Tag Archives: copyright week 2020

Policy Incoherence for Stagnation: How Richer Countries’ Position at WIPO Contradicts their Commitments to the Rest of the World

A lot of money gets spent on aid annually – $132 billion alone from members of the OECD’s Development Assistance Committee.

This includes not only simple financial support, but also large amounts of expertise and technical assistance, in order to promote growth and well-being around the world.

There is also the major effort made, for example through the United Nations and its 2030 Agenda, to set out goals and mobilise other resources in order to achieve them.

Given this level of commitment, it is normal that governments and NGOs alike want to ensure that this money – and these efforts – are most effective. A key challenge to this has long been the potentially negative (inadvertent) impact of other policies.

For example, European investment in helping an African country develop its agricultural exports will be wasted if the European Union then imposes quotas or tariffs that prevent them being sold.

This idea – that there needs to be an effort to promote coherence between policies in order to ensure the effectiveness of development – is now well established.

This blog looks to argue that a key area where there is a need for – and a current lack of – coherence is in approaches to discussions on international copyright law at the World Intellectual Property Organisation.

And in line with the theme of the 5th day of Copyright Week, it is a call for a proper democratic debate about this position, and whether it is time to change.


Work at WIPO: a Recap

IFLA, as part of a coalition of civil society organisations, has been calling for over ten years for international action on exceptions and limitations to copyright at the World Intellectual Property Organisation (WIPO).

This is a response to the fact that in too many countries around the world, existing limitations and exceptions do not cover all core activities of libraries, and are not adapted for the digital age.

While some claim that the fact that international law allows for exceptions is enough, there are many reasons why countries are not taking up these opportunities, including limited capacity, other immediate priorities, and in some cases, aggressive lobbying and threats of legal action.

For IFLA, international action can play a critical role in underlining the importance of passing the laws that libraries need to operate, and giving greater certainty about what is possible.

Yet efforts to promote international action are currently being blocked by a number of richer countries – in particular the European Union, the single biggest provider of development aid.

Clearly when a use of a work does cause unreasonable harm to rightholders, then it is necessary to find solutions. But this is not the question at stake when we are talking about preservation of heritage, use in research, or use of small parts of works for educational purposes.

A failure to include exceptions and limitations for these types of activity forces libraries and others to fall back on licencing schemes created either directly by rightholders or through collective management organisations.

This is, effectively, what the European Union and others are proposing.


For or Against Promoting Local Education, Research and Heritage?

This is ironic. The European External Action Service runs many projects on education, culture and research. Yet in its position at WIPO, it works against these goals.

For a start, blocking progress towards an international instrument removes a key impetus to carry out reforms that would allow key actors in culture, education and research to do their jobs in a digital age.

Moreover, beyond this harm done to the efforts of libraries, schools and universities to achieve their missions, this possibility may well also benefit larger, often foreign companies more than local ones.

For example, an insistence on enabling licencing solutions will favour most those who are able to call on extensive rights management departments – generally the larger players – creating offers that segment markets and maximise profits. Smaller, often local players are less able to create complicated offers.

An alternative is to promote collective licensing through collective management organisations. While this may help more money flow to local producers, it can just as well facilitate the flow of money out of developing countries and back into richer ones.

While this may be a legal obligation in the case of major uses of works, it seems particularly absurd that the limited resources of developing country libraries, schools, universities and research institutes should be channelled back to richer countries for uses which don’t actually harm markets. Moreover, such uses also often don’t lead to remuneration in the same richer countries.


A Double Dividend Missed

A particularly powerful impact of passing an international instrument would be the clarity it provides over the possibilities for cross-border cooperation. This can be an important point for libraries, archives, museums, schools, universities and research institutions in smaller or poorer countries.

For example, heritage institutions have collections which need to be digitised in order to be preserved for future generations. But the equipment needed for digitisation to a good standard may simply not be available in the country. Therefore, a preservation exception with purely national effect would have little real-world impact.

However, if a cross-border preservation exception were created, this opens the possibility of forming networks with institutions in other countries which do have the necessary equipment. It is possible to imagine regional preservation networks emerging, contributing both to the safeguarding of heritage for the long-term.

The same can go for cross-border education or research, where the value of legislating relevant exceptions domestically is multiplied when there is also the chance to work with counterparts in other countries.

In other words, by preventing progress towards an international instrument with cross-border effect, the European Union and others are diminishing – if not eliminating – the value of legislating nationally at all.

