Intellectual Property Rights and Infringement

Introduction

Intellectual property is a broad term that designates intangible resources, for instance, literary works, artistic works, and scientific innovations, whose value depends on human creativity and are protected under intellectual property rights. Intellectual property entails all creations resulting from human brain power1. Intellectual property rights aims at rewarding the inventors and promote socioeconomic and technological advancement among countries2. The laws governing intellectual property rights are based on two divergent ideas- the need to promote novelty by appreciating intellectual products and the ability of the public to access and benefit from these products. Therefore, while regulating the spread of new ideas and innovations, the state must make sure that the novel inventions are properly disseminated to the society3.

There are two categories of intellectual property and these are industrial property and copyright. Industrial property encompasses patents, trademarks, business designs, and geographical signs among others. On the other hand, copyright covers literary works, films, music and artistic works. Rights related to copyright include duplication, distribution, performance or display, dissemination and derivation of the original/protected work4.

Intellectual property rights allow the owner or creators to benefit from their own sweat. These rights are drawn under article 27 of the Universal Declaration of Human Rights. Article 27 of the Universal Declaration of Human Rights emphasizes that each and every individual has a right to be protected from moral and material interests as a result of their work or invention. The significance of intellectual property was initially acknowledged in 1883 during the Paris Convention. Paris Convention was aimed at protecting industrial property. Later in 1886, Bern Convention took place and was aimed at protecting literary and artistic works. The Paris Convention and Berne Convention are both overseen by the World Intellectual Property Organization (WIPO)5.

There are a number of reasons why the intellectual property right is being promoted and protected. First, is to improve human capacity and the invention of new technologies. Second, is to encourage the addition of further resources in new innovation. Last but not the least, intellectual property promotion and protection play a major role in economic growth and development. This is because it creates additional jobs and industries, and improves the value and gratification of life6.

Experts argue that an efficient and well-balanced intellectual property system can help economies to achieve greater potential. The intellectual property system acts as a catalyst for GDP growth and the general well-being of the populace. In Addition, a well- balanced and efficient intellectual property system to assist in achieving a balance between the interests of the creators and the general public thus providing an environment where the new innovations or creations benefits everybody in the society7. Intellectual property has now moved to the internet and is being adapted to the online environment. This study will focus mainly on copyright and will explore international agreements related to intellectual property. This paper will also examine copyright legislations especially those related to the internet. Lastly, the paper will explore copyright infringement in the traditional context and in the internet context.

International conventions

There are a number of international treaties related to the intellectual property. The most prominent ones include Paris convention, WIPO copyright treaty, patent cooperation treaty, Madrid agreements, trademark law treaty, Vienna agreement, Locarno agreement, and Rome conventions8. Paris convention was the first global treaty on intellectual property rights. The provisions of Paris convention can be split into four major categories. The first category has substantive rules that protected fundamental property rights in each member state9.

These sets of rules make sure that the foreigners are not only protected but also given equal treatment in the host nations. The rules targeted inventions, trademarks, and other subject matters related to industrial property. The second category established another set of fundamental rules referred to as a right of precedence. The right of precedence gives applicants from a member state right to apply for protection from other member states within a stipulated period. If an applicant wishes to file for applying from all these countries his/her applications are treated as one. The third category defines the two sets of rights and requires that all member states enact laws based on the above rules. The last category deals with administrative structure that helps in executing the convention10.

Berne convention protected literally and artistic works and is the oldest global copyright treaty. The convention was held on September 9, 1886. Berne convention is open to all countries in the world. The treaty; s instrument of ratification is deposited with the director general of WIPO (World Intellectual Property Organization). These conventions have been revised a number of times (after every 20 years) to cope with the challenges of accelerating technological developments. The revisions also aimed at satisfying the administrative and structural needs of developing countries. The objective of Berne convention is to effectively and uniformly safeguard the rights of writers in the literary and artistic works11.

The WIPO copyright treaty is a revised version of Berne convention reached in 1996. The treaty was adopted alongside WIPO performance and phonograms treaty. The WIPO treaty gives individual countries right to enter into agreements with other countries to protect literary and artistic works. WIPO convention gives authors more rights than those provided by the earlier conventions while at the same time strengthening Berne’s convention. In addition, all members of the World Trade Organization (WTO) have signed the associated trade related aspects of intellectual property agreements which are also known as the ‘TRIPS’ agreement. ‘TRIPS’ agreement obligates member countries to amend or enact new copyright laws to conform to WIPO conventional.

