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Copyfail: Why WIPO Can't Fix Copyright

DEEPLINKS BLOG
December 8, 2015

It has been obvious for decades that copyright law is ill-matched for the opportunities and challenges created by the Internet. It's been equally obvious, however, that sensible copyright policies face huge practical barriers, in large part because few are willing to challenge the default assumption of copyright law that every time a copy is made the rightsholder's permission is required. That assumption makes no sense in the digital age, but it's hugely difficult to dislodge, especially at the international stage. 

Take the 1996 Internet Treaties of the World Intellectual Property Organization (WIPO). WIPO recognized the copyright mismatch back when the commercial Internet was still in its infancy, and acting with uncharacteristically lightning speed, moved to address it through a Copyright Treaty and Performances and Phonograms Treaty. But for the most part the changes introduced by those treaties only made things worse. That's because the measures they introduced—such as legal protection for Digital Rights Management (DRM)— merely papered over the real problem; namely the disconnect between a legal regime that enforces a monopoly on the right to copy, and a global network in which copying is a routine and integral feature.

Now fast forward to 2015. This week, another biennial meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR) is being held in Geneva, where delegates continue to address the mismatch between copyright law and the online and digital environment. Most of the measures being considered are less ambitious than those undertaken in 1996, such as possible resolutions on copyright limitations and exceptions for libraries, archives and educational uses, though there's discussion of a future treaty for broadcasters and cablecasters (about which we'll be writing more later in the week) that would mark a more significant shift.

Against this background of inchmeal progress on these long established lines, it was almost startling to see some genuinely big ideas.  Last week, the Group of Latin American and Caribbean Countries (GRULAC) introduced a new Proposal for Analysis of Copyright Related to the Digital Environment. The proposal builds on previous work done at WIPO, including a landmark report from 2003 on Copyright Limitations and Exceptions in the Digital Environment that fed into a separate proposal on limitations and exceptions that four of the same GRULAC countries made in 2008.

The difference between the earlier proposal and this new one lies in its breadth. Rather than looking only at limitations and exceptions, or bolting on new legal frameworks onto copyright law such as protection for DRM or a broadcasters right, GRULAC proposes a broader study of how copyright could be made to work in the online and digital environment.

Much of the GRULAC document deals with copyrights in music, an area that probably most clearly exemplifies the deficiencies of copyright law for users and creators in the digital age. With respect to the much-contested question of streaming rights and revenues, for example, it suggests that online businesses and the music industry should be more transparent in their licensing and revenue sharing practices, and that the share of revenue received by music labels is disproportionately high compared with what composers and performers receive. 

But the really more interesting parts of the paper address the larger false assumptions behind copyright law. For example, the report notes the unsuitability of the concept of “reproduction” in the digital environment, given that often “reproduction is only an accessory act inherent to the technological process used to make the work accessible to users.” It also identifies the first sale doctrine as a concept that doesn't translate cleanly into the digital environment, given that a digital “sale” actually results in a new copy being created, rather than in the transfer of an original object.

A Compulsory License for the Internet?

The “solution” that we too often hear to this mismatch between copyright law and the reality of the online and digital environment is simply “more enforcement,” such as criminalization of infringement, seizures and blocking of websites, and policing of users by their ISPs. Such measures don't work to stop infringement, but instead hurt ordinary users and reduce their respect for copyright law, while leaving its underlying deficiencies unaddressed.

The GRULAC paper, thankfully, doesn't make that same error, but makes a more intriguing suggestion—one that we have rarely heard in this debate, and never from rightsholders. It is suggested that rather than requiring rightsholders to give their permission for copyright works to be made available online, anyone wishing to put works online could do so under a compulsory license, provided that they paid equitable remuneration to the creators. This is essentially the way that terrestrial radio works today; radio stations benefit from a compulsory license that gives them access to a vast musical repertoire, and in return songwriters and publishers (and, in other countries, also performers) receive a royalty for airplay of their songs at a regulated rate.

To be clear, we don't endorse the proposal in this form. It would require many changes to national laws and collecting arrangements. New deals would have to be struck, and the balance of power between rightsholders, creators and users would shift in ways that might not benefit everyone. Many musicians don't love collecting societies that currently exist, and will have legitimate concerns about extending their reach. And so on.

That said, it's refreshing that the proposal was made at all. Indeed, for many years, EFF itself advocated for a licensing scheme for P2P music sharing, albeit one that was voluntary rather than compulsory. A consensus license for online content could eliminate many of the barriers that have made online streaming services so fragmented and inefficient. By preventing many innovative firms from creating global legal content offerings, these same barriers have also stoked the causes of widespread copyright infringement, so some kind of licensing arrangement could be a win-win for users and creators alike. It would be quite a game changer if WIPO could turn this proposal into real reform.

But it almost certainly can't. Many of WIPO's most powerful members have already signed away their ability to make such significant changes to copyright law, in other agreements outside of WIPO. In particular, the Trans-Pacific Partnership (TPP) locks the United States, Canada, Mexico, Japan and eight other countries into an outdated copyright law template that requires the authorization of authors (Article 18.59), producers and performers (Article 18.62), before making their works available online. So that's that.

The GRULAC proposal is not the last word on this topic. There's a lot we don't agree with in the document (in particular, it takes a much too desultory view of the prospect of extending copyright limitations and exceptions that allow for bypassing of DRM), but it does correctly state that “a more embracing analysis” of the shortcomings of copyright law in the digital age is needed. This ought to involve the freedom to think about big picture changes such as the idea of new compulsory licenses for the use of content online. The fact that such discussions may have been precluded by the TPP is a further serious indictment of that trade agreement's anti-democratic, captured, and backwards-looking process.

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