Even WIPO Realizing That Copyright Law May Have Gone Too Far

from the why-acta-is-not-in-wipo dept

Thu, Mar 10th 2011 1:35pm — Mike Masnick

For many years, WIPO, the World Intellectual Property Organization, was (as you would imagine) a strong proponent of expanding copyright in a variety of directions. It was a copyright maximalist's dream organization. Over the last few years, however, there's been a noticeable thawing in this attitude towards copyright. The various developing nations, who have been quite worried about the damaging impact on over-expansive copyright, have certainly made their voices heard at WIPO and, as a result, various groups representing consumer rights and a more sane approach to copyright have been able to participate in WIPO efforts as well. Larry Lessig has even suggested that WIPO can be the key leader in copyright reform. Of course, this is also part of the reason why ACTA was done outside of WIPO. The ACTA nations didn't want to deal with pressure from non-copyright maximalists in crafting the language.

Of course, WIPO certainly hasn't gone too far away from its traditional position, but it has been showing more and more signs of moving away from copyright maximalism. TechnoLlama points us to a recent keynote speech given by Dr. Francis Gurry, the Director General of WIPO, on the issue of "future directions in copyright law."

It's an interesting read. And, to be sure, there is plenty in there that I disagree with strongly. For example, he seems to recognize that all sorts of new business models are springing up around content creation (good!), but then says that we simply can't let the free market work to sort out what business models work, because... Well, actually there is no because. He just seems to take it for granted. Free market = bad.

I am firmly of the view that a passive and reactive approach to copyright and the digital revolution entails the major risk that policy outcomes will be determined by a Darwinian process of the survival of the fittest business model. The fittest business model may turn out to be the one that achieves or respects the right social balances in cultural policy. It may also, however, turn out not to respect those balances. The balances should not, in other words, be left to the chances of technological possibility and business evolution. They should, rather, be established through a conscious policy response.

However, there are many things that he has said that show a clear realization that copyright needs to change, that it can't be anti-consumer, and that it shouldn't be about protecting legacy business models. He does end up in the "balance" camp on copyright reform -- which I think is a mistaken view based on the belief that copyright and content creation is a zero sum game. However, focusing on "balance" is certainly a much better position than focusing only on making copyright law stricter.

Digital technology and the Internet have created the most powerful instrument for the democratization of knowledge since the invention of moveable type for printing. They have introduced perfect fidelity and near zero-marginal costs in the reproduction of cultural works and an unprecedented capacity to distribute those works around the globe at instantaneous speeds and, again, near zero-marginal costs.

The enticing promise of universal access to cultural works has come with a process of creative destruction that has shaken the foundations of the business models of our pre-digital creative industries. Underlying this process of change is a fundamental question for society. It is the central question of copyright policy. How can society make cultural works available to the widest possible public at affordable prices while, at the same time, assuring a dignified economic existence to creators and performers and the business associates that help them to navigate the economic system? It is a question that implies a series of balances: between availability, on the one hand, and control of the distribution of works as a means of extracting value, on the other hand; between consumers and producers; between the interests of society and those of the individual creator; and between the short-term gratification of immediate consumption and the long-term process of providing economic incentives that reward creativity and foster a dynamic culture.

Perhaps even more surprising is that the speech discusses The Pirate Party -- and not just to mock or condemn it -- as is typical in the pro-copyright world, but to realize that there are reasons The Pirate Party exists, and it's important to understand its message and why so many people are drawn to it. Dr. Gurry most certainly does not come out as agreeing with the Pirate Party, but he does appear to understand why it exists, and realize that the extremes in the other direction are part of what created the demand:

Beyond law and infrastructure, we have culture, and the Internet has, as we know, developed its own culture, one that has seen a political party, the Pirate Party, emerge to contest elections on the basis of the abolition or radical reform of intellectual property, in general, and copyright, in particular. The platform of the Pirate Party proclaims that "[t]he monopoly for the copyright holder to exploit an aesthetic work commercially should be limited to five years after publication. A five years copyright term for commercial use is more than enough. Non-commercial use should be free from day one."

The Pirate Party may be an extreme expression, but the sentiment of distaste or disrespect for intellectual property on the Internet that it voices is widespread. Look at the incidence of illegal down-loading of music. We may argue about the right methodology to use to measure that phenomenon, but we are all certain that the practice has reached alarming dimensions.

