Tài liệu Luận văn the implementation of copyright and related rights of evfta in vietnam

HO CHI MINH UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW -----------***------------ VU LE HANH THAO STUDENT ID: 1753801011173 THE IMPLEMENTATION OF COPYRIGHT AND RELATED RIGHTS OF EVFTA IN VIETNAM BACHELOR’S THESIS Academic term: 2017 - 2021 Supervisor: LL.M. Ngo Kim Hoang Nguyen Ho Chi Minh City – 2021 1 STATUTORY DECLARATION I hereby declare that this work has been originally carried out by me under the guidance of LL.M. Ngo Kim Hoang Nguyen, lecturer of the Faculty of International Law, Ho Chi Minh University of Law. This work has not been submitted either in part, or in whole, for any degree at any University. Ho Chi Minh City, July 2021. Vu Le Hanh Thao 2 ACKNOWLEDGEMENT It is with deep gratitude that I want to send to my supervisor, LL.M. Ngo Kim Hoang Nguyen, lecturer of the Faculty of International Law, Ho Chi Minh University of Law, for providing me invaluable guidance throughout this research. His dynamism, vision and sincerity have motivated me to successfully complete this thesis with the most completeness and satisfaction. It is a great honor to have him as a consultant for the last four years studying in Ho Chi Minh University of Law and as a supervisor for this last project before becoming an official LL.B., as well as an alumnus of this beloved school. I would also like to express the sincerest gratefulness to my family: Mom, Dad, and my two dear elder sisters. Their love, caring, continuous support and sacrifices help me become who I am today. Without them, nothing in my life would be possible. Vu Le Hanh Thao 3 TABLE OF CONTENTS STATUTORY DECLARATION............................................................................. 1 ACKNOWLEDGEMENT........................................................................................ 2 INDEX OF ABBREVIATION ................................................................................. 5 PREFACE.................................................................................................................. 7 1. Thesis rationale ..................................................................................................7 2. Literature review ...............................................................................................7 3. Objectives of the study ....................................................................................10 4. Scope and delimitation ....................................................................................11 5. Methodologies of the study .............................................................................11 6. Structure of the thesis .....................................................................................11 CHAPTER I. AN OVERVIEW OF COPYRIGHT AND RELATED RIGHTS UNDER THE EVFTA ............................................................................................ 12 1.1. Terms and definitions...................................................................................12 1.1.1. Copyright .................................................................................................12 1.1.2. Related rights ...........................................................................................17 1.2. Copyright and related rights under the EVFTA .......................................23 1.2.1. Copyrights ................................................................................................23 1.2.2. Related rights ...........................................................................................30 1.3. The enforcement of copyright and related rights in the EVFTA .............37 1.3.1. Civil remedies and procedures ................................................................38 1.3.2. Administrative remedies and procedure .................................................40 1.3.3. Criminal measures and procedure .........................................................43 CONCLUSION TO CHAPTER I ......................................................................... 45 4 CHAPTER II. SOME CHALLENGES FOR VIETNAM IN THE IMPLEMENTATION OF COPYRIGHT AND RELATED RIGHTS UNDER THE EVFTA AND RECOMMENDATIONS ...................................................... 46 2.1. Challenge in implementing the protection of reproduction rights from digital temporary copies from the EVFTA in Vietnam ...................................46 2.1.1. The protection of reproduction rights from temporary digital copies in the EVFTA and challenge in the current law of Vietnam ..............................46 2.1.2. Recommendations ...................................................................................51 2.2. Challenge in implementing rental rights in Vietnam ................................57 2.2.1. The protection of rental right in the EVFTA and the current challenge in Vietnamese law and Vietnamese companies’ management ........................57 2.2.2. Recommendations ...................................................................................63 2.3. Challenge to the cooperation between Vietnamese and European collective management organizations ................................................................69 2.3.1. Collective management organizations in Vietnam and challenge to the international cooperation..................................................................................69 2.3.2. Recommendations ...................................................................................76 CONCLUSION TO CHAPTER II ........................................................................ 