Tag Archives: WIPO

Competition and Creativity: A Draft Good Practice Checklist for Collecting Society Governance

A strong sign of a flourishing creative society is when there are lots of active authors, artists, musicians, performers and others. New ideas and expressions appear, giving people an ever-greater range of works that can inform and inspire them.

However, this can pose a challenge in terms of how to help users of works, when carrying out activities not covered by exceptions and limitations to copyright, find the right person to pay.

For institutions like libraries, the necessity to find every single author or publisher whose books or articles, for example, may be copied to create course-packs (at least where the portion copied is long enough to justify payment) would impose major administrative costs, over and above the remumeration to rightholders.

In these situations, collective management organisations (CMOs) can provide a valuable role, acting as an intermediary between the users of works and their creators. When they work correctly, they provide an efficient means of making copyright function.

In many countries, there is only one such collecting society per sector (such as books, films, or visual arts), often enjoying the exclusive possibility to licence rights. While this may bring simplicity, it also effectively creates a monopoly.

Just as with major internet platforms, it is therefore important to ensure that this situation really does work best both for creators and users of works. There have indeed been a number of competition (anti-trust) cases where collecting societies have been found at fault.

In these cases, there is a risk that uses of works are curtailed by excessively high pricing. Meanwhile, internal structures that allow more power for bigger actors (better established creators, bigger publishers) may risk leaving less resources for others than might otherwise be the case.

There are tools available to promote good practice, not least the Code of Conduct prepared by the International Federation of Reprographic Rights Organisations and the Good Practice Toolkit for the Management of CMOs created by the World Intellectual Property Organization (WIPO).

The below list, based primarily on the WIPO document, provides a draft framework for thinking through whether the collecting societies with which libraries are working are complying with good practices. It has benefitted from input from Ben White (University of Bournemouth) and Teresa Hackett (EIFL).

We welcome views, and of course invite libraries and library associations around the world to use it to judge whether the CMOs with which they are working are displaying good practice.

A. Transparent Rules

  1. Does the CMO regularly publish and keep up to date information on its membership rules and governance (including the possibilities for all members and representatives of the sectors they operate in to be represented on governing structures, and to influence decision-making)?
  2. Does the CMO regularly publish and keep up to date information on its tariff structure, the markets they offer licences in / collect monies from and policies on distribution (or non-distribution) of royalties, deductions and investments?
  3. Does the CMO regularly publish and keep up to date information on its complaint and dispute resolution procedures?
  4. Does the CMO regularly publish and keep up to date information on the members of its management and board, which categories of rightholder they represent, the sectors which they operate in (including the legal basis), their remuneration, and statements of potential conflicts of interest?
  5. Does the CMO have a policy on conflict of interest / require statements of potential conflict of interest from members?

B. Fair Membership

  1. Are the criteria for membership clear, transparent and non-discriminatory?
  2. Can a member terminate or change the mandates they give within a reasonable time-period?
  3. Can a member participate in the General Meeting?
  4. Can a member be eligible for positions in the decision-making or oversight bodies of the CMO, subject to fulfilling fair and proportionate requirements.
  5. Can representatives of the sectors from which the CMO collect monies be members?

C. Fair Operation

  1. Does the CMO guarantee a fair balance – including equal voting rights – between the interests of different types of rightholder (i.e. authors, publishers), including on the Board?
  2. Does the CMO have explicit authorisation from its General Meeting for all spending of revenues on things other than redistribution?
  3. Does the CMO produce and publish an annual report and audited accounts including information on incomes, collections at a general and sectoral level, operating expenses, and deductions, and inform its members of this?
  4. Does the CMO produce a summary, for each individual member or category of member earning royalties, of the amounts received for their works, the operating expenses and deductions applied, outstanding payments, and a breakdown by category of rights, types of use, and whether money comes domestically or through a reciprocal agreement?
  5. Does the CMO provide users with information about rights and categories of rightholders administered, a list of works managed (and relevant rights), a summary of tariffs, a description of licence terms / the legal basis under which they operate, the sectors and purposes for which they collect payment in line with statutory requirements, and details of how a licensee can cancel licences where appropriate?
  6. Does the CMO use objective, fair and non-discriminatory criteria in licensing works to users, taking account of statutory limitations and exceptions, and using tariffs based on cross-sectoral analysis, economic evidence, the commercial value of rights, and benefits to licensees?
  7. Does the CMO make available on the website a complete list of all the standard licences they offer, including the terms and conditions of those licences?
  8. Does the CMO assume liability for all uses carried out under the licences offered?

