Back in Geneva - copyright internationally
MIKE HOLDERNESS, who among other things is Chair of the European Federation of Journalists Authors' Rights Expert Group, reports:
I'M BACK in Geneva. After all the hurly-burly around the European Union's copyright measure, it's time to return to the altogether more stately proceedings of the World Intellectual Property Organization's Standing Committee on Copyright and Related Rights.
Monday 1 April: A treaty for broadcasters?
We're back to debating a Treaty to give broadcasters rights to protect their signal from "piracy". This has been on the Committee's agenda for at least 20 years.
This would be achieved by granting a "neighbouring right" to copyright: another example of one of these is the right that music producers have in "master tapes". The biggest issue on the table remains the definition of "broadcasting" - possibly the most contentious issue, since some proposals would have extended the "neighbouring right" to practically everything on the internet.
Countries' contributions are guarded. Comments from non-governmental organisations are dominated by representatives of libraries and those, acknowleged and not, of internet corporations. They want any Treaty to include "exceptions" to the neigbouring right allowing those they represent to copy broadcasts for certain purposes.
The country represenatives then go into an "informal session" that we civilians can listen to but not report.
Tuesday 2 April
The country represenatives are still in "informal session" and I must keep schtum.
Wednesday 3 April
There will not be a recommendation to convene a Diplomatic Conference on a Broadcasting Treaty. Again.
We're back to exceptions and limitations to copyright. For the International Federation of Journalists I said:
The International Federation of Journalists congratulates the President on his re-election and thanks the team for their work.
We have heard from distinguished representatives of the need to address the "knowledge gap" between North and South. The IFJ wholeheartedly agress that we must address this urgent question. The IFJ represents journalists - professional, dedicated creators - in more than 140 countries worldwide.
The IFJ insists, of coure, that the "knowledge gap" must be addressed by supporting the work of professional, dedicated creators in every country, North and South.
The IFJ supports the work of archives and libraries. I support an exception for archiving purposes. But where a library, for example, gets into the business of distributing works to the public online and worldwide, it takes on the work of a publisher. The solution to deal with this should be collective licensing that supports authors.
Most of us in this room have felt the pain of obtaining legal textboks at interesting prices from publishers in the North. But we should not let that pain determine our policies. We must support authors in every country, reflecting and reporting on the cultures in which they live and work. The response to the "knowledge gap" must not be to seek to import works from the North for free.
A representative of the European Union points out that one of the features of the new EU Directive is that member states shall implement an exception allowing use of copyright works for the purposes of illustration in teaching - but may provide that this does not apply where there is a licensing scheme in operation (as there is in the UK).
Anti-copyright speakers had earlier complained that the EU was saying no new international law was required - while its Parliament had just passed the Directive. Representatives were treated to a bitingly calm presentation of the difference between internal processes within the EU under its founding Treaties, the results of which are enforceable by the Court of Justice of the European Union, and the proposal for a new global Treaty.
Thursday 4 April
We have been treated to a presentation by Professor Cruz on the importance of archives. Archiving is a Good Thing. We support it. But the question is now: how are the archived works distributed?
Thank you for your presentation, Professor Cruz. I heard you suggest that if an archive makes a copy of a work available to a user, it is that user's responsibility to determine whether they are allowed to use the work, for example in a book. This seems to get to the heart of the issues raised by legislating for libraries and archives in an online world.
You addressed parts of this in your answer to the distinguished representative of Iran. But the way you put it sounds like a strong claim that the archive is a "mere intermediary". A library or archive that makes works available online to a global public is acting as a publisher. The European Union is - notoriously - recognising that such making-available should be remunerated through collective management, in the case of commercial "social media" intermediaries. And, as you mentioned, the EU's archiving exception specifies access on dedicated terminals to address this issue.
Of course libraries and archives will come under pressure to go beyond access on dedicated terminals - as some distinguished representatives said yesterday. How would you suggest this Committee can deal with this? At the very least, should a library or archive that makes works available to individual users perhaps be obliged to educate them about the uses they can make of the works?
Professor Cruz responded:
I appreciate the concerns that I hear in your question. The reality that we are all dealing with in this room... is that frankly as we talk about different groups and players and interested parties and define them as author, publisher, library, archive - we are using this as a shorthand that really whoever we are under any of those labels we are sharing an identity under all of those labels simultanously. As authors, some of us are protective of every word and some just want them to be seen... We need libraries to be not just collecting but sharing, making-available... Publishers may be among the chief beneficiaries of exceptions...