81 CONCLUSION TO THE THESIS ........................................................................ 82 BIBLIOGRAPHY ................................................................................................... 83 ANNEX .................................................................................................................... 91 5 INDEX OF ABBREVIATION Berne Convention The Berne Convention for the Protection of Literary and Artistic Works Directive 2006/115/EC Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property Directive 2001/29/EC Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001on the harmonisation of certain aspects of copyright and related rights in the information society ECJ European Court of Justice EU European Union EVFTA EU–Vietnam Free Trade Agreement Intellectual Property Law Law on Intellectual Property No. 50/2005/QH11 dated November 29, 2005 (amended and supplemented by Law No. 36/2009/QH12 and Law No. 42/2019/QH14) Law amending and supplementing a Intellectual Property Law Bill number of articles of the Intellectual Property Law Bill Rome Convention Rome Convention for the Protection of Performers 6 TRIPS WTO Agreement on Trade-Related Aspects of Intellectual Property Rights WCT WIPO Copyright Treaty WIPO World Intellectual Property Organization WPPT WIPO Performances and Phonograms Treaty WTO World Trade Organization 7 PREFACE 1. Thesis rationale The EVFTA, after ten years of negotiating, finally took effect in August 2020. This is an ambitious agreement that has a major impact on the economy of Vietnam by eliminating 99% of the custom duties between Vietnam and EU. According to the Ministry of Planning and Investment of Vietnam, this agreement is expected to increase Vietnam’s GDP by 42.7% by 2025. Whereas in Europe, GDP is anticipated to increase by $29.5 billion by 2035.1 Among the benefits that the EVFTA promises to bring to the parties, higher protection levels for intellectual property, specifically copyright and related rights is one of the mostly awaited since intellectual property infringement in Vietnam has been an ongoing phenomenon with yet a thorough solution. Along with this opportunity, however, Vietnam will face difficult challenges in order to implement important provisions of the EVFTA regarding copyright and related rights. This stems from many reasons, from the gap between the legislation of each party to the difference between the culture and economy of the member states. Recognizing this, in 2019, the Ministry of Science and Technology, upon performing the Government's and the Prime Minister's working program, had proposed a project on the draft of Law amending and supplementing a number of articles of the Intellectual Property Law. This is expected to be submitted to the National Assembly for consideration and comments at the October 2021 session and for approval at the May 2022 session. During this time, with the hope to bring a worthy and possibly fruitful dedication to Vietnam’s current situation by closely studying the EVFTA, the author decided to carry out the research: “The implementation of copyright and related rights of EVFTA in Vietnam.” 2. Literature review 1 Shira, D. (2020, August 3). Vietnam-EU Trade: EVFTA Comes Into Effect. Vietnam Briefing. https://www.vietnam-briefing.com/news/vietnam-eu-trade-evfta-comes-into-effect.html/ 8 2.1. Foreign materials Since EVFTA is a new agreement, most of the research is under the form of journal articles, newspaper articles and reports made by the government, which are extremely limited. Therefore, the author had to combine them with works that write about copyright and related rights in Europe for a more in-depth knowledge since the EVFTA, composed by Vietnam and the EU, more or less, will be relevant to European copyright and related rights. “EU Copyright Law: A Commentary” by Irini Stamatoudi and Paul Torremans2 was the book that the author commenced with. This unique book presents a comprehensive and new analysis of all EU law and case law in the field of copyright, as well as the underlying basic concepts and principles. In addition, the book provides readers with most recent amendments and initiatives by EU in the digital area. Upcoming challenges for copyright and related rights are also discussed in the book by a team of leading experts in the field, which makes the book extremely valuable. Another book that has an immense influence on this thesis is “Copyright and Fundamental Rights in the Digital Age” by Oreste Pollicino, Giovanni Maria Riccio and Marco Bassini.3 This well-timed book analyzes the