Year Ahead Copyright 2010: Between An Enforcement “Gold Standard” And Stronger Limitations

The secretly negotiated Anti-Counterfeiting Trade Agreement is now in centre stage in the global debates around copyright, as is a prospective new international treaty on access to online books for the visually impaired which comes as part of a broader push to clarify limitations and exceptions to copyright. But some are asking, why all the debate and new efforts in national and international copyright legislation when copyright is increasing being exchanged for contractual relationships?

ACTA may bring with it the punishment of internet denial for infringement that has been fiercely discussed in several European countries and adopted in France, New Zealand, South Korea, and Taiwan. ACTA is seen by critics as another push by governments backing their rights holders in the eternal wars over copyright.

But on the other side, there is much hope that a new treaty for the visually impaired will be negotiated at the World Intellectual Property Organization (WIPO). Open-ended consultations on outstanding issues were promised to be finalised over the early months of 2010 by the WIPO Standing Committee on Copyright and Related Rights.

ACTA and Enforcement

The seventh round of negotiations for ACTA ended after four days of talks in Guadalajara on 29 January. Round eight is expected for April in Wellington, New Zealand. If you ask the negotiators, they will tell you that they expect to get this done in 2010.

There seems to be a sense of urgency to complete ACTA just at the moment when a growing list of members of national parliaments from the United States (Congress), the United Kingdom and Germany are asking for access to the ACTA documents and while the first small street protest was organised outside the meeting place in Guadalajara, Mexico. “Are the commitments of negotiators to transparency real or a strategic move?” asked New Zealand’s Labour Party politician Clare Curran before the meeting in Guadalajara.

“We will have a hearing on ACTA presumably in March,” said EU Member of Parliament Alexander Alvaro, who has questioned the European Commission on the transparency, timeline and scope of the agreement. The Commissioner Designate for International Trade, Karel de Gucht, said clearly: “If there is confidentiality, I will respect it and I have to respect it.” It is impossible, he said, to change the terms during the negotiations.

While he promised that he would make sure Parliament – which has now to agree to ACTA under the newly in effect Lisbon Treaty – would be “duly informed,” the Parliament which just engaged in its first fights over its new competencies with the European Council and Commission might not take that bite, said Alvaro.

The Commission, meanwhile, is for 2010 preparing to put forward a follow-up to the IP enforcement directive (IPRED), as a draft text on IPRED II for criminal sanctions is expected to be put forward in May or June, immediately after the evaluation report on IPRED due in April.

Rethinking Limitations and Exceptions

While there is a big push for ACTA – which International Trademark Association President Richard Heath from Unilever said should be set as “gold standard” – there are growing concerns in academic circles. Annette Kur, IP law expert at the Max Planck Institute of Intellectual Property and Tax Law, said there is a feeling in the expert community that “we cannot go on and on tightening the screw.”

Talks at WIPO about a treaty to grant exemptions for blind and visually impaired people have shown promise, but might also slow down other initiatives for a re-balancing of copyright that academics were hoping for. The implementation of other elements of the WIPO Development Agenda would be a good counterpoint against the current wave of maximal demands in rights protection, according to Kur.

But proponents say there is gathering momentum for the visually impaired exception now – including a draft treaty text, which does not exist for any other issue in the committee – and to wait risks losing the chance and gambling on an uncertain and potentially very lengthy process.

National Copyright Reforms and FTAs

Some ongoing national copyright legislative reforms echo the demand for the re-balancing, with Brazil’s copyright reform the most far-reaching of these, as copyright law expert Volker Grassmuck recently wrote. The Brazilian law could be the first copyright law “balancing copyright with access and usage rights and consumer protection its declared goal,” Grassmuck wrote, but also said that the reform work might be stopped by the Brazilian election campaign in 2010. For several months, a final draft has been announced, Grassmuck told Intellectual Property Watch, yet every time publication has been postponed. “There certainly are concerns that the delay results from industry lobbying against the reform at the highest levels,” Grassmuck said.

