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At last week’s Standing Committee on Copyright and Related Rights (SCCR), organised by the World Intellectual Property Organisation, many delegates asked for educational materials to be made copyright free. 

This was presented as a solution to several learning and development goals. Whilst the goals are noble (and shared by publishers and authors) their suggested solution won’t work. Here’s why.

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Days 1 and 2

Sometimes it happens that when you hear a lot of positive comments about an event. Your expectations rise, and you get disappointed once you see the reality. 

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It’s over. There were a few last-minute huddles of regional groups and Member States to thrash out possible compromises on agreed wording, but the 36th meeting of the Standing Committee on Copyright and Related Rights (SCCR) came to a close this afternoon.

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Day 4 of SCCR is the second day focussing on the Draft Action Plans (DAPs) and Exceptions and Limitations (Es and Ls, check out our jargon buster). The day started out with another round of comments from groups, Member States and observers and featured the same the mix of opinions as yesterday. 

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After almost a complete day yesterday with the plenary chamber empty because of ‘informals’ on the Broadcasting Treaty, there was more action this morning. Chairman Daren Tang recognised yesterday’s positive momentum on the Broadcasting Treaty before moving discussions on to exceptions and limitations and the proposed draft action plans (DAPs). 

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Day 2 of this 36th session of the WIPO Standing Committee on Copyright and Related Rights started with an almost empty plenary room, save a handful of NGOs, as the Members States continued their ‘informals’ from last night, with the NGOs following the discussions from the plenary room, without being able to relay them to anyone. 

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The 36th session of World Intellectual Property Organisation’s Standing Committee on Copyright and Related Rights (check our jargon buster here) kicked off today in Geneva. As well as the 191 Members States who can attend, there are about 60 NGOs registered and participating (including the IPA, STM, IFRRO and others from the Creative Sector Organisations group that IPA coordinates). 

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The WIPO SCCR meets twice a year. But what is WIPO? Who is Darren Tang? IPA will be posting daily blogs from the marathon five-day meeting. Acronyms will be flying. You can read our jargon-buster below. What can you expect from next week’s meeting?

  1. Politics: With 191 Member States, this is international multilateral diplomacy at its finest. And slowest. The agenda has been virtually static for some time and what constitutes ‘progress’ can be difficult to discern for unseasoned WIPO-watchers. Developed and developing nations have differing agendas when it comes to many aspects of IP policy and so there is always horse-trading. Draft Action Plans (DAPs) have been recently presented well ahead of the meeting so progress is possible but is it in the direction we hoped for?
  2. Broadcasting: Point 1 on the agenda (as it has been for some time), the Broadcasting Treaty proposal was launched way back in 1996. A diplomatic conference to finalise the treaty is starting to look like a pot of gold at the end of the rainbow. IPA believes that concluding discussions on the Broadcasting Treaty would be a good thing if other Creative Sector Organisations (CSOs) concerns can be ironed out. 
  3. Exceptions and Limitations (Es and Ls): Discussions on Es and Ls are three-pronged in nature: libraries and archives, educational uses, museums. The potential impact on the livelihood of publishers (as demonstrated by what happened in 2012 in Canada) is huge. It is vital that the international publishing community has a voice in this forum to defend copyright as the foundation of the industry and efficient affordable licensing as the solution to many of the needs in both developed and developing Member States.

Our first WIPO blog will be out on Monday evening. You can refresh your memory of what happened last time here.

 

JARGON BUSTER

The acronyms

WIPO: The World Intellectual Property Organisation. A self-funded agency of the United Nations with 191 Member States (MS) dealing with all types of largely intellectual property (IP). Most of the self-funding comes from income from the registration of international patents. Its work on copyright is mainly normative (i.e. treaty making) but also includes the guided development of national law. The Berne Convention, the WIPO Copyright Treaty (WCT) and the Marrakesh Treaty are examples of WIPO instruments.

SCCR: The Standing Committee on Copyright and Related Rights, which meets twice a year, usually in May and November,  for 5-day meetings.

Es and Ls: Exceptions and Limitations (to copyright), currently a standing agenda item of the SCCR.

CSO: Creative Sector Organisations – a loose grouping of organisations from the publishing, music and film and other sectors, coordinated by the IPA.

ABC: The Accessible Books Consortium. A formal stakeholder platform primarily financed by WIPO to develop the availability of published works in accessible formats around the world. The board consists of representatives of copyright holders and print disabled communities. IPA is an active and founding participant.

