While the bread and butter of copyright – issues around copying, lending and preserving works – continue to be at the heart of discussions on the topic, it is worth thinking about some of the other questions which are likely to make regular appearances in debates over the rest of the year. Many of these are not new but may be the subject of laws in 2018 which are likely to shape decision-making elsewhere. Of course this is just a selection – we invite further suggestions in the comment box!
Unbundling Rights: with the shift from physical to digital, copyrighted works are increasingly provided as ‘services’, instead of ‘goods’. Rather than acquiring a hard copy, users pay for access to material that is often stored elsewhere. This is notably the case with streaming services. For libraries offering eBooks and other digital content, collections policy can be as much about signing contracts for access as purchasing hard copies.
As such, the rules applying to services, and notably streaming, are going to continue to be a major issue, not least as it may not be considered that there has even been a ‘first sale’ of the work, the step that traditionally leads to the exhaustion of rights in many countries.
In particular, by making access to copyrighted works into a service, it becomes possible to ‘unbundle’ different potential uses. Rather than simply buying a book, and then having the right to do what you want with it, it may be necessary to pay to read, then pay again to copy, to lend, to share with a friend, or to perform text and data mining. Contract terms (which in most cases are considered more important than copyright exceptions set out in law) and technological protection measures (which also often benefit from legal protection) help make this possible.
A first challenge associated with this is the risk to limitations and exceptions, adopted in most countries as a means of protecting the rights of users to access information. Just because a use of a work can be licensed, it does not mean that it should, rather than happening under an exception. There are important discussions taking place as to whether contract terms which override copyright exceptions should be made unenforceable. A number of these, notably in the EU and South Africa, may lead to law this year. The example they set will be important.
Secondly, such rules only work when there is a clearly identified rightholder who can manage these rights. A large share of the works owned by libraries – and found on the Internet – either have no clear rightholder, or it is impossible to identify them. As set out in IFLA’s work on the Limits of Licensing, this is an area where the focus on making it possible to unbundle rights makes no sense. In Nigeria and Colombia, proposed legislation tackles the question of such ‘orphan’ works, while the EU is looking to find a way of allowing access to out-of-commerce works more broadly. Again, important examples may be set or confirmed.
Copyright and AI: the case of Naruto the Macaque (the monkey selfie) is now over, and with it the latest attempt to extend the possibility to claim copyright away from natural or legal persons. However, it comes in the context of broader questions about who – or what – can claim copyright. The main focus is on artificial intelligence (AI), and the question of who should collect revenues from works which, for example, have been written by computer.
While this may seem far off, it is already the case in journalism, where simple news stories can be compiled automatically. Should it be the programmers behind the AI, even though they may not understand how it works any more? Should it be the computer itself?
It is also worth noting that just as traditional creation depends extensively on using previous works for inspiration, AI also uses analysis of existing works in order to ‘learn’. Google Translate has benefitted from working through a huge amount of existing works in order to improve. Doing this implied the right to ‘mine’ the text for meaning, the subject of ongoing copyright discussions in Europe. So while it is not clear whether AI itself may lead to copyright, it is clear that the development of AI benefits extensively from the right copyright laws.
While we are still at a very early stage in discussions around the policy implications of AI, copyright is likely to be part of this. Whoever makes the first move is likely to shape the response of others.
Unwaivable Remuneration: this is, again, not a new idea. However, it regularly appears in proposals for legislation, and even international trade deals. The idea is initially attractive – that regardless of the deals signed by creators (who are often not in a strong position vis-à-vis others), they maintain the right to remuneration for their work. The concept is increasingly also applied to publishers, notably in the case of press publishers’ rights to a return when their materials are used by news aggregators.
However, the concept of unwaivable remuneration places a fundamental limitation of the right of authors to decide what to do with their creations. The creators between the 1.4bn works licensed under Creative Commons, as well as many others using other open licences, have clearly taken a conscious decision not to charge.
Of course, such an unwaivable right would make life easier for those bodies which collect revenues on behalf of creators by removing the need to check the licensing terms around any given book, photo or song before charging money to use it. Creators of openly licensed works are, understandably, unlikely to be members of the collecting societies which pool these revenues, given that they do not expect remuneration. Use of money, otherwise, will be determined by the rules that govern collecting societies.
Deal-Making with the Bigger Players: when the Digital Millennium Copyright Act (DCMA) in the US, and the e-Commerce Directive in the EU were passed into law, they created the possibility of ‘safe harbours’. The goal at the time was to ensure that the development of new Internet companies would not unduly be held back by facing liability for the content uploaded to them by users and others.
The rules have certainly allowed for the emergence of the platforms and search engines that have made the Internet what it is today. The start-ups that the laws were supposed to support, at least a small number of them, have grown very rich, and those owning the rights in the content that they host have an interest in taking a greater share of this revenue. A central element of campaigns here have been efforts to redefine what platforms must do to benefit from safe harbour provisions.
While efforts for reform – often backed up by arguments around the existence of a ‘value gap’ – are not new, there are some signs of a greater readiness from the bigger companies to cut deals. From Facebook’s Instant Articles or Google’s payments to support the French media sector, the biggest names can easily afford to pay a small share of their revenues to rightholders. They can also deal with requirements to check uploaded content for potential copyright infringement, as is currently proposed in Europe.
The same appears to be at hand in the academic field, with an agreement between some publishers and Research Gate to cooperate on giving free access to articles. In all these cases, part of the deal is likely to be the sharing of usage data by platforms. Given the interest shown by many publishers in data, this is a logical strategic step, but reduces the scope available to researchers to access and share content without being tracked.
The risk with this is that smaller platforms, including non-commercial ones such as scientific or educational repositories run by libraries, are not in a position to do this. While the explicit exclusion of libraries from tougher rules, as currently proposed in Australia, may remove the immediate threat to our institutions, it will still consolidate the position of the Googles and Facebooks of the world among commercial players. This, arguably, is not desirable.
Delisting Search Results and the Export of Copyright Rules: while the right to be forgotten is primarily a privacy question, a pair of cases, in Canada and the EU, show that there are common concerns about the territorial scope of copyright.
In the EU, the French Data Protection Agency is arguing that when a decision is taken to remove a certain article from search results, this should apply globally, rather than just in the country where the decision is taken. In Canada, courts in the Equustek case are also suggesting that the decision to delist search results concerning a company accused of violating trade secrets should also be applied globally.
Clearly these provisions are not easily enforceable. The logical end-point being a choice for the search engine of whether to restrict choice for users everywhere else in the world or give up on the market in question. Nonetheless, this raises the question of whether, if such decisions are confirmed by the highest courts in their respective countries or regions, it could lead to the export of copyright protections.
For example, a website may contain a work making a use of a copyrighted work considered fair in country A, but not be in country B. If the courts in country B decide that this website should be delisted globally, there is a threat to the right of users in country A to access this work. As such, it will be important to keep an eye on legal developments in this area.