PROTECTION
OF INTELLECTUAL PROPERTY
RIGHTS IN DIGITAL
CONTENT TRADE
W O R K S H O P
S U M M A R Y
R E P O R T
APEC COMMITTEE
ON TRADE AND INVESTMENT
SEPTEMBER 2 0 2 1
APEC Project: CTI 02 2019
Produced by
Russian State Academy of Intellectual Property
Mr Patvakan Giulazian
Project Overseer
Leading Specialist
Department for Trade Negotiations
Ministry of Economic Development of Russia
Russia
For
Asia-Pacific Economic Cooperation Secretariat
35 Heng Mui Keng Terrace
Singapore 119616
Tel: (65) 68919 600
Fax: (65) 68919 690
Email: info@apec.org
Website: www.apec.org
© 2021 APEC Secretariat
APEC#221-CT-04.5
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Contents
Introduction ..................................................................................................................... 4
Background ...................................................................................................................... 5
Workshop - Discussion Findings .................................................................................... 6
Opening Remarks .................................................................................................... 6
Questionnaire Results .............................................................................................. 6
Session 1: General Issues of IPR Protection in Digital Content Trade................... 8
Session 2: Specific Aspects of Copyright and Related Rights Protection on the
Internet ..................................................................................................................... 9
Session 3: Domestic Approaches of Marks Protection in Digital Content Trade 11
Session 4: Access to New Technologies in the Context of Digital Content Trade
............................................................................................................................... 13
Conclusion Remarks and Recommendations ................................................................ 15
Annexes ......................................................................................................................... 16
Annex #1. Structure of the Questionnaire ............................................................. 16
Annex #2. Overview of the Replies to the Questionnaire..................................... 17
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Introduction
Digital economy is a key phenomenon at the current stage of global development. The use of
digital technologies contributes to the economic development and trade facilitation and ensures the
inclusive nature of regional production and trade. Information technology (IT) sphere has opened the
opportunities to lower distribution costs and enlarge the market for content-related businesses.
Recently, there has been surge in the ability of consumers and businesses to reach the Internet and to
engage
in digital content trade and e-commerce.
However, the absence of Intellectual Property Rights (IPR) protective mechanisms leads to
higher vulnerability of creations on the Internet. The processes
of copying or altering digital information have become easier and more available with the IT
development. In this regard, violation of IPRs is one of the key impediments
for digital content trade. There are challenges to protecting intellectual property
in the digital environment that need to be tackled timely at both domestic
and international level. APEC economies ’individual and joint efforts should
be focused on the development of transparent and efficient regulatory environment, which enables
trade in digital content and related business activities, while ensuring that intellectual property rights
are respected.
With an aim to identify the above-mentioned potential challenges and find out potential ways
to address them, including through reviewing existing regulatory framework and APEC economies’
best practices in the area of protection of IPR in digital content trade, a respective virtual workshop
“Protection of Intellectual Property Rights in Digital Content Trade” was held on 20-21 April 2021. It
was hosted by Russia and co-sponsored by China; Hong Kong, China; Korea; Mexico; Philippines;
Chinese Taipei; and Viet Nam.
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Background
The APEC Project CTI 02 2019 Protection of Intellectual Property Rights
in Digital Content Trade (Project) was implemented to meet the following objectives:
to examine existing challenges APEC economies are facing in the field of IPR
protection in digital content trade;
to facilitate better understanding among APEC economies of how the issues relating
to IPR protection in digital content trade are regulated on international, regional
and domestic level;
to review APEC economies best practices and exchange experiences in promoting
effective protection of IPR in digital content trade.
The Project includes four major phases: (1) developing and circulating a Pre-Workshop
Questionnaire and the analysis of APEC economies replies; (2) conducting two-day workshop (in
virtual format); (3) preparation of the summary report, that contains the analysis of two previous steps
and (4) developing an initiative based on the project findings.
From 12 to 31 March 2021 the Pre-Workshop Questionnaire (Annex #1) was circulated to
gather information from APEC economies on existing domestic regulation and applied practices in the
field of intellectual property rights (IPR) protection in digital content trade, views of APEC economies
on most critical challenges to the IPR protection in digital content trade, as well as APEC economies ’
examples on how to tackle such challenges. The questionnaire contained closed and open-ended
questions and the submitted replies served as a starting point for the virtual workshop dedicated to the
protection of intellectual property rights in the digital content trade. The questionnaire materials and
the following analysis (Annex #2) were prepared by the Russian State Academy of Intellectual Property
(RSAIP).
Eleven economies submitted their replies to the Pre-Workshop Questionnaire: Canada; Chile;
China; Hong Kong, China (HKC); Indonesia; Japan; Malaysia; Mexico; Peru; Chinese Taipei; and
Russia.
The two-day virtual workshop dedicated to the protection of intellectual property rights in the
digital content trade was held on 20-21 April 2021. The workshop included four sessions with expert
presentations followed by the Q&A, with 15 speakers and 115 participants from 19 economies and
international organisations (UNCTAD, WTO, WIPO, etc.) in total.
Based on the recommendations of the virtual workshop, Russia will consider proposing new
activities/initiatives to follow up the outcomes of the Project.
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Workshop - Discussion Findings
Opening Remarks
The workshop was opened by welcoming remarks from Mr Grigory Ivliev, Head of Rospatent,
and Ms Ekaterina Mayorova, Director of the Department for Trade Negotiations, Ministry of Economic
Development of Russia.
In his speech, Mr Grigory Ivliev welcomed the workshop participants
and highlighted the importance of discussion for the effective development
of IP system and international digital content trade. COVID-19 pandemic accelerated the digitalisation
of many goods and commercial interactions. Copyright and related rights are now fully present in the
digital environment, and it is essential to establish an appropriate approach towards their protection and
enforcement at the global level. He gave a brief overview of the digital systems that are being introduced
by Rospatent in order to facilitate these processes.
Ms Ekaterina Mayorova emphasised that the pandemic significantly increased the volume of
e-commerce, and this digital boost created several challenges,
with content trade being one of them. The importance of IP regulation will continue
to grow because many digital products can be consumed by an unlimited number
of users. It creates a necessity for high quality IP protection in this field,
and it is essential to ensure that IPR is not limiting access to technologies
in a discriminatory manner. A balance needs to be achieved, and as complex
as it is, now it becomes more difficult given the lack of common understanding
of the scope of digital content and therefore the scope of applicable regulation in this area. There is an
obvious need for clear, transparent, universal and business-friendly regulatory environment enabling
business activities and ensuring at the same time
the respect for IPR. It would be very helpful to identify key challenges and problems in this area, to
review the existing regulatory framework and the practices.
Questionnaire Results
Questionnaire results were presented by Ms Daria Biryukova, the Director of the International
Centre of IP Competences, RSAIP to guide the further discussion.
The survey analysis has shown that at the international level as well
as at the domestic level, most APEC economies do not have any harmonised definition of digital
content trade, however, the vast majority indicated
the importance of such term and definition. That proves the necessity to elaborate
an agreed definition of the digital content trade. At the same time, most of the APEC economies do not
keep statistics on the share of digital content trade in total GDP. Some respondents reported the share
of e-commerce and the share of creative works. Some economies are working on the approach to
calculating detailed statistics concerning the digital content trade.