Other WIPO committees are the Committee on Development and Intellectual Property Rights (CDIP), Intergovernmental Committee (IGC) on Intellectual Property (IP) and Genetic Resources (GR), Traditional Knowledge and Folklore (TK), which also encompasses Traditional Cultural Expressions (TCE), as well as the Advisory Committee on Enforcement (ACE) and the Committee on WIPO Standards (CWS).

 

The people

Francis Gurry: WIPO Director General (DG) since October 2008. Worked for over 20 years in the WIPO secretariat before becoming DG.

Sylvie Forbin: WIPO Deputy Director General (DDG) since 2016. Her early career was as a French diplomat. She joined WIPO after 15 years as Senior Vice President for Public and European Affairs for Vivendi.

Darren Tang: Chairman of the SCCR, CEO of the Intellectual Property Office of Singapore.

 

The WIPO groups

WIPO Member States are also organised into groupings (either regional or economic):

  • Africa Group 
  • Asia-Pacific Group (APG)
  • Central Asian, Caucasus and Eastern European Countries Group (CACEEC)
  • Central European and Baltic States Group (CEBS)
  • Group B (Developed countries (including North America, Western Europe, Autralia New Zealand, Japan, Turkey and Israel), so-called because they use meeting room B).
  • Latin American and Caribbean Countries Group (GRULAC)

 

The jargon

The Broadcasting Treaty: Negotiations started in 1996 (following adoption of the WIPO Internet Treaties) to protect broadcasters signals in the light of new technologies. Over two decades later discussions are ongoing.

Informals: Off-site meetings used to resolve points of contention (e.g. language in a proposed text) away from the stiffness of the plenary chamber. They take place in a separate chamber on the WIPO campus and are strictly for country delegations only. NGOs are not invited, but can follow the audio feed from the plenary chamber provided they do not report publicly what is said.

Side-events: Events and presentations organised by groups or stakeholders during the breaks around the official SCCR agenda.

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The uncensored book fair of Iranian independent publishers

Every year, early in May, Iranian publishers have the busiest time of the year with the Tehran International Book Fair being held for a period of ten days in the capital. All publishers - except those who have been banned due to previous violations - gather from across the country. 

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At this year’s Leipzig Book Fair, IPA’s Freedom to Publish Committee chairman, Kristenn Einarsson, joined Hungarian publisher and IPA 2018 Prix Voltaire nominee, Tamas Miklos, as well as German publisher Christoph Links to discuss Europe and Freedom of Expression. Freedom to Publish was a visible issue at the Congress with the Börsenverein promoting its “Für das Wort und die Freiheit” campaign and putting a giant #FreeGuiMinhai hashtag on the central staircase.

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While the conversation didn’t stop at the borders of Europe it was interesting to hear that some freedom to publish challenges are closer to home than many Europeans think.

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Why should publishers care? A group of outstanding speakers tried to answer this question during the session I had the honour to chair on “Social Responsibility of Publishers”.

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I had the honour to chair a session on the second day of the Congress entitled : " Creating readers of the future". My panelists came from diverse backgrounds and represented almost half of the global publishing industry. All of them experts in the children's book market, I was curious to know whether children in Brazil had better access to books than children in China or India or vice versa. 

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The final day of the Congress started with a detailed look at 'Book Markets in India'. Emma House, Deputy CEO of the PA UK, spoke about the size and importance of each publishing sector and the variety of languages (India has 22 official languages but Hindi and English make up 90% of publications). André Breedt of Nielsen noted, educational publishing dominates the Indian market. Local publisher Himanshu Gupta (S Chand) claimed that Indian publishers are embracing digital as an enabler for hybrid learning. He was supported by Vikas Gupta of Wiley, who called on publishers to become platforms for smart digital content.

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After yesterday's intense high-level discussions about the future of publishing, copyright and freedom to publish, the second day began with a series of panels about the nitty gritty of publishing and finished with an emotional roller coaster and two standing ovations.

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Today was the first day of the 32nd edition of the International Publishers Congress, and this year it is hosted in New Delhi, India. The agenda of the congress is a promising agenda with a long list of panels on all important matters to publishers of this day, with sessions on the future of publishing, copyrights, CSR, and so much more. There is a lot of learning to be gained in such a conference, but here are my 5 highlight lessons from today's sessions.

