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对文学艺术和科学性作品的伯尔尼公约的保护 第一部分 协议[1] 伯尔尼公约 [2] 菲律宾[3]遵守伯尔尼公约，从而能保护文学，艺术和科学性作品，正如在1948年制定的布鲁塞尔公约在1951年8月1日进行二次修订，伯尔尼公约也在1886年9月9日得到了再次审核，这是在版权领域中的最早的国际性条约。[4] 著作权，作为一种特定类型的知识产权，很久以前就得到了关注，且经过很多年的发展，一直不断地演化进步。值得注意的是，对于国际层次的版权保护在19世纪中期就开始了，以双边条约为基础。“许多提供了互相辨识的权利的这种条约被包括在内，但是他们既不够全面又不拥有一个统一的模块。”[5]缺点太多，留下了太多值得被期望的东西，且逻辑上导致了执法上的问题，引起了运用于不同国家的保护权范围方面的争执。这最终意味着这种改变将会被打败，且有一个必须要寻求的统一性，需要我们去实现。“这种统一体系的需求起始于1986年9月9日” Berne Convention For The Protection Of Literary Artistic And Scientific Works International Law Essay Part One Treaties [1] Berne Convention [2] The Philippines [3] adhered to the Berne Convention for the Protection of Literary, Artistic and Scientific Works, as revised in Brussels in 1948, on August 1, 1951. The Berne Convention, which was adopted on September 9, 1886, is the oldest international treaty in the field of copyright. [4] Copyright as a specific type of intellectual property has been recognized long ago and has evolved through the years. It is important to note that copyright protection on the international level began by about the middle of the nineteenth century on the basis of bilateral treaties. “A number of such treaties providing for mutual recognition of rights were concluded but they were neither comprehensive enough nor of a uniform pattern.” [5] The shortcomings left much to be desired and logically led to problems in enforcement as well as disputes as to the scope of protection as regards the application in varying countries. This ultimately meant that the purpose of the adoption of such was being defeated and there was a realization that a unification must be sought. “The need for a uniform system led to the formulation and adoption on September 9, 1886, of the Berne Convention for the Protection of Literary and Artistic Works.” [6] Although the convention was meant to be the primary agreement on the protection on of copyright, it did not remain a stagnant body of stipulations. Changes have been effected in order to cope with the challenges of accelerating development of technologies in the field of utilization of authors’ works, in order to recognize new rights and also to allow for appropriate revisions of established ones. [7] “As for the preferential provisions for developing countries worked out in Stockholm, these were further taken up at the Paris Revision Conference in 1971, where new compromises were worked out.” [8] 9In other words, “the most important role of the treaty would be as the constitution of a society of states committed to the project of protecting copyright,” [10] rather than as a mechanism for mandating a specific action to be taken. However, it must be noted that “the exceptional movement towards standardization of law has been of major influence upon a union made up of importer, rather than exporter, countries” [11] which creates a slight bias in the latter’s favor. In the end, all the provisions clearly point to one and the same thing. The aim of the Berne Convention, as indicated in its preamble, is “to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works.” [12] Perhaps, this mandate is best put by one author, [13] to wit: [t]he convention thus asserts the principle of an all-embracing protection for the benefit of all productions in the literary, scientific and artistic domain, and in a second assertion, lays down that the mode or form of expression of a work in no way affects its protection… The method employed to make the work is immaterial. It is generally agreed that the value or merit of a work, essentially a subjective value judgment, is also of no account… the same is true for the work’s purpose…. [14] World Trade Organization [15] and the TRIPs Agreement [16] January 1, 1995 marked the birth of the World Trade Organization. It must be noted however, that since 1948, the predecessor of WTO, General Agreement on Tariffs and Trade [17] had already provided the rules for the system. [18] However, GATT did not stagnate and had undergone several changes in accordance with quite a number of negotiations. The last and largest of these, was the Uruguay Round [19] and led to the WTO’s creation. [20] “Whereas GATT had mainly dealt with trade in goods, the WTO and its agreements now cover trade in services, and in traded inventions, creations and designs.” [21] During the Uruguay Round [22] negotiations, the basic premise was “the Berne Convention already, for the most part, provided adequate basic standards of copyright protection.” [23] Thus, it was agreed the benchmark should be based on the latest revision of the Convention: the Paris Act of 1971. [24] This was expressed in Article 9.1 under which Members are “obliged to comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.” [25] However, the TRIPs agreement does not concern itself nor its members with respect to Article 6bis of Berne, particularly provisions on moral rights, or rights derived therefrom. [26] “In addition to requiring compliance with the basic standards of the Berne Convention, the TRIPS Agreement clarifies and adds certain specific points.” [27] One of the more relevant points is that it provides that “computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).” [28] This is a confirmation that computer programs are in fact covered by existing treaties thus meriting protection under copyright. [29] At this point it may be better to take note of the flip-side with regard to the issues tackled by the WTO, including the TRIPs agreement. In an article, [30] J. Michael Finger [31] highlights the possible effects of the stipulations on the less developed countries, which have become signatories. He did not fall short of pointing out that in terms of Intellectual Property Regulation, the WTO agreement on TRIPs covers the seven main areas of intellectual property: copyright, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, and undisclosed information including trade secrets. In each area, “the agreement specifies standards of protection that governments must provide and requires governments to provide procedures to enforce.” [32] This is a basic point, which he emphasizes only to introduce the trouble it can potentially bring. He goes on to assert that: “Because TRIPs builds on international conventions developed in large part by the industrial countries and on the enforcement practices they employ, the default mode for meeting the TRIPs obligations is for the developing countries to copy industrial country intellectual property law. Although legal scholars point out that the agreement allows for the possibility of adopting intellectual property law that is friendlier to users and to second comers, they also point out that the benefit of the doubt is on the side of copying present industrial country approaches (see Reichman 1998). The mandate that the industrial countries have delivered through TRIPs is ‘Do it my way!’ A developing country that opted to develop its own alternative would add to the cost of implementation the cost of developing that alternative plus the cost of defending it — in WTO’s political and legal processes.” [33] World Intellectual Property Organization [34] The 1971 version formulated in Paris was the final revision. The international copyright community traditionally followed the “guided development” strategy, which were: “guiding principles and model provisions worked out by the various WIPO bodies (in the beginning, sometimes in cooperation with UNESCO) offered guidance to governments on how to respond to the challenges of new technologies as well as some new standards (for example, concerning distribution and rental of copies).” [35] This point in time indeed was an important consideration in the beginnings of local legislation in the field of copyright. [36] The passage of time created new regimes and resulted in monumental advances in technology. At the rate of development, the system at that time can no longer cope with the emerging situation. Thus, “the preparation of new, binding international norms began in two forums,” [37] which consisted of experts on the field. After the adoption of the TRIPs Agreement, the preparatory work of new copyright and related rights norms was taken in order to deal with problems not yet addressed. [38] The conclusions made were manifested in two treaties, namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). [39] WIPO Copyright Treaty [40] The WIPO Copyright Treaty of 1996 is a special agreement to the Berne Convention and requires compliance with Berne. This treaty expressly declares that computer programs are protected as literary works. [41] Additionally, there is the right to control rentals of computer programs. [42] In fact, it is recognized that, in “[o]ne of the most software-oriented provisions requires treaty nations to provide adequate and effective protection against the circumvention of technical measures that restrict the ability of others to exercise the rights owned by the copyright owner.” [43] States have become aware that the traditional notions on copyright protection need to be re-examined. These issues [44] were defined and this “digital agenda” was addressed because “it became clear that the most important and most urgent task was to clarify existing norms and, where necessary, create new norms to respond to the problems raised by digital technology, and particularly by the Internet.” [45] In June 1982, it was and agreed that storage of works in an electronic medium is reproduction. Thus: “[t]he reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form.” [46] This statement clarified what the extent of reproduction was in line with the effects of a transforming world in terms of technological advances in information dissemination. The implication is that protected must be granted even if the reproduction is in digital form, and despite of the fact reproduction is of a temporary nature. [47] A more liberal construction was to be used in applying the aforesaid provision. It follows from this first sentence that Article 9(1) [48] of the Convention is fully applicable. [49] A more relevant feature of the World Copyright Treaty for this work is the portion on “Technological Measures of Protection and Rights Management Information.” Under Article 11 [50] of the Treaty, contracting parties are obliged to give legal protection remedies against the circumvention of effective technological and that restrict acts, which are contrary to such. [51] This addresses the issue of circumvention, or the means which allowing a side-stepping of technical barriers when placed in materials in order to restrict unauthorized access and copying. [52] In fact Article 12(1) [53] of the Treaty makes it an obligation to purposely adopt measures that will reinforce the rights involved in relation to circumvention through the enactment of legal as well as administrative remedies. [54] In addition, it provides for a definition of another concept that needs to be considered under Article 12(2) [55] and refers to these as “rights management information”. There is a generally accepted requirement that interference with the former, should be a form of secondary infringement. [56] Furthermore, for purposes of clarification, an Agreed Statement [57] was adopted by the Diplomatic Conference concerning Article 12 of the Treaty [58] which, in essence, states that any infringement shall be understood as violations of exclusive as well as remuneratory rights and the article should not be interpreted as diminishing or being contrary to the purposes of the Berne Convention. [59] WIPO Performances and Phonograms Treaty [60] Under this treaty, the relevant provisions mostly apply the abovementioned treaty mutatis mutandis. They differ only in subject matter, yet the propositions are essentially mirrored in their substance, such as Storage of Works in Digital Form in an Electronic Medium, [61] and Limitations and Exceptions in the Digital Environment. [62] There are also similar requirements on protection against anti-spoiler devices and of copyright management information. [63] In fact, under the topic of Technological Measures of Protection and Rights Management Information, it