A really good [legal] provision will say to the library and the downstream user that you can do certain things and they will be beneficial to the public - and a really good statute will know what the limits are - every exercise of an exception is opportunity to reach out to the rightsholder...
But it was a deeply technical question! An éminence grise of WIPO agrees and goes further over lunch: of course the libraries want to become publishers!
Later, a different éminence grise thanked me for being "the voice of reason" in the debate.
Newspapers and online operations
Over lunch there was a presentation on the new "neighbouring right" that should allow newspaper publishers to get payment for licences to internet corporations. Lawyer Dr Olle Jane reminded attendees that journalists are in law entitled to a share of any income that arises from this. The Directive was described as a "paradigm change" in the relation between those corporations and society - "the Eiropean Commission is trying to re-establish the rule of law".
Anne le Morvan, head of the copyright unit of the French Culture Ministry, said that the government of France is concerned that a fair share of income gets to the journalists.
Exceptions for education
We were treated to a "typology" of uses of copyright works in education.
Interestingly in the context of my actual question to Professor Cruz, the delegation of Argentina asked about sanctions that universities, for example, might apply against students who illegitimately distributed works supplied to them for the purposes of education. The answer was that in the speaker's insitution in Singapore, every sheet of works printed under an exception to copyright for educational purposes bears a note about not distributing it further. That's not exactly an answer to the question about sanctions.
Friday 5 April
We turn to the matter of the Artists Resale Right.
Artists’ resale right (droit de suite)
Senegal and Congo have proposed discussion on a treaty making the right of visual artists to a small share of the price paid for their works apply worldwide. The African group and the EU strongly support this: indeed the spokesperson of the African group mentioned extending it to audiovisual works, but that may have been a mis-speak.
Many countries and the EU again spoke in favour. The US welcomed the task force but at this point is not in a positiont to support the inclusion of this topic as a standing agenda item.
The International Federation of Actors (Fédération Internationale des Acteurs, FIA) supported the proposal - pointing out that their members, like visual artists, suffer an imbalance in negotiating power and urging the Committee in future to take steps to deal with contractual issues.
For the IFJ I said:
The International Federation of Journalists strongly supports the call originating with Congo and Senegal for the Artists Resale Right to be included on this Committee's agenda. We thank Carole Croella for her report on the work of the Task Force - and look forward to that work continuing in parallel with and in support of the work of this Committee.
We have heard many calls for "balance". As a writer - and particularly as someone who also works as an editor - I have a strong attachment to words having clear meanings. This is the first proposal in many years for this Committee to work to support creators and creativity. Its work has thus been unbalanced and adoption of this item would be a step to balancing it.
As distinguished delegates have made clear, the international nature of the art market makes this is an issue on which an international instrument is absolutely necessary and work on one should proceed as rapidly as feasible. Delay is depriving artists of rewards that they deserve.
I would also like to associate myself with the statement just now by FIA on the need for action on unfair contracts and the imbalance of negotiating power.
The Russian Federation again presented its proposal for a study to determine whether theatre directors should have rights to prevent unauthorised re-staging of their productions - in parallel to the rights in the scriept, the performances, the set, the music and so on. This might bean expansion of copyright, or a neighbouring right.
Senegal pointed out that its law - like that of other Francophone countries - protects "creations of the spirit". This therefore in principle includes theatre direction. There is not, however, a practice for remunerating directors. To Russia: would any protection be an Author's Right, or a related right like that of the performers they direct? In Russia and some other countries they are protected as performers. There was a technically-interesting discussion on the nature of the "originality" of the direction of a script.
After lunch the EU says it and its member states have taken note of the proposal and the scoping study and look forward to hearing more. (Translation: "we hear you".) Russia indeed hopes to discuss it further.
At lunch, we had heard songs and a rousing speech on the need to close the "value gap" for works distributed online, from Canadian musician Miranda Mulholland. Her speech should be here soon; video of her at a World Trade Organization forum here from Music Canada.
And that's it, at 15:20.
Except for the wrangling over the Chair's summary of the meeting - which used to go on past midnight when the Committee was trying to achieve a full consensus report but is a bit quicker now.