14 November 2002
INTEGRATING INTELLECTUAL PROPERTY RIGHTS AND DEVELOPMENT POLICY.
A response by the Publishers Association to the report of the Commission on Intellectual Property Rights.
1. General observations concerning the compilation and findings of the report
- The Commission has only concerned itself with the effect of IP protection laws on development and the reduction of poverty in developing countries, and not with the interests of rights holders as such, whether in developed or developing countries.
- The report deals with the full range of IP protection laws and appears most critical of what it sees as the restrictive effect of patent protection on development. The report acknowledges that copyright does not prevent access to or use of ideas, only the form in which those ideas are
- The report groups publishing and computer software industries together (Chapter 5: Copyright-based industries and copying of protected works. p.101) but appears to be referring chiefly to the latter only, as can be judged by the statement: “The success of these industries is reflected by their tremendous growth, which has generated millions of high paying jobs and billions in revenues, including in some developing countries.”
The Publishers Association’s response
- This response is generally concerned with Chapters 1 and 5 of the report, which deal most closely with copyright. We do not attempt to defend the position of the rights holder or argue a case for copyright as a whole, subjects on which, it is assumed, the Copyright Directorate will not require assistance. We merely seek, by example, to question the premise on which certain conclusions and recommendations are based and to offer alternative solutions for addressing the problems of access to suitable and sufficient educational materials in the poorest countries; an undoubted concern, which the report commendably draws attention to.
- The PA readily acknowledges that the British publishing industry has a vested interest in the maintenance of IP protection throughout the world. Publishing is an important part of the UK’s Creative Industries sector and over 30% of British publishers’ sales turnover derives from exports. It should be noted however that throughout Anglophone Africa UK publishers have been instrumental in establishing and developing indigenous publishing companies, companies that are now largely, if not wholly, locally owned and managed. These indigenous publishers now produce virtually all textbooks used in schools. Imported educational books in Africa are now almost exclusively limited to library books, reference and tertiary, vocational and professional level material.
- The publishing industry already suffers considerable loss of revenue from copyright infringement and any further reduction of IP protection or extension of the ‘fair dealing’ provisions, would be very damaging.
2. Specific observations and conclusions in the report
2.1 COPYRIGHT AS A STIMULUS TO CREATION
CIPR View “In the long term, stronger copyright protection may help to stimulate local cultural industries in developing countries…but in the short to medium term it is likely to reduce the ability of developing countries and poor people to close the gap by getting the textbooks …they need at affordable cost.” (Ch5.p99)
The report does acknowledge that “the availability of copyright may be a necessary but not a sufficient condition for the development of viable domestic (publishing) industries …in developing countries.” Also that in larger developing countries copyright protection is “clearly of considerable importance “ to national publishing industries. However the CIPR takes the view that “it is hard not to conclude from looking at the evidence …that the negative impacts of stronger copyright protection are likely to be more immediate and significant for the majority of the world’s poor”.
Almost the only evidence produced to support this statement concerns the role of Collecting Societies and cites the South Africa DALRO to suggest that such organisations serve chiefly to remit monies to foreign publishers.
Mr Carlo Scollo Lavizzari, Legal Counsel for the International Publishers Association, after consulting Brian Wafawarowa and Lindelwe Mabandla of Publishers Association of South Africa (PASA) and Monica Segbert of PASA/DALRO, has identified the Collecting Society issue as an example of how the Commission has been selective in the evidence it has chosen to present.
CIPR mentions that the South African Society DALRO distributes US$74,000 to local rights holders and US$137,000 to foreign rights holders but omits to mention that the society’s licence does not require payment of any fees on the copying of domestic primary or secondary school material, material which is heavily copied.
2.2 COPYRIGHT-BASED INDUSTRIES AND COPYING OF PROTECTED WORKS
CIPR Conclusion: Publishers and software producers should review their pricing policies to help reduce unauthorised copying and to facilitate access to their products in developing countries (Ch.5 p.102).
The report recognises the value of voluntary initiatives and specifically mentions free on-line access to academic journals (the HINARI project) as a good example. However, without providing any supporting evidence the report concludes that “there must be scope for the use of more differential pricing in developing countries that would be revenue producing or even revenue enhancing for producing industries”.
