Hugh Stephens, Distinguished Fellow, Asia Pacific Foundation of Canada, Vice Chair, Canadian Committee on Pacific Economic Cooperation (PECC)
It’s that time of year when we cast an eye back over the past year (probably in a vain attempt to try to predict what the New Year will bring), reflecting on important developments in global affairs–including those affecting international copyright. Last year I wrote a similar blog and it is always instructive to look back at what seemed important a year ago, and then see how things actually developed.
A year ago I was talking about how Theresa May had triggered the Brexit exit clause, Article 50, and how the NAFTA re-negotiations were just getting underway. I also noted that 2017 was the year that the Trans-Pacific Partnership (TPP) had been re-invented as the TPP-11 (i.e. the twelve TPP countries minus the United States, which withdrew when Donald Trump took office). While all these agreements had implications going well beyond copyright issues, copyright was nevertheless very much part of the mix. There were a number of other issues that I flagged as well, such as the legal judgement in the Access Copyright case in Canada, Copibec’s suit against Laval University and the announced start of Canada’s Copyright Act review process. I also noted that further copyright review would be taking place in Australia further to the government’s response to the report of the Productivity Commission on intellectual property. So what has happened on these files over the past 12 months, and what has been the impact on copyright?
Well, first to Brexit. At the time of writing the outcome is changing almost daily, with the only consistent theme being that the process is an absolute shambles. It cannot even be excluded that there will be a second referendum and that Brexit won’t happen, which would certainly be a boon for the British economy and simplify things all round. As I wrote back in August of this year, copyright is one of the less complex Brexit issues that Britain will face after Departure Day, March 29, 2019, but there will be impacts, especially on international broadcasters who uplink their signal from Britain for diffusion to other EU states. These broadcasters will no longer have the ability to clear the rights for their broadcasts in the UK with validity for the whole EU, and this may lead to pressures to locate to other EU capitals.
As for NAFTA, or the USMCA as it has been labelled by Donald Trump—although Canada prefers to call it the CUSMA–it was finally concluded on September 30 and has now been signed by the leaders of the US, Canada and Mexico (on November 30, 2018 at the G20 meeting in Buenos Aires). Now it must be ratified by the legislatures of all three countries, where Democratic control of the House of Representatives in Washington could complicate matters. In the area of copyright, for Canada the new NAFTA restored some of the IP provisions of the original TPP that the remaining eleven parties had suspended once the US left that Agreement. This includes extending the term of copyright protection for most works to a term of life of the author plus 70 years, up from the previous term of life plus 50 years.
With regard to the TPP, now known as the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), it was concluded early in 2018, signed in March, ratified by six of the eleven partners by the end of October (Japan, Singapore, Mexico, New Zealand, Australia and Canada) and will come into effect in those countries on December 30, 2018. (Vietnam, which ratified in November, will accede to the Agreement two weeks later, in mid-January 2019). The suspended IP provisions, one of which was a commitment to a term of copyright protection of life of the author plus 70 years, were not restored but as a result of its commitment to the TPP text, New Zealand has acceded to and ratified the WIPO Internet Treaties, a requirement that was not suspended. The ratification of the WPPT (World Performances and Phonograms Treaty) will result in positive changes for performers in New Zealand who will now enjoy economic and moral rights similar to those traditionally accorded composers and recording companies, and will additionally have rights to control commercial exploitation of their recordings such as copying, issuing to the public, and communicating to the public through broadcasts.
In Canada, the Copyright Act review process is well underway, with the Parliamentary Committee conducting the review having heard from over 200 witnesses and received over a hundred briefs at last count. One of the big issues under review is the question of the fair dealing education exception introduced in the last round of copyright review in 2012. Book publishers and the publishers’ collective, Access Copyright, put a large part of the blame for a precipitous decline in revenues on this new exception, particularly since universities in Canada have refused to renew their Access Copyright licences as a result. This refusal was the subject of a major court case between Access Copyright and York University (which was in effect the proxy for all the universities that had opted out of the Access Copyright licence) in 2017, litigation that was favourable to Access Copyright although York has appealed the decision. However, a similar process in Quebec between the Quebec publishing collective Copibec, and Laval University, has just been settled, with Laval agreeing to sign the collective licensing agreement applicable to Quebec universities. An important victory for Copibec and for rights-holders.
