Journal of Intellectual Property RightsVol 7 January 2002 pp 50-57

The Subtle Inequalities of Copyrightt .!

Philip G AltbachBellagio Publishing Network (Bellagio Research and Information Centre)

The Jam Factory, 27 Park End Street, Oxford, OXl lHU,England

(Received 25 October 2001)

The paper discusses in detail the copyright provisions in TRIPS Agreement, effectsof technological advances on copyright, responsibility of copyright holders, and stepsto be taken to help developing countries gain access to the world's knowledge andbuild up their own publishing industries.

Copyright is well entrenched in interna-tional publishing, and yet it faces significantchallenges. On the surface, copyright hasnever been stronger. The concept is increas-ingly accepted worldwide, and even thoseThird World countries, such as India, thatargued against the inequalities of the inter-national copyright system in the 1960s havelargely ceased their carping. Even China hasjoined the international copyright system.While piracy has not ended, it has goneunderground in all but a few countries. Mas-sive pressure from the United States andBritain has brought such former pirates asKorea, Taiwan, and Singapore into the fold.Perhaps most important, the concept of

copyright is almost universally accepted bygovernments and by those involved in thebook trade worldwide.

Copyright has been strengthened by stronggovernmental pressure from the major pub-lishing countries and from the legal systemsin these countries. Copyright has been seenas much as a means of protecting trade ad-vantages as it has as a basic concept ofknowledge distribution. The highly industri-alized countries have been concerned aboutthe loss of 'knowledge products' of all kinds(ofwhich books are only a very minor part)because these losses contribute to ever-growing negative trade balances.

+Reproduced with permission from CopyrightBulletin, 31 (4) 1997,7-14.

ALTBACH:THESUmrrEINEQUAUUESOFCOPYIDGHTThe fact that printed word, which is the

concern of this article, has been lost in thecompaign to protect profits on computersoftware, compact discs, films and otherproducts is a problem for both publishersand readers, since books and journals pre-sent special circumstances that require at-tention. Further, the courts have beenincreasingly zealous in their protection ofcopyright and the prerogatives of the own-ers of knowledge products. For example, inthe United States, the courts have narrowlyconstrued copyright regulations in favor ofpublishers and against those who haveclaimed 'fair use' in reproducing materialsfor academic purposes. These rulings havesignificantly increased the power of copy-right- owners.GAlT, World Trade Organization andIntellectual PropertyThe negotiations over the trade-related as-pects of intellectual property in the frame-work of GATT (General Agreement onTariffs and Trade) has further entrenchedcopyright. Intellectual property-the TRIPS·(Trade-Related Aspects of Intellectual Prop-erty Rights) Agreement-is a central part ofwra, and wro enforcement arrangementsnow join those of the Berne Convention forthe Protection of Literary and ArtisticWorks and the Universal Copyright Conven-tion. The products of the mind are consid-ered as commercial property, to be boughtand sold in the marketplace. Few see anydifference between knowledge products andany other commodity. GATT enshrines theidea that those who bring knowledge prod-ucts to the marketplace should be able tocompletely control them.It is time to take a step back from rampantcommercialism to examine the complexworld of copyright and the distribution ofknowledge. There is, in reality, a difference

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between a Mickey Mouse watch, a Holly-woodfilm, or even a computer software pro-gram, on the one hand, and a scientifictreatise, on the other. Textbooks, technicalreports, and research volumes are subject tothe same copyright regulations as a novel byJames Clavell.Those who control the distri-ubtion of knowledge treat all intellectualproperty equally-and are perfectly happyto deny access to anyone who cannot pay.The legal structures set up to protext intel-lectual property benefit the owners. There isno consideration of the user. The attitudeseems to be: no pay, no play.

But even in the marketplace of intellectualproperty, there was room for negotiationduring the GATT deliberations. The Frenchsuccessfully argued that there should belimitations on the free flow of American cul-tural products to Europe because of a fear ofinundation by Disney and Rambo.· TheFrench had influence, and a compromisewas reached. There are, thus, some "non-market" restrictions allowed in GATT. Butno such compromises were permitted forthose countries that depend on knowledgeproducts from the industrialized nations andcannot afford to pay the going rates for them.There are no provisions in place to ensure

: that developing countries can have access tobooks and other knowleedge products.

