Access to Knowledge at the Internet Governance Forum

Consumers International and the African Copyright and A2K Project (ACA2K) this week held a successful workshop looking at the Global State of Copyright and Access to Knowledge at the 2009 meeting of the multi-stakeholder United Nations Internet Governance Forum in Sharm el Sheikh, Egypt. The session was moderated by Dr Bassem Awad from ACA2K, who is also Chief Judge at the Egyptian Ministry of Justice.

Our first panelist was Lea Shaver of Yale University's Information Society Project, who dealt with the purpose of copyright law. One popular view is that its purpose is to maximize revenues for copyright industries such as publishers, movie houses and retailers, which makes sense to regulators as a source of growth and foreign exchange. But in fact the purpose of copyright is to encourage creativity and the diffusion of creative works. Copyright should therefore not be an industrial subsidy, but a tool for access to knowledge. If copyright law gets in the way of creativity and access, it is frustrating this purpose.

Thus Lea's first main point was that in assessing copyright law our touchstones should be access, affordability and participation. Our tools to uphold these values can be framed in terms of consumer protection, human development and human rights. Copyright shapes affordability and access because as the scope of rights expands, the more control is centralised and the less competition. It also shapes participation, because under current law the amateur who wants to build upon existing works is at a disadvantage, and risks running afoul of others' rights.

Her second point was that we are seeing a shift in the economics of knowledge distribution.  This has massively changed the ecosystem in which text and creative works travel. Distribution and format shifting is now much easier and cheaper than before. Yet copyright protection is ever increasing, and this cannot be justified by the need for additional incentives for creativity. Rather, it reflects the problem of rent-seeking ("the Disney effect" - so termed for the extension of the copyright term to avoid Disney's loss of its early Mickey Mouse assets).

However Lea closed noting that there is a counter-movement emerging of organisations seeking to invoke the public interest in access to knowledge. This movement has gained traction following the passage of the TRIPS agreement which set new high standards for global IP protection. It is in this context that the importance of the research on A2K can be understood. In summary, copyright law should not simply maximising incentives at the expense of other public values.

Our second presenter was Dr Perihan Abou Zeid from Pharos University, Alexandria, Egypt. She introduced the ACA2K project, which aims to probe the relation between copyright law and access to knowledge with regard to education and learning materials.  Working with the ACA2K project are 30 experts in 8 countries: Uganda, Mozambique, South Africa, Egypt, Morocco, Ghana, Senegal and Kenya.

The project methodology consists of two main phases: a research phase comprising doctrinal (legal) research and quantitative (impact) analysis, and a policy engagement and dissemination phase. The first phase has now been completed, and dissemination is now in progress, with findings having so far been presented to WIPO's Standing Committee on Copyright and Related Rights.

Dr Abou Zeid then moved on to discuss the A2K environment in Egypt specifically. Egypt is a civil law country (thereby recognising both moral and economic rights), governed by a 2002 Copyright Act.  Its coverage for rights holders is quite broad. There is a copyright exception and also a compulsory licence provision for educational purposes, but e-learning and distance learning are not covered by this. There is a separate exception allowing photocopying for personal use, adapting the three-step test, but many libraries impose their own quota restrictions outside of what the law requires, with varying levels of enforcement.

Other exceptions include translation of books not written in Arabic, and reproduction of single copies by libraries and archives on request or for archival purposes. There is no disability exception however, and unusually, Egypt requires a licence to be obtained even to reproduce works that are in the public domain.  Moreover, there are anti-circumvention provisions, with penal sanctions.

Dr Abou Zeid's conclusion relevant to the Internet Governance Forum was that ICTs are not about technology, they are about knowledge.  ICTs are being used to extend protection to knowledge that is not protected by copyright already. There should therefore be exceptions and limitations to TPM (Technological Protection Mechanisms), just as there are to copyright law. Amendments covering distance learning, ICTs and disabilities are also needed. Meanwhile, the main channel to secure access to knowledge in Egypt is the non-enforcement of copyright law!

Tobias Schonwetter from the University of Cape Town, South Africa was next to speak. He described the methodology of the ACA2K project's work, which involved both a survey of legislation and a review of secondary literature and interviews with relevant stakeholders. The research output involved 8 country reports and policy briefs, and a stand-alone comparative review. There have been two WIPO briefing papers, and statements read at WIPO about the project's research, as well as book chapters and journal articles. There will also soon be a book to be published in 2010 under a Creative Commons licence.

Tobias and his team looked at the South African Copyright Act with respect to matters such asorphaned works, library and archive exceptions, moral rights, provisions for the sensory disabled, and distance education and e-learning provisions. The team also looked at other legislation besides the Copyright Act that impacted on access to learning materials, as well as the government's FOSS policy, and global and regional treaties.