  1. The publishing industry seems to shift interest every decade. In the 90s the focus was on marketing and sales, in the 00s the focus shifted to logistics and business development. However, one can only hope for the new shift in this decade to be towards authorship and better management of intellectual property. 
  2. Whereas IQ was developed as a concept to measure human's intelligence, and then EQ was formed as a way to measure emotional intelligence. Nowadays as publishers, we need to cultivate CQ, Cultural Intelligence, to learn about the differences and similarities between cultures and religions in a globalized and diversified economy like ours today.
  3. The future of publishing will not rely only on a great content curation but will also require strong analytical skills to understand our readers and what works.
  4. In the digital age we're in, the 5 biggest content publishers are no longer book publishers, but rather the tech platforms: Google, Facebook, Amazon, Apple, and Microsoft. And with them operating a completely different business model that doesn't rely on intellectual property(IP), the only way we can protect our IP is by talking with them directly about it rather than debating among ourselves how will we protect it from them.
  5. The new digital platforms are a product the new world economy with a whole new business model that doesn't come with a legacy that weighs them down as would be the case for traditional analog businesses that are trying to adapt to the new economy. 
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A full 26 years after the previous IPA Congress in New Delhi, we're back with a great programme. This will be the first of our daily blogs over the next 3 days.

The day started with a traditional candle lighting ceremony, before the Minister for Science and Technology, Dr Harsh Vardhan, arrived to launch the day's proceedings. IPA President Michiel Kolman gave a keynote address where he called on the publishing industry to stop being defensive and to shout about the industry's many successes, sentiments that were echoed by FIP President, NK Mehra.

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Just 4 days to go until the beginning of this year’s International Publishers Congress, back in New Delhi after a 26-year break.

The full programme is now online and is packed with interesting discussions on all aspects of the publishing industry. 

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Just recently, one year after being elected Vice-President of IPA, I was pleased to celebrate another IPA General Assembly during the Frankfurt Book Fair. Read the annual report here.

This has allowed me to reflect upon my exciting first year as Vice-President, where I had the opportunity to see firsthand and to collaborate in all the work we do on behalf of publishers around the world. 

While supporting Michiel Kolman’s presidency, I had the chance of travelling to many different cities and visit our member publishers all over the world. Michiel did of course his own share of traveling, visiting, among other places, the USA, China, Japan, the UAE, Russia and many European countries. At the same time, our Secretary General, José Borghino, supported both of us also doing a lot of travel, visiting among many other places, Canada, Argentina, Georgia, China, Korea, the USA, many European cities and most recently my home country of Mexico.

This way we were able, between the three of us, to represent IPA and defend publisher’s interests in many places and events throughout the year. As ever before, our main pillars are protection of copyright and promotion of freedom to publish.

Our collaboration with the World Intellectual Property Organization (WIPO) is highly important. Throughout the year, I visited IPA’s and WIPO’s offices in Geneva on two occasions and in addition represented IPA at three Latin-American WIPO workshops, held in Mexico City, San José, Costa Rica and Bogotá, Colombia. At all of them I spoke to different regional authorities about the importance of copyright and the risks of introducing broader copyright exceptions.

The Costa Rica workshop was for awareness building of the Marrakesh Treaty, where I had a chance of interacting with people from the blind and visually impaired (VIP) community and learn from them. Among many other things, I learned that less than 10% of the world’s published works are accessible for VIP. There is a very important opportunity for us as publishers, to help change that through the Accessible Books Consortium, a WIPO initiative where IPA and other NGOs participate actively. We can and we should make a difference for millions of VIP around the world. As our former president, YS Chi, has said: ‘Publishing in accessible formats is not just a moral decision, but a good business decision overall.’  

In November I had the chance of participating in a large IPA delegation that attended WIPO’s Standing Committee on Copyright and Related Rights (SCCR) meeting in Geneva. We had very productive meetings with country ambassadors to Geneva and their representatives, with WIPO officials and with representatives of other creative sectors NGOs. In these days when copyright is being constantly challenged, IPA’s strong presence at such meetings is fundamental, because it allows us to explain the importance of a robust copyright system that fosters and protects the creation of new and innovative works.

Bogotá and Lima were very early on the travel schedule for me, and I was able to talk to our members there, the Cámara Colombiana del Libro and the Cámara Peruana del Libro, to discuss the work they are doing on the ground on behalf of their members and how IPA could be of help.  

Later during the year, I visited New Delhi and enjoyed the hospitality of our colleagues at the Federation of Indian Publishers, while discussing preparations for our IPA Congress in February 2018, about which I am really excited. I also visited the facilities of our magnificent venue hotel, the Taj Diplomatic Enclave. I learned many things about India, including that it is a country with rich cultural traditions and ancestry and, at the same time, the fastest growing economy in the G-20. 

