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WIPO International Conference on Intellectual Property and Development organized by the World Intellectual Property Organization (WIPO) Geneva, April 7 and 8, 2016 COPYRIGHT, CULTURE AND DEVELOPMENT Dr. Mihály Ficsor, Chairman, Central and Eastern European Copyright Alliance (CEECA), former Assistant Director General of WIPO I. INTRODUCTION: THE CONCEPT OF CULTURE RELEVANT FOR COPYRIGHT M. Ficsor, WIPO conference, April 7-8, 2016 2 Examples of broader concepts of culture Cambridge English Dictionary: "the way of life, especially the general customs and beliefs, of a particular group of people at a particular time.” Oxford Advanced Learner’s Dictionary: „the customs and beliefs, art, way of life and social organization of a particular country or group”. Merriam-Webster online Dictionary: a : the integrated pattern of human knowledge, belief, and behavior that depends upon the capacity for learning and transmitting knowledge to succeeding generations b : the customary beliefs, social forms, and material traits of a racial, religious, or social group; c : the set of shared attitudes, values, goals, and practices that characterizes an institution or organization… Dictionary.com: „the sum total of ways of living built up by a group of human beings and transmitted from one generation to another”. M. Ficsor, WIPO conference, April 7-8, 2016 3 Examples of narrower concepts of culture When we were working on the Model Provisions on the protection of expressions of folklore – which was adopted by a WIPO-UNESCO Committee of Governmental Experts chaired by me in Geneva in June 1982 – quite a lot of time was used in the preparatory work on the question of what kind of concept of „culture” should be used as a basis. Finally, we chose a narrower definition (Article 2; see next slide). M. Ficsor, WIPO conference, April 7-8, 2016 4 Examples of narrower concepts of culture (cultural expressions) For the purposes of this [law], "expressions of folklore" means productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of [name of the country] or by individuals reflecting the traditional artistic expectations of such a community, in particular: (i) verbal expressions, such as folk tales, folk poetry and riddles; (ii) musical expressions, such as folk songs and instrumental music; (iii) expressions by action, such as folk dances, plays and artistic forms or rituals; whether or not reduced to a material form; and (iv) tangible expressions, such as: (a) productions of folk art, in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes; (b) musical instruments; [(c) architectural forms]. (Emphasis added.) M. Ficsor, WIPO conference, April 7-8, 2016 5 Examples of narrower concepts of culture (cultural expressions) Similar discussions took place in the Working Group - co-chaired by us with Carlos Moneta, an Argentine economist - which in 2004 and 2005, prepared the UNESCO Convention on the Protection and Promotion of Diversity of Cultural Expressions (adopted in October 2005 and entered into force in 2007;currently with 140 Contracting Parties - including the EU). Article 4 of the Convention contains the following definitons: • “Cultural content” refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities. • “Cultural expressions” are those expressions that result from the creativity of individuals, groups and societies, and that have cultural content. • “Cultural activities, goods and services” refers to those activities, goods and services, which at the time they are considered as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have. Cultural activities may be an end in themselves, or they may contribute to the production of cultural goods and services. (Emphasis added.) M. Ficsor, WIPO conference, April 7-8, 2016 6 Examples of narrower concepts of culture (cultural expressions) The definition of „traditional cultural expressions” in document WIPO/GRTKF/IC/27/5 of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore („The protection of traditional cultural expressions: Draft articles”), in key aspects, is similar to the definition of „expressions of folklore” in the 1982 WIPO-UNESCO Model Provisions: ”1. Traditional cultural expressions are any form of [artistic and literary] expression, tangible and/or intangible, or a combination thereof, Alternative 1: in which traditional culture [and knowledge] are [embodied] Alternative 2: which are [indicative] of traditional culture [and knowledge] which is intergenerational/from generation to generation and between generations, including, but not limited to: phonetic and verbal expressions, [musical and sound expressions], [expressions by action], tangible expressions, [and adaptations of these expressions].” (Emphasis added.) M. Ficsor, WIPO conference, April 7-8, 2016 7 Culture and copyright • Culture did exist much before the birth of copyright. • Copyright also protects works which are not necessarily covered either by the broader or by the narrower concept of „culture” or „cultural expressions” (such as computer programs which have utilitarian objectives and „talk” to machines) or are of a double nature relevant for both the markets cultural goods and the market of utilitarian goods (such as works of applied art/industrial designs). • Cultural expressions are created also by those for whom copyright protection – in particular the economic rights protected by it – is not an indispensable criterion. • However, for creation and production of mainstream cultural goods and services, efficient protection and enforcement of copyright is necessary also in the XXIst century. Culture may not exist and develop without this. M. Ficsor, WIPO conference, April 7-8, 2016 8 The role of different categories of works from the viewpoint of development • • • • There are certain categories of works protected by copyright which – due to their objectives and way of functioning – are relevant, directly or indirectly from the viewpoint of transfer of technology, such as computer programs, works of applied art/industrial designs, „maps, plans, sketches and three-dimensional works relative to… architecture or science” or certain databases. Other categories of works serve important development purposes through education and research, such as textbooks, lectures, other teaching materials, books and articles on scientific and technical topics. The access to a very broad category of other works are needed for creating favorable political, cultural and social environment for development (for access to information, for participating in political and cultural life, etc.). Differing conditions in Article III(3) of the Appendix to the Berne Convention on reprint compulsory licenses (i) for works of natural and physical sciences and of technology; (ii) for works of fiction, poetry, drama and music, and for art books; (iii) for other categories of works not covered by (i) or (ii). M. Ficsor, WIPO conference, April 7-8, 2016 9 II.GENERAL PRINCIPLES: COPYRIGHT SHOULD FUNCTION AS „ADVERTISED” M. Ficsor, WIPO conference, April 7-8, 2016 10 Creator-centric protection General principles to keep in mind in order to maintain (or restore) the credibility and public acceptance of copyright and to apply it effectively for economic, social and cultural development: 1. Copyright should function as „advertised” in the sense that it is supposed to serve economic, social and cultural development through granting moral and economic rights to human creators: authors and performers. It should also be suitable to protect the investments into cultural productions and services – but this should be in accordance with, and subject to, the abovementioned basic objective. M. Ficsor, WIPO conference, April 7-8, 2016 11 Copyright, cultural diversity and development 2. This „advertised” function of copyright should prevail not only in certain countries, but in all countries of the world in order to serve development and to protect and promote cultural diversity. Universal Declaration on the Protection of Cultural Diversity of 2001: „Article 3 – Cultural diversity as a factor in development Cultural diversity widens the range of options open to everyone; it is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence.” Preamble of the UNESCO Convention: „cultural activities, goods and services have both an economic and a cultural nature, because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value”. M. Ficsor, WIPO conference, April 7-8, 2016 12 Copyright, culture and access 3. Copyright should also function as „advertised” in the sense that it guarantees adequate access to protected creations necessary for development purposes and that it makes possible active participation of people in political and cultural life. • For access, there is a need for works and other productions to get access to – and this requires adequate protection and enforcement of copyright. • For due access, there is also a need for well-balanced exceptions to, and limitations, of copyright. • Recently, for the implementation of the WIPO Development Agenda, it seems it has been a priority aspect to deal with exceptions and limitations that are particularly important for development purposes. Therefore, first this topic is covered. However, as discussed below, the GRULAC proposal submitted in December 2015 has also put in focus the rights of creators to be more approriately recognized. M. Ficsor, WIPO conference, April 7-8, 2016 13 III. EXCEPTIONS AND LIMITATIONS M. Ficsor, WIPO conference, April 7-8, 2016 14 Mainstream activities It is hoped that the current preparatory work in the SCCR will result in clarifying, in an appropriate instrument, the norms to be applied in the field of education, library and archive services and also access by persons with disabilities other than visually impaired and print disabled. In this respect – and in general regarding the application of exceptions and limitations – the following specific considerations seem to be necessary, with special attention to the principles of the WIPO Development Agenda. • blind, visually impaired, or print disabled M. Ficsor, WIPO conference, April 7-8, 2016 15 Academic agenda and Development Agenda Practical, effective solutions are needed rather than taking sides in ideologyrooted debates between academics. • • A typical example is the controversy about the application of the “three-step test”. From the viewpoint of development objectives, it is hardly a relevant issue whether