The ‘double dividend’ of an international instrument is clear in the case of the Marrakesh Treaty, with poorer countries benefitting not only from new possibilities to make and share accessible format works domestically, but also access to international collections.


In the light of this, it is time to bring more people into the discussion. Those who care about – and invest in – education, research and culture around the world need to have their say in the policy adopted by the European Union and others at WIPO.

There needs to be a democratic debate, and the full cost of the incoherence of the EU’s approach made clear.

Why is it important to make digital reproductions of collections in the public domain free and accessible?

What is the public domain?

The public domain includes all creative works to which no exclusive intellectual property rights apply.
Works protected by copyright are those where the rightsholder has the potential to limit access and many uses in exchange for remuneration.

After the death of the author of the work, the work continues to be protected by copyright to the benefit of whoever holds the rights subsequently for an X time (depending on the copyright of the country).

At the end of this period of copyright protection, the work falls into the public domain. The work is, therefore, no longer the subject of remuneration or a monopoly.

Each country has different legislation on the term of copyright protection.


Why is it important to keep the public domain free and accessible?

_ The public domain must be free and accessible because it must be accessible to everyone. Social and economic inequalities are accelerating, and free access to culture lowers these barriers.

_ The public domain must be free and accessible because all nations need access to their history and heritage.

_ The public domain must be free and accessible because social, historical, literary progress is built brick after brick to build together have common bases, a common history.


Why digitised works in the public domain should be labelled with the public domain mark instead of a copyright mark?

It is a strategic decision for the establishment, which requires collaboration from several sectors: the digital department, the collections department and the department linked to the public.

Until now, there has been a legal vagueness regarding the fact of putting a copyright mark on a reproduction of an object in the public domain.

However, many institutions are committed to the principles of OpenGLAM, for example, one of the principles of which is not to add copyright to heritage collections.

Copyright is defined by the creativity of its author, and it is precisely the creativity of the author that is rewarded by copyright.

_ This limits the dissemination of collections since the photos cannot be shared freely.
_ This limits the use and re-use of reproductions of public domain collections for the general public, but also research and education.
_ This risks representing an inaccurate declaration of copyright.


How to combine business models and accessible public domain?

The mass digitisation of artefacts may involve high costs (material, human resources, skills), and so many institutions are invited by their supervision to find economic models involving digitised content in order to contribute to the establishment’s revenues.

If the ideal would be to have a strong (and financed) policy of national digitisation to make works in the public domain (or reproductions of them) free to access and use, in practice, the heritage institutions face these permanent demands to cover costs.

Nonetheless, some institutions have developed different user-pays business models to digitise collections which do not exclude free public access, for example:

_ offering on-demand digitisation services for a fee for the first user, but then making the digital work available free of charge under a label in the public domain or CC0)

_ carrying out public-private digitization partnerships. While this type of partnership often raises questions about the respect of the public domain, given exclusivity rights over reproductions for a commercial purpose, it can become more interesting if this period of exclusivity is only for a reasonable time.

At the same time, numerous reports have assessed the general costs, i.e. the investments of the institutions in digitisation and the revenues made by making access pay.

On the one hand, the revenue from paid access to collections is often a drop in the ocean of digitisation costs. On the other hand, this drop of water can make a difference in terms of accessibility at the user level and will limit access and use of the collections for the broader public, research and educational purposes.


What does the European DSM Directive Say?

In the Copyright Directive currently being implemented in Europe, Article 14 addresses this issue. It especially deals with works of visual art in the public domain.

This provision proposes in particular to introduce the following rule:

“Works in visual art in the public domain: Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the materiel resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.”

In other words, the reproduction of visual works in the public domain (i.e. when the copyright expires) should not benefit from new protection of copyright or related rights unless the reproduction is modified and presented new creative forms of the author.

In practice, this essentially aims to allow faithful reproductions of works in the public domain to remain in the public domain and thus facilitate access to culture. We look forward to seeing the results!









Remedies, Removals and Rights: (Lack of) Conclusions So Far from the EU Stakeholder Dialogue on Upload Filters

The third day of Copyright Week 2020 is focusing on the topic of remedies – the compensation that those found guilty of infringement are expected to pay to ‘make things right’. In the United States, for example, these can be very high, with the intention of having a dissuasive effect, although often final sums are the result of out-of-court settlements.

However in Europe, through the Copyright Directive, the goal appears to be to prevent copyright-infringing content being made available in the first place, and permanently remove it from circulation, at least through internet platforms. This is the logic behind Article 17, which looks to increase pressure on platforms (primarily YouTube) to do more to stop videos which contain copyrighted content getting online.

