Today, the last day to SCCR 40, started with the first topic of Agenda Item 8 Other Matters: Copyright in the digital environment
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The first topic for “other matters”, Copyright in the digital environment, was first proposed in 2015 by GRULAC.
The Secretariat gave a short summary of activities and an update on their studies of the topic since then.
The Secretariat explained it is working on the basis of “the approved revised Modalities of a Study on Digital Music Services” (SCCR/37/4). A first Introduction to the Global Digital Music Market (document SCCR/39/3) was presented at SCCR/39 and the full scoping study will be presented during 2021.
As a general refresher and for the benefit of new delegates, let me provide some background on the process and the work that we have already undertaken on this issue in recent years. The topic was introduced through a proposal contained in Document SCCR/31, 4 put forward by GRULAC in December, 2015 , with the objective to open a discussion on Copyright in the Digital Environment and that first proposal included a wide range of different issues, such as the role of digital services and Internet service providers, fair remuneration for artists, transparency matters, and rights of users.
Those issues are largely relevant to the old spectrum of the creative industries. As first steps, the Secretariat arranged for the preparation of a scoping study on the impact of the digital environment on copyright legislation adopted between 2006 and 2016, Document SCCR/35/4. And we also organized a brainstorming exercise in April 2017 with 11 academics representing all regions and legal traditions, whose results were also presented to this Committee.
As a follow-up, Brazil proposed and the Committee agreed to proceed with a focused analysis of the music market in the digital age. In identifying the music sector as the first area to be covered, the Committee also left open the possibility to request further studies covering other areas, such as audio visual and publishing sectors.
The Secretariat prepared a document Modalities for the Preparation on Study of Digital Music Services, which was discussed, amended it’s, and approved by this Committee and it is now reflected in Document SCCR/37/4 Rev., which is currently guiding our work in this process.
In accordance with these modalities, the scoping study started by attempting to provide a description of the online music market and main business models that are emerging around the world. …The next steps of the analysis would now focus on more specific areas; namely, chain of rights or flow of rights, value chain or flow of money, and mechanisms for gathering data on the usage of music and for reporting distribution of royalties or flow of information….The Secretariat hopes to be able to publish all the remaining components of the scoping study during the course of next year.
Panama on behalf of GRULAC and Brazil expressed their hopes for more progress, a clear schedule and faster delivery of the stuy.
Speaking on behalf of GRULAC. …At Session 37 of this Committee, it was agreed that at this session the next stage of the study would be presented. However, we’ve noted that the Secretariat’s report does not show any progress and neither is sufficient information provided that will allow us to analyze the dynamics of the Digital Music Market Chain and the distribution of value in that same chain, and the economic impact of new technologies.
We would like to request the Secretariat to draw up a clear work schedule that establishes with certainty the preparation of a document that will address the shoots listed under Document SCCR/37/4 proposed modalities for a study on digital music services.
Likewise, we would like to stress once again the importance that our group attaches to the work to be done in the framework of the item on copyright in the digital environment where progress in the above mentioned study will make it possible to extend the exploration of the subject in other areas and other geographical areas, too. Thank you.
Brazil now has the floor.
…Mr. Chair, it is widely known and acknowledged that the world is moving towards greater digitalization. The COVID-19 pandemic has only accelerated this trend. With the move to the digital environment, new ways of marketing and distributing copyrighted contents have emerged. New platforms come to market every day, most of which increasingly rely on artificial intelligence for their functioning. This has implications for artists and consumers with results that are unevenly distributed along the value chain.
As an upcoming issue and economic trend, we believe that the topic of copyright in the digital environment is broad and mature enough to become a permanent agenda item in this Committee. We welcome Member’s views on this point. Mr. Chair, we fully align ourselves with the statement delivered by Panama on behalf of GRULAC which summarizes our main concerns with respect to the study on digital music services.
We thank you the efforts of the Secretariat in producing the study. However, during SCCR 39, my Delegation was not fully satisfied with the answers provided to some of the questions regarding its elaboration. Recognizing the challenges imposed by the COVID-19 pandemic, but we believe that even considering such challenges, we’re still far behind what could have been achieved at this point.
At the SCCR 39, this Committee was told that Document SCCR 39/3, an Introduction to the Global Digital Music Market would be a first phase of the study even though the modalities of a study on digital music services do not mention such phases.
Brazil would like to recall all concerns that was raised and suggestions that were made in our statement at SCCR 39 regarding this topic of the agenda. Paragraph 24 of the Summary by the Chair of SCCR 39 affirmed that a next phase was to be expected at SCCR 40.
Brazil notices that since SCCR 39, nothing else has been delivered and we would like to know why that is so. Brazil specifically asks the Secretariat, as it did at SCCR 39 and as did GRULAC at this session, to provide a clear schedule for the delivery of the study comprising all the elements requested in Document SCCR 37/4/Rev. which was adopted by this Committee. Thank you very much.
The Delegate from Zimbabwe (who is also attending the TRIPS Council right now) delivered the support of the Africa Group for more work and progress on the topic:
…The Delegation of Zimbabwe takes the floor on behalf of the African Group. Mr. chairperson the Africa Group extends thank you to the scoping study of modalities on study of digital music services to be presented in 2021. The Group reiterates the support for the proposal for analysis of copyright related to the digital environment by the Group of Latin American and Caribbean Countries. The COVID-19 pandemic has resulted in an unprecedented astronomical increase for demand of copyrighted works through digital platforms.
