International virtual copyright
THE UNITED Nations body the World Intellectual Property Organization has a Standing Committee on Copyright and Related rights (WIPO SCCR). It is meeting remotely much of 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.
Introducing the meeting, the Chair noted: "We understand that certain member states would like us to consider the impact of the pandemic on our sector. Whatever modalities we adopt... the Secretariat will be available to discuss..." That seemed to be a "no" to a request which we believe was motivated by the idea that the pandemic should be a reason to weaken copyright; but see discussion on Tuesday.
Of the six new Non-Governmental Organisations accepted as observers, all 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.
Since 1998 the Committee has been discussing a proposal for a Treaty to grant certain "neighbouring rights" to broadcasters, roughly similar to the right that recording studios have in the actual recording of the performance of a composition. The initial speakers, representing groups of countries, all look forward to resuming face-to-face discussions: as noted the Committee is not taking any decisions in "hybrid mode".
What is proposed is a Treaty giving broadcasters worldwide a "neighbouring right" to authors' rights that allows them in one way or another to protect their signal against piracy. The problems arise with defining "signal" and "broadcaster". None of the likely proposals goes much further than EU law or, therefore, than current UK law. We sigh and accept broadcasters' "I want ma own Treaty, Daaad". The risk is that if a "neighbouring right" for broadcasters extends beyond "traditional broadcasting" then it assumes the position of what I call a "gatekeeper right". An analogy is that "neighbouring right" that record producers have in recordings. However much the law protests that this does not affect the underlying authors' and performers' rights, anyone wanting to use a particular recording of that composition and performance must ask the producer first before contacting them.
The European Union seeks "a meaningful Treaty that reflects the technological developments of the twenty-first century". This means it should grant rights at least in catch-up services. I didn't hear the EU say who should benefit from such a right. The United States "like many other delegations, believes that a virtual meeting is not an appropriate forum to negotiate a Treaty". So that may be where the objection came from...
Ecuador "recognises the challenge on the scope of the Treaty". Japan - a strong supporter of a broad Treaty - seeks "flexibility". Chile "regrets" that it was not informed of meetings of an informal "friends of the Chair" group, that had discussed ways to move forward when meetings resume. "Respect is important." This is stinging... in the context of the diplomatic language used here.
Iran seeks to avoid creating overlapping rights that lessen access.
India moves on to "limitations and exceptions" - rules that permit use of copyright works without payment or remuneration - and supports those proposed and due to be discussed tomorrow. An NGO from India (CIS, the Centre for Internet and Society) joins others calling for limitations and exceptions to the broadcasters' right in view of the pandemic.
With regard to the Friends of the Chair, Pakistan joins Indonesia in calling for "a more transparent informal process". The Chair promises to be "more inclusive than in the past". Indonesia comes back: "what if Indonesia is willing to join the Friends of the Chair group?" The Chair says "we need to reflect calmly and rationally on the criteria". The principle of having "the best possible inclusiveness and optimal transparency is very much accepted" but "it's not the time to make a decision now."
The meeting stopped at 13:26 London time.
Today we debate proposals for new international law of some form - a "binding instrument" in the jargon - on limitations and exceptions to copyright - conditions under which works may be used without permission or payment.
Bangladesh, speaking for the Asian-Pacific group of member states, opened by noting the impact of the covid pandemic - claiming that international norms could help countries grappling with the effects, particularly on education. Many "are re-thinking the role of copyright in access to material for education as well as protecting the rights of authors". It calls for an information session on the impact of covid on copyright during the next meeting of the Committee.
China calls for a "balanced structure" - which is often code for widened exceptions - and endorses the idea of consultations on the impact of covid. South Africa, for the Africa Group, calls for further regional consultations, in addition to the "information session". Belarus supports it.
Georgia, on behalf of the group of Central European and Baltic states, calls for an "exchange of best national practice" and believes there is "enough flexibility with existing international frameworks" to deal with exceptions "without a new binding instrument". The UK, for Group B (broadly, industrialised countries), notes that creators depend on copyright to earn a living during the pandemic. It calls for "capacity-building" work to assist countries to apply existing international law.
The European Union lauds the roles of libraries, museums and archives and education and repeats that it cannot support work toward new binding instruments. It supports consultations, given a holistic approach not limited to exceptions. Consideration of the pandemic should include the impact on the creative sector. The US says existing law allows countries to advance their own culture, tailored to their own needs and circumstances. It cannot support a new binding instrument. It supports the holistic approach to covid's impact.
The Russian Federation supports the call for a binding instrument. From memory it has not always done so. Pakistan supports Bangladesh. So does Indonesia, which believes the proposal is holistic. Regional consultations should include libraries and archives and so on (but we heard no mention of authors).
Brazil supports work on issues on which there appears to be consensus - preservation and international lending. (This too appears to be a change of emphasis.) This does not preclude national or regional solutions on other matters. It has implemented the Marakesh Treaty that provides for accessible copies for people with visual disabilities to cover people with some other disabilities. Saudi Arabia (which rarely speaks) is in favour of a Treaty.
