Research Papers 13

RESEARCH PAPERS
13
TOWARDS A DIGITAL AGENDA FOR DEVELOPING

COUNTRIES
∗
Dalindyebo Shabalala
SOUTH CENTRE
AUGUST 2007
∗
Dalindyebo Shabalala is a Staff Attorney and Director of the Intellectual Property and Sustainable
Development Project at the Center for International Environmental Law ([email protected]). The views
expressed in this paper are the personal views of the author and do not necessarily represent the views of the
South Centre or its Member States.
THE SOUTH CENTRE
In August 1995 the South Centre was established as a permanent inter-

Governmental organization of developing countries. In pursuing its objectives of
promoting South solidarity, South-South cooperation, and coordinated
participation by developing countries in international forums, the South Centre has
full intellectual independence. It prepares, publishes and distributes information,
strategic analyses and recommendations on international economic, social and
political matters of concern to the South.
The South Centre enjoys support and cooperation from the governments of
the countries of the South and is in regular working contact with the Non-Aligned
Movement and the Group of 77. The Centre’s studies and position papers are
prepared by drawing on the technical and intellectual capacities existing within
South governments and institutions and among individuals of the South. Through
working group sessions and wide consultations, which involve experts from
different parts of the South, and sometimes from the North, common problems of
the South are studied and experience and knowledge are shared.
ACKNOWLEDGEMENT
The author would like to thank Alan Story and Luis Villareal as well as the South Centre staff for their
extremely helpful comments and suggestions. A special thanks to Sisule Musungu, Prof. Carlos Correa
and Prof. Ruth Okediji for giving me a chance and getting me this far; may I live up to the faith you
have shown.
Finally, to my wife Karin, for your thoughts, your love, and especially patience, patience, and more
patience.
TABLE OF CONTENTS
EXECUTIVE SUMMARY ......................................................................................................................... ix
I. INTRODUCTION............................................................................................................................ 1
II. A COPYRIGHT PRIMER ............................................................................................................... 3
III. THE NATURE AND SCOPE OF DIGITAL AND INTERNET CONTENT .............................................. 6
III.1 What is Digital and Internet Content? ................................................................................ 6

III.1.1 What is Digitization? ................................................................................................ 7
III.1.2 The Explosive Growth of the Internet ....................................................................... 8
III.2 The Uses of Digital and Internet Content ........................................................................... 9

III.2.1 Digital Books............................................................................................................. 9
III.2.2 Open Access Online Scholarship Repositories ......................................................... 10
III.2.3 Electronic Journals ................................................................................................... 10
III.2.4 Online Curricular Materials ..................................................................................... 11
III.2.5 Online collaborative and interactive fora................................................................. 11
III.2.6 Search Engines.......................................................................................................... 12
III.2.7 Free/Libre Open Source Software ............................................................................ 12
III.2.8 Peer to Peer (P2P) distribution networks ................................................................. 14
IV. THE POLICY PROBLEM OF DIGITAL AND INTERNET CONTENT .................................................. 16
IV.1 The Problem of Quality...................................................................................................... 16

IV.2 The Problem of Quantity .................................................................................................... 17
V. THE RIGHTS-HOLDER POLICY RESPONSE TO DIGITAL AND INTERNET CONTENT

AND ITS LIMITATIONS ................................................................................................................. 19
V.1 Selective extension of copyright principles to digital and internet content ......................... 19
V.2 The Expansion of Intellectual Property Subject Matter....................................................... 22

V.2.1 Software: Copyright and Patent Protection ............................................................... 22
V.2.2 Databases ................................................................................................................... 24
V.2.3 Policy Considerations for Developing Countries ......................................................... 26
V.3 Technological Restrictions on Access and Copying............................................................ 27

V.3.1 Encryption .................................................................................................................. 27
V.3.2. Encryption and Pay-to-View on the Internet ............................................................. 28
V.3.3 Pay-to-Download on the Internet ............................................................................... 29
V.3.4 Anti-Circumvention Measures .................................................................................... 30
V.3.5 Digital Rights Management (DRM).............................................................................. 32
V.3.6 Policy Considerations by Developing Countries........................................................... 34
V.4 Expanding the Global IP Governance of Digital and Internet Content ............................... 34
V.4.1 The WIPO Copyright Treaty (WCT)........................................................................... 35
V.4.2 The WIPO Performances and Phonograms Treaty .................................................... 37
V.4.3 Policy Considerations by Developing Countries........................................................ 38
VI. TOWARDS A DIGITAL AGENDA FOR DEVELOPING COUNTRIES ................................................. 40
VI.1 The Reality of Access to Digital and Internet Technology in Developing Countries ........ 41
VI.2 The Conditions, Freedoms and Rights necessary for Developing Countries to take
Advantage of Digital and Internet Content .......................................................................... 42
VI.2.1 Educational Access ................................................................................................... 42
VI.2.2 Development of Indigenous Content Industries ........................................................ 44
VI.2.3 The Rights and Freedoms Necessary to Ensure Access and Development ............... 48
VI.3 The Way Forward for Developing Countries..................................................................... 51

VI.3.1 Immediate Actions ..................................................................................................... 51
VI.3.2 Next Steps .................................................................................................................. 52
BIBLIOGRAPHY ........................................................................................................................... 56
GLOSSARY OF TERMS ................................................................................................................. 59

LIST OF ACRONYMS
CDs Compact Discs
CSS Content Scrambling System
DMCA Digital Millennium Copyright Act
DRM Digital Rights Management
DVDs Digital Versatile Discs (formerly Digital Video Discs)
EFF Electronic Frontier Foundation
FLOSS Free/Libre Open Source Software
ICT Information and Communication Technology
GDP Gross Domestic Product
GPL GNU General Public License
HTML HyperText Markup Language
ICTs Information and Communication Technologies
IGCSE International General Certificate of Secondary Education
ISPs Internet Service Providers
LANs Local Area Networks
LP Long Play disk
PDF Portable Document Format
MIT Massachusetts Institute of Technology
NGO Non-Governmental Organization
P2P Peer to Peer
RMI Rights Management Information
SSRN Social Science Research Network
TCO Total Cost of Ownership
TPMs Technological Protection Mechanisms
TRIPS WTO Agreement on Trade-related aspects of Intellectual Property Rights

UNESCO United Nations Educational, Scientific and Cultural Organization
WANs Wide Area Networks
WCT WIPO Copyright Treaty
WIPO World Intellectual Property Organization
WPPT WIPO Performances and Phonograms Treaty

EXECUTIVE SUMMARY
The last two decades of the 20th century saw a revolution in the nature of information and the way that
it can be created, used and transmitted. Vast opportunities have been opened up. Developing countries,
that have insufficient capacity to generate, disseminate and effectively utilize educational information
and knowledge, may finally be in a position to accelerate their development.
Digital and internet content is the key to these opportunities. With it, the cost of producing,
copying and disseminating any piece of information approaches zero, and any person with access to a
computer and the internet can be as powerful a distributor of information as a major company. The
major content industries have had their primacy over production and distribution channels challenged.
Many developing countries have not fully analyzed the policy implications of access to, and
control over, digital and internet content. This paper analyzes the implications of digital and internet
content policy for access to knowledge in developing countries and makes some initial
recommendations for developing countries. By bringing together several different strands of
discussions and analyses ongoing at national and international levels, it aims to provide a direction for
further research and policy analysis, by laying the groundwork and creating awareness of the
relevance and scope of digital and internet content for developing country policymakers.
The paper concludes that:
• Digital and internet content presents developing countries with the opportunity to clearly
determine in what way their development interests would be served by particular forms of
copyright regimes. That opportunity converges with a moment in international policy-
making that presents real scope for developing countries to implement development-
appropriate copyright regimes.
• Digital and internet content present real short term and long-term opportunities for greater
access to education information and the development of indigenous industries. The
opportunities are threatened by the response of major rights-holder industries who have
responded by:
o selectively extending copyright principles to digital and internet content;

o seeking the expansion of copyright and related rights subject matter;
o creating and enforcing Technological Protection Measures for digital works; and
o seeking new international norm-setting processes on digital and internet content such as
the WIPO Copyright Treaty, the WIPO Performers and Phonograms Treaty, and the
proposed WIPO Broadcasting Treaty.
• The expansion of protected subject matter provides little that would be of benefit to
developing countries.
• Technological protection measures and digital rights management systems present a real and
present danger to access for developing countries and provide no added value for the
development of indigenous industries such as publishing and music industries.
• The new global norms contained in the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT) limit whatever access developing countries
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may be able to achieve in the long-term. In addition, for those countries that already have
some access, the short-term costs of access to information will increase substantially.
• The conditions necessary for developing countries to begin to take advantage of digital and
internet content must include: strong and robust education and library exceptions; and a
strong and broad research and study exception.
• Existing decisions on the scope and value of the three-step test still leave the issue open for
developing countries to develop practices of their own with respect to the standard provided
by the test. As far as digital and internet content is concerned, the WCT and WPPT agreed
statements cabin the three step test and place it in proper perspective as an open-ended
enabling tool for crafting exceptions without actually pre-determining the scope of those
exceptions beyond the Berne Convention.
The paper recommends that developing countries implement the following:
Immediate Actions
• Do not sign TRIPS-Plus, WCT and WPPT provisions on Technological Protection

Measures. Those countries that have not signed the WCT and the WPPT should refrain
from signing them. Those who have should reconsider their participation in the treaties.
• Maintain and fully implement existing exceptions and limitations
• Focus copyright enforcement on the protection of domestic artists, not border controls for
cultural goods from developed countries.
• Limit software copyright protection only to the non-functional aspects of software. Do not
provide patent protection.
• Do not extend protection to non-original databases.
Next Steps
• Negotiate Special Provisions for Bulk Educational Access for Developing Countries.
• Formulate new and appropriate limitations for digital and internet content. A good
beginning would address the following issues in the near term:
o limits on technological protection measures;

o an exception for Search Engines;
o an exception for ISPs and P2P and other service providers;
o exceptions for Temporary, Incidental and Ephemeral copies;
o no enforcement of unfair copyright licensing contracts.
• Adopt and support Free/Libre/Open Source approaches to software and other content.
I. INTRODUCTION
The last two decades of the 20th century saw a revolution in the nature of information and the way that
it can be created, used and transmitted. At no other time in history has so much information been
potentially available at such low cost and at such speed and volume. Vast opportunities have been
opened up for marginalized and peripheral communities and individuals to access knowledge and
information. Developing countries, who suffer from a lack of resources in the very area that is the
primary lever for economic and social development i.e. educational information and knowledge, may
finally be in a position to accelerate their development.1
The information revolution is possible because of digitization: the ability to translate

information, primarily text, image, sound, and audiovisual material, into a common, digital format that
can be used by different devices and transmitted across multiple networks, such as the internet. Such
content is ‘digital’. The technologies and devices that translate, manipulate and communicate digital
content have come generally to be captured under the umbrella term of information and
communication technologies (ICTs).2 ICTs have become an accepted and integral part of the ongoing
discussion about the necessary and sufficient elements for economic development in developing
countries. Major UN agencies have mainstreamed ICT into their development policies as have many
major donors and developing countries.3 While the evidence for the benefits of ICT for development is
not fully fleshed out, the obvious contributions to productivity in developed country economies are a
basic appeal to common sense notions of efficient access to, and use of, information resources as a
result of globally reduced transaction costs.4
However, in the rush to pursue and adopt ICTs, the crucial issue of access to, and control over,
digital and internet content has not always been fully analyzed or considered. Many countries have
rushed to adopt policies on access to ICTs without fully analyzing the policy implications and
interaction with access to knowledge for their citizens.5 Digital and internet content allows the creation
of perfect copies at very little cost and allows distribution without any destruction of the original.
When the cost of producing, copying and disseminating any piece of information becomes as cheap as
to approach zero, any person with access to a computer and the internet can be a powerful distributor
of information, comparable to a company or government department. In particular, the major
industries dealing with the production of text, music, films, and television programmes (content
industries) have had their primacy over production and distribution channels challenged by digital and
internet content. However, digital and internet content also presents an opportunity for greater profit
and greater control for the content industries, as such content is also more susceptible to having
controls embedded within it. The threat to control and the potential for greater profits have resulted in
a complex set of responses from the major content industries, including: i) the selective expansion of
copyright law; ii) new and more stringent international copyright norms and iii) the development of
new information control technologies. These responses threaten to close off the possibilities for
1
A Story ‘Study on Intellectual Property Rights, the Internet, and Copyright’ in UK Commission on Intellectual
Property Rights Final Report of the UK Commission on Intellectual Property Rights (2002), at 8. (Available at
http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_study.pdf last visited February 13, 2007)
2
This includes computers, computer networks, telephones, mobile telephones, mobile phone networks, fax
machines, computer printers, cable television networks, radio networks.
3
See e.g. United Nations Development Programme Human Development Report (UNDP 2001) (available at
http://hdr.undp.org/reports/global/2001/en/ last visited February 13, 2007)
4
See C Neto “Development Theory and Foundations of Universal Access Policies” Yale Law School Student
Scholarship Series No. 12, 2005, at 12. (Available at http://www.is-journal.org/V02I02/2ISJLP365-Neto.pdf last
visited February 13, 2007)
5
Neto would attribute this to the neo-liberal focus on capital investment as the primary policy focus, ignoring the
methods by which spillover from investment in ICTs can be blocked.
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developing countries opened up by the adoption of ICTs and destroy the potential for increased access
to knowledge.
The nature and scope of the opportunities and the challenges facing policymakers in this arena,
while apparently self-evident, remain in reality largely unexamined, especially where developing
countries are concerned. There is a real need for work that addresses what is encompassed by the
information revolution, the industries and social sectors and the ways that developing countries can
take advantage of it. The policy question for developing countries is critical. It is made only more
complicated by the fact that it requires coordinated planning across several large policy areas such as
telecommunications, copyright, patents, education and culture. The issue is also complicated by the
significant variation among developing countries (including least developed countries) in terms of
access to ICTs, internet penetration, and other information infrastructure.6 Nevertheless, this paper
attempts to point to opportunities and challenges, although these may not always be applicable to all
countries encompassed under the definition of developing countries.
This paper analyzes the implications of digital and internet content policy for access to
knowledge in developing countries by addressing only a small portion of the larger ICT picture. It also
puts forward recommendations for developing countries to fully enable ICT policy to deliver on the
promise of more knowledge and information, especially for education. Section II of this paper begins
with a brief copyright primer, introducing relevant issues in copyright. Section III is an exploration of
the nature and scope of digital and internet content, and its relevant uses for developing countries.
Section IV describes the policy problem that digital and internet content presents for the creation,
distribution and access to knowledge. Section V analyzes the response to the policy problem from the
major content industries and discusses its limitations. Finally, Section VI outlines policy
considerations for developing countries and makes recommendations for the way towards a digital
agenda for developing countries.
6
See UNCTAD “Information Economy Report” UNCTAD 2005, at 3. (Available at
http://www.unctad.org/en/docs/sdteedc20051_en.pdf last visited February 13, 2007)
Towards a Digital Agenda for Developing Countries 3
II. A COPYRIGHT PRIMER
Copyright is an incentive system that works to encourage the creation and dissemination of ideas as
widely as possible, by conferring an exclusive right to a creator/author, for a limited (but long) period,
to reproduce the form in which the idea is expressed. The assumption underlying this incentive system
is that there is a large pool of material that can only be unleashed if individuals receive profit to create
and disseminate work.
What can be copyrighted?
Copyright protects literary or artistic works. Different countries include different subject matter under
this definition e.g.
• literary works such as novels, poems, plays, reference works and newspapers;
• characters (like Mickey Mouse);
• films, musical compositions (the musical notation), and choreography;
• artistic works such as paintings, drawings, photographs and sculpture;
• architecture;
• advertisements, maps and technical drawings;
• computer programs, whether in source or object code;
• compilations of data.
Copyright protects the form or expression of an idea, not the idea itself. The idea/expression
dichotomy is essential to the definition of copyright. Without it, the basic justification of copyright, i.e.
the dissemination of ideas and information, would be untenable. Copyright allows the rights-holder
control over a specific embodiment of an idea, but the idea itself may be used and incorporated by
others in their own intellectual creations. The line is not always clear cut and different countries draw
it with various degrees of clarity.
To qualify for protection, a work must be original. Countries approach the originality
requirement with varying degrees of strictness. In the United States, courts have required only that the
work not be a copy, thus avoiding passing judgment on the level of creativity in a work. In
continental Europe, the requirement has generally been higher i.e. that the work exhibit some artistic
merit. Countries are free to set the level of originality at whatever level they deem appropriate.
There are other requirements that may be imposed by national law. Countries may require that
the expression be fixed in a medium, either written down or recorded in some fashion that is
communicable to others. This has a largely evidentiary purpose since there is generally no requirement
that a copyright be registered to qualify for copyright protection. It simply makes it easier to establish
the date when the idea was first expressed.
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How is copyright acquired?
Copyright automatically adheres to a work provided that it is original. For all states that are parties to
the Berne Convention7, the copyright is automatic and global in application, although subject to
differing national exceptions and limitations as well as scope. For member states of the Berne
Convention there is no requirement to register with a copyright office. Some states may require that it
be registered if a copyright holder wishes to bring an infringement suit. The Berne Convention made
the acquisition of copyright instantaneous and global in a time when most products did not cross
borders as efficiently. In the new digital era where products do cross borders easily, it has become a
powerful tool for rights-holders in the global market.
What rights are conferred by Copyright?
A copyright grants the rights-holder the exclusive right, for a minimum of 50 years (under TRIPS, if
calculated on a basis other than the life of the author8), to exercise and/or authorize the:
• reproduction;
• public performance and communication to the public of a performance;
• the recording or broadcasting; and
• translation, and adaptation of the work.
These are considered the economic rights. The rights-holder may demand payment (royalties)
for authorisation and, in the event of any unauthorised act, has the right to enforcement action, either
through the civil or criminal system, to stop such acts, and to gain restitution for damages. Some states
provide other rights such as distribution, lending and rental rights.
In those states that are signatories to the Berne Convention, the rights-holder may also have
moral rights, which give the author the right to claim authorship and to object to:
- any distortion, mutilation or other modification of,
- or other derogatory action in relation to the work, which would be prejudicial to [the
author’s] honour or reputation.9
The rights-holder may assign all or a portion of the economic rights granted by the copyright,
but none of the moral rights. In addition, moral rights may only be held by natural persons, not legal
entities like corporations or collective rights management groups. The rights-holder has the right to
enforcement of moral rights, but the extent and nature of such action is dependant on national law.
What are the exceptions to rights conferred by copyright?
• Fair use, fair dealing or legal use without authorization: the exceptions allow copying for
such things as personal use, research, education, archiving, library use and news reporting,
without requiring permission of the author and/or remuneration. These are some of the
commonalities but the terms fair use (largely United States), fair dealing (largely United
7
Berne Convention for the Protection of Literary and Artistic Works (Paris Text entered into force July 24,
1971, amended September 28, 1979). (Available at http://www.wipo.int/treaties/en/ip/berne/index.html last
8
Article 12, Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) (signed15 April
1994) (Available at http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm last visited February 13,
2007)
9
Article 6bis, Berne Convention for the Protection of Literary and Artistic Works (Paris Text entered into force
July 24, 1971, amended September 28, 1979) (Available at http://www.wipo.int/treaties/en/ip/berne/index.html
last visited February 13, 2007)
Kingdom and Commonwealth) as well as legitimate use without authorization, indicate

different scope and practices and can encompass other exceptions and limitations. These
kinds of exceptions are the most important safety valve to ensure that copyright serves its
primary purpose of greater dissemination of knowledge. It also establishes the basic
principle that there are uses (and users) from which a copyright holder has no right or policy
reason to expect profits. Continental systems typically address the issue of exceptions
through closed lists of exceptions rather than an open-ended principle.
• Exclusion from Copyright protection: some subject matter that would nominally be
copyright protected is excluded by the nature of the manner in which it is generated. Some
of these can include legal texts, judicial decisions, certain speeches (article 2bis of the Berne
Convention).
• Independent Derivation: where an individual has independently expressed their work in the
same manner without copying or adaptation, both individuals have separate copyrights and
cannot be held liable for infringement. The easiest example is two photographers who take
the same exact picture of the same scene. Each photograph has an independent creation and
therefore independent copyright.
• First Sale: the concept is that, as with any product, once a consumer has bought a product,
the rights of the intellectual property holder to determine what a person does with the
physical product are exhausted. An individual can sell the product and the rights-holder has
no expectation of profit from that second or subsequent sale or exchange.
One caveat to all of this, however, is the requirement that, whatever the national law, non-
nationals must be accorded the same treatment as nationals. This is true for all members of the Berne
Convention and with the incorporation by reference of the Berne Convention, to all TRIPS members
as well. Thus, the advantage that many developed countries had to boost their own domestic industries
in earlier developmental stages e.g. the United States vis-à-vis the United Kingdom in the early days of
the United States Republic, is lost for developing countries.
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III. THE NATURE AND SCOPE OF DIGITAL AND INTERNET CONTENT
Opportunities can only be grasped if one understands the nature of what is being presented. Policy
making in the area of digital and internet content requires clarity about what ‘digital and internet
content’ encompasses, and the uses to which it can be put. This section will try to outline the outer
boundaries of the concept and present some uses of that content that are of potential relevance to
III.1 What is Digital and Internet Content?
Content, as it is now understood, can be divided into two basic categories: analog or digital. Analog
can be understood as the fixation of a work “through some human or mechanical process of deforming
a physical object […] in a manner that conveys an image […] or signal in a varying frequency […] or
light or colour intensity.”10 Analog works by recording a continuous (thus literal) representation of the
work in a physical medium. An analog representation, such as an LP record or a painting, has to be
manipulated as a whole. In a sense, analog content works by making a direct analogy between the
content and the physical form in which it is represented. Traditionally, analog content is classified into
the following general categories:
• Text – consisting of words or numbers in meaningful combinations such as sentences,

