Copyright and the Economic Importance of Creative IndustriesSub-Regional Seminar on International Publishing Issues

WIPO – IPA – LLA

Vilnius, LithuaniaMay 122010

Donna M.A. Hill

The Culture and Creative Industries Sector

Basic Facts about WIPO

WIPO’s Mission:To promote the protection of IP rights worldwide and extend the benefits of the international IP system to all member States

Status: An int’l intergovernmental organizationMember States: 184 Staff: 950 from 101 countriesTreaties Administered: 24Decisions by: GA, CC, WIPO Conference

- Berne Convention for the Protection of Literary and Artistic Works

- WIPO Copyright Treaty (WCT) (1996)

- WIPO Performances and Phonograms Treaty (WPPT) (1996)

- The Rome Convention

WIPO Treaties most relevant for Publishers

Contracting Party Treaty Status: Lithuania Entry into Force

Berne Convention - In Force December 14, 1994Budapest Treaty - In Force May 9, 1998Hague Agreement - In Force September 26, 2008Madrid Protocol - In Force November 15, 1997Nice Agreement - In Force February 22, 1997Paris Convention - In Force May 22, 1994Patent Cooperation Treaty - In Force July 5, 1994 Phonograms Convention - In Force January 27, 2000Rome Convention - In Force July 22, 1999Singapore Treaty - SignatureTrademark Law Treaty - In Force April 27, 1998UPOV Convention - In Force December 10, 2003WIPO Convention - In Force April 30, 1992WIPO Copyright Treaty - In Force March 6, 2002WIPO Performances and Phonograms Treaty - In Force May 20, 2002

New name of Sector -

Culture and Creative Industries Sector

Copyright Law Division

Creators and Performers Support Division

Creative Industries Section

Collective Management Section

Copyright Development Services Division

“Copyright and Related Rights” at WIPO

What are the Creative Industries?What are the Creative Industries?Category confusion? A choice of policy.Category confusion? A choice of policy.

CreativeCreativeIndustriesIndustries

-- largely characterised by nature of labour inputs: “creative individuals”

Examples ...

AdvertisingArchitectureDesignInteractive SoftwareFilm and TVMusicPublishingPublishingPerforming arts

Copyright Copyright IndustriesIndustries

-- defined by nature of asset and industry output

Examples ...

Commercial artCreative artsFilm and videoMusicPublishingPublishingRecorded mediaData processingSoftware

Content Industries

-- defined by industry production

Examples ...

Pre-recorded music Music retailingBroadcasting & FilmSoftwareMultimedia Multimedia ServicesServicesPrinting and Printing and Publishing Publishing (especially books)(especially books)

Cultural Industries

-- defined by public policyfunction and funding

Examples ...

Museums & galleriesVisual arts & craftsArts educationBroadcasting & filmMusicPerforming artsLiteratureLiteratureLibrariesLibraries

Digital content

-- defined by combination of technology and focus of industry production

Examples ...

Commercial artFilm & videoPhotographyElectronic gamesRecorded mediaSound recordingInformationInformationstorage & retrieval: storage & retrieval: E-books / E-books / publishingpublishing

Source: Cutler & Co/CIRAC, 2003, (see papers by Stuart Cunningham) -- www.creativeindustries.qut.com

Copyright and Related Rights

“Copyright” : Legal term that describes the rights given to creators for their literary and artistic works.

Copyright protects the rights of authors, performers, producers and broadcasters.

-- As creators of original works, you hold the exclusive right to use or authorize others to use the work on agreed terms. For example, you can prohibit or authorize

- the reproduction of your work in various forms, such as printed publication or sound recording;

- its public performance, as in a play or musical work;

- recordings of it, for example, in the form of compact discs, cassettes or videotapes;

-its broadcasting, by radio, cable or satellite; and its translation into other languages, or its adaptation, such as a novel into a screenplay.

Quantitative Factors : National studies on assessing the economic contribution of copyright-based industries.

Qualitative Factors : Study on the Social and Cultural Impact of IP on the Creative Industries

Quantitative and Qualitative Factors of Development

Why Empirical Evidence Matters?

