Goa declaration - Deep Emotions Publishing India - music publisher, songwriters, composers, licensing, copyrights

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EURO-ASIAN SYMPOSIUM ON INTELLECTUAL PROPERTY RIGHTS IN THE CULTURAL INDUSTRIES IN ASIA TODAY

17th-18th November 1995
(Goa, India)

CONCLUSIONS

For the first time, a group of prominent Asian and European personalities met at Goa under the auspices of the consulting companies LX INTERNATIONAL (Portugal) and SILK ROAD COMMUNICATIONS (India) to make a joint assessment of the prevailing situation of intellectual property (IP) in cultural and culture-related industries in Asia, with a special emphasis on music.

The participants, coming from diverse professional and geographical backgrounds, represented the various interest groups: authors, performers, producers, broadcasters, lawyers, civil servants, and experts. The quality of the presentations and the ensuing deliberations led them to agree on the following eight points:

The present state of development of intellectual property in the world shows clearly that a satisfactory level of protection and remuneration of the artists is largely dependent on the respect for human rights and works best in democratic systems of government.
Though most Asian countries have inherited from history various laws and rules of procedure (Common Law in the case of India and others...), it appears in practice that the necessity of implementing intellectual property laws has only recently been seriously considered. Nevertheless, the participants welcomed the significant improvement of the legal frameworks in various Asian countries that have recognized clearly some new rights and granted better protection, especially to the producers.
Most Asian countries stressed the necessity to ensure appropriate protection and remuneration to the "national" artists on a priority basis, not only because the crying need exists but also because the beneficial results of IP protection, when they affect national artists are immediately visible and, thus, readily understood by the population. The status of copyrights would be even further enhanced by in the mind of the people by the contribution such protection would bring to the national cultural industries and to socio-economic development in general.
The "expression of folklore", as referred to in international IP terminology, is an important cultural phenomenon in many Asian countries and especially in India. In many culture-rich Asian countries, a large number of traditional artists - folk artists and craftsmen - are active in satisfying the ever-growing demand of the consumers. Such "expression of folklore" has thus to be provided adequate protection in order to enhance both the quality and the quantity of such creations. It has been recognized that the existing juridical systems of IP protection have not provided, so far, satisfactory solutions. It could be a valuable contribution by the Asian countries to come up with constructive and innovative proposals in this particular aspect.
A comparative assessment of the protection recognized to each category of right-owners in Europe and in Asia results in the following points:
1. "Droit moral"
  The participants have agreed that the respect due to the unique and original character of man's creativity should lead to the recognition of a strong, inalienable and everlasting "droit moral", both in favor of the authors for their creation and the performers for their interpretation. This right should not be reduced to some elementary notion like "the right to claim authorship" and should also never be transferable, even by written assignment.
  
  A common reflexion on the high level of protection and remuneration achieved in most European countries has clearly shown that "droit moral" constitutes the cornerstone of the whole system.
  
  With particular reference to India, it was felt that, despite recent progress due to caselaw and the consequent Amendment in 1994 of the Copyright Act, the moral aspect of protection could even be further asserted by reference to the Constitution of India. This was another example where a democratic system can assert what artists on their own won't be able to defend in front of powerful users.
2. Terms of copyright and neighboring rights
  The general improvement of the terms of copyright protection in Asia has already been pointed out. However, the economic rights of performers and broadcasters in most Asian countries continue to remain unsatisfactory. The European Economic Council directive of October 29, 1993 has harmonized the terms of protection in the Member States: 70 years after the author's death and 50 years for the neighboring rights. It was unanimously agreed that this objective should be pursued in Asia too
3. Assignments and Licenses
  The sudden growth of the broadcasting and music industries in Asia and their potential for export was a theme which led to a very useful exchange of information and to a careful examination of the actual practice of assignments and licenses.
  
  The European side called for the respect of the inalienable moral right of the author and the performer, which denies the right, to both the assignee and the licensee, to make unauthorized alterations to the work or to its interpretation. It imposes on the users a greater respect for the honor and integrity of the artist.
  
  The European practice of assignment has also resulted in the general use of proportional remuneration systems, lump sum payment being only accepted in a very small number of listed cases.
  
