NWU stands up for writers at IFRRO annual meeting

The NWU’s Edward Hasbrouck represented both the NWU and the International Federation of Journalists (IFJ), of which the NWU is an affiliate, at the annual meeting of the International Federation of Reproduction Rights Organizations (IFRRO) held from October 24-27, 2022, in Brussels, Belgium.

Participation in IFRRO has been an important part of the NWU’s work for international solidarity, consciousness-raising, coalition-building, and advocacy for the rights or writers worldwide.

This was IFRRO’s first in-person annual general membership meeting in three years. As such, it provided an important opportunity for networking and check-ins on what’s been happening with authors’ rights during the COVID-19 pandemic.

Major topics for reports and discussion included:

  1. Ongoing implementation of a directive on copyright adopted by the European Union in 2019.
  2. Unauthorized and unremunerated making and distribution of digital copies of printed works, including so-called “controlled digital lending” by the Internet Archive and its allies.
  3. Pressure on the World Intellectual Property Organization (WIPO) by anti-creator lobbyists for wider exceptions to copyright, especially for digitization and distribution of digital copies.

Each of these developments, even when they occur in other countries than the U.S., in regional organizations such as the EU, or in WIPO as the global global forum for negotiation of copyright treaties, implicates the livelihoods of NWU members and other writers in the US and worldwide. Copies distributed on the “World Wide Web” from servers anywhere in the world are accessible worldwide.

The 2019 EU Directive on Copyright in the Digital Single Market makes several changes that could affect writers’ incomes, even outside the EU, if their work is published or distributed in, or from servers in, the EU. The IFRRO meeting heard reports on how these and other provisions of the Directive are being “transposed” into national law by different countries within the EU.

Article 15 of the Directive requires EU member states to provide protection to “publishers of press publications established in a Member State” for their rights to “the online use of their press publications by information society service providers.”

Article 15 provides that, “Member States [of the EU] shall provide that authors of works incorporated in a press publication receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers.” But the Directive doesn’t specify what share is “appropriate” or how that share should be determined.

Article 17 of the Directive makes “online content-sharing service providers” such as Facebook and Google liable for copyright infringement when they make available or distribute copyrighted material “shared” by their users but actually owned by (some) other rightsholders, unless those platforms have made a diligent but unsuccessful attempt to obtain permission to redistribute those works.

Article 15 and Article17 could bring significant revenues to publishers, especially large news publishers, but it’s unclear how much, if any, of this money will trickle down or be distributed directly to authors.

Whether or how either Article 15 or Article 17 will be applied to journalists and other authors outside the EU whose works first published outside the EU are “shared” with readers, viewers, and listeners in the EU by online platforms also remains unclear.

Part of the IFRRO European Group meeting was devoted to national reports on implementation of the provisions of the EU copyright directive for licensing and use of “out-of-commerce” works.

Unfortunately, in all of the European schemes for licensing of “out of commerce” works that that were presented as case studies and models at the IFRRO meeting, determination of whether a work  is “in commerce” is based solely on whether the book is listed in directories or databases of “books in print”. No consideration is given to works that are out of print in the original book form, but which are earning money for the author through new self-published e-book editions (often without ISBNs), Web content, or other formats. As we had pointed in a presentation to the 2019 IFRRO annual meeting, a common pattern is that a work that is out of print in the original edition, such as a book or magazine, is brought “back in print” or offered for licensing by the author after the rights revert to the author. All of these works are being improperly categorized as “out of commerce”, exactly as we had feared.

Just before the outbreak of the pandemic, we submitted comments and participated in a workshop organized by IFRRO with the EU Intellectual Property Office (EUIPO) concerning “out of commerce” works. Some of our concerns were at least partially addressed by the EUIPO in its portal for copying and distribution of “out of commerce” works, which is now in operation. As a direct result of our intervention, the EUIPO created a mechanism through this portal by which you can opt out preemptively from having any of your work used without your permission as “out of commerce” in any EU member country, although it’s too soon to tell if these opt-outs will be effective.

A major topic for the IFRRO Legal Issues Forum was the ongoing lawsuit in the US by book publishers against the Internet Archive for scanning and distributing digital copies of printed books without payment or permission. The NWU co-signed a friend-of-the-court brief in this case in support of the publishers.