the three conditions of the test are applied one after the other or together at the same time, or whether its consideration begins with the first, the second or the third condition – about which a lot of academic studies have been published. What is rather important is that all the three conditions of the test be applied by duly serving development interests, as stressed in the report of a WTO panel (in which I happened to be a member): In the application of the test “the goals and the limitations stated in Articles 7 [of the TRIPS Agreement according to which the protection and enforcement of intellectual property rights should be ‘conducive to social and economic welfare, and to a balance of rights and obligations’]… must obviously be borne in mind” (see para. 7.25. of panel report WT/DS114/R). M. Ficsor, WIPO conference, April 7-8, 2016 16 Applying good while waiting for better The existing possibilities offered by the international treaties for exceptions and limitations important for public interests and for development should be fully exploited. • A good example is the 1982 WIPO Model Provisions on exceptions or limitations for the visually impaired – adopted by WIPO-UNESCO working group of governmental experts (of which I happened to be the chairman). It contained already principles and rules which, to a great extent, corresponded to the provisions of the Marrakesh Treaty (and to that extent it was applied in the legislation of a number of countries). Similar models and national solutions do exist also for other exceptions and limitations to serve development interests. M. Ficsor, WIPO conference, April 7-8, 2016 17 Berne Appendix – out-of-date provisions, still valid principles and objectives The Appendix to the Berne Convention – although it has been included by reference both in the TRIPS Agreement and the WIPO Copyright Treaty (WCT) – due to the complex procedural rules and the long deadlines , has never been suitable to fulfill the objective of offering preferential treatment for developing countries through compulsory translation and reprint licenses for educational and research purposes. With the spectacular technological developments, it has lost any real relevance. However, the principles on which it was based and the objectives it was to serve are still 100% valid. It would be justified to review how those principles may be applied and how those objectives may be served in the digital online environment. M. Ficsor, WIPO conference, April 7-8, 2016 18 Possible issue-based rather than sector-wide exceptions and limitations In the attempt of adopting exceptions and limitations to the digital environment, specific norms seem to be necessary for such issues important from the viewpoint of development as distance education, digitization, use of orphan works, and access to out-of-commerce works. • The common characteristic of these uses of protected works is that there are no specific provisions on them in the international treaties. • To a great extent, the existing international provisions (such as in particular the three-step test) may offer adequate basis for exceptions and limitations allowing such uses, but agreement would be necessary for their interpretation and application, and some new norms might also be needed. M. Ficsor, WIPO conference, April 7-8, 2016 19 No „one-fit-for-all” solutions Nuanced criteria and rules are needed – and “one-fit-for-all” solutions should be rejected – in regard (i) to the differing levels of development and specific needs and requirements of the various countries; (ii) to the objectives of the uses of works; whether for more or less direct development purposes (such as education, research) or for mere entertainment; (iii) to the various categories of works relevant for such objectives. M. Ficsor, WIPO conference, April 7-8, 2016 20 IV. PROTECTION AND ENFORCEMENT OF COPYRIGHT M. Ficsor, WIPO conference, April 7-8, 2016 21 GRULAC proposal on the status of creators in regard to digital online uses As the proposal submitted by the Group of Latin American and Caribbean Countries (GRULAC) at the December 2015 session of the SCCR has signaled it, although the projects concentrating on exceptions to and limitations of copyright serving development interests is a key element of the Development Agenda, appropriate attention should also be paid to the protection and enforcement of copyright. In this regard, the following considerations seem to be justified. M. Ficsor, WIPO conference, April 7-8, 2016 22 Policies to encourage national creativity and develop national cultural industries In regard to the application of the concepts of trade and competition, it should be recognized that cultural goods and services are of a specific nature in that they may be closely linked to the identity of nations, nationalities and other social groups and are important from the viewpoint of the protection of cultural diversity. It should be recognized that, on the basis of its cultural sovereignty, each country is free (i) to apply cultural policies to encourage creativity of its nationals, (ii) to develop its national cultural industries, and (iii) to apply measures to guarantee due presence and representation of national creations in the market