Yesterday, April 26, was World Intellectual Property Day. However, in many countries we see extremist proposals to expand copyright and intellectual property, which benefit only a handful of rightholders at the expense of the rest of society. That´s why, together with 13 civil society organizations from the Americas, we published an open letter calling on our governments to protect innovation, preserve fair access to technology and internet freedom, and use copyright to promote social justice.
Below is our translated text of the letter. You can read the original letter here.
Civil Society on the World Intellectual Property Day
We are a group of civil society organizations from the Americas working for the public interest to ensure that copyright and intellectual property exist to serve their purpose: promoting progress, learning and research.
Today, April 26, instead of celebrating the World Intellectual Property Day, we are concerned about the future of copyright and intellectual property in our continent. Across the region we see extremist proposals to amend copyright and intellectual property, which would hurt most people and benefit only a handful of rightholders.
In North America, Mercosur and the Pacific countries, free trade agreements such as NAFTA or the proposed FTA EU-Mercosur have become vehicles for the reform of copyright, focusing only on issues related to trade, but not more broadly addressing human rights involved in the treatment of intellectual property. We are also concerned about the lack of transparency of negotiations and the lack of participation of civil society in these processes.
In Argentina, Ecuador and the United States, national governments are working on proposals to amend copyright legislation, or the regulatory process of copyright law, ignoring the voice of consumers and the public interest. In Argentina, for example, the discussion paper published by the National Directorate of Copyright presents a punishing and extremist vision of regulation, geared towards creating new and broader offenses of intellectual property.
In Brazil, the legislature examines various bills dealing with the blocking of websites and applications. These projects represent a real attack on the freedom of people in the digital environment seeking to establish legal bases for blocking sites or applications. The bill PL 5402/16, under discussion in the Special Committee on Copyright, requires internet providers in Brazil to block access to websites and applications that are “targeting the supply or distribution of content contrary to Copyright”. These proposals are ineffective and disproportionate, violate freedom of communication and impede access to internet content. These projects violate rights such as freedom of expression and access to legitimate content and network neutrality.
In Ecuador, the government has abused the Digital Millennium Copyright Act (DMCA) to censor political content that it deems uncomfortable. In addition, the recently approved Codigo de Ingenios allows the official copyright agency to block websites for possible violations of intellectual property.
In Colombia, the FTA signed with the U.S. is the excuse for an agenda for legislative reform that insists on increasing the rights of holders without reviewing and updating the rights of society and of the people who will be affected by an extremist view of the right of Author.
In the Americas, criminal law is used not as ultima ratio for the defense of copyright, but as a threat for its absolute implementation. In Colombia, Diego Gómez is being indicted for copyright violation. As a student of biology, Gomez found a master thesis, written in a closed Facebook group at the main public university, on a theme of biodiversity that was interesting for his research group. To facilitate access to his peers to that text – which was already available online – he uploaded it to Scribd, and shared the link with others. For this action, he is accused of copyright infringement and faces a trial that could mean a sentence of up 8 years in prison and a huge fine. In Argentina, the case of María Kodama – widow of Jorge Luis Borges – against Pablo Katchadjian for the publication of a derivative work of El Aleph is another emblematic case of misuse of intellectual property against creativity and culture.
With such trials the use of criminal law is distorted to punish an action that is common practice among students and scientists around the world, does not seek profit, does not generate any harm to rights holders, and cannot be compared with the business of illegal copying in industrial quantities.
On copyright modification proposals, it should be discussed how to strengthen freedom of expression through exceptions and limitations that protect, among others, the right to satire and parody, and access to knowledge of libraries that are prevented from claiming “exhaustion of rights” for public lending from their catalogs. Likewise, it should be publicly discussed the need for a flexible clause such as “fair use,” like the United States has.
Copyright is being used not only to go after the big “piracy” mafias that have been used to justify punitive proposals, but to punish ordinary and necessary acts for the advancement of science, the distribution of knowledge and the development of our societies.
