Special Report: Copyright Policy At WIPO: A Plethora Of Topics, Concerns

World Intellectual Property Organization members continuously work to ensure international copyright policy is as responsive and helpful as possible to global changes. One thing they don’t lack is outside opinions on what they should do.

A number of side events were organised during the 8-12 December WIPO Standing Committee on Copyright and Related Rights (SCCR). Topics addressed in these events ranged from international cooperation in film production (IPW, WIPO, 8 December 2014), to access to copyrighted works in libraries and educational institutions, to a proposed treaty on broadcasters’ rights, as well as the interface between copyright and competition.

 

Easy Access to Copyrighted Works in Education

The International Federation of Reproduction Rights Organisations (IFRRO) held a side event on 8 December, where author and publisher representatives discussed examples of how they authorise the use of copyrighted works in education in order to meet demands from teachers and students.

Presenters from different parts of the world representing various cultural and economic backgrounds talked about the importance of the work of the reproduction rights organisations (RROs) and their role in facilitating legal access to copyright works.

RROs are collective management organisations (CMOs), which act as intermediaries between rights holders – such as publishers and authors – on the one hand, and users on the other, in the fields of reprographic reproduction and certain digital uses. As representatives of the copyright creators and owners, they promote the creation and dissemination of their works, but also facilitate legal access to such material.

When direct licensing by the author or publisher is impossible or impractical (for example, when the institution wishes to use portions of works of various authors and publishers), authorisation is typically granted under the collective management scheme though an agreement between the institution and the RRO. The RRO sets out the conditions as to who can use the work, to whom it can be made available, and whether the work can be transferred to other institutions or individuals, which the national territory or across borders. RROs also sign bilateral agreements with each other allowing the licensing of foreign copyright works by domestic RRO to library or educational institutions.

In her opening remarks, Dora Makwinja from the Copyright Society Malawi (COSOMA), stressed the fact that developing countries and least developed countries rely to a large extent on works of foreign authors.

She referred to a study conducted in 2005, which found that 48 percent of works in that country were written by Malawian authors and locally published, while 35 percent were written by foreign authors and published by foreign publishers. (The remainder was made up of several other categories, such as unknown publisher or unknown author.)

Basing on this data, Makwinja pointed to the importance of the CMOs and collaboration among them in facilitating the legal access to copyright works, also when it comes to cross-border exchange.

Katie Webb from the International Authors Forum (IAF), which is a network of over 260,000 writers and visual artists, talked about the importance of the international copyright framework for authors.

Sharing the experiences of writers from various corners of the world, she showed how income from secondary uses is a lifeline to them.

“Where copyright is not balanced between access and fair payment to authors, as set out in the Berne convention and other international treaties, authors cannot make a living from the use of their works,” she said.

Webb emphasised the importance of collective management organisations, through which “countries can sustain their own creators and foster their own creative industries for the benefit of their populations and to preserve their diverse cultures through diverse voices,” she said.

In the same vein, Madeleine Pow from the Copyright Licensing Agency (CLA) (United Kingdom) stated that “it’s important to extend our reach beyond the UK as we are aware the students all over the world require access to UK works. Through licensing we deliver cross-border and distance learning solutions.”

Other presenters included Richard Gedye from the International Association of Scientific, Technical and Medical Publishers (STM) in the UK, Chantal Forgo from the Bureau Burkinabè du Droit d’Auteur (BBDA) in Burkina Faso, Magdalena Iraizoz from Centro de Administración de Derechos Reprográficos (CADRA) in Argentina, and Magdalena Vinent from Centro Español de Derechos Reprographicos (CEDRO) in Spain.

Olav Stokkmo from the IFRRO concluded the session by saying that “solutions for easy seamless access to text and image copyright works exist and they work.”

 

Accessible Books: An Important Step on the Road to Literacy

Also on 8 December, WIPO hosted another side event, this time looking at the copyright issues from the perspective of users and, in particular, those who are blind, visually impaired or otherwise print-disabled, and the challenges faced by them in education due to the lack of accessible books.

The panel was sponsored by the Accessible Books Consortium (ABC), whose aim is to increase the number of books in accessible formats, such as braille, audio and large print, and to make them available to the beneficiaries. It is a multi-stakeholder partnership comprising WIPO, organisations that serve people with print disabilities, such as the World Blind Union (WBU) and Daisy Consortium, and organisations representing authors and publishers, such as IFRRO and IAF.

