BALANCE OF INTERESTS IN COPYRIGHT LAWS IN DIGITAL AGE AND RECOMMENDATIONS FOR VIETNAMESE COPYRIGHT LAW

MINISTRY OF EDUCATION AND TRAINING
FOREIGN TRADE UNIVERSITY

DISSERTATION

BALANCE OF INTERESTS IN COPYRIGHT LAWS
IN DIGITAL AGE AND RECOMMENDATIONS
FOR VIETNAMESE COPYRIGHT LAW

Major: International Trade Policy and Law

PHẠM HƯƠNG LIÊN

Ha Noi – 2016


MINISTRY OF EDUCATION AND TRAINING
FOREIGN TRADE UNIVERSITY

DISSERTATION

BALANCE OF INTERESTS IN COPYRIGHT LAWS
IN DIGITAL AGE AND RECOMMENDATIONS
FOR VIETNAMESE COPYRIGHT LAW

Major: International Trade Policy and Law

Full Name: Phạm Hương Liên
Supervisor: Assoc. Prof. Dr. Hồ Thúy Ngọc

Ha Noi – 2016

STATEMENT OF ORIGINAL AUTHORSHIP
The work contained in this thesis has not been previously submitted to meet
requirements for an award at this or any other higher education institution. I certify
that this is my own work and that the use of material from other sources has been
properly and fully acknowledged in the text.

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ACKNOWLEDGEMENTS
I would first like to thank my thesis advisor Assoc. Prof. Dr. Hồ Thúy Ngọc –
Dean of Faculty of International Education at Foreign Trade University. The door to
her office was always open whenever I ran into a trouble spot or had a question
about my research or writing. She consistently allowed this paper to be my own
work, but steered me in the right the direction whenever she thought I needed it. I
could not have been able to complete this thesis without her positive suggestions
and instructions.
I would also like to give my sincere thanks to the authors who provided me
with valuable materials for my dissertation.
Gratitude is to the readers as well, whose feedback will contribute
significantly to improving the thesis.

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Contents
INTRODUCTION ..................................................................................................... 1
1.

Rationale .........................................................................................................1

2.

Scope of research ............................................................................................2

3.

Research questions .........................................................................................2

4.

Methodologies .................................................................................................3

5.

Literature review ............................................................................................3

6.

Dissertation structure ....................................................................................5

CHAPTER 1: LITERATURE REVIEW ON BALANCE OF INTERESTS IN
COPYRIGHT LAWS IN DIGITAL AGE .............................................................. 6
1.1. Copyright laws in digital age ......................................................................6
1.1.1. Copyright laws ........................................................................................6
1.1.1.1.

Origin and development of copyright laws ......................................6

1.1.1.2.

Dual goals of copyright laws ...........................................................8

1.1.1.3.

What are copyrights and related rights? .......................................10

1.1.2. Digital age ............................................................................................12
1.1.2.1.

What is difference about “digital age”? ........................................12

1.1.2.2.

Digital age seen from the copyright perspective ...........................13

1.2. Balance of interests ....................................................................................17
1.2.1. Copyright interests ...............................................................................17
1.2.2. What is “balance”? ..............................................................................19
1.2.3. “Balance” in copyright laws ................................................................20
1.2.4. Current imbalances of interests in digital age ....................................21
1.2.4.1.

Extended duration of copyright protection ....................................22

1.2.4.2.

Expansive scope of copyright protection and restricted copyright

limitations .......................................................................................................23
1.2.4.3.

Newly added protection on technological measures .....................24

1.2.4.4.

Media concentration and restricted freedom of user-generated

creations ........................................................................................................26
1.3. Regulations on balance of interests ..........................................................27
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1.3.1. International regulations .....................................................................27
1.3.1.1.

Protection of authors’ interests .....................................................27

1.3.1.2.

Protection of public interests .........................................................30

1.3.2. Regulations in some countries ............................................................35
1.3.2.1.

Australia .........................................................................................35

1.3.2.2.

