Doha cited as opportunity for creators to incorporate moral rights into TRIPS

The Doha round of negotiations on the Agreement on Trade Related Aspects of Intellectual Property (the TRIPS Agreement) could be a critical chance for creators to re-open the controversial international treaty to include moral rights in the agreement, says one legal expert who urged them to begin formulating a strategy for the upcoming talks. At the annual general meeting of the new Creators Rights Alliance (CRA) last week in Ottawa, Daniel Gervais, Oslers professor of technology law at the University of Ottawa, revealed some of the findings of his study, The Doha Multilateral Trade Negotiations and Creators' Rights. The CRA, founded a year ago to protect the rights of a broad spectrum of creators including authors, painters, musicians and others (CNM, May 1/02), held a panel discussion on copyright during which Gervais presented his thesis of an opportunity in the upcoming new negotiating round to include moral rights deliberately left off the table in the original TRIPS Agreement. Gervais told the CRA panel that several factors work in the creators' favour to re-open TRIPS to include a right to an equitable salary, a definition of "author," and the recognition of moral rights. "The Internet is a radical change in music distribution systems," he said. A new digital environment, the challenges of which couldn't have been foreseen by negotiators in 1997 when the original treaty was struck, could prompt participants in the Doha round to re-open copyright aspects of TRIPS. Stronger provisions for the protection of trademarks and domain names have also been cited as a cause to begin new negotiations. He urged creators to begin formulating a strategy now to deal with a potential re-opening of the agreement. He argued in favour of making several demands of negotiators, recognizing that with the treaty an open book again, many parties will also make their own agenda demands. "It will be a free for all," he told participants. "Everyone will ask for the moon. If we don't ask for much, we won't get much." He said he's encouraged that the current TRIPS Agreement takes most of its language from the much earlier Berne Convention - a treaty struck with creators' interests at heart. But, moral rights were left off the table since they were presumed to have little to do with trade, TRIPS' only focus. Co-panelist Anne McCaskill warned, however, that re-opening the agreement could give the U.S. room to introduce contractual rights into the treaty. Contractual rights give producers the ability to take over all economically beneficial rights in a work. The U.S. has already begun introducing the right into bilateral agreements such as the controversial agreement between it and Singapore, which has been widely decried for including elements of the Digital Millennium Copyright Act seen to favour large intermediaries. McCaskill noted that digital issues could be used as a hook to re-open TRIPS, but the U.S. would be keen to pursue its own agenda in the event of that happening. Neither moral rights nor contractual rights were included in the 1997 deal, and creators could be both helped and hindered should both find their way into a re-negotiated agreement. McCaskill, a former Department of Foreign Affairs and International Trade trade negotiator in intellectual property and now a consultant, also warned that the Canadian government wasn't "too keen" to re-open the deal, and that several more important negotiations lay ahead, such as the patentability of life issue. Copyright, she said, would likely be a distant concern in the Doha round. "The current reality is that we really don't know what's going to happen to TRIPS in the Doha round." No matter, said Gervais. Even if moral rights don't make it to the bargaining table, there will likely still be a declaration on traditional knowledge, and non-Aboriginal creators should still press forward that their demands for recognition be affirmed by way of support for Aboriginal knowledge rights. In his paper, Gervais writes: "In principle, it seems also that Aboriginal creators and rights-holders, on the one hand, and the community of creators in Canada (like those in other countries), on the other, share a common interest: that of having their contribution to the cultural heritage (Canadian and global) be recognized at its just value. This should constitute the cornerstone of their strategy."

Doha cited as opportunity for creators to incorporate moral rights into TRIPS

Broadcast | May 30, 2003

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