phrases, books, and mathematical formulae. Analog format largely requires fixation of
symbols (e.g. words) onto a surface that can be directly read and understood by humans.
• Audio – essentially, sounds which can be perceived through the ear. Analog format
maintains a physical relationship between the different sound frequencies e.g. the distance
between the notches and grooves in LP records represent the distance between different
frequencies.
• Image/Video - direct literal representations of three dimensional real world objects. This
includes much of the fine arts such as paintings, sculptures, and drawings. The video
element of this also includes moving images. The analog format e.g. the painting, maintains
the physical relationships of distance, depth and colour.
• Audiovisual – consisting of images and sounds combined to convey motion and movement.
These categories have in one combination or another formed the basic structure of the subject
matter of copyright and related rights law in different countries and are encompassed under the
concept of ‘artistic and literary works’. These categories are also the basic background for
policymaking in digital and internet content. The technical definitions are less important than
understanding that each of the categories required a different means for fixing representations, using
different physical forms and attempting to directly replicate or analogize the ‘work’. Thus, music was
recorded on LPs, novels were published on paper, and photographs were captured on film. Different
devices were required to view each subject matter. Copyright policy has been based on these
differences and has treated each format differently. Thus, the protection for sound recordings in some
countries is different compared to the protection for books.11
10
P Menell ‘Envisioning Copyright Law’s Digital Future’ (2002) UC Berkeley School of Law Public Law and
Legal Theory Research Paper Research Paper Series No. 95, at 58 (Available at
http://www.nyls.edu/pdfs/v46n1-2p63-200.pdf last visited February 13, 2007)
11
Title 17 of the United States Code concerned with Copyright, protects literary and artistic works under
Chapter 1. Sound recording have a different scope from other works as described in 17 USC Section 114.
In contrast, digital and internet content exhibits a unity of format that entirely transforms the
relationship between different forms of content and the way in which the categories understood by
copyright law function. Rather than analogizing, digital and internet content translates and transforms
the ‘work’ such that the manner in which it is represented in no way resembles any of the actual
physical relationships of sound, text or images. Digital and internet content encompasses all
information that has been digitized, meaning that it can all be manipulated by a computer
microprocessor, a tool that has become ubiquitous in our modern age, present in almost all electronic
devices (e.g. mobile phones, televisions, computers), and can be distributed through the internet and
other digital transmission means. Digital and internet content encompasses literary and artistic works
that have been transformed from analog to digital, or were originally created as digital works. It also
encompasses new forms of content, such as software, and multimedia products such as web pages.
The power of digital and internet content lies in the maturation of two processes: ‘digitization’
and the growth of the Internet.
III.1.1 What is Digitization?
Digitization means turning a representation or recording into a format which can be read, viewed or
represented in some manner in a computer microprocessor. At their core, computer microprocessors
are binary systems, operating through electronic logic gates which are either ‘on’, allowing electric
current to flow ( a state labelled ‘1’) or ‘off’ blocking the flow of electric current ( a state labelled ‘0’).
Any material that one wishes to manipulate or represent in the computer microprocessor must be
converted into this binary language. The following example simplifies the issue by a significant factor
and omits some elements, but the basic explanation should provide some understanding of how the
process works.
The units of binary language (the ‘0’ or ‘1’) can be thought of as ‘bits’. They can be placed in
sequences such as four bits which consist of a four unit set of zeros and ones e.g. 0011 or 0101 or 8
bits which consist of an 8 unit set of zeroes and ones e.g. 10101100, or 01101101. The term ‘bytes’
has generally come to describe an 8-bit sequence and is used in reference to “kilobytes” or
“megabytes”. Digitization is a mathematical operation enabled by mathematics in base 2, using just
the numbers 0 and 1. This is in contrast to familiar mathematics conducted in base 10, which uses 10
numbers (i.e. 0, 1, 2, 3, 4, 5, 6, 7, 8, and 9). For example, in digitizing an image, a value is assigned to
each colour on the spectrum (e.g. red is 0001, green 1001, and blue is 1000). The image is divided
into a very fine grid, with each square called a pixel. Each pixel contains a certain colour and is then
represented as some combination of the basic colours on the spectrum, which is represented as a
binary addition (or other binary mathematical operation, e.g. binary addition: 0001 + 1001 + 1000). In
addition, some binary information is also added to note the location of the pixel on the grid. Once that
is done each pixel is a binary number containing colour and location information and can be stored
anywhere on a computer microprocessor.
What is seen on a computer screen (or any other digital device) is the result of layers of
interpretive software (itself a series of zeroes and ones consisting of instructions to the
microprocessor) that reconstructs bits into something that humans can see, read or hear, through a
computer monitor or speakers.
A digital representation can be disassembled and reassembled in an almost infinite number of

combinations, and each discrete bit manipulated individually (and safely), separate from all the other
bits that make up the representation. The ability to manipulate, alter and transmit works at this micro-
level has proven to be powerful and is at the core of the digital revolution that is transforming markets
for creative goods and services.
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However, the digital and internet content revolution does not really lie in the ability to turn
words, images or sounds into zeroes and ones; the mathematical ability to carry out that process has
been part of human capability since the early part of the twentieth century. The real basis of the digital
and internet content revolution lies in the increased memory capacity of computer microprocessor
devices (the ability to store extremely large amounts of zeroes and ones) and the development of
software to manage and reconstruct the enormous amount of zeroes and ones into text, images, and
sounds which can be manipulated on a computing device and transmitted across a computer network.
Digitization has, therefore, been accompanied by a multitude of computer programmes (software) to
create, manage and distribute digital and internet content.12
III.1.2 The Explosive Growth of the Internet
One result of the software development that accompanied the digitization revolution is the explosive
growth of the internet. Compression13 and data management software, as well as more efficient fibre-
optic cables14 have increased the ability of the internet to transmit larger and larger amounts of data, at
faster and faster speeds. Now, the potential exists for any work (text, music, film) to be distributed
worldwide, essentially instantaneously, without degradation and at an insignificant cost.15 As Alan
Story puts it “providing internet access to already formatted materials or widening existing access to
new users has zero marginal costs for information distributors (unlike, for example, the paper and
printing costs of hard-copy materials).”16
The internet has, in effect, become a ‘datacasting’ (data broadcasting) system, regardless of the
original format or representation of the data.17 The key to this process is the fact that transmitting data
over the internet does not destroy the data in the sending device. Individuals can produce, share and
distribute content without loss to themselves of the original content.
These two developments, digitization and the internet, have transformed the separate strands of
analog content into the single basic format of digital and internet content. This has major implications
for the reproduction and distribution of content. It also presents an opening up of a closed economic
system, shifting control of reproduction and distribution channels from centralized systems with a few
actors in each market, to decentralized systems with millions of actors. Content that once may never
have had the opportunity to be produced or distributed can now find its audience and niche, anywhere
in the world. Content that was limited to only one country can now cross borders effortlessly. Content
that was highly expensive may now be accessible without cost. In this newly opened up process,
opportunities for increased access abound.
12
Legal Theory Research Paper Research Paper Series No. 95, at 5 (Available at http://www.nyls.edu/pdfs/v46n1-
2p63-200.pdf last visited February 13, 2007)
13
See Glossary
14
See Glossary
15
This, of course, presumes that the costs of accessing and using the internet are on a par with telephone costs,
or even cheaper.
16
A Story ‘Study on Intellectual Property Rights, the Internet, and Copyright’ (Study Paper 5) in UK
Commission on Intellectual Property Rights Final Report of the UK Commission on Intellectual Property Rights
(2002) at 37 (Available at http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_study.pdf last
17
See C Correa “Implications of Intellectual Property Rights for the Access to and Use of Information
Technologies in Developing Countries” Discussion Paper 2000/2 UNU-INTECH, International Workshop on the
Information Revolution and Economic and Social Exclusion in Developing Countries, Maastricht, 23-25 October
1996, at 34. (Available at http://www.intech.unu.edu/publications/discussion-papers/2000-2d.pdf last visited
February 13, 2007)
III.2 The Uses of Digital and Internet Content
The potential uses and consequences of digital and internet content for development run extremely
broad and deep. The opportunities for the general public especially for access to educational and
technical information materials are highly significant. In this regard it is important that some key tools
and uses are outlined. The following section describes tools with the potential to enable development,
especially for educational access.
III.2.1 Digital Books
Textbooks are a subset of the larger book publishing market which has undergone a significant shift in
the way in which texts are produced. Almost all texts are now created on word processors on
computers and emailed between authors, their colleagues and their publishers. Before a text is ever
printed in paper form it now exists as an electronic document, formatted and ready to print. The
emailing and internet transmission or downloading of such texts addresses a major bottleneck of
distribution to developing countries and, where access exists, can transform the costs of delivery and
distribution of texts.
However, there is a significant portion of published books that have never been digitized,
including many seminal works of literature and science. There are also a significant number of out of
print books that are simply not worth the time and money for publishers to reprint or digitize. Many
organizations are working to remedy this, especially where these texts are no longer under copyright
protection. A major project is Project Gutenberg18 which is a collaborative project to digitize texts that
are in the public domain. It contains over 20 000 high quality free texts. They also carry translations
of these texts. Where texts which form part of the basic reading of educational courses are available
electronically, educators and students can access, download and read them without the added costs of
purchasing books. While electronic access has a short term cost, the ability to access unlimited
amounts of reading material without purchase may pay off over the long term. One example is the
fact that students are able to study the works of Shakespeare, George Bernard Shaw, and Charles
Dickens, some of the set texts necessary for completion of the 2007 English Literature International
General Certificate of Secondary Education (IGCSE)19 exams, which many secondary school students
in the English-speaking world have to take to complete their secondary education.
The primary advantage of digital books is that they present a real opportunity for increased
access to knowledge and also their ease of distribution in comparison to hardcopy texts. It is important
to note that this advantage, while not necessarily lost, is somewhat reduced by the fact of printing out
the text and making photocopies or using printing presses. Since such photocopying and/or
reprographic technology is expensive in many developing countries, the cost of copies may not
necessarily always exceed the cost of some books, especially for cheap paperback versions of public
domain texts. However, in many cases, especially that of technical and scientific texts at university
level, the costs of electronic downloads and printing may still remain significantly below the costs of
buying texts, especially for those texts still under copyright protection.20 A key limitation is also the
fact that many electronic journals are available only as paid subscriptions.
18
www.gutenberg.org
19
http://www.cie.org.uk/CIE/WebSite/UCLESData/Documents/IGCSE/Syllabus%202007/0486%20Set%20Text
s%20-%202007.pdf
20
See A Rens, A Prabhala and D Kawooya ‘Intellectual Property, Education, and Access to Knowledge in
Southern Africa’ (2006) ICTSD Regional Research Paper Southern and Eastern Africa at 30. (Available at
http://www.iprsonline.org/unctadictsd/docs/06%2005%2031%20tralac%20amended-pdf.pdf last visited
February 13, 2007), describing the demand side of the equation of why students feel the need to photocopy their
assigned texts.
10 Research Papers
III.2.2 Open Access Online Scholarship Repositories
A significant factor for developing country educators and scholars is the growth of open access
scholarship repositories into which more and more scholars are placing their work. These repositories,
while not necessarily peer-reviewed, also include papers published elsewhere in peer-reviewed
journals. Works can be uploaded and downloaded fairly easily for free and can enable two-way traffic
by allowing scholars from the South to place their works in such repositories and by enabling access to
the most up to date writings in their field. In this way the commons of scholarship can grow and such
articles and writing can provide a free basis on which developing country scholars and educators can
build reading lists, based on South scholarship as well as scholarship from developed countries.
A good example of such repositories is the Social Science Research Network21 which is free to
access for those who register with internet addresses in developing countries. The site allows
individuals to register and to deposit their papers and enables search of the database by subject or by
author. Available subjects range from Law to Political Science and Economics. Such repositories may
not necessarily replace the filtering service that peer-reviewed journals (online and hardcopy) provide,
but they enable access to pre-publication (and in many cases post-publication) versions of many
articles that do end up in such journals. Combined with free online access to abstracts of articles
(provided by many subscription journals) the world of research is opened up for scholars in
developing countries. A major advantage of such repositories is that they provide a clear incentive for
scholars to deposit their works so that they can not only have their work placed in prestigious journals,
but also have that work disseminated and cited as widely as possible.
III.2.3 Electronic Journals
Traditional journals provide a key service to scholars. They provide a peer review process that filters
and evaluates work while also enabling wide distribution of the works that they publish. In return for
the rights to own and publish articles, the owners of journals provide the channels of distribution and
the imprimatur of quality. The major market for such journals is other authors and libraries and the
cost of production of hard copies has generally been fairly high because of the failure to benefit from
economies of scale (too small a market). The ability to distribute journals electronically has meant that
the production and distribution costs of electronic journals have dropped by a significant factor, as
what was previously hardcopy can now be produced and delivered in electronic form to libraries and
authors. This also enables journal owners to deliver their journals to markets in developing countries
that were previously not worth the cost of servicing. The potential for increased access has not yet
been delivered however, because the production savings have not been passed on to users. The reasons
for this will be discussed in section IV.1 on the rights holder response to the digital and internet
content problem. For now, subscription journals, while having the potential to increase access, are not
yet a viable tool. There are examples of formerly subscription only journals becoming free-to-access
journals e.g. the law journals of several law schools in the United States such as Duke University.
Others allow free access to materials in their archives that are older than six months, such as the New
England Journal of Medicine, one of the most prestigious medical journals in the United States.
However, the rise of free electronic journals provides an alternative mode of access, while
maintaining the crucial peer review and filtering mechanism. Taking advantage of the freeing up of
distribution channels and the lowering of production costs, scholars in different subject matter areas
are collaborating to produce free electronic journals that provide the advantage of peer review without
the subscription costs. While not always equal in prestige to some subscription journals, such free
electronic journals can provide equal value in terms of filtering and distribution. This is a godsend for
librarians who can build their journal collections without having to purchase expensive journal
subscriptions. An initiative that aims to take advantage of these open access resources is the Open J-
21
www.ssrn.com
Gate project (www.openj-gate.com) launched by Bangalore-based Informatics.22 It indexes and

allows searches of a whole range of open-access journals and is free to access from anywhere in the
world. It enables access to the full-text of articles, some in PDF format (the ADOBE PDF reader is
free to download from the internet) and some in HTML web format. Most usefully, the site allows
searching by journal as well as by keyword. Such ‘meta’-sites provide a crucial service by collecting
together the widely dispersed resources available on the internet and making them available in a single
place. Another example of such a meta-site is the Directory of Open Access Journals
(www.doaj.org).23
III.2.4 Online Curricular Materials
Open Courseware programmes such as Open Courseware at the Massachusetts Institute of