Economic analysis of law involves two elements:

Prediction of behaviour in response to legal rules, assuming that actors are forward-looking and rational,

and

Evaluation of outcomes in relation to well-articulated measure of social welfare.

Why Empirical Evidence Matters?

Growing interest towards measurement of creativity:

Is creativity a driver in the knowledge economy?Can creativity bring more development?Can nations capitalize on creative assets?

Specific policy objectives leading to specific measurement tools:

Variety of approaches - social, economic and cultural

Challenge:How to measure the non-economic returns from creativity?

A possible approach of studying creativity is through the types of impactsimpacts that it produces.

A Copyright Approach To Measuring Creativity

Creativity poses definitional problems

Copyright is a well defined concept- a set of economic and moral rights- a balance between individual and public interests - a financial mechanism to reward creators, i.e. royalties- serves as the basis of huge industries- enhances and enriches cultural heritage and cultural life

Can be used a tool to estimate- Employment- value added- export - productivity

Economic Fundamentals of Copyright

Economic characteristics private property right a public good different from means of delivery

Economic functions sets the rules of the trade contributes to economic efficiency helps creators to get the market value of their works

Consequences of economic nature enhances economic welfare redistributes income/costs increases market power

Conditions for economic efficiency of copyright monitor and control misuse consumer valuation > production and distribution costs

The WIPO Measurement Model

Objective

- provide a basis for consistency

- enable international and cross-sectoral comparisons

- provide solid data as input for policy formulation

Main features

- a reinforced link to copyright

- relating copyright to economic activities

- new definition of the creative industries

- a more transparent link to statistical reporting

The Copyright - Based Industries

a. General wholesale

& retailing

b. General Transportation

c. Telephony & Internet

Non-Dedicated

a. Apparel, textiles & footwear

b. Jewelry & coins

c. Other crafts

d. Furniture

e. Household goods,

china & glass

f. Wall coverings & carpets

g. Toys & games

h. Architecture, engineering, i. Interior Design

j. Museums

Partial

a. TV sets, Radios, VCRS, CD

Players, Cassette Players

b. Computers & Equipment

c. Musical Instruments

d. Photographic &

Cinematographic Instruments

e. Photocopierse. Photocopiers f. Blank Recording

Material

g. Paperg. Paper

Inter-dependent

a. Press & Literaturea. Press & Literature

b. Music, Theatrical Productions & Operas

c. Motion Picture & Video

d. Radio & TV

e. Photography

f. Software & Databases

g. Visual & Graphic Arts

h. Advertising Services

i. Copyright Collecting Societies

Core

15.

Press and LiteratureStandard (national) Industrial Classifications that best describe the ‘core’ copyright industries generally begin with a list of the ultimate products that most depend on copyright protection.So in the case of the publishing industry we have, under press and literature:

Authors, writers, translatorsNewspapersNews and feature agenciesMagazines/periodicalsBook publishingCards and mapsDirectories and other published materialsPre-press, printing, and post-press of book, magazines, newspapers, advertising materialsWholesale and retail of press and literature (book stores, news stands); and libraries.