During this visit, I also went to Dhaka, where I was able to see firsthand all the work done by our new full member, the Academic and Creative Publishers Association of Bangladesh. Together with the executive committee of ACPAB, we had a very constructive conversation with Bangladeshi Minister of Cultural Affairs, Asaduzzaman Noor, especially about freedom to publish. 

I had the opportunity of participating in very fruitful meetings between IPA’s and FEP’s leadership in Brussels and in Geneva, as well as visiting the offices of our German member, the Börsenverein des Deutschen Buchhandels, in Frankfurt.   

There were many book fairs on my itinerary during this year. London, Buenos Aires, Göteborg, Madrid, Frankfurt and Guadalajara, where I had meetings with different IPA members to strengthen our ties and to discuss ways of collaboration.  

In London we had meetings of all IPA committees and there was the highly interesting Charles Clark Lecture on copyright which the IPA co-sponsors. In Buenos Aires our Secretary General and I had meetings with our member, the Cámara Argentina del Libro, as well as with the other Argentinian publishers association, the Cámara Argentina de Publicaciones. We also met with the Argentinian Minister of Culture, Pablo Avelluto, who used to work as a publisher at Planeta and Random House Mondadori. And finally, with the untiring help of our ex-President Ana María Cabanellas, we organised a meeting of the Educational Publishers Forum (EPF) for Latin America.  

As we all know, in many counties there are still severe restrictions on freedom to publish. For example, since the failed coup in Turkey in 2016, 29 publishing houses have been closed and their assets seized by the government. Their books were prohibited from sale in bookstores and schools. There are currently 157 journalists in prison, out of which 32 are also writers and publishers. Because of this, IPA awarded this year’s Prix Voltaire jointly to two courageous major figures of this drama. At the Göteborg Book Fair I had the privilege to present, together with the Chair of our Freedom to Publish Committee, the unstoppable Kristenn Einarsson, the Prix Voltaire to the Turkish writer and editor, Turhan Günay (through his daughter, Elif) and to Cavit Nacitarhan, Editor in Chief of Evrensel Publishing House of Turkey. 

In November I welcomed our Secretary General to Mexico City to have meetings with the Mexican PA, the head of the Mexican IP office and the President of PEN International. After that we attended the Guadalajara Book Fair together, where we participated in a meeting of the Grupo Iberoamericano de Editores (an IPA member and the peak body for Latin American and Iberian publishers) and again of the EPF Latin America.  

One of the amazing things about IPA is that we can always find common ground and opportunities for collaboration. The next chance to network and engage in productive dialogue with fellow publishers from around the world will be IPA’s International Publishers Congress in New Delhi, from 10-14 February 2018. Come and join us!

 

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Apart from conducting meetings all week with delegates of Members States, the IPA team has also been busy meeting with the Genevan Ambassadors of key countries. Sometimes we do so to thank them for their support and at other times we do so to quiz them about their positions when they undermine their own local publishers and creators. It’s always good to let our allies know that we appreciate them, and it’s equally important to let the other side know that we are listening to what they say and that, if we disagree, we are always ready and willing to explain our own positions.

Meanwhile, back at WIPO, the morning’s session kicked off with a discussion about a possible new agenda item for future SCCR meetings: resale right for visual artists, otherwise known as ‘droit de suite’. Resale right already exists in a number of jurisdictions and in places like Australia it works quite well. If resale right were to make its way onto the main SCCR agenda it would be a welcome change since it is a topic that expands creators’ rights in contrast to the insistent discussions around exceptions and limitations to copyright law which we have had to endure for some years. The discussion this morning revolved around a presentation by Professor Joelle Farchy on the report Economic Implications of the Resale Right, which she co-authored with Professor Kathryn Graddy and which concluded that artists were, unsurprisingly, overwhelmingly in favour of implementing resale right internationally. In the end, the Member States decided to continue to discuss this topic but keep it under the ‘other matters’ rubric rather than the main agenda.

Also discussed today was a Scoping Study on the Impact of the Digital Environment on Copyright Legislation Adopted between 2006 and 2016 authored by Dr Guilda Rostama, as well as Professor Jane Ginsburg’s summary of a brainstorming exercise between copyright academics conducted at WIPO in April around the topic of the application of copyright in the digital environment. These developments surely point to a growing interest and imperative at SCCR to focus on the effects of the digital economy on the workings of copyright, although some Member States pointed out that the topic as proposed by the GRULAC Group (Latin American and Caribbean countries) goes beyond the scope of copyright protection.