D. Strong Governance

  1. Is the CMO independent of government, i.e. protecting CMOs from potential abuse, but also avoiding the interests of CMOs steering those of governments?
  2. If the CMO regulates itself, does it have an oversight board with representatives of users and government?
  3. If the CMO is not self-regulated, is there a rigorous mechanism for ensuring its correct operation?
  4. Is there a means of ensuring that the interests of licensees and users are represented or at least protected?

The Wrong Target: Resistance to Exceptions to Copyright for Libraries and a Sustainable Book Chain

The Wrong Target? Why opposition to copyright reform won’t guarantee the future of the book chain

Copyright reforms introducing or updating exceptions and limitations to copyright can easily become a lightning rod.

Recent examples have regularly seen apocalyptic claims about the collapse of the book chain – understood as all those involved in writing, editing, publishing, distributing and reading books – and the demise of creativity in general.

In a sector marked by concern about falling author incomes (despite overall growth in the sector), fears for the future sustainability of the publishing industry, and worry about the role of major internet platforms, it is understandable that there is a desire to take action.

It is true that policy reforms seem to allow this, given the possibility to engage politicians, make statements and get involved in the media debate. Many have done this, claiming that by preventing libraries from enjoying new rights, it is possible to secure the future.

However, just because it is possible to take a position , it does not mean that it is sensible or correct to do so.

This blog explains how in the short term, modern copyright exceptions and limitations for libraries do not pose a threat to the future of the book chain. Instead, it argues, a healthy library sector, enabled by such exceptions and limitations, is a key guarantor of future success and viability.

 

A Complex Challenge Deserves Better Than a Simplistic Response

A number of questions are at play in determining the health of the book chain.

Effective cultural policies supporting new and diverse voices, competition policies to prevent individual actors (such as Internet platforms) taking too powerful a position, and regulation of contracts between authors and publishers are all important. Other regulations, such around book pricing or taxation, as well as copyright enforcement, can also play a role.

There are also factors beyond policy – a shift to digital and the ability (or inability) of the sector to keep up, growing competition for readers’ attention, and changing trends in education and research.

In effect, the challenges and questions facing the book chain are multiple, as are the tools for responding to them. A short-sighted focus only on stopping copyright reforms is highly limiting, and will do nothing to increase authors’ shares of revenue from their works, provide targeted support for new voices, or address the dominance of digital platforms.

This has not stopped some from trying to argue that modern copyright rules will mean disaster. However, each time there has been a truly comprehensive effort to look at the evidence recently, this argument has been rejected.

In Canada, for example, where the Parliament’s Industry, Science and Technology Committee held a thorough review of the country’s 2012 copyright reform. However, despite intense calls for one particular reform (the extension of educational fair dealing, confirming decisions already made by the courts) to be repealed, it rejected the claims made:

“Despite the volume and diversity of evidence submitted throughout the review, the Committee observed a problematic lack of authoritative and impartial data and analysis on major issues. Multiple witnesses either overestimated how strongly the data they presented supported their arguments or failed to disclose its limitations”.

Similarly in Australia, the Productivity Commission, charged with making an independent assessment of the impact of different policy actions, found very little evidence to back up claims that fair use would cause any unjustifiable harm to the publishing industry.

As Deputy Commissioner Karen Chester noted in a speech, the claims made against reforms which would benefit libraries and users simply have evidence behind them. Moreover:

“It was claimed that fair use destroys publishing industries and has done so in Canada, and particularly their educational resource sector. That claim did not stand up to even modest scrutiny: the experience in Canada has been grossly misrepresented and ignores specific market factors there”. 

Similarly, impact assessments in the European Union and Singapore have also underlined that well-designed copyright exceptions are very much a positive sum game, with no harm to publishers or authors, and significant gains to researchers, educators and readers.

 

Sacrificing the Long-Term?

Of course in the long-run, it is not a case of there being two ‘sides’ to the debate – rightholders and readers. Today’s readers may well be tomorrow’s creators, innovators and researchers.

This is where libraries come in. Through promoting literacy and a love of reading, supporting responsive and innovative teaching, and helping students and researchers, they have a key role in ensuring a ‘pipeline’ of new talent.

Moreover, through giving access to heritage and existing ideas, they are spaces where new ideas can come to life.

They also have a key role in ensuring the legitimacy of the book chain, by ensuring that it does not simply become the preserve of the wealthier. The goal of the great library builders of the 19th Century to democratise knowledge is still relevant today.

