Innovation Policy Post

From July 16th to 25th, the world’s copyright decision-makers met, as they do twice each year, at the World Intellectual Property Organization (“WIPO”) in Geneva.

Are you sleeping yet?

It sounds dull - and these meetings can be - but they may prove to be the key to ensuring that the worldwide copyright system’s legal architecture can remain relevant in the digital age. The result of the work going on in Geneva, which will culminate in important international agreements in the next couple of years, will have ramifications far beyond the conference rooms in which they take place.

Copyright allows each country to create the space for innovation and access for specific use cases that the regular, economic exploitation of rights does not facilitate. The USA has many legal provisions of this kind, developed over the last two centuries.

As the Internet has become the portal of access for information globally, the application of the core principle of the copyright system - that creators and the middlemen who commercialise their works have the right to prevent others from copying them - has collided with the Internet and its borderless, frictionless ability to allow an endless number of perfect copies of anything which can be made digital. At the same time, the services the Internet makes possible allow an almost infinite number of new uses of copyrighted material, many of which result in new creative outputs which rival their sub-component works in creative value. Other services and tools, such as search engines and mass digitisation facilitate revolutions in teaching, discovery, and collaborative invention which have an almost unlimited social and economic potential - but which the copyright system’s older business models - and the wealthy and powerful incumbents that rely upon them - have not yet learnt to embrace.

We’re all familiar with the conundrum of seeing recordings in iTunes stores in countries other than our own which we want but cannot buy because they are not on sale in our national store. Likewise, anyone who travels sees different books on bookshelves, whether digital or traditional. These scenarios are a function of the fact that copyright is implemented nationally: the owners of those recordings and books license them for public sale country-by-country, and the result is that smaller countries or language groups have access to a smaller proportion of the world’s creative output because the overhead of this country-by-country licensing is substantial: a legacy of the non-digital past that is frustrating access for everyone in the digital age. 

While it is irritating to find you cannot legally buy a book or recording you want while others can, this becomes a serious social and even humanitarian problem when it affects access by much smaller subgroups of people, such as access to books by visually impaired people.  

These meetings in Geneva seek to address this issue, and others, by adopting agreements between governments to ensure that access for key groups like visually impaired persons, and for essential, public goods-related functions like libraries, research institutions, and archives, can work seamlessly across borders.

It is estimated there are more than 250 million visually impaired people worldwide, 30 million of which are entirely blind - and that means there are many countries where it is not economically viable for publishers to produce the special versions of books that visually impaired persons require in order to be able to read them routinely because of the cost of creating accessible versions and the relatively small number of people who will be able to individually pay for them. The key, then, is allowing accessible versions in one country to freely travel across borders to visually impaired persons in other nations.  Right now, the national implementations of copyright legally don’t make this easy - in fact, frequently they make it impossible - and the result is that less than 5% of the world’s books are available in versions the blind can read.

This same problem affects other communities like libraries, educators, and researchers; the symptoms of how this ‘national square peg in a digital round hole’ works are different but the underlying problem is the same.

You would think that the Book Famine, at least, would be an easy problem to solve - but you would be wrong. Those who own the creative works that the blind want to access are reluctant to see international ‘carve outs’ to their rights. They worry that allowing the blind rights to use material worldwide without their consent will set a precedent that will ultimately impact their ability to monetize the rights they control more broadly.

Right now the European Commission, on behalf of the EU member states, and the government of the USA, are in favour of an international understanding but want it to be ‘soft law’ - not obligatory - to avoid the precedent they don’t like. Pretty much the entire rest of the world wants binding commitments to ensure the problems the blind face are comprehensively solved.

I think there’s a good argument that the negative precedent some stakeholders see is actually the wrong one. For me, and for CCIA, the precedent that these negotiations seek to create is that copyright’s national implementation can evolve to work with the borderless digital present and future, that when problems like the needs of visually impaired persons are not resolved by traditional copyright market operations, the international community can ensure that the flexibility inherent in the international framework provides an answer.

CCIA has been actively engaged in this question since it began several years ago, arguing that:

• It is unconscionable to allow the problem faced by visually impaired persons to continue; there’s a moral obligation upon all stakeholders in copyright to ensure this problem is solved definitively, and;

• Copyright’s relevance and legitimacy is at stake, for the public will not accept a copyright system which continues to prevent visually impaired persons from having access to all but a tiny fraction of the world’s books. 

Our member companies understand these issues because they also face them on a daily basis. We’ve all seen the headlines where copyright owners go to court to try to prevent search engines’ use of their material so the public can find it - there are many famous cases where newspapers have objected to the full-text indexing of their online publications so that search engines can provide links to those stories and short excerpts of them to searchers, for example. 

We’ve commissioned studies for both the U.S. and Europe which have demonstrated that the kinds of ‘fair use’ access like this example which used to be economically trivial in the pre-digital world are now generating more jobs and economic activity than the rights in copyright when licensed normally - an incredible irony, when you think about it.

For all these reasons, we’ve consistently supported a binding, legal obligation upon the world’s governments to ensure that the blind have the access they need. You can find the speeches we’ve made at WIPO on this subject here.