Technology24 also provide courses and teaching materials available for free over the internet which
can be accessed by developing countries’ institutions. These programmes provide syllabi, teaching
tools, transcripts and videos of lectures, some of them delivered by the leading scholars in their fields.
Such resources are especially useful in the natural sciences where access to the most up-to-date
concepts, methods and approaches has historically been difficult for educators and students living on
the global periphery. These resources are available both at the tertiary and secondary school levels.
For example, a teacher of mathematics in a developing country will be able to download a syllabus,
problem sets and answers, exercises, analysis, explanations and lectures and use them in his or her
own lessons.
The major weakness of such Open Courseware systems however, is that many (especially in the
social sciences) rely on copyrighted texts to teach their material, and are therefore of limited use to
developing countries where such texts cost prohibitive sums. However, in combination with free
online text providers such as Project Gutenberg25, these programmes may enable sharing of expertise
at unprecedented levels and may allow direct use of such materials by students and teachers in
III.2.5 Online collaborative and interactive fora
Interactive forums provide a useful way to establish a dialogue on issues of concern to small or large
groups of like-minded individuals. These are especially useful with respect to exchange and
commentary on scientific and scholarly works. Authors may take comments and suggestions from
such fora and include them in their own works, as part of a sharing community26, and developing
country individuals can find a way to share with each other and with colleagues in developed and
developing countries, their data, and their information. Individuals from developing countries can
participate and contribute their material to such discussions in several areas on the internet.
Other such fora are the discussion lists and threads attached to specific webpages which enable
real back and forth communication between people reacting to general issues on a site or to a specific
web posting. While there are other web-based discussion fora, the most recent developments are so-
called web logs (“blogs”), which resemble on-line diaries. These also serve as tools for individuals to
serve a community by following and presenting information updated on a regular basis. These are
22
A Ratnakar “World’s Largest Open Access E-Journals Portal Launched” (2006), 90 Current Science 741, 751
23
Further sites can be accessed from the website of Electronic Information for Libraries at
http://www.eifl.net/services/services_journals.html
24
See http://ocw.mit.edu/index.html. Courses range from Anthropology to Chemical Engineering and are
available at undergraduate and graduate level.
25
See www.gutenberg.org
26
See e.g. Y Benkler, The Wealth of Networks (Yale University Press New Haven 2006) available at
http://www.benkler.org/wealth_of_networks/index.php/Main_Page last visited February 13, 2007)
12 Research Papers
almost always accompanied by discussion fora and threads to comment on the postings to the blog.
The particular advantage of blogs is that they allow the continuous updating of a website without
having any expertise in the programming languages for constructing websites. Thus any individual can
create a blog and state their views, upload documents and pictures and allow others to either post or
comment in discussions about the blog. Several websites enable free blogs to be set up by any person,
one example being www.blogger.com. Some search engines, such as Google27 enable searching for
blogs on specific topics.
III.2.6 Search Engines
The ability to seek out and identify relevant information on the internet has been a crucial innovation.
It has relied largely on the ability of search companies such as Google and Yahoo (as well as many
regional and local companies e.g. Ananzi in South Africa28) to send out automated systems that view
web pages, record the data and address, and categorize them, and make such links available to users.
These searches may also make copies that allow a user to find a page by searching for terms used in
the web page. Developing country users may be more reliant on these search engines than users in
developed countries simply because they do not have access to the same marketing information from
newspapers, magazines and television that make it possible to type in a direct website address. Web
searching is crucial for development. For example, the development of such search engines in
indigenous languages (e.g. www.baidu.cn in Chinese) allows individuals to find websites already
written in that language and increases usability. The next logical step, the copying and (preferably
automatic) translation of copies of websites to allow them to be searched in the language used, is a
way to increase access for developing countries.
III.2.7 Free/Libre Open Source Software
Free/Libre Open Source Software (FLOSS) is software that is essentially free to use, modify and
implement. This is in contrast to proprietary software which is not free to use and whose information
is protected by copyright or other intellectual property rights.29 Such proprietary software includes, for
example, the Microsoft Windows operating system, and associated Microsoft Office word processing
and business software.
FLOSS relies on open networks of programmers and developers. One person creates a
programme that others can alter, share and improve. As a development model, it is robust, fast and
effective at finding flexible solutions to programming problems that single, goal-directed teams
working in secret may not be able to. To accomplish the task of open development and dissemination,
FLOSS depends on copyright to enforce a licensing structure that maintains the open nature of the
software. There are several kinds of licences available under the FLOSS concept, the most common
being the GNU General Public Licence (GPL), used by over 66% of projects.30 The conditions of the
licence primarily affect the user when it is distributed to another user. Among the key provisions of
distributing GPL software are:
• the distributor of a GPL programme must also make available the source code to the
recipient;
27
http://blogsearch.google.com/?ie=UTF-8&oe=UTF-8&hl=en&tab=wb&q=
28
www.ananzi.co.za
29
The section below is an example of how FLOSS can work, outside of software. The section is a modified
version of the International Open Source Network’s Primer on FLOSS, based on the Open Content principle at
http://www.iosn.net/foss-primers, which is free to use, modify, and distribute, and only requires
acknowledgement.
30
Ghosh et al. “Economic Impact of FLOSS on innovation and competitiveness of the EU ICT sector” UNU-
MERIT Study Commissioned by the European Commission, November 2006, at 86. (Available at
http://ec.europa.eu/enterprise/ict/policy/doc/2006-11-20-flossimpact.pdf last visited February 13, 2007)
• any changes made to a GPL programme by the distributor must also be licensed under the
GPL;
• distributors may not place any non-GPL restrictions upon the users they distribute the GPL
programme to; and
• recipients of GPL software are granted the same rights to copy, modify, and distribute the
software as the original distributor.
Any person who contravenes the licence may therefore, be sued under both contract and
copyright law. Thus, the initial programmer has the assurance that, once something is released as
FLOSS, it will remain so permanently. It is not possible to add additional licensing to strip away a
user’s right to redistribute or modify the programme. A commercial software company cannot take a
GPL programme, modify it and then sell it under a different, proprietary licence. The open nature of
FLOSS makes it ideal for developing countries that need a cheap, reliable and cost-effective way to
move into ICTs and software development. It is also a growing part of the information and
communication technology and service economy in developed countries. Ghosh notes that, in the EU,
“FLOSS-related services could reach a 32% share of all IT services by 2010, and the FLOSS-related
share of the economy could reach 4% of European GDP by 2010.”31 The FLOSS model has been
adopted and is now being driven by industry.32 It is a viable economic and business model focused on
providing services rather than selling products, although that is also a possibility under this model.
There are now many high quality products available for all applications, including word
processors, spreadsheets and internet applications, more than sufficient to meet the needs of most
individuals and students in developing countries.33 While the initial start costs for installing free
software can be high, largely because of personnel costs to ensure knowledgeable purchasing,
installation and maintenance, the ability to modify, localize and install updates without further cost is a
real advantage.34 For individuals, free software is evidently better, simply because of the cost issue.
For students and educators, the advantages lie in being both able to access and use, for free, the word
processing and other educational software available, as well as the ability to make changes and begin
to train in some of the elementary methods of programming.
Amongst developing countries, the major mid-size economies of Brazil and India lead in the
adoption and use of FLOSS. Nevertheless, use of FLOSS desktop applications remains low, though
growing.35 In developing countries, FLOSS adoption and use is driven by government initiatives.36 For
example, Open Office is used in 91% of Brazilian government offices, 73% in India, and 58% in
Malaysia.37
31
32
Id. at 17
33
See, for example the OpenOffice suite of applications at http://www.openoffice.org/.
34
A Story ‘Study on Intellectual Property Rights, the Internet, and Copyright’ (Study paper 5) in UK
(2002), at 23. (Available at http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_study.pdf last
35
See the example of Brazil in Ghosh et al. “Economic Impact of FLOSS on innovation and competitiveness of
the EU ICT sector” UNU-MERIT Study Commissioned by the European Commission, November 2006, at 24.
(Available at http://ec.europa.eu/enterprise/ict/policy/doc/2006-11-20-flossimpact.pdf last visited February 13,
2007)
36
Id. at 25
37
Id. at 31
14 Research Papers
Other examples of free software are the free web browser Firefox from the Mozilla
Foundation38, or the email manager Thunderbird (also from the Mozilla Foundation). The Linux
operating system39, which underlies much of the FLOSS application field, is also available in several
different versions for different purposes.
III.2.8 Peer to Peer (P2P) distribution networks
The major element40 of the Peer to Peer definition describes a distribution process where each
individual user enables others to have access to materials on their computer or computer network,
search for what they want and make copies for themselves. Normally, one individual uploads an object
to another with the condition that such access is reciprocal. This is a powerful distribution mechanism
that bypasses the traditional media channels and enables one object to be immediately available to
many users, the moment someone puts it on the network. Examples of such networks are Kazaa41
(music), Flickr42 (photographs), BitTorrent43 (all kinds of content including software).
Some have centralized databases which hold information about where certain files can be found
and enable free transfers.44 Other programmes simply enable one user to search another’s computer for
material and to transfer it to one’s own computer. Such programmes usually have two aspects: the
ability to search a network of computers for specific information; and the ability to transfer that file
once found from someone else’s computer to your own. To search properly, all the information
generally needs to be categorized in the same format on each computer and it needs to be on a
network.
The real innovation of these programmes is to establish such a network related specifically to
each P2P programme, thus connecting up users in the first place, and then make it possible for non-
technical users to transfer files from another person’s computer, or server, to their own. These P2P
networks are powerful tools for sharing information, tools and content. P2P transfers now constitute
almost half of all global internet traffic.45
The opportunity for developing countries, and individuals and organisations in individual
countries is immense. In the first place, P2P can enable access to materials that are available in other
countries but have not been made available in the developing country. Many major content providers
set up limited distribution mechanisms in the developing world due to market size and profit
considerations. Accessing cultural goods becomes an expensive process as there are no direct ways to
acquire such goods and they may therefore be prohibitively expensive in developing countries. Peer to
peer sharing will enable those developing country individuals and institutions with internet access to
connect and search those P2P networks. While the advantages for cultural commodities are clear, the
38
www.mozilla.org
39
http://www.linux.org/dist/index.html
40
The other is Peer to Peer production, sometimes called distributed production. An individual or a company
saves costs on the generation of complex knowledge or technical goods by placing the problem on the network
and separating it into smaller issues. Each member of the network works on whatever element of the problem
that they choose, feeding their results back to the larger network. Such approaches have had some spectacular
results, as in the explosive development of Open Source software products such as the FireFox web browser.
41
www.kazaa.com
42
www.flickr.com
43
www.bittorrent.com
44
M Heins “The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual Freedom”
The Free Expression Policy Project, New York, NY 10001, (2003) at 35. (Available at
http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf last visited February 13, 2007)
45
advantages with respect to scientific research, health information, books, and other materials are even
stronger.
The ability to search many sub-networks for materials of particular concern to developing
countries would be invaluable, especially for technology and knowledge transfer. In addition, by
making developing country materials available on such networks, these countries can encourage and
enable diverse and varied exchanges among South-South and North-South, eliminating the distribution
blockade that exists because of the dominance of the major distribution channels by major content
distributors from developed countries.
16 Research Papers
IV. THE POLICY PROBLEM OF DIGITAL AND INTERNET CONTENT
The basic problem posed by digital and internet content is that of copyright. Digital and internet
content has fundamentally changed the nature of the subject matter protected by copyright and has
opened up whole new areas of potential profit-making. The power of digital technology has
transformed the way creators work and how authors and publishers deliver works. As Correa notes “it
has blurred the lines between copying and reading, sale and reuse, performance and viewing of a
work.”46 The question that must be answered by policymakers in this arena is in what ways old
copyright concepts can, or should, be extended into the digital arena, and how best to serve the public
interest in ensuring incentives for production and increasing access to knowledge.
In an environment of lowered production costs, zero marginal costs for reproduction, and zero
marginal costs for distribution, profit-making opportunities increase exponentially for content owners,
while costs for access should, theoretically, decrease, or approach zero, for consumers. These two
trends appear to be diametrically opposed in the sense that such increased profit-making for copyright
holders can only take place in an environment where levels of paid access for consumers either remain
static or where the payment model is extended into areas previously reserved to free uses. This is in
fact the position that has been taken by the major content industries in developed countries and it is in
this context that their push for further copyright agreements at the international level, and further
domestic legislation should be seen.
The major developed country content industries argue that their costs have remained static while
the costs of access have been reduced, and that this is the cause of their falling profit margins.47 This
argument fails to reflect the real advantages of cost and productivity savings that that they have
already gained, and stand to gain, from the use of digital and internet technologies, both in production,
and in distribution. The overall growth of these industries (especially if one includes the plethora of
small businesses, independents, and start-ups) has not suffered at all and, in the United States,
economic growth of this sector (as a proportion of GDP between 1997 and 2002) has outpaced that of
most other economic sectors.48 This is in the period in which there has been the most growth in the use
of digital and internet content and technologies by consumers and producers. In the period 1991-2002,
the average growth in sales from the United States to the rest of the world was 9.45%49, a more than
respectable economic performance for industries that argue that they are suffering from piracy through
digital and internet content.
Beyond the financial and structural issues, digital and internet content poses problems for basic
copyright concepts, especially for the core protection that copyright provides: the right of
reproduction. Digital and internet content affects reproduction in two ways: quality and quantity.
IV.1 The Problem of Quality
Historically, most reproduction technologies for digital content resulted in a degradation of quality as
compared to the original. For example, photocopiers were for a long time poor reproducers of text and
46
CM Correa ‘Fair Use in the Digital Era’ (2002) 33 IIC 570, 570 (Available at
http://webworld.unesco.org/infoethics2000/documents/paper_correa.rtf last visited February 13, 2007)
47
S Siwek “Copyright Industries in the US Economy: The 2004 Report” (International Intellectual Property
Alliance, Washington DC 2004) at 10. (Available at http://www.iipa.com/pdf/2004_SIWEK_FULL.pdf last
48
S Siwek at 5
49
Id. at 10
images. In addition, the act of copying in many cases degraded the original itself because of the
necessity of physically deforming the original on a tape player or having to expose it to bright light
from a photocopier. The only quality reproduction technologies were the ones that had produced the
original, a printing press, in the case of text. This made reproduction a very expensive process that
required significant investment. It also meant that the only real concern for rights holders was not
copies by private citizens but by competitors (and possibly other large commercial actors). This was
the same in the case of music, where magnetic tapes tended to reproduce less well from each copy.
Digital and internet content transforms the nature of copying. Each copy from an original can
be as good as the original.50 However, that is not the real problem. The real problem is that each copy
can itself be copied an infinite number of times without a loss of quality in the copies while the
original retains its quality. Reproduction becomes “viral” in that copies can be passed on from one
person to another easily and almost without cost, reaching across chains of personal networks almost
instantaneously. In addition, copying technologies have not only improved in quality, but have become
embedded in the operation of other technologies such that reproduction is a basic function of every
single computer programme and every computer microprocessor.
IV.2 The Problem of Quantity
In music and audiovisual content, digital or optical discs (CDs and DVDs) have become the dominant
form of distribution. Computer processors and the advent of so-called personal ‘burners’ have allowed
individuals, as well as larger commercial concerns, to make physical copies that can be sold to people
whose primary means of listening and viewing such content does not involve accessing it over a
network or through a computer. Since this involves the vast majority of people in developing
countries, optical disc reproduction in developing countries is a major target of action by the music
and audiovisual content industries, especially in Asia and Latin America. While the majority of users
now access such material in optical disc form, most commentators agree that the spread of ICTs, and
the internet, both in developed and developing countries, will result in massive migration of users
from the physical purchase of content to access through the internet, with the content stored digitally
in whichever device they use for accessing the material.51 In many countries this is already beginning
to happen with music, as mobile phones and other portable devices begin to take on multiple functions
such as music and video playback.
Some countries also provide a right of distribution52 separate from the right of reproduction.
This is not a right required by the Berne Convention but it has historically served to protect markets
for the major commercial content distributors so as to provide an incentive for them to distribute such
material. It effectively allows a rights holder to control and seek remuneration for the distribution of
the original. It allows a creator to sell the right of reproduction to one party and the right of
distribution to another, separating out the functions. Thus, a film company in the United States can
retain the right of reproduction in the United States, but then sell the right of distribution separately to
one company in Brazil, and to another company in Malaysia. This right is premised on the concept of
separating out reproduction and distribution and the idea that once a copy is distributed, the person
who distributed no longer has the copy in possession. With digital and internet content, the act of
50
With the caveat that there is some signal loss in the transition from analog to digital but largely at the extremes
of high and low frequencies. Compression techniques tend to remove sounds that are not generally audible to
the human ear.
51
See e.g. Pfanner, E. “Digital Music up 80% but Shy of Lost revenue” January 18, 2007, New York Times,
pointing to a shift in sales from CDs to online music.
52
See e.g. Article 4 of The European Copyright Directive, Directive 2001/29/EC of the European Parliament and
of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the
information society (Available at
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32001L00
29&model=guichett last visited February 13, 2007).
18 Research Papers
sending a copy to another person does not destroy the copy in the possession of the sender. In a world
where a sender retains a copy while a copy is sent, means that any person with an internet connection
can potentially become a major distributor by sending copies as many times as possible over an
indefinite period of time to every person connected to the internet. Those firms that make their profit
primarily as distributors rather than creators or producers of content find themselves in competition
not just with their traditional competitors, but with every single person who wants to send or share
copies of the work that they own. Nevertheless, the very technologies that present such a challenge to
distributors are also the very technologies that have reduced their costs of distribution by massive
amounts, provided that they also take advantage of the opportunity of digital distribution, and the first
mover advantage that their private deals with producer companies provide them.
V. THE RIGHTS-HOLDER POLICY RESPONSE TO DIGITAL AND INTERNET

CONTENT AND ITS LIMITATIONS
The speed at which digital and internet content has challenged the business models of the major
content industries as well as the access opportunities have drawn various responses as both rights
holders and users struggle to define their place in this new territory. For the moment, much of the
battle has taken place within developed countries, although a significant portion of activity has also
shifted to multilateral fora. In examining these responses and their limitations, developing country
policymakers may be able to avoid the pitfalls that some developed countries have already stumbled
into. This section also hopes to provide a sense of the universe of policy responses and make some
suggestions as to which ones may be more appropriate for developing countries.
The major content industries have largely responded to digital and internet content in a negative
manner, viewing the ease of access to digital and internet content as a threat to their main business
models. They have responded in four general ways:
• selectively extending copyright principles to digital and internet content;

• seeking the expansion of copyright and related rights subject matter;
• creating and enforcing Technological Protection Measures for digital works; and
• seeking new international norm-setting processes on digital and internet content such as the
WIPO Copyright Treaty, the WIPO Performers and Phonograms Treaty, and the proposed
WIPO Broadcasting Treaty.
The rights holder response has generally been to seek to bring all digital and internet content
under the protection of copyright law and add additional restrictions which threaten to restrain or
restrict free legal access to, and use of, materials that are necessary for development. The major
content industries in developed countries (publishing, sound recording, film, television, and software)
have been responding to what they perceive as both the threat to their business models and the
opportunity for greater profit and control, posed by digital and internet content. As Menell notes, this
has resulted in the fact that “[more] pages of copyright law have been added to the U.S. Code in the
past decade than in the prior 200 years of the republic, dating back to the first copyright act adopted in
1790.”53 The importance of digital and internet content to these industries cannot be over-emphasized.
The sheer amount of activity in the international arena54 should serve as fair warning that developing
countries ignore, or dismiss such issues at their peril.
V.1 Selective extension of copyright principles to digital and internet content
While the major developed country content industries have sought to extend exclusive copyright
principles to digital and internet content, they have also excluded or diminished the application of
traditional public interest elements of copyright law. In particular, the actions of developed country
industries have affected the application and scope of limitations and exceptions to copyright and
53
Legal Theory Research Paper Research Paper Series No. 95, at 4 (Available at http://www.nyls.edu/pdfs/v46n1-
2p63-200.pdf last visited February 13, 2007)
54
As evinced by the TRIPS Agreement, the WIPO Copyright Treaty, the WIPO Performers and Phonograms
Treaty, the proposed WIPO Broadcasting Treaty, as well as the various bilateral and regional Free Trade
Agreement between the US and developing countries; and the EU and developing countries.
20 Research Papers
related rights. Sometimes described as fair use or fair dealing in common law legal systems, the
traditional exceptions to intellectual property rights in literary and artistic works generally include:
• reproduction and use for private use purposes;