The copyright law in South Africa is a 1978 Act which does not take into account the new digital environment. Format shifting, for example, remains an infringing act. The exceptions and limitations are few, and there is uncertainty about their use. The anti-circumvention provisions are contained elsewhere in the law, and may nullify even some of the exceptions the Copyright Act does provide.

The team found that the copyright environment in South Africa does not maximise effective access to learning materials. It made legal recommendations addressing the issue of orphaned works, and advising that copyright term should not be expanded from its current 50 years. Another weakness is that there is little case law in South Africa that might clarify ambiguities in the law. Although there is a body of secondary literature, South African academics are not very actively involved, with most input coming from copyright holders and libraries.

Tobias concluded by briefly mentioning the situation in other countries, which had a variety of different legal traditions, and more or fewer exceptions. Most countries granted greater protection to rights holders than international law required.  No countries dealt with distance and e-learning, and only one (Uganda) dealt with the needs of the disabled. He hoped that the extended dissemination phase would assist other projects to build in ACA2K's work.

CI Project Coordinator Jeremy Malcolm next introduced Consumers International's current research activites on A2K. These include the IP Watch List for 2009 and 2010 rating how friendly various countries' copyright laws are for consumers, a consumer survey on A2K access barriers, and targetted national research in Australia and Israel investigating the effect of consumer-friendly copyright limitations and exceptions on overall welfare.

The results from the 2009 IP Watch list suggest that the biggest problems in copyright law worldwide are the lack of support of any country for non-commercial creativity and sharing.  From the consumer survey, it is suggested that consumers would pay for better quality originals of copyright works if they were fairly priced. And the interim results from the national research suggest that consumer-friendly copyright exceptions may increase respect for the law.

The overall conclusion from these research findings is that legal systems worldwide are not meeting consumers' needs for access to knowledge. A better legal system, the research suggests, would support non-commercial sharing and reuse of material, which in turn would drive down costs and increase sales of licensed material, and could also increase consumers' respect for the law overall.

Finally Pranesh Prakash from the Centre for Internet and Society, Bangalore took the session full circle by asking, why are we talking about A2K? He answered that it effects almost all areas of concern to consumers - education, industry, food security and health. IP has been said to be the oil of the 21st century. By creating barriers through IP, there is less scope for expansion of knowledge. In India, there is a new copyright amendment that will introduce DRMs, and increased criminalisation which classes video pirates in the same category as slum lords, drug peddlers and terrorists, including preventative detention.

One tool to help change the mindsets of the public is the Consumers International IP Watch List, which can help policy makers and academics and advocates compare the best and worst practices of various countries.  For example in a session earlier in the IGF, Carlos Afonso from Brazil had used it to demonstrate the weakness of Brazil's laws, in that it had achieved an "F" score from the Watch List on education.

The Watch List is published in response to the USTR Special 301 Report, and helps countries learn to to push back against that report, as Israel and Canada have done so far. As for India, its government has said that whilst IP is important, the right to health is even more important. Now even industry is pushing back in India.

Pranesh suggested that the ranking of countries needs to be addressed in future to avoid giving an "A" ranking to a country simply because it is the "best of a bad bunch", which could be counter-productive. The Watch List should also take into account unrealised possibilities to expand access to knowledge. Dissemination and reach-out to policy makers is also important, as is the assessment of impact.

Pranesh concluded by observing that copyright is characterised as striking a balance between the interests of creators and consumers, but that this rhetoric is misplaced. In fact creators often benefit from freer sharing by users. Knowledge is an input into creation, not just an output from it.  Therefore it is important to counter IP expansionism using various tools such as freedom of speech, competition law, consumer law and privacy law, as appropriate in various countries, to eventually produce a change in mindset.

During question time, an audience member from Jordan asked what was the outlook for countries such as his, which had recently signed an FTA (Free Trade Agreement) limiting its sovereignty over standards of IP protection?  Lea Shaver noted that Jordan had effectively been coerced into this agreement, and that other countries, particularly those with small negotiating teams, need to be very careful to avoid the same fate.

Jeremy Malcolm responded that the laxity of enforcement in Jordan was actually one of the few points in favour of access to knowledge in that country, as in Egypt. However Lea pointed out that the ACTA treaty, once signed, would be likely to raise global levels of IP enforcement, including liability for materials transmitted over the Internet. This worried her, as no computer algorithm can detect fair use, and the result will be a restriction on legitimate knowledge sharing.

Pranesh Prakesh noted that countries in Jordan's position should realise that foreign direct investment is not always linked to stronger IP - even OECD and WIPO studies go to show this. Finally Tobias Schonwetter stated that once an FTA is signed, it is tough to get out, but foreshadowed that perhaps once the prevailing mindset changes, both countries might allow renegotiation.

You can download the presenters' slides by clicking on their names above, and an MP3 recording of the workshop is also available.

 

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