The Big Shift: A Look At Key Issues In International Copyright In 2013Published on 17 January 2013 @ 6:10 pm
By Dugie Standeford for Intellectual Property Watch
Although pressure on internet service providers and other online companies to stop digital infringement isn’t likely to abate this year, the current focus on enforcement appears to be giving way to a broader debate about how to resolve long-standing copyright issues to the benefit of users and the global economy. Talks continue in the World Intellectual Property Organization and elsewhere on exceptions and limitations, as the Trans-Pacific Partnership Agreement remains controversial.
In this article, Intellectual Property Watch takes a look at some of the biggest issues in copyright around the world in 2013.
â€œGovernments around the world continue to consider whether copyright is fit for purpose in the digital age,â€ said Ted Shapiro, a partner in the Wiggin law firm IP rights protection group. In some cases, not only are they shying away from enforcement issues, but the end result could mean less copyright to enforce, he said.
This is of major concern to content creators globally whose livelihoods depend on being able to exploit and derive value from their works, said Shapiro, formerly senior vice president and general counsel for the Motion Picture Association. â€œIn many respects, this continues to be a well-funded effort on the part of large internet companies who prefer exceptions over licences.â€
The shift away from enforcement issues, however, suits civil society groups such as Public Knowledge, who favour a wider discussion. For many, issues around access to knowledge continue to rise in importance.
EU Rushes to Complete Copyright Reform
In a flurry of activity at the end of 2012, the European Commission (EC) set out a roadmap for updating copyright for the digital economy, making music licensing easier, and nudging industry to make more content available online. The digital economy is expected to grow seven times faster than the overall EU gross domestic product in coming years, the EC said in a 5 December memo.
In a subsequent 18 December communication [pdf] on content in the digital single market, the EC announced parallel action tracks for ensuring that Europe’s copyright regime works in the digital environment. Before the EC term ends in 2015, it said, it will complete work on reviewing and modernising copyright law, and address several issues â€œon which progress is necessary and possible.â€
The plan calls for a â€œstructured stakeholder dialogueâ€ expected to result, by year’s end, in industry-led solutions to four issues: (1) Cross-border online access and â€œportabilityâ€ of content, to enable multi-territory access. (2) User-generated content and licensing for small-scale users of protected material. (3) Audiovisual sector and cultural heritage institutions, to facilitate the deposit and online accessibility of films in the EU. (4) Text- and data-mining, to make TDM more efficient for scientific research purposes. In addition, the EC said it will decide what to do about private copying levies, following an upcoming EC-commissioned report early this year. The EC will also finish its review of EU copyright law, with a view to deciding in 2014 whether legislative changes are needed.
Also in play is an 11 July 2012 proposed directive [pdf] on music licensing in the single market. Among other things, the measure seeks to make collecting societies more transparent and improve their governance via tougher reporting requirements and greater rightsholder control over their activities. It also seeks to encourage multi-territorial and multi-repertory licensing of authors’ rights in musical works for online uses in the EU.
Potential changes to EU intellectual property enforcement rules are also under discussion. A 30 November 2012 consultation on civil enforcement of IPR [pdf] closes 30 March.
â€œLicensing Europeâ€ and the IPR enforcement consultation are among the most immediate issues for European Digital Rights this year, said Executive Director of European Digital Rights Joe McNamee.
US Enforcement Debate Quiets Down?
â€œThere’s been a lot more interest in certain copyright issues that have fallen by the wayside in recent years,â€ Public Knowledge Vice President for Legal Affairs Sherwin Siy told Intellectual Property Watch. The perennial debates about ramping up enforcement â€œseem to have reached a sort of high water market with the [Stop Online Piracy Act (SOPA)] debate,â€ and many people are more interested now in investigating some longer-standing, but overlooked, issues, he said.