Regarding the legal regulation, most economies indicated a lack of legal frameworks governing
the digital content trade. However, some economies indicated that they protect the digital content as a
part of Copyright that grants the protection upon creation of a work, including a digital one. Some
economies indicated that they have a general framework for commerce, including electronic
commerce.
As per registration of digital content, some economies provide optional registration of such
works with local IP offices, however, it is not an obligation
due to the copyright well-established practice that covers digital works as well.
In the case of a federal state or trade union, some economies have harmonised rules and
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legislation relating to digital trade across their economies. A few concerned economies provided recent
updates of their domestic legislation in terms of copyright regulation and e-commerce.
Regarding cross-border transactions, most economies indicated that IP rights have territorial
nature, therefore they apply the territorial principles. However, they
do not have any specific regulation for cross-border transactions covering the digital content trade
directly. Concerning cross-border disputes related to the digital content trade, a number of economies
indicated that parties could independently choose the way of legal protection and enforcement of their
rights, including the court system that also might depend on terms and conditions specified within the
contracts signed between those parties. Some respondents also indicated alternative dispute resolution,
such
as arbitration and mediation. Some economies reported that they are parties to several bilateral or
multilateral agreements concerning cross-border trade related to copyright-protected works, as well as
the cross-border trade overall, such as TRIPS, WIPO’s agreements, ASEAN, as well other regional
bilateral and multilateral agreements between the economies.
As legal barriers, the responding economies see the complexity and uncertainty in legal
protection of digital content, particularly on the Internet that is not specifically regulated in most
economies. However, some of them mentioned mechanisms
of Internet control and regulation as well as fighting piracy, for example, blocking websites that
infringe the copyright or contain pirate content. Partially, accessibility
is also one of the key issues along with the uncertainty and lack of legal regulation,
as well as lack of trust or qualified professionals in that area. Some respondents expressed their
concerns relating to the fee and tax payments that are unclear
for the digital environment.
More than half of respondents highlighted their activities focused on the digital content trade
and its protection, including raising awareness among the population. Some economies engage both
public and private sectors to elaborate on the issues relating to the regulatory framework and collective
management of rights.
A few respondents have relevant working groups and communities to address such issues and to find
out possible solutions that would be acceptable for everybody.
Some respondents highlighted their domestic programs dedicated to the Digital Economy. Most
economies allow the collective management of rights in terms
of copyright-protected works, such as literature, movies, music, etc.
Due to the COVID-19 pandemic and its consequences, many of the responded economies
reported a significant increase in the digital environment that boosted digital activity, including trade.
Some respondents recognised the transition of some industries into the digital environment, such as
education and creative industries. Thus, most
of them had to rapidly adapt to the digital transformation process taking into account the
epidemiological situation across the globe. However, most economies did not face any infringement
boost, perhaps due to enhanced measures focused on legal protection and raising public awareness.
Considering the received responses and the outcomes of the survey,
it is recommended to the APEC economies to deepen understanding of the scope of
the digital content trade that would be mutually agreed upon at the international level.
Since most respondents indicated IPR protection in the digital environment
as one of the key issues, it would be reasonable to discuss the regulation and governance of the digital
content trade at the international level as well as the approaches to IPR protection in the digital
environment.
Among the respondents, the vast majority of statistics agencies do not separate the share
attributed to the trade in content transmitted and consumed in digital format due to definitional and
measurement challenges and the absence of uniform
or consistent methodology. Thus, it seems to be reasonable to determine a common methodology for
collecting and estimating such statistical data.
Among others, key aspects for further discussion with the international community are rights
infringement and piracy fighting, as well as regulation
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of e-commerce. Nowadays, the lack of such regulatory frameworks is obvious, therefore enforcement
measures for cross-border infringements is another important topic. Finding out appropriate solutions
that might help in resolving the said issues would be of great benefit to the international community
and APEC economies
in particular.
Session 1: General Issues of IPR Protection in Digital Content Trade
This session was dedicated to the existing global regulatory framework relating to IPR
protection in digital content trade. It covered information exchange related
to domestic regulation in this field, including challenges related to the territorial nature of IPRs and the
new challenges that appeared due to the COVID-19 pandemic.
As a result, the participants received a better understanding of the current legal framework and its gaps.
The overview of the IP system in the context of digital trade from the multilateral perspective
was offered by Mr Wolf Meier-Ewert, Counsellor at the Intellectual Property Division, WTO. The
main challenges include the territoriality of IP rights, new IP uses in terms of products and distribution,
as well as new business models. There are different international responses to these challenges: conflict
of laws, international standards (TRIPS and WIPO), regional and sectoral harmonisation
(i.e., EU Trademark or UDRP) and technological solutions (TPMs and DRM).
Multilateral response to copyright issues in the digital context include general principles of the
TRIPS Agreement, digital update of the WIPO Copyright Treaty
and WPPT. Copyright rules are quite often applied to digital content trade issues, which was also
illustrated by the questionnaire results. Even though the existing multilateral framework is quite
sufficient, some obstacles remain, including the issue of ownership, term of copyright and the scope of
exceptions and limitations, all of which vary
from jurisdiction to jurisdiction.
International response includes a variety of approaches. There are many rules
on IP in the digital context in FTAs and RTAa, usually including references to WIPO internet treaties,
terms of protection, scope of protection of TPMs and liability
for internet service providers. A significant part of the regulatory need on digital trade is currently
contained in the FTAs. Some areas are still lacking common approaches, such as online exhaustion,
orphan works, data mining, creations and infringements
by AI systems.
Trademark issues in the digital context are also now being solved within
the scope of principles of the TRIPS Agreement, but there has been a recent digital update of WIPO
Recommendations (Joint Recommendation concerning provisions
on the Protection of Marks, and other Industrial Property Rights in Signs,
on the Internet, 2001). Despite being non-binding, throughout the years they have been incorporated
into many FTAs.
APEC Policy Support Unit represented by Mr Andre Wirjo shared the findings of the study
conducted the previous year. The factors that drive digitalisation include improved access to
infrastructure, continued advancements in technology, increased awareness and COVID-19 measures.
A lot of work remains in order to create
a supportive environment and facilitate cross-border e-commerce, which has widely discussed, in
particular, electronic transactions framework, cross-border related issues, consumer protection,
cybersecurity, infrastructure related aspects and market access.
The issue of intermediary liability becomes very important due to the increased possibilities for
infringement in the context of wider internet access. There is a need
to clarify who is liable for the counterfeiting in third-party use of content: internet service providers or
platforms.
The above-mentioned study consisted of two main parts: the database of relevant laws and case
studies. All APEC economies can be divided into three groups based
on their approach to intermediary liability. The first group established little to moderate liability due
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to the lack of relevant legislation, the second has conditional liability relying on safe harbour approach
and the third - greater liability where insufficient response can lead to penalties. By subject matter two
main approaches
can be identified: general and targeted. The latter applies to specific IP rights, mainly copyright, and
the legislation has clear specifications on where safe harbours apply,
as well as an established notice-and-takedown approach.
The integrated approach to the protection of IPR was discussed by Mr Ermias Biadgleng,
Officer in Charge, Intellectual Property Unit at UNCTAD. The digital content industry operates at the
intersection of creativity and information technology. There are three main considerations in this
regard: the fact that the internet
is considered an important opportunity for investment, social development and education; the
importance of enforcement of IPR and the market power of large, multinational technology companies.
