Thus all national copyright laws to a greater or lesser extent attempt to balance recognition and enforcement of copyright against broader interests and needs. International copyright law has recognised the need for this balance but the exact nature of the appropriate balance has been contentious. The nature of the balance envisaged in the Berne Convention may well have been different from that envisaged in subsequent legislation and this essay will begin by defining the dimensions of that balance. It will then proceed to consider the changes in international copyright law brought about by the TRIPS Agreement and the WIPO Copyright Treaty to establish whether the balance as now recognised in international copyright law is different from that originally recognised by the Berne Convention.
Article 13 of TRIPs illustrates the essence of the Berne Convention and TRIPs, which is that the copyright holder’s rights cannot be derrogated from except in special circumstances in the public interest. However, the test is very strict whereby the rights of the artist are paramount in the Berne Convention where it it widely accepted that the copyright holder and the artist was one and the same. …
copyright holder is frequently not the artist because the caopyrights are owned by the employer, agent or company that commissions the individual’s work. Therefore TRIPs focuses on the economic rights of the copyright holder and ignores the moral rights of the artist. Public interest rights in both of these conventions are ignored except for the cases of academic interest. It is not deemed as important that communal and indigenous rights should be protected or materials that are valuable to the development of the greater good of the community. This is especially so in the developing countries, where licenses and permissions for copyrighted material need to be obtained to educate and fund the development of their citizenry. The WIPO Copyright Treaty in many ways has been introduced to protect public interest rights and limit the copyright holder’s rights, but in a balance with the moral rights of the artist. It still focuses too much on economic rights, but it is a move in the right direction.
"Libraries will continue to play a critical role in ensuring access for all in the information society. Properly functioning national and international networks of library and information services are critical to the provision of access to information. Traditionally, libraries have been able to provide reasonable access to the purchased copies of copyright works held in their collections. However, if in future all access and use of information in digital format becomes subject to payment, a library’s ability to provide access to its users will be severely restricted."1
Intellectual Property needs to understand that there are public interest rights as it deals with a variety of areas, stemming from inventions through to ideas and artistic writings and pictures. In relation to