of cultural goods and services. • These are particularly relevant from the viewpoint of developing countries. • See Articles 5 and 6 of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. M. Ficsor, WIPO conference, April 7-8, 2016 23 The role of collective management in the promotion of national creativity The application of the principles referred to on the preceding slide is particularly important for collective management organizations, which should be regarded not only as “licensing bodies” but also as communities indispensable for the promotion of national creativity and the protection of cultural diversity. • Specific considerations for deductions for national cultural and social purposes. • See principle (23) of the WIPO book on „Collective Management of Copyright and Related Rights” (WIPO publication No. 855(E)): „authorizing deductions for cultural and social purposes may establish a favorable basis for the operation of joint management organizations in an efficient way, as well as for sufficient political support and social respect for copyright and related rights (in particular in developing and other ‚net importer’ countries).” M. Ficsor, WIPO conference, April 7-8, 2016 24 Traditional cultural expressions For the preparation of a WIPO instrument to recognize the cultural and economic value of, and protect, traditional cultural expressions, it should be taken into account that, in developing countries, contrary to the majority of industrial countries, this is not only a matter of traditions to preserve and take care of, but a living form of creativity and a significant asset in the international cultural market. • Article 15(4) of the Berne Convention: a cul-de-sac. • 1982 WIPO-UNESCO Model Provisions on the protection of expressions of folklore. • WIPO-UNESCO World Forum on the Protection of Folklore (1997, Phuket, Thailand). • Current work on an instrument on the protection of traditional cultural expressions in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. M. Ficsor, WIPO conference, April 7-8, 2016 25 Special vulnerability of developing countries to widespread infringements From the viewpoint of the enforcement of copyright, in particular in the digital online environment, it should be seen that widespread infringements may make national creativity and identity of less developed countries particularly vulnerable, at least in two ways: (i) the inundation of the cultural market by freely available illegal foreign products that have already proved to be popular creates brutal unfair competition to national creators and producers; (ii) while big multinational companies might easily survive losses in secondary and “peripheral” cultural markets of less developed countries, the chances of the usually small- and medium-sized publishers and producers of the countries concerned to succeed or even survive may be hopelessly undermined. M. Ficsor, WIPO conference, April 7-8, 2016 26 The role of online service providers The principles and rules established at the beginning of the new Millennium on the obligations and liability of online service providers and other intermediaries – in view of new technological and business-method developments – should be reviewed. Adequate legal and economic consequences should be deduced and applied for those intermediaries the services of which are not of a mere technical, neutral and automatic nature, and which obtain significant income by de facto communicating protected works (at the same time undermining the chance of creators to benefit from this kind of use of their works). • Francis Gurry, Director General of WIPO in his famous speech at the „Blue Sky Conference” in Sidney in 2011: „I believe that the question of… the responsibility of intermediaries is paramount. The position of intermediaries is key. They are at once, service providers to, as well as partners, competitors and even clones of creators, performers and their business associates; hence the difficulty that we have in coming to a clear position on the role of intermediaries.” (Emphasis added.) M. Ficsor, WIPO conference, April 7-8, 2016 27 Key points of the GRULAC proposal The contractual system of certain “legal” online services should be also reviewed and where necessary, through legislative and administrative measures, corrected to guarantee more judicious benefit for authors and performers in accordance – as suggested in the above-mentioned GRULAC proposal. • GRULAC suggests, inter alia, to be discussed in the SCCR: - Analysis and discussion of the role of companies and corporations that make use of protected works in the digital environment and their way of action, including the verification of the level of transparency on business and the proportions of copyright and related rights payment to the multiple rights holders. - Building consensus on the management of copyright in the digital environment, in order to deal with the problems associated to this matter, from the low payment of authors and artists to the limitations and exceptions to copyrights in the digital environment. M. Ficsor, WIPO conference, April 7-8, 2016 28 THANK YOU FOR YOUR ATTENTION e-mail: ceeca@t-online website: [email protected] M. Ficsor, WIPO conference, April 7-8, 2016 29