Copyright legislation in UAE

UAE is a member of World Trade Organization and that means they have signed the TRIPS agreement. The country’s copyright law was enacted in 2002 and is entitled Federal Law No. 7 of 2002 (UAE copyright law). The law pertains to copyright and bordering rights12. Article 3 of the UAE copyright law corroborates the fundamental belief that the law protects more than just idea expression. In addition, the sale of copyright materials, for instance, books and music disks among others do not transfer the economic/financial right but only the right of ownership of that particular material. Article 2 of the UAE copyright law defines the copyright subject matter which is similar to scores of other nations13.

The copyright subjects covered under UAE copyright law are books: software, database, lecture notes and speeches, musical and dramatic works, audio and visual works, structural designs, photos, maps, artistic works, and derived works. The above subject matters subject to article 18 (sound recordings, article 19 (broadcasts) and article 17 (performances). Economists and moral rights are covered under article 1 and article 7 of the law. The exclusive economic rights include the right of the author to grant licenses for reproduction, broadcasting, translation, renting, and publication. The moral right is given the author authority to withdraw their work from distribution if there are reasons to justify the restriction14.

Copyright legislation on the Internet

The emergence of the internet and the expansion of online services, for instance, World Wide Web, email and file transfer protocol server, copyright laws in many countries have experienced numerous challenges15. Internet service along with other digital technologies has made it very easy to reproduce and disseminate materials that are copyright protected without compromising the quality and at no cost. In addition, given the innovative nature of the internet users it is very difficult to avert such situations. Therefore, the internet has become a perfect spot for copyright piracy where people access music files, recorded videos, literary and artistic works illegally or without licence from the right holder16.

United Arab Emirates is among the countries in the Middle East that are in the front position in digital technologies. It’s the most highly connected countries in terms of internet in the Middle East. The country boasts of over 2.5 million internet users as of June 2011. According to UAE internet multimedia this is about half of the country’s population17. However much of the material these population accesses from the internet they are subjected to copyright legislation and are owned by individuals or organizations. The development of internet and digital content has made UAE more aware of the significance of copyright to modernism. Article 2 to the UAE copyright law lists 12 types of copyright materials to be safeguarded. These materials include internet and digital content among others. However, the country has no specific copyright law dealing with internet and digital materials. Article two is far reaching effect on the internet and digital materials ranging from electronic communication, library production among others18.

The chapter in article 2 that focuses on the internet and digital content is based on WIPO internet treaty signed in 1996. However, the chapter provides room for readjustments. As much as it emphasizes on copyright protection the chapter also gives the right of reproduction. The right of reproduction is defined in the chapter as exclusive right to permit or forbid any form of reproduction of the original work. The right of reproduction falls under the right of a copyright owner. Reproduction occurs in the following acts: recording of digital materials to be transmitted to the server, cashing on recorded materials, retention of the recorded materials on the server and other storage devices. Reproduction can also take place when digital contents are copied to another medium, for instance, CDs, memory Cards, and flash disks19.

Therefore, all activities carried on in the internet are subject to the exceptional right of reproduction. In other words, activities such as uploading, transmission, downloading and viewing of internet content are subject to the exceptional right of reproduction according to the UAE copyright law. This is only applicable when these activities are linked to copyrighted work. As a result, an individual should have an overt or inherent consent of the copyright holder to reproduce the materials besides the compensation20.

The Chapter also defines on demand availability right. This right originated from the public communication right available in the EU copyright laws21. On demand availability right is the exclusive right given to the copyright holder to make a work accessible to the public under his/her own terms. This right was created to protect on-demand services. On demand availability right differ from right of reproduction in that the latter deals with internet materials while the former focuses on communication mechanism used, for instance, transmission through server or network and accessibility to the end users22.

The expansion of public communication right too has considerable impact on the internet users’ rights and obligations. For instance, the application of the on-demand availability right has led to considerable intervention in the private spheres. Copyright holders with the assistance of the digital rights system have the power to regulate access and flow of their work on the internet. They can also control commercial and non-commercial activities related to their work23.

