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Strategic patience at WIPO

YOUR EDITOR is sitting in the cheapish seats at the back of the World Intellectual Property Organization (WIPO) in Geneva. Today, 1 May, we've had general introductory remarks from country delegations, which then went into an "informal" session which I may not report.

More follows when there's something to say.

Tuesday 2 May

They're still in "informal session". I don't think it's a breach of confidence to say they're discussing the nuts and bolts of a possible Treaty to give broadcasters a "neighbouring right" enabling them to combat piracy of their broadcast signal.

Wednesday 3 May

Non-governmental organisations such as the International Federation of Journalists were not invited by the Chair to make comments on the proposed Broadcasting Treaty. Had we done so, it'd have been much the same as what we said in November 2016.

Libraries and archives

The International Federation of Journalists made the following statement on the call for a Treaty granting various exceptions to copyright and authors' rights to libraries and archives:

First, the important niceties:

The International Federation of Journalists congratulates the Chair and Vice-Chairs on their election and the members of the secretariat on their diligent work. We represent around 600,000 journalists in 140 countries worldwide, North and South.

And the substance:

The IFJ of course understands the essential role of libraries and archives. Specifically, it fully supports them having the freedom to make copies for preservation. The IFJ has repeatedly called for libraries and archives to have proper direct funding to do this themselves and not to be forced to subcontract digital archiving to commercial operations.

The distinguished delegate of Brazil referred this morning to the "potential to extend the outreach of libraries and archives in unprecedented ways". When it comes to libraries and archives making copies of works available off the premises: that's a publishing operation, is it not?

The IFJ believes that the solution to this issue is collective licensing. And it is essential that there be capacity-building to ensure that efficient, democratically-controlled collective licensing is available in all member states and can deal with cross-border issues, as the collective licenses that already exist already do.

Many of those 600,000 journalists - perhaps particularly those who focus on factual public-interest reporting - are very poorly paid. Where there is such collective licensing it makes an important contribution to their economic survival as independent professionals with their own essential contribution to make to the recording and preservation of our cultures from within our cultures and not relying on foreign reporting.

This presentation followed introductory remarks by countries' delegates.

Colombia, speaking for the group of Latin American and Caribbean countries (GRULAC), reiterated the group's proposal for wide-ranging exceptions to copyright for the benefit of libraries.

Senegal spoke for the African group - which has in the past put forward not-perfectly-clear proposals wider than GRULAC's. Its Distinguished Representative noted the importance of education and libraries in developing countries, and the contribution of libraries and archives to strengthening access to knowledge. They went on to speak of the need to "strike a balance between the recognition of authors' rights" and more general concerns.

Other countries echoed this. Nigeria called for a "balance between the interests of rightsholders and users of protected works". Malawi supported the African group position, noting that "We also appreciate the important role that rightsholders play in making their works available to the public."

"Balance" in this context is code for "punishing the evil publishers of the ex-colonial Northern states - by weakening the rights of authors on which their over-pricing model depends". Nevertheless, I sense a more moderate tone than at past meetings.

The European Union reiterated its "belief in the crucial function of libraries and archives" and therefore continues "to believe there is merit in discussing a balanced international copyright framework" - ensuring that copyright continues to be "an incentive and a reward for creativity".

The EU's "preferred approach" is one in which WIPO "member states take responsibility for their own legal frameworks." That could be encouraged by an "exchange of best practice: a possible outcome could be guidance" on how to legislate. And the nub: the EU "cannot support work towards legally-binding instruments".

On that point about "taking responsibility": I have long felt that some governments fear that they could not pass the copyright legislation they want through whatever legislative forum they have; so they send representatives to Geneva to lobby for new international law that would force that legislative forum to pass the law it would not pass on its own account. I could not possibly know whether the EU shares that view.

Educational and research institutions

I felt there was a similar softening of tone in the opening statements on exceptions for educational and research institutions (and, bizarrely, with exceptions for the benefit of "people with non-print disabilities" tagged on).

The International Federation of Journalists made the following statement:

Authors' works remain one of the key raw materials for education. The IFJ deeply regrets that educational and research institutions are underfunded. No-one is proposing, however, as far I am aware, that schools and colleges should get free electricity or free phone calls.

Here most clearly of all, the solution is collective licensing through CMOs democratically controlled by the rightsholders they represent.

There is a wealth of misunderstanding of the issues. I take as one example the very first statement on a pro-education site - the magic of internet indexing may enable you to identify it. It demonstrates how ill-thought-out the call for free use in education can be. This is in support of a petition campaign addressed to the EU Commission:

"We want you to have the freedom to teach without breaking the law.


"Before teaching her students about how representations of Shakespeare's Romeo and Juliet have changed through the ages, a teacher may have to ask permission from the rights holders of every movie she wants to screen in class. We want to relieve educators from this impossible task."

But that is not an impossible task. That's absolutely not true in any EU member state. The school just pays for a licence from a collecting society and goes ahead with no further administration.

