That Was the Year That Was: Looking Back at Some International Copyright Issues in 2017

source: shutterstock.com

2017 was quite a year on the trade policy front. It saw Britain triggering the Brexit exit clause and then trying to work out with the EU the modalities for UK-EU relations after British withdrawal. It saw the start of NAFTA re-negotiations between Canada, Mexico and the US, a process which has seen accusations of intransigence by the negotiating partners and has led to active debate within the US as to the wisdom of some of the US negotiating objectives. 2017 was also the year when the Trans-Pacific Partnership (TPP) was re-invented as the TPP11 (i.e. the original TPP minus the US). While all of these agreements had implications going far beyond copyright issues, copyright was very much a part of the mix.

In May of 2017 British Prime Minister Theresa May triggered Article 50, beginning the two year process of Britain’s withdrawal from the EU. This was followed in June by Ms. May’s poorly executed gamble in calling a general election that she expected would give her a stronger mandate to negotiate Brexit’s terms. As we know, she ended up with a minority government and is clinging to power with the support of a dozen Ulster Unionists. Negotiations with the EU on the shape of Britain’s future relationship with the EU have been slow, with the EU insisting that Britain first agree to the size of its financial contribution to the EU budget post-Brexit. While Brexit will affect many aspects of life in Britain, and the EU, copyright is no exception. Some thinking has been done on how Brexit will affect copyright, as I noted in blog earlier in the year, but there is still a great deal of uncertainty as to how it will play out and internal debate and discussions continue. While the clock is ticking on British withdrawal, the copyright world is not standing still, with new treaty obligations coming into effect, and further developments taking place with regard to the EU Digital Single Market. Assuming the UK will not be in the EU after May of 2019, recently proposed exceptions to allow geo-blocking of copyrighted material such as e-books will not directly affect British copyright holders.

If the Brexit referendum in 2016 was seen as one manifestation of anti-globalization sentiment, the election of Donald Trump was another. In 2017 Mr. Trump followed through on his commitment to either withdraw or renegotiate NAFTA. After toying with but apparently putting aside the idea of triggering the NAFTA 6-month withdrawal clause, the Trump Administration pushed for negotiations to “modernize” NAFTA, which began in Washington on August 16, 2017. So far the negotiations have not gone well. In its updated negotiating objectives, the US has outlined a number of issues within the intellectual property chapter where it would like to see new commitments made by Canada and Mexico, including issues such as extension of copyright term (Canada; Mexico already has a longer term than the US) and criminalization of circumvention of technological protection measure (TPMs) for commercial purposes. These are all covered under the generic objective of;

seek provisions governing intellectual property rights that reflect a standard of protection similar to that found in US law, including, but not limited to protections related to trademark, patent and copyright and related rights…”

These were measures that had been agreed to within the original Trans-Pacific Partnership (TPP) text, but after the US withdrew from the TPP upon Mr. Trump’s assumption of office, the remaining TPP countries “suspended” these provisions.

The resurrection of the TPP from its death-bed is another interesting development in 2017. After Mr. Trump announced US withdrawal on Day 2 of his Administration, the conventional wisdom was that the TPP was dead. However the remaining partners kept talking and meeting and things progressed from there to the point that the Leaders of the eleven remaining partners announced at the APEC meeting in Danang, Vietnam, in November that they had reached agreement on “core elements”. Even though a number of the copyright provisions in the TPP agreement were suspended in Danang, they have not been eliminated and could be brought back if and when the US ever reconsiders its position on TPP, or even as part of the NAFTA negotiations. It has been quite a year for copyright on the trade front.