Finally, we see the harmful effects of subjecting internet intermediaries (such as Twitter, Facebook, YouTube, Instagram, etc.) throughout the Americas to the “notice and takedown” provision of the American DMCA. This procedure gave the entertainment industries unprecedented enforcement powers subject to minimal restraint. As a result intermediaries are encouraged to pull content, and even more seriously, suspend user accounts, even in response to dubious claims. Users bear the burden of the system, facing claims in a foreign language (English) that many of them do not speak, with information they can not verify, and afforded an appeal mechanism that has routinely been identified as inadequate.
These applications of the DMCA throughout the Americas serve to reinforce the idea that intermediaries can only circulate content with the express consent of the author, ignoring that there are broader fair uses permitted in the U.S. (including, on occasion, broader uses than those allowed in other jurisdictions where the DMCA is applied).
We are concerned about these trends.
We believe that the future of our societies and economies depends on the laws of intellectual property and copyright being reformed in a socially just manner. That´s why we present a set of principles for the reform of copyright in the Americas.
We believe that a socially and economically fair copyright agenda for the Americas should:
Protect innovation: The powers granted to authors must be balanced with the rights of users and other innovators, whether innovation takes the form of new creative works, or new ways of accessing existing works. Encouraging technological innovation and preserving consumers' rights thus go hand in hand. In the current technological landscape, the distinction between creators and consumers of culture has eroded. The immediate access to content ensures that the users in the Americas users can become the creators of the future.
In this sense, it's essential that the governments of the Americas are committed to ensuring that the right to fair use can be exercised under new technological systems and is not limited by restrictive interpretations of the law.
Preserve fair access to technology and internet freedom: Ensuring that our information economy can generate real benefits in these trying times also requires policies that preserve open competition and prevent particular interests from exercising an artificial veto over the adoption of new technologies and innovation systems. Copyright must promote the movement of ideas and knowledge over the internet.
The governments of the Americas should oppose any requirements that information and communications technologies filter speech or restrict outputs, and demand that intermediaries not be required to police the speech of all those who happen to use their networks.
In addition, the governments of the Americas should allow and encourage students, researchers, libraries, and educational institutions to take full advantage of the flexibilities of copyright, regardless of the technologies used, and must fight additional restrictions aimed specifically at these institutions.
Promote social justice: Copyright should not serve to protect the interests of industry only. Copyright must ensure the promotion of freedom of expression, access to culture and innovation worldwide.
The governments of the Americas should promote the adoption of copyright regulations that both ensure the rights to access and participation in science and culture in their own jurisdictions and the rest of the world, and acknowledge the importance of preserving an open and unfiltered internet.
They must also ensure that the licensing given for intellectual productions within universities that receive public funds are collectively useful, either for use by the community or the return of benefits to the community of origin.
They must also support the adoption of minimum international standards for limitations and exceptions to copyright, and oppose efforts to create new property rights in the transfer of information that would hinder the circulation of culture and knowledge.
Finally, the governments of the Americas must commit to respecting and strengthening the public domain. Copyright is in principle temporary, an exclusive right of exploitation that expires. It is an exception that grants commercial work exploitation privileges to the author before they enter the public domain, where they fulfill their social goal and strengthen cultural, economic and scientific development.
We care about the future of copyright in the Americas. We call on all interested parties to participate in debates on copyright proposals, to ensure that copyright promotes progress and justice, full compliance with the commitments of our states to human rights and not the concentration of wealth and power in ever fewer hands.
Fundación Vía Libre
Intervozes – Coletivo Brasil de Comunicação Social
TEDIC – Paraguay
Centro Latinoamericano de Investigaciones Sobre Internet – Venezuela
IPANDETEC – Panamá
R3D: Red en Defensa de los Derechos Digitales
Usuarios Digitales – Ecuador
Sursiendo, Comunicación y Cultura Digital
APC – Asociación para el Progreso de Las Comunicaciones