Vivendi-SFR lobbyist nominated to WIPO by Hervé Le Crosnier
On July 14, 2016, the former Vivendi-SFR lobbyist Sylvie Forbin was named Deputy Director General of the WIPO “Culture and Creative Industries Sector” (the World Intellectual Property Organization is a United Nations agency). It is a good thing that a woman was named for such a high-level position. She is the second woman to be selected for this post, after Ms. Binying Wang, who is now in charge of the Brands and Design Sector. Ms. Forbin, who speaks Chinese, has worked at the French Embassy in China, and thus they will be able to speak to each other, also inasmuch as trademarks have (unfortunately) become a major component of cultural industries. It is a good thing that trade with Asia is growing, and knowing an Asian language has become a plus in international organisations.
But that’s it for the good things, and you will find nothing else that’s good in relation to the Sector itself: “Culture and Creative Industries.” Indeed, Ms. Forbin has a very peculiar approach to the notion of public interest in cultural matters. From 2001 to last December, she was “Director of Institutional and European Affairs” (read: lobbyist) at Vivendi-SFR. In that role, she largely contributed to the “Vivendi Amendment” during the debate on the DADVSI Law (2006), which aimed to prohibit P2P software, “confusing the tool and the use,” to quote Christian Paul. Worse, she defended the idea of installing software that blocks certain sites and protocols in users’ inboxes, which, in these times of increased internet surveillance as revealed by whistleblower Edward Snowden, is a rather intriguing notion. Admittedly, Jean-Bernard Levy, then head of Vivendi, strongly supported M. Riguidel, who has filed a patent on “Deep Packet Inspection,” aiming — in contradiction to all traditions in telecommunications — at examining contents and protocols of packets before allowing them to go through.
Ms. Forbin also distinguished herself for the contempt in which she holds the activists who work to prioritize access to culture and loosen the hold over the uses as well as the contractualisation of all internet activities (via DRM or other EME).
This clearly shows what the problem is: a directorship at WIPO, responsible for defining the public interest in the field of cultural industries, is entrusted to a lobbyist who defends the special interests of her company (and more generally of a certain industrial sector). But Ms. Forbin is also a civil servant seconded by the Quai d’Orsay [the French Ministry of Foreign Affairs]. The “revolving door” practices between the public sector and large private companies have become typical of the neo-liberal state, but nonetheless raise serious ethical problems.
As Philippe Aigrain emphasized in 2006:
“[W]e have to realize and explain that there is a fundamental difference between, on the one hand, trying to influence the direction of policies and of texts written by those who have a particular vision of public interest, and on the other, the corrupted preparation of related decisions by private and organizational interests. To strive to influence policies by discussing the search for the common good is at the heart of democratic life.”But there is a big difference between actions taken by civil society to present problems to the “Tribunal of Reason,” as the philosophers of the Enlightenment called it, and the actions of lobbyists and other “public relations experts” who manipulate the issues at hand to favor their company or industrial sector. Especially when these lobbyists have at their disposal networks and information which are not part of the public debate and not accessible to civil society actors (as shown by Guillaume Champeau, Ms. Forbin, in contrast to civil society actors, obviously had access to classified information concerning Hadopi).
Significant change of Sector name
The nomination of Ms. Forbin coincides with a change of name of the Sector in the WIPO organizational chart. From “Culture and Creative Industries,” this Sector has become “Copyright and Creative Industries.” This is a very significant change. The needs of culture and its transmission require the implementation of numerous exceptions to monopolies on use, which is the basis of copyright/author’s rights. There are, for example, exceptions for libraries, for education, for access for visually-impaired persons, for private copying, etc. At the head of her Sector at WIPO, Ms. Forbin will have to supervise the work of the Committee on “Limitations and Exceptions” which, precisely, aims at defining and defending these exceptions which are necessary for a smooth functioning of the system and cultural exchanges. But there is no more talk of culture. The focus has been changed: now it’s about finding ways to reinforce a logic of copyright. And therefore to restrict limitations and exceptions.
Copyright/author’s right is necessary for creation, but there must be balance in order for creation to also serve public interest. Culture is transmitted and shared, and that is only possible under the strict implementation of a right that was developed to manage industrial relations (between creators, media and publishers, and between these industries, even if this right has mainly evolved to produce rent for these industries). Francis Gurry, Director General of WIPO, who has nonetheless just appointed Ms. Forbin, has said it himself: “Copyright should be about promoting cultural dynamism, not preserving or promoting vested business interests.”
Yet, this switch from “culture” to “copyright” is not an isolated case, which is even more disturbing. Nicolas Georges, in charge of “le Livre et la Lecture” (Book and Culture) at the French Ministry of Culture, stated last April, at the Epub Summit in Bordeaux:
“Exceptions to author’s right are implemented today to respond to the needs of the public [library users or print disabled persons], however, the Ministry does not like these exceptions because it is also the Ministry of Copyright.”
Is this coincidence, which certainly is not fortuitous, a new “language element” likely to take on new meaning? Is this change a way to conceal a thorough job being done on a global scale by spin doctors and other “public relations experts”? Whatever the case may be, it is dangerous to let such deviations proliferate. The role of copyright is to contribute to cultural development, not the other way around. Culture, and thus sharing, “limitations and exceptions” in legal terms, and the universal right of access to culture, notably through specialized institutions such as libraries, must remain a priority, and legal and economic instruments can only serve these public interest objectives.
And here the problem of Ms. Forbin’s nomination comes up again. A lobbyist, by nature, has, shall we say, a very peculiar understanding of the notion of public interest; she must, by profession and inclination, satisfy the interest of the company or industry whose positions she defends. And WIPO, until further notice, is a body of the UN system, and should therefore focus on the collective and multilateral definition of the public interest.
With the name change and the nomination of a lobbyist in this Sector, WIPO’s choices clearly demonstrate a reversal of norms, which, unfortunately, is increasingly frequent since the success of neo-liberal theories. Thus the norm of commerce (and indeed the focus on income in the context of copyright term extensions going far beyond the life of authors) will prevail over the promotion and development of culture.
Larry Lessig, the founder of Creative Commons licences, after having worked in the field of culture for a long time, decided, in 2007, to devote his energies to another essential battle: the fight against corruption, against control over the definition of public policies by lobbyists and moneyed interests. With this choice, he remained visionary. Corruption is much more than kickbacks at FIFA: corruption is the insufficient number of people committed to defending public interest in institutions, the lack of attention accorded to civil society, the revolving door practices of neo-liberal lobbyists between company interests and the organization of public debates, and their control of institutions and political decisions.
First published in French, July 15, 2016, on Vecam: citoyenneté dans la société numérique