As it stands, TRIPS Agreement is a bluntinstrument, which will inevitably work to thedisadvantage of poor nations in terms ofaccess to knowledge. Modifications in thecurrent straitjacket imposed by GATT andby the copyright treaties does not mean arejection of free trade or the idea of a globalmarket-based economy.

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Technological Challenges

Ye-t, all is not secure in this era of narrowlyconstrued copyright. Perhaps the greatestchallenge to traditional copyright is technol-ogy. Every new technological advancebrings a l1urry of litigation and efforts bycopyright owners to limit access to new tech-llologics until their rights can be fully pro-tedccl. The most recent example of this wasthe fight over digital audio tape (DAT) tech-nolngy. The widespread dissemination olJ )AT was held up for several years while theproducers of DAT machines and the ownersoj cOjJ;,Tighl (mainly the recording compa-nics) struggl('d over how to ensure thatcopyri,~h( OW!H:TS would be protected. Pho-tocopier" have posed a continuing challenge'to copyright owners and, while the courtshave consistently ruled in favor of the pub-lishers, the battle lines arc forever changingas new and more sophisticated rcprographictechnologies arc introduced. Data networksare also it new area of contention for copy-right holders. How can knowledge productsbe controlled in an era of instantaneous COI11-munication through computer-based net-works?

Currently, the most perplexing issues relateto computer programs, computer-basedcommunications networks such as the In-ternet, and related technological spin-offs,Owners, in this case software companies,data base operators and the like, are con-cerned that the ownership of such innova-tive technologies be clear, and that nonsanctioned use be prohibited and punishedwhere it occurs. 'I11e TRIPS Agreement hasbeen among the most debated topics in theGAlT negotiations. While books and othertraditional knowledge products are hardly atthe frontier of technology, they have beenswept up in the campaign to strengthen own-ership.

Recent Debates

It is significant that these battles are overtechnological innovations. The debate overcopyright principles raged in the 19()()s and1970s over issues relating to the appropriate-ness of control over knowledge and whatresponsibilities the rich countries had tohelp build up the educational and scientificsystems of the newly developing nations olthe Third World.Few argued for the aboli-tion of copyright but many felt that knowl-edge should be shared more freely and thatthe industrialized nations, in part because oftheir earlier colonial domina! ion of the ThirdWorld, had special responsibility to assist inthe process of development. Some chargedthe industrialized countries wit 11 purposelymaintaining tight control over knowledgeproducts in order to keep the Third World ina dependent relationship and to maximizeprofits. In the ideologically charged Cole!War era, charges of neocolonialism wereleveled against the major Western COUll-tries, and many argued that Western policieswere aimed at continuing domination ratherthan assistance. UNESCO, through its advo-cacy of a 'new world information order,weighed in on the side of the Third Worldcritics, enraging Western governments andcontributing to the withdrawal of the UnitedStates and Britain from the organization.

It was said, for example, that Western pub-lishers preferred to export relatively smallnumber of books to the Third World ratherthan grant reprint rights because more prof-its could be obtained from direct exports.Some claimed that the foreign aid programsof such countries as France, Britain and theUnited States were aimed at exportingbooks and ideas rather than at encouragingindigenous development in Third Worldcountries.

ALTBACH:THESUBTLEINEQUALnlESOFCOPYmGHTThe vociferousness of the debates hasabated, but the issues remain importantMost realized that the issues were notmainly ideological in nature and are highlycomplex. India, one of the main critics of thetraditional copyright system, found itselfemerging as a major producer of books and,not wanting to harm its future export mar-kets, shifted its posture on copyright issues.Most realized that anarchy in the knowledgebusiness would serve no one's long-terminterests and that a workable copyright sys-tem is necessary and international coopera-tion a good idea. With the slow windingdown of the cold war, most realized the slo-gans could not change reality. Countriesthat stood outside the copyright system, in-cluding the Soviet Union and China, slowlyjoined it.

Patterns of InequalityYet, it is important to realize that the interna-tional knowledge system is highly unequal,and it can be argued that those who are incontrol of the system-and specifically copy-right arrangements-have a special respon-sibility to assist in the intellectual andeducational development of the ThirdWorld. There is a kind of OPEC of knowl-edge in which a few rich nations and a smallnumber of multinational publishers have agreat deal of control over how and wherebooks are published, the prices of printedmaterials, and the nature of internationalexchange of knowledge.1 These sameforces tend to dominate the new informationand knowledge dissemination technologies.Because the knowledge infrastructures arelocated in these countries, there is a kind ofmonopoly that has been difficult to break.

