Tag Archives: copyright

Copyright Week: Fair Use protection in recent US Supreme Court cases

This week is the Electronic Frontier Foundation (EFF)’s Copyright Week. Watch IFLA’s Policy and Advocacy blog for posts on the rights libraries and their users have under copyright right law. Recently we shared a post on Monday’s theme, the Public Domain. Today: Fair Use.

Fair use triumphs over proprietarianism. Consumers benefit from competition and advances in technology – as affirmed and supported by two recent Supreme Court cases from 2021.

In a 6-2 decision the U.S. Supreme Court rendered a significant confirmation that fair use is a friend of innovation, interoperability and good old-fashioned American creativity and ingenuity. While the decision in Oracle America, Inc. v. Google LLC, 141 S.Ct. 1183 (2021), disappointed some commentators and practitioners as it assumed “for argument’s sake” that Oracle’s Java SE Program was copyrightable; leaving no further guidance on the boundaries copyright protection for works of function such as a computer program, it was a victory for the continued application of fair use in the technology sector.

The decision follows other fair use and computer program decisions from the appellate courts such as Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000), cert. denied 531 U.S. 871, that held reverse engineering requiring reproduction of the protected as well as unprotected elements of Sony’s gaming platform (PlayStation) a fair use. Connectix wanted to develop a platform that would allow users to play Sony games on a Macintosh. As the Ninth Circuit stated “because the Virtual Game Station is transformative and does not merely supplant the PlayStation console… Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly.” Id. at 607.  The Sony decision followed the logic of a previous case involving another gaming giant, Sega Enterprise Ltd. and its Genesis console, Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992).  There the disassembly of the program that included reproducing protected as well as unprotected elements so that Accolade, Inc. could write its own code and create games that would be playable on Sony’s console was also deemed a fair use.

In the Oracle case the stakes were higher than the video game market, rather the development of an alternative cell phone platform.   Like Accolade, Google wrote millions lines of new code, while it reproduced and incorporated 11,500 lines of code from the Sun Java SE Program.  The Java code consisted of 2.86 lines of which 11,500 represented about 0.4%.  Oracle claimed infringement. Google claimed fair use. The Court reiterated the purpose of U.S. copyright is to help society unleash its creative potential.  That purpose is balanced against the exclusive rights the copyright law offers. The court acknowledged that “the exclusive rights it awards can sometimes stand in the way of others exercising their own creative powers.” Oracle America, Inc. v. Google LLC, 141 S.Ct. 1183, 1195 (2021).  This review required “judicial balancing” and considered “significant changes in technology.” The use of the Java code was an efficient way to innovate a new product and this “use was consistent with that creative ‘progress’ that is the basic constitutional objective of copyright itself.” Id.  Programmers would not need to learn an entirely new programming language as “programmers had already learned to work with the Sun Java API’s system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them.” Id. at 1205.  The Court found this purpose to be an “inherently transformative role that the reimplementation played in the new Android system.” Id. at 1204. Further, Google took “only what was needed.” Id. at 1209.  The court also discussed how Sun’s mobile market was declining. This inability to compete in Android’s market “and the risk of creativity-related harms to the public … convince that this fourth factor… also weighs in favor of fair use.” Id. at 1208. Overall elements of all four fair use factors (purpose and character of use, nature of the work used, the amount taken and the market) favored fair use.

These cases represent support and encouragement of interoperative products and services, marketplace innovation and a recognition that the purpose of copyright is not only to reward copyright holders but to benefit society through new tools and technologies. Computer programs – while not unprotected by copyright – are works of function, a category in which fair use is more generously applied. Libraries produce works of function all the time, such as indexes, outline, bibliographies, lexicons, thesauri, finding aids, abstracts and reviews. Altogether, these open new avenues to work with and preserve content that people and institutions – including libraries – can further explore.

 

Written by:

Professor Tomas A. Lipinski, J.D., LL.M., M.L.I.S., Ph.D.
School of Information Studies, University of Wisconsin–Milwaukee
tlipinsk@uwm.edu

Celebrating Open Access week and the publication of ‘Navigating Copyright for Libraries’

by Sara Benson, Copyright Librarian and Associate Professor, University Library, University of Illinois

Chair, IFLA Copyright & Other Legal Matters (CLM) Committee

One of the many exciting events to happen at this year’s World Library Congress in Dublin was the launch of a new volume in the IFLA Publication Series – Navigating Copyright for Libraries: Purpose and Scope. This volume, conceived and produced by members (current and past) of the IFLA Copyright and other Legal Matters (CLM) Advisory Committee, brings together 20 chapters written by some of the top global experts on copyright law for the libraries sector.

As a primer on the relationship between copyright law and libraries, this book sets out to provide librarians and information professionals with the grounding necessary to understand and articulate copyright in their institutions, consider approaches to supporting copyright literacy, and engage more fully with copyright policy and advocacy at local and international levels. It provides both basic and advanced information, with chapters covering some of the hottest issues facing libraries today, from the impact of artificial intelligence to the call for global support for library exceptions.