The Article contains various flaws, not least the fact that despite the original goal being to strengthen the position of rightholders in their negotiations with YouTube, it covers all types of work, and all but the smallest and newest platforms. It also includes a fundamental contradiction between the obligation to make, ‘in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter’ (Article 17(4)(b)) – almost universally assumed to mean the use of filters of uploads, and the prohibition of ‘general monitoring obligations’ (Article 17(8)). Added to this are the demands in Articles 17(7) and 17(9) to protect uses under exceptions and limitations.

In order to try to resolve some of these issues, Article 17(10) of the Directive calls for a stakeholder dialogue in order to provide guidance on these issues. Five meetings in, it remains hard to see what sort of document will emerge. If nothing else, this can hopefully serve to underline the need to resist any similar legislation elsewhere.

The below sets out a number of key points so far, based on IFLA’s engagement in the discussions alongside partner organisations such as Communia:

There’s a difference between detecting content and detecting infringement: the dialogue has heard a number of presentations from companies selling software which aims to detect copyrighted as it is uploaded to internet platforms.

While the strong variation in the claims made (from being able to detect a film in a fraction of a second to needing a somewhat longer, for example), it has been consistently clear that such tools cannot determine whether an exception of limitation to copyright is at work

Therefore, while some involved in the dialogues have sought, effectively but wrongly, to deny the existence of exceptions and limitations, it seems clear that for a determination to be made between whether  use of a work is infringing or not, filters are not enough – human moderation is needed.

There’s no consensus about how much of an answer can collective management provide: one of the options for internet platforms presented in the Directive is to obtain licences for uploaded content. Clearly, when it is working well, collective management has the potential to provide at least a partial answer that would make it easier for platforms to clear at least some rights, when needed.

At the same time, representatives of many rightholders underlined their discomfort with an excessive focus on collective licensing as solution. In many countries, collecting societies do not cover every sector or type of right, and there may be questions about governance and representativeness, especially given the diversity of content uploaded onto platforms. There can be major differences between sectors, and types of right, in attitudes.

Finally, there was strong doubt expressed – including by the Finnish government representative – that extended collective licencing could work across borders.

There is a lack of data about what is really going on: the Directive underlines the need for transparency about the operation of platforms in order to inform the Dialogue.

As a result, there have been calls for figures to be shared on the volumes of works uploaded that contain copyrighted content, what share are then determined to be infringing, what share is then taken down or monetised, and how often take-downs or decisions to monetise are challenged, successfully or otherwise. However, this information is rarely if ever forthcoming, meaning that it can be difficult to understand the scale of the challenge faced.

Size matters: a point that has repeatedly emerged during the discussions is the difference between bigger and smaller players, be they creators, platforms or uploaders. For creators, there is a fair amount of evidence that exposure is essential for newer entrants as a means of building a following. However, established creators understandably do not want to lose revenues.

For platforms, the larger ones are generally able to pay for – or create – their own tools (including armies of content moderators) for trying to determine infringements. For smaller ones, it remains unclear if meaningful technologies are available at an affordable price.

Finally, for uploaders, broadcasters underlined concern about their own content – for which a priori they have cleared all rights – being blocked. This raises questions about whether some uploaders might enjoy privileges, something that could provide controversial amongst others.

There is a risk of abuse: A telling intervention from Facebook in the 4th meeting underlined their concerns about mistaken claims of copyright, and the degree to which they only make filtering tools available for use by rightholders who could trusted to use them fairly. It has also become clear that filtering companies themselves do not verify the legitimacy of copyright claims before providing the tools to enforce them.

Clearly this is a difficult area, as there are different ways of demonstrating ownership of copyright from one sector to another. As some rightholders underlined, this can slow down assessments, and so cause harm. At the same time, without any effort to show ownership, the system is wide open to abuse.

There is a need to remind everyone what’s at stake: finally, but importantly, a key issue remaining to be discussed is how to ensure that whatever system is chosen must protect fundamental rights, including those protected through exceptions and limitations such as those for quotation, criticism, satire, parody, and pastiche.

The risk, in a situation where there is no firm guidance, but rather decisions are left up to national authorities and courts, is that this aspect is forgotten among all the efforts to tailor rules to the specific situation for the sector, type of rights and country involved.

A key task for libraries and others, both in the discussions in Brussels and in national implementation, will be to ensure that this is not the case.

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?