Copyright debate trundles on in Geneva
I'M BACK in Geneva for the World Intellectual Property Organization's Standing Committee on Copyright and Related Rights. I wasn't able to make the first two days, devoted to debating a treaty to give broadcasters rights to protect their signal from "piracy". Little seems to have changed since I last spoke on this in November 2016.
Wednesday: exceptions to copyright
The Secretariat has presented five "draft action plans" for taking forward discussion of limitations and exceptions to copyright - that is, laws allowing the use of authors'a and performers' works without permission and, often, without payment.
Some diplomats are concerned that they had little time to consider these before the meeting. They were expecting only two plans. "More time is needed to analyse them" - which when uttered by a diplomat means "we will not agree to anything at this meeting".
The EU reiterates its recognition of the crucial function of libraries, archives and museums. Its favourite approach is to focus on efficient functioning of exceptions and limitations within the existing Treaties. It cannot support work towards legally binding international instruments.
Brazil showed a subtle change in emphasis by saying that it makes no sense to improve access to knowledge if there are no incentives for the production of knowledge. But it supports work on a treaty.
Iran highlights that existing exceptions and limitations do not sufficiently deal with the digital environment and supports a treaty.
Indonesia notes that there is no consensus for "normative work" (that is, working toward a Treaty) but wants us to carry on working toward that.
I said that:
The IFJ represents 600,000 journalists in 140 countries worldwide, North and South. I am a journalist, from London, which when I left was considered part of the developed North.
The IFJ recognises the importance of libraries and archives and museums. We note, too, the number of delegations referring to the needs of the digital environment. One feature of that is that libraries and archives in effect act as publishers, making their holdings available off-site. This is a positive development, so long as it is properly understood and legislated for.
The IFJ recognises too the issue of the expense of information, particularly scholarly journals, in the South: parity purchasing power is not the same as the exchange rate. But there is a deep irony here. Some countries whose citizens must pay higher prices in local terms are seeking to flood their own market with my works, distributed without payment to me - which causes rather more damage to authors working in their own culture and language than it does to me.
Supporting a diversity of authorship is essential, and that means fair remuneration for authors when our works are made available to the public. We agree with the EU that the issue for the traditional on-site work of libraries and archives is the effective application of existing laws.
Professor Kenneth Crews presented an updated study on the exceptions and limitations applying to libraries and archives internationally. The US picked up his point that only 28 countries now have no such laws, a considerable reduction from his previous update. Implication: so why is international law required?
This goes to the heart of what's going on, or not going on, here in Geneva. Are the proponents of new Treaties trying to pass international law to avoid going through their own country's legislature? Is that in order to get others to do the drafting work, or becase it wouldn't pass at home? Or is it a purely symbolic mark of respect for their position?
Authors' rights in Nigeria
At lunchtime we had reports from Nigeria. Interestingly, there is an initiative to get proper contracts to be the norm in Nollywood, where films are currently frequently made without performers and others having any contract. On the downside, there is a push to introduce US-style "fair use" rules to cover use of works without permission - evem, it was suggested, in making movies out of them.
Comments on Professor Crews' report continued.
Australia spoke for "Group B" - the grouping of the industrialised countries, named neutrally after the room in which it meets, Room B. It (she?) praised the work on efficient implementation of the existing "well-functioning framework". That's not support for a new Treaty.
Indonesia, for the Asia-Pacific Group, noted the difficulty of access to research material. It looked forward to further studies and updated studies.
Georgia, for the Central European and Balkan States group (CEBS) believes that work on a legally-binding instrument would not be an appropriate outcome for the work of this Committee.
Senegal, for the African Group, noted the issues and awaits with interest the further studies, including one on people with disabilities other than print disabilities. (Senegal has traditionally been more supportive of authors' rights than almost any country.)
The EU supports continued work and welcomes the studies. It noted the different legal systems. In many member states, licensing plays an important role alongside or instead of exceptions. A legally-binding instrument is not needed; an exchange of best practices is.
NGO Communia referred to the legitimacy of copyright.
A teachers' organisation spoke in support of exceptions to copyright allowing teachers to use work without payment.
Delegates need to remember that in the digital age hundreds of millions of people are published or broadcast authors or performers - many of them school students. I have personally encountered those who write eloquently online about their opposition to copyright - until the moment their work was used in a context of which they do not approve and they seek my help to enforce their authors' rights. Full-fat authors' rights - and particularly perhaps the so-called moral rights - are rights of every citizen.
In the context of education, Maureen Duffy has suggested that encouraging school students to assertive of authorship of their own works. This would contribute immensely to understanding of the legitimacy of copyright and authors' rights.
The work of professional authors remains, however, a major "raw material" for education. The IFJ believes that teachers need to be properly paid too and observes that relying on unpaid teachers can have very serious effects on quality of education. If education is dependent on sponsored books or other works or those produced by people who are enthusiasts for a cause, it suffers.