But even with this outstanding content, arguably the most exciting thing about this publication, and what we seek to celebrate this Open Access Week 2022, is the fact that it is one of the first two IFLA  Publications Series to be available immediately to download as an open access resource. It will also be available in a fully accessible format, among the first for an IFLA  Publication Series.

With both the editors and the authors including experts on and advocates for open access, from the outset it was clear that the book should be a test case for IFLA to put these ideas into practice. As the work to write and prepare the book progressed over three years from the first planning meeting in August 2019, the importance of the decision only became more apparent. The global pandemic has highlighted inequities in access to information more clearly than ever before and emphasised the imperative to facilitate timely access to knowledge on a global scale.

With the support of CLM and the IFLA Professional Committee, and the assistance of the staff at De Gruyter, the book has been published under the broadest of the Creative Commons licences, Attribution Only. This will ensure it can operate as open education resource (OER), available for all to reuse, remix, translate, update and integrate into local or more targeted resources. Versions using best practice accessibility standards are already on their way, and discussions have started about the first translations into languages other than English.

In its Preface, Navigating Copyright is dedicated to every librarian who has taken the time to read and interpret their national copyright statutes in the hope of finding a solution to an access challenge, and to those who have spoken up and continue to highlight inequalities in access to information and call for change. In this Open Access Week, we celebrate the contribution that open licensing choices can make to achieving this essential goal of knowledge for all.

Beneath the surface: reflections on some of the themes underpinning debate at SCCR42

Last month’s 42nd meeting of the World Intellectual Property Organisation’s (WIPO) Standing Committee on Copyright and Related rights (SCCR) was, at the same time, a breath of fresh air, and a return to the norm.

It was certainly welcome to be able to engage, once again, with delegates in person. Fora like WIPO offer great opportunities to interact with government representatives in order to understand more clearly their priorities and concerns, and to share the experiences of libraries.

There was also, thanks to the initiative of the African Group, the first Member State-led effort in many years to define and drive forwards the agenda on exceptions and limitations to copyright for libraries, archives, museums, education and research.

While only a part of the proposals made it through this time around, it is very positive news that libraries and their users can count on some governments at least to defend their interests.

This same point is, at the same time, also a reason for some disappointment. Despite the extreme caution in the proposals to adhere to consensus positions previously stated in the Committee, some groups – notably richer countries, continued to look to emaciate any effort to move SCCR in the direction of work that would bring benefits to libraries and their users.

While the rest of the African group proposal remains on the table for the next meeting, it was only a proposed information session on cross-border working, as well as a toolkit on preservation that had already been in the works, and a scoping study on a research toolkit that made it through this time around.

In their resistance to progress, developed countries could cite the support of rightholder organisations that looked both to warn against any extension of limitations and exceptions (L&Es), and which suggested that the status quo – at least as concerns L&Es – is adequate.

So why was this the case? This blog looks to explore some of the underlying themes which can help explain this situation.

We are not always talking about the same thing when we are talking about copyright: during exchanges between Member States, observers and experts, it became clear that two definitions of copyright were in use.

The narrower one sees copyright as being only about the exclusive rights given to rightholders, for example to reproduce, translate, or use works. The wider one – used for example by Professor Raquel Xalabarder – looks at copyright as a wider system, incorporating both rights and exceptions and limitations to them.

The argument for a latter approach is based on the core goals set out in texts such as the Berne Convention and beyond – i.e. that copyright should serve to support the production and dissemination of new ideas. Given how important access to and use of existing works is to the production of new ones, it makes sense that copyright needs to be seen as including the L&Es that allow this.

This wider approach is welcome, representing a more enlightened and constructive approach that of course takes account of the contribution of libraries. It also helps us get beyond the tired and blinkered cliché that any non-remunerated use of works is tantamount to stealing.

There remains, in some quarters, a refusal to accept that the public interest should be considered: a revealing statement was made by one observer from a rightholder lobby during discussions, when he argued that the public interest should never come at the expense of that of rightholders. This explicit argument for an unbalanced copyright system is something that you rarely hear spoken out loud.

This highlights the need for spaces like WIPO where governments can indeed take into account arguments from different perspectives on the way in which copyright systems should be designed, if they are to achieve their goal of delivering the best outcomes for societies as a whole.

This is not of course to say that protection of the interests of rightholders is not in the wider public interest. It is, up to a point. However, when the marginal benefits of protecting these private interests are outweighed by the costs to society of denying access and usage possibilities, governments need to act.

There is an assumption that while access concerns should be balanced by rightholder concerns, rightholder concerns should not be balanced by access concerns: closely linked to the previous point, the structure of the research report presented during the information session on the first day of SCCR is telling.

The first half of the report focused on the experience of rightholders during the pandemic, and how in particular the shift to digital had impacted the revenues of different categories of creator and intermediary. This underlined the hardship that many in the book sector had studied, but then presented, uncritically, the steps taken by some publishers at least to facilitate access.

