What's up at WIPO?

There is an interesting trend with WIPO that is interesting to observe. A recent article by William New for Intellectual Property Watch talks about the WIPO Copyright Committee begins a new era with a revised agenda. The committee has not been able to get anywhere for about a decade (since the highly controversial treaties in 1996). And rather than just focusing on treaties which ratchet copyright only in one direction (regulate more activities, with greater enforcement and penalties, and for a longer amount of time), one of the high priority items is now limitations and exceptions to copyright.

This is where some of the real recent changes can be addresses. Copyright traditionally only regulated commercial activities. Now that the technical tools used to create, edit and distribute content is cheap enough to be privately owned and controlled, the identically worded laws are presumed to regulate private non-commercial activities. For copyright to be reasonable it needs to be limited to widely public and/or commercial activities, and not regulate the private activities of citizens.

There are also many things which I watch Darryl Moore and John Degen debate about which are made far more harsh by the excessively long and uncertain term of copyright. Most of the Copyright treaties amend Berne in one way or the other, and one needed modernization is registration and renewal. The first version of Berne was ratified in the 1880's, a time considerably prior to information technology capable of making registration and renewal trivial. We can solve the complexities of determining when a work is in the public domain, or who to contact if it is still under copyright. We can ensure through renewal that only those people who wish to continue to retain copyright will do so (no more orphaned works, or people who didn't intend to restrict derivative works past being commercially viable).

We should also be separating some moral rights from material rights. There is no reason why the moral right of attribution cannot last multiple generations after the death of the author, but the material rights only last a maximum of 50 years from when the work was published/recorded.

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Moral Rights need limits in term or breadth.

"There is no reason why the moral right of attribution cannot last multiple generations after the death of the author"

Well that depends Russell. If the total extent of moral rights is the right to have your name associated with a piece of work, then I could not agree with you more. If those moral rights extend to how a work may be presented or how it can be used within a derived work, then I could not disagree with you more.

As well as implementing fair use policies and cutting the term of copyright back to a reasonable time, we need to make sure that moral rights protect the reputation of creators and no more. To my mind that line is drawn at the right to have your name associated, or not, with a work.

Right of Integrity

I did specify right of attribution, and didn't mention right of integrity. The problem with the right of integrity is that it isn't well defined and there is considerable disagreement as to how far this right extends. Some short-sighted creators want to extend this right into what should reasonably be considered material rights.

If the term of copyright were separated into material and moral rights, then the moral right of integrity would need to be narrowly defined such that it cannot be abused to extend what is realistically a material right.

Free/Libre and Open Source Software (FLOSS) consultant.

I've written about that before

Unfortunately, it's very difficult to draw a bright line between moral and economic rights. I like to use this example :
"I don't want my work associated with your organisation"
"How about if we give you this large sum of money ?"
"Well in that case I withdraw my objection"

The right of attribution seems to be the only moral right that isn't subject to this kind of manipulation into an economic right.

prejudice of the honour or reputation

I have seen your example, but I believe it would go far more like:

Creator: "I don't want my work associated with your organization"
User: "In what way are you being associated with our organization, and how does this prejudice your honour or reputation"
Creator: "Well, umm, err.."


Even if it started the way you suggest, any evidence that this was about money and not prejudice to honour or reputation would quickly invalidate the moral rights claim.

The focus of understanding the moral right of integrity should be focused on the phrase to the prejudice of the honour or reputation of the author, and not on whether the work is associated with a cause or modified.

28.2 (1) The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,

(a) distorted, mutilated or otherwise modified; or

(b) used in association with a product, service, cause or institution.

I agree with you both that additional clarity is needed, but I don't think this is because of the current state of the law but the current state of misinformation held and promoted by some creators.

I think this moral right should be a tort like defamation and not part of copyright at all (although obviously without the reverse onus of Canadian defamation law), but unfortunately Berne suggested to include these rights within something we call "Copyright" (or manuscript right). There are many outdated concepts in Berne (such as no formalities) that needs to be modernized. I mean, we do have puters and these inter-tubes that we didn't have when Berne was penned more than a century ago.

Free/Libre and Open Source Software (FLOSS) consultant.

But that's a very low standard

I guess which way the conversation goes depends on how risk-averse the people wanting to use the work are :-)

Remember that tying ribbons around the necks of sculpted swans was ruled to meet this standard. This is due to the next paragraph :

(2) In the case of a painting, sculpture or engraving, the prejudice referred to in subsection (1) shall be deemed to have occurred as a result of any distortion, mutilation or other modification of the work.

Can you not see that being expanded to cover books ? That would codify John Degen's "integrity of the text".

Of course 28.2(1)(b) has nothing to do with "integrity of the work" as the words are used by non-lawyers.

Risk-averse users, overly romantic authors

Those who are risk-averse aren't ever going to be satisfied with what the law or courts say. Look at CMEC and their silliness of ignoring the CCH decision and being too scared to do anything they don't get explicit permission to do from Access Copyright. Their asking for further institutional exceptions is yet another sign of how out-of-touch with the current debate that they and specific other organizations in the educational sector are.

I agree with you that there will be people like John Degen that want to expand moral and material rights to "manuscripts" to the point that follow-on creativity will be impossible/impractical. He is not unique in being inward-focused on his generation of creators (the romantic idea of an author creating out of thin air, rather than the reality that all creativity builds on the past), but is one of the most open as far as being willing to discuss his ideas very publicly with all of us.

By the time we have advanced the thinking in governments and parliaments to understand why moral and material rights should have a different term, those same people will understand why this is the case and will close loopholes that will be abused.

I agree with you about the sculpted swans (Snow v. The Eaton Centre Ltd.), but this was also a different time (1982) and the group of us in this thread are of a very different generation. In many ways I believe we are a middle generation between those who think like John Degen (and the experts/public back in 1982), and the younger generation that is coming after us.

As noted in the moral rights FAQ for Creative Commons Canada, determinations around moral right of integrity has a subjective (authors feelings) and objective (public or expert opinion). I would not assume that the same case happening in 2012 (30 years later) would have the same results as far as public or expert opinion. We live in a culture where a growing percentage have an entirely different conceptualization of authorship, with a much less romantic feeling. I suspect by 2042 (60 years later) someone would have had to write "Michael Snow is a child pornographer" all over the Geese. I also fully expect that section 28.2(2) will have been repealed.

This is clearly not a conversation we can even have with the current crop of politicians, with one often noted exception with Charlie Angus.

As to your note about 28.2(1)(b), please remember that "right of integrity" is with respect to the honour and reputation of the author (integrity of the author), and is not about the "integrity of the work" the way you thought of it. It isn't about John's "respect the text", but about respecting the author.

It is the same type of confusion around the word "copyright" where the word "copy" should be understood as a synonym for "manuscript" (IE: in English it is Rights to Manuscripts, and in French is is Authors' Rights). Thinking so much about the mechanical act of making copies is largely an import from the copyright laggards south of our boarder.

Free/Libre and Open Source Software (FLOSS) consultant.