Thailand Law Journal 2009 Spring Issue 1 Volume 12

Another effective intellectual property multilateral agreement is the WIPO treaty. The WIPO treaty contains two treaties, the WIPO copyright treaty (WCT) and the WIPO Performance and Phonogram (WPPT). The existence of these treaties directly solves the problem of right relate to the digital technologies. In other words, these treaties provide a particular solution for digital technologies. For example, these treaties solve problems such as a reproduction rights in case of temporary copies in computer.¹⁶ Further, these treaties also introduce a new exclusive right to copyright holders in respect of making works available online and control over the exploitation of copyrights work¹⁷

There is no doubt that international intellectual property law strengthens copyright protection and encourages more rights for copyright holders. The reason is that these multilateral agreements favor copyright owner. Consequently, the beneficiary is overwhelmingly the developed countries. For example, the World Bank estimates that, with the strengthening of intellectual property law, the United States will gain more than US$1 9.1 billion, Germany ($6.8 billion), Japan (5.8$billion) respectively.¹⁸ Furthermore, multilateral agreements point to the importance of particular trade negotiations in the world community nowadays. The trade negotiations influence the world community to respond with harmonization. The trade negotiation creates the possibility to harmonize copyright law more than was possible under previous copyright multilateral agreements like "Bern conventions¹⁹ The TRIPS has had major impact on legislation around the world. For example. In Thailand, the Thai Copyright Act was amended to comply with the obligation in TRIPS agreement such as the principal of national treatment.²⁰ The WIPO Internet Treaties also have had the great impact on legislation, for example, Australian Copyright Amendment (Digital Agenda Act) 2000 or European Union Copyright Directive 2001²¹

However, the multilateral agreement harmonization of copyright in this way has not achieved a real harmonization. The obstacles can be found in the variety of copyright policies in each country. In other words, the countries still have a difference in substantive rules, which depend on the internal policy of each country.²² For example, a difference can be seen in respect of the United States and Thailand legislation. Thai Copyright law does not have an anti- circumvention provision but the United State has adopted a high financial penalty of US$500,000 for anti circumvention breaches²³ The reason may be that member countries still have the power to adopt different intellectual property rules "in a manner conducive to social and economic welfare" and to public interest."²⁴ However, the real reason may be the economic reason. On this point, Fitzpatrick points out that "the countries are unlikely to bring their copyright law into greater harmony unless their interests are more closely aligned.".²⁵ This means the importer copyright countries such as Thailand will not incorporate their copyright law to such a multilateral agreement unless they can reach full economic benefit from those agreements.

B. "Bilateral Agreement"
Apart from multilateral agreements, "Bilateral agreement" are also used to harmonize the law. As mentioned above, the multilateral agreements have failed to result in harmonization. Article 7 in Trips agreements allows each country to preserve their internal policy.²⁶ Consequently, the obligation in TRIPS or WIPO are only a soft rules, since, member countries amend their law as they please. The countries which lose economic benefit will not comply with the obligations in TRIPS. Of course, with this failure, the copyright exporter countries, led by the United States have sought other ways to harmonize their restrictive copyright law with others countries. Eventually, the copyright exporter countries found that the harmonization copyright laws can succeed by scaling down the treaty from global to regional agreements. This is because resistance can occur when those targeted countries (importer countries) create blocs. For example, there has been resistance by developing countries to the notions that GATT could include the field of intellectual property.²⁷ Further, regional or bilateral agreements may be easier ways to put the political pressure on those target countries. Consequently, the bilateral agreement becomes a way to harmonize protection of copyright under international law. As can be seen, there are increasing numbers of bilateral agreements these days. For instance, the United States has signed up a bilateral agreement in free trade with more than 33 countries.²⁸ Some critics say that this is a new strategy of the United States to persuade a world community to strengthen their copyright law.²⁹

