Copyright internationally - back at WIPO in Geneva
BACK IN GENEVA at the World Intellectual Property Organization (WIPO). Somewhat to my surprise, there is an agenda for the meeting. I understand that Latin American and African countries had been blocking one, demanding more time for giving schools and libraries "exceptions" to use authors' and performers' work without permission or payment, and less time for a treaty for broadcasters.
Monday 30 June, 17:20
A scattering of government representatives - 25 out of 250-odd - are holding an "informal session" on the proposal to give broadcasters a Treaty. It would force member states to pass laws giving broadcasters the right to prohibit "pirates" re-transmitting their "signals". The drafts are headed up with protestations that such a broadcasters' right would have nothing to do with the rights of authors and performers in the programmes that are broadcast. But: what does "signals" mean?
This discussion has been going on for at least 15 years. And today there's a rather bizarre reversal of positions.
Years ago, the US wanted a Treaty to cover "internet broadcasting" and the EU was keen to limit it to "traditional broadcasting" Now the UK representative is pointing to the situation of the channel BBC 3, which it has been decided will be internet-only. Should it be covered because it's a programme put out by a "internet broadcaster"? The European Union is now arguing for a wider right as well.
And the US is reminding the meeting - the Standing Committee on Copyright and Related Rights - that its mandate is only to discuss a treaty protecting the "signals".
Why does this matter to authors and performers? I have worried in the past that a broadcaster's right would occupy the same place as the music producer's "mechanical right" in music - which is equally a "neighbouring right" not copyright but "trumps" other rights because if you want to use a recording you have to clear it first, before you ask anyonr else involvrd with a recording.
From that perspective, the deeply geeky discussion going on now about how long the right lasts - with proposals ranging from a "catch-up" within an hour, to pretty much forever - is important.
Treaty for the blind ratified
ALSO, the Marrakesh Treaty, instructing member states to legislate to allow access for people with visual disabilities, was ratified just now with the presentation of the 79th formal letter by India. This happening one year after the signing of the treaty is probably a record.
The International Authors' Forum, launched by the UK's Authors' Licensing and Collecting Society, is the author representative on the Accessible Books Forum which will be working on the practicalities of getting more books to blind people.
Tuesday 1 July, 10:30
Ah. So that is what "informal session" means. We are asked not to Tweet, blog or report. Discussions on the broadcasting treaty continue. The above report was retroactively stood up by discussions with country representatives, so please treat it as an account of those, not of the session.
Tuesday 1 July, 12:30
A very interesting side meeting on the 17-year (and counting) discussion of "traditional knowledge". A purely personal reaction is that this is raising extremely thorny philosophical questions. Legal measures assume that the protagonists are legal persons - an emanation of the concept of the Self coming out of the philosophical "Enlightenment" in (mostly) North-Western Europe. But probably only someone embedded in that tradition would raise the question in this way. For everyone, the questions remains: what is it that could hold rights in traditional knowledge? The government of the state that traditional peoples live under? Probably not. A corporation formed by the people?
Tuesday 1 July, 18:00
A very pedantic afternoon in "informal session" discussing the scope of the proposed broadcasting treaty.
Wednesday 2 July, 12:30
The "informal consultations" report back. Now it's the turn of non-governmental organisations opposed to copyright to say why they oppose broadcasters having a right; and broadcasters to say why they should have one.
Wednesday 2 July, 16:00
Exceptions: the lines are drawn. On the table are exceptions (use without permission) and limitations (use without permission but with a right to payment, through collecting societies) for use by libraries, archives and educational institutions.
- Banagladesh, for the Asian group, simply wants schools and libraries and archives in such countries to have free books and digital resources.
- The Czech Republic, for the Central European and Baltic group, does not believe that any WIPO legal instrument is necessary and looks forward to an exchange of best practice.
- Paraguay, for the Latin American and Caribbean group GRULAC, supports a Treaty mandating exceptions - GRULAC having initiated this debate - and says that "we should take into account the interests of all involved" which may be a softer line than previously.
- Japan, for Group B (the non-EU developed countries), notes the importance of libraries and promotes an exchange of experience to help exceptions and limitations in national laws to function in their interest. That's a no to a Treaty, being translated.
- China is delighted that all speakers have recognised the importance of libraries and archives - and hopes that while respecting rightholders' rights to some extent it will be possible to give exceptions and limitations to them.
- Kenya, for the African group, restates its previous positions and summarises: they look forward to legal instruents for the benefit of libraries, archives and schools. Owing to colonial history, many relevant records are held in libraries outside Africa. They are working on texts of draft treaties.
- The European Union welcomes discussion on how a balanced copyright framework can help these institutions fulfil their mission. The existing legal framework already offers enough space for all WIPO member states to adopt exceptions and limitations. The sharing of best bractices is very useful in this regard. As previously stated the EU and its member states are not willing to consider textual work (on a treaty or suchlike). The EU encourages the SCCR to work toward the adoption of relevant exceptions and limitations at the national level.
- The United States does not make an opening statement in its own right,
Other countries support the GRULAC proposal, some offering very long shopping-lists of issues they want to see covered.