• reproduction and use for educational, research or study purposes;
• reproduction and use for library purposes (e.g. archival copies, lending of multiple copies,
reproduction for teachers);
• news reporting (e.g. quotations, excerpts, and commentary).
These limitations and exceptions have been applied in diverse ways, although most countries
have left some flexibility to accommodate new technologies. This leaves a significant amount of room
for developing countries to innovate and apply development-appropriate policies. However, major
content industries in developed countries oppose such flexibility or use of exceptions and limitations.
Their basic argument is in two parts. The first is based on the idea that limitations and exceptions to
copyright only existed in those areas where the rights holders could not cost effectively enforce their
rights. Since the digital environment may enable greater control and ability to enforce rights e.g.
against private use, such exceptions should no longer apply as they only existed because of a market
failure.55 In this scenario, we are asked to presume that the rights holder has always had a right to
every iota of potential profit that can be made from their work. This argument fails in light of the basic
purposes of copyright. Copyright is meant to provide only a sufficient incentive to creators to produce
and disseminate their works, for the purposes of increasing the amount of work available to society in
general. It is not aimed at providing the highest possible incentive or the highest possible reward. It
has always been a limited grant whose right to profit has always been balanced against the larger
public interest.
The second part of the argument is that digital and internet content has changed the nature of the
relationship between creators and users by making reproduction and distribution infinitely easier, thus
weakening rights holder incentives. This disrupts the traditional balance between rights holders and
users and therefore stricter controls on digital and internet content are necessary to restore that
balance.56 However, such an argument rests on the premise that the pre-existing balance between
rights holders and users was both correct and desirable. At least for populations in developing
countries, it is clear that the balance has largely been in favour of rights holders from developed
countries. Some estimates of royalty payments suggest that there is a net outflow of funds from
developing to developed countries.57
The very fact that digital and internet content has disrupted business models and affected the
basis for copyright law suggests that a new balance needs to, and can, be found, one that reflects the
reality of production costs, of profit margins, and of the real need for access to knowledge for
marginalized populations.
55
C Correa “Implications of Intellectual Property Rights for the Access to and Use of Information technologies
in Developing Countries” UNU/INTECH Discussion Paper 2000-2, at 37 citing the European Commission.
(Available at http://www.intech.unu.edu/publications/discussion-papers/2000-2d.pdf last visited February 13,
2007)
56
See J Ginsburg “Legal Protection of Technological Measures Protecting Works of Authorship, International
Obligations and the US Experience” Columbia Law School Public Law and Legal Theory Working Paper
Group, Paper No. 05-93, 2005, at 3. (Available at http://ssrn.com/abstract=785945 last visited February 13,
2007)
57
Story, A., et al (eds.) “The Copy/South Dossier: Issues in the economics, politics and ideology of copyright in
the global South” Copy/South Research Group May 2006, at 33 (available at www.copysouth.org) citing N
Chomsky, “Notes on NAFTA”, in K Dawkins NAFTA: The New Rules of Corporate Conquest (Westfield, NJ:
Open Magazine Pamphlet Series, 1993) at 3.
The nature of the creative process, iterative and inspirational, suggests that there has always
been a legitimate amount of borrowing that forms part of the incentive to create.58 Thus the incentive
system must have an input as well as an output. In addition, any policy change has to be premised on
whether or not the incentive to publish and disseminate is truly harmed in a significant fashion. To
simply assume that potential loss of theoretical profits would lead to a loss of the incentive to create
and disseminate is insufficient as a basis for policy.
Nevertheless, a proper balance must still be found between the right of public access, which is
central to the rationale for copyright protection, and the protection of the incentive to produce and
disseminate original work. This approach must also take into account market realities. The truth
remains that without special access mechanisms or broad exceptions, populations in developing
countries present negligible markets for developed country goods. There are no potential sales to be
had where literacy is low and costs are beyond the reach of all but a small elite. The fact that students
in a developing country can download an article from a database or copy a piece of software does not
represent a lost sale, since such a sale would never have taken place to begin with.59 Allowing such
access can only serve to create a larger market in the future by training and educating larger portions
of the population who may therefore earn more and spend more of their discretionary income on
cultural goods.
In addition, there are economic models that suggest that the attempt to increase copyright
protection, and reduce exceptions and limitations, in the digital and public domains may be counter-
productive for society and for individual producers.60 Bessen and Maskin’s model suggests that in an
interactive and dynamic environment such as the internet, the best way to ensure optimum incentives
for the production and dissemination of cultural goods may be less restrictive copyright protection for
works.61 This is premised on the realisation that much of what constitutes intellectual creations are
collaborative and interactive processes rather than individuals working alone at a desk creating
material out of thin air.62 As a basic principle, such a realisation rings even more true in developing
countries where folklore and other traditional production methods form the majority of what would be
considered literary and artistic works. Such creation is sequential and dependent on previously
produced material, whether copyright or public domain. Thus a certain level of imitation is necessary
and should in fact be encouraged and enabled.63 Whereas many in the copyright industries see the
internet as a threat, in fact it may balance out the losses from increased copying with gains from easier
production, distribution and marketing.64 The harm to copyright holders from digital and internet
content and technologies may in fact be illusory, and developing countries should consider that their
own industries, producers and artists may benefit more from less restrictive levels of protection for
digital and internet content than they would from following the highly restrictive models in developed
countries.
58
B Andersen, et al “Copyrights, Competition and Development: The Case of the Music Industry” Discussion
Paper No. 145 January 2000 UNCTAD at11. (Available at http://www.unctad.org/en/docs/dp_145.en.pdf last
59
A Story ‘Study on Intellectual Property Rights, the Internet, and Copyright’ in UK Commission on Intellectual
Property Rights Final Report of the UK Commission on Intellectual Property Rights (2002), at 18. (Available at
60
J Bessen & E Maskin ‘Intellectual Property on the Internet: What’s Wrong with Conventional Wisdom?’
Presentation at Harvard Information Infrastructure Project Conference ‘Internet Publishing and Beyond : the
Economic of Digital Information and Intellectual Property’ January, 1997 (Revised 2004) (Available at
http://www.researchoninnovation.org/iippap2.pdf last visited February 13, 2007)
61
Id. at 1
62
Id. at 2
63
Id.
64
J Boyle ‘The Second Enclosure Movement and the Construction of the Public Domain’ (2003) 66 LAW AND
CONTEMPORARY PROBLEMS 33, 43 (Available at http://www.law.duke.edu/pd/papers/boyle.pdf last visited
February 13, 2007)
22 Research Papers
However, the playing field for innovative policy-making is undergoing radical shifts, and the
following sections outline other responses from rights holders most relevant to developing country
access to digital and internet content and technologies.
V.2 The Expansion of Intellectual Property Subject Matter
As new digital and internet content has come into being, and as previously unprofitable content
becomes more worthwhile, developed country content industries have sought to extend protection to
these new products and to strengthen intellectual protection for others.
V.2.1 Software: Copyright and Patent Protection
The protection of software has been extended into the copyright and patent fields. Under article 10 of
TRIPS, member states are obliged to provide protection to computer programmes as literary and
artistic works. In addition, some countries, such as the United States65, have provided patent protection
for software programmes.
The copyright protection extended to software now goes down to the basic level of the
microprocessor, the ones and zeroes, (what is called the object or machine code). Thus, copyright
protection for software now protects multiple representations of the code: the object code, the source
code66 and any other higher level embodiments of the code. Since object code is not human readable, it
becomes very difficult to understand how the purpose of copyright dissemination is served if no one
can read the code and gain knowledge and information from it. In particular, such a code can only be
read if ‘decompiled’, that is, transformed by another computer programme back into a human-readable
source code.
However, copyright only protects expression not functionality or ideas. Attempts by software
companies to protect the manner in which the programmes functioned, beyond the expression, have
generally (but not always) been rebuffed by courts in the United States.67 Thus, even in the most
permissive regulatory atmosphere for copyright, it seems that software could only find a very thin kind
of protection, preventing only literal copying.68 As the United States Supreme Court has noted, “the
fact/expression dichotomy limits severely the scope of protection in fact-based works”.69 Thus, others
have been able to write new programmes carrying out the same kinds of functions, or with similar
structures dictated by the nature of the problem to be solved.70 They have been able to reverse engineer
the code by decompiling the object code (making it human readable) so that they can determine its
function. Such possibilities have been crucial to the growth and success of the United States software
market over the latter part of the 20th century. It should be noted however, that only a thin amount of
copyright expression was necessary to enable the explosion in software innovation and development
and, that access to, and reverse engineering of71 the underlying code described by others, has been
crucial to follow-on innovation and development in the industry. It is in this context that the extension
of patent protection to software should be seen as an attempt to limit competition and stifle innovation
65
See In re Alappat, 33 F.3d 1526, 1543, 31 USPQ2d 1545, 1556-57 (Fed. Cir. 1994) (in banc) (quoting
Diamond v. Diehr, 450 U.S. 175, 192, 209 USPQ 1, 10 (1981).
66
See Glossary.
67
For an examination of some of these cases see P Menell ‘Envisioning Copyright Law’s Digital Future’ (2002)
UC Berkeley School of Law Public Law and Legal Theory Research Paper Research Paper Series No. 95, at 5
(Available at http://www.nyls.edu/pdfs/v46n1-2p63-200.pdf last visited February 13, 2007)
68
Id.
69
Feist Publications, Inc. v. Rural Tel. Service Co. 499 U.S. 340, 350 (1991)
70
Menell at 26
71
Menell at 5
by a limited group of industry participants who are no longer innovators and now wish to consolidate
their international market power.
The difficulties encountered by United States courts in applying copyright concepts to software
resulted in a push to have software protected by patents. Now, dual protection for software is possible
in the United States, covering all aspects of the code.72 In addition, since companies in the United
States are not required under patent law to disclose the entirety of the object or source code,73 they also
have trade secret protection for those elements that they withhold. Such multiple levels of protection
have been crucial in allowing software monopolies to be created and perpetuated. Patents on software
essentially close off all avenues of innovation along a particular path, except at the discretion of the
owner. Given the investment usually involved in developing software, patent owners are unlikely to
encourage innovation in an arena that might result in direct competitors for their own product. One can
imagine what the situation would be like if Microsoft had, in its early stages, gained a patent on the
basic concept of an operating system. They would have been able to block the development of rival
operating systems, such as Apple OS or Linux, for 20 years or longer.
The main problem of copyright protection in software is the ability to restrict others from
making derivative products of the expression. This has enabled operating system monopolies, such as
the Microsoft Windows system, since software protection not only protects the ability to make
derivative products, but also grants new copyright protection to the derivative product in and of itself.
The major problem with software patent protection is that in an industry such as the software
industry, network effects form the basis for software development. Software cannot work alone. It
must be compatible with other machines and with other programmes running on the machine.
Software copyright and patent protection ensures that every single developer of software has to pay a
premium to other developers with whom his or her product must work. Where one developer has
managed to gain patent and copyright protection on an operating system, a software standard74 or
another primary programme or object, that developer can gain significant amounts of market power
and possibly maintain it indefinitely, through the judicious application and renewal of dual copyright
and patent protection.
The development policy problems of copyright or patent protection for software begin with the
very logical realization that increased software protection in developing countries will result in lower
usage of computers because most computers in developing countries run on unauthorized software.75
Almost all users except for the wealthy will be priced out of the market. This is compounded by the
fact that software makers do not price discriminate across countries. Thus, users in developing
countries pay the same price (or sometimes more) than users in the United Kingdom or the United
States, despite the clear differences in country incomes.76 Whereas such prices may represent two
weeks salary in the developed world, it is more likely to represent a year’s salary in many developing
countries. As long as the markets remain so small in developing countries, there will remain little
incentive for software copyright owners to reduce prices or produce locally appropriate versions of
their software.77
72
There is, however, no obligation to extend patent protection to software in TRIPS.
73
USPTO, USPTO Manual of Patent Examination Procedure, Section 2106: Patentable Subject Matter -
Computer-Related Inventions, Part V.
74
See Glossary
75
76
(2002) at 22 citing Reuters, 16 October 2001. (Available at
77
Id. at 23, (citing anecdotal evidence from interview with a Ghanaian software developer) and at 26
24 Research Papers
The practice of licensing rather than outright sale of software also ensures that purchasers of
such software are forced to contract away the rights that they would normally have under copyright to
copy or use the product for educational, library or personal use.78 Where such software is included in
aid or training packages, it serves to lock developing countries into a cycle of further costs for
maintenance, upgrades, and continuing licence fees for new versions of the software.79 In any case,
large-scale purchases for school systems of such licences in developing countries remain virtually
impossible for the majority of developing countries because of the costs of paying a licence for
installation and use on each and every computer on which such software will run.80 This underlines the
basic premise that Story has elaborated: increased software protection through copyright in developing
countries is more likely to reduce access to ICTs and to retard development.81
Finally, the fact remains that software patents, as granted in the United States, do not seem to
have had the effect of increasing innovation in the software sector.82 Bessen and Hunt show that such
patents were largely acquired by large hardware companies, rather than small software firms and that
most large companies actually reduced their software research and development spending during the
period in which they acquired the most patents. This suggests, Bessen and Maskin argue, that such
patents were for innovation that would have occurred in any case, regardless of the availability of
software patents.83 It can be concluded that the software patent experiment in the United States has
failed, at least as far as encouraging innovation. Where it has succeeded is in entrenching the existing
business structure of the industry and enabled large companies to restrict competition from domestic
and international software companies. Extension of software patents into developing countries can
only serve to further restrict competition and the development of indigenous software industries that
will certainly have to rely on rapid sequential innovation to grow.
V.2.2 Databases
Original databases have, historically, been protectable under article of 2(5) of the Berne Convention,
but only where the elements of the databases are themselves literary and artistic works i.e. eligible
copyright subject matter not mere facts; and the selection and arrangement of those elements is
original. There is no requirement, under the Berne Convention, to protect databases that are collections
of mere facts, no matter how original the selection and arrangement of those facts may be. It was only
with the advent of the TRIPS Agreement (Article 10(2)) that an obligation to protect compilations of
data was introduced, but with the requirement that such protection may only be conferred if the
database is an “intellectual creation” by virtue of the selection and arrangement of the elements.
78
For a further explanation see IPR Helpdesk “Software Copyright Licensing” available at http://www.ipr-
helpdesk.org/docs/docs.EN/softwareCopyrightLicensing.html (last visited 12 February, 2007) (IPR Helpdesk is a
project of the University of Alicante, Spain and partners, focused on EU law and “to assist potential and current
contractors taking part in [European] Community funded research and technological development projects on
intellectual property rights (IPR) issues.
79
Story at 24
80
Id. at 22
81
Id.
82
Presentation at Harvard Information Infrastructure Project Conference ‘Internet Publishing and Beyond: the
Economics of Digital Information and Intellectual Property’ January, 1997 (Revised 2004) at 4. (Available at
http://www.researchoninnovation.org/iippap2.pdf last visited 15 March 2006) citing J Bessen and R Hunt
‘Sequential Innovation, Patents, And Imitation’ (January 2000). MIT Dept. of Economics Working Paper No.
00-01 (2000) (revised 2003). (Available at SSRN: http://ssrn.com/abstract=206189 last visited 15 March 2006).
83
Presentation at Harvard Information Infrastructure Project Conference ‘Internet Publishing and Beyond: the
Economics of Digital Information and Intellectual Property’ January, 1997 (Revised 2004) at 5. (Available at
http://www.researchoninnovation.org/iippap2.pdf last visited 15 March 2006) citing J Bessen and R Hunt
‘Sequential Innovation, Patents, And Imitation’ (January 2000). MIT Dept. of Economics Working Paper No.
00-01 (2000) (revised 2003). Available at SSRN: http://ssrn.com/abstract=206189 last visited 15 March 2006)
While it is not clear from the text whether ‘intellectual creation’ is synonymous with
‘originality’, the requirement has been treated as such by most scholars. Thus, mere alphabetical
listing of elements would not constitute ‘originality’. However, because most databases are now
implemented as software programmes, the issue of originality operates on two levels: firstly, whether
the software programme itself is an original work; secondly, whether the selection and arrangement
instantiated by the software programme is original. Which level of analysis is appropriate remains an
open question. If one chooses the first option, then an original software programme (in the sense that it
is not a literal copy of any other programme, that instantiates an alphabetical listing, would render
such a database (compilation) protectable. However, the language of Article 10 makes it clear that it is
the compilation itself, rather than the methods of searching or arranging the compilation, that is
protectable. Computerized methods of selection, arrangement and searching would be protected as
software under TRIPS article 10(1). This would be a separate inquiry from whether, once the software
has selected and arranged the contents, that compilation is itself original. The conceptual difficulty lies
in how to separate the compilation from the software to manipulate, arrange and search the data.
It seems clear that the required protection for ‘original databases’ under the Berne Convention
and the TRIPS Agreement extends only to actual originality in the structure or arrangement of the
contents. Because of this, there have been increasing attempts to expand some form of intellectual
property protection to unoriginal databases, in large part as an attempt to maintain existing competitive
market share rather than as an incentive to create more databases. Elements of the database industry
(as a subset of the software industry) have pushed for sui generis protection of databases that either
lowers or entirely removes the originality requirement. This has led to continuing discussions at
WIPO, and resulted in several studies, including studies on the ‘Economic Impact of Database
Protection in Developing Countries and Countries in Transition’ premised on the idea that non-
original databases need protection greater than that required under the Berne Convention or TRIPS.84
The Latin American Study questioned the need for such protection and pointed out some of the
dangers for developing countries.85 The Egyptian study also comes to similar conclusions.86
The database industry has also pursued sui generis legislation at the national or regional level.
An example of such regional sui generis protection is the European Council Directive 96/9/EC.87 The
directive provides protection for any database if it is shown that qualitatively and/or quantitatively a
"substantial investment in either obtaining, verification or presentation of the contents" has been made
(article 7). The directive also provides for an ‘extraction right’, i.e. the right to prevent "the extraction or
reutilization of the whole or substantial part, evaluated quantitatively or qualitatively, of the contents of
the database" (article 7). The right applies to the whole or a substantial part of a database. Protection lasts
for 15 years, and that period may be renewed if there has been substantial new investment.
This directive provides a conspicuous example of the emerging rationale for protection, wherein the
main goal is not to protect creativity and ingenuity and encourage dissemination of cultural goods, but
rather to protect investment per se. It is as if a store-owner who had invested in a store that sells physical
goods (such as jeans) asked for protection that would restrict anybody else from selling jeans in the same
street, because they had invested so much in creating a store that sells jeans. In the same vein that the store
owner has not created anything original by setting up a store that sells jeans, the seller of access to a non-
original database has not created anything new deserving of copyright-like protection. What they are
actually asking for is protection from legitimate competition and effective ownership over facts and data
that they did not create or generate. Recent evaluations of the directive by the EU Commission have
84
See Y Braunstein “Economic Impact of Database Protection for Developing Countries and Countries in
Transition” WIPO Study, 7th Session of the Standing Committee on Copyright and Related Rights, SCCR/7/2,
2002 (available at http://www.wipo.int/edocs/mdocs/copyright/en/sccr_7/sccr_7_2.pdf last visited February 13,
2007)
85
See http://www.wipo.int/edocs/mdocs/copyright/en/sccr_8/sccr_8_6.pdf
86
See http://www.wipo.int/edocs/mdocs/copyright/en/sccr_7/sccr_7_3.pdf
87
DIRECTIVE 96/9/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 March 1996 on
the legal protection of databases (available at http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html)
26 Research Papers
shown that the directive has not been shown to have had any impact on the growth of the European
database industry, which lags behind that of the United States, despite the fact that the United States has
no database protection beyond that conferred by copyright over original databases.88 The report concludes
that a sui generis right is not a necessary condition for a thriving database industry.89
IPR protection of databases, through copyright or a sui generis regime, can effectively become a
closing off of knowledge that was in the public domain. In addition, the ability to restrict access to the
database only to paying customers can damage the ability of the public to exercise the traditional
exceptions to exclusive rights. However, it is this very excludability that weakens the argument for
intellectual property-like protection for databases. Technology enables a reasonable amount of exclusion
of most people from using the database without paying. Companies can make reasonable profits from
users without needing IP rights. The only danger that companies need to be concerned with is a
competitor taking and using the structure of the database, i.e. copying it as a whole, in both content and
structure. However, that process is already covered under the requirement to protect original databases. If
the database is not original in structure and the information contained is not protectable by copyright, what
right has the database owner to expect IPR-like protection if they provide nothing new or original? In such
cases, it is perfectly reasonable to expect database owners to rely on trade secrets and unfair business
practice laws, just like any other business investor who takes a risk in investing in the production of goods
and the delivery of services. IP is not there to protect every investor against risk, it is there to provide an
incentive for the production of new goods and services that add value to society and would not otherwise
have come into being without the incentive of IP protection.
Under Article 10 of the TRIPS Agreement, states must protect databases as intellectual creations
through an IPR regime of their choosing. The nature and duration of such protection and the extent of
exceptions to the rights will determine whether a developing country can partake of the benefits of the
digital and internet revolution that databases offer.
V.2.3 Policy Considerations for Developing Countries
The recent expansion of protected subject matter provides little that would be of benefit to developing
countries. Nevertheless, because of TRIPS, many developing countries now have obligations to
implement copyright protection for original databases and for software. Fortunately, many options
remain in terms of the manner of implementation.
It is clear that developing countries should provide, at the most, no more than a minimal
copyright protection for databases. Such protection should only be extended to original structures and
not to the underlying information. Braustein points out that databases are already being created in
developing countries.90 It turns out that even in developing countries, where sui generis database
protection is largely absent, markets are small, and there is very little capital available, databases are still
being developed in the absence of IP incentives. No convincing argument has yet to be made for the
necessity of such protection in developing countries.
With respect to software, it is clear that developing countries should not extend patent protection
to software and that whatever copyright protection they do provide should require that where the
source code is the object of protection, that it is disclosed in its entirety. Such protection should not
88
European Commission ‘First evaluation of Directive 96/9/EC on the legal protection of databases’ (DG
Internal Market And Services Working Paper Brussels 12 December 2005) 5 (available at
http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf last visited February 13,
2007)
89
Id. at 25.
90
See Braunstein, Y. “Economic Impact of Database Protection for Developing Countries and Countries in
Transition” WIPO Study, 7th Session of the Standing Committee on Copyright and Related Rights, SCCR/7/2,
2002, at 14. (Available at http://www.wipo.int/edocs/mdocs/copyright/en/sccr_7/sccr_7_2.pdf last visited
February 13, 2007)
extend to the functional aspects of the software. In the interests of maintaining access and encouraging
innovation, copyright protection for software must be subject to the full scope of exceptions for
educational and personal use, especially the right to decompile the object code to make it human-
readable.
V.3 Technological Restrictions on Access and Copying
The expansion of the IPR system into the new digital and internet technology has two main features to
take into consideration. The first is the application of inappropriate concepts in an area which they
were not designed to accommodate. The second is the creation of sui generis IPR regimes that
accommodate the special characteristics of the new technologies (e.g. protection for unoriginal
databases). This section examines a third strategy that the major content industries have used to protect
proprietary material in the new digital and internet world: technological protection measures (TPMs).
These tactics are essentially aimed at privatizing enforcement of copyright and placing it entirely in
the hands of rights holders. While these technologies rely on copyright for their legal force, they also
enable private and contractual restrictions to be placed on access in ways that leave all the discretion
to the rights holder as to the scope and nature of uses they will allow, outside of the system of balances
determined by copyright.91 The following sections describe the kinds of technologies used and the
legal consequences of their use. It begins with an examination of the underlying technologies,
describes their uses and outlines the consequences for access to knowledge.
V.3.1 Encryption
Encryption is the process of rendering digital or (other information) unintelligible through the
application of a mathematical formula. That formula or its opposite can be used to reverse the process
through decryption. The easiest example of encryption is to take a sentence in English and by
assigning numbers from 1 to 26 to the letters of the alphabet, replace all the letters with a number.
Thus if a = 3, b = 10, c = 9, and k = 24, then the word “back” would read “103924”. If one does not
know what the numbers represent, the message is unintelligible and unreadable until someone with the
knowledge of which number represents each letter, decrypts the message. Such encryption prevents an
unauthorized or unknowledgeable person from reading the message.
Encryption can function to restrict both access and copying by rendering the material one wishes
to access or copy into unintelligible noise. An example of the encryption process is the scrambled
satellite signal that most satellite television distributors use to get their programmes to subscribers.
Only a subscriber with the right subscriber box with the software embedded to unscramble the signal
will be able to watch the programmes. Anyone else receives a jumbled mess of colour and sound if
they put up a dish to receive the signal. Another example is physical products containing digital data
such as digital versatile discs (DVDs) or compact music discs (CDs). The digital data is generally
encrypted before being placed on the physical disc. When the product is sold, the data can be
decrypted only on machines or players containing the decryption software.
All encryption is subject to the basic limitation that it can be broken by people who are
sufficiently knowledgeable. In many countries, encryption is viewed as part of security and military
capability,92 and limits are placed on the export or use of encryption. Many of the levels of encryption
currently in commercial use can and have been broken, and the decryption programmes have been
91
M Radin, Regulation by Contract, Regulation by Machine, 160 J. INSTITUTIONAL & THEORETICAL
ECON. 1, 5 (2004). (Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=534042 last visited
February 13, 2007)
92
For example, the United States regulates the export of goods and tools that use encryption through the Bureau
of Industry and Security. See http://www.bis.doc.gov/Encryption/
28 Research Papers
quickly distributed through the internet. The case of DVD copy protection encryption is one example.
The CSS code protecting DVDs from being copied onto computers was broken by a Norwegian
student, who then distributed his DeCSS decryption code through the internet.93
Industry actors have the option of either engaging in a continuing arms race, which they may
lose because of government restrictions on the level of encryption available to them, or they can aim to
have sanctions imposed on those who circumvent encryption. The industry has chosen the latter
approach, which is examined below in the section on anti-circumvention measures.
Decryption capabilities remain available only to a few technological adepts in each country. For
the vast majority of users, the encryption forms an effective barrier to access and to copying. In
combination with legal sanctions against breaking such encryption, these technologies present an
insurmountable barrier to the majority of individuals in developing countries. Such restrictions make it
difficult for users to exercise their public rights, which depend on access to the underlying
information, either through library systems or publicly accessible television and radio broadcasting.
V.3.2. Encryption and Pay-to-View on the Internet
One business model that is reliant on encryption is the pay-to-view model where a broadcast or
transmission can only be viewed if one has paid for access which will unscramble a signal. This can
also be achieved without encryption but by restricting the ability to view by paid access to a specific
location. An early example of the pay to view model by paid specific location access is the film
distribution business before the advent of the video cassette recorder and its offspring.94 Because film
stock was so expensive to produce and such stock could be directly controlled by limited distribution
to theatre owners, viewers could be charged on a per-view basis by drawing them to the movie theatre.
The current decline in movie theatre attendance in developed countries has been attributed to the
increased quality and ubiquity of legal options such as DVD players, high definition televisions, and
DVD sales and rentals.95 Viewers need no longer pay per view, now that they can own a film and
watch it whenever they choose.
The pay-to-view model, also called the datacasting model, can also be similar to one based on
the satellite or cable television provider business model. In the model, a periodic subscription fee is
levied before a user can have access to a website or other internet site. Without a password, the site
cannot be viewed, or the data stream cannot be unscrambled or read. Payment for access may be
guaranteed by way of automatic, on-line debiting of a credit card account or a bank deposit account. Pay-
to-view sites still have to deal with the fact that even if someone pays for access, each viewing of a
website creates a transient copy of the site on the computer. In addition, the website can be downloaded as
a whole, or printed out, although there are now some technologies to prevent this as well. This model is
increasingly used in the journal publishing business which is switching over to digital-only subscriptions
because of the reduced costs. In doing so however, they reduce the ability of users to copy and download
material that they have already paid for.
Websites can use encryption to prevent access, but once access has been granted, the very
technology that makes copying possible is the one required for viewing the website in the first place.
Some websites and website users have attempted to protect their data by tracking unauthorised use rather
93
Electronic Frontier Foundation et al. ‘Digital Rights Management: A Failure in the Developed World, a
Danger to the Developing World’ Submission to the ITU-R Working Party 6M Report on Content Protection
Technologies (March 2005) at 10 (Available at http://www.eff.org/IP/DRM/drm_paper.pdf (last visited February
13, 2007).
94
Legal Theory Research Paper Research Paper Series No. 95, at 58. (Available at
95
See L Holson “With Popcorn, DVD's and TiVo, Moviegoers Are Staying Home” New York Times, May 27,
2005.
than by blocking use altogether. One way is through the use of internet spyware, programmes that track
the internet usage on your computer. Such programmes make it possible to detect and trace any
subsequent unauthorised uses of the accessed subject matter. In addition to the privacy issues, these
systems shift enforcement into the hands of copyright owners which may not necessarily be in the
interests of developed countries. A spectacular example of this kind of tracking problem going wrong is
the Sony BMG Corporation’s attempt to secretly track the usage of music by purchasers of their CDs.96
When played on a computer, the CD installed tracking software that also inadvertently created security
flaws in other programmes, causing breaches in large private commercial networks. Sony was forced to
withdraw the programme and CDs and forced to settle with customers who had sued the company for
damages caused by its spyware.97
V.3.3 Pay-to-Download on the Internet
The pay-to-download model is meant to resemble the sale of products in the physical world and is found
largely in the music industry. The initial foray of the music industry onto the internet was the subscription
method, which provided limited access to their back catalogue of artists. The advent of ripping technology
changed the industry’s attitude to the potential of the internet when it discovered that not only were
individuals making digital copies of music onto their computers, but they were also making those copies
available for free on the internet.
Such free exchange took place in two primary ways. The Napster model provided a central
computer server on which individuals could store information about all their music and which would
provide a link to the computer on which these were stored and transfer the requested file from one
computer to another. Individuals would provide access in exchange for access to other people’s stored
music. The KaZaA model, on the other hand allows people on the internet limited access to folders on
each other’s computers, where music is stored, without storing information on a central server. In
addition, there are other models such as Morpheus and Grokster. These models operate in addition to the
simple sharing of such digital media files by email or over commercial Local Area Networks (LANs) or
Wide Area Networks (WANs) owned by businesses and used by their employees.
The music industry in the United States was able to stop the first kind of sharing by bringing
copyright infringement lawsuits against Napster, which provided the central server.98 In addition,
Grokster, Morpheus and KaZaA have been held liable for their user’s infringement practices by
inducement of copyright or other theories of third party liability. However, such liability has been
premised on concepts of indirect or vicarious responsibility that are peculiar to the United States and a few
other common law systems. Such broad interpretations of what constitutes copyright infringement are not
transferable to other jurisdictions and developing countries should consider the serious benefits that such
programmes may present and perhaps focus on the need to ensure copyright protection against direct,
large scale commercial copying.
Despite the findings of liability, the reality of programmes enabling peer to peer sharing has not
been closed off. This type of sharing has proved difficult for the industry to stamp out for two reasons: the
lack of alternative sources of downloadable music sources on the internet; and the fact that tracing
individual unauthorised use on the internet is technologically difficult, although becoming less so.
96
J DeBeer ‘How Restrictive Terms and Technologies Backfired on Sony BMG Music’ (2005-2006) 6 Internet
and E-Commerce Law in Canada, 94.
97
J deBeer "How Restrictive Terms and Technologies Backfired on Sony BMG" Internet & E-Commerce Law
in Canada, Vol. 7, No. 1, March 2006, 2 (Available at http://ssrn.com/abstract=901305 last visited February 13,
2007)
98
Marjorie Heins, ‘The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual
Freedom’, THE FREE EXPRESSION POLICY PROJECT, New York, NY 10001, 2003, at 35. (Available at
http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf last visited February 13, 2007)
30 Research Papers
However, the music industry was finally persuaded that the internet could become a significant
revenue stream rather than simply a haven for music file-sharing. The Apple iTunes music store, which
sells songs to be played on the Apple iPod player, is one example, although of limited usefulness because
of its reliance on an unsustainable model tied to a specific player. It has used a form of encryption to limit
the ability of users to share the music bought at the store or to play it on any other device but an Apple
device. However, this model has been challenged by consumer and competition authorities in Europe.99
Other legal services that do not have the restriction of being limited to a single player have sprung up100,
although many still attempt to restrict the number of copies that can be made and the transfer of such
copies.
The pay to download model is increasingly used in the journal publishing business which is
switching over to digital only subscriptions because of the reduced costs.101 These technologies create a
windfall for such companies which receive, for free from scholars, the articles that they publish and
usually require that the author relinquish almost all copyright. Their contractual terms for access can, in
the meantime, restrict the ability of libraries to exercise the exceptions that they had traditionally enjoyed
with their print subscriptions. Thus, a library may have to pay separately for each download of a paper
made through its subscription versus buying one copy and being able to make copies as required by
students and professors.
Pay-to-download schemes can be extended to all valuable pieces of data on the internet. While it is
possible to download entire websites or documents and files, elements of these that can be considered as
severable individual products, like a piece of music, or a picture, or an article, can be made chargeable.
Thus, even public domain documents placed on the web could become indefinitely enclosed. On its own,
of course, nothing could stop people from breaking the password or circumventing such technological
measures and gaining access to or downloading the material, whether copyrighted or not. While some
believe that the future will see copyright become of far less importance as industries switch to
technology-based and encryption protection, in the form of technological barriers, such barriers cannot
operate effectively without a system that imposes sanctions on circumvention. The following sections
describe the growth of such systems.
V.3.4 Anti-Circumvention Measures
The very existence of technological protection measures is sufficient in many cases to prevent access and
use by all but the most sophisticated users. However, the global and distributed nature of the internet
means that wherever such individuals bypass such restrictions they can, if they so wish, distribute the
unprotected material throughout the internet, almost instantaneously. These acts of circumvention have
led to a push by major copyright industries to have legal sanctions enacted against such circumventions.
Acts of Circumvention can be classed into two groups: those that circumvent access control
measures; and those that circumvent copy-protection measures.
• Circumvention of access control: anti-circumvention laws would sanction any person who
broke a code or used an unauthorized decryption to break a code or password. One option is to
impose sanctions on the circumvention regardless of whether the content behind the code is
copyright protected. This would base the ‘right to prevent access’ on the access control
99
D Ibison, E Terazono and R Waters “Norway declares Apple’s iTunes illegal” Financial Times, 24 January
2007.
100
For a list see “Special Report: Digital Music – Where to download music legally” Guardian Unlimited
(available at http://arts.guardian.co.uk/netmusic/page/0,,1127237,00.html)
101
(2002) at 40. (Available at http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_study.pdf last
measure rather than on the nature of the content behind the access control measure. Another
possibility is to impose sanctions only for circumvention of access control measures to
copyrighted or protected material. While basing the protection on the nature of the material
behind the barrier, such sanctions may not cover circumventing access control measures to a
database of public domain knowledge. The second option may be considered friendlier to
public access to public domain knowledge. A third option would add an exception to the first
two, stating that circumvention of access control measures for the purpose of exercising
legitimate public use rights to copyrighted material would be exempted from sanctions.
• Circumvention of copy-protection measures: anti-circumvention laws would impose sanctions