Yet to continue to play this role, libraries need to benefit from a basic set of exceptions and limitations that work in the digital age. Preservation, lending and supporting education and research are core functions around which there should be little disagreement.

There is a growing body of evidence that underlines the costs to library users of rules that do not allow libraries to fulfil their missions. This contrasts – as set out above – with the lack of evidence that library exceptions and limitations actually do any short-term harm to the book sector.

 

In the light of this, it is perhaps time to look more broadly at the actions that can be taken to guarantee the future of the book chain. This may be hard – the questions are difficult ones, and the effort required will be higher. It also involves stepping away from old and comfortable assumptions.

Nonetheless, this would certainly be a more constructive approach than to spend time and energy opposing reforms that would in the short term be neutral, and in the long term be positive, for all involved.

“But I don’t Speak Legalese…”: What Other Perspectives Can Tell Us about Copyright Exceptions?

Copyright can easily seem scary. One reason for this is the fact that so much discussion on the subject is highly legalistic. There are intense debates about individual articles, sub-articles, or even sub-sub-articles, and an abundance of terminology and technicality that understandably puts a lot of people off.

This is neither desirable or inevitable though. Perhaps more than any other intellectual property right, copyright affects us all.

We can all be (and likely are all) copyright holders. But we are all also liable to be in situations where we , and are also more likely to be in situations where there is a risk of infringement. It is particularly important for libraries, with the balance of rights and exceptions defining what a library can do for its users.

So this blog goes beyond the purely legal perspective, and suggests some other ways in which libraries – and others – can think about copyright laws, from an economic, a consumer protection, a social justice and a psychological point of view.

 

Economics: the economic perspective focuses on resource allocation, and in particular how to do this in a way that leads to the greatest overall benefits, now and in the long-term. It recognises the fact that monopolies such as copyright can be necessary in order to recoup investments and incentivise further creation.

However, it also underlines that monopolies in general tend to lead to an under-supply of works and excessive pricing as producers seek to maximise profits. This leads to negative consequences (‘externalities’), such as people missing out on the possibility to use works for learning or research. The producer does not bear these costs of course, as these fall to the user.

Exceptions and limitations, in economic terms, therefore serve as a means of correcting these problems, and ensuring that the interests of consumers are taken into account, alongside those of producers.

 

Consumer Protection: taking the wellbeing of end-users as a starting point, people involved in consumer protection focus on how to ensure that the comparatively weak position of individuals vis-à-vis companies does not end up being used against them.

While classical economics assumes that people are perfectly rational and fully informed, this is far from often the case. They often have little time, and may not completely understand what they are being offered. Faced with a much larger company with access to lawyers, they may have little – or no – chance to negotiate.

Exceptions and limitations, especially when protected from override by contracts, serve as a tool for protecting the rights of consumers in using works to which they have legitimate access.

 

Social Justice: the idea behind social justice approaches is the idea that everyone should be able to enjoy a decent standard of living, and realise their potential. Social justice advocates worry that money – and other barriers – can prevent this, locking-in privilege and disadvantage.

Copyright of course applies regardless of how much money a creator has, although it is true that those with more resources are usually better able to exploit it (for example by hiring rights managers).

As for exceptions and limitations, where these exist, they also benefit everyone, but proportionately are more important for those who rely on libraries to access and make use of books and other materials. For example, whereas rich students may be able to buy all of the books they need, a poorer one needs the library in order to complete their studies.

 

Psychological: Finally, and perhaps most importantly, laws are most effective (and most respected) when they are understood and supported by people. This also has advantages in terms of reducing enforcement costs.

At least in Western cultures, the broad idea of copyright is understood, as is the importance of supporting the work of creators. However, people also expect that once they have paid money for a book or other work, they should be able to choose what they do with it, at least within their private space.

The same goes for librarians or teachers, for example, who are simply pursuing their missions to support education, research or the preservation of the past. Copyright exceptions are what allow the law to make sense for them.

 

It is clear that there are a number of ways of looking at copyright, with different disciplines offering different angles. The ones above underline the importance of the sort of non-commercial exceptions that libraries rely on. It’s clear that copyright itself is a question of law, its design cannot only be left to the lawyers.

This week, tweet about #Copyright4Libraries: join our efforts at WIPO remotely

Help make libraries heard by using the hashtag #Copyright4Libraries

IFLA representatives are currently in Geneva at the World Intellectual Property Organisation (WIPO). They will take part in week of international discussions about copyright, alongside representatives of many of the United Nations Member States. There will be a particular focus on exceptions and limitations to copyright for libraries.

