Even WIPO Realizing That Copyright Law May Have Gone Too Far

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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