Things have moved ahead with regard to copyright review in both Australia and New Zealand. In Australia, the government has moved cautiously with respect to the recommendations of the Productivity Commission’s report, some of which in the area of copyright in particular could be described as damaging and destructive. Legislationenacted in August of 2018 in response to the Commission’s recommendations focussed almost exclusively on patents, designs and plant breeder’s rights, leaving copyright aside. The review of possible revisions to fair dealing exceptions continues. A couple of months earlier, legislation extending safe harbours to relatively non-controversial sectors such as disability, education, library, archive and culture was enacted, leaving for future consideration more problematic issues such as extending the safe harbour regime to cover search engines. If Google was unhappy about this, the company was even more unhappy about the extension of site blocking provisions, (which require Australian-based service providers to disable access to offshore pirate websites), to search engines in another piece of legislationtargeting a specific copyright infringement problem.
Across the Tasman Sea in New Zealand, the government has just released an Issues Paper to set out its priorities for updating of copyright legislation and a public consultation period is now underway. Judging by the focus of the issues paper, the economic impact of any changes to copyright law will loom large in shaping policy recommendations.
Meanwhile in Europe, apart from Brexit, there has been considerable activity with regard to updating the Copyright Directive (as part of the continued move toward the Digital Single Market), with much of the attention focussed on Articles 13 and 11. Article 13 in its initial version required large commercial platforms that are in the business of content distribution to license the works that they are distributing, and to take steps to guard against the distribution of works for which they are not licensed. This proposal was the target of a major online spamming campaign, orchestrated in part by a Canadian so-called non-profit entity (Open Media) directed at Members of the European Parliament. At first it succeeded when the European Parliament, after having initially adopted the amendments, voted them down because of perceptions of widespread online protests. However, once the extent of the spamming and manipulation became known, the legislation was resubmitted (with minor amendments) and passed two months later. It is currently undergoing further examination and fine-tuning as part of the consultation process between the Parliament and the Council of the EU (the “Trilogue”), and has once again been attacked, this time by Youtube, which is mounting a major assault on the legislation, including by enlisting kids to pester their parents out of a misplaced fear that Article 13 will prevent postings to Youtube. In the process it is being reshaped and risks being the victim of too many interests. The goal of holding platforms accountable is noble; what measures eventually emerge will have to be examined carefully to see whether they meet this goal.
Another area of proposed reform is Article 11, which would require news aggregators like Google News to pay media entities for linking to their content. This is also the subject of much lobbying, both by news content producers who have seen the economic benefits of reader interest in content go predominantly to the aggregators who in effect use their content for free as a further means to attract and keep users’ attention, and the aggregators (primarily Google) who have threatened to shut down their service if required to pay what they characterize as a “link tax” (which would be called a licensing fee in normal terminology).
Both Articles 11 and 13 continue to work their way through the EU system and will no doubt be subject to further changes before being finally set in concrete, if indeed they remain as part of the legislation. You can check in again at this time next year to find out what happened if you don’t follow these issues very closely.
Finally last year I closed with the “monkey selfie” case, the story that keeps on giving. In 2017 the two parties to the dispute, British photographer David Slater and animal rights group PETA (People for the Ethical Treatment of Animals) reached an out of court settlement whereby Slater agreed to donate 25% of the proceeds of sales of his image of the macaque named Naruto to charities dedicated to protecting the species. PETA had lodged a lawsuit claiming that Naruto was the owner of the copyright in the photo as it was a selfie, taken by the simian. PETA lost the case and then appealed, but with the settlement I thought that this finally marked the end of the story. I was wrong. The US Ninth Circuit Court of Appeals proceeded to hear the appeal regardless, no doubt wanting to end the saga once and for all, and in April of this year upheld the original court decision that a non-human cannot own a copyright. In reaching its decision, the Court noted that PETA had failed to prove that it was a “friend” (in legal terms) of the supposed plaintiff (Naruto), having no relationship to the macaque. Moreover, Naruto was not a party to the settlement with Slater, and could not benefit from it. Naruto unfortunately never appeared in California court and as far as we know is happily swinging from a tree somewhere in the jungles of Sulawesi.
And so closes this summary of copyright developments in 2018. There were many other significant developments but I hope you found the ones I have highlighted to be a useful recap. I will join you again, gentle reader, in 2019.
This article was originally published in Hugh Stephens Blog.