The second half talked about libraries, archives, museums, educators and researchers. Beyond a tendency to indicate that the real problems lay outside of copyright, for example in funding (a point which is partially true, but does not take away from the need for copyright reform), the report felt the need to suggest that enabling libraries to do their jobs better in a digital world nonetheless should not come at the expense of rightholder interests.

This is revealing, sadly underlining a presumption – a prejudice even – that somehow the interests of libraries and their users need to be balanced, but those of rightholders do not.

There is a challenge around the supply of digital content, but is freezing work on L&Es the answer?: a fundamental question raised by both ‘sides’  of the debate – and which the WIPO Secretariat to their credit has certainly recognised – is that an key underpinning issue is the fact that there simply isn’t enough affordable, accessible, digital content out there.

Given the size of the internet, this may seem like an odd claim, but for many in schools and research centres, it is the case, with materials either stuck behind unscalable paywalls, not available in relevant languages, or simply not existing on topics and contexts that matter.

Advocates for rightholder organisations suggest that a key factor in this undersupply is a fear that if works are made available in digital format, they will be pirated, and demand for them will evaporate. As a secondary argument, they also claim that digital-adapted L&Es will also suppress the market.

Of course, the first question is one of enforcement, not basic copyright laws, while the second goes back to the arguments above about the degree to which the work of libraries strengthens or weakens markets for books and other materials.

The counter-argument here of course is that libraries offer an excellent means of providing access to digital content in a way that can be better controlled, using effective tools, and of course that the work of libraries represents a guarantee of research, innovation and creativity in the future, not a threat to it.

Indeed, we can argue that this is rather a failure of the market to respond to demand, driven perhaps by a lack of capacity, but also perhaps by fear and uncertainty among actors who more or less control the market.

This is not the first time that WIPO has addressed the issue of the under-supply of content in formats that work for readers. It’s exactly the challenge that the Marrakesh Treaty looked to overcome.

While international legal action around L&Es remains only one of the options on the table for now to resolve this failure (although arguably, there’s no other way of dealing definitively with challenges around cross-border working), it would undoubtedly have a strong triggering effect on national legislation.

 

This blog has looked to provide insight into some of the assumptions and understandings that explain position taken, and outcomes achieved, at SCCR. Addressing them, and finding solutions, will need to be part of any ongoing strategy to achieve progress.

As a final point, of course, it is worth noting that copyright can of course tend to polarise, whereas on most issues, the interests of rightholders, libraries and their users converge. Setting aside pure profit motives, we all, deep down, work towards a situation where there is a rich production of relevant materials, and literate, curious populations that are eager to read and apply knowledge. Despite the various points of disagreement in fora like WIPO, it is good to remember that we are all there for the same ultimate purpose.

Five information disorders that could sink the SDGs, and how to prevent this

In IFLA’s work around the SDGs, our core theme is the importance of meaningful access to information as a key driver for development.

This access, to our understanding, consists of a combination of the practical possibility of access (accessibility), a favourable socioeconomic situation (affordability), the presence of relevant information and the possibility to use it (availability) and the skills to make the most of it (capacity).

This can, however, risk being a difficult sell when working with policy makers who either take information for granted (policy-makers themselves will tend to come from more favoured, educated backgrounds), or are not in the habit of thinking about information in a holistic way (as of course we do in the library field!).

So what other options are available to us when trying to make the case for information as a key area of focus for work on the Sustainable Development Goals?

One option – admittedly a potentially alarmist one – is to look rather at what the costs of inaction in the face of information disorders can be.

The term information disorders, taken from the work of Divina Frau-Meigs (but then very loosely applied), refers to situations where the way in which information is created, shared, internalised and applied somehow goes wrong, leading to negative consequences.

This can be powerful. Given that we tend to be more concerned about what we might lose than what we might gain, it can be a good way of focusing minds.

And by bringing together arguments about what there is to lose by a failure to address information disorders, we can, perhaps get closer to building the case for a comprehensive approach to information (and libraries as essential information institutions) in SDG implementation.

This blog lists five such disorders that we face today, and what they mean for the chances of success in the 2030 Agenda.

1) Illiteracy: the inability of millions around the world still to engage with the written word has to represent one of the ongoing challenges of our time. Next week, the International Conference on Adult Education (CONFINTEA) will meet, with the ongoing need to ensure universal adult literacy likely to be high on the agenda.

Literacy of course is already highlighted in the Sustainable Development Goals, as well as in many other key reference texts, as a pressing goal. It should be. For as long as people cannot read, they will struggle to seize so many other opportunities linked to aspects of the wider development agenda – finding work or launching a business, learning more generally, engaging in democratic life. Continued investment in universal literacy needs to be a priority.

Libraries of course have an established and recognised role, both as a venue for basic literacy training, and a key resource to help those with fundamental skills consolidate and build on them. As highlighted in our review of LitBase last year, libraries can be providers, promoters and partners in this mission.

