By Michael Healy, Executive Director, International Relations
Rightsholders have increasingly been asking for updates on what’s happening with copyright and licensing around the world – especially within countries that are hotspots of activity right now. In response, we’ve provided deep dives at various meetings on trends, for example, with recent legislation in Japan, or about the latest copyright news coming out of South Africa. Your feedback on these updates has been very positive, and many of you have requested more regular communications about international copyright developments. We hear you, and I'm pleased to announce that we’ll be sending you international copyright updates regularly throughout the year. This is our debut issue! Our Copyright Around the World newsletter will include a mix of original content created by me and my colleagues at CCC, and links to articles and blogs of interest from other subject matter experts that we come across in the course of our work around the globe.
Copyright has been attracting a lot of attention around the world. Since 2012, Canada has become one of the most prominent battlegrounds between pro- and anti-copyright forces, with developments that have made headlines. The Copyright Modernization Act passed in 2012 was the first significant piece of new copyright legislation in recent years. It had a profound and immediate effect on the revenues of Canadian publishers and on rightsholders in all kinds of text-based materials that do business in Canada more generally. This legislation, together with a roughly simultaneous set of decisions from the Canadian Supreme Court that substantially broadened users’ privileges in dealing with copyrighted works, provoked a dramatic reduction in the revenues from secondary licensing. That happened because universities, colleges, and schools in Canada, encouraged by anti-copyright campaigners, interpreted the actual and apparent changes in the law to mean that all copying and reuses could occur without the authorization of or the payment of fees to authors and publishers. As a result, the revenues that CCC and other reproduction rights organizations (RROs) receive from Canada fell sharply in the intervening years. Small publishers dependent on education licensing revenues have gone out of business, cut their lists, or reduced their workforces. Access Copyright, the RRO in English-speaking Canada that led opposition to the new law, has faced a very significant decline in the royalties it collects and a prolonged threat to its survival. These are some of the direct consequences of a piece of legislation and a set of judgments in courtrooms in Canada deeply hostile to the interests of all the creative industries in Canada.
Rightsholders and their member associations in Canada have refused to throw in the towel and have fought for years to reverse what happened. They have had some encouraging news recently. Judgments in two important lawsuits involving York University (Ontario) and Laval University (Quebec) have gone in their favor and reports from two important Parliamentary committees have recommended important changes be made to the 2012 legislation. No one is certain, however, that the tide will turn ultimately in favor of the publishers and authors, and there’s still some distance to travel before we see the final outcome.
Why was Canada so significant, you may ask? With hindsight, it seems to have been the place from which a sort of clarion call or warning signal was sent to publishers around the world that they could no longer take a secure future for copyright for granted. They couldn’t rely with certainty on its permanence or its persistence in the future. The copyright bedrock of the publishing industry that we all took for granted was suddenly shaking and none of us could predict the consequences of the tremors, though it was clear that in Canada they would be direct, immediate, and have significant revenue implications. And then users of copyrighted works started talking about Canada in interviews and at conferences, saying that 'what’s good for Canadian users is good for us too.' It was around that time I detected a growing interest among publishers at senior levels to understand better what was happening. Suddenly, there was an appetite for news from the copyright front all around the world. That appetite has only increased in recent years.
What happened in Canada was an eruption of something larger that had been rumbling among educators for some time: the belief that copyright had outlived its usefulness and should be eradicated entirely or, at the very least, undermined with wide-ranging exceptions and limitations – and that education should be entitled to copy everything without limits or compensation to rightsholders. The legislation in Canada passed in 2012 (especially when coupled with the Supreme Court’s apparent legal support for such a view) was the most damaging expression of this anti-copyright sentiment. Because this sentiment grew primarily from within the education sector, the consequences for RROs around the world, not just in Canada, were certain to be serious if not potentially devastating because most RROs have depended to a great degree on royalties generated from educational licensing programs.