And because knowledge is not a finite natu-ral resource but is infinitely expandable,there is the possibility of more countries

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becoming members of the cartel. Therehas, in fact, been relatively little expansionin the number of knowledge producingcountries - and the price of entry into thecartel increases as the cost and complexityof knowledge production goes up.Copyright, from its beginnings in England inthe sixteenth century, has been a means ofprotecting the "baves"-oflimiting access tobooks and information in order to maintainorder and discipline in the trade-of creat-ing a monopoly over knowledge. There are,of course, very good arguments in favor ofcopyright. These include the principle thatthose who create and disseminate knowl-edge and knowledge products should eco-nomically benefit from these creations andthat the creator should maintain some basiccontrol over the creation. Also inherent inthe idea of copyright is that intellectual crea-tivity should also benefit society-this is in-deed the underpinning of copyright asexpressed in the American Constitution.

The Responsibility of Copyright

Along with power, and copyright bestowsconsiderable power on the copyright holder,comes responsibility. For the most part,those who hold most of the world's copy-rights and who also control the internationalcopyright system have been largely con-cerned with power-with main- taining con-trol over their copyrights and withmaximizing their economic benefits. Copy-right is seen in purely legal and economicterms. There is virtually no recognition thatthere are inherent non economic factors in-volved in copyright and that those who holdpower now have a responsibility to assistthose who do not have access to the world'sknowledge.

54 J INfEUEC PROP RIGHTS, JANUARY 2002

Copyright, after all, is a moral and ideologi-cal concept as well as a legal and economicone. There is no recognition that the legacyof colonialism and the power of the multina-tionals has, to a significant extent, createdthe current highly unequal world knowl-edge system. It is, of course, much easier forthe "haves" to cling to the economic andlegal underpinnings of a system that hasgiven them a virtual monopoly over theworld's knowledge products than to recog-nize that we live in an interdependent worldand that the Third World desperately needsaccess to knowledge and technology. In thecurrent context, it is unlikely that those whoneed access to knowledge most will be ableto obtain it "at current market rates" anytime soon. What is needed now is affirmativeaction to ensure that books and other knowl-edge products are not kept from ThirdWorld nations because of the restrictions ofthe copyright system. Copyright holdersmust now spend as much time thinkingabout the needs of Third World readers asthey do about maintaining market share. Inthe broader scheme of things, providing theassistance that is needed to the Third Worldwill not cost very much. Indeed, in terms ofcopyright, what is needed is largely accessto permissions, rights, and a very smallamount of market share.

A necessary first step is increased con-sciousness of the complex issues relating tothe world's knowledge system and the roleof copyright in it and a recognition that abroader perspective is needed. A modestamount of economic sacrifice may also berequired along with some inconvenience.Copyright must not be seen in isolation fromissues of access to knowledge, the needs ofThird World nations and the broad historyof colonialism and exploitation. It is not pro-ductive to point fingers or assess blame for

past inequities. Rather, we must quicklymove toward copyright arrangements thatwill maintain the copyright system while atthe same time permit flexibility so that theneeds of the "have nots" can be metThe needs are indeed great-and they arenot limited to the poor countries of the de-veloping world. For example, Moscow'sfamed Lenin libraty is no longer purchasingany scientific journals from the West be-cause there is no allocation of 'hard cur-rency' funds. Few, if any, other libraries oracademic institutions in the former SovietUnion are able to obtain access to key booksand journals in the current circumstances.The situation is even more desperate formany sub-Saharan African countries, wherepurchases of books and journals fromabroad ceased several years ago because oflack of funds. Some countries lack the facili-ties to produce many kinds of books andmust rely on supplies from abroad. Thesecountries, and the number is depressinglylong, are probably in more desperate neednow than a decade ago. The end of conflictsin such countries as Cambodia, Laos,Uganda, Angola, Ethiopia, and others haspermitted them to turn their attention to therebuilding of educational and library sys-tems-and there is a desperate need forbooks of all kinds as well as for the equip-ment and expertise to build up indigenouspublishing capacity. Economic crisisthroughout Africa has created specialneeds- exacerbated in some ways by theemergence of fledgling democratic regimesin some countries that must improve thelives of their citizens if they are to survive.Books are a small but highly visible way ofmaking such improvements. Further, ac-cess to knowledge may help to build up acommitment to democratic ideals. Coun-tries in the former Soviet Bloc, from Mongo-

ALTBACH :1lIE SUBTI.E INEQUAlITIES OF COPYRIGHT

lia and Vietnam to Czechoslovakia and Bul-garia, need speedy access to the world'sknowledge, having been cut off from much

.of it for almost a half-century.