  Thus the better bargaining capacity awarded to the artists in Europe has resulted in a more equitable distribution of royalties among various categories of right-owners.
4. Performers' rights:
  The recent recognition in various Asian countries of "special rights" to the performers is a significant step. But these rights seem to be limited for the time being to "live performances", with the consequence that performers whose performances are recorded in a studio are not protected.
  
  The European experience shows that the main income of performers derives from the compulsory license needed for the public performance of sound and video recordings of their performance. This so-called "equitable remuneration" is divided between the performer and the producer.
  
  The participants agreed that performers should enjoy a true "neighboring" right, both of moral and economic nature, with a duration exceeding the present 25 years. This point of view would be best supported by Performers' societies themselves, wherever they exist.
5. Broadcasters' right
  This special right offers protection and remuneration to the broadcasters for their effort at creativity. This "Broadcast Reproduction Right" is somewhat similar to the neighboring right in the European system. Its duration should also be extended over 25 years from the year of the broadcast.
  
  All participants agreed that vibrant cultural industries exert a vital stabilizing influence on the turmoil generated by the development process. If production of original programs is considered a national priority in Europe, it should be all the more so in national cultures emerging from centuries of colonization.
6. Blank Tape Levy
  Prevalent in many European countries, this remuneration represents a just compensation for the prejudice caused to authors, performers and producers by the widespread practice of home copying. Resources collected from blank tape levy in France and Germany have proved to be a major contribution to the development of national entertainment industries and to the welfare of artists.
  
  Some Asian countries, particularly the newly amended Indian Copyright Act, have made provision for the introduction of such a levy. From the European experience, it is observed that such a levy is counterproductive if it is assimilated to a right of excise and/or a right of customs. The "blank tape levy" right must remain in the sphere of private law, even when the effective collection and remuneration derive from a compulsory license. In other words, the industry is willing to pay this levy only if it benefits (indirectly) from it. In Europe, the representative societies of right-owners, by a mutual agreement, allot a certain amount of the levy thus collected to the promotion of select cultural events.
7. Collective administration of rights
  The participants paid special attention to the increasing need for the collective administration of rights.
  
  A comparative study has highlighted the important difference that exists between Europe - where a high level of protection has been achieved thanks to the historical legacy of authors' collection societies - and Asia - where rights collection is emerging at the same time as the very recognition of these rights. As a consequence, the pattern of rights collection that will emerge in Asia, whether collective or not, remains to be defined.
  
  The natural risk of a conflict between the general interest and the monopolistic character of collective administration bodies has also been discussed. It has been agreed that the activities of such bodies should be controlled by the public authorities to prevent any abuse of dominant situation. The Indian solution, where power is given to the Central government and also to the right-owners themselves to exercise a control over the activities of the collecting societies, has been cited as an example.
  
  It has been stressed that a better level of collective administration of rights must be reached in Asia for two reasons: to allow the right-owners to exercise and administer their rights efficiently and economically and, secondly, to provide the users with an easy access to protected works. It becomes now urgent to achieve the conditions of effective reciprocal protection in a context where import-export of cultural talents and goods is showing a sharp increase
8. Remedies for Infringements
  The participants have considered with great interest the encouraging information provided on the fight against piracy in different Asian countries. They have particularly praised the concrete efforts made by the IPRS in awareness building, in the training of the police and custom officers and the positive evolution of caselaw. They have urged that both civil remedies and criminal procedures should be introduced in all legislations.
This comparative assessment has been done in order to foster international exchange on a better reciprocal protection basis. With the introduction of new technologies and services (multimedia works, electronic databases, digital reproduction, broadcasting and sampling, on-demand services...) and with the globalization of the market place, traditional cultural sources will face new opportunities as well as new threats. Hence, the effort of Asian countries to reach higher levels of protection at par with international standards should be supported: this would allow a better trade, particularly with Europe, based on a balanced development of national creativities.
The participants have called for international cooperation on a technical and professional basis, complementary to the valuable work already done by international organizations such as WIPO or by existing international federations of right-owners. This cooperation, apart from providing information to public or professional bodies, should seek to support various groups of right-owners by awareness-building, practical advice for negotiation to the users and a better administration of their rights.
The participants agreed that this aim should lead to the creation of a permanent, non-governmental organization called "Euro-Asian Copyright Council" which will help for a better dialogue and cooperation on those matters between Asia and Europe, with a emphasis on the professional and practical aspects.