The United States ...........................................................................39

CHAPTER 2: VIETNAMESE COPYRIGHT LAW

ON BALANCE OF

INTERESTS IN DIGITAL AGE ........................................................................... 45
2.1. Protection of authors’ interests in relation with public interests ..........45
2.1.1. Protection of authors’ interests in subject matter of copyrights and
related rights......................................................................................................45
2.1.2. Protection of authors’ interests in protection conditions of copyrights
and related rights ..............................................................................................48
2.1.3. Protection of authors’ interests in contents of copyrights and related
rights ...............................................................................................................49
2.1.4. Protection of authors’ interests in duration of copyrights and related
rights ...............................................................................................................53
2.1.5. Protection of authors’ interests in assignment and transference of
copyrights and related rights ............................................................................54
2.2. Protection of public interests in relation with authors’ interests ..........55
2.2.1. Protection of public interests in subject matter excluded from
copyright protection ..........................................................................................55
2.2.2. Protection of public interests in limitations on copyrights and related
rights ...............................................................................................................57
2.2.2.1.

Uncompensated limitations ............................................................57

2.2.2.2.

Compensated limitations ................................................................59

2.2.3. Protection of public interests in duration of copyrights and related
rights ...............................................................................................................60
2.2.4. Protection of public interests in assignment and transference of
copyrights and related rights ............................................................................61
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2.3. Findings ......................................................................................................62
2.3.1. Is Vietnamese copyright law balanced or unbalanced in terms of
interests? ............................................................................................................62
2.3.2. Is Vietnamese copyright law capable of maintaining balance of
interests in digital age? .....................................................................................65
2.3.2.1.

Right to reproduce the work ..........................................................65

2.3.2.2.

Right to communicate the work to the public.................................68

2.3.2.3.

Limitations and exceptions ............................................................69

2.4. Case studies ................................................................................................72
2.4.1. Nguyen Quang Tuan v. Dao Thai Ton ...............................................72
2.4.2. First New Co. v. Australia International English School & Vietnam
Australian English Association ........................................................................73

2.4.3. Comments .............................................................................................74
CHAPTER 3: RECOMMENDATIONS TO VIETNAMESE

COPYRIGHT

LAW ON BALANCE OF INTERESTS IN DIGITAL AGE .............................. 78
3.1.

Extending copyright regulations in digital age .......................................78

3.2.

Technological protection measures ..........................................................81

3.3.

Fair dealing or Fair use? ...........................................................................83

3.3.1. Fair use is flexible and adaptable to changes .....................................83
3.3.2. Fair use is certain and predictable ......................................................85
3.3.3. Fair use is the better choice for Vietnam ............................................87
3.4. Substantive limitations and exceptions ....................................................88
3.4.1. Limitations and exceptions for educational purposes ........................88
3.4.2. Limitations and exceptions for libraries and archives .......................95
3.4.3. Limitations and exceptions for persons with disabilities ..................101
CONCLUSION ...................................................................................................... 105
REFERENCE LIST .............................................................................................. 108

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ABBREVIATIONS AND ACRONYMS

Berne Convention

Berne Convention for the Protection of Literary and Artistic
Works

ISP
RAM

Internet Service Providers
Random-Access Memory

TPM

Technological Protection Measures

TRIPS Agreement

Agreement of Trade-Related Aspects of Intellectual Property
Rights

WCT

World Intellectual Property Organization Copyright Treaty

WIPO

World Intellectual Property Organization

WPPT

World Intellectual Property Organization Performances and
Phonograms Treaty

WTO

World Trade Organization

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INTRODUCTION
1.

Rationale
To every country, the encouragement of creativity and inspiration always

plays an important role in its policies as it is the key to development and
progression. Copyright law is established for the purpose of protecting the rights
and interests of the copyright work author. Once there is effective protection of
rights, authors feel certain about their future of reaping the fruits of their own hard
work and that is the best way to keep them create better works of art. However,
during its development, the copyright law has always been affected by another side
of view which protects the welfare of public and holds that people should be given
the right to use and exploit the works. Advocates of this view believe that the works
should be used to help the society become better and more well-knowledged
because “works are not created out of thin air and most of them are actualized by
borrowing from former works and materials.” (Hua, 2014, p.39) Consequently, the

balance of interests between work authors and society might be considered the
driving power of copyright law development and improvement.
Nowadays, a new issue has emerged as a demand for significant copyright law
reform – technologies. The Internet has made it easier than ever for anyone to
access, use, reproduce, or disseminate different forms of copyright works,
particularly at no cost. While advocates of copyright as a private property of the
authors support the expansion and strengthening of copyright law to fairly preserve
the interests of authors, public policy supporters are concerned that stricter
protection of copyright law will pose a threat to the information dissemination of
the public and therefore the knowledge and culture of society will be limited.
As a consequence, the question of how to maintain the balance of interests in
copyright law under the digital age has been asked for a long time since the
advancement of technologies and answers for what is the limitation to copyright law
expansion need to be found.

