[A2k] March 2017 - WTO TRIPS Council - Brazil's statement on copyright and e-commerce

Thiru Balasubramaniam thiru at keionline.org
Fri Mar 3 03:34:43 PST 2017


March 2017 - WTO TRIPS Council - Brazil's statement on copyright and


Submitted by thiru <http://keionline.org/user/6> on 3. March 2017 - 13:29

At the March 2017 session of the WTO TRIPS Council, Brazil delivered the
following statement on copyright and e-commerce.

Copyright and e-commerce

Statement from Brazil

Thank you for this opportunity to present our document on electronic
commerce and copyright. It responds to the invitation of the work programme
on electronic commerce to examine and debate trade-related issues of global
e-commerce. We wish to launch a comprehensive discussion of copyright
management in the digital environment and we invite the delegations to
express their views on this important subject.

Mr. Chairman,

Recent advances in technology have enabled the creation of business models
based on the use of copyrighted works in digital platforms. Unlike the
physical environment, access of such works is made without transfer of
ownership or possession of the work by the final user. Those innovative
business models created new forms of management of rights, generating
opportunities and challenges for all participants in the creative process.
The success of these new models was underlined in 2015, when the digital
market surpassed sales of physical formats and became the primary source of
revenue for recorded music.

Legitimate concerns are being raised at national and international level
regarding the remuneration of copyrighted works. Digital platforms affirm
that most of their revenue is being distributed as royalties, but authors
and performers complain about lack of remuneration. Likewise, producers and
the cultural industry highlight a “value gap” in the amount due for the

The modern music business involves a huge number of micro-transactions, in
which stakeholders receive fractions of the revenue generated. New
technologies would normally be associated to more transparency, but
actually we are seeing the opposite: opaque contractual frameworks create
an obstacle for the due diligence of creators and artists when considering
the commercialization of their work.

Brazil argues that a first possible decision on copyright management for
fair payments could stress the importance of transparency in the
remuneration of copyright and related works in the digital environment.
This would allow creators and artists to properly understand the payments
and accounts they receive.

Mr. Chairman,
Copyrights laws recognize certain limitations on economic rights of
protected works. Those limitations have the character of public interest,
in that they strike a balance between the interest of right-holders and the
users of such works. For this reason, they are present in every legislation
of Member States.

In the business model of digital platforms, technological protection
measures are widely used, offering an almost absolute control of digital
intellectual goods. However, TPMs in the physical environment were already
considered an obstacle to the exercise of some legitimate uses defined as
limitations or exceptions to copyright by national legislations. This is
magnified in the digital environment and may halt even the simplest
operations, such as the interoperability and portability of digital goods.

There is a growing concern that obligations related to the inviolability of
TPMs might exclude the possibility of enjoying exceptions and limitations
in the digital environment. These technologies are essential for the normal
exploitation of the work in e-trade and its circumvention could be
understood as a breach of international obligations (step 2 of the three
step test). Therefore, the second collective initiative suggested to
improve management of copyright in the digital environment is to clearly
assert that exceptions and limitations available in physical formats should
also be made available in the digital environment.

Finally, Mr. Chairman, the last aspect of the document relates to the
territoriality of copyright. The digital environment is borderless by its
nature while the copyright system is based on national laws. These
different characteristics make more challenging the task of implementing
the shared objective of protecting authors, performers and other copyright
holders in the digital environment. Payments to digital platforms, for
instance, can be made through international credit cards, bypassing the law
in the country of access to the creative content.

It is thus suggested that Members reaffirm the territoriality of copyright
as a principle of the international trading system, making their national
copyright legislation applicable to trade relations where content is
accessed from within their national borders.

The three areas highlighted should be considered building blocks of a sound
business environment for the international trade of intellectual goods.
They should continue to be explored in order to find common understanding
among Members and to provide the General Council with the information
necessary to consider the way forward on the matter.

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