Again, this is a form of trade-influenced pressure to harmonize copyright law because the copyright issue is linked with trade -negotiations in free trade agreements between the United States and the contracting state. However, the bilateral agreement has more efficacy than the multilateral agreement such as TRIPS or WIPO. The reason is that the bilateral agreement wipes out the difficulty that occurs in internal copyright policy in a contracting state. In other words, the United States can enforce the internal policy in a contracting state's copyright law. Consequently, there is a radical change in the copyright policy of the contracting state. A good example can be seen in the free trade agreement between Australia and the United State (AUSFTA).³⁰ AUSFTA will dramatically change Australia copyright statutes. The first example of change of the statute is an extension in terms of copyright according to Article l 7.4.4. This provision will expand the term of copyright protection in Australian from life of the author plus 50³¹ to life of the author plus 70 years. Australian copyright statutes will incorporate with the United States Copyright Term Extension Act 1998 and EU copyright directives. Concerning statute change, there are many academic arguments in Australia that this provision will affect the internet in relation to the public domain. In affect, some argue that this extension period would create a diminution of the public domain. The consequent affect is that a new creator will lack of basic knowledge to create news works.³² For example, the expired copyright works like the Lord of the Ring of JRR. Tolkien which was published on 1954 will not expire until 2024. Consequently, the works will not fall into the public domain. Of course, this will obstruct new creator who want to use this works as knowledge base. Moreover, there are a number of provisions in the Australian Copyright Act that may be changed by this free trade agreement. For example the provision in the anti-circumvention measure which will be discussed in a later section. These affects reflect the efficiency in harmonization of copyright law though bilateral agreements. For the reason above, it can be concluded that the bilateral agreement is more effective in harmonization of the copyright law than agreement at the multilateral level.

16. WCT, agreed statement concerning Article 1(4), WPPT, agreed statement concerning Articles 7, 1 1 and 16.
17. The WIPO Copyright Treaty Article 8 and the WIPO Performance and Phonogram Treaty Article 14.
18. Yves Engler, Copyright and Myth of free markets, Canadian dimension : (Toronto) May-Jun 2003 p32.
19. The Bern Convention for the Protection of Literary and Artistic works adopted September 9,1986.
20. Thai Copyright Act section 1 8 see also Chaiyadej Hemmaraj, Thai Intellectual Property law (4"' ed. 2004) 60.
21. European Parliament and Council Directive 2001 X29 on the harmonization of certain aspect of copyright and related right in the information society.
22. Graeme B Dinwoodie, William 0 Hennessy , Shira Perlmtter, Intellectual Property Law and Policy (2001) para 2.06 at 79 .
23. Digital Millennium Copyright Act 1 7 U.S.C s 1204 (1 998).
24. the Trade Related Aspects of Intellectual Property (TRIPS) agreements Article 7, 8 See also Daniel Gervis, The TRIPS Agreement drafting History and analysis (2nd ed 2003).
25. Fitzpatrick, above n. 14 ,222.
26. the Trade Related Aspects of Intellectual Property (TRIPS) agreements Article 7.
27. Gervis, above n. 24, 3.
28. update of countries available at the office of the United States Trade website <http://www.ustr.gov/index.html>.
29. Electronic Frontier Foundation, "FTAA Resources", (2004) Electronic Frontier Foundation website<http:// www.eff.org/IP/FTAA/ Access > at 10 June 2004.
30. Australian and the United free trade agreement available in government department of foreign affair and trade website at <http://www.dfat.gov.au/trade/negotiations/us.html> at 1 0 June 2004.
31 . Copyright Act 19 68 (Cth) s 33.
32. Emma Caine, Andrew Christie and Peter Eckersley, Copyright protection 70 years after death does not encourage creativity. Australian Financial time review (Sydney) 19 November 2003, 24 also available at < http://wwww onlineopinion.com.au/print.asp?article=889> at 11 June 2004.

This article is published with the kind permission of Thiti Susaoraj, Judge Trainee. This article originally appeared in Volume 54, No. 3, September – December 2007 edition of Dulapaht Law Journal.