Copyright and trade issues: Perspectives of a telecommunications lawyer

Abstract

The strongest copyright protection is afforded by a regime in which the consent of the copyright holder is required to the reproduction or performance. The weakest copyright protection is afforded by a regime in which the reproduction or performance does not infringe domestic copyright law, either because it is subject to an exemption or because domestic law does not prohibit the act. Between these extremes is a regime in which reproduction or performance is permitted under a compulsory or statutory licence that is conditional upon the payment of royalties established by an independent authority. This paper reviews a number of cases in which domestic copyright laws have constrained, or may constrain, international trade in telecommunications services. The cases include territorial restrictions under a US compulsory licence on the distribution of television signals on a direct‐to home basis, the loss of access by Canadians to the Napster service as a result of the extraterritorial impact of the application of US copyright laws, existing and proposed restrictions on the use of the Internet for the retransmission of broadcasting signals, and various attempts by owners of creative works to employ domestic copyright law to limit the export of broadcasting signals to other countries. Based on these cases, the paper considers whether more extensive use of compulsory licensing is the optimum means of both protecting the interests of creators and promoting international trade in telecommunications services.