The Book Publishing Industry

The Book

Contribution to GDP

Contribution to Employment

% CONTRIBUTION OF COPYRIGHT INDUSTRIES TO GDP

% CONTRIBUTION OF COPYRIGHT INDUSTRIES TO EMPLOYMENT COUNTRY

REFERENCE YEAR OF

STUDY Total share

Core Interdependent Partial Non-

dedicated Total share Core Interdependent Partial

Non-dedicated

Bulgaria 2005 2.81 1.57 0.62 0.09 0.52 4.30 2.29 0.73 0.27 1.0

Jamaica 2005 4.81 1.7 0.74 0.47 1.9 3.03 1.79 0.31 0.23 0.68

Lebanon 2005 4.75 2.53 0.71 0.62 0.89 4.49 2.11 0.73 0.70 0.95

Mexico* 2003 4.77 1.55 1.69 0.85 0.68 11.01 3.41 3.65 2.53 1.41

Philippines 1999 4.82 3.50 0.96 0.04 0.29 11.10 8.81 1.4 0.2 0.6

Canada 2004 4.5 3.3 5.55 4.11

Hungary 2002 6.66 3.96 1.24 0.45 1.00 7.1 4.15 1.25 0.61 1.07

Latvia** 2000 4 2.9 1.1 0.28 0.77 4.40 3.7 0.7 0.44 0.75

Singapore 2001 5.67 2.85 1.76 0.09 0.97 5.80 3.64 1.24 0.18 0.74

USA 2004 11.09 6.48 2.13 0.40 2.08 8.53 4.07 2.17 0.26 2.03

Australia 2007 10.30 7.30 2.0 0.40 0.70 8.0 4.97 1.81 0.57 0.65

Croatia 2004 4.27 2.99 0.88 0.32 0.07 4.64 3.22 0.93 0.41 0.08

Romania 2005 5.55 3.55 1.08 0.53 0.39 4.19 2.36 0.58 0.82 0.43

Colombia 2005 3.30 1.90 0.80 0.30 0.40 5.80 1.70 0.70 1.90 1.50

Russia 2004 6.06 2.39 0.76 0.27 2.64 7.30 4.29 0.75 0.56 1.69

Ukraine 2005 2.85 1.54 0.68 0.10 0.54 1.90 1.16 0.46 0.08 0.20

Netherlands 2005 5.9 4.0 0.4 0.9 0.6 8.8 6.2 0.6 1.1 1.0

* The calculations on MexicoMexico contribution to GDP have been made on the basis of table 4.2 of the study** The Total share of the contribution of copyright industries to GDP and employment refers only to core and interdependent industries.

Economic Contribution of Copyright-based Industries

What’s the story?

Specific patterns of economic behavior- results are not necessarily a function of the overall

economic development- strong influence of economic cycles

Impressive dynamics – 2.5 times the averageStrong employment multipliersIndicative of structural changes in the economyUseful in identifying - competitive advantages- drivers- problem areas

1. Current mapping and evaluation of the creative industries provide only limited evidence in respect of the likely trade-offs between the economic, social and cultural realms affected by IP regimes.

2. WIPO Project : A study to examine the potential development and use of indicators to not only measure or rather assess the economic impact but also the social and cultural impact of intellectual property onthe creative industries.

The intention of this, and future studies, is to point the way towards a more holistic understanding of modern intellectual property regimes, specifically those that operate in relation to the creative industries.

Qualitative Factors

Social and Cultural ‘Impact Assessments’

WIPO products, initiatives and other tools and activities for the Publishers and the

community at large.

WIPO Distant Learning Courses

Copyright in Action: distance learning modules on Publishing

Module 1: The author-publisher relationships

This module considers the copyright issues that a publisher needs to address before publishing a work.

1.1 Negotiating with authors: copyright ownership

This unit examines the original ownership of content and examines what rights can, and should, be transferred

1.2 Moral rights and ethical responsibilities

This unit explains the creator's moral rights in their work, and how this differs from the ethical responsibilities of both authors publishers.

1.3 Publisher-author contracts

This unit provides guidance regarding what should be included within an author-publisher contract, and what constitutes a legally-binding agreement.

1.3 Negotiating with authors: financial agreements

This unit evaluates the different financial agreements that can be agreed with authors and other content creators

1.5 Working with other content suppliers

This unit reviews the other content providers the publisher will work with, and what rights the publisher must agree with them.

1.6 Terminating the agreement

This unit describes conditions under which a contract may be terminated.

1.7 Module 1 revision unit

This unit revisits the topics within this module, and tests participants to ensure understanding of the module contents.

Facilitating Access to Copyright Works for Visually Impaired Persons

Vision IP - www.visionip.org

With the support of its partners, WIPO has created a dedicated website as a platform for expressions of support, exchange of views, and dissemination of information to all parties interested in the issue of access to information and cultural content by VIPs and other reading-disabled persons.

Towards a new role for WIPO beyond norm-setting in the field of copyright and related rights.

I. Defining the new role for WIPO beyond norm-setting

New Focus on the exercise and exploitation of IP in the new environment.

New licensing modalities and business models developed in the network environment and adapted to collaborative creativity.