on the circumvention of measures to prevent copying of the content. An example of this is the
DVD protection that prevents copying of the DVD, unlike music CDs which can be copied.
Again, these can be of two types: imposing sanctions on measures that prevent copying
regardless of whether the content is itself copyright protected, or only imposing sanctions if the
material behind the copy-protection is copyright protected. Again, a third option would add the
exception for circumvention for legitimate public use of copyrighted material.
Anti-circumvention measures can also be targeted at the technologies that enable circumvention
rather than the acts of circumvention themselves. Thus, a software programme that can be used to
circumvent such restrictions would be banned. In the same way, hardware that would be used to
circumvent such restrictions would also be banned.
In the United States, application of these measures has occurred under the Digital Millennium
Copyright Act102 (DMCA) which takes the approach of banning both devices and acts of circumvention
(of access control mechanisms, not copy control). There is no general fair use exception but it sets up a
regulatory process through the Library of Congress and Registrar of Copyrights which reviews every year
the petitions of user groups that claim that their access would be restricted.103 This approach presumes all
acts of circumvention are disallowed unless the use or exception is explicitly listed through the regulatory
process. There is no ‘fair use’ defence to litigation. For those products that have been legally accessed to
begin with, Section 1201(a)(B) of the DMCA allows acts of circumvention for fair uses. However, no
obligation rests to enable such fair use, and the ban on circumvention devices therefore makes it
impossible to use such devices to carry out circumvention.104 Thus the ‘fair use’ provision is, at best,
illusory.
In the EU, TPMs and anti-Circumvention measures were addressed in the European Copyright
Directive of 2001105, which bans both acts of circumvention of copy controls and access controls
purported to maintain public interest exceptions. However, because of the desire to harmonize, it ended up
listing a minimalist set of exceptions and limitations rather than encompassing the entirety of practices
available within the EU. In the first instance, as Dusollier points out106, article 6(4) of the Directives relies
on voluntary measures by users of TPMs to enable exceptions and limitations. This would enable such
owners to limit the ways in which such rights are exercised since there is no standard for determining
when such voluntary measures are inadequate.107
102
Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified at 17 U.S.C. § 1201
et. seq.)
103
104
Id. at 97.
105
Directive 2001/29/EC
106
S Dusollier ‘Exceptions and Technological measures in the European Copyright Directive of 2001- An Empty
Promise’ (2003) 34 IIC No. 1, 63
107
Id. at 71.
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However, the concept of placing the burden on the users of such TPMs to enable the use of such
exceptions is a good way to begin to address the problem. The difficulty is that where an exception is
defined not by the user, but by the kind of use e.g. personal copies or second-hand sales, such a system
breaks down in the light of escalating transaction costs for consumers and rights-holders alike. TPM
solutions that allow every consumer to make a personal copy are unlikely to satisfy rights holders, and
consumers should not be limited in the full exercise of their right by the reluctance of right-holder abilities
to provide for the full use of all exceptions and limitations.
In Europe, the voluntary nature of such provisions is compounded by the fact that, unlike the
software and database directives, the exceptions and limitations can be interfered with by contract.108 Thus
a TPM user could demand that a consumer give up a certain scope of the exception to access the work,
despite the fact that the consumer is entitled to the full scope of the exception.
V.3.5 Digital Rights Management (DRM)
DRM, while sometimes confused with the actual technology used to restrict access is rather a particular
use of the technology by rights holders to ‘manage’ the use of the material they ‘own’ by establishing a
contractual and other relationship between copyright-holder and user. DRM can extend to click-wrap
licences, where users agree to the terms of use before gaining access to the material and, also agree that
they do not own the material that they access, no matter the copyright status of the material. This is most
often seen in the software industry. It can also be used to limit or expand the nature of the use past the date
of the first sale of the product by obligating the user to return to the copyright holder to either maintain
their access or to receive updates. Software DRM then implements and controls the execution of the
contractual terms imposed by the holder.
DRM is therefore a powerful tool in the arsenal of copyright holders and enables entirely private
and contractual enforcement of copyright holders’ interests outside of any public interest balance. While
DRM includes such contractual controls, it is powered at its core by technical controls that enforce the
contractual controls. There is therefore no need to go to court to enforce contractual obligations. Software,
and encryption, is used to automatically define the kinds of uses a copyright holder will allow, and to
coerce users to comply. A prime example of this is the technical restriction Apple places on music bought
on its iTunes music site which can only be played on Apple devices but not on other music players and
can only be used on five authorized devices. The conditions of use can be changed by Apple at any point
by requiring constant updates of the software. DRM can be used to require that users purchase updates if
they wish to maintain use of, and access to, material that they have already purchased.
However, in order to function properly, DRM requires that certain information therefore
accompany the product that allows the technology to track and ‘manage’ each product that is sold. This is
sometimes called Rights Management Information (RMI). It essentially involves attaching a digital
marker to digital or internet content that contains information about the author, publisher, date of
production, or any other information identifying the copyright owner of the material, and sometimes the
user. Such information would then be used to track and identify unauthorized copies, authorized and
unauthorized uses and enable copyright notification. The tracking of unauthorized copies could require
that users register as a purchaser of the digital or internet content so that any other copies that were
unregistered could be tracked and the purchaser could be identified as the source of the unregistered
copies.
Thus, where DRM is combined with TPMs, as it inevitably is, what results is a powerful means of
controlling not only the initial access and use by one consumer, but all subsequent use by any other
consumer with whom the first consumer engages. In this scenario a consumer is no longer a buyer, they
do not get ownership of the cultural good that they buy. They only purchase a licence. Thus, every user is
essentially purchasing a licence to access a product rather than owning it outright. This implicates the
108
Id. at 72.
first-sale doctrine109, as well as the ability to exercise a host of exceptions to copyright by virtue of
removing the physical ownership of the good out of the consumer’s hands.
If fully implemented without safeguards, these systems allow a person or entity to exercise total
control over the cultural product, regardless of whether it is under copyright. This could lead to the
privatisation of an entire world of information.110 Where the material is copyrighted it entirely destabilizes
the balance between the limited monopoly and the traditional and necessary public interest exceptions for
access. Such restrictions also enable the imposition of contract terms that would require users to contract
out of their public interest rights if they wish to access the information behind the TPM. As Correa notes,
direct interaction with users enables rights holders to force contracts onto users that remove fair use
rights.111 Some examples of ways in which DRM and TPMs may enable limitations on access in
developing countries include:
• Limitations on making information available to disabled people, such as automatic voice-

readers for blind people.112
• Since libraries may not be able to download physical copies of the electronic material to which
they have access due to licensing restrictions, they may lose access if a journal or company
goes out of business.113 In addition, licensing may limit the number of downloads a library may
allow, and it may limit the ability to allow off-site access to library materials. Libraries may in
fact end up with fewer rights in the digital world that they do in the physical print world.114
• DRM may prevent the resale or redistribution of goods. For developing country institutions
reliant on donations of such goods DRM makes such donations difficult.115 In addition, the
thriving markets in second-hand goods that drive the informal economy in developing countries
could dry up with severe consequences for employment and income levels.
• DRM imposes severe costs and limitations on distance education. Restrictions on the amount of
copies that can be made and shared, as well as restrictions on how long a work can be kept and
stored all interfere with sustainable transmission and distribution of education over television,
radio or the internet. This may force institutions to repurchase materials each time they teach
rather than pay a one time cost for actual ownership of the goods.116
DRM and TPMs do not really allow for the exercise of exceptions and limitations, since they can
really only reliably apply those that can be reduced to simple yes or no questions.117 In addition, any
system would have to dynamically account for the jurisdiction in which the user is accessing the material.
Given the costs of such systems, rights holders are likely to develop such flexibilities only for the major
markets of Europe and the United States bypassing developing countries that do not present sufficient
markets. Thus, even those countries that require better flexibilities will be bypassed and ignored and have
109
That control of a good past the after sale belongs to the purchaser not the seller. It particularly limits controls
on distribution.
110
A Story ‘Study on Intellectual Property Rights, the Internet, and Copyright’ in UK Commission on
Intellectual Property Rights Final Report of the UK Commission on Intellectual Property Rights (2002) at 36.
(Available at http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_study.pdf last visited February
13, 2007)
111
CM Correa ‘Fair Use in the Digital Era’ (2002) 33 IIC 570, 581
112
Electronic Frontier Foundation et al. ‘Digital Rights Management: A Failure in the Developed World, a
Danger to the Developing World’ Submission to the ITU-R Working Party 6M Report on Content Protection
Technologies (March 2005), at 14. Available at http://www.eff.org/IP/DRM/drm_paper.pdf last visited February
13, 2007).
113
Id. at 16.
114
Id.
115
Id.
116
Id. at 22.
117
Marjorie Heins, ‘The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual
Freedom’, THE FREE EXPRESSION POLICY PROJECT, New York, NY 10001, 2003, at 42. (Available at
http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf last visited February 13, 2007).
34 Research Papers
to use systems developed for United States and European sets of exceptions.
V.3.6 Policy Considerations by Developing Countries
In considering these issues, it important to view the internet as a global phenomenon. Access limitations
applied in developed countries reduce the available information on the global internet and therefore
reduce access for individuals in developing countries. Developing countries have a vested interest in how
these issues play out in developed countries and international fora. They cannot simply apply national law
in this arena and feel safe that they have assured access for their populations. Only strong international
rules can ensure a healthy public domain of material for developing countries to access.
Developing countries that have not signed up to the obligation to ensure protection for
technological protection measures and implementing anti-circumvention measures should refrain from
doing so. In addition, they should refuse to include such obligations in any new treaties on digital and
internet content as inappropriate for development and access.
For those countries that have committed to such obligations, an initial framework for developing
countries should, at a minimum, ensure that the burden is placed on owners and those who apply TPMs to
enable access for the full exercise of limitations and exceptions. The protection should only be for copy
control and not for access controls. In addition, any such protection should be limited only to acts of
circumvention of TPMs that protect copyrighted material. Such protection should not ban devices which
may be used for circumvention, as many of them have significant uses that are legal. Finally, the WIPO
Copyright and the WIPO Performances and Phonogram Treaties only require adequate and effective
protection, meaning that states are free to determine the level and nature of such protection.
Developing countries will have to regulate the production and distribution of digital and internet
content that enter their domain of sovereignty. The technical issues present severe problems on their own,
without the additional burden of having to legislate in this area prematurely and with little flexibility. It is
in the area of international rule making that the future of digital and internet content may be determined
before developing countries even have a chance to consider the subject matter for their own populations.
If developing countries are to set their own agenda for digital and internet content, they will have to direct
the international discussion in ways that serve their needs.
V.4 Expanding the Global IP Governance of Digital and Internet Content
The international governance of IPRs has always managed to adjust in order to deal with new subject
matter, but it has struggled with how to properly include digital and internet content. This has been
compounded by the speed with which rights holders have pushed for international rules on digital and
internet content.
With the advent of digitization and the internet, a global, instantaneous market for the goods
produced by world content industries emerged. They no longer had effective control over the
segmentation of their international markets or their distribution timetables. National legislation alone
could not ensure effective control under these new market conditions. The industries responded by
lobbying for more international protection resulting in agreements such as TRIPS and the World
Intellectual Property Organization’s (WIPO) Copyright Treaty (WCT) and the WIPO Performances
and Phonograms Treaty (WPPT).
The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaties
(WPPT) are referred to as the ‘Internet treaties’. The treaties are the first serious multilateral attempt to
deal explicitly with the issue of digital and internet content. They have not been widely signed or
ratified, but increasing pressure in the form of bilateral agreements is being brought to bear on
developing countries to ratify them without fully assessing how they will affect their participation in
the digital and internet revolution. The majority of signers who have enabled them to come into force
have been developing countries118 while most other developed and middle-income countries have
refrained from entering into such commitments.
This section will discuss some of the new elements of the WCT and the WPPT, the so-called
WIPO Internet Treaties, focusing on the intellectual property rights they require contracting parties to
grant with respect to digital and internet content, and the limitations exceptions that they provide for
public use. In particular, this section will analyze new subject matter, new rights granted, and
especially whether traditional limitations and exceptions are diminished or reduced. This section
presumes a basic familiarity with both the Berne Convention and the TRIPS Agreement as the
underlying agreements on copyright and does not go into an explanation of those agreements.119
V.4.1 The WIPO Copyright Treaty (WCT)
The WIPO Copyright Treaty120 was adopted in Geneva in December 1996 and had 62 contracting
parties as of February 2006. It came into force in March 2002.
a. Subject Matter
The treaty extends copyright protection to computer software as literary works under the Berne
Convention (Article 4) and also extends protection to compilations of data (databases) as intellectual
creations (Article 5), replicating the language of the TRIPS Agreement.
Article 1(4) at first glance seems quite innocuous stating that “Contracting Parties shall comply
with Articles 1 to 21 and the Appendix of the Berne Convention.” However, the agreed statement
interpreting article 1(4), which extends the reproduction right into the digital environment, noting that
the rights and exceptions are fully applicable, presents a major change to the agreement. Taken
literally, any form of storage in a digital medium is considered a reproduction.121 By accepting this
formulation, a country agrees to treat all digital activity using digital and internet content as a copy.
Thus, digitization, running programmes that manipulate digital and internet content, transmitting the
content over the internet and downloading the content would all be considered acts of reproduction.
This unprecedented expansion of the reproduction right essentially applies to all digital and internet
activity. Since exceptions to the reproduction right are also the most restrictive, this encloses a larger
portion of knowledge and severely restricts the exercise of public access and compulsory licensing
exceptions over digital and internet content. However, the failure to achieve consensus on the agreed
statement leaves open the interpretation of whether the reproduction right actually extends to digital
content for all signatories and members of the Berne Convention.122 As Ricketson points out, the lack
of consensus means that the statement cannot be treated as part of the treaty, and must therefore be
118
R Okediji, Development in the Information Age: Issues in the Regulation of Intellectual Property Rights,
Computer Software and Electronic Commerce (ICTSD Geneva 2005) at 24 (Available at
http://www.iprsonline.org/unctadictsd/docs/CS_Okediji.pdf last visited February 13, 2007)
119
A useful source for examining these agreements is R Okediji “The International Copyright System:
Limitations, Exceptions and Public Interest Considerations for Developing Countries” (ICTSD Geneva 2005).
(Available at http://www.iprsonline.org/unctadictsd/docs/Okediji_Copyright_2005.pdf last visited February 13,
2007)
120
http://www.wipo.int/treaties/en/ip/wct/
121
For an interpretation of the early EU proposals that embodied this language, see C Correa “Implications of
Intellectual Property Rights for the Access to and Use of Information Technologies in Developing Countries”
Discussion Paper 2000/2 UNU-INTECH, International Workshop on the Information Revolution and Economic
and Social Exclusion in Developing Countries, Maastricht, 23-25 October 1996, at 36.
122
S Ricketson “WIPO Study on Limitations and Exceptions Copyright and Related Rights in the Digital
Environment” WIPO SCCR/9/7 2003, at 60. (Available at
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=16805 last visited February 13, 2007)
36 Research Papers
viewed as a supplementary means of interpretation. Effectively, developing countries are free to

determine the extent to which they will treat digital content as subject to the reproduction right under
the Berne Convention. However, it is also important to note that subsequent state practice is also
important in determining the meaning of ‘ambiguous’ provisions.123 Thus developing countries should
ensure that they reiterate in international fora and in any domestic law, the view that Article 1(4) does
not require them to fully apply the reproduction right to digital and internet content.
b. Rights granted
The WCT grants a new distribution right (Article 6) to authors of literary and artistic works subject to
national rules of exhaustion. Neither the Berne Convention nor TRIPS requires that a state grant a
right of distribution. The agreed statement on Articles 6 and 7 limits the right of distribution only to
fixed, tangible objects, thus exempting digitization and internet transmission. Exclusive rights of rental
for computer programmes, cinematographic works, and works embodied in phonograms are provided
for (Article 7), as well as a right of communication to the public (Article 8) by “wire or wireless
means, including the making available to the public of their works in such a way that members of the
public may access these works from a place and at a time individually chosen by them.” This
provision is explicitly aimed at web browsing and internet transmission. Signing on to such a right
would reduce public access to material on the internet, by ensuring that search engines would have to
pay a licence for copying and storing pages and allowing people to search and view them. The article
does maintain the compulsory licensing provision under Berne 11bis(2) and the agreed statement
makes it clear that hosting a website would not be a communication under the WCT, thus exempting
Internet Service Providers (ISP) from any liability.
States are required to provide protection against circumvention of technological measures