This, the 37th meeting of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), will offer an important opportunity to shape actions planned around exceptions and limitations. After talks about broadcasting on the first two days of the meeting, Wednesday 28 November is likely to be the day where they focus on libraries. Member states are exploring what our institutions need to do their jobs, and how to move forwards.

We expect to hear Member States take positions on the topic, as well as receive presentations by renowned scholars to illustrate the issues. You can follow the discussion live here: http://www.wipo.int/webcasting/en/.

We published a call for action ahead of the meeting, but more can be done now: let your government representatives know that their citizens, and the libraries that serve them, care about the outcomes of the discussions. Ask them to support progress at the international level.

Post on social media using the hashtag #Copyright4Libraries.

Here are some examples of tweets or posts on other social media platforms:

Librarians in [country] need better #Copyright4Libraries, and exceptions and limitations are key to ensure this. We call upon our government @[twitter handle of the country’s copyright office] to support us at @WIPO #SCCR37

Cultural cross-border cooperation needs an international set of exceptions and limitations to #Copyright4Libraries. We call upon our government @[twitter handle of the country’s copyright office] to support us at @WIPO #SCCR37

Librarians shouldn’t have to face legal challenges for lending books and preserving our heritage. We call upon our government @[twitter handle of the country’s copyright office] to support progress on the topic of #Copyright4Libraries at @WIPO #SCCR37

 

****

Here’s an overview of positive things that WIPO member states said about libraries at the last meeting.

For a clear idea of what can come out of SCCR, it is the body that adopted the Marrakesh Treaty. This international instrument is proving to be very successful and it has been ratified faster than any other treaty in WIPO’s history.

Achieving the Sustainable Development Goals – How to Keep a Promise

By Stephen Wyber, Policy and Research Officer at IFLA (stephen.wyber[at]ifla.org)
For those of us who struggle with multi-tasking, having seventeen different goals at the same time seems like a lot. However, this is what all the UN’s membership committed to in December 2015.

The Sustainable Development Goals cover a broad range of issues. Basic nutrition, high technology, gender equality, stronger institutional partnerships, are just a few. The breadth of the goals serves as a reminder that everyone can and must contribute. Government, businesses and civil society, have a role to play in building a better world ensuring that no one is left behind.

IFLA has been quick to set out how libraries are already doing their part, all around the world.

Libraries can and should be at the heart of delivering development at the national level. They bring a distinctive understanding of their communities’ needs. They are unique as safe, neutral, public spaces, and are often vital in providing access to the internet. And most fundamentally, they are central to the provision of access to information and knowledge. This is not only a specific target under Goal 16, but also underpins much of the rest of Agenda 2030.

But for libraries to fulfil this role, they need the right laws. Without limitations on the monopoly powers offered by copyright, the only thing that would determine whether a person can access, borrow, quote from, translate, copy, or use a work in the classroom would be their purchasing power. And as very first of the Sustainable Development Goals reminds us, we are a long way from eradicating poverty.


Access the knowledge
Limitations and exceptions to copyright for libraries help overcome this, offering a legal path to access to knowledge that at the same time ensures that right holders too receive an income.

Here are just some examples of how:

  • When libraries can lend out the books they own, they support literacy and a love of reading. This supports Goal 4: Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all.
  • When libraries can make copies for their users, and share them with other libraries, including internationally, they promote innovation and international research networks. This supports Goal 9: Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation.
  • When libraries are empowered to make and share accessible format copies of books, they ensure that the fact of having a reading disability does not mean that you lose your access to knowledge. This supports Goal 10: Reduce inequality within and among countries.
  • When libraries can let users undertake text and data mining on their materials, they open the door to new medical discoveries. This supports Goal 3: Ensure healthy lives and promote well-being for all at all ages.
  • When libraries can act to preserve books and other documents, they ensure that we will hand on a rich and diverse historical record to the next generations. This supports Goal 11.4: Strengthen efforts to protect and safeguard the world’s cultural and natural heritage.
  • When libraries can operate effectively, they act as community hubs, idea stories, that boost growth and equality. This supports Goal 8: Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all.

The WIPO Standing Committee on Copyright and Related Rights has the possibility to introduce the right laws for libraries around the world.

As underlined at a conference in the margins of the Organisation’s General Assembly last month, WIPO is part of the UN family and so committed to pursuing its objectives. All of the member states at the table have promised to meet these objectives. By promoting an effective set of limitations and exceptions to copyright for libraries, they have a great way of keeping this promise.