Last week negotiators from around the world came together as the World Intellectual Property Organization's (WIPO) standing committee on copyright (SCCR) resumed consideration of its two current work items: the on-again, off-again broadcasters' rights treaty, and the harmonization of minimum copyright limitations and exceptions for libraries, archives, and education.
EFF has opposed the former for close to a decade because it would give broadcasters new exclusive rights over any material that they broadcast, regardless of whether they own the copyright in that content, nor whether it is copyrightable at all. We support the latter, because it would clarify the rights of librarians, archivists and educators to carry out their important missions in the digital age, and as such is a natural and overdue counterpart to the WIPO Internet Treaties which similarly updated the rights of copyright owners almost two decades ago.
On both counts, the week ended in a by-now familiar impasse, with no formal agreement being reached on either subject. But in the case of the broadcasting treaty, there was a sense of progress. Most member states now agree that new rights should be extended to traditional broadcasters to prohibit the unauthorized use of broadcast signals in the course of a transmission over any technological platform—including the Internet.
We are concerned at the forward momentum of this ill-considered proposal in the SCCR, which would grant new privileges to an industry that is doing perfectly well without them. This would come at the cost of users and innovators who would be cut off from exploring a range of transformative activities using broadcast media including public domain material.
Europe Doesn't Want an “Effective Solution”
The looming prospect of new broadcasters' rights is worrisome enough, but just as concerning is the unsympathetic reaction that libraries, archives and educators received over their pleas for an instrument that would secure their ability to function in the online environment—to give just one example, allowing libraries to lend digital copies of documents to institutions in other countries.
Much of the blame for this can be laid on the European Union. Their representatives have been absolutely uncompromising against any recognition of the challenges that libraries, archives, and educators face in a world where their traditional activities now typically involve acts of digital copying, yet where the limitations and exceptions to authorize this are patchy and inconsistent.
The meeting's chair had prepared a set of weak compromise recommendations that eventually most of the developed (“Group B”) states, as well as the Central European and Baltic States (“CEBS”) grudgingly accepted, which would have directed the Committee “to continue and expedite its work on the topic of limitations and exceptions for libraries and archives” and “for educational, teaching and research institutions and persons with other disabilities.”
For the regional groups from Latin America, Africa, and Asia, the compromise was too weak, and they pushed for stronger language that called for work towards an “international legal instrument in whatever form,” which in itself is short of a call for a treaty. In the end a further compromise between these positions and the chair's draft, “to focus work towards an effective solution to the issues that affect libraries and archives,” was inexplicably rejected by the European Union, and the meeting concluded with no recommendation whatsoever.
This leaves the future of the committee's work on limitations and exceptions in the hands of the next WIPO General Assembly, which is a larger meeting of WIPO states that covers all topics, not just copyright. Having said that, there is no assurance that anything will be agreed there either, since the last General Assembly ended in a stalemate too.
The Future of the SCCR?
With little progress being made on the issues currently before the committee, delegates have been searching for new work items that might produce quicker results. During this meeting, one such new item was proposed—a resale royalty right for visual artists, which would entitle them to a cut of the proceeds of the resale of their works. But since such a right contravenes the U.S. first sale doctrine, this hardly seems a likely candidate for swift passage through the SCCR either.
The new proposal is symptomatic of a false assumption of European policymakers, also evident in the broadcasting treaty proposal, as well as the link tax or “ancillary copyright” proposals. The assumption being that the solution to the economic distress of creators or creative industries is to encumber their work with additional copyright-like rights. They could not be more wrong.
To the extent that markets are unable to support creators to the extent that society deems optimal, there are many other mechanisms, both public and private, available to support them, a few of which include grants, endowments, prize funds, and crowdfunding. Europe should be looking more closely at those, rather than doubling-down on exclusive rights that impede access to knowledge and culture.
But until Europe is prepared to engage in a constructive and balanced manner, it is difficult to see what kind of future the Standing Committee on Copyright has. The days when it was seen as WIPO's role to promote rightsholders' interests only are long gone; the Marrakesh Treaty for the blind and visually impaired is proof of that. The developing country regional blocs won't stand by and allow Europe a free pass on its pro-rights-holder measures without any quid pro quo for users. Neither will EFF.