(Article 11), although the particular implementation is left to national law. The creation of these new
rights is again a major alteration of the copyright landscape, which developing countries need to
approach with caution. The WCT also requires protection against tampering with rights management
information (RMI) used to exercise rights under both the Berne Convention and the WCT (Article 12).
c. Exceptions
Article 10 provides the general exception, replicating the three-step test articulated in the Berne
Convention and in TRIPS. However, unlike the Berne Convention, this applies to all exceptions not
just to exceptions under the reproduction right. In the WCT, the three-step test is enunciated in Article
10(2). Accordingly, Contracting Parties shall, when applying the Berne Convention, confine any
limitations of or exceptions to rights provided for therein:
Step 1: to certain special cases;
Step 2: that do not conflict with a normal exploitation of the work and,
Step 3: do not unreasonably prejudice the legitimate interests of the author.
This statement is derived from the TRIPS formulation found in article 13. Article 13 of TRIPS,
unlike the WCT formulation, does not mention the Berne Convention, although the convention is
incorporated by Article 9. This has left some confusion regarding whether Article 13 fully applies to
the exercise of the Berne Convention exceptions, since the Berne Convention has its own conditions
for the exercise of exceptions and limitations to rights. The inclusion of the Berne Convention
language in the WCT was an attempt to make it clear that the three-step test does apply to the exercise
of Berne Convention exceptions, including the compulsory licensing in the Appendix. Cognizant of
this, states added an agreed statement on article 10, which noted that “It is understood that the
provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the
123
Article 31(3)(b) of the Vienna Convention on the Law of Treaties (1969)
digital environment limitations and exceptions in their national laws which have been considered
acceptable under the Berne Convention. Similarly, these provisions should be understood to permit
Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network
environment.”
The language of the agreed statement still leaves major changes in place. The three-step test, if
adopted verbatim in national legislation shifts the burden of proof of compliance with the test to the
user rather than the rights holder. Developing countries should avoid implementing any language in
their legislation that places the burden of proof on the state or private actors exercising traditional
public fair use and access rights.
In an agreed statement, the contracting parties agreed that this article permits “Contracting
Parties to carry forward and appropriately extend into the digital environment limitations and
exceptions in their national laws which have been considered acceptable under the Berne Convention.
Similarly, these provisions should be understood to permit Contracting Parties to devise new
exceptions and limitations that are appropriate in the digital network environment”. Developing
countries should treat this statement as part and parcel of the agreement and take every opportunity to
reiterate it at every level and negotiating forum.
V.4.2 The WIPO Performances and Phonograms Treaty
The WPPT was adopted in Geneva in December 1996 and had 60 contracting parties as of February
2007. It entered into force in May 2002. It attempts to adapt some of the concepts established in the
Rome124 and Geneva125 Conventions (on phonograms and the rights of performers) to digital and
internet content. It also includes some elements of broadcasting.
a. Subject Matter
Article 2 expands the definition of fixation to include any embodiment or representation of a sound,
thus including digitization of sound recordings, communicated or received through any device.
Broadcasting is still defined as transmission by wireless means, while “communication to the public”
includes transmission to the public by any medium, including making them audible to the public.
b. Rights Granted
The WPPT grants moral rights to performers for their performances, provides performers with the
right to authorise fixation of performances and the broadcast or communication to the public of the
fixed performances. Article 10 provides a right of making available to the public, which covers the
making available of the material on a website or hosting the material on a website or server. Thus, no
one may make such material available to anyone else, either on their own computer or their website if
it is accessible to the public. This is particularly targeted at file sharing sites, although there remains a
question of the distinction between direct and indirect liability. Rights holders are also provided a right
of reproduction, which has the same effect as the WCT of defining every act of web viewing or
running and manipulating programmes on sound recordings as reproduction.
The WPPT also imposes the same WCT obligations on anti-circumvention measures and digital
rights management information. Article 6 provides performers the right to authorise the fixation of
124
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations (signed in Rome, on 26 October 1961). (Available at
http://www.wipo.int/treaties/en/ip/rome/index.html last visited February 13, 2007)
125
Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their
Phonograms (signed in Geneva, 1971). (Available at http://www.wipo.int/treaties/en/ip/phonograms/index.html
38 Research Papers
performances and the broadcast or communication to the public of the fixed performances. Thus,
performers have the right to restrict internet transmission of their performances. However, that right is
essentially superseded by Article 7.
Article 7 provides a right of reproduction which, according to the agreed statement concerning
Articles 7, 11 and 16, fully applies in the digital environment. The storage of a protected performance
or phonogram in digital form in an electronic medium constitutes a reproduction within the meaning
of Articles 7, 11 and 16. This defines every act of web viewing or of running and manipulating
programmes containing performances as reproduction. However, this agreement was adopted by
consensus and thus states may be obliged to act to recognize any digital manipulation of digital
phonograms and performances as reproduction.
Article 8 provides a right of distribution, and Article 9 a rental right for performers. However,
the distribution and rental rights are limited to tangible copies, not digital copies or transmission.
Article 10 provides a right of making available to the public, which covers the making available of the
material on a website or hosting the material on a website or server. Thus, no one may make such
material available to anyone else, either on their own computer or their websites, if it is accessible to
the public.
Article 11 provides a reproduction right for producers of phonograms, of the same standard as
that for performers, with much the same consequences. Article 12 provides a distribution right to
producers. Article 13 confers a rental right and Article 14 a right of making available to the public.
Article 15 which provides a right to producers of phonograms to remuneration for broadcasting or
communication to the public, is one of the few that a state may notify that it will refuse to apply or
apply in a restricted manner.
Article 18 imposes the same WCT obligation on anti-circumvention measures and Article 19
imposes the same measure on digital rights management information.
c. Exceptions
The general exception is contained in Article 16 (1) where “Contracting Parties may, in their national
legislation, provide for the same kinds of limitations or exceptions with regard to the protection of
performers and producers of phonograms as they provide for, in their national legislation, in
connection with the protection of copyright in literary and artistic works.” There is a suggestion that
this time be limited and where changes are made to expand limitations and exceptions for literary and
artistic works these would apply equally to material protected under the WPPT. Article 16(2) reiterates
the three-step test with the added limitation that, unlike the WCT, it does not incorporate the Berne
Convention exceptions. However, the agreed statement aims to ensure that this neither reduces nor
extends the scope of the exceptions provided for under the Berne Convention.
V.4.3 Policy Considerations by Developing Countries
The treaty systems provide minimum standards and do not prevent states from providing greater
protection. Increasing bilateral pressure to join the WIPO Internet Treaties may be rushing developing
countries into untenable situations. Developing countries have been the significant portion of
signatories despite the fact that they, for the most part, have little or no access to ICTs or digital and
internet content.126 By joining digital and internet content treaties too precipitously, they essentially
become subsidisers of the system since they are providing protection for goods to which they have
little or no access in the short term, and they are limiting whatever access they may be able to achieve
126
R Okediji, Development in the Information Age: Issues in the Regulation of Intellectual Property Rights,
Computer Software and Electronic Commerce (ICTSD Geneva 2005) at 24 (Available at
in the long term. In addition, for those countries that do have some access, the short term costs of
access to information will increase substantially.
The combination of the Berne Convention, TRIPS and the WCT and WPPT with their agreed
statements presents a complicated thicket, which makes it difficult for developing countries to
determine the exact extent to which traditional exceptions apply in the digital and internet arena, and
the extent to which they are able to fashion appropriate remedies to maintain public access and use
rights. An understanding of the internet as a datacasting tool that breaks down differences between
different kinds of content and transmits it through wire and wireless means may enable the creation of
appropriate IPR policy for digital and internet content. Any moves to incorporate the norms of the
WCT and WPPT into TRIPS should be resisted. States that have not signed up to the WCT and WPPT
should refrain from doing so and those that have, should consider withdrawal. However, a significant
minority have joined these agreements as part of their bilateral trade obligations, such as in free trade
agreements with the United States. In such cases, states should consider carefully the crafting of
appropriate exceptions and limitations as well as the maintenance of access friendly interpretive norms
for the agreed statements of the WCT and WPPT.
In the context of the proposed WIPO Broadcasting Treaty, developing countries should also take
note of new developments in WIPO127, which may limit the flexibilities available from treating
internet transmission as a form of broadcasting or datacasting. The South Centre research paper “A
Development Analysis of the Proposed WIPO Treaty on the Protection of Broadcasting and
Cablecasting Organizations”128 provides a thorough evaluation of the proposed treaty and the dangers
it presents. For the purposes of this paper, it suffices to note the following: the major content industries
are still seeking to expand the definition of broadcasting to cable and wireless means as well as
transmission over wires, all of which implicate internet transmission. While it has been agreed that
much of the language referring to internet transmission will be removed from future texts, developing
countries will still have to grapple with attempts to reintroduce such issues in the run up to the planned
diplomatic conference in late 2007.
Developing countries should also be aware that the danger of international rule making also lies
in the manner in which such treaties are implemented in developed countries. If developed countries
enact severe and restrictive legislation such as the DMCA in the United States that governs the use of
digital and internet content in their countries and the manner in which it can be accessed, this limits
the availability of such information on the internet for developing countries. In effect, the legislative
battles that are ongoing in developed countries such as the United States and the EU have a direct
bearing on developing country access to digital and internet content. Along the same lines, the
inclusion of DMCA-like standards in the bilateral free trade agreements being pursued by the United
States also pose the danger of restricting the total information available on the internet. This is
particularly true where the United States has targeted growing countries such as Malaysia, Thailand,
Chile and Peru that could have provided a strong and healthy basis for developing country information
sharing and knowledge by virtue of their technological head start.
The European Union’s pursuit of bilateral agreements should also be approached with caution,
especially in its negotiations for European Partnership Agreements with the 76 member African,
Caribbean and Pacific group of countries. There are indications that the EU will be seeking to have the
entire group accede to the WIPO Internet Treaties which would change overnight the balance of
countries attempting to apply development appropriate copyright policies, both domestically and in
international fora.
127
See Draft Basic Proposal for the WIPO Treaty on the Protection of Broadcasting Organizations Including
Non-Mandatory Appendix on the Protection in Relation to Webcasting (SCCR14/2) available at
http://www.wipo.int/edocs/mdocs/sccr/en/sccr_14/sccr_14_2.pdf
128
V Munoz & C Waitara, “A Development Analysis of the Proposed WIPO Treaty on the Protection of
Broadcasting and Cablecasting Organizations” (South Centre Geneva 2007) (available at
http://www.southcentre.org/publications/researchpapers/ResearchPapers9.pdf)
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VI. TOWARDS A DIGITAL AGENDA FOR DEVELOPING COUNTRIES
Copyright is, above all, a statement about the value that a nation places on its cultural creativity and
patrimony. Copyright reflects what a country values the most about its own culture and how that
culture and knowledge should be created, shared and disseminated.129 By and large, developing
countries have been forced to accept a copyright policy model based on the values and cultures of
commercial actors in developed countries who do not necessarily share the values and cultures of
individuals and communities in developing countries. This extends from requirements to pass
particular kinds of laws130, to establishing new institutions and governmental structures, to adopting
foreign jurisprudence and finally, to implementing and submitting to foreign judgments.131 Even where
choice could have been exercised in the post-colonial phase of development, most developing country
copyright legislation has mirrored that of the former colonial power.132 This has ensured that
developing countries remain on the periphery of global knowledge production and distribution systems
in fields such as print publishing, music performance and recording, film and television, and other
major cultural industries.
The advent of digital and internet technologies may, however, present an opportunity for
developing countries to design for themselves more appropriate and culturally relevant systems for
encouraging the production, and ensuring access to, and dissemination of, cultural products. In
developing copyright policies for digital and internet content and technology, developing countries
now need to go beyond the rhetoric of “stronger, faster, more” intellectual property that predominates
in discussions about the creation and dissemination of culture. They are now presented with the
opportunity to clearly determine in what way their development interests would be served by
particular forms of copyright regimes and they can choose to act accordingly, rather than satisfying the
needs of developed country content industries or small domestic interest groups.
Such an approach is even more necessary considering that the causal link between expanded
copyright protection (thus limiting access both for consumption and for the raw materials for further
creativity) and economic development remains tenuous at best for developed countries, let alone for
developing countries. A lesson should be learned from what developed countries did when they were
still developing economies: they emphasized greater access for their own nationals rather than greater
protection, until they became primary producers and distributors of cultural goods themselves.133 Even
in the 20th century, it has been convincingly argued that copyright protection played a largely passive
role in the development of cultural industries such as the television and film industries.134 This only
serves to outline the primary truism of the new digital age: that increased copyright protection for
digital and internet content serves largely to protect the market position of already established
129
For a strong statement of the values behind the concept of intellectual property see RL Gana, ‘Has Creativity
Died in the Third World, Implications of the Internationalization of Intellectual Property’ (1995) 24 DENV. J.
INT’L & POL’Y 109.
130
e.g. The Agreement on Trade-Related Aspects of Intellectual Property
131
RL Gana ‘Has Creativity Died in the Third World, Implications of the Internationalization of Intellectual
Property’ (1995) 24 DENV. J. INT’L & POL’Y 109, 120.
132
RL Gana ‘The Myth of Development, the Progress of Rights: Human Rights to Intellectual Property and
Development’ (1996) 18 Law & Policy No. 3 & 4, 331
133
(2002) at 12. (Available at http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_study.pdf last
134
Legal Theory Research Paper Research Paper Series No. 95, at 59 (Available at
industries rather than as a necessity for increased creativity, production and dissemination of cultural
goods.
The opportunity presented by digital and internet technology converges with a moment in
international policy-making that presents real scope for developing countries to implement
development-appropriate copyright regimes. However, the previous sections have outlined some of the
limitations. The next section outlines one further consideration.
VI.1 The Reality of Access to Digital and Internet Technology in Developing Countries
In looking at the opportunity presented by digital and internet content we should not lose sight of the
existing difficulties of access to ICTs in developing countries. Developing countries still lag
significantly behind developed countries and that gap, depending on the measure, may be growing.135
Nevertheless, some developing countries show significant growth in ICT access, although much of
that growth is attributable to Brazil, China and India.136 Concerted public investment in ICT
infrastructure is a necessary precondition for developing countries to take advantage of digital and
internet content.137 There is a strong urban rural divide in most developing countries that leaves the
majority of people without access to phone lines, satellite or mobile telephones. This is even more
extreme in cases of computers, photocopiers and printing presses.
However, the so-called Digital Divide has two components that should not be conflated: access
to systems and access to content. This paper focuses on access to content and is meant to be viewed in
conjunction with plans and policies on increasing access to ICTs. Nevertheless, while it is true that
hardware and internet access is very limited in developing countries, there already exist several
mechanisms through which individuals and communities in developing countries would be able to
take advantage of these opportunities immediately. In this, one has to disagree with those who argue
that loosening copyright restrictions in the near term will not significantly increase access.138
Where exceptions or access are made available, there is a potential for explosive distribution,
especially in tertiary institutions and libraries in developing countries. The first thing to realize is that
such access techniques are hybrids of digital and analog technologies, therefore requiring that only one
person in a sharing community have a computer and access to the internet. Coupled with analog
copying and reprographic technologies such as photocopiers, as well as public communication devices
such as radio, televisions and mobile phones, this makes information potentially widely accessible and
easily distributable.139
For example, where individuals have computers but few can access the internet, one person or
institution with a CD-burner can distribute many copies of the same document by burning a CD and
135
UNCTAD “Development and Globalization: Facts and Figures” UNCTAD 2004, at 96. (Available at
http://www.unctad.org/templates/webflyer.asp?docid=4848&intItemID=2364&lang=1 last visited February 13,
2007)
136
UNCTAD “E-Commerce and Development Report” UNCTAD 2004, at 2. Available at
http://www.unctad.org/en/docs/ecdr2004_en.pdf last visited February 13, 2007)
137
See the example of South Africa in D Cogburn & C Adeya “Prospects for the Digital Economy in South
Africa: Technology, People, Policy and Strategies” UNU/INTECH Discussion Paper 2002, at 22. (Available at
http://ideas.repec.org/p/dgr/unuint/200202.html)
138
A Story ‘Study on Intellectual Property Rights, the Internet, and Copyright’ in UK Commission on
Intellectual Property Rights Final Report of the UK Commission on Intellectual Property Rights (2002) at 34.
(Available at http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_study.pdf last visited February
13, 2007)
139
One area that presents an important opportunity is the use of radio, both internet and regular to transmit books
and materials through, books on tape or books on CD.
42 Research Papers
mailing or sending copies to others. Paper copies can be made where an individual or institution has
access to a photocopier.140
The content element of the digital divide is also crucial. There is a serious shortage of culturally
relevant and appropriate material for developing country individuals on the internet. Digital and
Internet Content is primarily biased to the major generators and users who are located in developed
countries. This is not to say that creative content does not exist in developing countries: it may in fact
be a major comparative advantage. However, the lack of digitization capacity may limit content even
for those countries that provide extensive access to the internet.
These activities suggest that copyright exceptions and limitations and access rules for
developing countries must take into account not just distribution and copying rules over the internet,
but also analog copying and distribution if cultural goods are to contribute to real growth in
developing countries. The entire distribution chain must be taken into account.141 Story points out that
what is crucial in a digital and internet world is the material that is easily and freely accessible on the
internet. 142 Where the global public domain that is the internet is shrunk by practices and rule-making
in developed countries, developing countries suffer accordingly. What is an annoyance to developed
country users becomes a much more serious matter for individuals in developing countries, especially
those with limited internet access. When the entire distribution chain of digital and internet content is
taken into account it is clear that increased restrictions on access to digital and internet content in
developed countries narrow the possibilities for access in developing countries.
VI.2 The Conditions, Freedoms and Rights necessary for Developing Countries to take
Advantage of Digital and Internet Content
Whatever policy changes developing countries make, their impact will be felt very strongly in two
areas: educational access and the development of indigenous content industries. How might digital and
internet content affect these particular areas and what does this suggest about the rights and freedoms
necessary to ensure that access and development are best served?
VI.2.1 Educational Access
The opportunities for developing countries are significant in the education sector (at all levels),
literacy and library sectors, but especially for the tertiary educational sector (universities, technical
colleges, professional training colleges) as a driver of access and distribution of digital and internet
content.143 Section III.2 outlined some of the digital and internet tools and content that may contribute
to educational access to education materials. In developing countries one of the most significant
drivers of better educational outcomes is access to textbooks and other instructional materials.144
In developing countries tertiary institutions can play a special role in enabling wider access to
digital and internet content. It is at the tertiary level that educational institutions are most likely to have
140
For an example of this process in action see the example of Uganda in A Rens, A Prabhala, D Kawooya
‘Intellectual Property, Education, and Access to Knowledge in Southern Africa’ (2006) ICTSD Regional
Research Paper Southern and Eastern Africa, at 30. (available at
February 13, 2007)
141
See Story at 47, while he focuses on the primacy of printed materials, I suggest that what matters is the nexus
between digital and printed materials.
142
Id. at 35.
143
UNCTAD “E-Commerce and Development Report” UNCTAD 2004, 95.
144
P Askerud “The Distribution of Educational Materials: Problems and Issues” UNESCO 1997, at 3. (Available
at http://unesdoc.unesco.org/images/0010/001090/109092E.pdf last visited February 13, 2007)
access to computers, as well as access to the internet.145 The tertiary sector, especially national
universities, is also the area that tends to have the greatest interface with the publishing industries that
disseminate educational materials such as books and journals.146 They are also core centres for the
production of research and educational materials for their country or region.147 Tertiary institutions
may also form the core of mass education and literacy systems, both as production centres and as
distribution centres. Askerud points to several problems with access to textbooks and educational
materials identifying distribution as the primary bottleneck.148 While not a panacea, the use of digital
and internet content and ICTs may help to reduce some of the problems that Askerud identifies such
as: insufficient storage and transport facilities; lack of private funds to purchase books; absence of
publishing enterprises in areas with widespread illiteracy; and the absence of conservation practices
for books.149 Distribution is a significant element of textbook cost and the easier and less difficult
distribution is, the cheaper the cost of educational materials. For example, the distribution of digital
books does not suffer from loss or damage issues, delivery of replacements is instantaneous, and
warehousing is unnecessary. Instead of having distribution as a recurring cost, it can essentially be a
one-time cost. Of course at present, distribution costs are largely due to failure of infrastructure, but in
the context of a larger ICT and hardware policy, it suggests that delivery of material through digital
and internet means should be a priority policy area.
The limitations of copyright especially for hardcopy materials have been especially onerous for
the tertiary sectors, in which institutions have had to pay exorbitant fees for such things as
photocopying of articles from journals in the library (even those written by faculty at the same
institution).150 Students have to pay for texts whose cost may amount to a significant portion of the
annual earnings of an average family151, thus ensuring that tertiary education remains the province of
the wealthy elites.
Distance learning is also an area where the benefits of internet and digital content are
unmistakeable. However, even distance learning courses have encountered problems of accessing
educational materials. Copy/South points out the failures of some courses that required students to buy
almost US $800 in textbooks.152 The lack of access in public libraries is also a problem due to the cost
of books. Where electronic access is the primary means of accessing texts, the digitization of materials
is a significant hurdle for institutions which have to pay for permission to do so.153 Examples of such
programmes at the tertiary level in developing countries are:
• Virtual University of Pakistan