France supports Group B and the EU and is in favour of an information session. "Creators have also been exceptionally impacted by the covid crisis."
Chile supports a Treaty. Ecuador points to the need for each state to promote creativity and culture - too broad an exception could put off creators. "We must look also at the impact on the creative industries - and recognise the work that cultural sectors have done. We mustn't forget creators... we need to overcome the value gap in the digital sphere... creators have helped us live through these difficult circumstances." This, too, appears to be a change of emphasis compared to meetings a few years ago in which Ecuador was promoting exceptions.
For the International Federation of Journalists I said:
Distinguished delegates: this month marks the thirty-second birthday of the World Wide Web. It is no longer "new technology". If it were human, it would now be worrying about putting its offspring through law school - and possibly complaining about the price of textbooks.
In the real world the internet is now a utility. We know what that means: regulation. The corporations that profit from the internet largely by distributing authors' work without permission recognise this. And they kick against it.
Particularly in the Global South, societies urgently need to support their own authors, including journalists. The IFJ warns that chasing cheap access to works created elsewhere will leave societies reliant on works that fail to comprehend their best interests.
The need for societies to support their own authors is more urgent in the context of the pandemic. Authors – myself included – have been hit hard by the economic effects of coronavirus and to claim that the pandemic is a reason to weaken our rights is bizarre.
We have sound models for the exceptions and limitations that authors and others need. The push for new international instruments on these serves the interests of internet corporations and hardly anyone else. This Committee needs to focus on "innovation and creativity for the benefit of all" to quote, of course, WIPO's mission.
That was the two-minute version, under the constraints of a hybrid meeting. The three-minute version submitted to the record of the meeting (with references) is here.
The International Authors' Forum notes that authors want the widest possible lawful access to their work - and in no country are authors able to produce works if they are denied remuneration.
FIAPF, the International Federation of Film Producers, stresses that exceptions and limitations should only be introduced after thorough impact assessments to ensure that creative industries are not harmed.
The International Federation of Library Associations points to the need for copying to preserve archives - in the context of a South African university library having been destroyed by wildfire. [Fair enough - but most national laws permit this and all are easily amended, as Brazil pointed out.]
CISAC, the organisation of photo libraries, notes that "without the creators all these debates will have no reason to be held." The current framework of licensing and collective licensing provides solutions to the needs of libraries and education. "While the covid pandemic has been a catastrophe for creators... we count on the Committee to develop the best way to support creators and support a holistic approach" that includes support for creators.
EVA, the European Visual Artists, observes that to demand unremunerated exceptions for cultural education is to ignore that visual creators are professionals - whereas, of course, the staff of cultural heritage institutions are paid.
The UK visual creators' collecting society DACS notes that three-quarters of artists surveyed had been immediately impacted by covid and many were unable to maintain their studios. Artists play a vital role in society. They have kept us sane during lockdown. They have helped regenerate small towns. Extending copyright limitations damages this ecosystem.
The International Publishers' Association highlights "the time-tested importance of the WIPO copyright treaties" that enable the work of its industry. In the context of the pandemic the industry has stepped up to facilitate the distribution of reliable information that could help governments decide on their responses. Copyright and its effective enforcement are essential to publishing everywhere - but are even more important in developing countries. Publishers in these countries do not invest in digital formats because they fear the unlawful copying of their works. Ill-judged change would prevent authors, especially in developing countries, making their contribution.
The Chair declares that an information session considering covid at the next Committee meeting is "essential". It should take an "holistic approach". Copyright and exceptions "are part of a system that must reconcile the interests of individuals [creators], of publishers and of the public".
The UK, for Group B, appreciates the underlying principles of an approach that is "holistic and balanced". Group B is not ready to give a blank cheque on the Asia-Pacific proposal (presented by Bangladesh). The regional consultations and the consideration of the effects of covid are separate elements that should not be blended together. Discussion continues tomorrow.
The meeting closed at 13:36.
Work continues behind the scenes on an agreed statement on ways of considering covid.
Analysis of copyright in the digital environment
This is a wide-ranging (and somewhat fluid) proposal first presented by Brazil. Should the Committee proceed with it?
Discussion focuses on the music market. The Committee was presented with five studies. The problem of the derisory sums paid to musicians for streaming of their work is most acute for "non-featured artists" - who typically receive nothing.
One study proposes a system of streaming remuneration to performers, bypassing the thicket of contracts that obscures who gets what. This "would require streaming services to make royalty payments directly to performers akin to a communication to the public royalty". This could indeed be similar to Public Lending Right in the UK.It emphasises the point that member states - particularly, perhaps, in Latin America - increasingly see solutions to the problem of paying authors and performers for digital uses in payments through collecting societies (such as ALCS for writers in the UK and DACS for photographers and other visual creators).
