through the introduction of flexible limitations of rights modelled on the US
concept of fair use, which would benefit them as powerful parties in court
proceedings.
3. S. von Lewinski, International Copyright Law and Policy, OUP Oxford, 2008, 7.16-7.17.
4. S. von Lewinski, International Copyright Law and Policy, op. cit., 7.19.
5. See S. von Lewinski, "WIPO's Discussion on Exceptions and Limitations, in particular in favour of
Visually Impaired Persons", RIDA, vol. 225, July 2010, 53ff, 57, 65/fn 16.
6. Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired,
or Otherwise Print Disabled, http://www.wipo.int/treaties/en/ip/marrakesh/.
7. On the influence of google on US university research through sponsorship, see R. Levine, Free Ride
- How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back, 2012,
chapter 3.

http://www.wipo.int/treaties/en/ip/marrakesh/

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