The Future of Copyright and the future of intellectual rights

Francis Gurry, Director General of the World Intellectual Property Organization (WIPO) pronounced last Friday a keynote speech on The Future of Copyright. After the speech of European Commissioner Nellie Kroes at the Forum d’Avignon, and in line with Lawrence Lessig’s recent speech at WIPO, this conference is an historical turning point. At the highest level, those in charge of copyright policy are conscious that it will need a deep reform and reorientation, or risks disappearing totally.

It is an evolution one must welcome, assist, and defend against the present circumvention of multilateral organizations such as WIPO by bilateral negociations (Free Trade Agreements) or plurilateral negotiations between friends of property fundamentalism (ACTA). However, one must also recognize that it can constitute only one component of a modern intellectual rights policy. Unless its mandate is reformulated, WIPO can only care for the rights defined in the treaties it is in charge of, or those that are being negotiated in its arena. The key requirement of an intellectual rights framework adapted to the digital era is for non-market1 activities of individuals to be free of any proprietary restriction. This does not make them a lawless domain, but it means that an intellectual production placed in the hands of any person, can be used outside markets by that person, without property claims being possibly opposed to that usage. Is this heretical? Not more than permitting everyone to speak or write without anyone being able to claim property on language and writing. However, it is not a doctrine that WIPO can today profess.

Does this mean that WIPO or its Member States can’t do anything for the birth of a modern intellectual rights framework? All the contrary. WIPO and its Members States can act powerfully while remaining in their domain of competence:

  • by developing commercial copyright management schemes that can complement efficiently the free social sharing of culture and knowledge,
  • by promoting new financing schemes for creative and expressive activities that are compatible with the right to share digital works between individuals,
  • by defending a demanding definition of the presumption of innocence in regard to infringement for all non-market usage, and strong liability exemptions for information exchange intermediaries,
  • by promoting the extension and effectiveness of exceptions and limitations to copyright, for instance by adopting the treaty being negotiated for minimal international exceptions for blind and visually impaired persons,
  • and by firmly opposing the perverse interpretations of “commercial” or “commercial scale” that amount to consider as commercial anything that displeases a commercial player.
  • I do not know, of course, if Mr. Gurry will be in a position or willing to implement such an ambitious reform program. But he should already be thanked for the step that was just accomplished.

    This post is also available in: French

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