Music piracy: a worldwide issue, different means but same results

Copyright Conventions ratified by Peru

Peru is a signatory of the most important conventions subscribed in copyright matters. In fact, Peru is a contracting party of the International Union for the Protection of Literacy and Artistic Works (Berne Convention).^71(*) The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, known as the Rome Convention subscribed at Rome on October 26, 1961 was also ratified by Peru on August 7, 1985.^72(*)

The World Intellectual Property Organization (WIPO), a specialized agency of the United Nations, promoted the signature of a new convention: the Copyright Treaty and Agreed statements concerning the WIPO Copyright Treaty (herein after the WIPO Copyright Treaty) adopted in Geneva on December 20, 1996. Peru has been a party of this convention since March 6, 2002. This treaty doesn't prejudice any rights and obligations under any other treaties.^73(*)

Article 20 of this convention established that this treaty would enter into force three months after 30 instruments of ratification or accession by States have been deposited. Today, this convention is fully effective. 36 countries have already deposited its instruments with the Director General of WIPO, as was required.

Besides, Peru also has signed the WIPO Performances and Phonograms Treaty and Agreed Statements concerning the WIPO Performances and Phonograms Treaty,^74(*) on July 18^th, 2002.^75(*) The contracting parties subscribed to this convention as a desire to develop and maintain the protection of the rights of performers^76(*) and producers of phonograms.^77(*) Both WIPO treaties provide the basic framework for the transmission of content in e-commerce.^78(*) WIPO's copyright treaties make clear that copyright applies in the digital world as it did in the world of physical distribution, that record producers have the right to decide whether and how their recordings should be put on the Internet, and that technologies which help copyright owners control unauthorized copying should themselves be protected.^79(*)

Finally, Peru is a full member of the General Agreement on Tariffs and Trade (GATT). The revenue lost to piracy and other intellectual property rights infringements made it clear that a more effective solution to the piracy crisis was necessary.^80(*) Developed nations classify the lack of international copyright protection as a trade issue with defined economic effects.^81(*) After eight years of negotiations the Uruguay round of the GATT ended on December 15^th, 1993; GATT included an intellectual property agreement called Trade related Aspects of Intellectual Property Rights (TRIPS). On January 1^st, 1995 the World trade Organization (WTO) replaced the GATT, overseeing the same trade agreement that all WTO members must follow.^82(*)

The GATT option to international copyright infringement offers legally binding obligations, creating a much higher standard of relief by international agreement than in the Berne Convention, its amendments, or the UCC.^83(*) Under GATT, a signatory country cannot openly disregard its obligations without the threat of sanctions imposed by the GATT mechanism.^84(*) An offended copyright owner's nation can threaten the non-complying state with the imposition of the GATT disputes settlement provisions, which if ignored, can lead to trade sanctions.^85(*)

Many developing countries did not and still do not, fully comprehend the concept of copyright.^86(*) Developed countries, such as the United States,^87(*) respond to the economic injuries they suffer from pirates by using forceful retaliatory measures such as threats of trade sanctions.^88(*)

* ⁷¹Berne Convention For The Protection Of Literary & Artistic Works, (Sept. 9, 1886), < http://www.wipo.int/clea/docs/en/wo/wo001en.htm>. The Berne Convention adopted in 1886 represented the firs intent to recognize protections to Copyrights beyond the physical boundaries of a certain country. Peru ratified this convention on August 20, 1988.

* ⁷² Today sixty-nine countries have adopted the Rome Convention.

* ⁷³ WIPO Copyright Treaty & Agreed Statements Concerning The WIPO Copyright Treaty, (Dec. 20, 1996), < http://www.wipo.org/copyright/en/index.html>. Unlike other treaties as The Berne Convention or the Rome Convention, this treaty does not admit reservations.

* ⁷⁴ WIPO Performances & Phonograms Treaty & Agreed Statements Concerning The WIPO Performances & Phonograms Treaty, (Dec. 20, 1996), < http://www.wipo.org/copyright/en/index.html> The WIPO Performances and Phonograms Treaty was adopted in Geneva on December 20^th, 1996. This treaty does not derogate from existing obligations that Contracting Parties have to each other under the Rome Convention.

* ⁷⁵ Thirty-eight states have ratified the WIPO Performances and Phonograms Treaty until October 15^th, 2002. Article 29 of this convention required 30 instruments of ratification or accession by States in order to be enforced.

* ⁷⁶ This treaty define as performers not only singers or musicians. Actors, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore are considered within the scope of protection of it.

* ⁷⁷ Producer of a phonogram is the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds.

* ⁷⁸ IIPA, supra n. 21.

* ⁷⁹ IFPI, supra n. 27.

* ⁸⁰ Marshall Leaffer, Protecting United States Intellectual Property Abroad: Toward New Multilateralism, 76 Iowa L. REV. 273,275 (1991), quoted in Lovoi, supra n. 8, at 456.

* ⁸¹ Peter Gakunu, Intellectual Property: Perspective Of The Developing World, 19 Ga. J. Intl. & Comp. L. 358, 359 (1989), quoted in Tai, supra n. 24, at 173.

* ⁸² WTO, What Is The WTO? < http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm> (accessed Oct. 22, 2002). The World Trade Organization, with 144 members until January 2002, is the only global international organization dealing with the rules of trade between nations. At its heart are the WTO agreements, negotiated and signed by the bulk of the world's trading nations and ratified in their parliaments. The goal is to help producers of goods and services, exporters, and importers conduct their business.

* ⁸³ Mary Mosquera, Piracy Stunt Latin America Software Growth, Tech Web News, Oct. 6, 1999, quoted in Tanya Poth, The Computer Piracy Highway, 28 Denv J. Intl. L. P. 478 (2000).

* ⁸⁴ Mark Damschroder, Intellectual Property Rights & The GATT: United States Goals In The Uruguay Round, 21 Va. J. Intl. L. 367,390 (1988), quoted in Tai, supra n. 24, at 174.

* ⁸⁵ William Stanback, International Intellectual Property Protection: An Integrated Solution To The Inadequate Protection Problem, 29 Va. J. Intl. Law. L. 517,523 (1989), quoted in Tai, supra n. 24, at 174.

* ⁸⁶ John Gurnsey, Copyright Theft 27-28 (1995), quoted in Lovoi, supra n. 8, at 459.

* ⁸⁷ According to The IIPA 2002 Report, estimated loses due to piracy of U.S. copyrighted materials in Peru were $84 million in 2001.

* ⁸⁸ One typical trade related retaliatory measure used by the United States again countries that do not respect intellectual property rights is the section 301 Provisions in the Trade Act of 1974. Section 301 grant the United States Trade Representative (USTR) the authority to take action when she believes than an act or policy of a foreign country denies benefits to the United States under any trade agreement or restricts United States commerce. USTR, 2001 Special 301 Report < http://www.ustr.gov/enforcement/special.pdf> (accessed Oct. 25, 2002). The USTR designates problems countries under a set of categories. The most severe category, the «priority foreign country» is one, which has the most onerous policies in regard to Intellectual Property Rights Protection (IPRP). The next category, «the priority watch list» is reserved for countries without adequate IPRP who nevertheless are not as severe offenders as the priority foreign countries. Finally, the «watch list «designates countries considered to provide better IPRP than those in the other two categories, but which the USTR feels still need to be monitored.

Peru was moved to the Watch List in April 2001, after two years on the Priority watch list because of improvements in Peru's IPR Law.