The Consortium launches capacity-building projects in various countries to train local organisations to produce accessible educational materials in Bengali, and teaching blind students to use reading devices. For example, in Bangladesh and Sri Lanka, approximately 10,000 visually impaired students in each of these countries have access to schoolbooks.

It also administers the “inclusive publishing project”, by promoting technologies and industry standards, which support “born accessible” publishing (that is, all new books are produced in a form for both sighted people and people with print disabilities) and offers a database service that contains over 238,000 titles in approximately 55 languages.

The panel included: Anne Leer, the new WIPO deputy director general for the Culture and Creative Industries Sector, Aubrey Webson, Ambassador of Antigua and Barbuda to the United Nations, Lord Low of Dalston, president of the International Council for the Education of People with Visual Impairment, and Buntan, member of the National Legislative Assembly of the Royal Thai Parliament.

The discussion centred on the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, which was signed on 28 June 2013. The Treaty aims to facilitate the cross-border exchange of books in accessible formats. It was signed by 80 states, however, so far only four states have ratified or acceded to the Treaty. To enter in force, it requires ratification or accession by twenty states.

Webson compared the lack of accessible books to man-made famine, saying that “book famine in itself is a condition that is made by us, it is man-made.”

“The Marrakesh Treaty has given us a hope. It is a cloud that is filled and now is about to burst. This treaty will bring us rain to feed the hunger,” he said.

To him, the ratification of the treaty is a top priority and collaboration between governments, NGOs and private sector is of the utmost importance.

Low discussed the initiatives taken in the United Kingdom to make books available to children with visual impairment. Through the Load2Learn project, for example, which is a web-based service, over 7,000 versions of textbooks, educational images and other key curriculum materials are made available to educators in the UK and outside.

“This service supports young people with print disabilities, but it also saves teachers time,” Low said. “The international copyright regime should enable educators and students to create accessible versions of published materials wherever they are originated.”

In his presentation, Buntan spoke about the situation with respect to blind children and children with print disabilities in Thailand and the lack of accessible format books, stating that “among those who receive education, the majority cannot make it beyond the compulsory level, and less than 500 make it through post secondary and have obtained a college or university degrees.”

Further, he mentioned the legislative and other initiatives that have been undertaken since 1977, such as the production and dissemination of Braille books and analogue talking books, establishment of the Thai-German Talking Book Library and a web-based service “tab2read.com”, in Thailand but also in other countries of the region.

The World Blind Union estimates that less than 10 percent of all published materials are in accessible formats.

“Speedy ratification of the treaty is what we need. We are not going to wait 10 or 15 years. We are not going to leave any member state in peace,” exclaimed Anne Leer at the conclusion of the session.

 

The Broadcasting Treaty: A Solution in Search of a Problem?

The negotiations by the WIPO members on the proposed treaty on IP rights for broadcasting organisations at the WIPO SCCR this week were concluded by the 10 December side event organised by the Knowledge Ecology International, raising concerns on the definitions and its scope.

Taking the audience back to the history of negotiations of the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organisations and remembering the failure of negotiations of a database treaty, the speakers questioned the utility of the broadcasting treaty as a whole.

The panel was comprised of: Nehaa Chaudhari, programme officer of the Centre for Internet and Society; Jeremy Malcolm, senior global policy analyst at the Electronic Frontier Foundation; James Love, director of KEI; and Viviana Muñoz Kieffer, coordinator at the Innovation and Access to Knowledge Programme, South Centre.

Jeremy Malcolm started his presentation by pointing to a number of articles of the SCCR Working Document for a Treaty on the Protection of Broadcasting Organizations (SCCR/27/2 REV), to illustrate some practical problems that the treaty could bring about.

Showing various devices and software, such as TiVo, Slingbox and VLC, he explained how the treaty could impact these existing solutions, rendering them illegal under the treaty by virtue of the violation of the exclusive rights to fixation and communication to the public.

“We should not be pushing this treaty without fully assessing the potential damage that could be done to these innovative services,” he concluded.

Chaudhari criticised the proposed treaty for a “problem-solution mismatch” and pointed to inconsistencies found in the treaty language.

She put into question the need for such a treaty alongside the existing Rome Convention, its scope and effect.