Indian copyright reform (that like the Brazilian effort started in 2005) also has made a reference to amendments to secure limitations and exceptions for the visually impaired, but is more conservative when it comes to other issues. It more closely follows the line of harmonising its regulation to the international treaties, namely the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.

The reform effort just got a new push when the Indian Copyright office published a final draft on 24 December. Pranesh Prakash, programme manager at the Center for Internet and Society in Delhi, said that the introduction of technical protection measures and the protection of these by law would bring a big change in India.

Prakash said he is afraid that intermediary liability is on the political agenda of the Indian Copyright Office. This would make sense if one considers the negotiations for a free trade agreement between India and the EU that can be expected to include a lengthy section covering intellectual property, copyright and online service provider liability similar to the one in the EU-Korea FTA. The EU-Korea FTA was to be voted on by EU Parliament this week; the EU-India FTA is expected to be finalised in 2010.

Copyright reforms are also under way in Canada, Hong Kong, Serbia, and in the United Kingdom the digital economy bill is under heavy discussion because of far-reaching regulatory power planned for UK communications regulator OFCOM. In Germany, a third round of copyright law reform is on the agenda with private broadcasting companies, publishers and the music industry asking for better copyright protection.

Contracts Instead of Copyright?

But while these reforms and treaty and FTA negotiations are ongoing, there is also another trend seen by experts and users of copyright, said Jeanette Hofmann, an internet governance expert. “Copyright, this moral beacon, more and more ceases to play a role in practical terms. As an author I have to live with a complete buy-out and as a copyright customer, let’s say in the library, I am often dependent on the contracts that the library has with private companies, too.”

Benjamin White, head of the intellectual property at the British Library, has asked the question of whether copyright is still relevant in the digital age. “What I deal with is contracts,” he said, warning that “in most EU member states contracts effectively trump copyright laws. Limitations and exemptions are irrelevant, if there is a contract that says otherwise.” Libraries are contracting with private companies that could help them to fund digitisation projects, but would then regulate access to these objects.

White said while he credits Google for getting the discussion started on how digitisation could be funded, he also wants to see a debate on whether people are comfortable with one private company having access to million of books. The Google book settlement and contracts with libraries in the US and other countries in effect could be seen as a monopoly being created around orphan works and a way to control access to millions of works for years. The EU Commissioner Designate for the Digital Agenda Neelie Kroes, when asked what she thought of Google’s book project, said she liked competition. Regulation for orphan works is on the EU Commission’s work agenda.

Competition and more business offers were also said by Swiss IP lawyer Rolf Auf der Maur to be the focus of the music industry instead of enforcement. Auf der Maur, regular panellist at Midem (the largest annual conference of the music industry), said acknowledgement was trickling down in the music industry that collective licence models, for example licensing music to internet service providers, or even thoughts about flat-rates might be better than only focussing on enforcement.

The major labels are interested in ventures like streaming service Spotify. Paul Brindley, co-Founder of digital music expert consultant Music Alley, said government funding for digital music service models could be expected from the British Technology Strategy Board.

Yet this message could sound overly optimistic given that the music industry is the party heavily promoting a ‘three strikes and you’re out’ approach against copyright infringers.

Or might there be rights owners that think what Joe McNamee, political expert for European Digital Rights (EDRi), predicts: “you can forget about enforcement of copyright, if you focus on copyright and do not get the right content in the right formats available to consumers then you will not solve the problem.“ Innovation would be blocked, he warned, and ever stronger enforcement regulation would finally lead to a lot of collateral damages in civil rights.

For librarian White there also is an urgent need for a change. He said regulators need to create clear rules on access in the digital world like are set out in the Brazilian copyright reform proposal. White said he was hoping that WIPO, whose secretary general, Francis Gurry, had acknowledged the challenge of solving the relationship between private contracts and copyright, would act on the issue of access. Will that happen in 2010?