It is well known that sometimes you need to be an outsider to be able to analyze complex problems in a meaningful way. In the ongoing discussions about copyright in the digital environment Russian president Dmitry Medvedev might turn out to be the much-needed outsider. In the past Russia has not had a very strong voice in the discussion about copyright; it has neither been involved in the WIPO development agenda nor has it been part of the ACTA negotiations. Out of this relatively neutral position comes a somewhat unexpected intervention of Russian president Dmitry Medvedev who used last week’s G20 summit to propose an overhaul of the copyright system to the leaders of the G20 member states assembled in Cannes.
It appears that his initiative was largely ignored by his audience as well as the press (both of them having been too busy ‘saving Greece/the euro/the world’ or covering the ongoing attempts to do so) which is rather unfortunate since Medvedev’s proposal contains a number of really interesting points.
First of all, it is really refreshing to hear a world leader state the obvious with regards to the modernization of the copyright system:
Digital technologies and global information networks have made a real breakthrough in information accumulation and exchange. The old principles of intellectual property protection established in a completely different technological context do not work any longer in an emerging environment, and, therefore, new conceptual arrangements are required for international regulation of intellectual activities on the Internet.
It is interesting to note that Medvedev comes to the conclusion that in order to deal with a dysfunctional system, ‘new conceptual arrangement are required’. This is in stark contrast to most of his peers who seem to be unable to think outside of the ‘more enforcement is always better’ box. Now ‘new conceptual arrangements’ are not exactly popular within circles normally dealing with copyright policy questions. Any proposal that is veering too far from the existing arrangements is usually dismissed with a references to the 1886 Berne Convention for the Protection of Literary and Artistic Works which is generally interpreted as to make it more or less impossible to change the fundamental rules of copyright protection.
This does not really impress Medvedev though. Instead he observes:
Adoption of changes and addenda to the [Berne] Convention fully complies with historical tradition. The Convention, executed in 1886, has been changed and supplemented several times following emergence of new forms of expression and distribution of literary and artistic works. During the 20th century, the Convention has been extended to photographs, sound recordings, cinematographic works, and authors obtained exclusive rights to distribute their works through radio and television stations. However, now the world has finally entered a new era, the era of Internet technology, where an increasing amount of information is stored in the “virtual space”, and not on tangible media.
To a certain extent, the WIPO Performances and Phonograms Treaty and the WIPO Copyright Treaty, both adopted in 1996, respond to the changes occurred. However, as described below, they do not take into account, to the extent necessary, the interests of users and information intermediaries.
Having established that the Berne Convention can (and must) be adapted to the realities created by the digital environment (or ‘virtual space’ if you are so inclined) Medvedev identifies three main principles for ‘the protection of the results of intellectual activities on the Internet’:
- The State should establish a certain level of legal protection for the objects of copyright and neighbouring rights on the Internet and give a right holder an opportunity to choose a model of protection of his or her work that suits his or her interests best.
- A major element of a new approach to the protection of copyright and neighbouring rights could be the introduction of assumption that the use of objects of copyright and neighbouring rights on the Internet shall be considered free unless the right holder states otherwise. At the same time a minimum level of protection that will not require any declaration from the right holder must be established.
- If found guilty, information intermediaries on the Internet (communications service providers, Internet website and domain name owners, etc.) should be held responsible for violation of copyright and neighbouring rights on general grounds, except for specifically established cases (e.g., if they were not aware or were not supposed to be aware of the illegality of content).
The first two points make an argument for reversing a central principle of copyright protection. Instead of assuming that each and every creator of a work that qualifies for copyright protection wants this work to be ‘protected’ from potential users for 70 or more years, Medvedev proposes to start with the assumption that free use is allowed unless the creator has stated otherwise.
This approach (copyright experts call this ‘reintroduction of formalities’) is generally considered to be impossible to implement as it would violate the Berne Convention which establishes that full copyright protection has to arise automatically and is interpreted not to allow formalities (like making a statement in order to obtain copyright protection).
As Medvedev points out, such principles which have been established long before the advent of pervasive digital communication networks need to be adopted to reality. In a world where the majority of content is not created by professionals (who depend on copyright to monetize their creations) anymore, it is more or less absurd to automatically award 100 plus years of copyright ‘protection’ to all creative works.
The internet makes it trivial for authors who do require copyright protection to register their works as a prerequisite for obtaining full copyright protection. The fact that the Berne Convention–drafted in 1886–does not allow this must be seen as a flaw in the Convention and not as a hindrance to a ‘new conceptual arrangements’ that take into account the changed technological and cultural environment.
Of course Medvedev is not the first one to identify the re-introduction of formalities as a solution to the inconsistencies between copyright law and the digital environment. In the past the same argument has been made by eminent scholars such as Prof. Lawrence Lessig and is incorporated as one of the 14 policy recommendations issued by COMMUNIA:
In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection.
Unfortunately Medvedev’s proposal is somewhat ambiguous when it comes to his third main principle. His call to hold ‘information intermediaries on the Internet […] responsible for violation of copyright’ does sound like a threat to established principles like the ‘safe harbor‘ provisions of the EU’s e-commerce directive and the DCMA. At a time when such safe harbor provisions are under increased attack by the entertainment industry, there is a attack, there is a substantial risk that this third principle will be interpreted as a call to increase the liability of information intermediaries. Digging deeper into his proposal it does however become clear that Medvedev is not especially interested in increasing liability but rather calls for international harmonization in this field:
Due to the trans-border nature of the Internet infrastructure and the same trans-border nature of information intermediaries and right holders’ activity, there is a need to introduce uniform rules that would regulate their relations and take into account public interest.
That being said, it shall be reasonable to bear in mind the need for limiting the information intermediaries’ liability. They should not be liable for providing the user with access to the Content that has been illegally published by third parties, provided that the information intermediaries did not know or could not have known about illegality of such publication.
It is remarkable to see such interventions in policy discussions on copyright which have otherwise degenerated over the last years into a stalemate between well established positions on all sides. Medvedev seems to be intent on giving this a serious try and his proposal to the G20 leaders (which includes a comprehensive ‘Plan of Amendments to the Berne Convention’) is well worth a read in its entirety.