The final report of the UK Commission on Intellectual Property Rights[1] has been published. Chapter 5 discusses Copyright, Software and the Internet.

According to their website, "The Commission was set up by the British government to look at how intellectual property rights might work better for poor people and developing countries."

The full report is available from http://www.iprcommission.org/graphic/documents.htm

[1] a phrase that is worth avoiding

Chapter 5: COPYRIGHT, SOFTWARE AND THE INTERNET

There are examples of developing countries, which have benefited from copyright protection. The Indian software and film industry are good examples. But other examples are hard to identify. Many developing countries have had copyright protection for a long time but it has not proved sufficient to stimulate the growth of copyright-protected industries. Because most developing countries, particularly smaller ones, are overwhelmingly importers of copyrighted materials, and the main beneficiaries are therefore foreign rights holders, the operation of the copyright system as a whole may impose more costs than benefits for them. There are flexibilities in copyright which exist in international treaties (such as the Berne Convention) to allow copying particularly for personal and education use. These are known variously as "fair use" or "fair dealing" provisions. These have generally not proved adequate to meet the needs of developing countries, particularly in the field of education.

Developing countries need to put in place effective systems for enforcing rights. However, in many cases (e.g. software) the absolute scale of estimated losses from illicit copying is higher in developed countries. And weak levels of enforcement have undoubtedly had a major impact in some areas on the diffusion of knowledge and knowledge-based products in the developing world. Indeed, many poor people in developing countries have only been able to access certain works through use of unauthorised copies available at a fraction of the price of the original. An inevitable impact of stronger protection and enforcement, as required by TRIPS, will therefore be to reduce access to knowledge-related products in developing countries, with potentially damaging consequences for poor people. For instance, the cost of software is a major problem for developing countries, and the reason for the high level of illicit copying. Copyright can also be a barrier to the further development of software which is specifically adapted to local needs and requirements.

Access to the Internet in developing countries is limited, although growing rapidly in most countries. But the Internet provides an unrivalled means of low cost access to knowledge and information required by developing countries, when their access to books and journals is severely restricted by lack of resources. But the application of copyright rules to the Internet is problematic. And historic "fair use" rights may be restricted by forms of technological protection, such as encryption, which restrict access even more stringently than copyright. In the USA, recent legislation (the Digital Millennium Copyright Act - DMCA) forbids the circumvention of such technological protection, even when the purpose of circumvention does not contravene copyright laws. The EU has introduced a special form of protection of databases (the "Database Directive"), which rewards investment in the creation of databases, and which may restrict access to data by scientists or others, including in developing countries. The 1996 WIPO Copyright Treaty contains elements which may restrict the access of developing countries to information.

• Publishers, including those on-line, and software producers should review their pricing policies to help reduce unauthorised copying and to facilitate access to their products in developing countries. Initiatives being undertaken by publishers to expand access to their products for developing countries are valuable and we encourage an expansion of such schemes. The extension of free on-line access initiatives for developing countries to cover all academic journals is a good example of what could be done.
• In order to improve access to copyrighted works and achieve their goals for education and knowledge transfer, developing countries should adopt pro-competitive measures under copyright laws. They should be allowed to maintain or adopt broad exemptions for educational, research and library uses in their national copyright laws. The implementation of international copyright standards in the developing world must be undertaken with a proper appreciation of the continuing high level of need for improving the availability of these products, and their crucial importance for social and economic development.
• Developing countries and their donor partners should review policies for procurement of computer software, with a view to ensuring that options for using low-cost and/or open-source software products are properly considered and their costs and benefits carefully evaluated. In order that software can be adapted to local needs, developing countries should ensure that their national copyright laws permit the reverse engineering of computer software programmes, in ways that are consistent with relevant international treaties which they have signed.
• Internet users in developing nations should be entitled to fair use rights such as making and distributing printed copies from electronic sources in reasonable numbers for educational and research purposes, and using reasonable excerpts in commentary and criticism. Where suppliers of digital information or software attempt to restrict "fair use" rights by contract provisions associated with the distribution of digital material, the relevant contract provision may be treated as void. Where the same restriction is attempted through technological means, measures to defeat the technological means of protection in such circumstances should not be regarded as illegal. Developing countries should think very carefully before joining the WIPO Copyright treaty. Countries should also not follow the lead of the US and the EU by implementing legislation on the lines of the DMCA or the Database Directive.