Using the example of the music companies, UNCTAD representative explained, that the
industry suffered losses during the period of widely spread infringements,
and now the steady growth of revenues can be explained by introduction
of new technological business models.
If large, multinational technology companies players are participating in the digital content
trade, it means that they have enough financial resources and investment interest to contribute
to the enforcement of IPR, but on the other hand they have substantial power that they can use in
negotiations with content developers.
The UNCTAD experience in working with developing economies can
be summed up in four main purposes: supporting investment in digital companies
for the development of newer business models, addressing inequities between platforms and users,
building capacity for content creators and international cooperation.
Mr Andrey Kuleshov, the counsellor at the Permanent Mission of Russia
to the WTO, emphasised the issues of IP regulation in the digital content trade using the example of a
triangle with unequal sides: IP, Trade and E-Commerce, as those elements are still on various levels of
development in terms of regulations.
In Russian experience IP is the most developed with numerous legislative acts, international
cooperation and a highly effective IP Office, Rospatent. IP and Trade aspects are connected on the
international level with the WTO’s TRIPS Agreement, but the experience in this field is still recent.
For example, Russia has taken
an obligation under the WTO jurisprudence in regard to enforcement of copyright
on the internet, even when TRIPS does not contain direct regulations of digital trade.
In Russia, the “Anti-Piracy law” allowing enforcement of infringed content
on the internet in an effective manner entered into force in 2013. All Russian FTAs include specific
provisions on IP.
The issue of e-commerce regulation remains an important topic of discussion
for Russia, especially on the international scale, which is even more difficult given
the differences in approach to its regulation, no international example to follow
and technologies constantly amending business models. There is an apparent need
for international framework or rules for e-commerce to connect all three sides
of the above-mentioned triangle. One of such platform for communication is the Work Programme on
Electronic Commerce at WTO.
Domestic systems of IP protection are sometimes limited when it comes
to digital trade. For example, an infringing website can be blocked on a domestic level, but widely
available VPN technology allows users to keep accessing the illegal content.
Economies need a common understanding of e-commerce and regulations specifically for
digital content trade with a focus on IP.
Session 2: Specific Aspects of Copyright and Related Rights Protection on the Internet
This session was dedicated to the challenges of copyright and related rights protection on the
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internet, as well as various approaches to tackling them. Moreover, the presentations in this session
focused on the impact of the COVID-19 pandemic
in terms of piracy and new challenges faced by rights holders.
Ms Pham Thi Kim Oahn, Deputy Director General of Copyright Office
of Viet Nam, explained the experience of Viet Nam in the field of copyright and related rights
protection on the internet. The copyright system contributes greatly
to the promotion of creativity and socio-economic development, and technological advancement brings
new challenges.
The copyright system of Viet Nam includes laws on Intellectual Property, amended in 2009,
with a separate Circular providing liability of intermediary service providers (ISP) in the protection of
copyright and related rights in the digital environment and telecommunication network. This Circular
establishes a system
of checking and supervising information that is being hosted or transmitted
on the internet to prevent infringements, as well as detailed liability of ISPs.
Viet Nam is a part of several bilateral agreements and multilateral treaties, including TRIPS
Agreement. There are also 5 Regional FTAs within the ASEAN
and 5 FTAs.
Several main challenges that Viet Nam faces in relation to copyright protection online include
identification of infringement of rights to copy, to communicate
and distribute works, as well as compensation for damages caused by infringement
on the internet and determining a competent court. When infringement is done with
the use of newest technology the identification of the infringement entity is more difficult, as the law
doesn’t keep up with the technological development.
To face these challenges Viet Nam applies a number of solutions, including regulating the new
legal relationship in accordance with the international practices, acceding to international treaties,
improving capability, expanding management area, cooperating with specialised management
authorities and strengthening international cooperation.
Mr Tatsuya Otsuka, General Manager in International Affairs at the Content
Overseas Distribution Association (CODA) provided an overview of copyright protection in Japan.
CODA, a voluntary organisation founded in 2002 with 32 member companies, 12 organisations and 9
supporting members, promotes legitimate content distribution, collaborates with regulatory bodies both
in Japan and abroad and conducts educational activities.
Today online copyright infringement includes illegal streaming devices, piracy websites, UGC
sites, link sites, online storages, P2P and shops that sell pirated content. One of the main protection
activities that CODA has implemented is an Automated Content Monitoring and Takedown Centre that
uses digital fingerprint technology
with assistance of manual monitoring that is very effective.
There is a number of indirect measures that is being taken by CODA, including user warnings
upon entering the infringing platform, delisting of search results, takedown requests, suspension of
advertisement and of settlement process. Piracy websites usually make profits through advertisement,
and the initiative to prevent
ad placement on infringement sites is very effective, done by creating a list
of infringing websites and apps, working closely with WIPO Alert.
Cross-border online copyright infringements have become more complicated, which is very
difficult and time-consuming to address. Overseas piracy sites infringe
a large volume of Japanese contents and continue to grow in numbers, and there isn’t a method or a
framework for quick identification of their operators. Newest technology, 5G in particular, facilitates
the infringement process. To solve this issue a Cross-Border Enforcement Project (CBEP) was initiated
as a collaboration with cyber security experts to track down and identify site operators in order to
strengthen cross-border enforcement efforts.
Mr Szu-Ting Chen, Associate Professor for department of Law at National Cheng Kung
University, offered an overview of online copyright protection solutions by Chinese Taipei. The
experience with infringement is similar to other APEC economies, with P2P, streaming, hyperlinks,
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and illegal websites and apps being the main ways
of copyright infringement. These types of technology present a number of legal questions that are not
directly tackled in the existing copyright law.
In 2007 and 2019 Copyright Act was amended to include the illegal use of P2P programs, OTT
boxes, mobiles devices and prohibited acts: to provide programs
to the public and to manufacture, import or sell equipment or devices with these programmes installed.
The Copyright Act does not contain the concept of blocking an illegal website, so the court
authorised the “seizure” of a domain name. In this regard, judicial
and technological collaboration with member economies is needed.
COVID-19 pandemic brought into view the issue of online learning, and in 2021 Copyright Act
was amended to adjust the limitations of author’s economic rights
for educational use of their work in order to maintain balance between the author’s right and the public
interest, educational and cultural purposes.
Mr Dmitry Syrtsov, independent expert at the Russian Diplomatic Academy, highlighted the issues of
IPR protection in the digital economy with the focus on media content. The digitalisation changes the
forms of creativity and the share of media consumption, relationship between authors and consumers.
With no definition in existing domestic and international law, in the digital economy media
content can be defined as information-containing coded data presented to the user in the form of text,
graphics, sound, video, and multimedia. As technology develops, those common forms of content
change, as well as their creators due
to the fact that anyone anywhere in the world can become content creator.
A phenomenon of “prosumer” emerges, who is an active network user who at the same time consumes,
produces and distributes content.
The main issues of media content regulation include impossibility of monitoring the use of
works by copyright owners, difficulties in copyright owners identification, sharing nature of the
internet, the fact that not all rights-holders register their rights,
the lack of metadata, the increasing speed of information exchange,
the extraterritoriality of the internet and the possibility of content access simultaneously by an
unlimited number of people.
Technology also may offer solutions both for authors and consumers.