In order to effect a change in attitude, I believe that we need to re-formulate the question that most people see or hear about copyright and the Internet. People do not respond to being called pirates. Indeed, some, as we have seen, even make a pride of it. They would respond, I believe, to a challenge to sharing responsibility for cultural policy. We need to speak less in terms of piracy and more in terms of the threat to the financial viability of culture in the 21st Century, because it is this which is at risk if we do not have an effective, properly balanced copyright policy.

Again, I don't necessarily think he's right about all of this, as there is evidence that there are tons of financially viable content creation going on that completely ignores copyright. However, it still is a big step forward for WIPO to actually be weighing these issues, and while not agreeing with The Pirate Party by any stretch of the imagination, obviously being influenced by its positions at the opposite end of the spectrum.

And despite his apparent dislike for letting markets develop business models around content, he does seem to clearly recognize that this is, at its core, a business model issue -- and that copyright can all too often be used to block competition and hold back change -- something you'd never have seen a WIPO leader admit in the past. Here are two snippets that make this clear:

The purpose of copyright is not to influence technological possibilities for creative expression or the business models built on those technological possibilities. Nor is its purpose to preserve business models established under obsolete or moribund technologies.

[...]

The final element of a comprehensive and coherent design is better business models. This is undoubtedly happening now. But the story is not over and, for the future, we should constantly remind ourselves that the history of the confrontation of our classical copyright world with the digital environment has been more a sorry tale of Luddite resistance than an example of intelligent engagement.

And, finally, it's nice to see him recognize a key point that we've made over and over again, which is often denied by maximalists: you can't undo what technology allows:

History shows that it is an impossible task to reverse technological advantage and the change that it produces. Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it. There is, in any case, no other choice -- either the copyright system adapts to the natural advantage that has evolved or it will perish.

It's an interesting read, and while there are still plenty of issues, it's still amazing to see the shift in WIPO from one end of the spectrum into a more nuanced middle ground.

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Filed Under: copyright, francis gurry, wipo

20 Comments

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Anonymous Coward, 10 Mar 2011 @ 2:02pm

Personally I think people don't pirate enough, they should pirate more and more and more, without regard to imaginary property rights that are not natural and will not endure the test of time.

He is right in the end there, adapt/evolve or perish.
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:Lobo Santo (profile), 10 Mar 2011 @ 2:08pm

Applause!!
I, for one, am happily shocked that Dr. Francis Gurry is apparently intelligent and competent enough to thoroughly research and understand that which he is to be an advocate of, and even more surprised that, unlike most politicians he is able to review and change his base assumptions when they've proven inaccurate.

There hope for him yet. Bravo.
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Anonymous Coward, 10 Mar 2011 @ 2:16pm

I think he shows that he is smart enough to realize that pure "free market resolution" is likely to lead to a result that won't satisfy both the economic and social desires of the population.

We live in a world where economics makes us do things that are against our self intersts, because of the short term benefits. We buy things from the other side of the world instead of producing them locally, to save a few cents at retail. We live in houses far from our workplaces, travel back and forth in oil consuming and pollution creating cars and SUVs, all because economically it works better for now. The recent oil shocks have shown many Americans that this is an unfair trade off. But the free market said it was fine, now it is not.

I don't think anyone wants to prop up dead industries. It is incredibly hard in the current market conditions, with rampant piracy, to really determine winning and losing strategies. Almost any strategy that involves profit is under attack and undermined by the actions of those who don't respect the works and rights of others. Those are circumstances that must be fought against strongly, as they mislead us as to what is right and wrong. We are too busy satisfying our lust for all entertainment and all information without considering how it will be replenished in the future.

Copyright isn't the pain that many here try to paint it. It is really rules of the road to allow for the replenishing of content, a common language for doing business. Creating a solid foundation is what encourages future development. In shifting sands, some will pitch tents, claiming the new world, only to find themselves buried the next day.

Balance is great. So is respect.
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ltlw0lf (profile), 10 Mar 2011 @ 2:27pm

Another Darwin-Denier
It is so funny that even today there are folks who look at the world around them and come up with the idea that somehow, survival of the fittest shouldn't or doesn't apply to them. Especially when its shown time and time again that survival of the fittest is the only way the world works around you, and in order to survive, you have to adapt better than any of your competitors. Their chosen method of adapting is getting better lawyers and using graft and corruption to maintain their power, but these options are rapidly disappearing, and they are still left being the dinosaurs and failing to adapt.