Nonetheless, there are copyright exceptions for the internet users in the UAE. These exceptions are highlighted in article 3 of the UAE copyright law. Copyright exceptions have developed simultaneously with another copyright principles. As much as the copyright laws focus on protecting the rights of the authors, they must also take into consideration the importance of knowledge/information creation, dissemination and sharing to the society at large24. Therefore, UAE copyright law just like the EU copyright regulations has been struggling to strike a balance between the sides of the coin. Some of the copyright exceptions are exclusive to UAE since WIPO internet treaties never reached a consensus on the subject and as a result left it to the discretion of the lawmakers of individual countries. However, most of the copyright exceptions are universal. Internet copyright exceptions in the UAE include reproduction for individual uses, scientific and academic objectives, and information for social purpose25.

Copyright infringement in the traditional context

Copyright infringement is the unofficial use of copyright protected materials or work. It involves unauthorized duplication, distribution, performance or display, dissemination and derivation of copyrighted works26. Copyright infringement can also be defined as the unauthorized duplication intellectual property without the official consent of the copyright holder (creator, author, and publisher)27.

Traditionally, copyright infringement was equated to theft or piracy of the original works. Copyright infringement was labelled as piracy even as early as the 16th century. In the early 16th century a London stationery company received a royal charter giving it exclusive rights in the publication. Anybody who violated the royal charter was labelled as a pirate. Therefore, the term piracy has always been used to refer to unauthorized duplication, circulation and selling of copyrighted works28.

Article 12 of Berne’s convention refers to the term ‘piracy’ in relation to copyright violation. The article states that “pirated works may be seized on the process of importation to member countries where the original works enjoy legal protection”. Article 61 of the TRIPs agreement defines criminal procedures and sentences on copyright piracy on a commercial level. Therefore, traditionally piracy is used to refer to copyright infringement deliberately committed for commercial purpose. However, in the current digital and internet era piracy is used to describe online copyright violation which includes file sharing networks among others29.

Copyright infringement is also referred to as theft. This is because it denies copyright holders their legal right or possession. For example, in a case between Dowling versus the United States, the pirated phone records were not considered as stolen property. The court argued that the possession of phone records did not infringe the exclusive rights of the copyright holder. Therefore, not all pirated materials are considered stolen unless the exclusive rights of the owner are infringed30.

Generally, the responsibility of enforcing copyright has been left to the copyright holder. Article 50 of TRIPs convention emphasizes injunction and the destruction of the pirated materials. It also stresses on the compensation of the copyright holder. However, many current copyright holders are demanding state protection and enforcement of copyright law through vigorous policing of copyright piracy and theft. They also call for states to offer criminal sanction to all forms of copyright violation and pursuance of such cases through the administrative process instead of courts as stipulated in TRIPs agreement Cases of internet infringement are still subject of debate and numerous court cases involving the subject are yet to be resolved 31.

Copyright infringement in the internet context

Recent technological advancements have, for instance, compression of music and videos and faster internet connections have enhanced storage and distribution of works more economically and lucrative. Nonetheless, these advances in technology have also made acts of piracy or copyright infringement more efficient and profitable. It is no surprise that online piracy is among the fastest growing form copyright infringement and the thorniest to monitor32. As a result, many governments including UAE have been struggling to find new ways of coping up with the new copyright challenges brought up by technological advancements33.

The main stakeholders in matters of online piracy include the government, copyright holders, copyright infringers, and the clients. Internet piracy culprits may take the form of brokers, purchasers, sharers, or down loaders. The activities of these culprits may take the form of a commercial benefit, distribution of pirated copies to gain fame, or just sharing free music and videos34. Whatever the motive or intent, the copyright policymakers are obliged to come up with ways of averting and punishing the culprits especially the copyright violators. Advancement in technology has turned piracy into a very lucrative venture because of increased internet accessibility and software developments35.

The three most commonly pirated materials through the internet in United Arab Emirates (UAE) include music files, software, and movies. However, most literatures on internet piracy focus a lot on infringement transaction that takes place through the internet. Most of these transactions do not entail monetary transaction by a barter kind of trade. In other words, exchange of one pirated material for another36.