For example, blockchain can help resolve problems of copyright registration
and infringements by providing user-friendly tools.
The improvement of legislation should be introducing new concepts relating
to technological progress, including such concepts as media, content and the internet.
Session 3: Domestic Approaches of Marks Protection in Digital Content Trade
This session focused on the interaction between marks and digital content,
as well as the domestic approaches to the protection of marks in the context of digital content trade.
During this session speakers shared their experiences in order to facilitate a better understanding of the
relevant issues.
It can be noted that the presentations on the issue highlighted the need
for enhancing both legislative and enforcement systems in regards to the marks protection in the field
of digital trade. Moreover, as seen in the questionnaire results, this need forms a strategic path for the
government willing to keep up with the high speed of technological development and updating their
intellectual property ecosystems.
The Philippines, for example, has recognised this direction and now demonstrates the
benchmark results. Mr Atty. Rowel S. Barba, Director General
of the Intellectual Property Office of the Philippines (IPOPHL) in his comprehensive overview shared
their whole-of-government approach to the IP rights protection, involving both governmental bodies
and private stakeholders, which is considered
to be the key to their effective enforcement.
In 2020 the Philippines experienced a surge in IPR violation complaints
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and reports with 95% of them in relation to digital space, mostly due to the shift
to e-commerce and entertainment as a result of the COVID-19 pandemic.
In response the Revised Rules of Procedure on Administrative Enforcement of IPR were issued,
explicitly including online counterfeiting and piracy in enforcement work. These rules provide for
blocking the websites that make available to the public counterfeiting goods and pirated content.
Whole-of-government approach is focused on the cooperation between government agencies
and strengthening the legal framework against counterfeiting
and piracy that are now heavily influenced by technological advancement. Since 2020 amendments to
the IP Code are being reviewed to intensify the government efforts
in preventing counterfeiting and piracy both in physical and online markets.
They include a faster website blocking system, the ability to conduct store visits
and preventively place in custody IP infringing goods, institutionalisation of IPOPHL’s IP Rights
Enforcement Office, establishing liability for landlords and platforms found to be dealing in trademark
infringing goods.
The Internet Transactions Act will change how e-commerce platforms
and websites operate by holding them accountable for erring online merchants
and setting more adequate preventive mechanisms. A Memorandum of Understanding was signed
between e-commerce platforms and several right holders aimed
at developing a code of conduct in dealing with vendors selling fake and pirated goods.
IPOPHL has strong collaborations: for example, with the Bureau of Customs
or as a part of a 12-member Committee on IPR (NCIPR). The Philippines continues
to be the chair of the ASEAN Network of IP Enforcement Experts. It continues
its collaboration with the ASEAN Customs Enforcement Compliance Working Group and ASEAN’s
2016-2025 IP Rights Action Plan.
One of the most important directions in IPOPHL’s work is creating a culture
of respect for IPR, for example, through webinars offered to their employees and other government
agencies on how to spot counterfeit goods and pirated items as consumers.
The experience of Mexico also includes a significant number of legislative changes aimed at
improving IPR protection system that were created following the best foreign practices, the feedback
from users and the experience of the system as well
as international treaties. Mr Aldo Fragoso, Director of Intellectual Property Protection Division at
Mexican Institute of Industrial Property, presented the most important amendments.
After an outstanding case the Supreme Court recognised that Mexican Institute of Industrial
Property (IMPI) has the authority to order provisional measures to block the illegal content on web
pages and measures against Internet Access Providers
and other third parties as long as the decision is based on a legitimate purpose
and is necessary and proportional. The new legislation clearly provides that these actions are in IMPI’s
authority as well as the right to carry out inspections both
in physical and virtual environment to find infringing content.
Trademark and copyright infringements affect negatively not only consumers and government
agencies, but also marketplaces. As the share of digital trade
due to the growing access increases, the issue becomes more significant. Industry representative, Mr
Kirill Gorbachev, the Chairman of the Board of Directors at Global Rus Trade (Russia), highlighted
the need to develop appropriate tools. Russia introduced a digital marking system to track counterfeit
products: every item is marked by a digital code providing information about the current location of
the product, which significantly limits the possibility of infringement. For now, the system includes a
limited number of product types such as tobacco, furs, pharmaceuticals, jewellery, etc.
The approach of Global Rus Trade as a marketplace includes verification
of all sellers on the platform, control over the use of IPR and automation of many processes aimed at
improving data exchange with customers and sellers.
As entrepreneurs are responsible for compliance with IP laws, it is important to educate them on IP
related subjects, which is a task both for the government and marketplaces. Digital trade platforms
have to start constant communication with domestic IPOs
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and make it a requirement to have trademark certification before they accept goods
for sale. It will enable to significantly decrease the traffic of counterfeit products
and the number of IPR related litigations that will have a positive impact on businesses and economy.
Online platforms are an integral part of the discussion on digital content trade. From the point
of view of the international organisation, as presented by Mr Brian Beckham, Head of the Internet
Dispute Resolution Section at WIPO’s Arbitration and Mediation Centre, the notion of consumer
protection is even more true
in the online environment. The UDRP is a core aspect of protecting consumers online as it effectively
allows brand owners to reclaim domain names from infringers. During COVID-19 crisis WIPO
experienced a record growth in filings for UDRP: with
the world conducting its major activities online from home, there are more opportunities for infringers.
The key elements that make UDRP successful include global reach, contract system and
straightforward legal criteria. Nearly all decisions now rendered by the experts cite the principles that
are laid out in the WIPO Overview, that is a compilation
of 50 commonly accepted principles that were drawn from 50,000+ cases. The UDRP forms a bases
for a number of ccTLDs and manages disputes for 80 of them
as a part of serviced provided to the member states.
It is highly important to establish trustworthy online presence both
for companies and consumers as it can influence the economy in a positive way:
the statistics demonstrate that the more consumers trust that they are safe during transactions online,
the more it drives jobs and GDP.
Session 4: Access to New Technologies in the Context of Digital Content Trade
The new emerging technologies present both challenges and opportunities
to the IP rights holders and government authorities. This session covered the exchange of practices,
approaches and ideas related to the protection of IPRs in terms of new technologies, namely AI,
blockchain, autonomous vehicles and others. An appropriate way to tackle these issues can
significantly promote both innovation and creativity.
At the same time, the lack of understanding in this field may result in a strong economic decline.
The interconnection of the IP system with economic processes and technological advancement
is obvious, and the overview given by Ms Tuthill Lee, Counsellor
at WTO, demonstrated comprehensive statistics illustrating the topic. US Retail digital trade data
shows that online content is in more demand than ever: books, music
and video became the biggest product category in 2020, while in 2019 it was only
the 10th in sales. Among other significant findings is the fact that Asia-Pacific region is a leader in e-
commerce retail sales in 2020, followed by North America with
a significant gap, and that the global tech & telecom sector was one of the least affected by the
pandemic in 2020.
WTO representative gave a summary of the most relevant technologies and emerging tech
trends, including broadband and mobile internet advances, artificial intelligence, blockchain, 3D
printing, as well as established technological business models: cloud, Big Data and Internet of Things.