“The treaty will create an additional layer of rights to those that neither created, nor have rights in the underlying content. It makes little sense to us to provide two sets of incompatible, independent and overlapping rights – copyright and para copyright for the same content,” she said.

Another caveat is the evidence, which “does not seem to be clear enough to tell us how we should be moving forward,” said the South Centre’s Muñoz.

Muñoz concluded by saying that “we think that there is still a need to broaden the discussion of the Broadcasting Treaty in a larger discussion about the role of WIPO.”

James Love suggested that “Cable Channel Treaty” would be a more appropriate name for the treaty under negotiations.

The speakers seemed to agree that the reference contained in the provisions of the proposed treaty to existing copyright treaties and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions is not meaningful in ensuring protection of the copyright and cultural expressions, respectively, but rather such principles need to be integrated in the core substance of the treaty.

 

Study on Copyright, Competition and Development

At the last side event on 11 December, Prof. Josef Drexl, honorary professor at the University of Munich and managing director at the Max Planck Institute for Innovation and Competition, presented the 2013 study “Copyright, Competition and Development,” which found that competition law provides a means for promoting the interest of both creative authors and consumers by enhancing the access of consumers to works at lower costs and thereby reducing incentives for piracy.

While a lot of attention by academics and policymakers has been given to the relationship between patents and competition law, relatively less research has been undertaken to study the role of competition law in copyright.

The study was requested by WIPO to the Max Planck Institute for Intellectual Property and Competition Law in 2012. The full report is available here [pdf].

The report aims at promoting the general knowledge and understanding of how competition law should be applied to copyright-related markets and providing benefits for international copyright policy. It also attempts to provide guidance for competition law enforcers.

Covering different jurisdictions of the world, the report puts emphasis on the case law in younger competition jurisdictions of the emerging economies and developing countries. These have exploded during the last few years due to rapid technological development for media distribution and the emergence of large consumer markets for information and entertainment, study says

The study is based on the survey among competition agencies and traditional legal research on case law. According to the study, the survey, in particular, revealed a number of useful insights: unawareness of some of the smaller and younger jurisdictions of the importance of copyright-related markets; the need to build up an expertise concerning the interface of intellectual property and competition law; and, in some instances, the lack of practice was attributed in part to the fact that copyright law is poorly enforced in their jurisdiction.

Particular regard was given to CMOs, which are characterised in the study as a “necessary evil”. The study points out that while work of CMOs is important for national copyright law, to many competition law experts these organisations, typically holding dominant positions in markets, are in conflict with fundamental principle that price-fixing agreements among competitors must be considered anti-competitive.

In this regard, the study concluded that sector-specific regulation of CMOs, which can address the issue of dominance much more effectively than competition law, and competition law, whose role is seen as filling the gaps, should be considered as complementary systems.

“It is very important to address that interface of copyright and competition law from the perspective of developing countries as they are major production countries for cultural goods and they have become major markets for the distribution of those goods,” Drexl said.

Drexl pointed out that “we hardly find any cases where the creator had market dominance. The problem when market dominance shows up relates to the intermediaries, those who control the distribution platforms or distribution networks, such as a satellite operator or a distributor of newspapers.”

He emphasised that “competition law serves the interest also of right-holders,” explaining that “in the end it is not the copyright as such that pays to the creative person, it is always the consumer who has to pay the bill. If works do not reach the consumer, we have a problem.”

This may bring about the issue of piracy, he said, as the consumers would not have access to legal copies of works, and they would buy pirated copies.

“Do not consider competition law as the enemy of copyright law,” Drexl advised. “Competition law can help authors to make markets more efficient and it can even be part of more intelligent policy for fighting piracy in the interest of both consumers and, especially, authors.”

For more from Drexl on this subject, see:

Josef Drexl, Competition Law in Media Markets and its Contribution to Democracy – A Global Perspective, Max Planck Institute for Innovation & Competition Research Paper No. 14-16 available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2511146.

 

Elena Bourtchouladze (LLB, DEA) holds a PhD degree in Public International Law from the Graduate Institute (Geneva) with focus on the WTO TRIPS Agreement and WIPO Conventions. She is a researcher at IP-Watch, and has experience in regulatory and litigation at a multinational company and an international organisation.

 

Image Credits: Martin Fisch