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

Wed Feb 3 10:00:04 2010

Thanks for this article, Thiru

About national legislations affecting users' rights, it might be
interesting watching the way EU countries are implementing "Directive
2007/65/EC of the European Parliament and of the Council of 11
December 2007 ... on the coordination of certain provisions laid down
by law, regulation or administrative action in Member States
concerning the pursuit of television broadcasting activities" (1). Not
directly a copyright directive, but with copyright enforcement
aspects.

In Italy, the bill (2) towards its implementation,  presently
discussed by parliament, would be a disaster   for Web use of
multimedia if it passes: see "Is Italy the next China?" by
Massimiliano Trovato
<http://surprisinglyfree.com/2010/02/01/is-italy-the-next-china/> and
- focusing on accessibility and education implications - my "Online
Multimedia: Italian Imperialism"
<http://etcjournal.wordpress.com/2010/02/01/online-multimedia-italian-imper=
ialism>.
Let's hope the Italian Senate will block it. But what about other EU
countries' implementations of that European directive on multimedia
services?

Best

Claude

(1) Presentation  of  Directive 2007/65/EC:
<http://ec.europa.eu/avpolicy/reg/avms/index_en.htm> - text of the
directive <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=3DOJ:L:200=
7:332:0027:01:EN:HTML>

(2) See Manlio Cammarata's synoptic document where the changes that
will be introduced if the bill passes are in red:
<http://www.mcreporter.info/documenti/dlgv05_177b.htm> and the
"reading notes" about the bill of the Camera dei deputati (lower
house): <http://documenti.camera.it/Leg16/Dossier/Testi/TR0163.htm>.

On Wed, Feb 3, 2010 at 2:00 AM, Thiru Balasubramaniam
<thiru@keionline.org> wrote:
> http://www.ip-watch.org/weblog/2010/02/02/copyright-2010-between-an-enfor=
cement-gold-standard-and-stronger-limitations/
>
> 2 February 2010
> Year Ahead Copyright 2010: Between An Enforcement =E2=80=9CGold Standard=
=E2=80=9D 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. =E2=80=9CAre the commitments of negotiators to transparency real =
or a
> strategic move?=E2=80=9D asked New Zealand=E2=80=99s Labour Party politic=
ian Clare
> Curran before the meeting in Guadalajara.
>
> =E2=80=9CWe will have a hearing on ACTA presumably in March,=E2=80=9D sai=
d 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: =E2=80=9CIf there is confidentiality, I will respect it and=
 I
> have to respect it.=E2=80=9D It is impossible, he said, to change the ter=
ms
> 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
> =E2=80=9Cduly informed,=E2=80=9D 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 =E2=80=9Cgold standard=E2=80=9D - there are growing concerns in academ=
ic 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 =E2=80=9Cwe cannot go on and on tightening the screw.=E2=80=9D
>
> 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=E2=80=99s 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 =E2=80=9Cbalanc=
ing
> copyright with access and usage rights and consumer protection its
> declared goal,=E2=80=9D Grassmuck wrote, but also said that the reform wo=
rk
> 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. =E2=80=9CThere certainly are concerns that the delay results f=
rom
> industry lobbying against the reform at the highest levels,=E2=80=9D Gras=
smuck
> 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. =E2=80=9CCopyright,=
 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=E2=80=99s say in the library, I am often dependent on the
> contracts that the library has with private companies, too.=E2=80=9D
>
> 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. =E2=80=9CWhat I deal with is contracts,=E2=80=9D he s=
aid, warning
> that =E2=80=9Cin most EU member states contracts effectively trump copyri=
ght
> laws. Limitations and exemptions are irrelevant, if there is a
> contract that says otherwise.=E2=80=9D Libraries are contracting with pri=
vate
> 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=E2=80=
=99s
> book project, said she liked competition. Regulation for orphan works
> is on the EU Commission=E2=80=99s 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 =E2=80=98three strikes and you=
=E2=80=99re
> out=E2=80=99 approach against copyright infringers.
>
> Or might there be rights owners that think what Joe McNamee, political
> expert for European Digital Rights (EDRI), predicts: =E2=80=9Cyou can for=
get
> 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.=E2=80=9C 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.
>
> ------------------------------------------------------------
>
>
> Thiru Balasubramaniam
> Geneva Representative
> Knowledge Ecology International (KEI)
> thiru@keionline.org
>
>
> Tel: +41 22 791 6727
> Mobile: +41 76 508 0997
>