User Content Platforms Take the Heat for Artists' Struggles at WIPO
All this week, EFF has been at the World Intellectual Property Organization (WIPO) in Geneva, debating with delegates from around the world at the 32nd session of the Standing Committee on Copyright and Related Rights (SCCR). We could write an exhaustive report of the discussions at the meeting (tl;dr: proposals for a broadcasting treaty continue to edge forward, while rich countries remain at loggerheads with users and poorer countries about copyright exceptions for education and libraries). But what's more remarkable are the persistent themes that are recurring in these discussions, as well as the motivations of regional groups, rightsholders and individual countries that propel them.
In a nutshell, Europe and the United States seem deadset on pressuring each other (and the rest of the world) towards their respective versions of copyright law, while avoiding making any changes to the law themselves. This is both a blessing and a curse; it means that the negotiations over a new treaty for broadcasters remain a drawn-out tussle in which Europe seeks to replicate its law giving special rights to broadcasters, and the United States mostly resists, promoting instead a slimmed down version that would only address broadcast signal piracy.
However Europe is equally resistant to even discussing copyright limitations and exceptions that don't currently exist in its law, and unfortunately the United States delegation doesn't care enough to push the matter, leaving the heavy lifting to nonprofit stakeholders such as the International Federation of Library Associations and Institutions and Electronic Information for Libraries. Meanwhile, industry groups refuse to countenance any limit on their own monopoly powers, even when such a limit is plainly in the public interest and addresses a pressing need. For example, libraries and archives seek the legal authority to preserve orphan works, and to source and lend works across national borders, while people with disabilities other than blindness or vision impairment need similar flexibilities to those now extended to print-disabled people.
What about digital issues? Here, the most relevant developments took place not only in the SCCR's plenary session, but also at side meetings held during lunch breaks, including one held by the International Federation of the Phonographic Industry (IFPI), and a second held by EFF. At the IFPI meeting on May 10, industry panelists argued that intermediaries such as YouTube “hide behind” the safe harbor provisions of the DMCA and its equivalents to gain access to content, often uploaded by users, without advance permission from copyright owners. Of course, YouTube also automatically scans this content and share revenues with copyright claimants, which the law does not require it to do; and in most cases the industry is more than willing to take these payments rather than issuing requests to take the content down.
Industry complaints about content platforms' reliance on copyright safe harbors were also repeated at EFF's meeting by the representative from Brazil, Marcos Alves de Souza, who is the principal author of a paper on copyright in the digital environment that had first been tabled at the preceding WIPO meeting by the Group of Latin American and Caribbean Countries (GRULAC). The GRULAC paper does not recommend that copyright safe harbors be eliminated—this would be a disaster for platforms and users alike—but does raise a range of possible solutions to the low returns that artists receive for the use of their work online, and the lack of transparency about how these returns are calculated.
Independent recording artist Imogen Heap touched on the same theme of transparency in her keynote presentation at EFF's side-meeting. Imogen outlined her vision of a blockchain-enabled, distributed open database of music metadata, that she calls Mycelia. Although it remains mostly a vision for now, the widespread adoption of Mycelia-enabled services could, in theory, provide better transparency to artists about how and where their works are being used, as well as enabling many new innovative uses of music, both free and paid. The following question and answer given during her presentation gives a flavor of Imogen's vision (you can watch a recording of it here):
Q: 15 years ago we had a global music database in the form of Napster, which was of course shut down because it wasn't remunerating artists, but do you think that Mycelia could enable the re-emergence of a peer-to-peer music sharing culture that does also remunerate artists?
A: Well, the problem with Napster was that they did an amazing thing, you know, they had all of the music in the entire planet, pretty much, up available for people to use. What a shame that the labels couldn't, you know, use that to their advantage, and you know, take the technology and go wow, what could we do with this. You know they really, really missed a trick there. They reacted too late and then as a result they've been kind of clawing their way back and everybody else has been leading the way with new technologies and they've just been kind of left behind going “help, we're going to figure this out somehow, we're going to get back to the CDs when we made loads of money”. So this is another point in time where we have this incredible new technology which can really, really change things, not just for music but for everything around the world, it's a real game changer.
Regrettably, the approach of the music industry establishment, at WIPO and elsewhere, is frequently much less imaginative and more reactive. Blaming online content platforms for the low returns that artists receive, and moves to target them with additional responsibilities or obligations, are symptomatic of that approach. (And this phenomenon is far from unique to WIPO, see for example the link tax proposals in Europe.) This approach also stands in very stark contrast to the treatment that another challenged industry sector, the broadcasting sector, is receiving from the very same committee. Whereas Internet platforms find themselves under fire for the low returns that artists receive, broadcasters are being courted with special new rights. It is difficult to account for this disparity in treatment as anything other than a clash between established industry interests and newer innovators.
The approach taken by the GRULAC proposal falls somewhere in between. It correctly identifies a real problem faced by many artists, particularly smaller artists, in deriving adequate economic value from the use their creative work online. Amongst the possible solutions that it identifies is the creation of a global database of rights, which overlaps with Imogen Heap's vision for Mycelia. But some of the other the ideas raised require a lot more analysis and discussion. Today, EFF shared our thoughts on the proposal at the SCCR meeting:
The Electronic Frontier Foundation welcomes the GRULAC paper on copyright in the digital environment. Although there are parts of the analysis that we do not agree with, it is clearly a topic long overdue for discussion, and the paper takes a refreshingly clean slate approach to the challenges that the transition to the digital environment poses to copyright owners and users. For example, the paper frankly acknowledges that the default assumption that reproduction of works requires the permission of the copyright owner is a poor fit for the digital environment, given that on the Internet reproduction is a routine and integral feature of the network.
Some of the possibilities to address this disconnect, such as replacing the requirement for permission with a duty to pay equitable remuneration to copyright owners, are interesting topics for discussion, though we would have to ensure that such solutions did not introduce their own problems. In any event, EFF observes with dismay that many such avenues for creative solutions to the digital disconnect may be foreclosed by plurilateral agreements that some members have entered into outside of WIPO, such as the Trans-Pacific Partnership, and this in itself should be a serious concern for this committee.
Leaving that aside, what other policy options pointed to in the GRULAC paper stand out? We believe that a good place to start would be to look at the adequacy of copyright limitations and exceptions in the digital and online environment, and in particular, the extent to which open, flexible and general copyright exceptions such as fair use are a more appropriate fit than closed list exceptions. The need for stronger protection of the rights of users to bypass Technological Protection Mechanisms to access and use lawfully acquired content is also a vital topic of concern.
As to the issue of improving the transparency of payments made to artists by labels and online platforms, we consider that there may be merit in addressing this also, but we would encourage the committee to look creatively at technical solutions to this problem, rather than leaping to the assumption that heavy regulation of platforms may be required, as this may create more problems than it solves. For example, yesterday the recording artist Imogen Heap spoke at an EFF side event in Room B, to talk about how blockchain technology might be useful in developing a global music database such as that suggested in the GRULAC paper.
In conclusion for now, we thank GRULAC again for its most stimulating contribution and we look forward to participating in ongoing open-ended discussions of the committee on the issues that it presents.
As frustrating as the long-winded discussions at WIPO often are, our ability to participate in them is a key advantage that this multilateral forum has over the secretive, closed-door negotiations over copyright that take place in trade negotiations such as the Trans-Pacific Partnership. (During the only closed-door session of the week, we were still permitted to listen in, even though we weren't allowed to contribute or share notes.) If future global norms around copyright in the digital environment are to be discussed—and there is an urgent need that they should be—we look forward to participating in that process in this relatively open, multistakeholder format.
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