As I have said previously in this Committee, the solution is to raise funds to do education properly; to use fair licensing schemes including collective licensing; and to for this Committee to support capacity-building schemes to ensure that such licensing is available worldwide, North and South.
People with disabilities
We had a presentation on a study by Professor Daniel Seng on exceptions allowing use of works by people with disabilities other than print disabilities. The traditional example of a "print disability" is blindness. Over coffee I'd been chatting with Maureen Duffy about the attempt to extend the Marakesh Treaty, that mandates exceptions for print disability, so widely that it'd cover what I referred to as "the hard-of-thinking".
And - hey presto - an author of the study referred to work on using machine learning to re-write works for people at different educational levels. Players in this field included "a corporation that is not unfamiliar with controversy over copyright".
An opponent of copyright read the passage that did get into the Marakesh treaty that does refer to "any other disability". I foresee lawsuits, perhaps funded by the corporation not named above.
Thursday: exceptions for education
We had a presentation by Professor Guilda Rostama of a study of existing national legislation offering exceptions to copyright for educational institutions. This was a rather technical discussion classifying exceptions into those that permit translation or adaptation, those that extend this to the source of the translation, and those that define the exception by the way the work is used rather than where it comes from. One day, I may understand this.
Questions about this are focusing on whether educational institutions should have a right to break "technological protection measures" - that is, "encryption" of works for the purposes of copy protection. The example many use is research into computer security (including that of your teddy-bear with voice recognition and your semi-intelligent car). This is looking like a Trojan Horse, given which non-governmental organisations are asking detailed questions.
And education lobbyists are calling for teachers and students to have immunity from copyright law... 'strewth. I can't dredge up a diplomatic response... The Professor responded indirectly rather nicely by pointing out that he'd illustrated his presentation with images that he knew he was allowed to use. Educators have the option of thinking about what they use, too.
For most of the afternoon the diplomats went into "informal session" which meant that we civilians could listen but not report anything. They reported back that work on the five action plans on exceptions and limitations continues.
Highlights of tomorrow will include discussions on droit de suite (artists' resale right); a new Russian proposal on the rights of theatre directors; and Brazil's proposal for wide-ranging future discussion of copyright in digital media.
Friday: Droit de suite
We had a presentation from economist Prodessor Joelle Farchy of a study on the impact of Droit de suite - artist's resale right, so called because it mandates that visual artists receive a percentage of the price for which their work is re-sold. "Countries that expect a windfall and dominance in the art market [by not implementing a resale right] will be extremely disappointed... studies show that [introducing it] has not had any negative effect" on the UK art market.
Regular attenders may recall that the International Federation of Journalists believes it is time that this Committee devoted attention to the part of its mission that is to encourage creativity. The IFJ therefore fully supports the proposal that the resale right be a standing agenda item, so that discussions can proceed until all countries are ready to accept the findings of the report we have just had, for which we thank .
Later, several countries spoke very strongly in favour of the droit de suite being a standing agenda item of the Committee. One country1 demurred, so it's not happening. It continues under "other business".
Russia presented a proposal for a new agenda item: a "neighbouring right" for theatre directors in the way a play is presented.
Copyright in the digital environment
Brazil in 2015 proposed a strand of discussion in the Committee on copyright in the digital environment. At this meeting a significant portion of Brazil's introduction of the proposal was concerned with transparency over what money for use of copyright works ends up where.
We had a presentation from Professor Jane Ginsburg on the "value chain" through which payment reaches authors and performers - or not. There was a most interesting exchange between Brazil and the Professor, with both speaking warmly of the European Union proposals on transparency.
The International Federation of Journalists thanks Professor Ginsburg for your presentation, welcomes the intervention of Brazil on transparency and that of the European Union. We observe in addition - I observe from my experience as an author - that exploiters frequently do not understand the contracts which they "offer" and that when those that are agile and flexible are asked what rights they need, they frequently reconsider. Transparency can help several links in the value chain. We look forward to further discussion of this and issues beyond it in the value chain - and ask Professor Ginsburg whether you would be prepared to report further on means for authors and performers to challenge those contracts that are opaque or unfair?
Professor Ginsburg agreed that there is a layer of "legacy clauses" in contracts and that gives her optimism for the future. (She was on Skype - which broke up five times during my question and her answer... had Google bought it from Microsoft during the meeting?) "Better information and dialogue can probably go a long way."
The Chair announced that no consensus had been reached on adding items to the standing agenda. He will, however, produce proposals for further discussion of these items to the next meeting in the Spring.
1 "One country" in a report of a diplomatic meeting at which something is not agreed is universally understood to mean "the United States". I couldn't possibly comment on whether the rule was broken here.