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In Vietnam, where copyright property is not respected to its true value, the
strengthening of copyright law in the digital network environment is of critical
importance if the Government wants to encourage creative works and build up the
country’s knowledge and culture to a higher level.
Thus, I decided to choose “Balance of Interests in Copyright Laws in Digital
Age and Recommendations for Vietnamese Copyright Law” as my master
dissertation.
2.

Scope of research
This study is conducted from research into regulations on balance of interests

in international treaties and certain developed countries including the US and
Australia. While monopoly rights granted to creators of the works protect authors’
interests, the tool for preserving users’ interests is the three-step test (Berne
Convention and other international treaties), the fair dealing and fair use doctrines
(the US, Australia). Changes made by these countries to copyright law in digital age
in order to maintain balance of interests are also analyzed. From those sources of
laws, the thesis focuses on how balance of interests is protected in Vietnam
copyright law and provides recommendations to improve Vietnam legislations in
digital age based on developed countries’ experience.
Furthermore, it should be noted that whereas Vietnam joined several copyright
conventions and treaties and domestic copyright law is to be consistent with their
requirements, analysis on Vietnam’s commitments in respective treaties is out of the
reach of this master thesis. Consequently, recommendations in the study are mainly
based on Vietnam’s situation only.
3.

Research questions
Question 1. What is balance of interests related to works in copyright laws?

Why is it important to maintain balance of interests?
Question 2. How has the digital age affected the interests of copyrighted work
authors and the users of such works?

2


Question 3. How is Vietnam’s copyright law on balance of interests in digital
age?
Question 4. What should be changed in Vietnam copyright law to improve
balance of interests?

4.

Methodologies
This study was conducted using the following methodological approaches.

First, method of theoretical examination was primarily employed to examine the
historical development and current situation of copyright and copyright law,
especially under the digital age. Much of the literature is from developed countries,
including the EU, the US, and Australia. The thesis mainly focuses on secondary
legal data from these countries. Second, method of conceptual analysis was also
utilized to analyze legal rules in copyright law and point out their strengths and
weaknesses in maintaining the balance of interests.
5.

Literature review
Regarding English materials, there exist quite a plentiful of research and

paper. The first trend is in balance in copyright. “International Copyright Law and
“Fair Dealing” as a “User Right” by Myra J. Tawfik (2005) explained the extent
to which the “user right” or “fair dealing” conforms to the normative framework
established under the international copyright law system. In this paper, “fair
dealing” was explored under Canadian Copyright law, Berne Convention and
TRIPS. Another one is “Rethinking the “Balance in Copyright”: 3 Parts to the
Balance, not just one!” by Ruth Rikowski, which innovatively put emphasis on
parts composing the balance of interests. According to the writer, maintaining
balance in copyright also requires balance within each half of the balance, which
not many people pay attention to.
In addition, the balance of interests in copyright in the emergence of
technology has also been mentioned in a number of works. “Balance: Resolving the
Conundrum between Copyright and Technology” – Danilo Mandic (2011), Chapter

2 - “Balance of Interest in Copyright Systems and Imbalances Under Digital
3


Network Environments” – J. J. Hua, Toward a More Balanced Approach:
Rethinking and Readjusting Copyright Systems in the Digital Network Era (2014)
or “As I See It – Copyright in the Digital Age: Has the Balance of Interest Between
Owners and Users Really Changed?” – Against the Grain: Vol. 22: Iss. 6, Article
39, John Cox (2010). In these works, the writers showed the effects of the Internet
and digital network to copyright and analyzed how countries have reacted to this by
reforming their copyright laws. They also make an analysis on what extent of such
strengthening of the protection is enough so that the rights to disseminate
information of users are still preserved.
There has been research on balance of interests in certain countries as well, for
example Canada, America, or Australia. “Protecting Speech or Copyright: A
Question of Balance” by Benjamin Cohen and “The Balance of Interests in US
Copyright Law” by Michael J. Remington and Kexin Li (2013) both provided an
inside look into the US copyright law. “Interests in the Balance” by Teresa Scassa
explored the “underlying purpose of Canadian copyright as a balance between a
series of competing interests with the consideration of “massive technological
changes” in Canada. Besides, in “The Balancing Act of Copyright: The Copyright
Laws of Australia and the United States in the Digital Era” (2003), Dilan J.
Thampapillai analyzed how Australia and the United States, two common law
countries, have adjusted their jurisdiction to the digital era. In particular, this essay
focused on fair use, fair dealing and digital rights management in the context of the
balance of interests between the users and owners of copyright. Another work
namely “How to Balance Interests: Comparative Legal Aspects on the Limitation of
Copyright in International Law” by Tatiana Brazhnik (2014) even compared
limitations to exclusive rights of protected work authors in legal families, civil law
countries have a “closed regime” of copyright limitations and common law