The PA believes that this is not the case with textbook pricing in developing countries. In many African countries photocopying equipment is not readily available, but where it is (in South Africa for instance), though publishers price their college textbooks very keenly, they are still copied in fast quantities. The report appears to assume that only international publishers are encountering this problem, but indigenous publishers are similarly affected and equally unable to price their products at levels that will prevent photocopying. It is also significant that wealthier South African students also regularly use photocopied material.
Nonetheless it is certainly true that the buying power of students in many African countries is so low that only donor funding can bridge the gap between the lowest price a publisher can set and the highest price a student can afford.
Differential pricing in the internet age. It should also be noted that at a time when well resourced librarians can identify the lowest price editions and source books from virtually any country, differential pricing can have unfortunate consequences, with very low price editions intended for the poorest markets, being sold into more affluent markets.
The report further acknowledges that copyright holders are entitled to an appropriate return on their investment “just as other industries” but asserts that “from the wider public policy perspective, ultimately it is just as important to ensure that people in developing countries have better access to knowledge, as it is to ensure that they have access to other essential inputs for development such as food, water and medicines”.
The PA welcomes this view which we have ourselves asserted on many occasions, but which has not always been reflected in Government policy.
The PA suggests that if the Government wishes to address the problem of college textbook pricing in the poorest African states, it should consider sustained support to the recently launched BookPower scheme. BookPower, a registered charity, is a book industry initiative which enables the purchase of key college textbooks by African students at between one third and one fifth of their normal published price.
2.3 COPYRIGHT AND ACCESS
CIPR conclusion: “In order to improve access, developing countries should be allowed to maintain or adopt broad exemptions for educational, research and library uses in their national copyright laws. The implementation of international copyright standards should be undertaken with this consideration to access in mind.”
PA response: There is no evidence that existing ‘fair use’ provisions are inadequate and further extension would be extremely damaging to the interests of indigenous publishers in developing countries, quite apart from the unwarranted damage to the legitimate interests of developed country publishers.
2.4 DELIVERING THE POTENTIAL OF THE INTERNET FOR DEVELOPMENT
CIPR conclusion (Ch5 p109). This paragraph contains a number of statements which the PA disputes:
2.4.1. "Users of information available on the Internet in the developing nations should be entitled to "fair use" rights, such as making and distributing printed copies from electronic sources in reasonable numbers for educational and research purposes, and using reasonable excerpts in commentary and criticism”.
PA response: Whilst this may be defensible for small extracts or individual articles, it could not be allowed to justify reproduction (e.g. scanning) of entire books without immediately falling foul of the 3-step test in Berne and TRIPS.
The second sentence is an attack on contract and licensing agreements, which runs directly counter to UK and international law. It also conflicts with the EU Copyright Directive (Article 6.4.4): … [earlier provisions for beneficiaries of fair use exceptions] shall not apply to works or other subject matter made available to the public on agreed contractual terms ..."
2.4.2 “Where suppliers of digital information or software attempt to restrict "fair use" rights, by contract provisions associated with the distribution of digital material, the relevant contract provision may be treated as void".
PA: This attack on contract and licensing agreements runs directly counter to UK and international law. It also conflicts with the EU Copyright Directive (Article 6.4.4): “[earlier provisions for beneficiaries of fair use exceptions] shall not apply to works or other subject matter made available to the public on agreed contractual terms ...".
2.4.3 "Where the same restriction is attempted through technological means, measures to defeat the technological means of protection in such circumstances should not be regarded as illegal"
PA: This is totally unacceptable, and runs directly counter to existing UK law (Section 296 of the 1988 Act and Articles 6 and 7 of the EU Copyright Directive, specifically protecting technological protection measures and digital rights management).
2.4.4 "Developing countries should think very carefully before joining the WIPO Copyright Treaty ... or implementing legislation on the lines of the DMCA or the Database Directive".
PA: The UK is about to ratify the WIPO Copyright Treaty, and is already bound by the EU Database Directive. The CIPR has, earlier in this chapter, accepted that the publishing industries of developing countries do need the protection of copyright to develop. How are they expected to do so without accession to these international IP standards?
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