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International remote copyright

THE WORLD Intellectual Property Organization has a Standing Committee on Copyright and Related rights (WIPO SCCR). It is meeting remotely all this week: as the Chair of this session, Abdoul Aziz Dieng from Senegal, observes: this meeting will "take stock" and will not take "any decision whatsoever". This follows a certain amount of wrangling over the operation of remote meetings - and the now-usual cries of "Canada, can you hear me?" justify this caution.

The chair of the session, M. Abdoul Aziz Dieng

The chair of the session, M. Abdoul Aziz Dieng

The previous Chair, Daren Tang from Singapore, has been elected Secretary-General, succeeding Francis Gurry. The meeting held a moment's silence in memory of Carole Croella, who was a most efficacious interlocutor on authors' rights first at the European Commission and then at the WIPO Secretariat.

Of the 12 new Non-Governmental Organisations accepted as observers, 10 represent authors or performers or are collecting societies. This follows a long period in which the Committee has been flooded with opponents of copyright and authors' rights.

Broadcasting

We now turn to the proposal for a Treaty to grant certain "neighbouring rights" to broadcasters, roughly similar to the right that recording studios have in the actual record of the performance of a composition. The Chair introduces the discussion: "You will all be aware that this topic has been on the agenda of this Committee since its formation - in November 1998... In the intervening 22 years it has been the subject of various studies..."

Russia seeks to "expand the objects of protection", which is alarming to those who fear that a new neighbouring right would act as a "gatekeeper" - those wanting to re-use authors' and performers' broadcast work would first have to clear the broadcaster's rights. This is probably the stickiest point in the 22 years of negotiations: briefly, should it expand as technology develops, possibly accidentally including everything on the internet? Or should it be restricted to "traditional broadcasting organisations"?

The meeting stopped before 13:15.

Tuesday

Discussion of a Broadcasting Treaty continued. The meeting again finished early.

One anti-copyright representative implied that the recently-ratified Asia-Pacific Regional Comprehensive Economic Partnership Agreement (RCEP) compels the countries signing it to extend the "exceptions" to copyright - the rules under which your work can be used without permission or payment.

This is not quite true. The Treaty provides that "Each Party shall endeavour to provide an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions... for legitimate purposes" and so long as they comply with the "three-step test" set out in the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. It also provides that signatory states may legislate for US-style "fair use" - which instead of specifying exceptions leaves it to a court to decide, at great expense, whether a use complies with general principles.;

That these provisions were included - apparently as a sop to such anti-copyright forces - is worrying, but a sop they are. As an aside from the WIPO proceedings, we in the UK may face an uphill battle to prevent similar things happening in new trade agreements - unless the notorious "level playing field" provisions of a treaty with the EU kick in.

Wednesday - limitations and exceptions

Today we debate proposals for new international law on those limitations and exceptions.

"We should be mindful that the ability of creators to be remunerated should not be inhibited" and licensing should provide solutions - says the UK for Group B, essentially the OECD countries. Russia broadly agrees. Zimbabwe, for the African Group, calls for a "balanced copyright system that rewards creators", which suggests an interesting change of emphasis from previous meetings. However, Zimbabwe goes on to say that in the covid-19 crisis "children have been denied access to material due to copyright restrictions", which is almost a direct quote from a message that anti-copyright lobbyists circulated to delegations.

The US restricts itself to thanking the hosts of the regional seminars for their hospitality. Brazil, which has been prominent in promoting this issue, "limitations and exceptions must strike a balance between the legitimate interests of authors and third parties".

Trinidad and Tobago announce their "full support for the ongoing work... including licensing solutions". Ecuador says that exceptions should be limited and meet the above-mentioned "three-step test" and thanks authors for our work during the crisis - which is, again an apparent change of emphasis. Chile is concerned that discussion of licensing could hold up the work - so its goal is therefore clearly to use international law to widen exceptions everywhere.

Kenya observes that exceptions must be crafted carefully to avoid market distortion. There is no single model that can serve all jurisdictions.

The EU recognises the crucial role of libraries and archives and educational and research institutions. It notes broad support for capacity-building [for example to set up collecting societies in countries where they are missing] and for improving legislation at the national and regional level. It supports work on how limitations and exceptions can function within existing international legislation. It cannot support work toward legally-binding international instruments. That's clear and explicit, then.