There are other copyright developments that occurred in 2017 that are also worth recalling. One is the landmark decision in Canada where Access Copyright prevailed in its suit against York University. The case was an outgrowth of the new educational fair dealing exception introduced into Canadian copyright law in 2012. The university community in Canada arbitrarily decided that it would interpret the fair dealing guidelines in its own way and would cease to license many copyrighted materials from the collective operating in English Canada, Access Copyright. This was challenged in a suit brought against one of Canada’s largest universities, York University in Toronto. In finding for Access Copyright, the judge in the case commented that “York`s own Fair Dealing Guidelines (Guidelines) are not fair in either their terms or their application”. Unfortunately, rather than accept the judgment of the Court, York has decided to waste further public funds by appealing the decision. The decision was welcome relief for the educational publishing industry in Canada which has found that the bottom has dropped out of its market since the introduction of new exceptions back in 2012. A similar parallel case involving the Quebec copyright collective Copibec, which is suing Laval University in a class-action suit, is still wending its way through the provincial court system.

Another notable development on the copyright front in Canada is the announcement—finally—that the long awaited review of the Copyright Act will get underway with consultations beginning in early 2018. The required five-year review was required to take place in 2017 (the five years was due in November) but the Trudeau government left the announcement to the final week of Parliament when it announced, on December 13, that the House Committee on Industry, Science and Technology, assisted by the Committee on Canadian Heritage, will undertake a study of the Act. The announcement was welcomed by stakeholders on both ends of the copyright spectrum, with the publishing industry looking to narrow overly-broad exceptions introduced in 2012 when the new legislation came into force, and the music industry seeking to address the “value gap”, while opposing voices will continue to push for introduction of US-style fair use rules.

On the other side of the world, in Australia, the Australian government finally responded to the report on intellectual property issued by the country’s Productivity Commission. The Commission had produced some controversial recommendations with respect to copyright that could accurately be described as “copyright-bashing”. These included reducing the term of copyright protection from the existing 70 years to just 25 years (a non-starter given Australia’s treaty obligations) and introducing a US-style “fair use” exception in Australia, as well as elimination of geo-blocking (i.e. controls to segregate markets, usually because of licensing restrictions) and allowing circumvention of technological protection measures (TPMs) for certain purposes. The government had already rejected the proposal to reduce the term of protection as unworkable, and in its formal response to the Commission “noted” but declined to support the Commission’s suggestion that Australia adopt a fair use regime. Instead, the issue will be kept under review into 2018 while the government considers further exceptions to the existing fair dealing regime to take account of technological developments in the digital age. Likewise the recommendation to allow circumvention of geo-blocking was “noted” while the TPM recommendation was “supported in principle” with more review and work to come. The implications of modifying geo-blocking will be considered as part of this review. Proposals to extend safe harbour provisions to internet intermediaries such as Google and Facebook have also been dropped.

Some of the Commission’s other less controversial recommendations, such as reviewing the governance and transparency of collecting societies and limiting liability for use of orphan works, were accepted. The important outcome, however, is that the most egregious recommendations that would have effectively gutted the copyright system in Australia have, hopefully, been effectively shelved or at least set aside for fuller and more balanced consideration.

Other notable copyright related events happened in 2017 of course. We saw what is probably (and hopefully) the final word on the notorious “monkey selfie” case when the British photographer David Slater, in desperation at the hounding tactics of animal rights group PETA (People for the Ethical Treatment of Animals), reached an out of court agreement in the US in September to donate 25% of the proceeds of his image of the macaque named Naruto to charities dedicated to protecting crested macaques in Indonesia. In return PETA will drop its repeated suits alleging that the macaque is the author of the photos, and leave Slater in peace. Such is the stuff of copyright legend.

The coming year promises to be no less interesting on the copyright front. Brexit is not resolved, NAFTA may implode and the TPP11 Agreement may come to fruition, with or without its suspended IP provisions. The ongoing legal and administrative processes of determining what is fair dealing and what is abuse will continue, in many jurisdictions. And with any luck, David Slater will sell lots of images of Naruto and he (or is it she) and his/her friends in Sulawesi will live out their simian lives happily ever after.

© Hugh Stephens, 2017. All Rights Reserved.

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