needed change in the protection of copyright in the digital age in Europe in order to balance with other fundamental rights and freedom of the human. Recognizing the development in digital technologies as well as the internet, it specifically focuses on the effects of recent reforms to the legal framework for EU’s copyright. Following this, “Propertizing European Copyright” by Caterina Sganga4 is also a worth-mentioning book since it provides an insight analysis of the cause and effect of propertization of copyright throughout the history of EU, comparing them to other national law and concluding experiences for EU, which Vietnam may gain 2 Stamtoudi, I., & Torremans. P. (Eds.) (2014). EU Copyright Law: A Commentary. Edward Elgar. Pollicino, O., Riccio, G., & Bassini, M. (Eds.) (2020). Copyright and Fundamental Rights in the Digital Age. Edward Elgar. 4 Sganga, C. (2018). Propertizing European Copyright. Edward Elgar 3 9 some lessons from this. Researchers in copyright will find this book very valuable since is rich both in theory and practice. “Guide to the EU-Vietnam trade and investment agreements” made by Delegation of the European Union to Vietnam5 is totally indispensable since this dogmatic guide is a great contribution to a better and more insight understanding of the new generation agreements between the EU and Vietnam. Although not focusing on copyright and related rights aspect, this guide, written in the most simple and clear language, helped the author in understanding the basics of the EVFTA and acknowledging the importance of this agreement to Vietnam’s economy. From this, the author was able to determine the challenge to Vietnam’s current copyright and related rights. 2.2. Vietnamese materials In Vietnam, although there are many research papers on copyright and related rights when Vietnam joins the EVFTA, they are mostly carried out under the form of short journal articles, magazine articles or online newspaper articles with less insight recommendations. They mainly discuss the obvious chance to a higher level of protection for copyright and related rights in Vietnam and the already seen challenge de jure and de facto in Vietnam but leave practical and clear recommendations something to be desired about. In the article “Giải quyết những thách thức về sở hữu trí tuệ khi Việt Nam gia nhập EVFTA” [Solving intellectual property challenges when Vietnam joins EVFTA] by Nguyen Thi Huyen in Review of Finance,6 the author discusses chances and challenges that the EVFTA will bring to Vietnam’s intellectual property in general. However, the author has no intention of focusing on copyright and related rights, which is why they are mentioned only by one challenge with no specific solution. 5 Delegation of the European Union to Vietnam (2019). Guide to the EU-Vietnam trade and investment agreements. https://trade.ec.europa.eu/doclib/docs/2016/june/tradoc_154622.pdf 6 Nguyen Thi Huyen (2017). Giải quyết những thách thức về sở hữu trí tuệ khi Việt Nam gia nhập EVFTA [Solving intellectual property challenges when Vietnam joins EVFTA]. Review of Finance, 653, 27-28. 10 A modest part in the article “Cam kết về sở hữu trí tuệ trong EVFTA cơ hội và thách thức” [Commitment to intellectual property in EVFTA opportunities and challenges] by Pham Thi Kem Len and Nguyen Minh Hien in Journal of Finance and Accounting Research7 mentions copyright and related rights. However, similar to the previous one, the author does not depict a thorough solution to the problem. Other materials, although do not directly research on the relationship between EVFTA and copyright in Vietnam, have suggested some directions for the current Vietnamese law to follow in the digital area by making comparisons to other countries. The works that can be mentioned include the master’s thesis “Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa Kỳ, Pháp và kinh nghiệm đối với Việt Nam” [Acts of copyright infringement in the digital environment according to the laws of the United States, France and experience for Vietnam] by Do Huynh Yen Vy,8 the book “Bình luận bản án quyền tác giả - Góc nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản, Hàn Quốc” [Comments on copyright judgments - Legal perspective of the US, France, Japan, Korea] by Nguyen Thai Cuong9 and the article “Quyền tác giả đối với tác phẩm trong môi trường công nghiệp 4.0 tại các cơ sở giáo dục đại học” [Copyright for works in the industrial 4.0 environment at higher education institutions] by Vu Thi Hong Yen.10 3. Objectives of the study First of all, this thesis intends to provide a fundamental understanding of copyright and related rights as regulated in the EVFTA. It then attempts to justify the challenges to the implementation of copyright and related rights of the EVFTA in 7 Pham Thi Kem Len & Nguyen Minh Hien (2020). Cam kết về sở hữu trí tuệ trong EVFTA cơ hội và thách thức [Commitment to intellectual property in EVFTA opportunities and challenges]. Journal of Finance and Accounting Research, 3(200), 41-44. 