Thailand Law Journal 2009 Spring Issue 1 Volume 12

Internet and Intellectual Property

"Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person.... Whatsoever, then, he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.... For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others"¹*

Thiti Susaoraj [FN1]

John Locke
Section 27, Second treatise to government.

The advent of the internet on others digital technology radically affects ways in protection of copyright because digital technology enables the transmission of copyright material across the internet and also allows the conversion of copyright materials into binary form² With this technology, people can now freely receive, share, copy and distribute digital files of copyright material across the world instantaneously, with near perfect duplication. A good example that challenges copyright protection is Peer-to-Peer file sharing technologies like Napster, and KaZaa where a many infringements of copyright material can be facilitated around the world.³ Copyright on new release hit songs can be infringed material days that they are release. Internet and digital technologies make it easier to infringe copyright works than ever before. With this characteristic of the internet and other digital technology, some describe the internet as "the world's biggest copy machine”⁴ Also, some ironically define copyright status in the digital age as a "Copyleft."⁵ In other words, they suggest that copyright law currently is not suitable for these new technologies.⁶ Of course, these technologies developments create for the copyright industry a fear of losing their right to commercial exploitation. Consequently, not surprisingly, the copyright industry has sought to raise the level of copyright protection in this technological area. The copyright industry's attempts can be seen in increasing technological protection measures or in the lobbying of their law-makers to raise the level of copyright protection. Currently, the copyright industry has been quite successful in their attempts. Copyright protection has been increased in most countries. Current, there are many laws to strengthen the copyright protection in digital technologies. For example the U.S congress enacted the Digital Millennium Copyright Act (DMCA) to address and strengthening copyright protection in the digital age. This successful did not stop at the national level. At the international level, the copyright industry has also successfully enforced a treaty like WIPO.⁷ All these activities of copyright owners can be argued to be the beginning of harmonization in the area of copyright law. However, the harmonization also creates more and more restrictions on copyright. Recognizing this, some critics have said that harmonization in Copyright law may go too far beyond original copyrights rights.⁸ Copyright law these days is over responsive to "greedy" copyright owners and it forgets to give back to the public there due to Locke, who said in his second treaties that when someone take benefit from his property enough, he should give some benefit back to his society.

This paper addresses how to harmonize copyright and the consequent affects of this harmonization. This paper will examine harmonization of copyright in approach to international law. Also, it will examine the other copyright harmonization that is approached by technology and also give examples of consequent affects.

Harmonization of international law
In recent decades, the trend towards global markets has increased by the spread of multinational companies. Also, there has been a significant increase in online commerce. This change has become a crucial issue because of difference in copyright rules between different countries. For example, many countries offer different protection to local and foreign works.⁹ Consequently, the copyright industry realizes that international cooperation and coordination is a substantial part of creating an efficient in protection of their works. Lobbying their government is the only way to deal with this problem and also seems to be easy for the copyright industry. That is because the copyright industry contributes a high portion in a gross domestic product (GDP) to their countries. In the United States, the copyright industry contributes more than 5.24% of their GDP. This figure equates $US 91.2 billion.¹⁰ Not surprisingly, the United States has a strongest copyright law in the world. Also, these figures illustrate why the United States usually plays a vital role in the international intellectual property these days. It can be argued that the act of the United States usually reflects the trends in activity of the copyright industry in this decade. International law is the means by which copyright exporter countries like the United State can harmonize their restrictive law with others countries.

A. "multilateral agreement"
The `multilateral agreement' is the first key way of copyright exporter countries like the United States use to obtain an international level of protection. Exporter copyright countries led by the United States have sought in many ways to establish successful intellectual multilateral agreements. Therefore, Copyright exporter countries have used investment as a potential tool to bring intellectual property issue to the sphere of international trade.¹¹ This can be clearly seen in the free trade negotiation in GATT. In GATT, The copyright exporter countries applied political pressure to include Trade-Related Aspects of the Intellectual Property Agreement (TRIPS).¹² Consequently, TRIPS become the one successful approach to harmonization of copyright in international law. More than 150 countries have ratified this agreement.¹³ Some said that TRIPs is "probably the most significant development in the international intellectual property law"¹⁴ TRIPS agreement standardizes local law to minimum standard in many area of protection. Of course, TRIPS was designed by the exporter countries. Consequently, TRIPS tends to favor the copyright industry For example TRIPS restricts national autonomy by forbidding nations from treating foreigner works rights as less than their own.¹⁵

*Thammasat University (LLB.), Monash University (LLM.) (intellectual property law), London School of Economics (LLM.in Commercial law), Judge Trainee.
1. John Locke, Two Treatises of Government (Peter Laslett ed., Cambridge Univ. Press 1988) (1 690).,Second treaties 21 See also Benjamin G. Damstats Limiting Locked a natural justification for the fair use doctrine (2003) 11 2 Yale law journal 1 17 9,1 184.
2. WIPO Intellectual Property on the internet : A survey of Issues (2002) Chapter III.
3. See eg. A&M Record Inc. v Napster, Inc f 3d. 1 004 (9°i Cir 2001 ).
4. See "It's the World's Biggest Copy Machine," PC Week (January 27, 1997) cited WIPO. WIPO Intellectual
Property on the internet : A survey of Issues (2002) Chapter III.
5. See P. Lambert, "Copy left Copyright and Software IPRs: is Contract Still King? (2001)23(12) European
Intellectual Property Review 165,167.
6. John Perry Barlow assert that traditional intellectual property law does not fit into digital environment See J. P. Barlow, The economy of Ideas-Selling wine without bottle on the interner", available at <http:// www.eff.org/ balow/economyOfldeas.htmi > cited by Hennung Weise, The Justification of the copyright system in digital age (2002) 24(8) European Intellectual Property Review 387.
7. WIPO Copyright Treaty adopted on 20 December 19 96.
8. See Simon Fitzpatrick, Copyright imbalance : US and Australian responses to WIPO digital copyright treaty(2000) 22(5) European intellectual property Review 214,217.
9. Jill McKeogh,Andrew Stewart, Philip Griffith, Intellectual Property law in Australia (3d ed. 2004) 37.
10. See IIPA Report by Stephen Siwek, Economists Incorporated, "Copyright Industries in the U.S. Economy: The 2002 Report". See Tamara Conniff and Craig Linder, "U.S. Intellectual Prosperity," Hollywood Reporter (California) 23-29 April 2002 p.1
11. Simon Fitzpatrick prospect further copyright protection, (2003) 25(5) European intellectual Property Review 215,221.
12. Id.
13. McKeogh, above n.9 , 37.
14. See M. Blakeley, Trade Relates Aspect of Intellectual Property right : A concise guide to TRIPs agreement (1 996).
15. Trade Relate Aspects of Intellectual Property Right (TRIPs) agreements Article 3.

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.