For example, mobile internet and 5G introduction, predicted to triple in 2021, has the biggest
importance not only for consumers but also for industrial applications. The cloud-based technology
will be more in demand both from the public and a variety of businesses, and Big Data is inherently
dependent on the cloud infrastructure as well. AI is and will be used not only by high-tech sector, but
also by financial services, transportation, energy, media and automotive industry. IoT also works with
AI
and is being developed a lot faster than expected: from smart-cities and factories
to autonomous vehicles. Blockchain, in its turn, is and will be commonly used in IoT, smart devices,
and electric e-mobility; 3D printing - in aerospace, medical
and automobile industries.
In terms of regulations, the issue of territorial boundaries arises within
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the IT industry there is a huge amount of outsourcing which makes even a seemingly local trade in fact
global. Even though all these technologies are interconnected, they are being regulated differently, if
regulated at the moment at all. There isn’t a tradition of content regulation in many of these sectors as
well, because before recently
the creation of such content was not possible.
This complex ecosystem requires a very careful approach to regulation,
and regulatory innovation that can be achieved through information sharing
and collaboration between agencies and especially governments in order to create true interoperability.
As demonstrated by the questionnaire results, the issue of defining the newest concepts is very
relevant. Mr Marcel Salikhov, Director of Institute for Public Administration and Governance, Centre
for Economic Expert Analysis of HSE (Russia), using the statistics provided by Euromonitor
emphasised that the digital market is growing despite global economic issues due to the COVID-19
pandemic. These markets have been growing over the last 10 years, and especially since
the newest technology becomes available for mass users, and as technology develops the growing trend
is expected to continue.
One of the key factors of this growth is the availability of internet
and smartphone access, and there is large variability in APEC member economies
with unequal proportion between internet access and the number of smartphones
with mobile internet connection used by the population. Large economies have large potential to
increase consumer base through improving access availability, especially broadband that is essential
for further digital market development.
COVID-19 accelerated the trends that have started earlier, thus offering
an advantage for the companies that initiated their digital presence before
the pandemic, while more traditional industries suffered significant losses until they adapted to the new
reality through apps and other forms of digitalisation. Start-ups emerged in response to the pandemic,
i.e. creating contact tracing apps, and their activities raise privacy and data issues. Robotics and 3D
printing experienced a surge in demand in these circumstances too.
A survey dedicated to the technological investment priorities, conducted among managers all
over the world, shows that information security, cloud technologies, automation, AI, IoT and 5G are
among top tech investment choices.
The growth of digital markets has been heavily impacted by the changes
in consumer behaviour: the online traffic shifted towards online shopping and media, content
consumption, video streaming and video games, which caused a spike
in the relevant markets and strengthened the position of the biggest players. Remote working becomes
an important trend as it requires the development of technologies
to provide the necessary infrastructure.
The development of digital economy has entered a new stage. As Ms Li Dingjun, Consultant at
the Department of Treaty and Law, China Intellectual Property Administration, explained, the
integration of digital technologies and the process
of trade creates a number of changes such as online orders, digital delivery, etc,
all of which reduces trade costs and increases its efficiency. Products and services are being digitalised
too when data becomes a trade object.
In these circumstances important challenges become obvious: protection
of IP and market regulation. For example, AI algorithms can currently be protected
by copyright, trade secret or patent, Big Data - by copyright, patent or competition law, but neither
choice is sufficient on its own and presents certain difficulties, primarily unclear protection standards.
In the experience of China, the gradual amendment and improvement of patent examination
rules was an important step. In 2017 technical solutions in relation
to business model innovation were included in the scope of patent protection,
and in 2019 the examination rules for patent applications in the newest fields regarding AI, Big Data
and blockchain are introduced as a new chapter to the Guidelines. Besides, these technologies are now
being applied in patent analysis, consultations
and document translations.
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Conclusion Remarks and Recommendations
Analysis of the questionnaire results and the workshop findings allows establishing clear
common patterns and needs of APEC economies in this field. Both the Questionnaire and the
Workshop illustrated that many APEC economies share similar challenges and sometimes approaches
to problem solving in terms of legislative systems, definitions, the use of the newest technologies and
international collaborations.
Considering the needs of APEC economies on enhancing cooperation, facilitating digital
content trade and creating sustainable, effective and balanced systems, further potential new
activities/initiatives in APEC could be proposed:
to foster further dialogue in the field of digital content trade to get a better understanding
of ways of trade facilitation and IP ecosystem enhancement;
to deepen understanding of the scope of digital content trade and enhance understanding
of e-commerce and regulations specifically for digital content trade with a focus on IP;
to determine a common methodology for collecting and estimating statistical data on
digital content trade;
to equip businesses, content creators and users with the necessary information and a
deeper understanding of the processes occurring in digital content trade;
to raise public awareness on the issues of IPR infringement in the digital content trade
processes by providing detailed, and comprehensive information on the main aspects of
digital content trade within the APEC;
promote further work in the WTO on e-commerce.
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Annexes
Annex #1. Structure of the Questionnaire
The Pre-Workshop questionnaire consisted of seven sections, covering both general and
specific issues regarding the protection of intellectual property rights
in the digital content trade, including the impact of the COVID-19 pandemic.
Section №1. General Information
Does the domestic legislation of your economy clearly define the term "digital content trade" or
other similar terms? Please provide the definition together
with the source.
What share of your economy’s gross domestic product (GDP) takes digital content trade? Please
provide the most recent data in US dollars. If the data
is not available, please specify the reasons for the lack of such information.
Section №2. Legal Regulation
How are the digital works protected in your economy? Please specify
all the options and approaches, if there are many.
Does the domestic legal system provide regulation specifically for digital content trade? If not,
please provide information on relevant laws
and regulations that can be applicable to digital content trade.
What approaches, if any, are applicable in your economy to provide the legal framework for the
digital content trade (e.g. sui generis laws, directives, regulations, resolutions, case law, general
framework or concept, etc)?
Please specify.
Does your economy provide any registration of digital works? How
does the registration relate to the protection of intellectual property rights?
In the case of a federal state or trade union, are rules relating to digital content trade harmonised?
If yes, please specify.
Have any domestic frameworks governing the digital content trade been recently developed or
updated?
Section №3. Cross-Border Transactions
What are the approaches to the principle of territoriality of IPR protection applied in your
economy to cross-border transactions involving digital content?
Does your economy have any specific regulation for cross-border digital content trade? If yes,
how does it relate to the regular trade of material goods?
How the disputes involving cross-border digital content trade are commonly resolved in your
economy (e.g. general State courts, specialised State courts, arbitration and mediation (including
provided by the digital content platforms, etc)? Please provide details.
Is your economy party to a bilateral or multilateral agreement covering
cross-border digital content trade? Please specify.
Are there any model laws that govern cross-border contracts involving digital content
transactions in your economy?
Section №4. Legal Barriers and Challenges
In your opinion, what are the key barriers to digital content trade
in your economy?
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In your opinion, what are the key barriers to digital content trade in your region and/or globally?
Section №5. Activities Focused on the Digital Content Trade
Have any activities focused on the digital content trade or its protection been ever conducted
within your economy? If yes, please specify.
Are any communities, work groups, task forces or other entities, focused
on the digital content trade, functioning within your economy?
Have any documents (e.g., road map, concept, policy, guidelines) been developed or proposed
within your economy?
Section №6. Role of the Private Sector & Collective Management of Rights
Do the private stakeholders participate in the development of the regulation related to the digital
content trade in your economy? If yes, please provide more information.
What type of rights is collectively managed in your economy?