8 Do Huynh Yen Vy (2020). Hành vi xâm phạm quyền tác giả trong môi trường kỹ thuật số theo pháp luật Hoa Kỳ, Pháp và kinh nghiệm đối với Việt Nam [Acts of copyright infringement in the digital environment according to the laws of the United States, France and experience for Vietnam] (master’s thesis, Ho Chi Minh University of Law). Ho Chi Minh University of Law Library. 9 Nguyen Thai Cuong (2020). Bình luận bản án quyền tác giả - Góc nhìn pháp luật Hoa Kỳ, Pháp, Nhật Bản, Hàn Quốc [Comments on copyright judgments - Legal perspective of the US, France, Japan, Korea]. Hong Duc. 10 Vu Thi Hong Yen (2019). Quyền tác giả đối với tác phẩm trong môi trường công nghiệp 4.0 tại các cơ sở giáo dục đại học [Copyright for works in the industrial 4.0 environment at higher education institutions]. Journal of Legislative Studies, 21(397), 11-17, 36. 11 Vietnam. Based on this knowledge, the author suggests some mendments to the Vietnam’s current law. 4. Scope and delimitation Under restrictions of time and resources, this thesis will exhibit the following limitations: First, since there already has been numerous research on classic and comprehensive intellectual property agreements, namely TRIPS, Berne and Rome Convention, any reference to these treaties may not be thoroughly explained but only mentioned with a view to clarify author’s ideas. Second, this paper will not study the steps involved in the procedure of copyright and related rights registration, both in Vietnam and internationally. In other words, the thesis focuses on substantive provisions and barely studies the procedural law. Finally, the author will focus only on the challenges that have direct effect on pecuniary benefits of authors and related subjects. This will explain for why other existing challenges will not be tackled in this research. 5. Methodologies of the study In chapter 1, the author adopts the methods of historical review, analysis and synthesis to conclude the concept of copyright and related rights. Then, the analysis and synthesis method is used again for the examination of the copyright and related rights as well as their enforcement in the EVFTA. In chapter 2, the analytical method is employed, along with the historical review and case study to outline the challenges to Vietnam in the implementation of the EVFTA. Following this, the comparative method is used for the formation of author’s suggestions. 6. Structure of the thesis This thesis consists of 2 chapters: – Chapter 1: An overview of copyright and related rights under the EVFTA. – Chapter 2: Some challenges for Vietnam in the implementation of copyright and related rights under the EVFTA and recommendations. 12 CHAPTER I. AN OVERVIEW OF COPYRIGHT AND RELATED RIGHTS UNDER THE EVFTA 1.1. Terms and definitions 1.1.1. Copyright According to Black’s Law Dictionary (2004, p. 824), copyright is defined as “the right to copy”. To be more specific, is it “a property right in an original work of authorship (including literary, musical, dramatic, choreography, pictorial graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.” This definition, although apparent and simple, it is not adequate when giving a limitative list of works and rights of the author since there can be other forms of expressions outside of the scope. Approaching WIPO, we can find a similarity in interpreting the term. Pursuant to them, copyright (or author’s right) is a legal term used for the description of “the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.”11 It must be stressed that copyright under WIPO’s explanation only includes the rights of the author only, with the exclusion of related rights. This is different from the interpretation of WTO, when copyright in a broad sense can also include related rights.12 The separation between the terms is due to the variation in legal systems, which would be explained below. In the view point of legal science, commonly, the term has already spoken for itself, it is the right to make copies of a given work (at first it meant simply written 11 WIPO. (n.d.). Copyright. WIPO – World Intellectual organization. Retrieved April 10, 2021, from https://www.wipo.int/copyright/en/ 12 WTO. (n.d.). Intellectual property: protection and enforcement. World Trade Organization. Retrieved April 10, 2021, from https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm 13 work) and the right to prohibit others from making a copy without one’s permission.13 Copyright, which has the same goals as intellectual property right, aims for (1) the assurance of patrimonial rights as well as moral right of the author; (2) the public access to the works; (3) the impulse for creative activities, which is the fundamental undertaking for the development of society.14 The recognition of the term is said to appear since the invention of printing press in European countries in mid-15th century, with the pioneer being the German inventor Johannes Gutenberg. The technique was then introduced to neighboring countries such as England, Italy and so forth, which resulted in the special relationship between the King and the printers as well as the publishers.15 Correspondingly, written statutes were born to adjust this matter, typically the Act