2) Mis and Disinformation: a serious and growing concern, in the light both of the polarisation of the political debate in many countries, and the fight against the COVID-19 Pandemic, has been the rise of mis- and dis-information as a phenomenon.

Clearly, lying is not a new thing, and people and governments have been doing this forever. However, it does feel that recent years have seen a greater brazenness in dismissing scientific advice, and the internet has created possibilities for mis- and disinformation to spread more quickly than before. This may well be accelerated too by business models that promote the controversial or shocking. As such, and as set out in the UN Secretary-General’s Our Common Agenda, there is a need to take stronger action to call out lies, and to combat the means by which they are spread.

Without this, there are risks to policy effectiveness in key areas of the SDGs – not least health – as well as more broadly to the ability of democratic systems to work in a way that best serves people. This is also an area where libraires have an obvious and existing role to play, both in building up the skills to recognise mis- and disinformation, and in parallel, to promote a sense of openness and curiosity about the world that doesn’t just focus on simple and lazy responses.

3) Information Poverty: information and knowledge have an immense role to play in achieving the SDGs. While often taken for granted, they are essential if we want people to be able to take optimal decisions about themselves and those around them, to innovate, to learn, to participate in democracy, and in broader social and cultural life.

Yet for too many people, this isn’t a reality. For some, it will be an economic question – more on this below. But for others, it is simply because the information isn’t there, or at least not in a form that they can access. A lack of materials in relevant languages or accessible formats – both as concerns persons with disabilities, and simply written or presented in a way that can be used – can also mean that people end up suffering from information poverty.

There is of course action on this point already, for example the Marrakesh Treaty (which addresses the book famine), and many initiatives to promote multilingualism. Technology of course offers possibilities here, but in turn needs to be affordable and accessible.

Libraries have always acted as an antidote to information poverty, a way of working around the fact that it is only by pooling resources that it can become feasible to acquire and give access to information and the tools for this. They continue to do this, in ways that suit the needs of the communities they serve.

4) The Privatisation of Information: highlighted above was the risk that economics could get in the way of the access to information needed to enable development. While of course there need to be means of paying correctly for the production of information, these become problematic when they leave the less wealthy empty handed.

However, with the shift to digital, we have seen a deregulation by stealth of the market for information and knowledge. Going from selling books and other materials to licensing access gives rightholders huge powers over who can access works, how, and what they can do with them. Unless there is action to ensure that licenses cannot take away core knowledge rights, protections for core public interest uses risk being undermined.

Linked to this is the way that data and information itself has become a market, with companies realising how powerful control over, and exploitation of, data about users and their behaviour can be. Possibilities to track what people are doing not only raise questions about privacy, but also the potential distortion of behaviours as platforms and others seek to maximise attention.

The risk here is that people are unable to access the information that they need to improve their situation, because of their situation – i.e. they are not of interest to profit-orientated players. Furthermore, they risk being manipulated, or having to trade in their rights to be able to access information, or are pushed in sub-optimal directions, all of which can hold them back from doing what they need to do.

There are clear and welcome calls for a digital commons at the UN level in Our Common Agenda, and for a knowledge commons in UNESCO’s Futures of Education report – these both imply putting the interest of the community above those of individual private actors.

Again, this is an area of library strength traditionally. By pooling resources, libraries help overcome the economic barriers to copyright, although certainly require the protections from the hollowing out of protections for public interest uses mentioned above. They can also bring insights and values to discussions about how information and data should be regulated, in the interests of all.

5) Lack of connectivity: finally, there is the ongoing challenge faced by those who cannot yet access the internet reliably, and quickly. This is of course a point closely related to that about information poverty above, given the increasingly important role of the internet as a means of accessing information. As print-runs of books, journals and newspapers disappear, those without digital access are cut off, and of course cannot take advantage of all the new possibilities created.

An obvious example here is open access – this has been a transformative movement, bypassing cost-barriers to access to knowledge, and so allowing researchers around the world to draw on materials that would previously have been out of reach… If they have an internet connection.

The costs of leaving people unconnected are similar to those of other disorders set out above – the lack of possibility to access information to take decisions, and to participate in social, economic, political and cultural life. It can leave people isolated, unable to realise the potential to build connections with others. It can also of course reduce the effectiveness of government efforts, especially those that rely on eGovernment tools.

Again, libraries are key players here, providing public internet access both as a last recourse for those who cannot access in other ways, and as a complement to home connectivity, or via a mobile device. They can even be hubs for local connectivity as anchor institutions.

 

Across these areas, there is a risk that inaction, or inadequate action, will leave the world less able to deliver on the SDGs. They underline that there is a need for information to be taken seriously as a policy issue, in order to avoid this. More positively, they also represent a call for a more proactive approach to ensuring that everyone benefits from access to knowledge. Any such effort will need to have libraries at its heart.