The specific needs vary greatly. In somecases, access to scientific journals and booksat subsidized prices for a limited periodwould help greatly . In others, local publish-ers with limited markets need easy and inex-pensive access to foreign books in order totranslate them into the local language. In adifferent context, permission to reprintbooks from the. industrialized countries inthe original language is needed to serve an

"\ indigenous population literate in English orFrench but unable to pay the high cost ofimported books. And for some countries,most of the elements of an indigenous pub-lishing industry are missing and there is aneed to build it up from scratch. Copyrightmay not be the key element in all of thesecircumstances, but it does playa role.

Responsible world citizenship with regard tocopyright is unlikely to be extraordinarilycostly. Countries and publishers that re-quire special assistance on copyright issuesare unlikely to be major customers in anycase-markets tend to be small and pur-chasing power very limited. Yet, there willbe some costs involved. Export sales may bemodestly reduced and income from the saleof rights foregone or limited. There may alsobe some tdministrative costs for industrial-ized country .publishers. But the long-termbenefits might well outweigh the immediatecosts and inconvenience.A self-sufficientbook industry in a Third World country islikely to be a better partner, and in the longterm a better customer as well, than would aweak and demoralized publishing commu-nity. Further, as the Indian case has shown,self-stifficient publishers tend to be support-ers of copyright because they see adherence

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to copyright in their best interestlt may beworth recalling that copyright compliancecomes natu-rally with economic and socialdevelopment One of the most egregiousviolators of copyright in the nineteenth cen-tury was the United States, which felt, prob-ably incorrectly, that it could build up itsdomestic publishing industry most effec-tively by freely reprinting works fromabroad while protecting the rights of domes-tic authors. Once American publishing waswell developed, the United States became adefender of copyright Until the 1960s, theSoviet Union had a similar perspective-in-ternational copyright was violated as thecountry used knowledge from abroad for itsown purposes. China has had a siniilar per-spective up to the 1990s and has only re-cently joined the international copyrightsystem. Nations must see copyright as intheir best national interests before then be-come fully supportive of it

.T" .

What Can be Done?

There are a number of steps that can betaken to help developing countries gain ac-cess to the world's knowledge and also buildup their own indigenous publishing indus-tries. None require a violation of the basicprinciples of copyright and, in the long run,will strengthen it because more countrieswill see it in their best interest to supportcopyright There must be a recognition thatall knowledge products are not the same,and that while it may be justified to insist oncommercial terms for Nintendo games,some flexibility for scientific materials, text-books and the like is apprpriate. The ownersofknowledge must modify their purely profit-oriented approach to certain segments ofthe knowledge industry. Permissiveness incopyright relations in the short run mayyield more profits in the long run for owners.

56 J INTELLEC PROP RIGHTS, JANUARY 2002

For example, a publisher may obtain lessmoney by licensing a book for a local editionin Africa or a translation in Asia than byexporting copies. In the long run, however,a viable domestic publishing industry and aleterate public will buy ever increasing num-bers of books.The idea of compulsory licensing-provid-ing to Third World countries the automaticright under some very limited circum-stances to reprint or translate Westernbooks with the payment of reduced fees-was pressed by developing countries and ledto revisions of the Berne and the UniversalCopyright Convention in 1971.However, therevised text introducing compulsory licens-ing is so complicated that in more thantwenty-five years since its adoption it hashardly been applied. Compulsory licensingshould be very simple, permitting ThirdWorld publishers quick access to relevanteducational and scientific materials by per-mitting them to reprint or translate materialsfor educational and a few other uses.The Third World publisher would be re-quired to inform the copyright holder andprovide some payment-often at below-mar-ket rates. Such an arrangement would re-move much of the bureaucracy from thesystem and would also permit readers indeveloping countries to have access toknowledge from abroad fairly quickly. Oneof the common complaints from ThirdWorld publishers is that many Western pub-lishers simply do not respond to requests forreprint or translation rights. Charging feesthat are clearly beyond the ability of ThirdWorld publishers to pay is another commonproblem.In the past decade, the copyright "powers"have used every means available to ensurestrict compliance with both the spirit and theletter of international copyright treaties and