countries have an “open regime” of copyright limitations.
Despite such abundant analysis from English sources, there is not much
attention paid to this issue in Vietnam yet. Doctor Le Thi Nam Giang is one
dedicated person that had several works on balance of interests, including “Nguyên
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tắc cân bằng quyền và lợi ích của chủ SHTT và lợi ích xã hội” and “Nguyên tắc cân
bằng quyền và lợi ích của chủ SHTT và lợi ích xã hội trong bắt buộc chuyển giao
quyền sử dụng sáng chế”. One thesis named “Cân bằng lợi ích trong bảo hộ quyền
sở hữu công nghiệp đối với sáng chế” by Nguyen Van Bay puts emphasis on the
balance of interests in patent law. However, none of these materials provides a close
look at copyright law in Vietnam and assesses the current situation of balance of
interests in Vietnam copyright system.
6.

Dissertation structure
Beside Introduction, Conclusion and Reference list, the dissertation is divided

into 3 chapters:
Chapter 1: Literature review on balance of interests in copyright laws in
digital age
Chapter 2: Vietnamese copyright law on balance of interests in digital age
Chapter 3: Recommendations to Vietnamese copyright law on balance of
interests in digital age

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CHAPTER 1: LITERATURE REVIEW ON BALANCE OF INTERESTS IN

COPYRIGHT LAWS IN DIGITAL AGE
1.1. Copyright laws in digital age
1.1.1. Copyright laws
1.1.1.1. Origin and development of copyright laws
The most initial concept of modern copyright existed in the Roman publishing
system (Ploman, 1980). Libraries were established to lend manuscripts and receive
land, cattle or money in exchange, which was one of the earliest type of
remuneration for copies of literary works.
The emergence of printing technology promoted the birth of modern copyright
laws. Thanks to printing technology, the stationers who used to reproduced the
texts by hand invested in facilities and turned their book business into “a mass
production” (Hua, 2014). Printing privileges were granted to book publishers in
Italy and other European countries such as Germany, Netherlands, and the United
Kingdom since the 15th century to encourage the development of book publishing
industry. More than that, leading book publishers also reached noninterference
agreements to protect their businesses against piracy and competition (Bettig,
1997).
In the United Kingdom, the privilege was in the form of the Licensing Act of
1662 (Kim, 2005). When it expired in 1694 and failed to be renewed, stationers
switched their lobbying target from monopolization of the market for themselves to
the legal rights of authors which were natural and inherent, leading to the passing of
the Statute of Anne in 1710 (Bettig, 1997). This is considered the first copyright law
in the world. Under the statute, copyright protection for existing works in the
Stationers Register was 21 years and the protection term for new works finished
after the statute became effective was 14 years upon expiration with another 14
years of protection granted afterwards. The Statute of Anne focused only on
property rights, and did not mention the moral right of authors. To fully enjoy the
rewards of having property rights, an author had to assign his/her copyright to the
stationers (Hua, 2014).
6

Following the United Kingdom, from 1783 to 1786, 12 original states in the
United States issued copyright laws. In 1790, the Copyright Act was passed
granting authors “exclusive rights to print, reprint, publish and sell their works”
(Hua, 2014).
A common feature of copyrights in their early period is that there were two
views coexisted. The legislators of the Statute of Anne took on a public policy view
to restrict the market monopolization by granting authors with a limited time of
exclusive rights (Hua, 2014), describing it as “an Act for the encouragement of
learning, by vesting the copies of printed books in the authors or purchasers of such
copies, during the times therein mentioned.” However, facing the risk of losing
market monopolization, the stationers attempted to regain their “perpetual right” on
printing and publishing. They took on a private property stance by claiming that
copyright is a natural right and authors’ original works should be protected without
a finite term and so should stationers owning a copyright through transfers by the
authors (Kim, 2005).
The base for such natural copyright was John Locke's labor theory of property.
According to Locke, people had the natural right to owning their bodies, as a
consequence, “the labor of his body and the work of his hands, are properly his.”
(Locke, 1974, p.134). Even though intangible assets like literary and artistic works
were not mentioned in his labor theory of property, stationers and supporters of the
private property view have used Locke's labor theory of property and expanded it to
intangible goods (Hua, 2014).
Nevertheless, the public policy view appeared to prevail and determined the
modern copyright legislations. The “natural right” aspect was rejected by the courts
in the United Kingdom (Donaldson v. Beckett, 1774) and the United States
(Wheaton v. Peters, 1834). In both countries, the courts found that copyright is a
limited right created by the legislature under statutes and that an author only enjoys
his/her natural copyright when his/her work is not published. Sir John Darylmple