of Anne in 1710. However, it is only the right to copy that was officially recognized, not the term “copyright” itself.16 It was not until 1838 that the term was used by the French lawyer Augustin-Charles Renouard in his famous book entitled Traitt des droits d'auteurdans la litttrature, les sciences et les beaux arts.17 By using this term for his work, “copyright” for the first time replaced “literary and artistic works” as well as “intellectual property” and it was accepted as an official legal term by scholars and legislators. However, it must be acknowledged that Charles used the term in plural form as in “copyrights”, this is to imply the abundance of rights that the author will have to his works. The author of this thesis believes that this is the correct form to use of the term but through time, the variant of the original term has become more preferred. 13 Goldstein, P. (2003). Copyright's Highway: From Gutenberg to the Celestial Jukebox. Stanford Law and Politics. 14 Roş, V., Bogdan, D., Spineanu-Matei, O. (2005). Dreptul de autor si drepturile conexe: tratat [Copyright and related rights]. Publishers C.H. Beck. 15 Erer, N. (2014). A Short History of Copyright in the West, in the Ottoman Empire and in Turkey. Turkish Librarianship journal, 28(4), 638-644. 16 Dumitru, C. (2011). Comparison between copyright and ownership in common law. Romanian Journal of Intellectual Property Law, 2011(2), 32-59. 17 Renouard, C. (2018). Traitt des droits d’auteur, dans la literature, les sciences et les beaux-arts [Treatise on copyright, in literature, science and the fine arts]. Forgotten Books. 14 Due to the historic development, however, there exists a difference in understanding the term in civil law system and common law systems. As for the former, “copyright” is referred to as droit d’auteur (author’s right), which includes the economic rights and moral rights of the author. For European scholars, copyright is the most personal property right of a person, which does not exist due to its codification, but it is the unique creative activity of each author that gives birth to the right.18 The idea is said to be rooted from the decrees of 1791 and 1793 (the Law of Suspects), which restricted the rights and privileges of those who are favoured by the King after the French revolution.19 Supporting this notion, the father of social bounds of copyright theory, Otto van Gierke, considered that copyright is the extension of one’s personality and therefore, it can not be separated from the author’s creative activity, from the creative process to when the works have been published.20 With regard to the author himself, the famous French poet and author Alphonse de Lamartine stated that literary property is the “most sacred of property”. In other words, for the author, copyright is considered as the most personalized and intimate form of property as it represents the author himself and his internal thoughts, while original forms of property speak for external things only.21 This is also the reason for the separation between author’s right and related rights in civil law countries since producers, broadcasters and performers are not considered as authors and hence, they are only granted generally narrower rights under a different title. Clearly, the civil law system when dealing with copyright tends to be emotional, revolutionary and extremely connected with idealism. On the contrary, “copyright” in common law countries indicates both author’s rights and related rights. In fact, the concept of “related rights” basically does not exist since the role of authors and producers, broadcasters and performers are 18 Monta, R. (1959). The concept of copyright versus the droit d’auteur. Southern California Law Review, 32(2), 177-186. 19 Id. 20 Gierke, O. (1889). Die soziale Aufgabe des Privatrechts. Springer.; Kohler, J. (2010). Das Autorrecht: Eine Zivilistische Abhandlung. Kessinger Publishing. 21 Planiol, M. (1915). Traite Elementaire de Droit Civil [Civil Law Treaty]. Librairie Générale de Droit y de Jurisprudence. 15 regarded as having equally importance in promoting the works to the betterment of society. This stems from the history of copyright in common law countries, England to be precise, where the rights and privileges were originally granted to publishers and printers by the Crown. It was the legislation that brought these rights to life, not the author. Nowadays, under this system, there is a copyright in what a creator himself creates, known as the copyright in original works, and there is also a copyright in the products of technical skill, known as copyright in sound recording, films, broadcasts and suchlike. There is furthermore a pecuniary relationship between the author and the copyright owner. In which, the employee (the author) is hired to create a work under a contract and the employer, who may have nothing to do with the creative process, is the legitimate copyright owner of the work, after having accomplished his obligations as in the contract. Due to this liberty between the parties as well as the high status of producers, broadcasters and