There is a major difference between copyright violation and many other types of offences. Even though piracy of copyright materials, works are in some ways the same as the conventional crimes, they also differ because enforcement and coordination of anti-piracy normally involve the copyright holder and the government. While the copyright holder may help to find a number of remedies, for instance, market solutions, government action is paramount (legal solution)37.

The legal solutions normally entail statutes that are intended to criminalize copyright infringements. Market remedies entail technological apparatus that gives the copyright holder’s power of their work, for example, copy-protection software and availing of legal ways of acquiring copyrighted materials/works like buying music files through the internet. In summary, advancement in technology has not only enhanced control over copyrighted materials through a number of technological measures, but they have also assisted the copyright holders to efficiently monitor and report violators38.

A number of solutions that have been used by some copyright holders to avert internet piracy have been relatively successful, but others have failed. Most of them have been working very hard to find these solutions. However, governments (including UAE government) have based their measures on general deterrence and marginal deterrence theories to fight copyright infringement39. They tend to depend mostly on fines and incarceration to avert copyright violation. Nonetheless, both the government and the copyright holders have been working arduously to enhance information access with regard to copyright violation and probable consequences of such violations. They have also tried to restructure social norms by educating the public on the importance of copyright laws in different arenas40.

However, the fact that most culprits are never prosecuted for internet copyright infringement in addition to very high legal penalties that are hardly ever applied, government’s deterrence methods have proved to be ineffective. Technological protections used by most copyright holders have been in some way helpful, but are easily dodged by internet hackers. Introduction of Digital Millennium Copyright Act (DMCA) and No Electronic Theft (NET) Act have proved to excel in averting such circumvention. Nonetheless, a lot still needs to be done to protect copyrighted works on the internet41.

Conclusion

Intellectual property entails all creations resulting from the use of brain power. Intellectual property rights aims at rewarding the inventors and promote socioeconomic and technological advancement among countries. The promotion and protection of intellectual property right can be traced back to the 19th century when the two most important international treaties (Paris Convention and Berne Convention) related to intellectual property rights were drafted.

Paris convention emphasized on the protection of industrial property while Berne’s convention focused on copyright. The rest of the global treaties related to intellectual property have simply been the improved version of the two. In United Arab Emirates (UAE) copyright law was enacted in 2002 and is entitled Federal Law No. 7 of 2002. This was due to the fact that UAE became a member of World Trade Organization which required all member states to sign TRIPs agreement. The law encompasses both copyright and bordering rights. The UAE copyright law also covers economic and moral rights. There is no specific internet copyright legislation in UAE. However, this is well taken care of in article two of the country’s copyright law.

The greatest challenge in the promotion and protection of intellectual property right is copyright infringement. This has been facilitated by recent advances in information communication technology which has enhanced storage and distribution of works more economical and lucrative. For that reason, various governments including UAE have been striving to find new ways of coping up with the new copyright challenges resulting from the technological advancements. Most of them have based their measures on general deterrence and marginal deterrence theories to fight copyright infringement. These measures rely mainly on penalties and incarceration to avert copyright infringement. Technological protection used by most copyright holders has been easily circumvented. However, with the introduction of Digital Millennium Copyright Act (DMCA) and No Electronic Theft (NET) they have been able to minimise copyright piracy. Nevertheless, a lot need to be done to do away with this vice.

References

Ali, DA, Copyright and Knowledge Advancement: A Case Study on the UAE Copyright Law, UAE University Press, Abu Dhabi, 2007.

Anita, BF, ‘Copyright Infringement in the Internet Age-Prime Time for Harmonized Conflict-Of-Laws Rules’, Berkerly Technology Law Journal, Vol. 24, 2009, p. 856-895.

Brian F & Rami O, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.

Dowling versus United States (1985), 473 U.S. 207, pp. 217-218.

Rebbecca PB, ‘Copyright and Organizing the Internet’, Library Trends, vol. 52, no. 2, 2003, pp. 307-317.

Robin A, Copyright Infringement and the Internet: An Economic Analysis of Crime, University of Boston Press, Boston, 2005.

UAE Copyrights and Neighbouring Rights Law No. 7, 2002-Copyrights, Neighbouring Rights, and Its Implementing Decisions.

WIPO, What is intellectual property? World Intellectual Property Organization, inc., Geneva, Switzerland, 2011.