once questioned: “What property can a man have in ideas? While he keeps them to
himself they are his own, when he publishes them they are his no longer”
7


(Goldstein, 2003, p.39). In the case Donaldson v. Beckett, Lord Camden also stated
that “knowledge has no value or use for the solitary owner: to be enjoyed it must be
communicated. What situations would the public be in with regard to literature, if
there were no means of compelling a second impression of a useful work to be put
forth?”. The importance of the Donaldson and Wheaton cases encouraged
lawmakers in the United Kingdom and the United States to be “more concerned
about public welfare” and established trend in copyright systems that focused more
on “granting a limited monopoly to authors and securing access by the public”
instead of infinite copyright protection as a natural right (Hua, 2014).
The concept of intellectual property was introduced into South and East Asia
much later. China passed its copyright law in 1991 with its prime purpose of public
welfare and cultural prosperity stated in Article I: “This Law is enacted, in
accordance with the Constitution, for the purpose of protecting the copyright of
authors in their literary, artistic and scientific works and the rights and interests
related to copyright, encouraging the creation and dissemination of works
conducive to the building of a socialist society that is advanced ethically and
materially, and promoting the progress and flourishing of socialist culture and
sciences”.
1.1.1.2. Dual goals of copyright laws
Based on the development of copyright laws, especially the Statue of Anne
1710, the “dual goals” of copyright systems are to “protect creations and intellectual
labor” of the work authors and to “promote advancement of knowledge, learning,
culture and art” of the public (Hua, 2014).
According to Locke, “people are entitled to hold, as property, whatever they
produce by their own initiative, intelligence, and industry” (Craig, 2002). The

authors are entitled to exclusive rights to control the use and distribution of the
works made from their own mental labor and representing their personality. Such
exclusive rights are incentives to guarantee continous creation subsequent to the
works. The remunerations paid to the authors recognize their attempts and

8


contribution to society and also play the role of material and financial compensation
for what the authors spent on creating the works. On the other hand, many authors
do not create for the purpose of earning money but expanding their reputations.
Therefore, in addition to property rights of the authors, personal rights are protected
in copyright systems. Personal rights include the right of atribution, mutilations and
distortions (Hua, 2014). This first goal of copyright systems can be seen in judicial
decisions in copyright disputes. In Harper & Row v. Nation Enterprises, the
Supreme Court stated that “the rights conferred by copyright are designed to assure
contributors to the store of knowledge a fair return for their labors” (Hua, 2014).
Nevertheless, protecting authors’ interests is not the only purpose of copyright
systems. It should be noted that copyright laws are created also to “safeguard public
interest by promoting advancement of knowledge and learning, preserving public
domain and forming a democratic civil society” (Hua, 2014). This purpose is
reflected through the following three aspects.
First, the purpose of promoting the advancement of knowledge and learning is
specified in constitutions and copyright laws. The Report of the Register of
Copyrights on the General Revision of the U.S. Copyright Law pointed out that the
primary goal of copyright is to “foster the growth of learning and culture for the
public welfare”. As mentioned above, Article 1 of the Copyright Law of China
demonstrated this goal as “promoting the development and prosperity of socialist
culture and science’. Court decisions were consistent with this ultimate purpose, in
Mazer v. Stein, “the encouragement of individual effort by personal gain is the best

way to advance public welfare through the talents of authors and investors in
‘Science and useful Arts’”. In Twentieth Century Music Corp. v. Aiken, the court
stated that “the immediate effect of our copyright law is to secure a fair return for an
author’s creative labor. But the ultimate aim is, by this incentive, to stimulate
artistic creativity for the general public good. The sole interest of the United States
and the primary object in conferring the monopoly lie(s) in the general benefits
derived by the public from the labors of authors” (Hua, 2014).