Brazil identifies three issues: the remuneration of artists and performers; transparency; and the role of collecting societies. It raises the (alarming) prospect of discussion also on the exhaustion of rights in digital markets - the question of whether there should be a "second-hand" market in digital works. If there were, this would seem to create a plethora of loopholes for exploitative digital services. The UK, for Group B, thanks the authors. The US also thanks the authors and re-states its long-standing view that "copyright policy issues rather than marketplace issues are more likely to result in constructive discussions at SCCR" - that'll be a "no" to this item going on the standing agenda. Studies should be peer-reviewed ad free of policy recommendations and those published in advance of meeting should bear a disclaimer that they do not reflect the position of WIPO. Ouch.
Ecuador seeks a "balanced and just regime for compensating artists for their work... and promote cultural diversity". It suggests a debate with authors present at the next in-person meeting of SCCR with an actual agenda item on artists in the digital environment. Pakistan supports a new streaming right.
The Library Copyright Alliance intervenes to ask whether the "value gap" is a market matter and not within the jurisdiction of the Committee - reflecting the US position and the interests of the internet corporations. Who funds the Library Copyright Alliance and its members again?
The International Federation of Musicians says the study by Christian Castle and Professor Claudio Feijóo provides a sound working basis for equitable remuneration and supports the call for a session in the presence of authors and the addition of this study as a standing item on the agenda. Castle, responding to questions, liken their work to walking on subway tracks while avoiding the third rail. The alternative to collective remuneration - called here the "user-centric model" - would be to tie payments to actual listenership. It " did not seem as compelling" to them. They would be happy to receive peer-review comments and he was disappointed they didn't get more reader comments.
Castle understands that a hearing in London in September will pave the way for legislation on streaming in the UK.
Artists’ resale right
Senegal and Congo have proposed discussion on a Treaty making the right of visual artists to a small share of the price paid when their works are re-sold apply worldwide.
The answers to questions that Japan raised at the previous session of the Committee indicate that an issue here is some member states' reluctance to tackle money-laundering through the art market. The right involves, after all, laws that demand the recording of art sales...
For the International Federation of Journalists, I said:
The International Federation of Journalists belatedly congratulates the Chair on the smooth running of this meeting and thanks the members of the Secretariat for their tireless work under these difficult circumstances. The IFJ represents 600,000 media professionals from 187 trade unions and associations in more than 140 countries, North and South.
The IFJ wholeheartedly supports the proposal for an instrument on the droit de suite. A resale right giving artists a fair share of the proceeds of re-sale of their work - which we understand are typically far higher than the proceeds of first sale - is a simple matter of ensuring equitable treatment and is a necessity for a fair authors' rights system that promotes innovation and creativity for the benefit of all.
Because the art market is inherently international, and because relatively few WIPO member states currently implement such a resale right, it us appropriate for WIPO to develop a binding Treaty, in order that the art market not be fragmented to operate under "flags of convenience" that permit intermediaries to evade their responsibilities to the artists whose work enriches all of our lives.
The session closed at 13:30 London time.
Rights of theatre directors
Russia continues to proposes that theatre directors should have a right to authorise - or not - reproductions of their productions.
Public Lending Right
Public Lending Right (PLR) pays authors when their books are borrowed from libraries. In the UK it was extended in July 2018 to cover lending of ebooks and e-audiobooks. Three member states proposed at the last session of the Committee that WIPO should conduct a study of PLR, including describing how it works in the different member states that currently implement it.
Sierra Leone and Malawi each set out what such a study should cover. They stress that they are not seeking a binding international instrument, and that they are not seeking to put PLR permanently on the Committee's agenda. Panama, the other sponsor, mentions that a crisis has "a beginning, a middle and an end" - and conducting a study now could help prepare for the job of digging out in the end stage.
The International Federation of Reproduction Rights Organisations (IFRRO), the organisation of collecting societies for text and images, considers that PLR is important to protecting cultural diversity and minority languages. It is a way for countries to support local authors and local culture.
Chile is sceptical. PLR is paid from taxes and is a subsidy to authors. Do we know how publishers share revenue with authors? The UK, for Group B, considers that this should be discussed "later," by implication after the pandemic.
The lobby group Electronic Information for Libraries (EIFL) is opposed to such a study. What would PLR cost? We should support authors in other ways. We should look at issues such as the reversion of rights contracted to publishers, for example when the publisher no longer lists the book.
We understand the US to say that it is prepared to support a "purely factual report". It re-iterates its opposition to any binding international instrument on PLR. The EU is "still considering" the proposal.
The International Federation of Libraries and Archives (IFLA) believes that PLR is not a matter of copyright or authors' rights, but rather of cultural policy (and by implication it should not be discussed here). It "is a strong supporter of fair remuneration for authors" It proposes to look for other ways to support authors.
The Library Copyright Alliance, like other library organisations, looks first at the cost of PLR. It asks whether the publishers are paying the authors fairly. Any study should be "holistic", looking at all aspects.
Sierra Leone summed up by reiterating that "a study is just a study". It wouldn't want to prejudge the outcome - though of course a study would be of assistance to any countries that decided for themselves to implement PLR.
There will be a covid information session at the time of but, as we understand it, separate from the next session of the committee. The date of this is yet to be announced.