But then again, since the copyright maximalists believe they're entitled to make money no matter how poorly they treat their customers or run their business, it makes sense that they would ignore the world around them and believe that survival of the fittest doesn't apply to them.

Free market = bad.

And copyright maximalists call the open-source movement anti-democratic, communist, and non-capitalist. I keep telling people that the copyright maximalists are projecting their own views on the open-source movement...that open-source is about as free-market as you get, and what they want is much more anti-democratic, fascist, and non-capitalist. After all, good open-source projects become legends...bad ones die off or are replaced.
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Steven (profile), 10 Mar 2011 @ 2:45pm

Re:
You seem to have a few base misconceptions.

"We live in a world where economics makes us do things that are against our self intersts, because of the short term benefits. We buy things from the other side of the world instead of producing them locally, to save a few cents at retail. We live in houses far from our workplaces, travel back and forth in oil consuming and pollution creating cars and SUVs, all because economically it works better for now. The recent oil shocks have shown many Americans that this is an unfair trade off. But the free market said it was fine, now it is not."

It is not economics and the free market that make us do things, it is the free market that responds to our demands and economics is simply a tool to help us understand and describe how the system works. We manufacture things overseas because we, as a population, place more value on saving money over locally produced items (which can certainly be argued is a good way to go). We generally live far from our work because we simply can't afford to live closer, or value something in the location we choose to live. Driving 'pollution creating cars and SUVs' is still, in general, the most efficient means of transportation (but we are working on better ones).

"I don't think anyone wants to prop up dead industries. It is incredibly hard in the current market conditions, with rampant piracy, to really determine winning and losing strategies. Almost any strategy that involves profit is under attack and undermined by the actions of those who don't respect the works and rights of others. Those are circumstances that must be fought against strongly, as they mislead us as to what is right and wrong. We are too busy satisfying our lust for all entertainment and all information without considering how it will be replenished in the future."

There is no evidence that piracy is causing any harm to the entertainment industries. Oh noes, it's hard to run a successful business and find a successful business model... poor baby.
I have yet to see anybody 'attack' a person/business because they want to make a profit. I have seen much outrage about 'strategies' that involve screwing over customers though.
Entertainment doesn't have to be 'replenished', especially in this day and age. We certainly desire more to be created, but absolutely does not require we grant 100+ year complete control of various works to anybody.

"Copyright isn't the pain that many here try to paint it. It is really rules of the road to allow for the replenishing of content, a common language for doing business. Creating a solid foundation is what encourages future development. In shifting sands, some will pitch tents, claiming the new world, only to find themselves buried the next day."

Copyright may not be bad at all, but there are mountains of evidence that shows our current level of copyright is both unnecessary and damaging. There is significant evidence that large bodies of good, even great, content will be produced without copyright at all. I suspect there is some optimal level that will encourage significant investments in new works that is far less than what we have now.

"Balance is great. So is respect."

Yes it is. So lets bring balance back to copyright by reducing its massive overreaches and show respect for content creators, consumers, and the ability to share our common culture.
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Anonymous Coward, 10 Mar 2011 @ 3:15pm

Re: Re:
Steven, if you cannot accept the very basic concept that competing with your own product is bad, the rest is sort of moot. Widespread piracy creates an incredibly unfair business environment that is short term good (for the people pirating) but long term bad for the producers of the products they pirate.

Business models that must compete against unauthorized free versions of their products are unlikely to survive in the long run. The funny result is that both sides die, because the free part was entirely based on taking from the other side. The end result is "nothing left but left overs".

If you cannot understand that pretty basic idea, the rest won't make much sense to you.
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coldbrew, 10 Mar 2011 @ 3:20pm

Re: Re: Re:
Start a web-blog of your own or something. Nobody else believes you. We've removed so much of the cost it is still possible to make money, it's just you that can't. Go find something else to leach off of and we will be fine.
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The eejit (profile), 10 Mar 2011 @ 3:24pm

Re: Re: Re:
Then stop mooching off of society like that bad skaterboi, weed-smoking 'musician', get off your arse and go do a real day's work.
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Christopher Weigel (profile), 10 Mar 2011 @ 3:25pm

Re: Re: Re:
Widespread piracy creates an incredibly fair business environment that is short term good (for the people pirating) and long term good for those producers who are capable and willing to adapt.