A number of other topics were wrapped up in the last few hours of the day and the Chair’s Summary (usually requiring a painful and protracted negotiation) was accepted relatively easily. We were liberated from SCCR 35 just after 19:00 and we walked out of WIPO into a dark and cold Geneva night, tired but satisfied that some progress had been made on the Broadcasting Treaty but no damage had been done on the exceptions and limitations part of the agenda.

As a codicil, the rhetoric of the meeting swerved when some NGOs began talking about the economic success of nations that had supposedly more ‘flexible’ copyright regimes. Many of us from the Creative Sector Organisations heard in this rhetoric echoes of tech giants pushing for US-style ‘Fair Use’ — arguments that the IPA has consistently countered. At the end of the SCCR, it was good to receive a rebuttal, by Dr George Ford of the Phoenix Center in Washington DC, of one of the studies presented at the meeting which was attempting to indicate a link between ‘open exceptions’ and innovation.

 

 

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On a grey and gloomy Genevan winter’s day, the IPA team plus our Creative Sector colleagues trooped into early morning meetings first with the Africa Group of WIPO Members States and then with GRULAC (the Latin American and Caribbean countries group). We explained our consistent position on the exceptions and limitations debate: namely that the current copyright framework already provides adequate flexibility and balance to allow for well-crafted national laws, and therefore no international instrument is required.

We understand that the Member States asking for broader exceptions are doing so because of the perceived gap between the resources available in developing countries and those available in developed countries, but, we argued, governments in developing countries should note the exceptions and limitations regimes that already operate every well in comparable countries and begin to modify them for their own local fit. Furthermore, we advocate that all governments work as closely as possible with educational publishers, treating us as key stakeholders in the creation of well-educated people, rather than threatening publishers’ business models by weakening copyright.

Back at the WIPO Conference Room, Daniel Seng from Singapore updated the SCCR on his gargantuan study on copyright limitations and exceptions for educational activities. In brief, like the Crews study yesterday, Seng’s work shows that there is already a plethora of national exceptions and limitations that work at a national level, obviating the need for a new international WIPO treaty in the education sector.

Glenn Rollans, current president of the IPA member the Association of Canadian Publishers, was present at the SCCR meeting representing the Canadian Copyright Institute and made a telling intervention about the language of ‘balance’ that is often used in copyright debates:

‘Thank you for the opportunity to make this written intervention. I represent the Canadian Copyright Institute, which has a mandate to inform Canadians on copyright issues.

I want to briefly address the vocabulary of the SCCR’s discussion of limitations and exceptions. Most participants in the discussion have emphasized their preference for a ‘balanced’ approach to copyright. I have sometimes used this language myself. After all, who can object to balance?

We should note, however, that this language is now commonly used to suggest that the best approach to copyright balances the interests of the creators of copyright-protected works against those of users of copyright-protected works. This is often framed as balancing a private commercial interest with the public interest.

This framing unfortunately welds a positive concept, balance, to a false construct. When you set the interests of copyright creators at one end of the balance beam and the public interest on the other, you presume that the two are opposed and separate, that the interests of copyright creators are presumptively incompatible with the public interest.

I suggest we all try to be more precise. Advocates of cutting back the rights of copyright creators should say this plainly in those terms, or use the term ‘extinguishment’. Advocates of extending the categories of uses for which rightsholders cannot expect compensation should say this plainly with that language, or use the term ‘expropriation’.

I suggest ‘balance’ is an appropriate term only in the context of advocating for the interests of users of copyright-protected works while at the same time genuinely respecting the interests of copyright holders — in other words, looking for ways for both to work together in the public interest.

In his 2016 Charles Clark Memorial Lecture, Australia’s Michael Fraser refers to Article 27 of the Universal Declaration of Human Rights, which states in its two brief paragraphs: 

  1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

  2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

‘These two limbs of the human right,’ Professor Fraser points out, ‘supplement each other and shouldn’t be taken separately. The copyright debate has been fatally miscast by pitting one limb against the other.’

Campaigning for winners and losers does not contribute to ‘balance.’ In a supposed pursuit of the public interest, it neglects the very significant extent to which protecting the rights of copyright holders protects the public interest. When a jurisdiction undermines the interest of its copyright holders, it undermines the many ways — cultural, educational, academic, social and economic — that those copyright holders contribute to the public interest. When it supports copyright holders, it supports broad areas of the public interest along with private interests.

The difficult job of resolving divergent or opposing interests gets easier when you identify the ways in which those interests overlap. It gets harder when you emphasize the separation between them. Let’s do what we can to make the SCCR’s job easier by ending the use of the word ‘balance’ as code for the erosion of protections for copyright creators.’

Rollans nailed it. 

 

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