Indeed, one US senator recently called for copyright reform. Speaking on 9 January at the Consumer Electronics Show in Las Vegas, Democratic Sen. Ron Wyden said that â€œwhat chills the sharing of ideas and collaboration is the maximalist approach to copyrights and patents. Rights-holders are too eager to use their power to scare off challenges to the status quo, and this perpetuates stagnation.â€
Copyright reform â€œis becoming a serious point of discussionâ€ not just among Democrats such as Wyden but also among Republican lawmakers such as Rep. Darrell Issa, who recently called for additional protections for fair use, Siy wrote on the Public Knowledge blog. Newer voices are joining in as well, such as the free-market-oriented Mercatus Center, which published a book highlighting the lack of balance in copyright, he wrote.
There’s renewed interest in orphan works (whose creators can’t be identified or found), Siy told Intellectual Property Watch. The US Copyright Office is seeking comment on the issue, and with some ongoing litigation on digitising library collections, â€œI expect this will be a large part of the conversation,â€ he said.
Other ideas are also gaining traction, Siy said, such as a now-withdrawn Republican study committee paper, which raised questions about long-standing assumptions underlying the copyright debate such as the lengthy copyright term. The fact that questions are being raised about term length, copyrightability, and the automatic nature of copyright in more mainstream forums â€œsuggests that we’ll have more serious looks at these issues,â€ he said. The recording industry, however, will focus this year on securing more rights for its members in countries that don’t meet international best practice, â€œincluding extending the term of copyright protection where it is less than 70 years,â€ International Federation for the Phonographic Industry (IFPI) Chief Executive Frances Moore said.
The US Supreme Court is expected this year to decide Kirtsaeng v. John Wiley & Sons, Inc. (IPW, US Perspectives, 21 November 2012), which concerns textbooks legally purchased abroad and then imported into the US, Siy said. The ruling will likely include an interesting discussion about the â€œfirst saleâ€ doctrine and the extent to which a copyright holder can extend control over physical objects someone else has legally purchased, he said.
Copyright Changes Afoot Around the World
Copyright policy in Australia in 2013 will likely be dominated by the Australian Law Reform Commission’s (ALRC) inquiry into the adequacy and appropriateness of copyright exceptions in the digital economy, said Australian Copyright Council Executive Director Fiona Phillips. The ALRC report is due 30 November 2013.
On 20 December, the UK government published its final response to a copyright consultation growing out of the 2011 UK Hargreaves Review of Intellectual Property and Growth [pdf]. The country â€œalready has a strong framework for exploiting copyright worksâ€ but needs to â€œadapt its strong but rigid framework for copyright into one that is modern, robust and flexible,â€ the report said. Among other exceptions and limitations, the government said it intends to let people copy content they’ve bought onto any medium or device they own, strictly for personal use, and to create a â€œfair dealingâ€ exception allowing quotation of protected works. Draft legislation will be published this year.
â€œCopyright reform generally is on the table now in Nigeriaâ€ as well, said Adebambo Adewopo, a professor at the Nigerian Institute of Advanced Legal Studies. Revision of the Copyright Act of 1988 as amended is now back under discussion since the last reform effort in 2007, he said. Within the context of reform, the issue of copyright in the digital environment is perhaps the most topical, considering the growing digital media and market, he said. That issue is also relevant to other African countries, he added. Enforcement is another important issue, Adewopo said.
Brazil’s Ministry of Culture is planning to send an updated version of a copyright bill to Congress in mid-2013, a knowledgeable source said. New Culture Minister Marta Suplicy has made copyright reform a top priority, the source said, and things are expected to heat up when the measure is introduced.
And India is in the process of implementing its new copyright law, adopted in 2012. An external analysis of India’s amended copyright law published by Intellectual Property Watch is available here.
Limitations and Exceptions High on WIPO Agenda
Talks continue this year in the World Intellectual Property Organization Standing Committee on Copyright and Related Rights (SCCR) on improving access to protected works for the visually impaired and people with print disabilities, and on updating the protection of broadcasting organisations, a WIPO source said.
In particular, WIPO members will hold a high level negotiation on a treaty for the visually impaired and print disabled in Marrakesh, Morocco from 16-30 June.
In addition, the SCCR work plan includes limitations and exceptions in three areas WIPO member have been discussing: (1) Libraries and archives. (2) Educational and research institutions. (3) Persons with disabilities other than visual impairments/print disabilities. The last SCCR agreed to consider in July whether to have another intersessional meeting dedicated to discussing libraries and archives in the second half of 2013, the source said.