performers in common law system, which tends to be more rational and practical, the concept of copyright is a one and all inclusive right of a pecuniary nature, with no appearance of moral rights.22 The adoption of the Berne Convention in 1886 was a milestone for moral rights of the author as they were internationally recognized. Although most of common law countries do not implement this protection, until now, there have been many national law revisions in common legal system as to consider whether to adopt moral rights provisions or not in order not to violate the reciprocal principle.23 For example, UK when considering the implications of ratification of the Berne Convention revision in 1948 had to discuss whether to distinct moral rights from copyright or not.24 However, hitherto, the debate on the legal nature of copyright is still a never-ending story, with the split of two schools’ arguments, monist and dualist theory.25 22 See supra note 18. Small, R. R. (1977). The Author's Moral Right. Trent Law Journal, 1, 69-86. 24 Id. 25 See supra note 16. 23 16 Monism, with the representative being common law countries, claims that there is an inseparable link between the economic and moral rights of the author; therefore, it is impossible to divide the copyright into different categories, namely patrimonial rights and non-patrimonial rights. Pursuant to this school, the prerogatives of copyright are made up by moral rights, which have the same value and duration as economic rights.26 However, the theory is easily subject to criticism as it loses sight of the fact that patrimonial rights only come to existence if the author perform his moral rights. Furthermore, there seems to be no causal link between economic rights and moral rights as they represent different objective and areas of application.27 Dualism, on the other hand, states that economic rights and moral rights “have a distinct existence and legal regime.”28 In this case, the latter even plays a more important role than the former. Therefore, the duration of moral rights should not be limited to the life of the author as economic rights but extended after his death. The rationales for this argument are as follow: – The work of an author is the result of one’s creation. Therefore, he will have the power to communicate his work to the public and decide if his work deserves to be known or not. Only by performing this action will the material benefits of the author appear and hence, we can come to the conclusion that patrimonial rights take root from non-patrimonial ones. – Every aspects of copyright are immensely influenced by moral rights as moral rights ensure the connection between the author and his works, while economic rights only recognize the author’s material interest. – If one violates the author’s moral rights, the result will be monetary damage. Therefore, economic rights stem from moral rights.29 26 Id. Id. 28 Roş, V. (2016). Dreptul proprietatii intelectuale [Intellectual property law], vol. I. Publishers C.H. Beck. 29 Eminescu, Y. (1997). Dreptul de autor [Copyright], Lumina Lex Edition Bucharest. 27 17 Nowadays, countries unanimously agree to disagree on this matter as prolonging the debate would not solve anything. The most effective and common solution is that common law countries when entering an international treaty on intellectual property protection should consider adopting moral rights provisions or not, depending on their current circumstances. In conclusion, according to the author of this thesis, to be most thorough and suitable with international context, the interpretation of copyright should be as follow: copyright are the rights of an author to his original works (works include but not limited to the list of literary and artistic works regulated in Article 2 of the Berne Convention and possible new forms of work in the future), which include moral rights and economic rights. However, it is the right of each country to decide whether to cover moral rights in the interpretation of copyright or not. 1.1.2. Related rights Related rights, according to Black’s Law Dictionary (2004, p. 824), which are also termed as “neighboring rights” or “entrepreneurial rights”, are “intellectual property rights of a performer or of an entrepreneur such as a publisher, broadcaster, or producer, as distinguished from moral rights belonging to an author or artist as the work’s creator.” Compared to the term “copyright”, “related rights” conforming to Black’s interpretation is more adequately explained as it is not restricted by a limitative list, though still very simple to understand. Overall, related rights are rights belonging to an individual (performer) or a legal entity (publisher, producer, broadcaster and so forth) who is not the author of the work. WIPO, on the other hand, provides a very detailed interpretation of the term. Pursuant to them, related rights, also referred to as neighboring rights, are rights that “protect the legal interests of certain persons and legal entities that contribute to making works available to the public or that produce subject matter which, while