E sccr/21/2 Original: English date: August , 2010 Standing Committee on Copyright and Related Rights Twenty First Session Geneva, November to 12, 2010

States/Governments

66 States are geo-political entities that are represented and administered by governments that exercise sovereign power. They vary widely in size (area and population, economies, and size of governments). Although governments may change, the international commitments of states are generally inherited by new authorities unless specially annulled.

67 The interests of states and their governments coincide in desires that copyright and related rights promote domestic economic growth, improve domestic employment, and potentially increase tax receipts that can be used in a variety of ways. However, differences in the levels of contributions of copyright-related industries to national economies, whether states are net importers or exporters of copyright products, and the extent to which short-term enforcement activities primarily protect foreign or domestic revenues tend to create divergence of interests among states and governments.

68 It is also recognized that low, middle, upper middle, and high income countries, as defined in the World Bank classification system,¹⁵ are often affected differently by policy measures and thus have differing interests. Higher income countries with more intellectual property are likely to pursue international policies requiring higher enforcement standards and state expenditures, whereas those with lower incomes tend to try to limit the standards and enforcement costs because they receive less short-term benefit from those expenditures. Similarly, lower income states tend to place greater emphasis than wealthier states on the social benefits of free or inexpensive access to information and entertainment, because larger portions of their populations are excluded from access when commercial models increase consumer costs and exclude use. These considerations have a bearing on each state’s calculations of the national and international costs/benefits of the proposed treaty.

69 States and governments have a responsibility to enforce their national laws and international obligations regarding copyright and in doing so must balance the interests of stakeholders in their countries, e.g., between rights holders and users, and in serving public interests. The proposed treaty requires contracting parties to undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of the treaty. Governments also have a stake in ensuring that public data and other state information (e.g., laws, regulations, official reports, video feeds of legislative proceedings), as well as publicly funded research, should be widely available.

70 Because intellectual property rights are private rights, efforts to enforce the rights largely fall on rights holders. It is the primary responsibility of right holders to seek legal remedies in order to protect their rights; however, civil remedies are not the only way of enforcing intellectual property rights. In most countries, criminal proceedings are provided in domestic laws, in addition to civil remedies, in cases of deliberate infringements or infringements done for commercial purpose or which have resulted in particular harm to the right holder.¹⁶ At the international level, the TRIPS Agreement requires contracting parties to provide for criminal procedures and penalties in cases of copyright piracy on a commercial scale. Member states may add criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular, where they are committed wilfully and on a commercial scale.¹⁷ This necessitates greater governmental efforts and costs to enforce copyright law, as effective enforcement requires the involvement of persons or entities, such as attorneys, judges, customs, police, prosecutors, administrative authorities,¹⁸ as well as the creation of specialized IP courts.

71 Governments also have to oversee an effective balance between content protection and circulation, because an imbalance can impact negatively on economic activity, job creation, and investment and tax revenues. Where copyright is allowed to be overridden with impunity, the result can be a surfeit of counterfeiting that can negatively impact the sustainability of local content production.

72 Governments in developing countries are also recognized as special stakeholders in that they have a special dispensation in an Appendix to the Paris Act of the Berne Convention that provides for translation, reproduction, and even broadcast or cablecast of copyrighted works for educational and research purposes upon notification to WIPO.

73 In terms of protection of broadcast signals, governments have a general stake in this as part of their wider commitments under the TRIPS Agreement, Rome Convention, WIPO, the World Trade Organization, and the International Telecommunication Union.¹⁹ There may be instances where the interests of consumers and the disabled, of education and knowledge generation and dissemination, and of traditional knowledge communities would be sufficient to encourage states to seek exceptions and some limitations on protection.

74 Amongst the stakeholders in this category are Member States of WIPO, non member states, and especially all government ministries that deal with intellectual property issues.