WIPO SCCR/42: Why broadcast matters

This 9 – 13 May, I attended the 42nd meeting of the World Intellectual Property Organization’s Standing Committee on Copyright and Related rights (WIPO SCCR/42 for short). For a week, national delegates, expert panels, and observing civil society organisations (CSOs) like IFLA and rightholder groups discussed the impact of COVID-19; the WIPO African regional group’s proposal for a workplan on limitations and exceptions; broadcast rights; and other odds and ends for some 40+ hours’ worth of meetings, coffee breaks, and side discussions. Conversations advanced and  some commitments were made – including items on studies and toolkits on copyright limitations and exceptions.

It was my first trip to Geneva, so it was the first time I experienced the process. WIPO is the World Intellectual Property Organization, and indeed ‘IP’ is the general framing of Why We’re All Here. Creative outputs and patents are primarily considered valuable because they’re monetizable. The affective dimension (whether you ‘like’ a book) or the work’s value for humanity as a whole occasionally peaks through when civil society organisations (CSOs) or expert panels re-frame the issues, or (as happened twice, by my count) one of the invited artists on a panel delivers an a Capella performance.

By contrast, imagine a framework that began with ‘art and information are good, and people should have better access to those things’. It would be a very different conversation, for example, than that presented by WIPO’s expert report on how COVID-19 affected rightsholders and cultural institutions. There, the ‘Cultural Heritage Institutions, Education and Research’ section contained language about balancing access with rightholders’ interests that were largely absent the other way around from the rightholder sections.

In the observer section of the main room, CSOs sit alongside industry organisations. We’re there to represent our constituents’ interests and have our views heard, but it’s up to the delegates to make the votes.  The ‘rightholder’ side tends to represent publishers, record labels, and other aggregators and content distributors moreso than creators directly. The tension could be felt, for example, during Thursday’s presentations on streaming music in which expert presenters underlined that compensation was scarce for non-featured artists.  This tracks with online discussions I’d followed, along with standard-issue rock-n-roll lore about bands’ conflicts with their labels.

This is all also to say that delegates are engaged in a delicate push and pull between interests, and from the rightholders (and to some extent, us CSOs), like shoulder angels and devils, there can be an adversarial tendency to avoid wanting to lose any ground. So, with regard to limitations and exceptions to copyright – which enable libraries and individuals to lend, share, and make use of all kinds of material – the ‘opposite side’ can sound a bit like Groucho Marx laying out his platform on ascending to the university presidency in Horse Feathers – ‘whatever it is, I’m against it.’

(Side note: while I was unable on a quick search to locate the copyright status of Horse Feathers, the Marx Brothers were once themselves fined $1,000 for copyright violations; Groucho also responded to Warner Brothers’ fears that the then-forthcoming A Night in Casablanca [1946] would infringe on their film Casablanca [1942] by jokingly threatening a counter-suit over the word ‘Brothers’. Copyright has never been easy to sort out, or straightforward.)

Back to the Statute of Anne (1710), the first copyright law, copyright was intended to be a broad ecosystem that protects rightsholders’ right to compensation, and the public interest in having access to and working with materials. This includes the right to quote (on an obligatory basis), as well as possibilities to make a copy of a chapter, to use in the classroom, to offer commentary, to remix in ways not in competition with the original work. A robust copyright system enables different interests to be represented.

In respect to these positions, there are many good reasons for strong limitations and exceptions – including with respect to the broadcast rights, which came to the fore on the Tuesday and Wednesday in discussion of the Broadcast Treaty, which aims to protect broadcast signals (the medium, not the content). It has been under discussion since the late 90s.

Going forward, IFLA plans to highlight the importance of limitations and exceptions to preserve the right to archive and preserve broadcasts. Preservation shouldn’t have to be the sole responsibility of increasingly conglomerating commercial entities most immediately concerned with short-term profits. Cultural institutions are well equipped to collect, curate, and make available – if they don’t face dissuasive economic and administrative barriers to doing so. Here, archives and rightsholders have slightly different, but complementary & related interests. A key question, if you’re making content is: do you want your work to be accessible a few decades down the road?

One need only look to how much things have changed SINCE the broadcast treaty entered onto the agenda in the late 90s. For consumers,staring at screens in their homes, this period saw changes from standard definition to high definition, and from VHS to DVD (with detours into VCD in Asia) to Blu-Ray to streaming. Once-ubiquitous CRT monitors are currently a fad for retro gaming, as graphic designed for their slightly blurry displays and can look disconcertingly jagged on a modern 4K OLED, where every single one of the 8,294,400 pixels can show a different colour from its neighbour. Radio stations consolidated or went out of business. Long-running shows end, inevitably – and have to find archival homes for their collections or junk them. You’re lucky today to find equipment today that plays old consumer, professional and semi-professional storage formats, or to access files on the editing hardware and software from eras past.

