The traditional copyright system’s balance for encouraging yet controlling access to copyrighted works in order to extract value for them has met with a destructive force in the internet that it cannot overcome without changing itself, the head of the World Intellectual Property Organization said in a recent landmark speech. And he proposed several elements for the way forward.

“The enticing promise of universal access to cultural works has come with a process of creative destruction that has shaken the foundations of the business models of our pre-digital creative industries,” WIPO Director-General Francis Gurry told a recent conference in his native Australia.

He imparted his vision to the Blue Sky conference in Sydney, on the subject of “Future Directions in Copyright Law,” on 25 February.

The question is, Gurry said, “How can society make cultural works available to the widest possible public at affordable prices while, at the same time, assuring a dignified economic existence to creators and performers and the business associates that help them to navigate the economic system?”

Presidents Sarkozy of France and Medvedev of Russia have called for the Group of 20 to consider the issue this year, Gurry said.

He cited Medvedev’s speech at Davos in January, in which he said “the old principles of intellectual property regulation are not working anymore, particularly when it comes to the internet.” Gurry said he added that it “is fraught with the collapse of the entire intellectual property rights system.”

Gurry acknowledged that digital technology and the internet have created unprecedented access to knowledge. They created “the most powerful instrument for the democratization of knowledge since the invention of moveable type for printing,” he said. “They have introduced perfect fidelity and near zero-marginal costs in the reproduction of cultural works and an unprecedented capacity to distribute those works around the globe at instantaneous speeds and, again, near zero-marginal costs.”

But he argued that there must be economic incentives to reward creativity and “foster a dynamic culture.” It was unclear whether he would agree that dynamic cultures had always evolved without copyright as well.

Rather, the new technologies “have given a technological advantage to one side of the balance, the side of free availability, the consumer, social enjoyment and short-term gratification.”

And as it is impossible to reverse technological advantage and resulting change, it must not be resisted. “Rather than resist it,” he said, “we need to accept the inevitability of technological change and to seek an intelligent engagement with it. There is, in any case, no other choice – either the copyright system adapts to the natural advantage that has evolved or it will perish.”

Gurry called for “activism” to address the need for the “fittest business model” to survive, in part to ensure that the winning business model respects the “right social balances in cultural policy.” The balances should not be left to chance.

Gurry might be said to have responded to the call from Harvard Law School Professor Larry Lessig last autumn for WIPO to lead an overhaul of the copyright system, though they have rather different interpretations (IPW, Copyright Policy, 5 November 2010).

Three Principles for Policymakers, and a Global Database

Gurry highlighted three main principles to guide policymakers going forward: technology neutrality, comprehensiveness and coherence, and simplicity.

Technological neutrality is necessary because tying policy to specific technologies doesn’t allow obsolete business models to die naturally. “Copyright should be about promoting cultural dynamism, not preserving or promoting vested business interests,” he said. This could be considered forward-looking thinking on the part of WIPO.

Gurry detailed several points under comprehensiveness and coherence, suggesting a combination of law, infrastructure, cultural change, institutional collaboration and better business models.

The law, he said, has been the way to make copyright policy for many years but is not fully up to the task in the digital environment, where sheer volume, internationalisation, lack of regulation of the domain name system and anonymity have made law “a mere shadow of itself in the physical world, a weakened force.”

He pointed the finger at intermediaries as playing a key role in the legal process, as not just service providers, but “partners, competitors and even clones of creators, performers and their business associates,” which complicates definition of their role.

Infrastructure must update the old collective management system, he said, suggesting a way to allow global licensing, an international music registry or global repertoire database. The database could work like the Patent Cooperation Treaty managed by WIPO, but in this case link the national collecting societies together.

Gurry also acknowledged the rise of the Pirate Party to politics. But he called its platform, including a call for five-year copyright terms with zero terms for non-commercial use, “extreme” though he said the sentiment it represents is “widespread” as evidenced by piracy, which has reached “alarming dimensions.”

So Gurry suggested that copyright proponents should stop speaking of piracy and speak in terms of shared responsibility and the “threat to the financial viability of culture in the 21st Century” which is at risk if copyright policy is ineffective.

Another need is institutional collaboration, he said, where he said the stakes are the “battle for the hearts and minds of the public” regarding appropriate copyright policy. He said efforts are somewhat incoherent, with “different national approaches, some emphasizing action against offending consumers and others targeting intermediaries; some plurilateral approaches in the Anti-Counterfeiting Trade Agreement (ACTA); and some practical, industry actions or codes of self-regulation.”

Gurry said shared objectives need to be defined, but that progress hampered by the “unwillingness of some countries to entertain any international discussion or action in this area.”

And he touched on the open issue of the design of sustainable business models, where he called for more “intelligent engagement” rather than resistance, though left it to the conference to come up with new ideas.

On this third main point, simplicity, Gurry said copyright is complicated and complex, and that audiences and public support could be lost if the system is not made more accessible.

“Future generations are clearly going to regard many of the works, rights and business agents that we talk about as cute artefacts of cultural history, much as the vinyl record has become in a very short space of time,” he said.

It appears to be his goal to do his part to ensure they don’t say that about WIPO and multilateral policymaking.