Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed
exclusively by the laws of the country where protection is claimed.” At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.
In short, it is currently uncertain which laws govern which aspects of copyright disputes that involve more than one country. Such disputes are becoming increasingly common. Greater attention to this matter is inevitable. One hopes that such attention will lead to greater clarity.
exceptions and limitations in their nation's copyright laws. If they have any doubts on this score, they should consult a lawyer. The lawyer will provide them advice not just concerning the permissibility of their behavior, but also concerning the sanctions they might face if they are unable to resolve the dispute with the publisher amicably. With the lawyer's aid, they should then decide whether to remove the material at issue from the course materials.
Additional resources
In "Secondary Liability for Copyright Infringement in the US" (http://www.law.columbia.edu/law_school /communications/reports/winter06/facforum1) (2006), Professor Jane Ginsburg provides a good review of the law governing contributory and vicarious copyright infringement.
The Stanford Technology Law Review examines the same subject in "Interpreting Grokster: Limits on the Scope of Secondary Liability for Copyright Infringement" (http://stlr.stanford.edu/pdf/CDT-grokster.pdf) (2006).
Another good treatment of the same subject is Jay Dratler, "A Theory of Secondary Liability for Copyright Infringement" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=872903) (2005).
A shrewd, forward-looking study of secondary liability doctrines with specific reference to filesharing is Guy Pessach, "An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions,"
(http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=924527) 40 Vanderbilt Journal of Transnational Law 87 (2007).
A thoughtful recent statement by the IFLA concerning the copyright system and its impact on libraries can be found Here (http://www.ifla.org/en/publications/statement-by-ifla-at-the-inter-sessional-
intergovernmental-meeting-on-a-development-age) .
Cases
The following judicial opinions explore and apply some of the principles discussed in this module:
Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)
(http://cyber.law.harvard.edu/people/tfisher/1984%20Sony%20Abridged.pdf) (secondary liability) CBS Songs Limited & Others v. Amstrad Consumer Electronics Plc and Anor., House of Lords, 12 May 1988 (http://www.ipo.gov.uk/ipcass/ipcass-legislation/ipcass-legislation-copyact-1956/ipcass-cbs.htm) (secondary liability)
Assignment and discussion questions
Assignment
1. Does your country have a safe harbor limiting service providers’ liability? If yes, please describe the mechanism.
2. Select one activity of your library, describe it and elaborate best practices to avoid copyright
infringement. For example, you might draft a set of guidelines for professors who prepare course packs or a notice to be displayed next to the printing machine or the computers available to patrons.
Discussion Question(s)
1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?
2. Please comment on a few notices of your colleagues. These should be clear and inclusive, but not overbroad.
Contributors
This module was created by Dmitriy Tishyevich. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Peter Jaszi, Colin Maclay, Andrew Moshirnia, and Chris Peterson.
Home
Introduction Course Materials:
Module 1: Copyright and the Public Domain Module 2: The International Framework Module 3: The Scope of Copyright Law
Module 4: Rights, Exceptions, and Limitations Module 5: Managing Rights
Module 6: Creative Approaches and Alternatives Module 7: Enforcement
Module 8: Traditional Knowledge Module 9: Activism
Glossary
The Rotisserie (http://h2o.law.harvard.edu/index.jsp)
Retrieved from "./Module_7:_Enforcement"
This page was last modified on 1 March 2010, at 12:12.
Module 8: Traditional Knowledge
From Copyright for Librarians
Contents
1 Learning objective 2 Case Study
3 Lesson
3.1 What Is Traditional Knowledge?
3.2 What is the Debate About?
3.3 What types of Traditional Knowledge are Most Frequently Used?
3.4 What Kind of Legal Liability Governs?
4 How Individual Nations deal with Traditional Knowledge
4.1 Countries Whose Traditional IP Laws Do Not Cover Traditional Knowledge 4.2 Countries Whose Traditional IP Laws Cover Traditional Knowledge
4.2.1 Protection Despite No Explicit Reference to TCE 4.2.2 Protection Using Explicit Reference to TCEs 4.3 Countries with Sui Generis Traditional Knowledge Laws 5 Regional Codes Governing Traditional Knowledge
5.1 African Regional Intellectual Property Organization (ARIPO) 5.2 African Intellectual Property Organization (OAPI)
5.2.1 Annex VII in the 1977 Bangui Agreement 5.2.2 Annex VII in the 1999 Bangui Agreement 5.3 Common Market of the South (MERCOSUR) 5.4 Andean Community
5.5 Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture
6 International Legal Instruments
6.1 United Nations Declaration on the Rights of Indigenous Peoples (2007) 6.1.1 Article 11
6.1.2 Article 12 6.1.3 Article 31
6.2 WIPO Draft Provisions on Traditional Cultural Expressions/Folklore and Traditional Knowledge (2006)
6.3 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)
6.4 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) 6.4.1 Article 11
6.4.2 Article 8 6.4.3 Article 11 6.4.4 Article 12 6.4.5 Article 25
6.4.6 Article 27 6.4.7 Article 28 6.4.8 Article 31 6.4.9 Article 34
6.5 Trade-Related Aspects of Intellectual Property Rights (1994) 6.6 ILO Convention 169 on Indigenous and Tribal People (1989)
6.6.1 Article 4(1) 6.6.2 Article 5 6.6.3 Article 13
6.7 Berne Convention for the Protection of Literary and Artistic Works (1979) 6.7.1 Article 15(4)
6.8 International Covenant on Economic, Social and Cultural Rights (1966) 6.8.1 Article 15
6.9 International Covenant on Civil and Political Rights (1966) 6.9.1 Article 1
6.9.2 Article 27
6.10 Universal Declaration of Human Rights (1948) 6.10.1 Article 17
6.10.2 Article 27 7 Policy Arguments
7.1 Why Protect TK?
7.2 How Should TK be protected?
7.2.1 Traditional IP Modes of Protection 7.2.2 Absolute Ownership
7.2.3 Negotiation and Mutual Respect 7.2.4 International Human Rights 7.2.5 System of Domain Public Payant 7.3 Why not protect TK?
8 Back to the case study 9 Additional resources
9.1 In General
9.2 Examples of Nation Specific Rules Governing Traditional Knowledge 9.3 Examples of Regional Codes Governing Traditional Knowledge 9.4 International Legal Instruments
9.5 Policy Arguments
10 Assignment and discussion questions 11 Contributors
Learning objective
One of the most complex recent extensions of copyright law involves traditional knowledge. This module first describes the intricate and rapidly changing set of legal rules pertaining to traditional knowledge, and then explores the fierce continuing debate concerning the appropriate scope of protection for this novel topic.
Case Study
Angela is a member of an indigenous community that has a unique tradition of dance. Performances of these dances attract members of other indigenous communities and tourists. Angela calls Nadia when she sees elements of one of the dances in a recently released music video by the American singer, Madonna. Anglea asks whether she has any legal recourse either to stop the use of the dance or to obtain compensation for herself or for her community.