This is all living memory, and underscores how difficult it is for people to  ‘watch’ TV like they did 25 years ago. To preserve that content and experience, archives play a key role – and need broad flexibility to capture, store, back up, and engage with content amid these changes. Sometimes, cool discoveries are made – like the recent find of a Minnesota TV station in their archives of a video of the musician Prince, at age 11. We can share that this discovery happened, beyond a local TV station, in part due to broad access rights.

As these discussions continue, support libraries! Please don’t create new barriers to preservation through new rights and impositions, but rather support proper exceptions and limitations to help libraries, archives and other institutions do their jobs preserving content and making it accessible.

Matt Voigts, Copyright & Open Access Policy Officer

COVID-19 Impacts on Cultural Industries and Education and Research Institutions: Key Questions from the WIPO Report

Tomorrow, the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) will hold an information session on the impact of COVID-19 on the cultural and creative industries, on the one hand, and on education and research on the other.

This follows requests from Member States at the previous meeting, conscious of the need to make sense of the experience of actors affected by copyright – either as owners, or as users, of relevant materials. While the meeting formally takes place outside of the SCCR agenda, its place at the beginning of the week will mean that it has the potential to shape discussions over the following days.

To support this, WIPO has published a commissioned study, based both on a series of responses to a call for evidence, and interviews with experts in different countries. The terms of reference for the study have not been shared, but it looks both to tackle the broader question of experiences (as mandated by the last meeting), and to cite case studies of initiatives taken (which goes beyond the mandate).

Ahead of this session – which will be available on WIPO’s webcasting service – this blog looks at some of the questions and issues raised by the report (intentionally or otherwise), and which the meeting tomorrow can hopefully address.

 

Public spending needed… but on what terms?

A consistent message from the report is the sense that governments need to step in to provide financial and other support, to institutions, businesses and individuals working with copyright where these would otherwise risk disappearing or disengaging. The report underlines in particular that the pandemic has represented a major shock to those actors depending on in-person engagement and activities, such as concerts, author events, or museum visits, as well as events where much business is done, such as book fairs.

Some – but not all – governments have of course taken action to help otherwise viable businesses from failing. The report underlines that more could and should have been done however, with independent authors in a particularly tough situation.

Looking forwards, however, this does raise the question of how to ensure that this support has maximum positive impact. Beyond the preservation of employment, how can this serve to support public interest goals, such as access to education, research and culture?

 

Digital here to stay, but how?

The report is clear about the fact that the shift to digital is going to be a lasting phenomenon, raising the question of how to ensure the sustainability of digital activities. It underlines components of a response, including efforts to get more people online, training and support for digital maturity, and new policy approaches in general.

A crucial point made is that libraries themselves have invested significantly in digital content – often paying again for the same material that they had already bought in physical format. Clearly, it cannot be sustainable for libraries to pay twice for the same things.

In terms of recommendations, the report does highlight the need to ‘provide clarity to institutions and organizations regarding the copyright implications of moving towards a digital world, and to evaluate appropriate means and innovative ways to make digital uses easier’.

Of course, this could be read either as a case for providing more flexible exceptions and limitations that adapt to needs, or for facilitating licensing. It is to be hoped that COVID will not be used as an excuse to extend the reach of licensing at the expense of the sort of free exceptions that libraries have traditionally relied on extensively, draining their resources.

More worrying is the suggestion that copyright for digital works should be tighter than that for physical ones (i.e. have weaker limitations and exceptions) in order to protect investments. This is to argue that there is less need to protect possibilities for education, research and cultural participation online than in person.

This of course flies in the face of the argument that rights offline should also be protected online, and indeed the case made by the UN Secretary-General that more effort is required to ensure that it is not only the decisions of private companies that should determine what we can and cannot do digitally.

 

An under-supply of digital content

A persistent issue is the lack of digital content available, especially in developing regions. The report suggests that this is sometimes due to a lack of capacity, but can also be the result of a conscious choice by rightholders not to make works available in digital form, for example due to apparent fears of piracy.

This raises a serious issue about the functioning of markets, and whether it really serves societal interest for works not to be sold in a form that works for people who may not be able to access libraries or bookshops, or even work with physical copies of books. The report suggests more licensing, but this has been a possibility for a long time, and does not seem to have delivered.

Instead, it’s worth remembering that it was the under-supply of accessible format works that underpinned the Marrakesh Treaty, which opened up the possibility to carry out format-shifting of works to make them accessible.

A parallel argument is that the ability of creators themselves to use digital platforms could be a useful area of focus. This is an area where libraries, through providing public access, can indeed help, although to do so need to have the necessary resources to offer such services.

 

Impacts are varied

At least terms of market impacts on different sectors, the story varies. For example, while extensively citing European research suggesting that the publishing sector there suffered strongly, it notes that publishing in the United States continued to grow. The US of course is characterised by a very flexible copyright regime – fair use – while another country whose model is celebrated, Canada, is also under regular attach from rightholders for the flexibility of their education exceptions.