II. New activities and new issues.

New activities: Research and information gatheringFacilitating Dialogue among stakeholdersDispute resolutionEmphasis on Infrastructure

New issues: Responsibility of Internet IntermediariesInterplay between collective and individual managementFacilitating a consensual approach to rights and limitations

Development Agenda Issues: Orphan WorksPublic DomainRegistrationDocumentation and RMICompetition LawAccess to Creativity and Information

Digital World

Google Book Search

UGC

Digital Preservations

DRM

Software

New Licensing +

Public Domain

III. Collective Management

Traditional role: technical assistance.

New Issues:

Competition Law

Governance issues

Precedents To Governance Issues in WIPO: 1989 Governing Bodies mandated the Secretariat to prepare a Study on CM as a basis for advice, (Group of Consultants, published in 1990); 1991 Memorandum Submitted to the first Committee of Experts on a Protocol to the BC (license fees must be distributed according to actual use); 2000 DC on the protection of AV performances (no collection without distribution)

III. Collective Management (2)

Developmental dimension of Copyright and collective management

Developing countries: Striking contrast between thriving cultural industries and shortcomings of CM

Most urgent needs:

International Exchange of Data and Revenues.

Efficient and Standardized Automation Processes

IV. COPYRIGHT AND DEVELOPMENT

When formally establishing the Development Agenda in October 2007, the WIPO General Assembly adopted a set of 45 recommendations to enhance the development dimension of the Organization’s activities.

A number of them look at exploring the synergic relation between copyright and creativity.

With the intention of implementing the adopted recommendations in an effective and coherent manner, the Secretariat took in 2009 the initiative of grouping recommendations which address the same or similar subject matter and could be implemented jointly through thematic projects.

3 Thematic Projects closely relate to Copyright.

IV. COPYRIGHT AND DEVELOPMENT (2)

IP and the Public Domain (3 recommendations)Second Survey on voluntary Registration and deposit systems

The new survey would expand on the 2005 Survey in at least four different respects, namely,

(i) digital environment and available search tools;

(ii) orphan works;

(iii) solicit information on recorded/registered public domain subject matter; and

(iv) attempt to include all Member States.

IV. COPYRIGHT AND DEVELOPMENT (3)

IP and the Public DomainSurvey on private copyright documentation systems and practices

Use of copyright documentation, including in the form of RMI, by entities such as collective management organizations or the Creative Commons System, and would examine how these systems identify, or might contribute to identifying, content that is protected or in the public domain.

IV. COPYRIGHT AND DEVELOPMENT (4)

IP and the Public Domain Scoping study on copyright and related rights and the public domain

Comparison of national legislation that directly, or indirectly, defines the public domain, survey of initiatives and tools, technical and legal, which facilitate access, use, identification and location of public domain material, and, finally, recommendations for further work to be undertaken by WIPO in regard to the public domain as far as copyright is concerned. Conference on copyright documentation and infrastructure

IV. COPYRIGHT AND DEVELOPMENT (5)

IP AND COMPETITION (Rec. 7, 23 & 32)

Global meeting on emerging copyright licensing Global meeting on emerging copyright licensing modalitiesmodalities

This two‑day meeting would gather an array of stakeholders who are implicated in copyright licensing practices, to examine new challenges in this area, including from a competition standpoint.

Multiple issues such as the compatibility between traditional copyright licenses and newer forms of licensing, including the competitive impact of territorially-limited versus multi‑jurisdictional licenses, etc.

IV. COPYRIGHT AND DEVELOPMENT

IP, ICTs, THE DIGITAL DIVIDE AND ACCESS TO KNOWLEDGE (Rec. 19, 24 &27)

A Study on “Using Copyright to Promote Access to Information and Creative Content”: use of the copyright system in order to enhance access to information and creative content, in three key areas:

education and research (including issues such as open-access); software development practices, including free and open-source software; and e‑information services (e.g., e‑journals, public sector information).

IV. COPYRIGHT AND DEVELOPMENT

IP, ICTs, THE DIGITAL DIVIDE AND ACCESS TO KNOWLEDGE (Rec. 19, 24 &27)

The Study will be developed in three different stages:

Research, information‑gathering and first draft of the individual contributions;

A workshop, hosted at WIPO headquarters, devoted to collective analysis and evaluation individual contributions; and

Finalization and delivery of the Study, which will include recommendations on future activities to be undertaken by WIPO.

Thank Y©uThank Y©u

Donna M. A. Hill