‘World Copyright Forum’ Proposed, and U.K. May Fund It

Copyright harmonization through a treaty “is a good thing,” but unlikely for the moment, said U.S. Register of Copyrights Marybeth Peters. U.S. courts are “struggling” to interpret the scope of the distribution right, with some denying it encompasses the so-called making-available theory of infringement that’s confirmed in U.S.-signed treaties, and that’s likely to stymie further talks, she said. “We believe very strongly that it is” infringement but court decisions have been “problematic.” A federal judge in Duluth, Minn., threw out a $222,000 judgment against P2P defendant Jammie Thomas, citing a jury instruction that backed the making-available view (WID Sept 26 p4).

Harmonization efforts have been “clouded under this rhetoric” over copyright term extensions in the U.K., Sharkey said. It was only in the 1990s that Sharkey, a performing artist, got “equitable remuneration” for his works from the rest of Europe, which had long been harmonized on copyright terms, he said. “We're all going to have to be prepared to leave the bloggers, the politics … outside the doors” so similar copyright laws can be passed worldwide. But a worldwide system can’t be based on maximum protections at WIPO, as some developing countries have proposed, said MPAA Special Policy Adviser Fritz Attaway. “Tinkering” on issues such as fair use has well served countries, and globally set limitations and exceptions will probably lower protections and scrap the flexibility needed for a “rapidly changing technological environment,” he said.

“Developed countries, by and large, have very good systems” for tailoring their unique copyright needs, said WIPO Deputy Director General Michael Keplinger. WIPO is trying to come up with narrow solutions on technological protection measures, library needs and access for the visually handicapped, the last the subject of a proposed treaty to be discussed at the next Standing Committee on Copyright meeting. But businesses are pushing for more harmonization and developing countries want guidance, he said: “It is a tug of war, a bit.” Developed countries should be concerned over “very radical” proposals for mandatory limitations, not other countries implementing their own limitations, Keplinger said. The U.S. has broad limits and “I don’t think that’s encouraged a great mass of pirates” to operate stateside. Susan Mann, Microsoft senior director of intellectual property policy, told Keplinger that WIPO should bring together companies already offering solutions for visual impairment, such as Windows’ text-to-speech function, before “norm-setting.”

Not that the industry has made its case well for copyright, MPAA’s Attaway said. “The enemies of copyright have really done a good job of creating the false premise that the interest of copyright owners and the interest of society as a whole are antagonistic.” One of the industry’s biggest failings is letting the “preponderant academic theory to be decidedly anti-copyright,” he said: “We're not doing anything to counter that” on college campuses worldwide, despite the success of Hollywood creations like the DVD and Hulu.

The polarized debate over the Anti-Counterfeiting Trade Agreement, which activists warn may end up including ISP liability provisions, isn’t conducive to the “art of the achievable,” Mann said. “We shouldn’t try to boil the ocean” by making the agreement “do everything” as some interests want, but instead have governments clarify existing laws and talk about best practices. WIPO is aiming to have reluctant countries “buy into the concept” by showing them how much their economies rely on copyright, Keplinger said. “They begin to think differently … that there’s something in it for them and their people. It’s not just about protecting the Americans.”

The expressed idea for a “World Copyright Forum” came from SGAE’s Bautista, but evidently it’s been percolating in many minds. “We need a place where we can put on top of the table all of the issues and make sure we don’t leave the room unless we have [some] solved,” Bautista said. The U.K. has been doing something similar for 10 years, and there’s discussion in the government of making it global, said Sharkey, who will soon meet with officials on the subject: “They are fully intent on funding it.”

U.K. Music got its government’s attention by pointing to the 8 percent of GDP that comes from the creative industries, which may have overtaken the financial sector’s share, Sharkey said. Asked how other countries can create their own version of the seven-month-old U.K. Music, he pointed to “the realization that there are enough challenges going on in the outside world” for lawmakers to deal with. “We needed to up our game” and “speak with one voice.” That’s a more difficult task now because of the “upheaval politics” surrounding Prime Minister Gordon Brown, fighting for his political career over the expense budgets of members of Parliament, Sharkey said. U.K. Music also is in a “stalemate” with the government over applying a levy to blank media to cover illicit copying.

Foreign audience members asked how they can bring about changes in the U.S. Sharkey said U.K. officials were trying to convince President Barack Obama to create something like a U.S. culture minister. Peters, of the Copyright Office, said copyright supporters were “closer than we ever have been before” on performance royalties for terrestrial radio, despite the “fairly effective lobby” of the NAB: “I am hopeful.” You need to convince U.S. lawmakers that “economically it’s not going to ruin broadcasters,” she told questioners. Ralph Oman, a former register of copyrights now teaching at The George Washington University, said explaining lost revenue from abroad was the way to Congress’ heart. It “generally doesn’t work” to appeal to lawmakers’ sense of “fair play.” -- Greg Piper

World Copyright Summit Notebook …

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., notably declined to echo the call for ISP responsibilities with regard to alleged infringers that was made by committee member Sen. Orrin Hatch, R-Utah, a day earlier (WID June 10 p4). In prepared remarks, Leahy said only that “the relationship between Internet service providers and content owners continues to evolve. New issues that were barely contemplated when we wrote the DMCA a decade ago will surely emerge.” Leahy told the “different factions” in copyright they often “fail to work together to see what can be achieved through cooperation,” and urged them to “bridge policy differences.” The senator, who had an uncredited appearance in The Dark Knight, said filming for the movie poured $36 million into the Chicago economy. He noted that President Barack Obama, in announcing his new cybersecurity plan, estimated IP theft reached $1 trillion globally in 2008. “That is unacceptable,” but fighting such losses requires a “comprehensive and coordinated IP strategy,” Leahy said. That includes Leahy’s performance rights bill for terrestrial radio, bringing U.S. law into harmony with other countries. As Hatch did, Leahy defended the 11-year-old DMCA that he helped write, saying it was “sufficiently flexible” to address issues that Congress hadn’t foreseen while allowing ISPs and Web sites to “flourish.” -- GP

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The House Judiciary Committee plans a hearing on audiovisual downloading royalties in the summer, “hopefully in July,” Chief Counsel Perry Applebaum told the summit to loud applause. The summit was largely sponsored by performance rights organizations. The organizations previously wrote to the committee asking for movie and TV downloads and streams to be counted as “public performances” for which songwriters and publishers receive royalties, as they are treated in several countries. Such programs don’t pay mechanical royalties so a performance royalty may be the only thing authors receive, they said. The committee wants to ensure that the playing of songs on the Internet generates “full and fair royalties” to authors, Applebaum told the summit, citing an “anomaly in the law.” The law has “crashed into the way things are occurring on the Internet,” also including Google’s relationship to publishers, print newspapers’ “rapidly becoming obsolete,” and the new-media disputes between screen writers and producers. “It’s something we want to spend a lot of time looking at,” Applebaum said. He also said the committee was “very sensitive” to songwriter concerns that they'll be harmed if a performance royalty for sound recordings is applied to terrestrial radio. “It’s still very early on in the legislative process” and the committee will work with songwriters regularly, he said. Chairman John Conyers, D- Mich., is talking to the Appropriations Committee and Justice Department to make sure they have enough funds to prosecute IP crime, as set forth in Conyers’ PRO-IP Act approved last year, Applebaum said. Conyers also is working with President Barack Obama on a person to fill the IP enforcement coordinator slot. Out of the committee’s hands, though, is an ongoing constitutional challenge to the way the Copyright Royalty Board was put together, which could undermine its decisions on matters such as ringtone royalties, Applebaum said.