[A2k] IP-Watch: Year Ahead Copyright 2010: Between An Enforcement 'Gold Standard' and Stronger Limitations

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/2010/02/02/copyright-2010-between-an-enforce=
ment-gold-standard-and-stronger-limitations/

2 February 2010
Year Ahead Copyright 2010: Between An Enforcement =93Gold Standard=94 And
Stronger Limitations
Available for IP-Watch Subscribers
By Monika Ermert for Intellectual Property Watch @ 9:58 am

The secretly negotiated Anti-Counterfeiting Trade Agreement is now in
centre stage in the global debates around copyright, as is a
prospective new international treaty on access to online books for the
visually impaired which comes as part of a broader push to clarify
limitations and exceptions to copyright. But some are asking, why all
the debate and new efforts in national and international copyright
legislation when copyright is increasing being exchanged for
contractual relationships?

ACTA may bring with it the punishment of internet denial for
infringement that has been fiercely discussed in several European
countries and adopted in France, New Zealand, South Korea, and Taiwan.
ACTA is seen by critics as another push by governments backing their
rights holders in the eternal wars over copyright.

But on the other side, there is much hope that a new treaty for the
visually impaired will be negotiated at the World Intellectual
Property Organization (WIPO). Open-ended consultations on outstanding
issues were promised to be finalised over the early months of 2010 by
the WIPO Standing Committee on Copyright and Related Rights.

ACTA and Enforcement

The seventh round of negotiations for ACTA ended after four days of
talks in Guadalajara on 29 January. Round eight is expected for April
in Wellington, New Zealand. If you ask the negotiators, they will tell
you that they expect to get this done in 2010.

There seems to be a sense of urgency to complete ACTA just at the
moment when a growing list of members of national parliaments from the
United States (Congress), the United Kingdom and Germany are asking
for access to the ACTA documents and while the first small street
protest was organised outside the meeting place in Guadalajara,
Mexico. =93Are the commitments of negotiators to transparency real or a
strategic move?=94 asked New Zealand=92s Labour Party politician Clare
Curran before the meeting in Guadalajara.

=93We will have a hearing on ACTA presumably in March,=94 said EU Member
of Parliament Alexander Alvaro, who has questioned the European
Commission on the transparency, timeline and scope of the agreement.
The Commissioner Designate for International Trade, Karel de Gucht,
said clearly: =93If there is confidentiality, I will respect it and I
have to respect it.=94 It is impossible, he said, to change the terms
during the negotiations.

While he promised that he would make sure Parliament - which has now
to agree to ACTA under the newly in effect Lisbon Treaty - would be
=93duly informed,=94 the Parliament which just engaged in its first fights
over its new competencies with the European Council and Commission
might not take that bite, said Alvaro.

The Commission, meanwhile, is for 2010 preparing to put forward a
follow-up to the IP enforcement directive (IPRED), as a draft text on
IPRED II for criminal sanctions is expected to be put forward in May
or June, immediately after the evaluation report on IPRED due in April.

Rethinking Limitations and Exceptions

While there is a big push for ACTA - which International Trademark
Association President Richard Heath from Unilever said should be set
as =93gold standard=94 - there are growing concerns in academic circles.
Annette Kur, IP law expert at the Max Planck Institute of Intellectual
Property and Tax Law, said there is a feeling in the expert community
that =93we cannot go on and on tightening the screw.=94

Talks at WIPO about a treaty to grant exemptions for blind and
visually impaired people have shown promise, but might also slow down
other initiatives for a re-balancing of copyright that academics were
hoping for. The implementation of other elements of the WIPO
Development Agenda would be a good counterpoint against the current
wave of maximal demands in rights protection, according to Kur.

But proponents say there is gathering momentum for the visually
impaired exception now - including a draft treaty text, which does not
exist for any other issue in the committee - and to wait risks losing
the chance and gambling on an uncertain and potentially very lengthy
process.

National Copyright Reforms and FTAs

Some ongoing national copyright legislative reforms echo the demand
for the re-balancing, with Brazil=92s copyright reform the most far-
reaching of these, as copyright law expert Volker Grassmuck recently
wrote. The Brazilian law could be the first copyright law =93balancing
copyright with access and usage rights and consumer protection its
declared goal,=94 Grassmuck wrote, but also said that the reform work
might be stopped by the Brazilian election campaign in 2010. For
several months, a final draft has been announced, Grassmuck told
Intellectual Property Watch, yet every time publication has been
postponed. =93There certainly are concerns that the delay results from
industry lobbying against the reform at the highest levels,=94 Grassmuck
said.