Are there collective management organisations involving in digital content trade in your
economy? If yes, please provide details (e.g., industry sector, role, manageable rights, etc.).
Do the private sector representatives draft and apply collective contracts
to manage their digital content rights?
Section №7. COVID-19
How the COVID-19 pandemic affected the digital content trade
in your economy?
Has your economy experienced any infringement activity boost concerning
the digital content trade and electronic commerce?
Have the measures to prevent infringements of rights to digital content trade been introduced in
your economy? Please provide details.
Annex #2. Overview of the Replies to the Questionnaire
Section №1: General Information
Comparison and analysis of replies have shown significant similarities
in the regulation of digital trade content. On the terminology level, domestic legislation of the
responded economies has no definition of "digital content trade". Some of the economies mentioned
that they are currently developing
the relevant definitions together with the domestic framework.
At the same time, some of the responding economies mentioned similar terms able to assist the
further definition of the digital content trade. Indonesian Regulation on Trade Through Electronic
System defines both “digital goods” and “digital content” as electronic or digital information including
physically converted digital goods
or electronic goods such as software, multimedia. Furthermore, China specified that
its Digital Government Law defines a “digital service” as a service provided wholly
or partially through the internet or another equivalent network, which is characterised by being
automatic, not face-to-face and using digital technologies intensively,
for the production and access to data and content that generate public value for citizens and people in
general.
As per the share of economies ’gross domestic product taken by digital content trade, only two
economies specified the approximate figures — US$23 billion in 2018 (Japan) and US$2.9 million in
2019 (Malaysia).
Some economies shared estimated figures covering a wider sector of trade.
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In 2016, creative industries supposedly amounted to 2.2% (US$ 5.5 billion) of Chile’s GDP. In 2017,
it is estimated that 7% (US$11.5 trillion) of Canada’s GDP was digital, including the contribution of
digitally-delivered products and exports of digital services. In 2018, the value added of the distribution
of information and communication technology products represented 3.0% (US$ 10.8 billion) of the
GDP of HKC. In Malaysia,
the contribution of the creative industry to its GDP grew at an average annual rate
of 6.9% reaching US$ 7.1 million in 2019.
In terms of further development in this area, Canada mentioned that its Statistics Office is
building a Digital Satellite Account, which will capture this information in the future.
Section №2. Legal Regulation
All the responding economies were uniformly specifying that the copyright laws constitute the
primary source of protection for digital works. Most respondents mentioned a general framework for
trade in goods, including e-commerce. In general, all existing laws and regulations treat trade in digital
content the same way
as traditional trade in tangible goods. None of the economies has adopted regulation specifically
targeting digital content trade.
There is no registration requirement for the digital works to be protected under the legislation
of all the responding economies. At the same time, optional copyright registration is available with the
domestic IP offices or relevant departments
of the Ministries of Culture. Such voluntary registration provides the registrant
with certain enforcement benefits and serves as preliminary evidence.
Regarding the recent developments in domestic frameworks governing digital content, Canada
is currently reviewing its Copyright Act, including consultations
on a modern framework for online intermediaries, artificial intelligence,
and the Internet of things. Chile has recently reformed its IP Law, Law on Computer Crimes and
General Telecommunications Law. The latter imposes sanctions
on unauthorised distribution or commercialisation of content carrying signals
of television service providers, the importation, distribution or commercialisation
of devices or applications destined to decode such signals, and the supply of services for the installation
of the devices or applications. Mexico has also updated its regulation covering the digital content trade
last year. Russia shared that
the amendments in this field are being widely discussed.
Section №3. Cross-Border Transactions
The courts in Canada have territorial jurisdiction over the cross-border disputes basing on a
“real and substantial connection” to that economy. Its Copyright Act covers both electronic
transmissions originating from or received in Canada if the mentioned connection is proven. Relevant
connecting factors include the situs of the content provider, the host server, the intermediaries and the
end-user. Furthermore, Canadian IP Law can have an extraterritorial effect in its application. In
particular, a court has jurisdiction to issue worldwide injunction orders against a non-party to litigation
(provided the court has personal jurisdiction over such non-party) – for example,
a search engine.
In HKC, courts generally have jurisdiction when the infringement occurred in the territory. In
terms of digital content trade, the following factors may be taken into account in determining the
location of the online infringing activities: the location of the infringer or the target audience of the
infringing materials, the location where uploading and downloading of the materials occurred, and the
location of the server for data storage.
The Indonesian legal framework on copyrights allows the Government to block website, which
contains infringed digital content. Russia laws also grant the power to the specialised governmental
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agency to block the infringing websites after the court decision. Regarding other matters, both
economies treat trade in digital content the same way as the one in traditional tangible goods protected
by IPRs.
Most economies did not introduce any specific regulation for cross-border digital content trade.
On the other side, Indonesia mentioned the Finance Ministry Regulation covering both tangible and
digital goods import duties.
Half of the respondents did not provide any data regarding the common way
of dispute resolution involving cross-border digital content trade. Canada; Indonesia; Mexico; and
Russia specified that court actions are the common way to deal with such disputes. China; HKC and
Chinese Taipei highlighted the freedom of the right holder
to decide on the form of dispute resolution.
Notably, HKC stressed alternative dispute resolution mechanisms, including those provided by
online dispute resolution (ODR) platforms. The economy mentioned the COVID-19 ODR Platform,
which was designed specifically for the disputes arising out from or in connection with the COVID-19
pandemic globally and locally, especially for those involving micro, small and medium-sized
enterprises that may be adversely affected or hard hit by the pandemic. For instance, and domain name
ODR services are provided by the Asian Domain Name Dispute Resolution Centre. Furthermore, HKC
shared that its Hong Kong Creative Industries Association has launched the Hong Kong Infringing
Website List (HK-IWL) that contains a list of websites offering copyrighted content without the right
holder’s authorisation. The initiative is similar
to the international online platform WIPO ALERT.
Canada specified that it signed three multilateral agreements specifically including disciplines
related to digital trade and one bilateral agreement that includes provisions on the electronic exchange
of information.
HKC is a party to the free trade agreements with the European Free Trade Association (EFTA),
Georgia and Australia, as well as the Closer Economic Partnership Agreement with New Zealand, all
covering cross-border digital content trade.
Regarding model laws that govern cross-border contracts involving digital content transactions,
Canada and HKC enacted legislation based on UNCITRAL Model Law on Electronic Commerce.
Section №4. Legal Barriers and Challenges
The responding economies expressed quite heterogeneous opinions on legal barriers and
challenges to digital content trade at domestic, regional and global levels, at the same time there were
some similarities related to accessibility issues, the lack
of legal framework and distrust towards the digital environment.
Canada and Malaysia mentioned a potential barrier highlighted and exacerbated by the COVID-
19 pandemic that is the connectivity gap within the economy, where citizens living in rural and remote
areas have less access to high-speed internet than those living in urban areas.
From the perspective of the public sector of Chile, the main obstacle
for the protection of digital content is a habit of the “free” use of works available
on digital media without remuneration to the right holders. The private sector identified the tax for
international services as the key barrier. The access better services
and providers with specific experience in game development the private sector players must pay from
15% to 30% above all fees in taxes, which increases the development cost and affects the final
negotiations with potential publishers or partners.