In addition, the pandemic is reported as having been particularly hard for authors who, in addition to the impacts of falling sales (where sales actually fell), also missed out on other opportunities to earn, such as book fairs and signings. The same goes for performers, and people working as freelancers or on temporary contracts. This does raise questions about terms of employment, and what can be done to ensure fairer distribution of revenues to those missing out.

 

Anecdotes and rules

A point alluded to in the title is that the focus on examples of initiatives in the report goes beyond what was in the mandate proposed by Member States. This is of course valuable in terms of providing illustrations, but can also lead to the impression that everything is going well.

Furthermore, the report fails to reflect the view of many libraries that these initiatives, while welcome, were often hard to implement and were withdrawn well before the end of the pandemic – see IFLA’s own report on libraries, copyright and COVID-19 for more. Indeed, there is the argument that they were often intended as marketing exercises, aimed at building use of and reliance on services which could then be charged for.

The more systematic examples come the US, where the flexibility provided by fair use is underlined as having enabled initiatives like the Hathi Trust Emergency Temporary Access Service. These arguably provide better pointers for how to build resilience than individual stories that may depend on a wide variety of other factors which are potentially not replicable.

 

And an old cliché about lending and sales…

The report does touch a number of times on the relationship between library activities and sales. There are unsubstantiated claims about the impact of higher levels of library lending and use. The one reference given is to a speculative conclusion in a German study about future impacts of eLending. This same study also underlines that cutting back on library lending is unlikely to lead to any increase in the purchasing of eBooks.

These arguments also do not sit well with the report’s conclusion that increased spending by libraries on digital content raises sustainability concerns for our institutions. In this case, the question needs rather to be ‘where is the money’?

Going further, unfortunately, it also repeats old tropes implying that the work of libraries is not significantly different to copyright piracy. These betray a fundamental misunderstanding of what copyright is about and how limitations and exceptions work. It also suggests an inability to differentiate between the interests of one particular lobby group, and of society as a whole. It is of course a shame that such claims are repeated in a WIPO-branded report.

 

Follow the discussion on WIPO’s webcasting service, from 11:30-16:30 Geneva time, for more!

Looking Ahead on Copyright in 2022

Even as it has added new complexity to law-making, the COVID-19 pandemic has shone a new light on the way that copyright regimes work, and how well able they are to flex to match an uncertain and changing world.

That they need to accommodate digital is clear, but there is still resistance to reproducing the sort of exceptions that already exist in the physical world. In some countries, worryingly, there is a growing readiness to attack libraries publicly around copyright issues (even on the basis of weak misunderstanding), something that perhaps betrays new levels of fear about the future. At the same time, there are new ways to enforce rights, stronger than those that existed previously, which in turn have their own potential consequences for libraries. Finally, there is the ongoing concern that zeal to regulate major internet platforms may have major negative consequences for non-commercial operators – both libraries themselves, and the platforms they rely on.

These issues will be felt first and foremost in public debate, but in particular in those countries where reforms are underway. In particular, this is the case in Australia, Nigeria, Namibia, Hong Kong (China), South Africa and Brazil, and we await the results of consultations in Canada. The European Union will also advance work on digital platforms, which is likely to shape approaches elsewhere, not least discussions in the United States with strong implications for how copyright is enforced on platforms.

It looks set to be another busy year.

Onsite vs Online Access: the combination of a pandemic that has forced the physical closure of libraries and laws that do not allow for remote access to library collections has proven frustrating over the last two years. Libraries, despite having legitimately acquired books and other materials, have been prevented from allowing their communities to use them. In many countries, digital access is still limited to computers on library premises – a complete non-solution in COVID times.

However, there are moves in a number of countries to extend the way in which we understand libraries (or other institutions, such as schools) to include remote access. In some cases, this is limited to those people who are affiliated in some way – for example, the European Union’s Directive on Copyright in the Digital Single Market proposes that access can take place through secure networks. Proposals in Australia only talk more broadly about taking reasonable steps to avoid infringements, with restricting use to registered library users mentioned as one means of doing this.

The possibility for libraries are able to give access to their collections digitally is certainly something that we can hope see advanced in 2022, drawing on the lessons of the pandemic. The traditional argument that the need to visit a library represents a sort of ‘friction’ that means that libraries do not compete with the market was already questionable, firstly because this ‘friction’ would be felt more by some than others (not people living far from a library, or with disabilities), but also because the substitution effect of library lending for sales still has not been conclusively demonstrated (and indeed, lending may well support sales).

Tensions grow: the state of relations between libraries and publishers has swung back and forth in recent years, with the low point of the embargo imposed by Macmillan rapidly replaced with much more positive news as the world entered lockdown, and wider and cheaper access was offered. However, and perhaps inevitably, special offers have not necessarily lasted, and the old challenges – refusals to license, restrictive terms, and high prices – have returned to the scene. With libraries likely to continue doing a lot of work digitally, the costs and terms associated with digital content will only become more important.

