Copyright: what are the "key issues"?

The IPKat marvels at the different ways in which people view copyright law. Nowhere is this better illustrated than in the latest World Intellectual Property Organization (WIPO) press release, "Member States Review Key Copyright Issues", Geneva, 10 November 10, 2008PR/2008/575, issued in the wake of a meeting of WIPO's Standing Committee on Copyright and Related Rights (SCCR).

When he saw the title, the first thing the IPKat did was to stop reading and put his paws over his eyes. Then he tried to guess what the key copyright issues might be. Well, he thought, it's certain that one of them must be the crisis faced by copyright owners and the recording industries now that perfect versions of their recorded performances can be downloaded, digitally copied, shared, sampled and generally, well, enjoyed without the need to pay for anything more expensive than internet access and a mobile phone. Another key issue is likely to be the use of thumbnail illustrations and the delivery of copyright-protected text by internet search engines. A third could well be the knife-edge that separates fair comment, fair use and transformative use from blatant and inexcusable copying. A fourth key issue, though not an obvious one, is the increasingly tricky area of copyright clearance -- especially for 'orphan works' whose authors and/or copyright owners cannot be traced, since the separation of works from their identifiers is another by-product of the internet age.

But the Kat was wrong. The key issues discussed in the press release were, in the order in which they were featured:

* Limitations and exceptions to copyright in respect of access for visually impaired people

* The status of negotiations on the protection of audiovisual performances ("Many delegations underlined the importance of information exchange as a means of building consensus on this issue. The SCCR supported the continued organization of regional and national seminars as a means of facilitating information exchange and promoting national systems of protection in this area")

* The protection of broadcasting organizations ("... further work is required to achieve agreement on the objectives, specific scope and object of protection ... before convening a diplomatic conference to conclude a treaty. ... [T]his process should proceed according to the WIPO General Assembly’s decision in 2007. This decision stated that the approach to protection must be signal-based, and that a diplomatic conference could be convened only after agreement on objectives, specific scope and objective of protection had been achieved").

The IPKat would not doubt for a minute that the issues mentioned in the press release are important ones, or that their resolution should be unnecessarily deferred or delayed. What he is saying is this: what constitutes a "key issue" very much depends on who you are and where you are. There is a bloody battle ever day between those who assert copyright, those who deny it and those who accept it but seek to limit its operation. This battle takes place in the civil courts, increasingly in the criminal courts, at national borders, in the shops, street markets and e-malls. It takes place in the press, on the airwaves and through social networking sites. To those who fight these battles the key issues are obvious -- and none of them are on WIPO's list. Copyright owners don't normally spend their time and money suing the visually impaired for infringement when they have far bigger fish to fry. The organisation thus appears out-of-touch, remote and other-worldly.

But there is another side to the picture. In the international diplomatic sphere occupied by WIPO and those who attend its meetings, the players are entirely different. At diplomatic level even an agreement in principle as to what is permitted or prohibited in terms of copyright will have no effect unless it is implemented and enforceable at national level, a matter over which WIPO has relatively little control. However, the organisation is obliged to be perpetually involved in a painstaking, dreadfully slow process of identifying areas in which consensus is possible and then inching towards it. Once a norm is achieved, whether in terms of what can be protected or in terms of what can legitimately be done without infringing, that norm becomes a weapon with one country can assail the position taken by another that does not comply with it. In some cases, norms achieved by this painstaking process have even been given teeth at international level, where TRIPs requires a minimal level of Berne Convention-based copyright protection which the World Trade Organization can enforce with sanctions. Viewed in this light, a "key copyright issue" is not one that is of vital commercial importance but one which possesses the potential to be resolved. While the big issues may never be amenable to international consensus, one may be prepared to accept that every little bit helps.