9


Second, copyright systems ought to preserve the public domain, which means
the protection of copyrights should be restricted to a certain period of time and
within a certain scope. The owners’ exclusive rights can be fully enforced unless it
is outside of the scope and public users can use them at no cost.
Third, copyright systems are also in charge of forming a democratic civil
society. Copyright systems play a role of “an engine for creative and free
expression” (Hua, 2014). Under the protection of copyright systems, authors are
encouraged to develop their ideas on a variety of topics including political,
economic, cultural and recreational issues, which is the foundation for a democratic
civil society.
1.1.1.3. What are copyrights and related rights?
Copyrights are temporarily limited monopolies given to authors to allow or
prohibit different uses of their work. Copyright reflects in most countries two sets of
interests generally referred to as property rights (or economic rights) and personal
rights (or moral rights). Property rights include the right to record, to perform,
present or show, to reproduce, to distribute, to broadcast or rebroadcast. By
exercising property rights, authors can earn remuneration for his living. In addition
to the property rights, copyright protects the personal relationship, or moral rights,
of the author to the work as an expression of his creativity and personality. Moral

rights protect him from acts that would damage the integrity of his work. In
addition, the author can determine whether, when and under which conditions his
work shall be made public. Furthermore, he has the right to be named “author.”
While economic rights can be licensed or transferred to others, moral rights cannot.
The term neighbouring rights (or related rights) is usually understood as rights
that protect the interests of certain groups of right holders, whose activities are
associated with the reproduction and dissemination of works, such as:
(i) Performers;
(ii) Producers of sound recordings;
(iii) Broadcasting organizations.
10


Protection under neighbouring rights is similar to copyright, although it is
often more limited and of shorter duration. The labelling as “neighbouring/related”
indicates some degree of relationship between these rights and copyright, and at the
same time distinguishes them from copyright.
The object of copyrights and related rights is literary and artistic works. To be
protected, a work has to be more than a mere idea. The distinction between
protected works and ideas is considered the most important part of copyright law.
The protection of a given work applies to the expressions of ideas. Accordingly, in
order for copyright in a work to be infringed, one has to copy the form in which the
ideas are expressed. The mere use of ideas found in a work does not commit a
copyright infringement. For example, the author who has written an article on how
to build a boat will be protected against the making and selling of copies of the
article (the expression) without his or her consent. However, copyright protection
cannot prevent anyone from using the instructions (the idea) in the article so as to
build a boat, nor to write another article on the same subject.
In order to illustrate what forms of expression may be protected, most
copyright laws contain an elaborate, but usually not exhaustive, list of examples.

The enumerated categories generally comprise articles, novels, poems, songs, plays,
choreography, applied art and architecture, alongside more recent additions such as
computer programs and, in certain countries, databases. Scientific theories,
marketing concepts and algorithms could be given as examples of unprotected
ideas.
Furthermore, to qualify for copyright protection an expression must have a
sufficient degree of originality. Broadly speaking, a work is original when it reflects
the personality of its creator. Yet, there are no universally agreed standards on how
to assess originality.

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1.1.2. Digital age
1.1.2.1. What is difference about “digital age”?
From what started with the printing press in the 15th century and continued
into the 21st century, from the invention of

radio and television to the

establishment of the Internet, digitization and global networking - currently being
discussed under different keywords “multimedia,” “Internet,” “data superhighway”
and “global information society” – markedly change the methods people
communicate with one another.
In his article, Marshall A. Leaffer (1995) described three aspects of digital age
that brings significance differences to copyright systems. People in the digital
enviroment are able “to store, manipulate, and transmit data in ways that greatly
transcend our previous techniques of storage, replication, and dissemination of
information”.
Firstly, data storage has been revolutionized and improved at a phenomenal

speed. Digitization allows information to be recorded in a binary format in “0’s”
and “l’s”. Therefore, with the development of digital technologies, there exists now
a universal format to record any types of information in the world. Together with
the advances in compression techniques, data storage devices are getting smaller
than ever. According to Leaffer (1995), one compact disk can digitally store a
twenty-six volume encyclopedia, not only words, but images and sounds as well. In
1980, the first hard disk drive having gigabyte capacity was as big as a refrigerator.
Nowadays, hundreds of gigabytes of storage capacity are stored in computers and
other handheld devices are capable of storing several gigabytes.
Secondly, data manipulation is conducted in ways that were pure science
fiction in the past. Once a work has been digitized, it is completely possible for
software programs to isolate and modify any part of the work. For instance, an
image taken by a digital camera can easily be edited and particular aspects of the
image such as colors, contrasts, or shapes can be separated. Moreover, digitization
allows us to modify data without degrading it. For example, songs can be cut,