WIPO Intellectual Property Handbook, Chapter 5-International Treaties and Conventions on Intellectual Property. International Bureau of WIPO, Washington, DC, 2002, pp. 240-364.

Footnotes

  1. WIPO, What is interllectual property? World Interllectual Property Organization, inc.,Geneva, Switzerland, 2011.
  2. WIPO, p. 3.
  3. WIPO, P. 5.
  4. Butler, RP, ‘Copyright and Organizing the Internet’, Library Trends, vol. 52, no. 2, 2003, pp. 307-317.
  5. WIPO Interllectual Property Handbook, Chapter 5-International Treaties and Conventions on Interllectual Property. International Bureau of WIPO, Washington, DC, 2002, pp. 240-364.
  6. WIPO, p.4.
  7. Abdullah, AD, Copyright and Knowledge Advancement: A Case Study on the UAE Copyright Law, UAE University Press, Abu Dhabi, 2007.
  8. WIPO Interllectual Property Handbook, Chapter 5-International Treaties and Conventions on Interllectual Property. International Bureau of WIPO, Washington, DC, 2002, pp. 240-364.
  9. WIPO Interllectual Property Handbook, p. 241.
  10. WIPO Interllectual Property Handbook, Chapter 5-International Treaties and Conventions on Interllectual Property. International Bureau of WIPO, Washington, DC, 2002, pp. 240-364.
  11. WIPO Interllectual Property Handbook, p. 243.
  12. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  13. Abdullah, AD, Copyright and Knowledge Advancement: A Case Study on the UAE Copyright Law, UAE University Press, Abu Dhabi, 2007.
  14. UAE Copyrights and Neighboring Rights Law No. 7, 2002-Copyrights, Neighboring Rights, and Its Implementing Decisions.
  15. WIPO, What is interllectual property? World Interllectual Property Organization, inc.,Geneva, Switzerland, 2011.
  16. R Andrews, Copyright Infringement and the Internet: An Economic Analysis of Crime, Universty of Boston Press, Boston, 2005.
  17. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  18. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  19. R Andrews, Copyright Infringement and the Internet: An Economic Analysis of Crime, Universty of Boston Press, Boston, 2005.
  20. Abdullah, AD, Copyright and Knowledge Advancement: A Case Study on the UAE Copyright Law, UAE University Press, Abu Dhabi, 2007.
  21. Abdullah, AD, Copyright and Knowledge Advancement: A Case Study on the UAE Copyright Law, UAE University Press, Abu Dhabi, 2007.
  22. Abdullah, p.6.
  23. Abdulla, p. 7.
  24. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  25. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  26. AB Frohlich, ‘Copyright Infringement in the Internet Age-Primetime for Harmonized Conflict-Of-Laws Rules’, Berkerly Technology Law Journal, Vol. 24, 2009, p. 856-895.
  27. R Andrews, Copyright Infringement and the Internet: An Economic Analysis of Crime, Universty of Boston Press, Boston, 2005.
  28. Fitzgerald & Olwan, p. 5.
  29. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  30. Dowling versus United States (1985), 473 U.S. 207, pp. 217-218.
  31. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  32. R Andrews, Copyright Infringement and the Internet: An Economic Analysis of Crime, Universty of Boston Press, Boston, 2005.
  33. Abdullah, AD, Copyright and Knowledge Advancement: A Case Study on the UAE Copyright Law, UAE University Press, Abu Dhabi, 2007.
  34. Andrews, p. 25.
  35. RP Butler, ‘Copyright and Organizing the Internet’, Library Trends, vol. 52, no. 2, 2003, pp. 307-317.
  36. R Andrews, Copyright Infringement and the Internet: An Economic Analysis of Crime, Universty of Boston Press, Boston, 2005.
  37. Andrews, p. 26.
  38. WIPO, What is interllectual property? World Interllectual Property Organization, inc.,Geneva, Switzerland, 2011.
  39. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  40. B Fitzgerald & R Olwan, Copyright and innovation in the Digital Age: The United Arab Emirates (UAE), United Arab Emirates University Press, Abu Dhabi, 2010.
  41. R Andrews, Copyright Infringement and the Internet: An Economic Analysis of Crime, Universty of Boston Press, Boston, 2005.