Fixed that for you.
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Steven (profile), 10 Mar 2011 @ 3:27pm

Re: Re: Re:
And if you cannot accept that there are many options that don't rely on an artificial scarcity then you fail and I don't feel sorry for you. There will be people in drove that come behind you and clean up.

Creative people will create. Business savvy people will find ways to help them make money if they can't do it for themselves.

There is no evidence, zero, none, nada, zip, zilch that piracy results in lesser creative output.

Things change, they move on, they find ways to exist. We've had creative output in time of no copyright, minimal copyright, and massive overreaching copyright. Copyright policy, not matter what it is, will not halt the creation or lessen the quality of new works even if it may impact they type of things that get created.

If you can't understand these things, with hundreds of years and mountains of evidence to back them up, you are simply not worth talking to.
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Capitalist Lion Tamer (profile), 10 Mar 2011 @ 3:58pm

Re: Another Darwin-Denier
Free market is bad because the word "free" got involved. Free=bad.
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Chris Rhodes (profile), 10 Mar 2011 @ 3:59pm

Re: Re: Re:
Steven, if you cannot accept the very basic concept that competing with your own product is bad, the rest is sort of moot.

You claim that this is "very basic". Explain.
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Anonymous Coward, 10 Mar 2011 @ 7:03pm

Re: Applause!!
He will probably end up losing his job and being replaced.
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Tymon, 10 Mar 2011 @ 11:39pm

Copyrights? Right to copy!
The so-called copyright crap is definitely going way too far. I've seen 30 second clips on Youtube of a tv show get taken down for 'copyright infringement'. Seriously? It's a 30 second clip. Not everyone wants to buy a complete season 1 box set to see one scene in a show that might make them smile. But with the nazi-strict copyright laws as they are, they'd have to. Furthermore, it's technically copyright infringement to play a CD at a party without paying royalties to the label and crap like that. All in all it's completely stupid, and most of the people really don't care about 'protecting their intellectual property' they only care about the money, no matter how little. Comparing DIGITAL piracy to regular theft is an insult to the intelligence of any reasonable person too. Much like giving a speech to people...You can offer digital downloads to 1 person, or to 100,000 people for the same cost to produce the material. Which is ZERO. To claim you 'lost money' if a person that couldn't afford it in the first place (hence they wouldn't even BE a sale to begin with) decided to download, stream, or otherwise 'pirate' your software, movie, or music is both shallow, vain, and greedy. I think if these record labels, software companies, and movie studios quit flagrantly overcharging for their stuff (Like charging 25 bucks for a cd that costs them maybe 3 bucks to package, produce, and ship?) then more people would actually BUY and less would pirate. In this economy, people are on budgets. And if you expect people to simply sit on their hands because they can't otherwise afford your overpriced stuff, you'll be sadly mistaken.
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Bruce Ediger (profile), 11 Mar 2011 @ 5:24am

Re: Re: Re: Re:
Yes, I'd like to request further explanation as well.

Because I don't understand at all. Doesn't Microsoft "compete" with it's own product? Windows XP was amazingly successful, although it did age. Windows Vista failed at least partially because it was competing with XP, MSFT's own product. The various versions of Internet Explorer kind of compete with each other.

But as a consumer, I'd like Microsoft, and Ford and Harper Collins and Apple and Motorola etc to compete with their own product. I want them to sink costs in developing the next, faster CPU, or to sink costs in designing a more efficient auto, or whatever. As a consumer, I don't want my tax dollars to go towards protecting some firm from having to do R&D to make a new product.

So, I just don't understand what you're saying at all. You seem to be saying something totally anti-free-market, something almost merchantilist in implication.
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Shon Gale (profile), 11 Mar 2011 @ 5:44am

As an Artist and Songwriter I still want 2 copyrights.

1. for me. It will be my Creative Copyright which I always keep. I own it. It is my recognition from the world that I created this. This copyright is passed on to my heirs. Come on let's be fair. Why make it public domain which negates who actually created it? I didn't ask for money only recognition forever for MY creation. I did it, not Public Domain after 99 years. My children and their children have proof that their relative did it and passed it on to them.

2. The Commercial Copyright. This is sold and is for sale as long as someone wants to buy it. No more exclusivity and having to form shell companies just to control your own work. This will create another industry which is the management and sales of Copyrighted Content that will be used in a Commercial manner. This copyright exists only when it is contracted.