Digital platforms are borderless and therefore have potential of exposing artists to a wider audience. Unfortunately, due to a lack of adequate legal frameworks, such increased demand may not translate to increased remuneration for creators. According to the international confederation of societies of authors and composes, 2020 Global Collection Report, COVID-19 has significantly impacted global collection of royalties, especially in live and background music.
The Report indicated that collections for live and background music are almost down to zero, and in contrast there is a surge in online streaming as consumption habits shifted due to restrictions put in place by governments to curb the coronavirus pandemic.
It is noted that the increases in online streaming has mostly benefiting online service providers while rewards to CMOs and creators, especially in Africa, is very limited. The Group recommends that the study should also include the effects of COVID-19 on the demand for music for digital music. This is a sector that could greatly benefit from the expanded digital worldwide market and employ and empower thousands of artists in the music industries of developing countries. I thank you.
Not surprisingly, El Salvador chimed in:
The Delegation of El Salvador supports what the Delegation of Panama said on behalf of GRULAC. We thank the Secretariat for the updating of the information in the Study on Digital Music Services and we repeat what our delegation said, that there is an important need to start structured discussions in the SCCR on copyright in the digital environment. That is why it is important to conclude rapidly the Scoping Study on Digital Music Services, not only to analyze its results, but also to have space to tackle other types of work that have become the subject of digital services.
The Internet and the Fourth Industrial Revolution have already changed things and it has become necessary to starts this discussion, especially now in times of the pandemic because Internet is where most things happen, activities both of family, professional, academic, and so on. Every day we interact with various works protected by copyright and related rights, so the need is even more pressing now.
We need to put this item on the agenda of the SCCR as soon as possible, and it should become a standing item. We know that this decision can’t be adopted at this session, but we would like to put this on the table so that the discussion can be resumed once the circumstances so permit so as to take a decision on the matter and start thinking about all of this and working on it it. Thank you.
The USA (happy as long as there is no new norm setting activities):
…The United States believes that the SCCR should be a forum to discuss timely, significant, substantive copyright issues without preparing for norm setting. Consistent with this view, the United States thanks the Secretariat for its update on progress of research on the digital music services, and we look forward to continuing discussion of this topic at the next session of the SCCR. Thank you, Mr. Chair.
The European Union also stated that the issue of copyright in the digital environment “merits attention”
As expressed before on this item, the European Union and Member States believe the issue of copyright in the digital environment merits attention and discussion in order to ensure that copyright can be more efficiently protected and able to play its role in the digital era. In this regard, we would like to thank the Secretariat for the update that was just made on this topic, and we look forward to the full scoping study in 2021. Thank you very much.
After Gabon supporting the statement done on behalf on the Africa Group, the Chair gave the floor to the NGOs:
For the analysis of copyright related to the digital environment, KEI suggests that the SCCR include a workstream on transparency, a topic mentioned in the original GRULAC proposal and with which there are opportunities to identify gaps as well as measures that will enhance transparency. This can include, for example, greater transparency of the distribution of income between authors, performers, and publishers, broadcasters or other rightsholders, as well as the revenue flow between countries.
There should be more transparency of the finances of the platforms that distribute and stream works. Transparency can include improving the metadata regarding the identity of photographers, authors, performers, dates of works, and owners of rights. Transparency can include creating repositories of contracts between authors and performers and their publishers, as well as between publishers and libraries and research institutions to better understand if contracts are fair and achieve social objectives regarding access and the support of authors and artists.
There are some good examples of metadata to stream music and some uphauling examples, for example on the same platforms. Knowing why this is and identifying best practices and possible issues about standards and interoperability for databases, such as data, would be a good use of the SCCR’s time instead of fights between publishers and user groups, then the SCCR could focus on making the copyright system work better for authors, performers, and listeners, the three most important stakeholders.
Finally, KEI believes that transparency is becoming a core issue in protecting society from the growing use of propaganda and false narratives to manipulate policy outcomes. We would support efforts to have more evidence and more facts before policies are shaped. Post-truth policies is a political culture in which debate is framed largely by appeals to emotion disconnected from the facts or details of policy. WIPO can pivot to more facts, more truth by adapting an agenda item on transparency, and by doing so, make the copyright system work better for society. Thank you very much.
ELAPI followed but there were no more interventions after:
Thank you, Chairman, for giving us the floor. Through you, we address this Distinguished Committee, as regards to the item on the agenda, ELAPI would like to say that there is a need to continue with a detailed analysis of the problem which is becoming even worse.; that is the protection of the rights of artists and performers in the digital environment.
There should be balance between receiving economic income and the use of protected works whether these are protected or not, and this is one of the main obstacles to obtaining true economic compensation for the rightsholders for protected works and protection of cultural activity.
ELAPI is prepared, therefore, to collaborate with the work being done so as to determine the behavior of the various groups that make up this digital environment so that people bear in mind that the performers and artists I’m talking about are the ones worst affected by the pandemic.