Intellectual property rights are territorial by nature. Copyright holders cannot yet obtain unitary protection throughout the world. Instead, they obtain rights in Australia, Brazil, China, France, South Africa, and the United States. What type of rights they obtain, how strong these rights will be, and whether the rights will be effectively enforced depend largely on the intellectual property system each individual country has put in place.
It is therefore no surprise that copyright holders seeking to protect their works in multiple markets remain frustrated by the “territorial mess” created by national divergences in laws, policies, and institutions, not to mention the additional differences in market capacities and consumer expectations.
Although countries have occasionally enforced laws extraterritorially to abate this “territorial mess,” especially in situations involving the Internet, a less intrusive approach is to harmonize the laws of different countries. Since the nineteenth century, sovereign governments have worked with each other to address cross-border challenges by establishing international intellectual property agreements. These agreements ranged from the Paris, Berne, and Rome Conventions to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”) of the World Trade Organization (“WTO”) to the 1996 Internet Treaties of the World Intellectual Property Organization (“WIPO”).
While territorial challenges posed by national borders continue to exist and remain quite significant, rapid globalization, the increased mobilization of goods and people, and the arrival of the Internet and new communications technologies have further exacerbated these challenges. In the mid-1990s, the popularization of the Internet led commentators and netizens to question the success and appropriateness of using existing laws and regulations to govern the borderless Cyberspace. In A Declaration of the Independence of Cyberspace, for example, John Perry Barlow provocatively declared:
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.
By now, it is quite clear that Cyberspace, though borderless, is far from unregulable. As Lawrence Lessig, Joel Reidenberg, Tim Wu, and many others have reminded us, code can become law. By manipulating or regulating code, countries have successfully fortified borders to assert their longstanding, and often much-needed, sovereign control. After all, political scientists Robert Keohane and Joseph Nye have noted, “information does not flow in a vacuum, but in political space that is already occupied.”
Notwithstanding its regulability, the borderless Cyberspace continues to pose major challenges to the enforcement of intellectual property rights. To alleviate these challenges, the House and the Senate introduced, respectively, bills to enact the Stop Online Piracy Act (“SOPA”) and the PROTECT IP Act (“PIPA”). These proposed statutes seek to target “rogue” websites that facilitate online piracy and counterfeiting. At the international level, the United States, Japan, members of the European Union, and other like-minded countries also aggressively pushed for the adoption of the Anti-Counterfeiting Trade Agreement (“ACTA”). As of this writing, the United States is busy negotiating the Trans-Pacific Partnership Agreement, which is anticipated to include intellectual property provisions pertaining to cross-border enforcement.
Because David Levine’s article and the attendant commentaries in this Symposium already cover many of these issues, this Article focuses on an issue commentators have somewhat ignored: the deployment of region-based restrictions to protect copyrighted content. These restrictions show that, while technology undoubtedly has exacerbated challenges posed by territorial boundaries, rights holders, with the help of national governments, have also successfully co-opted technology to strengthen the protection of their copyrighted content.
A leading example of such technology is the use of region codes by the movie, software, and game industries to protect content stored on digital video discs (“DVDs”)—or what the home electronics industry has now rebranded as “digital versatile discs.” Designed as technological protection measures, DVD region codes direct machines to allow access to the protected content only if the product was coded to be played in the authorized geographic region. The playback control mechanism initiated by these region codes can be found on both DVD players and computers containing DVD-ROM drives. Although a number of legal commentators have briefly analyzed DVD region codes in the context of digital rights management, very few have examined the expediency of using region-based restrictions to protect media content. This Article seeks to fill this void by critically evaluating the use of such restrictions to protect intellectual property rights.
Part I of this Article provides a historical background of DVD region codes and a brief overview of the technology involved. Part II advances four justifications for the deployment of DVD region codes. This Part critically evaluates the strengths and weaknesses of these justifications. Part III identifies four areas in which DVD region codes have created unintended consequences: consumption, competition, cultural rights, and censorship. Part IV advances three modest proposals to address the shortcomings of DVD region codes. Specifically, this Part discusses (1) the voluntary removal of these codes; (2) the provision of affordable multiregion players; and (3) the introduction of a right to circumvent. Part V concludes with an explanation of why a better and deeper understanding of region-based restrictions is both timely and important. By linking DVD region codes to streaming platforms, device-embedded applications, cloud computing, and other emergent technologies, this Part warns that the impact of region-based restrictions on consumers is likely to increase in the near future.
Featured here is the first part of a paper by Peter K. Yu, Kern Family Chair in Intellectual Property Law and Founding Director of the Intellectual Property Law Center at Drake University Law School. Born and raised in Hong Kong, Professor Yu is a leading expert in international intellectual property and communications law. He also writes and lectures extensively on international trade, international and comparative law, and the transition of the legal systems in China and Hong Kong. The full article can be found here.