There has been notable success on both sides of the Atlantic in the past year, with a number of states in the US passing laws enforcing the right of libraries to licence eBooks under reasonable terms, while a similar proposal made significant progress in Germany before elections got in the way. However, these efforts have faced angry and frantic opposition, leading the Governor of New York state to veto a bill there. In Germany, a public campaign was even launched by rightholders, opposing calls for reasonable access to eBooks.

In the meanwhile, we have also seen strong opposition (including an anthology) to a move that would have allowed access to books that the National Library of New Zealand would otherwise have had to divest, effectively placing the principle of copyright over books that were long out of print ahead of their ongoing retention or access.

Sadly, these campaigns seem often to be built on a misleading presentation of what is being called for by libraries, and a disregard for the importance of equitable access to information. It has to be hoped that 2022 will be a year of greater readiness to step back from dramatic arguments, and to focus more on finding an optimal situation for all.

Zero tolerance: copyright offers very extensive powers to those who hold it, both in terms of what they are allowed to control, and the duration for which they can do it. In a physical world, many of these powers were hard to enforce – traditional means of copying did not leave a trail, meaning that enforcement efforts focused on significant commercial infringement. Furthermore, the challenges involved with going through the courts similarly meant that it was not worth trying to pursue smaller players.

However, technological tools have long since brought in new possibilities to monitor use and potential infringements (even if the long discussions about upload filters in the context of the Directive on Copyright in the Digital Single Market made clear that such filters are far from able to determine whether a use is legitimate or not), leading to what was already described in 2018 as the ‘demise of toleration’. Added to this, the creation of ‘small claims’ courts in the US makes it easier, potentially, to pursue smaller operators.

Coupled with the rhetoric that every use of a copyrighted work requires compensation (which conveniently ignores both the emphasis on ‘free uses’ in the Berne Convention, and the establishment of rights of access alongside rights of compensation in the Universal Declaration of Human Rights), this potentially opens the door to increased efforts to penalise any infringement (or perceived infringement) of copyright severely. A key expression of this is likely to be in the types of platform relation increasingly being in different countries around the world, following the model of the EU’s Directive on Copyright in the Digital Single Market. The pressure will be on platforms to take on the sort of policing role usually left to public authorities, with the expectation that they use technological tools to spot infringements, even only very minor ones, or those carried out in good faith.

Crucially, in addition to having a chilling effect on decisions around using copyrighted works, this approach may well also serve to deepen inequalities, with only better funded players able either to take the risks, or to pay for broad licences which offer them adequate protection against liability. It will become all the more important to ensure clear rights for users, as well as protections for libraries and others when acting in good faith.

More blockchain: with new money flowing into ‘web3’ business models, we’re likely to see a resurgence of talk about how blockchain might be used. Clearly, web3 in general has its critics, ranging from those who question how novel it is, to those who ask what difference it is likely to make in reality, or who point out the risks of it concentrating power in the hands of those who already have it.

However, with potential investment funding available, as well as confused attempts to turn copyrighted works into non-fungible tokens (or at least to link the two), there remains the underlying concern that a shift to blockchain and a model focused on using technology, rather than law, to set out the rules of the game risks undermining the role of governments in ensuring fairness.

Of course, with many arguments for web3 based on a sense that institutions are untrustworthy – and indeed that we need to get rid of the need to trust, and instead be able to depend on things happening correctly – it is perhaps normal to want to exclude government. However, copyright in particular depends on achieving a balance that, it feels, blockchain and micro-contracts may struggle to achieve. The risk is that web3 applications rigidly enforce the ‘rights’ side of the picture, without considering the exceptions on which libraries and users depend.

Avoiding collateral: finally, and following a point already made above, the drive to regulate platforms will continue apace in 2022, with the European Union’s Digital Services Act and Digital Markets Acts scheduled to be agreed, ongoing drives to reform Section 230 in the United States, and the subject coming up regularly in reforms elsewhere.

Major internet platforms are tempting, and often well-justified targets, given their significant market power, and degree of control over so many aspects of people’s lives. Breaking them up, or imposing stricter rules that allow users greater freedom to move and choose, may well be positive outcomes for societies as a whole. Indeed, their power is one of the things driving interest in web3 mentioned above.

At the same time, in the excitement of efforts to regulate platforms, it can be all too easy to apply major new restrictions or liabilities on much smaller, non-profit entities which operate platforms, such as repositories or digital libraries, book review sites or similar. These are clearly not in any position to take on the same sort of responsibilities as multi-billion dollar companies – for example to implement filtering technology, or to respond to notifications within hours or even minutes.

The challenge is that those calling for reforms too often have little awareness of the risk of collateral damage, or even interest in preventing it. An important role for libraries and others in 2022 will be to make sure that the lawmakers involved in this work do understand the implications of the decisions they make, and ensure that in looking to regulate the power of platforms, they do not end up causing harm to education, research and culture institutions and infrastructures.