According to Peru, there are still lags in digital transformation adoption in public and private
entities, either due to lack of economic resources, ignorance or shortage
of trained professionals who promote digital development within their companies
and institutions, which translates into a waste of new technologies and the benefits they entail, running
the risk of being left out of the market by not adapting to new digital trends that allow them to meet
demands of an increasing number of users. Furthermore, the economy noted the lack of digital tools,
inaccessibility of databases, low generation of domestic content, waste of the cloud, change of
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paradigm in the consumer (renunciation of the use of technology due to ignorance or lack of trust).
Russia specified the lack of specific legislative regulation.
For now, all the goods and services on the Internet are regarded as regular products (e.g. custom-made
downloadable files), services (e.g. online education videos) or in some cases as licensed works (e.g.
music, movies). Other challenges identified by Russia include lack of digital tools and platforms and
customer protection availability.
Mexico considers that the continuous evolution of digital platforms constitutes the key
challenge in this field.
As to the regional and global challenges, Canada named unnecessary restrictions on the
transfer, storage, or processing of data across borders, barriers reducing consumer and business
confidence and trust, such as inadequate legal protections
for consumers, privacy, and IP.
Both Chile and Russia highlighted the absence of consensus
in the regulations at the regional or global level. From the perspective of the private sector of Chile,
the fees and taxes payable in every economy of the region constitute
a major barrier to the digital content trade.
Indonesia stressed the need for a harmonised system or international agreement governing the
protection of digital content against infringement in the regional
or global setting. Furthermore, it mentioned the absence of a regulatory framework
on cross-border e-commerce issues such as transparency, non-discrimination, and interoperability also
lack global efforts in facilitating and removing unnecessary barriers in cross-border e-commerce
activities. Among the main barriers
in the ASEAN, the responding economy identified the lack of network coverage, costly and slow
internet connection, lack of utilisation of e-payment in electronic transactions, and lack of support for
the MSMEs to participate actively in digital trade.
From the point of view of Peru and Russia, the main challenges that exist at the regional or
global level are accessibility problems, inequality in digital inclusion of the population of the world,
absence of clear global regulations on digital economy and remaining distrust towards the digital
environment. Peru also mentioned the lack of support for digital entrepreneurs at the regional and
global levels.
Japan noted the existence of government censorship and quantitative regulation introduced in
some economies. On the enforcement side, Mexico pointed out that
the infringers use the cloud services and therefore their location is almost impossible to identify.
Section №5. Activities Focused on the Digital Content Trade
Seven of the responding economies specified various activities focused
on the digital content trade or its protection conducted in their economies, varying from public dialogue
and awareness-raising activities of a different scale to participation
in the local, regional and international relevant working groups.
Canada generally undertakes analysis and consultations before the negotiation of digital trade
or e-commerce provisions in prospective trade agreements. Furthermore, the Parliament conducts
periodic statutory reviews of the Copyright Act.
For many years, IP Office of Chinese Taipei has been taking steps to respond
to the challenges of the digital age, including amendments to the Copyright Act
to provide more comprehensive protection and delivery of awareness-raising events.
Since 2011, an annual Business of IP Asia Forum is organised in HKC
to bring together IP professionals and business leaders from all over the world
to discuss the latest developments in the IP world and explore business collaboration opportunities in
both the physical and digital environments. Furthermore, the Intellectual Property Department of HKC
has engaged in awareness-raising activities related to IPRs, including promotional campaigns against
piracy and infringement in both the physical and digital environments.
The Communications and Multimedia Content Forum of Malaysia indicated
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the government’s blueprint that had been introduced as MyDigital initiative which
is focused on the following activities: to drive digital transformation in the public sector, boost
economic competitiveness through digitalisation, establish digital infrastructure, build agile and
competent digital talent, create an inclusive digital society, build trusted, secure, and ethical digital
environment.
The Institute for the Defence of Competition and the Protection of IP of Peru (Indecopi)
promotes the new guidelines to protect consumers who carry out commercial operations in Peru over
the internet. The Institute also actively participates in the Consumer Policy Committee and OECD
Working Group on Consumer Product Safety.
The digital content trade and its protection are being widely discussed
in Russia both on a governmental level and among companies, customers and content creators. The
biggest project is the domestic program “Digital Economy”, dedicated to encouraging digital economic
development.
Four responding economies provided details on the various entities focused
on research, analysis and promotion of the digital content trade within their territory.
The Canadian cultural community is very vocal in advocating for measures
to support cultural industries in the online environment. The Coalition for the Diversity of Cultural
Expressions (CDEC), representing 2,000 companies, 200,000 creators
and professionals, is one of the main associations representing the interest of cultural industries online.
The CDEC has commissioned numerous studies
on the discoverability of cultural content in the digital environment. Internal
to the federal government, there are interdepartmental working groups on digital trade and internet
policy. The Canadian Institute for Global Innovation (CIGI) also publishes numerous reports on digital
trade’s intersection with topics such as data regulation, intellectual property bilateral agreements,
intellectual property and the WTO.
The work of some public agencies in Chile is focused on the digital content trade. For example,
within the Ministry of Foreign Affairs, Under-Secretariat
for International Economic Relations (SUBREI) and Export Promotion Bureau (PROCHILE) focus on
supporting the negotiation process and developing laws and opportunities in this field.
Interactive Advertising Bureau (IAB) of Peru is promoting the development
of digital content and supporting the digital transformation in Peru. IAB is responsible for promoting
the use of the internet as a communication tool for brands
and encouraging them to take advantage of the effectiveness of online advertising.
There are numerous communities and working groups, including those
in Government bodies, that discuss the issues of digital content trade in Russia.
Taking about the recent developments in the field of digital content trade, Canada introduced a
new model for industry-government relations, which led
to a report that includes a sector-specific plan to foster the growth of digital industries. According to
the Canadian IP Strategy, the Government will make sure that local businesses, creators, entrepreneurs
and innovators have access to the best possible IP awareness, education, advice, tools for growth and
legislation.
Multiple papers and proposals have been submitted in the last years in Chile, specifically
speaking about videogame development. The final proposal for digital trading policy for information
protection was presented to all the economies within APEC in 2018.
In Peru, Indecopi is actively promoting the OECD guidelines to protect consumers who carry
out transactions on the internet.
The major recent development in Russia is the above-mentioned program "Digital Economy".
Section №6. Role of the Private Sector & Collective Management of Rights
In Canada; Chile; China; and HKC, the relevant stakeholders are invited to share their views
on a regulatory framework.
Under the Canadian Copyright Act, collective societies administer some copyright and
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remuneration rights in Canada. Some local collective societies may be involved in digital content trade,
for example, the Canadian Musical Reproduction Rights Agency, which collectively administers
reproduction rights for musical works, offers online music licensing for the reproduction of songs for
distribution as permanent downloads, limited downloads, on-demand streaming, and webcasting.
The IP Law of Chile regulates the entities that can collectively manage the IPRs. These are
Chilean corporations under private law, whose objective is to carry out activities of administration,
protection and collection of intellectual rights. There are currently eight collective management
organisations managing works in the following sectors: music, books, audiovisual directors,
scriptwriters and playwrights, still image, audiovisual production, actors, phonogram producers. They
can regulate and manage the digital use of the works included in their repertoire. The private actors
operating the video games sector created a collective organisation called VG Chile that has eighty-six
members. The private sector is currently working on the development
of collective contracts to manage their digital content rights. However, the local private actors consider
that there are not many achievements in terms of collective management of IPRs so far, since the
economy is relatively new.