12


edited, added effects and mixed together to create a new musical work whose
quality is comparable to the original ones.
Thirdly, data transmission has also changed dramatically in the digital era.
Without rapid development in communications networking, transmission of data is
limited to one-to-one communication (e.g. telephone communication) or one-tomany communications (e.g. broadcasting). In the digital era, data can be trasmitted
by electronic means from everyone to anywhere with no limitation on the number of
transmitted copies.
1.1.2.2. Digital age seen from the copyright perspective
As mentioned above, copyright laws promote creativity and innovation. It
does this by providing exclusive property rights to copyright owners to control
certain uses of their works. At the same time, copyright law also seeks to promote

the social benefits that arise from a free flow of knowledge and expression.
Exceptions to copyright help achieve this second objective.
In the past, there were times when new technology emerged and put the dual
goals of copyright systems under pressure. For example, photocopy machines or
video-cassette recorders appeared and allowed copyright works to be copied easily
and at a low cost. The use of these technologies threatened to reduce revenues of
authors and producers, which would in turn threaten the future supply of creative
works. However, there were factors counteracting the drawbacks. Whereas
duplicating copyright material was often inexpensive, the quality of the copies was
generally degraded. Also copyright owners often found ways to exploit the
technologies that generated new source of income and even increased market size
overall.
Nowadays, the rapid developments in digital technologies pose a far greater
challenge for copyright law, perhaps the most significant threat that the copyright
regime has ever confronted. On the one hand, digital technologies create potential
new revenue sources for copyright owners by allowing protected material to be
sold, licensed and distributed in ever new ways. On the other hand, Noam describes
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contemporary copyright law as “the copyright - crisis era” (Steinmueller, 2008),
whilst other academics have commented the digital era has “propelled the music
industry into chaos” (Spinello, 2006), that “the emerging global communication
network erodes intellectual copyright control,” (McNair, 2006) and that “challenges
to copyright in this area are made particularly apparent by the wide acceptance of
downloading… which copyright protection has been altogether ineffective in
managing” (Golvan, 2007). Innovations to personal computers and consumer
electronics have altered user behaviours and expectations. It is now easy to store
huge quantities of music on a personal computer to be further copied on CDs or in
the embedded memory of a portable player. With the assistance of computer

softwares, users are no longer only passive consumers of digital content but can
make changes to it, partaking in the creative chain. Materials in digital form can be
flawlessly and inexpensively reproduced and distributed worldwide through the
Internet. Copyright owners therefore are worried that unauthorized copying and
redistribution will destroy the value of their works. It also creates legitimate
enforcement concerns for them. In short, digital technology is causing growing
tension between copyright owners who see a commercial necessity to exercise
greater control over access to and distribution of their works and copyright users
who have got accustomed to exploiting materials relatively freely using new
technologies.
According to Pamela Samuelson and Randall Davis (2000), the trio of
technological advances that have led to far-reaching changes in the economics of
information include: (1) digitized information has changed reproduction, (2)
computer networks have changed distribution, and (3) the World Wide Web has
changed publication.
First, digitized information considerably reduces the difficulties and cost of
reproduction (Samuelson & Davis, 2000). Moreover, it produces perfect replicas,
each of which is a seed for further flawless copies. An obvious advantage of these
characteristics for rights holders is reduced production costs, but users may also
benefit from low cost, perfect digital copies. This results in an erosion of previously
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natural obstacles to infringement, which is the expense of reproduction and the
decreasing quality of successive generations of copies in analog media.
Another reason that digitized information creates difficulties for copyright
system is because access to digital information inevitably requires making copies,
even if only temporary copies, of that information. Running a computer program,
for example, occurs by copying the program from disk to memory. This action
seems inconsequential to most computer scientists. Yet, courts have ruled that