explicitly states that, Articles 18 and 19 of the WPPT concerning “technological measures and rights management information” correspond to the similar provisions of the WCT. [64] For clarification, an agreed statement [65] was adopted by the Diplomatic Conference concerning Article 12 of the WCT, which contains provisions similar to those of Article 19 of WPPT. [66] Thus, they decided to apply the same interpretation as in the latter. [67] Part Two Laws Digital Copyright Millennium Act [68] This is the United States’ response to its international obligations. Among its provisions, [69] it criminalizes those persons who shall: “circumvent technological measures used to protect copyright, by manufacturing, importing, offering to the public, provide or otherwise traffic in any technology, product, service, device, component or part thereof, that A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to work protected under this title; B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.” [70] Intellectual Property Code Locally, the recognition of intellectual property rights is foremost enshrined in the Philippine Constitution. [71] Initially, the “flagship provision” [72] is found in Article II, Section 17, [73] which is a testament to the interrelation of human factors and technological advances in the growth of the country. Thus it provided for a separate subchapter under Article XIV, specifically mentioning the policy to be espoused in dealing with these types of properties in relation to all the actors involved as well as the neighboring rights and responsibilities that may arise therefrom. Sections 10, [74] 11, [75] 12, [76] 13 [77] of the said article are dedicated solely for this purpose. However, this is also opined as an expression of the sad state of science and technology in the country [78] due to the preference it gives to the pursuit of technology as well as its sense of enjoining the whole nation to give it what it is due. [79] In this light, it must be emphasized that the abovemetioned provisions are not self-executing, or at most it is the policy upon which the Legislature may base its enactments. [80] In other words, they need an enabling law [81] to breath life into their letters. Local Statutes, like the Civil Code, [82] specifically in Articles 712 [83] and 724 [84] make, from the policies, certain rights, which are now enforceable and demandable. The former ordains intellectual creation as one of the modes of acquiring ownership over property, while the latter provides that special laws shall govern copyright. Therefore, there is a need to look to a different direction regarding this. Part Three History of the law on copyright. [85] The Spanish law on Intellectual Property of January 10, 1879, which was extended to the Philippine by Royal Decree of May 5 1897, was the first known copyright law in the Philippines. This was replaced by the United States Copyright Law, when Spain ceded the Philippines to the United States of America under the Treaty of Paris of December 10, 1898. This was the situation until March 6, 1924, when the Philippine Legislature enacted Act No. 3134, entitled “An Act To Protect Intellectual Property.” [86] This governed copyright works in the Philippines until November 14, 1972 when it was superseded by Presidential Decree No. 49, otherwise known as the Intellectual Property Decree. It continued to be enforced up to December 31, 1997, when the Intellectual Property Code replaced it effective January 1, 1998. [87] Today, the Intellectual Property Code [88] is the governing law on all types of intellectual creation, including that of copyright. In its own policy declaration, under Section 2 [89] it echoes and reinforces the Constitutional provision mentioned. This is an expression of the legislative will which dictates the scope of rights, the extent of protection as well as the remedies in case of breach in this field of law. The coverage is found in Section 4 [90] and corresponding chapters deal with each one separately. On the other hand, Section 3, [91] embodies the Philippines’ compliance to international treaties which obligates member-states to recognize reciprocity among themselves in application of the laws. What is a copyright? There is no actual definition but it is described as “an exceptionally dynamic body of law, which is a form of legal adaptation, a response to new technologies in the reproduction and distribution of human expression.” [92] This is “a branch of law, which protects some of the finer manifestations of human achievement.” [93] Depending on the jurisdiction, it may be viewed either as “an instrumental means by which general welfare is advanced through the provision of economic incentives to creators of new works of the intellect” [94] or as the author’s “moral entitlement to control and exploit the products of the author’s intellect.” [95] The Code [96] itself does not give a definition of what it concept is. Neither can one be found in any treaty or convention. This is due to the variance in treatment each jurisdiction treats this concept of copyright. One reason is that since copyright consists of a bundle of rights, and protection of copyright means that, the work is not to be used, except upon consent of the owner of the right. [97] Another would be due to the very concept which, depending on the standpoint, differs [from] country to country and “to define it in a manner binding on all member countries would be difficult if not impossible.” [98] “These considerations will serve as the justification for the thesis that new creational achievements -- which are results of technological progress brought into incumbency by multimedia, such as computer programs and computer art -- do not need any fundamental change of the conception of work as subject of the copyright law and which should protect this sort of works as well. The system of legal protection of copyright speaks for this as well, understood as a universal protection, contrary to the particular patent protection.” [99] |
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