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José Borghino

José Borghino

José was appointed Secretary General in September 2015, having joined IPA as Policy Director in March 2013. He came to the IPA from the Australian Publishers Association where he served as Manager of Industry Representation. His previous professional roles include lecturer in journalism and creative industries at the University of Sydney, editor of the online news magazine NewMatilda.com, executive director of the Australian Society of Authors, and senior positions at the Literature Board of the Australia Council. 

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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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With our unusually large contingent at this SCCR, the IPA team was able to attend a number of simultaneous meetings today, even before the SCCR morning session began. Some of us were at the meeting convened by WIPO to come up with a set of non-binding principles relating to the functioning of Collective Management Organisations; while others attended a high-level briefing by the USA delegation; and still others were at a joint meeting of the so-called Group B (developed) countries and the Central European and Baltic States (CEBS) group. The IPA was joined by other Creative Sector Organisations for the latter. These meetings are essential opportunities for dialogue but this morning the Members States were mostly playing it safe and giving very little away.

When the SCCR proper finally got under way at 10:00am, we immediately started discussing exceptions and limitations for libraries, archives and education, including in particular draft Action Plans that had been prepared by the WIPO Secretariat. A good summary of all the plans is provided by the website IP Watch here. The IPA intervened on the draft Action Plan through our representative at the SCCR, Ted Shapiro, who is a Partner and Head of the Brussels Office of the law firm Wiggin. Ted said:

‘We would like to reiterate our view that the current international legal framework provides ample flexibility for Member States to enact exceptions and limitations consistent with their own legal traditions. It goes without saying that exceptions and limitations, which are legal defences to what are otherwise infringements of copyright, have a profound impact on all rightholders as well as other stakeholders. The Berne Convention/TRIPS/WCT three-step test provides the means for measuring this impact – which is why it is applied internationally and nationally both by legislatures and courts.

We believe that the draft action plan, while some details may need further clarification, provides a useful basis for a number of activities that could support exchange of info and capacity building that can inform countries — including, in particular, developing nations — in their efforts to ensure balanced national copyright laws consistent with the international framework. The IPA stands ready to participate in conferences and provide both legal and commercial experts to assist.

Peace love and copyright.’

The next agenda item was an update by Dr Kenneth Crews of his already monumental study on copyright Limitations and Exceptions for Libraries and Archives. Crews’s presentation and the attendant questions from Member States and NGOs occupied the most of the meeting on either side of the lunch break. 

When we returned to the debate on Limitations and Exceptions on Educational and Research Institutions as well as on disabilities, Group B made a succinct statement pointing to the ‘the importance of the exchange between Members States of experiences with limitations and exceptions for educational and research institutions.’ The IPA’s own position supports Group B’s observation that, ‘as the studies presented during the previous SCCR sessions have described, many countries have already established their own exceptions and limitations for educational and research institutions which work well and respect the respective domestic legal systems within the current international legal framework. The work of this Committee should be shaped in a manner reflecting this reality and complementing the well functioning current framework.’ 

The EU group earlier in the day had observed that there was no consensus in the room that would allow a move toward a Treaty text for limitations and exceptions for libraries and archives and Group B agreed that the same situation pertained for educational and research institutions.

For the IPA, the take-away from the Crews study (and indeed other studies) is that a huge number of the Member States have adopted varied exceptions and limitations for libraries, archives, educational and research institutions that fulfil specific national needs. In other words, the current copyright framework is flexible and responsive to local needs and there is no need for a one-size-fits-all international instrument.

As the shadows around the WIPO building deepened we embarked on a presentation by Blake Reid and Caroline Ncube about their scoping study on access to copyright protected works by persons with disabilities. Unlike the Crews study, which referenced all 191 Members States of WIPO, the response to the Reid/Ncube study was disappointing with data from only 20 Member States being available. It is difficult to see how useful conclusions can be made from such a shallow data pool.

The draft Action Plan will be discussed further tomorrow, as will be that other monumental study on copyright limitations and exceptions for educational activities by Daniel Seng.

 

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The second day of SCCR 35 began with the now traditional ‘informal’ meeting of the Creative Sector Organisations (CSO) group, which the IPA coordinates with Benoît Müller (former IPA Secretary General and now consultant to the International Video Federation and Motion Picture Association). This meeting took place on the 13th floor of the ‘old’ WIPO building with sweeping views of the Jura Mountains on one side, and of Lake Geneva and the Alps on the other.

In this inspirational setting, the CSO group discussed the important events of the opening day and planned for the rest of the week, including the meetings that had already been arranged with individual Members State delegations and major regional blocs. We also coordinated our involvement in the ‘side events’ organized for today and tomorrow during the SCCR’s lunch time breaks. But more on that later.

Straight after the CSO meeting, the IPA team split up with some of us attending the plenary session in the main Conference Room. This session featured reports on progress from yesterday’s ‘informals’ that focused on the Broadcasting Treaty, while others in the large IPA contingent (see yesterday’s blog post) undertook a series of meetings off-site.

Members States continued their own informals in the morning until the first lunchtime side event of the week. This consisted of a panel organized by the Brazilian delegation and largely included copyleft advocates making the case for broader exceptions and limitations to copyright law. The one publisher on the panel, FEP President Henrique Mota brilliantly argued that authors and publishers relied on a strong and stable copyright regime to create and disseminate the precious content that others were wanting easier access to. Mota was lucid and passionate, pointing out that publishers assiduously paid for all their content as a matter of course, and that all we are asking for is that users accord us the same courtesy.

After the excitement of the FEP President’s intervention, Member States continued their informals on the Broadcasting Treaty away from the WIPO Conference Room before a final plenary session in the early evening.

Tomorrow, on Day Three, things will hot up for publishers with the first of two days centred on exceptions and limitations to copyright for libraries, archives, and education

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SCCR 35 opened on a windy but bright Monday morning at the WIPO offices in Geneva, Switzerland. In his introductory speech, WIPO Director-General Francis Gurry addressed the importance of multilateralism in a time when politicians’ perspectives are increasingly shifting from the international arena to a predominantly national orientation.

New SCCR President Daren Tang began the meeting as usual with a call for opening statement, but had communicated with the various Member States beforehand to keep their remarks to a minimum. As it had for all the recent SCCR meetings, the first agenda item for the week was a session working towards  a treaty for the protection of broadcasting organizations. International rules to protect television broadcasts from piracy have not been updated since the 1961 Rome Treaty. Most representatives of members States have agreed for some time that a new treaty would be desirable.

In the afternoon, the Member States convened what are called ‘informals.’ This entails leaving the open plenary session in the main hall and meeting elsewhere to discuss ways forward and text changes among themselves. NGOs and other observers in attendance are allowed to listen to these informals, but prohibited from reporting on the matters discussed. We hope that tomorrow the morning plenary session will allow us to report on any progress in more detail.

The IPA contingent present this week is the largest in living memory. Apart from the usual team of IPA  CEO José Borghino, and legal advisers André Myburgh and Ted Shapiro, also attending are IPA President Michiel Kolman, Vice-President Hugo Setzer as well FEP President Henrique Mota, FEP Director Anne Bergman-Tahon, (UK) PA CEO Stephen Lotinga, (UK) PA General Counsel William Bowes, and EC member Rudy Vanschoonbeek. Further representing the IPA will be Chiefs of Staff Rachel Martin and Sjors de Heuvel from Elsevier. All of us will be engaged in individual meetings with ambassadors and country delegations, which means we have a busy but exciting week ahead of us.

 

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