with national copyright laws. One of themost successful tactics used to ensure copy-right compliance has been to link it tobroader trade arrangements. Americancopyright holders, for example, have pres-sured their government to threaten coun-tries who do not enforce copyright with thewithdrawal of trade preferences. Thesethreats had a role in convincing such majorAmerican trading partners to cease mostpirating. Some other countries have nar-rowly avoided severe trade sanctions by theUnited States because of disputes relating topirated software,Cds and related products.The TRIPS Agreement has further linkedcopyright to the world trade system.

While these efforts have yielded some re-sults in terms of immediate compliance, itcan be argued that copyright must be "sold"on its own merits, that it is as much a moralissue as a commercial one, and that makingcopyright hostage to international trade, anarena where developing nations have littleleveragein any case, is in the long run detri-mental to the emergence of a copyright sys-tem based on consensus and mutualunderstanding.

Publishers in the industrialized countriesmust take a long-term view ofworld publish-ing.This means their policies must permitoffering inexpensive access to books andjournals for reprinting and translation.There is a feeling in the Third World thatthese publishers often simply ignore the re-quests of their publishers and institutionsbecause there is little money to be made anddiscussions often become complex andsometimes acrimonious.They must respondpositively and quickly to requests and under-stand the problems faced by the publishersin the developing countries. Joint venturesor cooperative arrangements with indige-nous publishers in the developing countries

ALTBACH : THE SUBTLE INEQUAUTIES OF COPYRIGHT

may help both sides. The publishers from anindustrialized country provide expertise,products, and sometimes capital. In return,access to markets are opened up. Such ven-tures must be on the basis of equality, andautonomy for Third World partners is impor-tant. There are many kinds of joint ven-tures, ranging from a major involvement tocooperation on specific projects. Many in-volve work together on issues relating tocopyright.

The book- trade relationships between theindustrialized nations and the Third Worldare unequal. Books are exported from indus-trialized nations to developing countries.Copyright permissions are requested byThird World publishers and are sometimesgranted by counterparts in the industrializedcountries. There is very little traffic in theother direction. It may be possible to signifi-cantly increase the import of books fromdeveloping countries and thus strengthenThird World publishers significantly. It mayalso be possible for publishers from the in-dustrialized countries to obtain rights toThird World books for publication and dis-tribution in their countries. Because most ofthe world's books are published in the majorindustrialized countries, the unequal rela-tionship will continue, but there may ways ofameliorating it to a modest extent. It is im-portant to keep in mind that what is a modesttransaction to a publisher in an industrial-ized country 'may be a significant develop-ment to a Third World firm.

Conclusions

Copyright is, in a way, symbolic of the rela-tions between the 'haves' and 'have-nots' inpublishing. All the cards are in the hands ofthe publishers from the industrialized coun-

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tries. They control the international copy-right treaties, which were, after all, estab-lished by them and with their interests inmind. These publishers dominate the worldbook trade. The powerful multinational pub-lishers reach into many countries. Govern-ments in the industrialized nations haveplayed the 'trade' card to ensure compliancewith copyright and patent regulations. Whilethe major beneficiaries have been softwareproducts, film companies and the like, bookpublishers have also benefited and havestrongly supported these initiatives. Copy-right is widely respected internationally and,at least for books, is more tightly enforcedthan has been the case in the past.

The time has come to recognize that theproduction of books and journals is morethan a business, and that trade in knowledgeand knowledge products is somehow differ-ent from commerce in automobiles or coco-nuts. Those who control knowledgedistribution have a responsibility to ensurethat knowledge is available throughout theworld at a price that can be afforded bydeveloping countries. I am not advocatingoverthrowing the copyright system, or evenweakening it. I am arguing for a broaderunderstanding of the responsibilities of pub-lishers in a complex and unequal world.Such an understanding will, no doubt, re-quire some rethinking of the relationshipsbetween the knowledge 'haves' and 'have-nots'. In an era of interdependence, this isnot an altogether bad thing. It is likely to becontroversial and perhaps unpopular. Noone with power likes to share it.But if theimmense challenges of Third World devel-opment are to be solved, publishers will haveto playa modest role.