Copyright Clearance Center is something of an outlier in this respect because historically our licensing revenues have primarily derived from our success selling copyright licenses in the business sector. What we saw in Canada was an early warning signal of a trend we are now seeing in many other places around the world. Fast-forward to 2018 or 2019, and the conditions that led to those very hostile developments in Canada started to appear in most other countries that derive their copyright legislation and jurisprudence from England (South Africa, Australia, Singapore, and the Irish Republic, like Canada, all incorporate the English concept of “fair dealing”). Suddenly, what seemed to have been an isolated case geographically in Canada was just the start of a chain reaction around the world. The RRO in South Africa, DALRO, and many stakeholders in South Africa, such as the International Publishers Association (IPA) and authors’ organizations, have been putting up a spirited resistance to very similar legislative recommendations there. Legislation was passed in both houses of parliament in South Africa earlier this year that would substantially undermine copyright protection in the academic sphere, and possibly elsewhere as well, and everyone expects President Ramaphosa to sign the new copyright legislation into law (although there is no clear time limit for him to either sign the bill or return it to Parliament for revision or refer it to the Constitutional Court for assessment). If he signs the bill, we may see an appeal lodged with the Constitutional Court but no one can predict at this stage the likelihood of such efforts being successful. If it does proceed, we anticipate this new legislation will be very damaging commercially for publishers and authors in South Africa as well as for the local RRO.
What happened in Canada and what’s happening today in South Africa are not isolated, disconnected incidents. The appetite and ability of publishers, authors, and others to confront the waves of anti-copyright feeling varies from place to place around the world. Licensing revenues that rightsholders have come to expect from the educational sector, from equipment levies in Europe, and other traditional revenue streams are threatened. There’s been a consequential impact on monies coming into CCC from RROs around the world and on what we distribute from those monies to rightsholders. This has made us more determined, imaginative and energetic than ever to look for other sources of international revenue in collaboration with other RROs to try and substitute for what has been lost because of these developments.
Some examples help illustrate what we’ve been doing. We've worked with the RRO in Belgium to repatriate to the United States monies owed to American rightsholders, particularly authors, from the Public Lending Right scheme in Belgium. We've repatriated monies from Finland owed to publishers of printed music. We've done something similar in Poland, returning hundreds of thousands of dollars owed to US rightsholders from equipment and operator levies in Poland. We’ve also been working collaboratively with RROs in places like South Korea to encourage them to move into new sectors such as licensing in private schools. In the face of threats to copyright and collective licensing revenues, we are not passive. We’re particularly focused on opportunities that we hope generate new forms of revenue for our rightsholders. While these opportunities may not compensate for the losses we’ve seen in Canada, South Africa, and elsewhere, it doesn't change our determination to look for new opportunities.
CCC is also increasingly collaborative on behalf of publishers to fly the copyright and licensing flags around the world. We’ve provided a great deal of support to both the World Intellectual Property Organization (WIPO) and the trade association of RROs, the International Federation of Reproduction Rights Organizations (IFRRO). For example, we’ve been a supportive and active participant with IFRRO at a series of regional seminars that WIPO held this year in Africa, Asia, and Latin America. With efforts by libraries, academia, and others to introduce more exceptions to copyright, we have worked hard to counter-balance that loud voice to communicate a pro-copyright, pro-rightsholder, pro-licensing message. We have spoken about the benefits that publishers and authors bring to education, science, technology, and culture, and the value they deliver in every country around the world.
Strategic partnerships with IPA and WIPO are vital to what we do, and we will continue to provide a robust pro-copyright voice in every forum we possibly can. Our government affairs work is essential, too. We've been closely watching what's happening in the European Union. The new Directive on Copyright in the Digital Single Market adopted in March of this year essentially modernizes copyright policy in the European Union for the digital age. This massively important piece of legislation must now be rolled out in each of the member states in the course of the next two years. There's no doubt that the battles fought in Brussels between pro-copyright voices and anti-copyright voices will have to be re-fought in the national legislatures of individual Member States. We feel positive, however, about what we've seen. Looking at the text of the Directive, collective licensing is a persistent, recurring theme, and licensing generally is mentioned many, many times. Importantly, we feel that our particular brand of licensing – market-driven, voluntary, and non-exclusive – has something to contribute within the European Union, particularly in the wake of the Directive.
CCC is actively looking at opportunities to introduce new licensing on the back of the Directive. In collaboration with trade associations, individual publishers, and others, we will explore how new opportunities can be introduced in Europe, and we hope and expect to drive new forms of revenue for rightsholders going forward.