Two new proposals concerning the rights of artists seemed to bring new energy to the World Intellectual Property Organization copyright committee last week. Proposals encouraged delegates to create a legal framework to help artists benefit from use of their works and royalties by intermediaries.
The 31st session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) took place from 7-11 December. According to the summary by the chair, adopted by the SCCR on 11 December, both topics will remain on the agenda of the 32nd session of the SCCR, from 9-13 May 2016, under the agenda item “other matters.”
Calls for Transparency in Royalty Sharing
The first proposal [pdf], from the Group of Latin American and Caribbean countries (GRULAC), suggested that work be undertaken by the SCCR on challenges arising from the use of intellectual property rights in the digital environment.
The document, said the Brazilian delegate on behalf of the group, seeks to identify common solutions to deal with new digital services and technologies that have emerged since the adoption of WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty (WPPT), the so-called 1996 “WIPO internet treaties.”
In addition, the delegate said, there is a growing number of companies developing new business models based on the use of copyrighted works on digital platforms, with concerns at both national and international levels, in particular transparency on the remuneration of authors and performers.
Three areas of work for the SCCR are presented in the proposal, the delegate said. One is to analyse and discuss WIPO member states’ legal framework on the use of protected works in the new digital services. Another is to analyse and discuss the role of businesses and corporations who make use of the copyrighted works in the digital environment, in particular their mode of operation including the verification of the degree of transparency in business and remuneration of various right holders involved. The third is copyright management in the digital environment in order to deal with the problems associated with this matter.
Several countries agreed to start conversation on the proposal in the SCCR, such as Singapore, Senegal, and India, some under “other matters,” such as the Group of Central European and Baltic States, and Nigeria.
The Federación Ibero-Latinoamericana de Artistas, Interpretes y Ejecutantes (FILAIE) said the GRULAC proposal is timely and necessary as the current situation is very serious, with the potential of “becoming catastrophic” in the very near future if necessary measures are not taken.
Recording companies have too frequently “a free rein,” said the FILAIE representative, according to the interpretation in English. Popular digital platforms do not pay much to artists, when they do at all, he said.
Governments, policymakers, and organisations such as FILAIE, which are “the voice of silent voices,” have a responsibility to make headway to correct the situation, he said.
The FILAIE representative cited the ongoing European Fair Internet for Performers campaign as an example of raising awareness on those issues. According to the campaign website, the current European legislation, such as the “Information Society” Directive 2001/29/EC is ineffective to protect artists.
“As performers’ exclusive intellectual property rights are not adequately protected by the current EU legislative framework, it is easy for businesses to exclude in practice performers from any financial reward when their sound and audio-visual performances are commercially exploited online,” the campaign said.
Other organisations representing authors welcomed the GRULAC proposal and said it clearly reflects the precarious situation of artists. They said contractual conditions under which artists operate are unfair, in particular their low level of remuneration by digital services such as Pandora or Spotify, which one said are controlled by the major record labels.
The International Confederation of Authors and Composers Societies (CISAC), for example, said: “What we have today is a transfer of value which takes place when online intermediaries capture enormous value of the use of creative works without proper compensation for the right holder.”
“Many online intermediaries generate huge profits from using creative works and refuse to share the profits with the creator of the works. Unfortunately, the situation exists because of outdated laws,” CISAC said. “Many intermediaries rely on safe harbour laws that never were meant to protect them to avoid paying creators any royalties or underpay them.”
This situation might also result in unfair competition with the legal services who respect the right of creators and pay them royalties, they said.
Resale Rights Needed to Ensure Growing Art Market Benefits Artists
Separately, Senegal and Congo tabled a proposal [pdf] on resale right. Resale right refers to royalties paid to visual artists by third parties, such as auction houses, when their work of art is resold.
Senegal, presenting the proposal, said the resale right is recognised in the Berne Convention for the Protection of Literary and Artistic Works and some 80 countries have the right enshrined in their legislation.
For the moment, large art markets such as the United States, China, and Switzerland do not have resale right. The benefit of the resale right cannot be fully enjoyed unless there is universal recognition because there is no reciprocity, sources have said.
There is an “explosion in the art market” at the moment, the delegate said, with works achieving prices never before reached in history, he said, and at the same time “artists die in obscurity” while their works enrich others. It is a great injustice and the situation is recurrent in Africa, he said.
It is a pressing need and the resale right is not a complicated measure to implement, he said. After many years discussing other important issues and making difficult progress in the SCCR, small measures could be taken that would have a great impact and strengthen the credibility of WIPO and the SCCR, he said.
The proposal was supported by CEBS, and the European Union, Côte d’Ivoire, Algeria, and Ukraine. The EU has a Directive ( 2001/84/EC) of September 2001 on the resale right for the benefit of the author of an original work of art.
CISAC supported the GRULAC proposal and said the proposal is about bringing more transparency to the art market.
“When a work of art increases in value it increases in value because of the artist,” the representative said. It is the artist’s growing reputation and popularity that leads to an increase in that value.
Because the Berne Convention has no binding terms on resale right, the CISAC representative said, the availability of the right and the level of protection varies from one country to another and depends upon nationality.
Tags: Africa IP, FILAIE - Federación Ibero-Latinoamericana de Artistas Interpretes y Ejecutantes, GRULAC - Group of Latin American and Caribbean countries, SCCR - WIPO Standing Committee on Copyright and Related Rights, WIPO - World Intellectual Property Organization, WIPO Copyright, WIPO Copyright Committee