Indian copyright reform (that like the Brazilian effort started in
2005) also has made a reference to amendments to secure limitations
and exceptions for the visually impaired, but is more conservative
when it comes to other issues. It more closely follows the line of
harmonising its regulation to the international treaties, namely the
WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.

The reform effort just got a new push when the Indian Copyright office
published a final draft on 24 December. Pranesh Prakash, programme
manager at the Center for Internet and Society in Delhi, said that the
introduction of technical protection measures and the protection of
these by law would bring a big change in India.

Prakash said he is afraid that intermediary liability is on the
political agenda of the Indian Copyright Office. This would make sense
if one considers the negotiations for a free trade agreement between
India and the EU that can be expected to include a lengthy section
covering intellectual property, copyright and online service provider
liability similar to the one in the EU-Korea FTA. The EU-Korea FTA was
to be voted on by EU Parliament this week; the EU-India FTA is
expected to be finalised in 2010.

Copyright reforms are also under way in Canada, Hong Kong, Serbia, and
in the United Kingdom the digital economy bill is under heavy
discussion because of far-reaching regulatory power planned for UK
communications regulator OFCOM. In Germany, a third round of copyright
law reform is on the agenda with private broadcasting companies,
publishers and the music industry asking for better copyright
protection.

Contracts Instead of Copyright?

But while these reforms and treaty and FTA negotiations are ongoing,
there is also another trend seen by experts and users of copyright,
said Jeanette Hofmann, an internet governance expert. =93Copyright, this
moral beacon, more and more ceases to play a role in practical terms.
As an author I have to live with a complete buy-out and as a copyright
customer, let=92s say in the library, I am often dependent on the
contracts that the library has with private companies, too.=94

Benjamin White, head of the intellectual property at the British
Library, has asked the question of whether copyright is still relevant
in the digital age. =93What I deal with is contracts,=94 he said, warning
that =93in most EU member states contracts effectively trump copyright
laws. Limitations and exemptions are irrelevant, if there is a
contract that says otherwise.=94 Libraries are contracting with private
companies that could help them to fund digitisation projects, but
would then regulate access to these objects.

White said while he credits Google for getting the discussion started
on how digitisation could be funded, he also wants to see a debate on
whether people are comfortable with one private company having access
to million of books. The Google book settlement and contracts with
libraries in the US and other countries in effect could be seen as a
monopoly being created around orphan works and a way to control access
to millions of works for years. The EU Commissioner Designate for the
Digital Agenda Neelie Kroes, when asked what she thought of Google=92s
book project, said she liked competition. Regulation for orphan works
is on the EU Commission=92s work agenda.

Competition and more business offers were also said by Swiss IP lawyer
Rolf Auf der Maur to be the focus of the music industry instead of
enforcement. Auf der Maur, regular panellist at Midem (the largest
annual conference of the music industry), said acknowledgement was
trickling down in the music industry that collective licence models,
for example licensing music to internet service providers, or even
thoughts about flat-rates might be better than only focussing on
enforcement.

The major labels are interested in ventures like streaming service
Spotify. Paul Brindley, co-Founder of digital music expert consultant
Music Alley, said government funding for digital music service models
could be expected from the British Technology Strategy Board.

Yet this message could sound overly optimistic given that the music
industry is the party heavily promoting a =91three strikes and you=92re
out=92 approach against copyright infringers.

Or might there be rights owners that think what Joe McNamee, political
expert for European Digital Rights (EDRI), predicts: =93you can forget
about enforcement of copyright, if you focus on copyright and do not
get the right content in the right formats available to consumers then
you will not solve the problem.=93 Innovation would be blocked, he
warned, and ever stronger enforcement regulation would finally lead to
a lot of collateral damages in civil rights.

For librarian White there also is an urgent need for a change. He said
regulators need to create clear rules on access in the digital world
like are set out in the Brazilian copyright reform proposal. White
said he was hoping that WIPO, whose secretary general, Francis Gurry,
had acknowledged the challenge of solving the relationship between
private contracts and copyright, would act on the issue of access.
Will that happen in 2010?

Monika Ermert may be reached at info@ip-watch.ch.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


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