not qualifying as works under the copyright systems of all countries, contains sufficient creativity or technical and organizational skill to justify recognition of a copyrightlike property right. The law of related rights deems that the productions that result 18 from the activities of such persons and entities merit legal protection as they are related to the protection of works of authorship under copyright. Some laws make clear, however, that the exercise of related rights should leave intact, and in no way affect, the protection of copyright.” Subjects that are granted these rights usually are (1) performers; (2) producers of sound recordings (also referred to as phonograms) and (3) broadcasting organizations. Intrinsically, this interpretation is the same as Black’s, which also approaches related rights as rights of those who have close connection to the work of the author. The only dissimilarity here is the further explanation of WIPO as why related subjects deserve to be granted with such rights. In legal science, it does not exist a unified concept of related rights. Researchers and scholars often regard them as rights which belong to individuals or legal entities who are involved in the original literary and artistic works but are not the author. The subjects of these rights often are performers with regard to their performances, producers of phonograms with regard to their phonograms and audiovisual producers, broadcasting organizations with regard to their broadcasts.30 However, from the examination of the legislation of different legal systems, there is a slight distinction in the interpretation of the term. In civil legal system, as explained above in section 1.1.1, they do not recognize the rights of those who are not authors, albeit the knitted link one may have to the original work. It was not until the 1930s – the era of neighboring rights that related subjects started to fight for their rights to be acknowledged.31 To be able to fully understand the concept of “related rights” in civil system, it is imperative to examine the development history of it. Already in the late 1920s, music performers were threatened by the appearance of mechanical music (loudspeakers, records, radio…) and as a result, musician’s union from all over Europe had loosely proposed the idea of forming a legislation protecting the rights of performers. The demand for the protection of live music and for the 30 Gervais, D. (2018). Related rights in united states law. Journal of the Copyright Society of the USA, 65(4), 371-[viii]. 31 Laing, D. (2004). Copyright, Politics and the International Music Industry. In S. Frith and L. Marshall (eds), Music and Copyright (pp. 70-85). Routledge. 19 taxation on mechanical music as a way to compensate for musicians and their families started to intensively emerged in the 1930s which gained the attraction from overseas, namely the American Federation of Music. However, due to the unstoppable popularity of mechanical music, the aim of musicians’ unions at that time was not a compensation anymore, but a fund to conserve the value of live music for young generation, with the advent of the Music Performance Trust Fund. The International Labour Organization (ILO), upon receiving this proposal from musician’s unions, promoted this matter as a labor legislation for a whole profession, not as individual’s rights.32 Although performers were the first to demand for protection, the record industry successfully gained the most recognition. In the late 1930s, records sales fell dramatically due to the impact of the Great Depression and as a result, the International Federation of the Phonographic Industry (IFPI) was founded to handle the situation.33 Throughout the 1930s, IFPI maintained a close relationship with the Italian government and was influenced heavily by the fascist idealism, leading by the Italian lawyer Amedeo Giannini. He proposed two solutions to the problem, which was considered as conceivable, the first one was that the sound recorded on a phonograph record could be protected as an industrial design by the Paris Convention, the second one was that record company would be protected as the author under provisions of Berne. However, he opposed to performers being similarly protected due to the humble intellectual activity they have in connection with the original work.34 The second alternative quickly encountered objections from musician’s unions and the solution that is at equilibrium was a new convention for the protection of record companies; it must be stressed, however, that this would form a sui generis 32 Fleischer, R. (2015). Protecting the musicians and/or the record industry: On the history of neighboring rights and the role of fascist italy. Queen Mary Journal of Intellectual Property, 5(3), 327-343. 33 Frith, S. (2006). The Industrialization of Music. In A. Bennet, B. Shank and J. Toynbee (eds), The Popular Music Studies Reader (pp. 68-79). Routledge. 34 Giannini, A. (1934). Rechtsprobleme der Schallplatte [Legal problems of the record]. Archiv für Medienrecht und Medienwissenschaft (UFITA), 7, 267 et seq.