		EURO-ASIAN SYMPOSIUM ON INTELLECTUAL PROPERTY RIGHTS IN THE CULTURAL INDUSTRIES IN ASIA TODAY 17th-18th November 1995 (Goa, India) CONCLUSIONS For the first time, a group of prominent Asian and European personalities met at Goa under the auspices of the consulting companies LX INTERNATIONAL (Portugal) and SILK ROAD COMMUNICATIONS (India) to make a joint assessment of the prevailing situation of intellectual property (IP) in cultural and culture-related industries in Asia, with a special emphasis on music. The participants, coming from diverse professional and geographical backgrounds, represented the various interest groups: authors, performers, producers, broadcasters, lawyers, civil servants, and experts. The quality of the presentations and the ensuing deliberations led them to agree on the following eight points: The present state of development of intellectual property in the world shows clearly that a satisfactory level of protection and remuneration of the artists is largely dependent on the respect for human rights and works best in democratic systems of government. Though most Asian countries have inherited from history various laws and rules of procedure (Common Law in the case of India and others...), it appears in practice that the necessity of implementing intellectual property laws has only recently been seriously considered. Nevertheless, the participants welcomed the significant improvement of the legal frameworks in various Asian countries that have recognized clearly some new rights and granted better protection, especially to the producers. Most Asian countries stressed the necessity to ensure appropriate protection and remuneration to the "national" artists on a priority basis, not only because the crying need exists but also because the beneficial results of IP protection, when they affect national artists are immediately visible and, thus, readily understood by the population. The status of copyrights would be even further enhanced by in the mind of the people by the contribution such protection would bring to the national cultural industries and to socio-economic development in general. The "expression of folklore", as referred to in international IP terminology, is an important cultural phenomenon in many Asian countries and especially in India. In many culture-rich Asian countries, a large number of traditional artists - folk artists and craftsmen - are active in satisfying the ever-growing demand of the consumers. Such "expression of folklore" has thus to be provided adequate protection in order to enhance both the quality and the quantity of such creations. It has been recognized that the existing juridical systems of IP protection have not provided, so far, satisfactory solutions. It could be a valuable contribution by the Asian countries to come up with constructive and innovative proposals in this particular aspect. A comparative assessment of the protection recognized to each category of right-owners in Europe and in Asia results in the following points: "Droit moral" The participants have agreed that the respect due to the unique and original character of man's creativity should lead to the recognition of a strong, inalienable and everlasting "droit moral", both in favor of the authors for their creation and the performers for their interpretation. This right should not be reduced to some elementary notion like "the right to claim authorship" and should also never be transferable, even by written assignment. A common reflexion on the high level of protection and remuneration achieved in most European countries has clearly shown that "droit moral" constitutes the cornerstone of the whole system. With particular reference to India, it was felt that, despite recent progress due to caselaw and the consequent Amendment in 1994 of the Copyright Act, the moral aspect of protection could even be further asserted by reference to the Constitution of India. This was another example where a democratic system can assert what artists on their own won't be able to defend in front of powerful users. Terms of copyright and neighboring rights The general improvement of the terms of copyright protection in Asia has already been pointed out. However, the economic rights of performers and broadcasters in most Asian countries continue to remain unsatisfactory. The European Economic Council directive of October 29, 1993 has harmonized the terms of protection in the Member States: 70 years after the author's death and 50 years for the neighboring rights. It was unanimously agreed that this objective should be pursued in Asia too Assignments and Licenses The sudden growth of the broadcasting and music industries in Asia and their potential for export was a theme which led to a very useful exchange of information and to a careful examination of the actual practice of assignments and licenses. The European side called for the respect of the inalienable moral right of the author and the performer, which denies the right, to both the assignee and the licensee, to make unauthorized alterations to the work or to its interpretation. It imposes on the users a greater respect for the honor and integrity of the artist. The European practice of assignment has also resulted in the general use of proportional remuneration systems, lump sum payment being only accepted in a very small number of listed cases. Thus the better bargaining capacity awarded to the artists in Europe has resulted in a more equitable distribution of royalties among various categories of right-owners. Performers' rights: The recent recognition in various Asian countries of "special rights" to the performers is a significant step. But these rights seem to be limited for the time being to "live performances", with the consequence that performers whose