ISPs Still Under the Gun
US lawmakers may be â€œshell-shockedâ€ after last year’s bruising fight over SOPA and the Protect IP Act, but that doesn’t mean the issue of whether ISPs should shoulder more responsibility for online infringement has gone away.
IFPI is working to engage intermediaries such as ISPs, search engines, payment providers and advertisers to make the Internet a safer space for all, Moore said. ISPs â€œcan help migrate users to licensed sites, through graduated response programmes or website blocking, she said. Search engines can prioritise licensed services in their results and remove links to illegal sites. Google recently agreed to alter its algorithm so illegal sites appear lower in search results, a development which, when properly implemented, â€œcould make a big difference to piracy levels.â€ The record industry also wants payment providers to make sure their services are not used by copyright-infringing sites, and advertisers to ensure brands don’t unintentionally advertise on such services, she said.
PayPal suspended or blocked users for copyright-related reasons in several situations, EDHEC Business School Associate Law Professor Cedric Manara said in a paper that considers ways to target money, not information, flows in infringement cases. But the consequences of involving such intermediaries in copyright policing are â€œharsh decisions taken without clear reasons,â€ he said.
Australia is likely to see developments in intermediary liability, said Phillips. In April 2012, the country’s High Court ruled that an ISP had no direct means of controlling the infringing conduct of its customers and therefore wasn’t liable for copyright infringement (Roadshow Films Pty Ltd v iiNet Ltd  HCA 16 (20 April 2012). In December, however, it was reported that the same ISP, iiNet, walked away from talks between the content and communications industries being brokered by the Attorney-General’s Department. That has sparked renewed calls for regulation, she said.
Anti-piracy enforcement on the Internet is also a hot topic in New Zealand. According to one news report, February will see the first hearing under the â€œskynetâ€ anti-piracy regime in the Copyright Tribunal. The Recording Industry Association is seeking an award against an unnamed internet user who received a â€œthird strikeâ€ for allegedly pirating music via a file-sharing service.
Other Issues and Events
October is the deadline for conclusion of the Trans-Pacific Partnership Agreement, Phillips said. â€œThis is likely to be an ongoing issue in the region, she said. Although the Australian government says the TPP won’t require changes to national copyright law, some stakeholders are concerned about transparency, she said. (The 15th round of negotiations, which ended in December, riled civil society groups who, according to the Electronic Frontier Foundation, were locked out of participation â€œin an unprecedented wayâ€.) At issue is the trade agreement’s IP chapter, which could, among other things, could force ISPs to police the internet, EFF said.
Another concern for Africa generally is the Pan African Intellectual Property Organisation proposal to unify IP governance throughout the continent. That â€œremains a subject of debate among [African Union] member countries,â€ Adewopo said.
The International Confederation of Societies of Authors and Composers announced the 4-5 June World Creators Summit â€“ Create, Connect, Respect, in Washington, DC. It will seek to establish a constructive dialogue, exchange ideas, debate diverse viewpoints and discuss solutions linked to IP and creative content online with all stakeholders in the digital economy, CISAC said.
And a 9-13 December Open A.I.R. (African Innovation Research & Training) conference in Cape Town, South Africa, will explore the role of IP in open development in the developing world, with a focus on Africa. It runs concurrently with the 2013 Global Congress on IP and the Public Internet.
The 11 January suicide in the US of 26-year-old Aaron Swartz, a computer programmer and internet activist, has sparked callsÂ forÂ changes to the US Computer Fraud and Abuse ActÂ from at least one US lawmaker.Â Swartz faced numerous counts of allegedly violating the Act by downloading millions of scientific and academic journal articles from websites that charged for access onto Massachusetts Institute of Technology computers. HeÂ was describedÂ in one report as a “tireless hacker who poured his energy into causes like network neutrality, copyright reform and information freedom.”Â Among other things, he founded Demand Progress, a non-profit group that helped defeatÂ SOPA.
[Editor's note: a related article attempting to capture the spirit of the widespread reaction to Swartz's death is available here.]
Dugie Standeford may be reached at firstname.lastname@example.org.
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