In my home country the collecting societies are working successfully on streamlining the system of licensing and making it more efficient.

Personally, I do recognise that some categories of textbook are overpriced. I look around this room, estimate how many of us trained as lawyers, and quail at the thought of buying English legal textbooks in Peruvian or Argentinian or Nigerian currency.

And there I was... timed out. I misread the limit. Had I been permitted 5 minutes, I could have continued:

A grant program to finance education for lawyers in the South may be too much to ask but perhaps pricing at parity purchasing power would fix a market failure that may be of particular interest in this room.

In any case, educational institutions must be funded to be able to afford to lend books to students under a licensing scheme. As I have observed many times, licensing schemes are flexible and adaptable and already allow cross-border transactions.

Income from educational licensing is absolutely essential to book authors - who of course include many journalists - making a living as independent professionals who can building their skills.

We look with alarm at the effect on publishing - and not just on publishing of specifically educational books - of changes in the system of exceptions in Canada.

We look with even more alarm at the alternatives to schools and colleges using the works of authors who are free to develop their skills as independent professionals: that would seem to include sponsored textbooks. The Big Bad Burger Book of Nutrition is not to our taste. And there are some who are prepared to write at length for free. From time to time I edit readers' letters and unsolicited contributions to news magazines and I can report that these people tend to have idées fixes: not a good basis for education either.

So, is it being acknowleged that the chances of a Treaty on either libraries and archives or education and research are almost nil.

Thursday 4 May: droit de suite

No, to last night's question. Senegal, Colombia, Brazil, Egypt and Iran were among the countries lining up to argue for an "international instrument in whatever form" on these exceptions.

Senegal and Congo propose making the droit de suite - artist's resale right - apply worldwide. This is necessary, because auction houses keep threatening to move away from countries that offer visual artists a few per cent of sale prices for their work, and distribute this through collecting societies to countries that don't. So the right has to be available worldwide for artists to reliably get their due.

To this the International Federation of Journalists responded:

The IFJ fully supports the proposal - to implement droit de suite in fact, not just to place it on the standing agenda.

Droit de suite is an important expression of the principle that authors' rights (and copyright) should provide a means to support independent, dedicated and therefore professional creators.

For brevity, we adopt the arguments made by our learned friends of CISAC [the International Confederation of {collecting} Societies of Authors and Composers] and by the Distinguished Delegate of Senegal.

We heard much yesterday about "balance". In that context we echo the point made by Senegal that the importance of this initiative is not only its vital importance to artists, but as a demonstration to the world that WIPO is fulfilling its mission to support and promote creativity.

The Committee received a study from Professor Kathryn Graddy showing that droit de suite has no deleterious effect on the art market. The EU thanked Senegal and the Congo for putting it on the agenda of this meeting and supported its inclusion in the standing agenda.

Botswana joined in - and was immediately followed by the US, which noted that droit de suite "has been the subject of discussion in the US": the US is not among those WIPO members that have implemented it but is "willing to participate in discussion" - and on the basis of Professor Graddy's study it will be "an excellent addition to our work"; but the US is not in a position to support ARR becoming a standing item on the Committee's agenda.

That's a rather mild "no" then. No proposal can be accepted at WIPO, as at other UN organisations, without unanimity of the delegates.

Thursday 4 May: a wide-ranging review

In December 2015 Brazil, on behalf of the Group of Latin American and Caribbean countru ies, proposed a root-and-branch review of copyright in the digital age. They have since been calling for it to be included on the standing agenda.

The Committee received previews of reports on how national legislations have responded to the digital revolution from Dr Guilda Rostama; and from Professor Pierre Sirinelli on discussions in a group of international experts on the future of authors' rights. Sirinelli called repeatedly for authors - supporting whose work was the entire point of authors' rights in the beginning - to be returned to the centre of authors' rights and copyright law and WIPO's work. As the simultaneous translation had it, "if we lose sight of the authors, the most important people in the construction of copytight, we might as well say that they play only one role: to announce the date of their death" to determine when corporate ocpyright expires.

Sirinelli mentioned the problem that internet companies are immune to action over their used of content. "They announce: 'I don't have to discuss this with you because I am not responsible, but because I'm such a good person I'll discuss, it but because I am not responsible I will offer you a pittance'." He discussed the need for transparency in contracts, and to look at the "value chain" from companies' income to authors' pockets. "We need to give copyright its full scope and to give efficiency to it." He mentioned the usefulness of registration of copyright in identifying authors.

Again, that's based on the simultaneous interpretation. I hope to report on this presentation further when I have the original notes in French. The IFJ responded:


(I would like this to be on record as the shortest ever contribution to this Committee; but I need to thank the Doctor and the Professor for their work. And I need to mention work of the Copyright Hub [and to declare an interest as a Director] to facilitate voluntary registration.)

The US, again, was not prepared to back the inclusion of this on the standing agenda. A little later an eminent WIPO figure asked "How are you finding it?". OK, except for Los estados unidos dicen que no. "But they're alone..."

The next meeting, due in November, is going to be interesting...