performances are recorded in a studio are not protected. The European experience shows that the main income of performers derives from the compulsory license needed for the public performance of sound and video recordings of their performance. This so-called "equitable remuneration" is divided between the performer and the producer. The participants agreed that performers should enjoy a true "neighboring" right, both of moral and economic nature, with a duration exceeding the present 25 years. This point of view would be best supported by Performers' societies themselves, wherever they exist. Broadcasters' right This special right offers protection and remuneration to the broadcasters for their effort at creativity. This "Broadcast Reproduction Right" is somewhat similar to the neighboring right in the European system. Its duration should also be extended over 25 years from the year of the broadcast. All participants agreed that vibrant cultural industries exert a vital stabilizing influence on the turmoil generated by the development process. If production of original programs is considered a national priority in Europe, it should be all the more so in national cultures emerging from centuries of colonization. Blank Tape Levy Prevalent in many European countries, this remuneration represents a just compensation for the prejudice caused to authors, performers and producers by the widespread practice of home copying. Resources collected from blank tape levy in France and Germany have proved to be a major contribution to the development of national entertainment industries and to the welfare of artists. Some Asian countries, particularly the newly amended Indian Copyright Act, have made provision for the introduction of such a levy. From the European experience, it is observed that such a levy is counterproductive if it is assimilated to a right of excise and/or a right of customs. The "blank tape levy" right must remain in the sphere of private law, even when the effective collection and remuneration derive from a compulsory license. In other words, the industry is willing to pay this levy only if it benefits (indirectly) from it. In Europe, the representative societies of right-owners, by a mutual agreement, allot a certain amount of the levy thus collected to the promotion of select cultural events. Collective administration of rights The participants paid special attention to the increasing need for the collective administration of rights. A comparative study has highlighted the important difference that exists between Europe - where a high level of protection has been achieved thanks to the historical legacy of authors' collection societies - and Asia - where rights collection is emerging at the same time as the very recognition of these rights. As a consequence, the pattern of rights collection that will emerge in Asia, whether collective or not, remains to be defined. The natural risk of a conflict between the general interest and the monopolistic character of collective administration bodies has also been discussed. It has been agreed that the activities of such bodies should be controlled by the public authorities to prevent any abuse of dominant situation. The Indian solution, where power is given to the Central government and also to the right-owners themselves to exercise a control over the activities of the collecting societies, has been cited as an example. It has been stressed that a better level of collective administration of rights must be reached in Asia for two reasons: to allow the right-owners to exercise and administer their rights efficiently and economically and, secondly, to provide the users with an easy access to protected works. It becomes now urgent to achieve the conditions of effective reciprocal protection in a context where import-export of cultural talents and goods is showing a sharp increase Remedies for Infringements The participants have considered with great interest the encouraging information provided on the fight against piracy in different Asian countries. They have particularly praised the concrete efforts made by the IPRS in awareness building, in the training of the police and custom officers and the positive evolution of caselaw. They have urged that both civil remedies and criminal procedures should be introduced in all legislations. This comparative assessment has been done in order to foster international exchange on a better reciprocal protection basis. With the introduction of new technologies and services (multimedia works, electronic databases, digital reproduction, broadcasting and sampling, on-demand services...) and with the globalization of the market place, traditional cultural sources will face new opportunities as well as new threats. Hence, the effort of Asian countries to reach higher levels of protection at par with international standards should be supported: this would allow a better trade, particularly with Europe, based on a balanced development of national creativities. The participants have called for international cooperation on a technical and professional basis, complementary to the valuable work already done by international organizations such as WIPO or by existing international federations of right-owners. This cooperation, apart from providing information to public or professional bodies, should seek to support various groups of right-owners by awareness-building, practical advice for negotiation to the users and a better administration of their rights. The participants agreed that this aim should lead to the creation of a permanent, non-governmental organization called "Euro-Asian Copyright Council" which will help for a better dialogue and cooperation on those matters between Asia and Europe, with a emphasis on the professional and practical aspects.