As expected, non-governmental representatives of authors spoke of the need to support creativity; and several of those who effectively support the internet corporations' wish to use creative works for free insisted that the covid crisis - and indeed climate change - demand immediate measures to widen exceptions to copyright.

The International Federation of Journalists insisted on the need for independent, professional journalism to be economically viable:

The International Federation of Journalists congratulates the Chair on your election and thanks you and the Secretariat for your work under these difficult circumstances. We join all those mourning for Carole Croella, who we too miss very much.

The IFJ represents 600,000 media professionals in 140 countries, South and North. In common with others who represent authors, performers and those who distribute our work, the IFJ regrets efforts to convince this Committee that the current crisis somehow justifies precipitate action that is intended to damage the ecosystem in which creative works are produced and distributed.

On the contrary, it is now more than ever important that creative work be economically viable - and that includes the creativity applied by independent professional journalists in making complex truths about public health, for example, accessible to citizens. Sadly, this is particularly necessary at present given the prevalence of misinformation and disinformation.

Anything that weakened the ability of journalists to make a living as independent professionals - funded by licensing of their journalism, not by lobbyists and special interests - would set back the cause of open, accurate public information, As a working journalist, I personally know dedicated, ethical journalists who could not continue with their work without income from licensing educational uses. Where there are problems we propose that the solutions lie in developing licensing and in sharing international best practice in amending legislation, as WIPO does so effectively - and in finding funding for the essential work of libraries, archives and educational institutions.

The session on limitations and exceptions was due to continue tomorrow, but the Chair declared the topic finished and that there would be no session tomorrow.

Friday

We're dealing with proposals for new items on the Committee's agenda.

An analysis of copyright in the digital environment

It seems that the Committee will approve - when it next meets in a form capable of taking decisions - the commissioning of a study on copyright in the digital environment. Discussion of this centres on music streaming.

Resale right or droit de suite

What are the grounds for opposition to visual artists receiving a share of the price of their work when it is re-sold? Mostly this would be collected from auction houses, where dealings are by definition public. One of the studies the Committee commissioned found that private art galleries were concerned to maintain "professional confidentiality". Is this, suspicious minds wonder, connected with tax minimisation?

Another study - led by the Chair - reported an African artist having a work sold for €16,000 and then for €26,000 in the EU - with the artist getting a share. Then it was sold in the US for $70,000 - with none of that going to the artist.

The EU - which has adopted droit de suite - strongly supports its permanent inclusion on the agenda. Japan, which has not, calls for further study. The US, which has not, politely thanks those who worked on the studies so far. Malawi and Kenya are two countries which have implemented droit de suite - but because of the existence of countries that have not, African artists are not receiving what they should.

The International Federation of Journalists submitted a written statement, the Chair having decreed that the Committee was out of time on this subject:

The International Federation of Journalists strongly supports the proposal to place droit de suite on the agenda of this Committee. The nature of the art market and the significant number of member states that make no provision for artists to share in the increasing value of their work as it is sold on and on make this a case in which deliberation of a binding international instrument is merited. This would, we hope, go some way to fulfilling WIPO's mission to facilitate a "system that enables innovation and creativity for the benefit of all".
Rights of theatre directors

Russia proposes that theatre directors should have a right to authorise - or not - reproductions of their productions.

Proposal for a study on Public Lending Right

Sierra Leone, Panama and Malawi introduced a new proposal for a study on Public Lending Right - not for new international law.

As Malawi says, PLR is one way to foster creativity. It is one of only three dozen countries worldwide that have so far implemented it.

The Russian Federation does not object to a study and stresses the importance of the subject. The UK, speaking for Group B, thanks the proposers and supports a study and looks forward to better understanding the scope of it. It recommends giving priority to "more mature agenda items" - so that's not real support. The EU "will need some time to consider the proposal in detail". Zimbabwe reports that the African group has had insufficient time to consider the proposal. Serbia notes that PLR supports "the principle of no use without payment" and asks WIPO to provide practical support to countries wishing to set it up.

The International Federation of Journalists submitted a written statement, the Chair having decreed that the Committee was out of time on this subject:

The International Federation of Journalists wishes to stress the importance of PLR to book authors. It should obviously be available to authors in every country for book lending in every country. The system in my own country, the UK, functions well and is an important source of income to journalists who write or illustrate books: it offers an example that other countries could follow now. We welcome and support the proposal for a study.

The meeting concluded at 14:00, running over for effusive thanks to the Chair for its management under difficult circumstances.