A decision by the U.S. District Court is pending and could come at any time. But the initial decision is certain to be appealed. A final decision is not likely for at least a year, more likely two years or more.

At the IFRRO meeting, the NWU reported on recent activities by the Internet Archive and its supporters, including (1) a focus on expanding from the U.S. to other countries, with a particular focus on Canada as a jurisdiction-of-convenience and first target for legislative lobbying, and (2) preparations for legislative lobbying to overturn or circumvent any court decision against the Internet Archive in the publishers’ lawsuit. We urged IFRRO members and all creators of written and visual works not to rely on U.S. courts to stop the Internet Archive and similar book-scanning schemes.

The NWU has organized and led the national and international coalition (which includes IFRRO, IFJ, and many of their affiliates) opposing the Internet Archive’s book-scanning and its bogus theory of so-called Controlled Digital Lending. There was strong support from all IFRRO members for the NWU’s leadership and continued monitoring, consciousness-raising, outreach, and advocacy on this issue.

One of the ways that anti-creator and anti-copyright forces are trying to work around current treaties protecting copyright and authors’ rights is by widening the exceptions and limitations to copyright under those treaties. The World Intellectual Property Organization (WIPO) administers those treaties, and is the venue for any proposed amendments or new treaties related to copyright. WIPO also issues guidance and “toolkits” to national governments for interpreting and implementing those treaties.

Anti-creator, anti-copyright forces include an unholy alliance of large Internet platforms/publishers with libraries, universities, and other institutions that want to distribute digital content without paying creators. Unable to get WIPO to amend the treaties to water down authors’ rights, they are trying to get WIPO to issue a “toolkit” suggesting and endorsing ways that national laws could strain or distort existing treaties to accomplish some of the same anti-creator purposes.

It will be critical for authors’ voices to be heard at WIPO in this process. Several federations with which the NWU is affiliated, including IFRRO, IFJ, and the International Authors Forum (IAF), are accredited as “observers” to WIPO, which enables them to participate and submit comments to WIPO meetings.

The keynote presentation to the IFRRO conference by Prof. Ryan Abbott concerned the emerging copyright issues with works created by artificial intelligence, and the use of human-created works to train AI to create new works that mimic the style of works by human artists and writers. Most of the discussion concerned visual works. (At at the IFRRO meeting, the NWU helped distribute a white paper by our allies at the Graphic Artists Guild, to be publicly released shortly.) But AI isn’t just being used for images. AI is already being used to replace writers in some fields of journalism, including to generate short sentence-and-paragraph articles from “box scores” or other numerical data for reporting on school and other lower-level sports matches and routine financial events (daily market reports, etc.).

IFRRO members approved a package of minor revisions to the IFRRO articles of association and statutes. The changes are neutral with respect to the status of creators in IFRRO. But they fail to address the IFRRO structure of representation and voting, including the ability of all IFRRO members including publishers and RROs (collective licensing agencies) to vote for the Board seats reserved for creators, and the weighted voting in which creator (and publisher) organizations each have one vote and RROs have up to fifteen votes each. The pathway for participation of self-publishers in IFRRO and RROs remains at best unclear.

NWU and IFJ delegate to IFRRO Edward Hasbrouck, who served on IFRRO’s Board of Directors from 2016-2019, was nominated by IFJ and the NWU to return to the IFRRO Board for another term. He was outvoted by Mogens Blicher Bjerregård, the nominee of the European Federation of Journalists. Because of the weighted IFRRO voting and the ability of publishers and RROs to vote for the creator members of the IFRRO Board, it’s impossible to know whether this reflects the preferences of most creators. The absence from IFRROs Board for the next three years of any non-European creators makes it especially important for the NWU to continue to participate in IFRROs working groups and general membership meetings, to make sure that the interests of writers worldwide are taken into consideration when IFRRO speaks in the name of “rightsholders” worldwide.

IFRRO members approved a resolution condemning the Russian invasion of Ukraine and supporting Ukrainian authors and publishers. This resolution was prepared by the IFRRO secretariat and Board in response to a demand by a Ukrainian IFRRO member that IFRRO expel its Russian members. Like most IFRRO members, the NWU believes that it is inappropriate to punish creators in Russia (or the U.S. or any other country) because of the actions of a government that they do not control.