Both Copyrights are listed with the government so there is no mistake who did what. This crap about you used my lick, my line, my words has to stop. It is stifling creativity and will make this country fail.
We in America are the creators of the world! Period. Everyone else copies us. Got it. We create the gadgets, write the software, make the movies and create the music that the rest of the world wants. We can't lose. Everybody copies us. Even the Muslim chicks with their headdresses wear Jeans. Who invented Jeans? Americans.
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Andrew Foster (profile), 11 Mar 2011 @ 6:44am

Gurry wasn't lacking a "because"
I don't think Francis Gurry's speech was missing a because. It's right there in the quote you've used.

Free market = bad because The fittest business model may [not be] the one that achieves or respects the right social balances in cultural policy.

Whether you think it's correct or not, that's a pretty straightforward argument. The business model best fitted to an unlimited-copying world MAY not be the one that ensures the cultural output we want. You might think that in fact that's not the case, but it's still rather disingenuous to suggest that he's making unsupported statements when he's clearly giving the basis as above.

I also, although this is a separate point, happen to think he might be right. If the "fittest" business model turns out, as you've argued in the past, to mean a strong focus on connecting with fans, then maybe survival of the fittest business model will mean a glut of the kind of creativity well-suited to connecting with fans. Maybe the music industry will be swamped by whatever it is that appeals to teenagers and students, because they've got the free time to engage in the communities that spring up. So suddenly the music market is flooded with ambient shoegaze rock - and other forms of creativity will suffer (because maybe their would-be supporters are less suited to the connect-with-fans business model).

We've seen exactly that already, in that all the money in the current music industry goes to creating music that's suitable for the radio. The vast majority of what reaches the public is easy to like after two listens and just like the last thing that sold well. That's the "fittest" business model for the current framework, and it's hardly the best way to foster a rich culture.

You might think the example above is ridiculous; it doesn't matter. That was the first thing that came into my head. The point is that it's completely valid to say that the fittest business model for a given environment may not be the best one for our culture.

And that holds true even if the environment in question is an unlimited copying one. So I think it's entirely appropriate to suggest that the free market MAY NOT be the most desirable solution.
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Chris Rhodes (profile), 11 Mar 2011 @ 8:44am

Re: Re: Re: Re: Re:
They even compete against themselves re: the used version of the same products.
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Anonymous Coward, 11 Mar 2011 @ 10:01am

Read between the lines of his speech/presentation .... if only you al' would stop speaking to yourselves and listen carefully to what he is saying: for WIPO to stay pertinent in terms of International Law - copyright legislation, WIPO has to stop 'babying' (read as being the Secretariat) Governments desire to discuss, debate substantive issues and come up with devising systems -infrastructures- for the better circulation of creative works (read as a money making exercise for WIPO) ... the copyright reform discussions should be the Governments speaking out on such 'initiatives' but what he says in his speech is his own views. They may be correct, but how to reform the system, and why it is important, should be determined by the stakeholders, represented by Governments and civil society at WIPO. Mr. Gurry feels that multilateralism is 'dead' so he is pushing for industry-led initiatives, mostly led by Big industry from the developed world .... one of which seems to have just 'backfired' on him with the World Blind Union:

Quote: "The World Blind Union (WBU) recently announced that it suspended its participation in two industry-oriented initiatives to facilitate access and cross-border distribution of works for visually impaired readers, and reaffirmed the need for an international legal instrument. The union insists on the establishment of a treaty which would lead countries to issue national copyright exceptions laws. The two initiatives are at WIPO and the European Union levels."

http://www.ip-watch.org/weblog/2011/03/10/world-blind-union-won�t-be-sidetracked-from-qu est-for-treaty-on-reading-access/

Masnik may have greater insight on affairs touching US policy ... but at the international level I think he is missing some very important, even if nuanced, points. As a developing country government insider on some of these issues, I think Masnick has to try and read/research more on what is going on at the International level before saying that "Even WIPO Realizing That Copyright Law May Have Gone Too Far" - He will lose 'credibility', quickly.
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Another Anonymous Coward (That can't be bothered r, 6 Feb 2012 @ 5:05am

Re:
I'd like to bring to your attention a comment you make later on in the year.

Why do they need to alloclate money

Anonymous Coward, Sep 12th, 2011 @ 2:19pm
Especially with digital? Can't they sell it on their won site and keep ALL of the money?

My answer would be - What's the point if idiots like you are going to condone piracy???
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