merely turning on a computer loaded with programs by a repair service not licensed
to use the programs constituted copyright infringement because unauthorized copies
of programs were made in the random access memory of the computer. Getting
access to digital information by making temporary copies is, of course, deeply
rooted in the way computers work: Use a computer to read a book, look at a
picture, watch a movie, or listen to a song, and you inevitably make one or more
copies. Contrast this with the use of traditional media: Reading a book does not
involve making a copy of it, nor does watching a movie, nor listening to a song.
This intimate connection between access and copying has considerable
significance in the context of intellectual property protection because the right to
control reproductions of protected works in copies has been a hallmark of the law of
copyright (as the name of this law alone indicates). In the world of traditional
media, there is an obvious distinction between access and reproduction, such that
the copyright owner’s control of reproduction does not generally provide control
over access. But if access requires reproduction, the law has a dilemma. Some
copyright owners and professionals think that rights holders should have a right to
control digital access because it involves reproduction. Others are concerned that
granting such rights will undermine traditional public access to information in
unprecedented ways.
Second, digital information also creates difficulties because it has changed the
way information products are distributed (Samuelson & Davis, 2000). For more
than two hundred years, the dominant model of IP transaction has been the sale of a
physical copy of a work. However, digital information is often licensed rather than
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sold. There is a substantial difference between the two types of transactions. Sales
involve the complete transfer of ownership rights in a copy from the vendor to the
purchaser. Copyright law explicitly anticipates the sale of intellectual property
products and, by its “first-sale rule,” this law prevents copyright owners from

controlling publicly distributed copies once sold into the marketplace.

The

purchaser is thereafter free to lend, rent, or resell the purchased copy. In that sense,
copyright law follows IP products into the marketplace and promotes the continued
dissemination of the information they contain. The first sale rule thus enables
bookstores and libraries to operate free from copyright owner control. Licensing,
however, constitutes a limited transfer of rights to use an item on stated terms and
conditions. Licenses are governed by contract law and, as such, are essentially a
private agreement between two parties. Whether or to what extent such licenses can
override public policy considerations is a matter of contention. The point here is
simply that the difference in transaction type is significant.
Distribution of materials has been substantially changed by computer
networks. Networks enable people to send digital information worldwide, cheaply
and almost instantaneously. As a consequence, it is easier and less expensive not
only for a rights holder to distribute its work to the public, but also for individuals
or commercial infringers to distribute unauthorized copies. The problem is even
more serious when third parties illegally appropriate works created by others so as
to commercially exploit them.
Third, the development of the World Wide Web has radically changed how
works are published. Using the World Wide Web, anyone is capable of becoming a
publisher with worldwide reach. The amazing variety of documents, opinions,
articles, and works of all sorts on the Web show that millions of people worldwide
are taking advantage of such capability. Again, this has a dual character, bringing
both potential (e.g., the vastly increased ease of publication) and challenge (the
current upheaval in the publishing industry).
In short, copyright protection has been shaken by the advancements of digital
technologies. Authors of copyrighted works have to face threats of losing their
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economic and moral benefits to infringers who make use of digital technologies.
The laws have not been able to keep up with the rapid changes in the digital world,
even though countries are on their way adjusting their legislations to extend
copyright protection against technological developments. On the one hand, legal
uncertainty and the feared loss of control may impede investments in the digital
infrastructure and lead to an undesired restraint in making available attractive
material. On the other hand, numerous users fear that a strengthening of copyright
in the digital field will increasingly exclude them from enjoyment of works.
In the face of such conflicting interests, it is necessary to arrive at a balance
that is both reasonable and takes into account as far as possible all the legitimate
interests involved.
1.2. Balance of interests
1.2.1. Copyright interests
From the dual goals of copyright laws, the two broad groups that have
opposing interests when it comes to copyright can be categorized as those who own
copyrighted material (creators and owners) and those who use copyrighted material
(users and society) (Elia, 2015). However, these two groups can consist of different
subgroups that have their own individual demands and interests. (Scassa, 2005).
On the one side of the spectrum are the copyright owners and creators.
Creators have four objectives: the reproduction and distribution of their work,
receiving credit for their work, earning a financial reward for their work and the
creative engagement with other works (Kretchmer, 2003 cited in Elia, 2015, p. 20).
The investors or producers only have one objective: the exclusivity and
transferability of the rights, in order to gain a profit from their investment
(Kretchmer, 2003 cited in Elia, 2015, p. 20). Strong copyright rules are considered
to promote the creativity and innovation of the creators by providing financial
incentives to continue producing their work, while also securing the financial profit
of the companies and associations that represent and invest in the creators.

According to Adduono (2015), the interests of this group are predominantly
concerned with their economic interests, copyright must facilitate exploitation of
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