- The US speaks up to hold that exceptions and limitations are essential and refers to the Statute of Anne in 1710. Countries should have the flexibility to taiolor exceptions to their own needs. This flexibility is important to the US. [We know where this is going.] The US does not support treaties or norm-setting on this.
- India states that the issue of haves and have-nots is now supplemented by an additional burden of knows and know-nots. The honourable representative refers to a study that claimed that Germany saw an explosion of creativity because it had weak authors' rights in the nineteenth century, The methodology of that sucked, the Freelance seems to remember.
- Iran strongly supports a legally binding international instrument.
- Malawi makes a strong statement in support of authors' rights.
- South Africa supports the African Group position. Also, we should continue to seek a common understanding of these issues and of the steps that need to be taken.
- Uruguay refers to the needs of those who do not have funds to access lesiure materials on their own.
Countries supporting Treaties are lining up behind a proposal that there be regional workshops - Egypt says these should be debating texts of treaties, One country, supporting this, says "my delegation would be prepared to do anything to get over the blockages in negotiations"which rather indicates what such workshops - held away from Group B, the EU and the US - would be for.
- Russia says that the internet is leading to a deviation from the role of copyright and there are extremist statements from interested parties who consider copyright to be harming the development of the internet. We can put a stop to this specualtion in finding a balance between the interests of society, of authors and of business - and it is this instrument which will enable us to do that. Russia has amended its legislation coming into effect in October. The most important thing is not to do anything in haste. The matter requires a very serious scientific approach and Russia fully supports those delegations that have expressed a wish for further study - including perhaps regional workshops where countries that already have E&L could share their experience with others.
That decodes as a lot of points to please each side. The original Russian that was translated as "not to do anything in haste"will ne essential in detecting the payload.
The Chair says we have a common objective: countries have different solutions that allow copyright to be properly balanced and allow institutions to function fully. (The translator is struggling.)
The Chair calls for consensus on the principles, thinking this is a good way to avoid discussion of the various means that may be used to implement them.
The US welcomes this and refers to its document on principles submitted two meetings ago. The EU believes such a discussion should focus on that document, which has not yet been discussed in a meaningful way.
Thursday 3 July, 14:00
This morning the Chair announced a compromise: the Committee would discuss the objectives and principles for - to be presumptions - assisting the necessary work of libraries, archives and educational institutions. This would be based on a document presented to the last-but one meeting by the United States, and not properly discussed yet.
Delegates from countries pressing for there to be new international law - a Treaty - to this end spent quite a lot of time tangentially challenging the Chair's announcement, and re-iterating the positions given in yesterday's introductory remarks above.
Thursday 3 July, 16:00
The International Authors' Forum gave a presentation at lunchtime: report will be here
After lunch the EU asked whether the damage caused by digital exceptions to authors' rights; and whether, therefore, the conditions on exceptions that must under existing law - the "three-step test" - be included so that they do not unduly affect the insterests of the author should be different in a digital context from those that exist for "analogue" works such as those on paper.
The above question could take months to understad and years to answer.
Brazil noted that they had heard important new information from publishers about voluntary initiatives to help libraries and archives do their work; and also heard from libraries that these were not comprehensive and therefore a legally binding instrument was required.
The IFJ speaks
The contribution by the IFJ is here (small PDF). It concludes that:
...exceptions without fair compensation are a legislative transfer of value from authors. Ill-thought-out exceptions without fair compensation are in effect a transfer of value from one set of corporations in the global North to another set of corporations - those corporations which skim off value by distributing works which others have written and produced, and selling advertising alongside them.
...In the instances where such compensation is routed via the intermediaries that distribute authors' works, this of course raises the issue of authors' need for fair contracts from these publishers, broadcasters and so on to ensure that compensation collected directly benefit authors.
The Knowledge Ecology Institute specifically responded to the IFJ presentation. The people that win Nobel Prizes, they said, can do what they do because their countries invested in the infrastructure to provide them with others' publications. But there is a crisis in the publication and around the price of scientific journals: the people who fund libraries are beginning to doubt whether it makes sense to go on paying.
Friday 4 July, 16:00
Return from remote working (actual authorship) to hear the United States say that it is pleased to continue discussion on limitations & exceptions for libraries, archives ands schools... gulp ...but countries should have flexibility in how they implement these.
There is a collated proposal on the table which I am, as diplomats say, "studying": immediately apparent is a depth-charge in the shape of a universal obligation to deposit copies of all works (including born-digital works) with national libraries, which would then have a not-very-thoroughly-circumscribed right to lend them out.
The last session of SCCR, which I missed, failed to adopt formal conclusions before breaking up after 1am on the Saturday. Countries demanding exceptions refused to approve anything which did not include a commitment to "textual work" - the jargon for negotiating draft text for a treaty. They pointed fingers at the EU for blocking this. So far this afternoon the mood-music is less confrontational: but we haven't heard the EU's formal restatement of its continuing opposition to a binding Treaty (or, by implication, the new exceptions that lobbyists for the likes of Google would attempt to insert into such a document).
Ah. That's why it's so quiet. The regional group co-ordinators are upstairs fighting it out and this is therefore a sort of dummy session in their absence.
Saturay 4 July, 01:00
Once again, and for the same reason, the meeting broke up without agreeing formal conclusions. Neither did it make a recommendation to the WIPO General Assembly in September.