• Indira Ghandi Open University (India)
• Monterrey Virtual University (Latin America and Caribbean).
145
B Oyelaran-Oyeyinka and C Adeya “Internet Access in Africa: An Empirical Exploration” UNU/INTECH
Discussion Paper 2002-5, at 31 (Available at http://www.intech.unu.edu/publications/discussion-papers/2002-
5.pdf last visited February 13, 2007) and UNCTAD “E-Commerce and Development Report” UNCTAD 2004,
103.
146
Askerud notes that the publishing industry in developing countries depends on the educational sector for up to
95% of its income. Askerud at 3.
147
UNCTAD “E-Commerce and Development Report” UNCTAD 2004, at 99. (Available at
148
Askerud at 4.
149
P Askerud “The Distribution of Educational Materials: Problems and Issues” UNESCO 1997, at 4. (Available
at http://unesdoc.unesco.org/images/0010/001090/109092E.pdf last visited February 13, 2007)
150
Discussion with Prof. Julien Hoffman, University of Cape Town, discussing the role of collection agencies in
the tertiary education sector in South Africa.
151
A Story et al (eds.) “The Copy/South Dossier: Issues in the economics, politics and ideology of copyright in
the global South” Copy/South Research Group May 2006, at 96. (Available at www.copysouth.org).
152
Story, A., et al (eds.) at 96.
153
Id.
44 Research Papers
However, cost per student remains a significant barrier to expanding access through such
programmes.154 In addition, analog formats will remain a crucial element of the content distribution
chain. The use of videocassettes, tapes and radio still form an important part of the delivery of content
in distance education programmes in developing countries.155 Nevertheless the potential for digital and
internet content delivery is undeniable and has been supported by international organizations such as
UNESCO.156
The library sector, especially as a crucial element of national education strategies, is also poised
to benefit from digital and internet content, but only if the right policies are in place. At the moment,
the failure to properly apply library exceptions means that libraries cannot digitize and share digital
copies of their works with other libraries or with users without paying exorbitant fees. While we
should not presume that all education sectors in developing countries should source all their material
from the developed world, neither should developing countries be forced to re-invent the wheel. One
of the earliest areas of action and, the one most likely to have the largest impact, is enabling access
from developing countries to the existing electronic resources, repositories and libraries of developed
country institutions. Simple email connectivity combined with an ability to search for these resources
can sometimes be enough. For example, in 1991 the University of Zambia medical library established
a relationship with the University of Florida medical library, which would email requested texts and
information resources on request. The impact on the quality of research and work at the University of
Zambia was immediate.157
Education has traditionally been an arena where it has been agreed that copyright holders in
general, should have no right to expect significant profits. The education exception enshrined in the
Berne Convention and in almost all national laws is evidence of this. This principle should be
maintained and extended to digital and internet content ensuring that it is possible to take advantage of
the opportunity presented.
VI.2.2 Development of Indigenous Content Industries
One of the major limits for the expansion of developing country cultural industries has been a
bottleneck in distribution and marketing especially with respect to international markets. The other has
been little or no purchasing power in the domestic market. With access to digitization and internet
technologies, developing country entrepreneurs can now place their cultural goods in the global
market more easily. With respect to the domestic market, lowered production costs may serve to
decrease the barriers to entry for many producers and artists, although within the limits of access to
hardware and software. Such opportunities are tempered by several issues of relevance to developing
country economies:
• unpredictable economic cycles for content industries in developing countries;

• lack of enforcement of artists’ rights against producers and publishers (a good example is
the music industry in large parts of Africa);
• non-existent or non-operating reimbursement systems for indigenous artists;
• poor access to finance and the high cost of raw materials and equipment.
154
UNCTAD “E-Commerce and Development Report” UNCTAD 2004, at 112. (Available at
155
Id. at 113.
156
UNESCO “Open and Distance Learning: Trends, Policy and Strategy Considerations.” UNESCO 2002
(available at http://unesdoc.unesco.org/images/0012/001284/128463e.pdf last visited February 13, 2007)
157
TW Oshikoya,. & MN Hussein “Information Technology and the Challenge of Economic Development in
Africa” African Development Bank Economic Research Paper No. 36, 2004, at 8 (available at
http://www.afdb.org/pls/portal/docs/PAGE/ADB_ADMIN_PG/DOCUMENTS/ECONOMICSANDRESEARCH
/ERP-36.PDF last visited February 13, 2007)
These are structural problems to which digital and internet technology does not necessarily
provide all the answers. However, it is clear that increased copyright protection does not present a
solution either, and may in fact worsen it by entrenching existing inequalities between creators and
producer/distributors. The problem of copyright for creators in developing countries is one of
enforcement of the very simple and basic rules against massive direct commercial copying. In this
regard, the lack of collecting societies in developing countries has been pointed to as a serious gap in
the copyright system.158 Better protection of artists against commercial actors is important, but recent
developments in the expansion of collecting societies suggest that these are not a panacea and that they
can behave in ways that restrict access. For example, some commentators have found that because
they are easy targets, educational institutions are the first targets of collecting societies rather than
commercial actors who may be better able to defend themselves or are more difficult to find.159
Developing country artists may be better protected by the enforcement of existing prohibitions against
literal commercial copying, rather than taking on further enforcement and protection obligations. In
addition, where artists are concerned, it is important to keep in mind that royalties form a small part of
an artist’s income, even in the major developed country markets.160 This suggests that the focus of
efforts in increasing artists’ incomes should not be the collecting societies or the copyright system, but
the inequality of negotiating power between artists and producers/publishers.161
The benefits to developing countries of the enforcement rather than the expanded protection
approach are more evident when one takes into account the fact that from a global perspective, the
direct rewards from increased copyright protection are largely directed to the publishing,
entertainment and software industries in Europe and North America.162 Firstly, this is because the
subject matter of new rights, such as software, databases, broadcasts, webcasts, large commercial
brands, technological protection measures, are all in fields dominated by developed country
commercial interests. Thus, for each monetary unit spent by a developing country on enforcement of
such subject matter, a larger proportion of the return on investment goes to rights-holders in developed
countries. By focusing on direct and literal commercial infringement of basic copyright, developing
countries may better serve their domestic artists and industries. Due regard should, however, be given
to ensuring that such enforcement takes into account employment effects. As Rens, Prabhala and
Kawooya have argued163, the informal economy forms a crucial part of both authorized and
unauthorized distribution systems and enforcement should not destroy viable and necessary
distribution networks that may address largely under-served markets.
The indigenous industries most directly affected by digital and internet content are the
publishing and music industries. It is important to outline the role that digital and internet content may
play in these if the basic outline of rights and freedoms necessary to ensure access and development is
to be complete.
158
B Andersen et al “Copyrights, Competition and Development: The Case of the Music Industry” Discussion
Paper No. 145 January 2000 UNCTAD, at 23. (Available at http://www.unctad.org/en/docs/dp_145.en.pdf last
159
A Story et al (eds.) “The Copy/South Dossier: Issues in the economics, politics and ideology of copyright in
the global South” Copy/South Research Group May 2006, at 33. (Available at www.copysouth.org).
160
Id. at 24.
161
See UNCTAD “E-Commerce and Development Report” UNCTAD 2004, at 86. (Available at
162
visited February 13, 2007) citing IMF statistics.
163
A Rens, A Prabhala, D Kawooya ‘Intellectual Property, Education, and Access to Knowledge in Southern
Africa’ (2006) ICTSD Regional Research Paper Southern and Eastern Africa (available at
http://www.iprsonline.org/unctadictsd/docs/06%2005%2031%20tralac%20amended-pdf.pdf)
46 Research Papers
a. The Publishing Industry
With respect to access issues, especially education access, in developing countries, the industry of
major concern is the publishing industry, which has been a vocal opponent of increased exceptions and
limitations and has generally operated with low profit margins. It has depended on the educational
market, which can make up to 90% of the publishing market,164 for most of its sales and profit growth.
While encouraging local publishing industries should be an important concern, the furthering of
education and literacy may do more to encourage private consumption of the cultural goods produced
by such publishers by increasing the size of the market available. The argument that strong copyright
is necessary to protect local publishing industries and cultural producers must be considered in the
context of actually increasing markets for such publishers, rather than strangling attempts to increase
educational, library and literacy access.
Access to text repositories and to free e-Books and texts online may prove a boon for developing
country publishers of educational texts, enabling new collections of materials to be published and by
ensuring that even the smallest publisher can access a fully scanned and digitized text from which to
make reprographic texts. The costs of accessing galleys or of typing up or scanning a text themselves
are significantly reduced. For example, the entire works of Shakespeare (some of which are required
texts in Anglophone developing country education systems) are available on the website of Project
Gutenberg. Developing country industries can compete and produce cheap, versions of these texts
which they may be able to sell at a cost significantly lower than that offered by importers. This may
introduce long-overdue competition into such industries in developing countries, where usually the
market has been captured by two or three publishers who are subsidiaries of developed country
publishers.165 Access to digital and internet content can only serve to free domestic publishers from
dependence on developed country publishers for their source material and allow them to both publish
material produced indigenously and material produced in other countries.
b. The Music Industry
While digital and internet technologies pose a challenge to the major record labels and producers, there is
an equivalent opportunity for artists to regain control of their materials and to have access to global
markets and distribution channels.166 The structure of international music markets only serves to illustrate
the importance of global distribution. Few states have sufficient domestic markets to support income for
artists and producers. Even in these markets, the majority of sales for most major labels come from the
global market. For developing countries, where the average income presents too small a market for most
producers or artists167, access to the global market is essential. As Menell notes, there are many
international online outlets such as Garageband.com168 and theorchard.com169 that provide distribution,
and marketing services, as well as retail services. This will significantly lower the barriers to distribution
164
A Story, et al (eds) The Copy/South Dossier : Issues in the economics, politics, and ideology of copyright in
the global South (Copy/South Research Group 2006) at 40. (Available at http://www.copysouth.org)
165
See e.g. A Rens, A Prabhala, D Kawooya ‘Intellectual Property, Education, and Access to Knowledge in
Southern Africa’ (2006) ICTSD Regional Research Paper Southern and Eastern Africa, at 31. (Available at
February 13, 2007)
166
See Andersen, B. et al “Copyrights, Competition and Development: The Case Of The Music Industry”
Discussion Paper No. 145 January 2000 UNCTAD, at 9, arguing that developing country artists may be able to
take advantage of new technologies more easily as new entrants. (Available at
http://www.unctad.org/en/docs/dp_145.en.pdf last visited February 13, 2007)
167
Id.
168
169
For other examples see UNCTAD “E-Commerce and Development Report” UNCTAD 2004, at 85.
(Available at http://www.unctad.org/en/docs/ecdr2004_en.pdf last visited February 13, 2007)
and market access thus encouraging greater diversity and distribution of music. Digital technologies also
makes it easier to record and produce music, bringing the production process closer to the artist, and
therefore less dependent on specific producers with capital.170 This may work to reduce the imbalance of
power that generally exists in developing countries (and in developed countries) between artist/creators,
on the one hand, and producers, on the other.171 Where artists bypass the production of CDs and limit their
distribution to purely online sales and to performance income revenues it is possible to bypass some of the
major production costs of producing a record.172 This also includes some of the major costs of reaching
and marketing to a global audience.173 In addition, many of the technologies that are used in production
are available in FLOSS form, meaning that there is no cost for purchase or use beyond the human skills
needed to learn how to use them.174 In developing countries this is more likely to lead to the proliferation
of smaller producers175 as well as self-produced artists who will view such producers as service providers
rather than owners. While the major studios have expressed concerns about selling music online without
copying protections, more and more artists and producers have found that it is possible to make a viable
living by online sales of music without technological protection measures. The approach has even been
endorsed by Steve Jobs, CEO of Apple, the owner of the iPod and iTunes store brands that sell copy
protected songs. Jobs notes rightly that such protections do not prevent unauthorized copying by those
determined to do so, and limit the ability of artists to reach wider audiences through word of mouth and
other viral forms of marketing.176
Digital distribution and marketing may also lower the transaction costs of collecting royalties and
licence fees.177 Sites such as theorchard.com provide such services as part of their package, thus
eliminating the middleman of collection and licensing agencies. The possibility of direct access and
control, or even automated systems for licensing mean that the present landscape of music copyright,
which is oriented towards collection agencies and major labels, will shift towards providing more direct
remuneration to artists.178 As sites like theorchard.com proliferate, they will compete for artists to join
their catalogues on price and services, without becoming copyright owners themselves. Direct “artist-to-
consumer” transactions become increasingly possible.179 The success of such a system, as Okediji points
out, is also reliant on the ability to turn such online payments into money in the bank, which may still pose
problems in developing countries whose banking systems may not yet be set up to receive electronic
transfers or electronic deposits.180 However, the use of internet banks based in the North may also serve to
enable such transactions where local institutions lack the resources to do so.
170
The advent of music synthesizers and the Musical Instrument Digital Interface (MIDI) standard system
allowed greater independence for artists to produce high quality, complex, multi-track digital recordings. See
UNCTAD “E-Commerce and Development Report” UNCTAD 2004, at 71.
171
UNCTAD “E-Commerce and Development Report” UNCTAD 2004, 67.
172
Id. at 69.
173
Id. at 70.
174
For a list of these see Id. at 79.
175
Id. at 66.
176
S Jobs “Thoughts on Music” February 6, 2007 available at http://www.apple.com/hotnews/thoughtsonmusic/
177
R Okediji ‘Development in the Information Age: Issues in the Regulation of Intellectual Property Rights,
Computer Software and Electronic Commerce’ (ICTSD Geneva 2005) at 29 (available at
178
See Andersen, B. et al “Copyrights, Competition and Development: The Case Of The Music Industry”
Discussion Paper No. 145 January 2000 UNCTAD, at 9. (Available at
179
For an extreme example of this see www.sheeba.ca the website and store of Jane Siberry a Canadian musician
who left her record label and is selling her material directly to consumers, at whatever price consumers are
willing to pay. The site is unusual in the payment aspects but is structured to profit from direct payments and the
creation of mailing lists and a direct community to whom products can be marketed. However, it should be
noted that she built up a following as an artist before she ventured along this path.
180
Computer Software and Electronic Commerce’ (ICTSD Geneva 2005) at 30. (Available at
48 Research Papers
In addition to music, the rich tradition of oral history and storytelling in developing countries may
find a larger audience and access through digital production and distribution. While music appears to be
the easiest point of entry for developing countries, any art form that is dominant in a developing country
has the power to transform itself through new production and distribution methods.
VI.2.3 The Rights and Freedoms Necessary to Ensure Access and Development
The potential for growth in access and development through the new technologies is evident. The
previous section suggested the outlines of what is needed for these to be fully realized. Technology
always operates within a legal and social context that either enables its use or restricts it. The
conditions necessary for developing countries to begin to take advantage of digital and internet content
include ensuring:
• the right to free access and use of digital and internet content for: research or educational
purposes; library and other non-profit informational purposes (such as museums); the right
to import from or export to other countries for the same purposes;
• the right to reproduce, distribute, broadcast, perform, communicate to the public, lend (all
without payment) for research, scientific, educational, library and other informational non-
profit purposes (such as museums); the right to import from or export to other countries for
the same purposes;
• the right to quote (without payment) reasonable portions of works;
• the right to access and use any non-copyright material regardless of format, structure or
compilation of which it comprises a part;
• the right to impose compulsory licences for government or development purposes either for
free, or at a price commensurate with local cost levels, uses and needs;
• the right of creators of cultural goods in developing countries to distribute their work
through digital and internet channels, while ensuring that they are sufficiently rewarded for
the creation of their works.
In particular, certain copyright and related policy options have to be in place:
a. Strong and robust education and library exceptions
For educational institutions to continue to fulfil and expand the role that they must play in
development policy, they must be free to communicate information to their students. A broad
exception for education must cover all educational uses of copyright and related rights materials. It
must cover multiple analog copies of texts for use by students. It must enable students to make
photocopies themselves of any material held by the school library for their private and educational use.
All institutions must be able to make such copies electronically available to all students at the school,
through a school network and from any workstation or computer, without further payments by the
institution or the school.
A strong library exception is also crucial, especially for libraries operating within educational
institutions. They must be enabled to make copies of the contents of their institutions for any bona fide
member (student, teacher) of the institution. They must be able to digitize the contents of their library
and share it with any bona fide member of their institution, as well as with other libraries serving the
same function. They must be able to transfer their material into any format for archival and lending
purposes.
While these exceptions may at first seem to pose a threat to developing country publishers of
educational texts, such concerns should not create a situation where commercial actors are allowed to
place an unnecessary tax on education. Copyright is not the only, or even the most viable method for
the production of educational textbooks. In the alternative for example, secondary school texts can be
created on commission by the government, and required reading texts can be allowed to be accessed
for free under the education exception. Whichever publisher wins the tender will have a head start but
the text once created would be available to all other publishers to produce, ensuring that there is
sufficient competition on price. This may increase the number of publishers rather than reduce them.
Such a process seems far more preferable than one where one publisher has an almost unlimited
monopoly on a text that is used in a national school system. With respect to tertiary institutions, the
role of textbooks is also clear, but these are largely written by individuals who already have
employment and are a way of disseminating knowledge and gaining status. Profits for the writer are
not the primary driver of such production. In such a situation, developing countries may wish to either
commission the development of free textbooks by their own professors and scholars, or to construct
them by using free access under the education exception to create compilation texts. Especially in the
context of tertiary education (e.g. science) developing countries should not re-invent the wheel if such
texts are already available on the market and can be used for educational purposes. This is especially
critical if such texts are available electronically. In such a case, protection would only require that the
text be protected from commercial uses by other publishers but, that copies of the whole text or
portion thereof by students are legitimate exercises of the education exception.
b. A robust research and study exception
A robust research and study exception is crucial to enable students to copy texts themselves, as far as
the text has been legally accessed either at a library or through purchase. Countries should ensure that
their domestic legislations are clear so as to allow students to photocopy portions or the whole for their
own research and study purposes to the extent that they do not produce and distribute to others. In
such cases, research comprises materials necessary for carrying out school assignments, papers or
other education related tasks. Thus, a secondary school student doing a paper on Shakespeare would
be allowed to make a copy of a text or portions of text (a critique perhaps), or copy of a film, that they
would use and study as a basis for writing their papers. This exception would apply therefore, not just
to post-graduate students but, to all students in pursuit of their studies, to the extent that they did not
engage in commercial sale or distribution of copies that they have made. This exception is crucial to
enabling students and scholars to carry out research and study without the fear of having to pay
royalties on products that they have legally accessed, either through purchase, library lending, or
otherwise. It will assist students and schools by preventing undue litigations and pressure from right-
holders.
In addition, the research and study exception must also be embedded in a robust definition of
‘first sale’ so that individuals use their ownership material effectively. Here, the study and research
exception overlaps with the traditional private use exception. The fear of literal copying and
distribution should not encroach on the right of individuals to own what they have properly bought and
paid for. This clearly applies a concept of ownership in the digital arena, such that an individual can
transfer copies from one device to another, from their own hard drive to their work station, to a
memory disk, onto paper, online storage, email and many other manipulations of such material for
personal and study purposes. Although the principles are well established, it is crucial to establish that
the exercise of rights conferred by copyright do not infringe upon private uses, uses under research
and study and all other exemptions. Owners cannot control the uses of their material and force
individuals or institutions to pay multiple times for material that they already own.
This issue of ownership is particularly important for institutions that make such purchases with
the understanding that they will use such material for their institutional purposes. This would include
archiving, and copies requested by professors or students, either analog or digital. To suggest that each
institution buy copies for each individual member is to insist on disproportionate profit for the
copyright holder. Some of the institutions, such as libraries, by their very nature acquire materials for
the purpose of dissemination and wider use. The concept of ownership, especially by educational
50 Research Papers
institutions, must cover normal institutional uses of such material if educational institutions are to
carry out their educational mission.
c. Does the Three Step test impose limitations on the scope of exceptions?
Least developed countries have until July 2013 to implement the TRIPS agreement (except for articles
3, 4 and 5).181 The WCT and WPPT, and the proposed Broadcasting Treaty make no such provisions
for transitional periods, although these agreements are voluntary to enter into.
However, the WCT and WPPT allow for the formulation of new exceptions and state that the
three-step test neither limits nor expands the scope of exceptions under the Berne Convention. As
other commentators have noted182 this is a crucial re-balancing as it establishes that domestic
legislation is free to apply existing exceptions and create new ones, provided that they are consistent
with Berne. At least as far as digital and internet content is concerned the agreed statements cabin the
three step test and place it in proper perspective as an open-ended enabling tool for crafting exceptions
without actually pre-determining the scope of those exceptions beyond the Berne Convention.
In addition, existing decisions on the scope of the three-step test still leave the issue open for
developing countries to develop practices of their own with respect to the standard provided by the
test.183 The standard was analyzed in the US Copyright case, in which the EU brought a challenge
against Section 110(5) of the US Copyright Act.184 The decision’s analysis of ‘special cases’ ‘normal
exploitation’ does not function as a precedent for new subject matter and was applied to a situation
with a significant commercial and profit-making setting. In particular it has not addressed the
normative power and role of education as an exception to copyright. The decision did not negate other
existing practice in the United States and the EU on exceptions and limitations, which provides some
broad and useful examples. It is especially important to note that, as a matter of international law, the
post-TRIPS rights and subject matter embodied in the WCT and WPPT are not covered by the panel’s
interpretation of the three-step test under the TRIPS Agreement.
Developing countries should proceed to interpret and apply the test in their own legislation
taking into account the entire scope of available state practice under the Berne Convention (including
the extensive practice of European Union countries prior to and including the EU Copyright Directive)
as well as taking the opportunity to establish new limitations and exceptions suitable to digital and
internet content.185 In addition, a study conducted by WIPO also points out that normative
considerations as to the markets from which a rights-holder can legitimately expect to profit are a core
part of the examination of the three-step test, including such considerations as education and free
speech.186
181
EXTENSION OF THE TRANSITION PERIOD UNDER ARTICLE 66.1 FOR LEAST-DEVELOPED
COUNTRY MEMBERS, Decision of the Council for TRIPS of 29 November 2005 (30 November 2005)
IP/C/40 http://docsonline.wto.org/ (last visited 15 Februrary 2006)
182
P Samuelson, “The U.S. Digital Agenda at WIPO”, (1997) 37 VA. J. INT'L L. 369.
183
R Okediji “The International Copyright System: Limitations, Exceptions and Public Interest Considerations
for Developing Countries” ICTSD 2005, at 20. (Available at
http://www.iprsonline.org/unctadictsd/docs/Okediji_Copyright_2005.pdf last visited February 13, 2007)
184
WTO Panel Report on United States – Section 110(5) of the U.S. Copyright Act, June 15, 2000, WTO Doc.
WT/DS160/R, available at http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm#2000.
185
A useful examination of what some of these state practices consist of can be can found in Section III of Ruth
Okediji’s “The International Copyright System: Limitations, Exceptions and Public Interest Considerations for
Developing Countries’ ICTSD 2005.
186
S Ricketson “WIPO Study on Limitations and Exceptions Copyright and Related Rights in the Digital
Environment” WIPO SCCR/9/7 2003, at 26. (Available at
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=16805 last visited February 13, 2007)
VI.3 The Way Forward for Developing Countries
As an introductory matter, it is important to realize that innovation and development, especially with
respect to developing indigenous industries is best served by copyright that is strong enough to prevent
direct and literal copying for commercial purposes, but that is limited so as to enable sequential and
interactive production of new goods and increased competition. In ensuring this, developing countries
will also need to address the lack of access to educational materials for students and the majority of
their population. With this in mind, the following agenda items are proposed for the developing
countries as a way to begin to set the terms of the debate for themselves. They emphasise ways to
retain and further access while simultaneously enabling development and growth for indigenous
industries.
VI.3.1 Immediate Actions
A. Do not sign TRIPS-Plus, WCT and WPPT.
Developing countries should not sign such terms in bilateral treaties with the United States or the EU,
even where they contain language similar to the agreed statements at the WCT and WPPT and they
contain exceptions as allowed under Berne, TRIPS and general fair use principles. The
implementation of such provisions in the United States and the EU has proven to be controversial and
have not been shown to achieve their goals. Developing countries should not sign on to unproven and
dangerous policies.
B. Those countries that have not signed the WCT and the WPPT should refrain from signing them.
Those who have should reconsider their participation in the treaties.
Where they see a need for protection of the rights of their performers, such protection may be better
limited to those provisions of the WPPT that they deem necessary and under strict domestic law and
policy making. Those countries that have ratified the WCT and/or the WPPT should give serious
thought to withdrawing their participation from the treaties.
C. Maintain and fully implement existing exceptions and limitations.
Access to digital and internet content for developing countries can only be built on a regime that
ensures access to analog content. Developing countries must look to models that create the largest
amount of freedom for analog content. This entails eschewing traditional models provided by technical
assistance programmes from developed countries or WIPO and looking instead to alternative models
such as the Tunis Model Law on Copyright for Developing Countries187 to create more appropriate
model laws. Developing countries should begin the discussion as to how it should be updated to
accommodate developments since it was first written.
A priority should be the establishment of the widest and most useful education, library and
personal use exceptions to enable educational access for teachers, institutions and students. While it is
not within the remit of this paper to fully flesh out such exceptions, developing countries should focus
on the production of further work in this area.
Developing countries should insist on the application and inclusion of existing limitations and
exceptions in every international agreement, ensuring that they are not interpreted in any way as
giving up their sovereign right to determine applicable limitations and exceptions for themselves.
187
UNESCO and WIPO, Tunis Model Law on Copyright for Developing Countries, 1976. (Available in Hard
Copy from WIPO, on request.)
52 Research Papers
D. Focus copyright enforcement on the protection of domestic artists.
Many enforcement programmes focus on border controls, reflecting the interest to respond to political
demands from rich countries to the detriment of developing a holistic enforcement strategy that
reflects balance in the IP system. Developing countries should place an emphasis on ensuring the
remuneration of domestic creators/artists by domestic producers and other content industry
intermediaries. The resources of developing countries are better spent supporting domestic artists than
enforcing border controls for goods from developed countries.
E. Limit software copyright protection only to the non-functional aspects of software. Do not provide
patent protection.
The example of the United States may be appropriate to follow; where courts for a long time have
refused to extend copyright to those aspects of software that are the inevitable result of the functional
requirements. The requirement to protect software as a literary work does not require that such
protection be of equal strength as that for original literature.
The protection of object code as required under TRIPS must ensure that de-compilation of the
object code is allowed. This is important to make the object code human-readable and allow others to
determine its functionality, and/or reverse engineer it.
F. Do not extend protection to non-original databases.
There is little evidence to suggest that non-original databases need protection (as provided for
instance, by the European sui generis regime) to provide an incentive for their creation, while it is
clear that such protection would only serve to remove knowledge from the public domain. Even where
copyright protection of original databases is required under TRIPS, such protection should impose a
high burden of originality. Copyright protection should only be extended to the structure, not the
contents, of the database.
VI.3.2 Next Steps
a. Negotiate Special Provisions for Educational Access for Developing Countries.
Building on the tradition and precedent of the Berne Appendix, developing countries must insist that
the new technologies require a new instrument or set of provisions to ensure educational access for
developing countries. While exceptions and limitations are good beginnings and stopgaps, bulk access
to materials is really what is needed for developing countries. In this context a new deal for
educational access is necessary. However, as Okediji warns, developing countries should beware of
any suggestion that the Berne Appendix can be the only basis for bulk access to digital and internet
content.188
b. Formulate new and appropriate limitations for digital and internet content that can be effectively
utilised.
Developing countries should begin the process of formulating limitations and exceptions for digital
and internet content in their domestic law. In this, developing countries have some natural allies in
civil society groups in developed countries who share many of the same concerns about maintaining
access for their own communities. In particular, educational and library institutions share their agenda
and have made proposals with respect to access to educational materials that can form the basis of
188
Computer Software and Electronic Commerce’ (ICTSD Geneva 2005) at 32 (Available at
http://www.iprsonline.org/unctadictsd/docs/CS_Okediji.pdf (last visited February 13, 2007).
legislation, appropriately tailored, for developing countries. In developing such new exceptions and
limitations, developing countries will need to be fully cognizant of the application of the three-step
test. In particular, defining what interferes with normal exploitation of the copyright may be difficult
in the digital and internet arena. A good beginning would address the following issues in the near
term:
• Limits on technological protection measures– users of TPMs must be required to enable