Chinese legislation allows the collective management of copyrighted works, including text,
music, photography and movies. The copyright collective management organisations comprise the
Chinese Character Copyright Association, China Music Copyright Association, China Audiovisual
Copyright Collective Management Association, China Photographic Copyright Association and China
Film Copyright Association. If authorised by the right holder, they can be involved in the digital content
trade.
In Chinese Taipei, there are now only collective management organisations
for musical works and sound recordings. The rights of management are limited
to public broadcast, public performance, and public transmission. If the exploiter intends to make
available or communicate to the public the above-mentioned content of work through the internet
(including enabling the public to receive the content
of such work at a time or place individually chosen by them), a license of public transmission must
first be obtained from the relevant collective management organisation.
In HKC, the copyrighted works may be collectively managed by licensing bodies. To enhance
the transparency of the licensing bodies and the licensing schemes that they administer, licensing
bodies are encouraged to be registered under the Copyright Ordinance. Registration is voluntary.
Currently, there are six registered copyright licensing bodies. The collective contracts used for
managing digital content rights are generally prepared by the licensing bodies or with the support of
their professional advisors.
In Malaysia, there is a copyright-related regulation covering the music, sound recording,
performer, film or audio-visual works. However, since the establishment
of Collective Management Organisation (CMOs) in Malaysia, in most cases, the right holders assign
the management of rights including digital content to such organisations.
In Russia, several officially accredited organisations collectively manage copyright and related
rights, including services on the internet.
The Indonesian Copyrights Law also allows collective management
of copyrighted works, particularly the collection of royalty. The Collective Management Organisation
(LMKN) was established to supervise and coordinate
the collection of royalties by the local collective management organisations. Public places or activities
using music like cafes, karaoke, and art performance eventually have to pay royalties, which is
regulated by these organisations that collect, manage and then distribute royalties to the authors and
related right owner. The collective management organisations do not specifically engage in the digital
content trade.
They serve the purpose to collect royalties on behalf of the right holders.
The local private sector representatives draft and apply collective contracts to manage their digital
content rights through LMKN.
In Mexico, a non-profit and public interest collective management society protects and
represents the rights of authors and publishers (CEMPRO). Private
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and public sectors jointly draft collective contracts to manage digital content rights.
Section №7. COVID-19
While the COVID-19 pandemic dramatically has harmed the traditional business models, most
of the responding economies recognised that the pandemic
has accelerated the shift of the creative industries (especially video games
and streaming services) and education services to the digital sphere. Furthermore,
the epidemiological situation has encouraged both public and private entities to adapt quickly to the
digital transformation and changing demands of the public.
Canada recognised that the pandemic has accelerated the shift of the creative industries to the
digital sphere, however, the shift has not been seamless or without barriers for some industries, e.g.
international tours and the discovery of new talent. Other sectors like interactive media have thrived,
driven by the increase of people working from home, with increased disposable income. Overall, the
COVID-19 pandemic hit Canada’s cultural industries early and hard, and the impacts are still ongoing.
Chile observed both positive and negative effects of the pandemic.
On the positive side, the economy had the strength to digitalise the working process and the ability to
respond immediately to the constantly changing demands.
On the other side, for those companies that were negotiating with providers and clients, it negatively
affected the process: the cost went high, contracts were being delayed
and the investment from small parties was lost with no new content. In that regard,
the pandemic has shown the reality of small developers against big international stakeholders.
Japan experienced the expansion of the video games and streaming services market as time
spent at home has increased.
During the COVID-19 pandemic, Malaysia faced issues concerning the media box/android box
and illicit streaming devices (ISD). The following measures were taken to prevent infringements of
rights in the context of digital content trade: copyright law for infringement of copyright in the digital
environment, websites blocking under the provisions of the Communications and Multimedia Act
1998.
Informal businesses or businesses that did not have services such as delivery
or web pages were the main affected due to the pandemic in Peru. However, those such as supermarkets
experienced a positive impact. The use of digital platforms has grown exponentially due to the
pandemic, so much so that both public and private entities have found it necessary to adapt to the digital
transformation to stay in the market.
The main effect of the pandemic on the digital content trade in Russia was the drastic increase
in demand. The online education sector experienced a logical increase in the volume of content sales
as well. Some products were converted to a digital format if this was a possibility, and content creators
increased
the production.
Mexico noted that the negative impact caused by the COVID-19 pandemic
on its digital content trade is immeasurable.
The majority of responding economies did not record an increase in infringement activity
concerning digital content trade, which fully or partially results from
the enhanced proactive measures and awareness-raising activities.
Canada; Chile; HKC; Indonesia; Mexico; and Chinese Taipei did not witness any increase in
infringement activity concerning digital content trade
and e-commerce as a result of the COVID-19 pandemic.
As per Chile, this may partially or fully result from the increase of the protection measures of
rights and private information introduced by the government. In the second half of 2020, the Ministry
of Culture, Arts and Heritage launched a communications campaign to educate the public about the
importance of respecting and protecting copyright.
Regarding the prevention of online copyright infringement, Chinese Taipei
has taken several proactive steps, including assisting rights holders in pushing for legal amendments
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regarding curbing the proliferation of illegal set-top boxes, promoting "follow the money" measures,
raising awareness of copyright protection
and conducting joint investigations with international partners.
HKC regularly carries out promotion and public education activities
to promote IP awareness and discourage infringements. To strengthen the enforcement work against
online IPR infringements, the Customs and Excise Department of HKC has set up dedicated “Anti-
Internet Piracy Teams” to conduct online investigations and enforcement actions where the infringers
are located in the economy. They have has also set up the “Electronic Crime Investigation Centre” to
conduct research on the IPR crime trends and to enhance the investigation capabilities of the
operational staff through cyber investigation training. Furthermore, they have developed dedicated
monitoring systems to analyse open information on different online platforms
for effective profiling and targeting of infringing activities.
Indonesia did not introduce any specific measures or regulations, which regulate infringements
of rights to digital content trade. However, in general, copyright law provides provisions to protect the
infringement of digital content.
On the other hand, Japan and Peru observed an increase in online piracy. Japan did not specify
whether it has introduced any measures to prevent infringements
of rights to digital content. Peru noted that retransmission of content illegally by social media platforms
had a boom during the pandemic. According to the Telecommunications Centre in Latin America
(CET.LA) study, digital piracy
in Latin America represents a potential profit of US$ 675 million per year based
on average clicks on illegal sites. Through agreements with international organisations, Indecopi (Peru)
has been fighting piracy by tracking and blocking pages that share
or retransmit content without the permission of the authors.
In Russia, the Federal Service for Supervision of Communications, Information Technology,
and Mass Media (Roskomnadzor) has been introducing new effective measures that demonstrate great
results to ensure the decrease of the illegal content market, including regularly monitoring and blocking
the cases of IPR infringement.
China specified that the measures to prevent infringements have been taken. Since 2005, the
Copyright Administration and relevant departments have successively carried out 16 special actions
named “Jianwang” (Sword Network) against online infringement and piracy, which focused on special
copyright rectifications in areas such as online video, music, literature, cloud storage, and application
stores, effectively cracked down and deterred Internet infringement and piracy.