access for educational and other public interest exceptions. In addition, the implementation
of anti-circumvention measures for those states that have signed up to such commitments
should be limited only to acts of circumvention, not tools, and only if such circumvention is
for access to copyrighted material. Although countries may not ratify the WCT and WPPT
nor implement TPM measures under domestic legislation, they need clear policy on TPMs
due to the fact that the exercise of such rights affects access issues in the rest of the world.
• Exception for Search Engines – developing countries should ensure that their copyright law
includes an exception for search engines which search, copy and catalogue the web and the
internet, enabling users to find information easily. Those search engines that are free to use
should be exempted from needed authorization to make copies, provided that the copies that
they make are used only for searching and, that the links that they establish direct the user to
the original content and not to the copies stored on the search engine server.
• Exception for ISPs and P2P and other service providers. Internet service providers should
be treated the same as any other telecommunications service provider. Simply because their
network may be used for holding or transmitting unauthorized material, ISPs should not be
held liable. In the same manner, peer to peer sharing and distribution programmes should
not be held liable for the material that individuals place on their systems. In the United
States, ISPs have been held indirectly or secondarily liable for the activities of their users.
Since such liability issues are free for countries to decide for themselves, developing
countries should ensure that copyright liability is only available for direct infringement. If it
is necessary to have such indirect liability for copyright infringement, such liability should
be limited to those cases where the service provider knowingly and intentionally allows the
specific alleged material to be placed or transmitted on its servers.
• Exceptions for Temporary, Incidental and Ephemeral copies. Since almost all computer
programmes that manipulate and transmit information also make incidental copies, it is
necessary to ensure that such copies are treated as exceptions and do not require a tax on
every single action of a computer programme. This is especially important for web
browsing. However, this is only a concern where the right of reproduction is considered to
cover temporary copies. Fixation requirements may also be used to exclude temporary
copies from protection by requiring fixation for more than a temporary period.
• No enforcement of unfair copyright licensing contracts. Developing countries should not

recognise or enforce contracts that have terms that restrict or contract out of exceptions or
fair use terms. As some commentators have rightly argued, the entire point of such
exceptions and limitations is the public interest, and private contracts should not be allowed
to contract around the public interest.189 This is especially important in the area of software.
They should be treated as null and void where they conflict with the public interest or where
they render public interest exceptions and limitations inoperable. TRIPS makes no
requirements to restrict the interpretation and operation of contract law.
189
J Cohen ‘WIPO Copyright Treaty Implementation in the United States: Will Fair Use Survive?’, 21 EUR.
INTELL. PROP. REV. 236, 240 (1999). (Available at http://www.law.georgetown.edu/faculty/jec/wipotreaty.pdf
54 Research Papers
Developing countries must insist that new treaties, especially those addressing new subject
matter, also include appropriately tailored exceptions and limitations. A prime example is the
proposed WIPO Broadcasting Treaty which only includes provision for exceptions and limitations
because of the urging and demands of developing countries.
c. Adopt and Support Free/Libre/Open Source approaches to software and other content.
As a general rule, developing countries have little to gain from proprietary regimes for
knowledge basically produced in or otherwise controlled by actors in the developed countries.
Especially in the field of digital and internet content, developing countries remain content users rather
than providers. In such a situation where there is a need to both ensure access and to develop
indigenous capacity, open source models of production and dissemination may be most appropriate.
The most attractive feature of such an approach may be that it requires little or no additional
legislation or international agreement to implement. Developing country governments should favour
Open Source and Open Content approaches, devoting their resources to:
• the enforcement and use of open source licences;

• the use of open source software;
• the encouragement of open source approaches to the production and dissemination of
knowledge in the scientific and education arena by leveraging government funding and not
allowing the privatization and exclusive appropriation of materials produced with such
funding.
Finally, it is important to reiterate that these recommendations must be seen in the light of a
broader ICT policy that emphasizes access to hardware, in line with an access to knowledge policy. As
an element of industrial and economic policy, these policies become part of a larger strategy.
However, as this paper has emphasized, the area of earliest harvest for such policies both for ICTs and
access to knowledge is in the education sector. An educated and skilled populace with access to
information is a prerequisite for development and will be even more necessary in the future global
economy of knowledge.
BIBLIOGRAPHY
Articles and Reports
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Industry” Discussion Paper No. 145 January 2000 UNCTAD. (Available at
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(Available at http://unesdoc.unesco.org/images/0010/001090/109092E.pdf last visited February
13, 2007
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GLOSSARY OF TERMS190
◊ Analog - An analog or analogue signal is any variable signal continuous in both time and
amplitude. It differs from a digital signal in that small fluctuations in the signal are meaningful.
Analog is usually thought of in an electrical context, however mechanical, pneumatic, hydraulic,
and other systems may also convey analog signals.
◊ Binary - Being in a state of one of two mutually exclusive conditions, such as on or off, true or
false, 6 or not 6, or the presence or absence of an electrical pulse.
◊ Bit - A binary digit, generally represented as a 1 or 0.
◊ Blog - A personal or corporate website in the form of an online journal, with new entries
appearing in sequence as they are written, especially as dealing with personal reflections or
opinion.
◊ CD Burners - a device, usually found in a computer, for recording audio, or for saving data, onto
a compact disc.
◊ Chat room - A computer site online where users can exchange messages by typing them onscreen
which makes them appear to scroll by as a conversation develops with other users on the site.
◊ Circumvention - The act of evading by going around an obstacle.
◊ Compact Disc - A form of digital media that is based on the use of a laser to read from a plastic
disc in a reader device known as a CD drive. It comes in several varieties including the CD-ROM
(ROM=read-only memory) which cannot be written to except during manufacturing, the CD-R
(recordable), which can be written to exactly once, and the CD-RW (re-writable), which can be
written to as many times as one wishes (to a limit)
◊ Compression - the process of encoding information using fewer bits (or other information-
bearing units) than an unencoded representation would use through use of specific and agreed
encoding schemes. Generally, when compressed the data cannot be manipulated, but can be
transmitted.
◊ Computer microprocessor - A microprocessor is a programmable digital electronic component

that incorporates the functions of a computer’s central processing unit on a single semi conducting
integrated circuit or ‘chip’.
◊ Compulsory licensing – a legal obligation imposed on a patent or other intellectual property

holder to allow others to use the protected product for free, or at a price determined by the legal
authority.
◊ Decompile - to translate a file containing information at a relatively low level of abstraction

(usually designed to be computer readable rather than human readable) into a form having a
higher level of abstraction (usually designed to be human readable).
◊ Derivative products – these are products based on an existing expression, such as a film sequel.
190
Unless otherwise noted, terms have been captured and/or adapted from Wikipedia or Wiktionary at
www.wikipedia.org or http://en.wiktionary.org/wiki/Wiktionary:Main_Page
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◊ Digital - A digital system is one that uses discrete values (often electrical voltages), especially
those representable as binary numbers for input, processing, transmission, storage, or display,
rather than a continuous spectrum of values (i.e., as in an analog system).
◊ Digitization - Digitizing or digitization is representing an object, an image, or a signal (usually an

analog signal) by a discrete set of its points or samples, rather than a continuous signal.
◊ Download - to download is to receive data from a remote system, such as a website, FTP server,
or other similar systems. A download is any file that is offered for downloading or that has been
downloaded.
◊ DVD - "Digital Versatile Disc" or "Digital Video Disc" is an optical disc storage media format
that can be used for data storage, including movies with high video and sound quality. DVDs
resemble compact discs as their diameter is the same (120 mm (4.72 inches) or occasionally 80
mm (3.15 inches) in diameter), but they are encoded in a different format and at a much higher
density.
◊ Encryption - the process of obscuring information to make it unreadable without special

knowledge, sometimes referred to as scrambling.
◊ Fibre-optic cables - An optical fibre (or fiber) is a glass or plastic fibre designed to guide light
along its length by total internal reflection. Optical fibres are widely used in fibre-optic
communication, which permits digital data transmission over longer distances and at higher data
rates than other forms of wired and wireless communications.
◊ File sharing - the practice of making files available for other users to download over the Internet
and smaller networks.
◊ File Transfer Protocol - File Transfer Protocol (FTP) is used to connect two computers over the
Internet so that the user of one computer can transfer files and perform file commands on the
other computer. Specifically, FTP is a commonly used protocol for exchanging files over any
network that supports the TCP/IP protocol (such as the Internet or an intranet).
◊ Hard disk - A hard disk (commonly known as a HDD (hard disk drive) or hard drive (HD) and
formerly known as a fixed disk) is a non-volatile storage device which stores digitally encoded
data on rapidly rotating platters with magnetic surfaces.
◊ Hardware - Computer hardware is the physical part of a computer, including the digital circuitry,
as distinguished from the computer software that executes within the hardware. The hardware of a
computer is infrequently changed, in comparison with software and data, which are "soft" in the
sense that they are readily created, modified or erased on the computer.
◊ Internet - The Internet is the worldwide, publicly accessible network of interconnected computer
networks that transmit data using the standard Internet Protocol (IP). It is a "network of networks"
that consists of millions of smaller domestic, academic, business, and government networks,
which together carry various information and services, such as electronic mail, online chat, file
transfer, and the interlinked Web pages and other documents of the World Wide Web.
◊ LP - A vinyl 33 rpm long-playing record album, or LP album, the main type of gramophone
record predominant immediately before the rise of digital music.
◊ Meta-sites – a ‘site of sites’ that collects and enables links to many, if not all websites within a
particular subject matter.
◊ Multimedia - media that uses multiple forms of information content and information processing
(e.g. text, audio, graphics, animation, video, interactivity) to inform or entertain the (user)
audience. Multimedia also refers to the use of (but not limited to) electronic media to store and
experience multimedia content
◊ Network - A computer network is two or more computers connected together using a

telecommunication system for the purpose of communicating and sharing resources.
◊ Object code - object code is the representation of human readable computer code (source code)
into binary code readable and directly executable by the microprocessor. All source code must be
‘compiled’ into object code before a microprocessor can execute its instructions.
◊ Open source software - refers to any computer software whose source code is available under a
licence (or arrangement such as the public domain) that permits users to study, change, and
improve the software, and to redistribute it in modified or unmodified form. It is often developed
in a public, collaborative manner.
◊ Optical disc - a flat, circular, usually polycarbonate disc whereon data is stored in the form of pits
(or bumps) within a flat surface, usually along a single spiral groove that covers the entire
recorded surface of the disc. This data is generally accessed when a special material on the disc
(often aluminium) is illuminated with a laser. The pits distort the reflected laser light.
◊ Pixel - A pixel (short for picture element, using the common abbreviation "pix" for "picture") is a
single point in a graphic image.
◊ Public domain – the volume of information and ideas that is accessible and can be used, copied,
transformed and distributed without the requirement of payment or authorization by an
intellectual property rights-holder. The public domain is the basis for further creation and
innovation.
◊ Ripping - Ripping (also referred to as digital audio extraction) is the process of copying the audio
or video data from one media form, such as DVD, HD DVD, Blu-ray or CD, to a hard disk. While
the original media is typically digital, the extraction of analog media such as VHS video or vinyl
records to a digital format can also be referred to as "ripping".
◊ Spyware - Spyware is computer software that collects personal information about users without
their informed consent. The term, coined in 1995 but not widely used for another five years, is
often used interchangeably with adware and malware (software designed to infiltrate and damage
a computer respectively). Personal information is secretly recorded with a variety of techniques,
including logging keystrokes, recording Internet web browsing history, and scanning documents
on the computer's hard disk.
◊ Software - Software, or programme, enables a computer to perform specific tasks, as opposed to

the physical components of the system (hardware). This includes application software such as a
word processor, which enables a user to perform a task, and system software such as an operating
system, which enables other software to run properly, by interfacing with hardware and with other
software or custom software made to user specifications.
◊ Source code - source code is any sequence of statements and/or declarations written in some
human-readable computer programming language.
62 Research Papers
◊ Sui generis - a Latin expression, literally meaning of its own kind/genus or unique in its
characteristics. In reference to law, it is the creation of a special set of rules for a particular subject
matter outside of general civil or criminal law.
◊ Webcasts - Webcasting is sending audio and/or video live over the Internet. In essence,
webcasting can be thought of as broadcasting over the Internet.
◊ Website - A collection of linked webpages, which are a representation of information combining

text and images suitable for the World Wide Web and accessed through a web browser such as
Internet Explorer. Web pages may be retrieved from a local computer or remotely over a network.
◊ World wide web - a system of interlinked, hypertext (linked) documents that runs over the
Internet. With a Web browser, a user views Web pages that may contain text, images, and other
multimedia and navigates between them using hyperlinks.

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RESEARCH PAPERS

TOWARDS A DIGITAL AGENDA FOR DEVELOPING

In August 1995 the South Centre was established as a permanent inter-

EXECUTIVE SUMMARY ......................................................................................................................... ix

II. A COPYRIGHT PRIMER ............................................................................................................... 3

III.1 What is Digital and Internet Content? ................................................................................ 6

III.2 The Uses of Digital and Internet Content ........................................................................... 9

IV. THE POLICY PROBLEM OF DIGITAL AND INTERNET CONTENT .................................................. 16

IV.1 The Problem of Quality...................................................................................................... 16

V. THE RIGHTS-HOLDER POLICY RESPONSE TO DIGITAL AND INTERNET CONTENT

V.2 The Expansion of Intellectual Property Subject Matter....................................................... 22

V.3 Technological Restrictions on Access and Copying............................................................ 27

VI. TOWARDS A DIGITAL AGENDA FOR DEVELOPING COUNTRIES ................................................. 40

VI.3 The Way Forward for Developing Countries..................................................................... 51

GLOSSARY OF TERMS ................................................................................................................. 59

CDs Compact Discs

CSS Content Scrambling System

DMCA Digital Millennium Copyright Act

DRM Digital Rights Management

DVDs Digital Versatile Discs (formerly Digital Video Discs)

EFF Electronic Frontier Foundation

FLOSS Free/Libre Open Source Software

ICT Information and Communication Technology

GDP Gross Domestic Product

GPL GNU General Public License

HTML HyperText Markup Language

ICTs Information and Communication Technologies

IGCSE International General Certificate of Secondary Education

ISPs Internet Service Providers

LANs Local Area Networks

LP Long Play disk

PDF Portable Document Format

MIT Massachusetts Institute of Technology

NGO Non-Governmental Organization

P2P Peer to Peer

RMI Rights Management Information

SSRN Social Science Research Network

TCO Total Cost of Ownership

TPMs Technological Protection Mechanisms

TRIPS WTO Agreement on Trade-related aspects of Intellectual Property Rights

WANs Wide Area Networks

WCT WIPO Copyright Treaty

WIPO World Intellectual Property Organization

WPPT WIPO Performances and Phonograms Treaty

The paper concludes that:

o selectively extending copyright principles to digital and internet content;

The paper recommends that developing countries implement the following:

• Do not sign TRIPS-Plus, WCT and WPPT provisions on Technological Protection

• Maintain and fully implement existing exceptions and limitations

• Do not extend protection to non-original databases.

o limits on technological protection measures;

The information revolution is possible because of digitization: the ability to translate

II. A COPYRIGHT PRIMER

What can be copyrighted?

How is copyright acquired?

What rights are conferred by Copyright?

What are the exceptions to rights conferred by copyright?

Kingdom and Commonwealth) as well as legitimate use without authorization, indicate

III. THE NATURE AND SCOPE OF DIGITAL AND INTERNET CONTENT

III.1 What is Digital and Internet Content?