Alison Firth | Trade deals and disputes – copyright as a possible model?

Well, thank you very much, Marta for that, if I may, for that kind introduction; and of course, to CREATe in the University for inviting me in the first place, and to everyone here for being here.

I might as well state my position I'm feeling a little dismayed about the prospect that the UK may leave the EU and but at least this has sort of focused my thoughts on on a few things so at the moment the EU does allotted international negotiations in trade matters and copyright and intellectual property on behalf of Member States and in many areas they have exclusive competence to negotiate and of course our government has been having to decide whether to try and replicate some of the agreements which have already been concluded by the EU on behalf of all the Member States and in fact it lists trade agreements with around 70 other partner countries outside the EU of course there are slightly fewer agreements around 40 I think because some are with multiple countries so there's been a lot of work clearly trying to prepare for the possibility that we've suddenly are not a party to these agreements any longer and say we're going to have to look carefully at the possibility of negotiating new agreements there's a lot of work going on but I think we should also look at the international agreements that we've already got and why copyright well Marta has pointed out that Antony Taubman from the WTO took the view that trade and intellectual property rights a rather rather do front but our Department for digital culture medium and sport the sector's covered by that arm of government were said to be worth 268 billion to the UK economy in November 2018 so we're quite keen on our copyright industries obviously to protect authors composers and so on but as we all know technology is changing the way we generate works and the way we use them and so the copyright rules need to stay up to date very difficult we all know that copyright is automatic on creation of an original work and that it allows control of copying of presentation to the public but its territorial and so the USA for example in the 19th century didn't protect the works of UK authors and we have some complaints so Harriet Martineau who is thought to be very early scholar in in sociology matters as well as well as a writer organized a petition in 1837 Charles Dickens made lots of complaints about unauthorized use of his works when he did tours of America in the 1840s the composers of common operators Gilbert and Sullivan Gilbert the the libretto Sullivan the music had a number of disputes but the US Copyright system didn't protect them their operas had already been published in the UK so what did they do they arranged to make first performance of the Pirates in of Penzance in New York and then tried to stop unauthorized reproductions and performances but as there wasn't a public performance right in US law efforts were in vain so clearly there's a need for local legislation as well as some kind of system for protecting foreign works and so part of the solution was was this writer Victor Hugo who formed in 1878 the Association littéraire a artistic Internacional Li II which is still in existence and our UK organization blacker the British literary and artistic Copyright Association is the UK group of that and I would like to invite you to consider joining the Blackett if you're a student we have what we call a student mailing list which allows you to attend meetings for I think an annual fee of 10 pounds but the problem is of course that most of the meetings are in London so we're also hoping at a date in the future to arrange a joint meeting in Glasgow we had an Edinburgh meeting a few years ago which was a great treat so watch this space anyway the ally and its activists managed to get going a diplomatic conference which resulted in the Berne Convention for the protection of literary and artistic works now meanwhile in the USA the legislature decided to confer copyright protection on UK authors and some other countries which they felt were adequately protective of of us authors Belgium for example Switzerland and and say this was actually the result was produced by the lobbying of us authors to get protection elsewhere and they said hang on we've got to protect authors and works from the right sort of countries here in the US but there were still requirements of local typesetting local manufacture it was called and some of you may know that that requirement lasted a very long time indeed and also the requirement for registration so it wasn't till 1989 that the USA acceded to the Berne Convention now the beautiful thing about the Berne Convention and the trips of course WTO is the multilateral nature and there's a trade-off it's if you have bilateral negotiations you can probably reach mutually beneficial conclusions and come up with a nice treaty but the result of that on a global level is you're going to get a proliferation of non-identical bilateral treaties in the same area of activity and that leads to huge complexity and the sort of interaction of these agreements with WTO trips and its most favored nation article are another story it would be lovely if every treaty were multilateral or Omni lateral if every country in the world could agree on something but that's extremely difficult to achieve so the nice model that was concluded in Bern was a multilateral treaty with opportunities for other contracting State it's to sign up later in the case of the u.s. much later 100 years later now these of course are much harder to negotiate but once you've got them they're easier to apply than a load of bilaterals because at least you've got a network of identical or related obligations at the interstate level and of course the treaty governs the relations between the states and the exciting thing about the ban conventionally IP treaties is those obligations between the states are to give birth to private rights to property rights and comparable obligations within the Member States between private actors of course trips has got some criminal provisions as well some some government private requirements but mostly very odd indeed to a Martian this idea that the agreements between states give rise to rights and obligations between private parties so another brilliant feature of band convention which I'm sure many of you are familiar with is the concept of national treatment so instead of agreeing some kind of uniform copyright code for the whole world or at least for the ban Holborn Union much easier you say that each state must give to foreign authors foreign works as good treatment as it gives its own nationals and so this piggybacks will piggyback on the existing national laws and was extended not only to authors from foreign countries but works first published in foreign countries as well so absolutely beautiful model for a treaty in my view you don't have to agree the precise nature of the rights there's flexibility and margin of appreciation as to how the treaties complied with because actually it's been negotiated to read on to a lot of different national systems in the first place and it also means that the states are at liberty to update their laws as long as they're consistent with the convention obligations so for example that the UK and many other states were treating computer programs as literary works long before any international agreement was reached but the problem is that it doesn't effect harmonization doesn't introduce uniformity and so of course the bear convention had minimum stipulations a list of works and non an inclusive and non-exclusive list of works to be protected right to be conferred reproduction being the primary one of course exceptions that were required or one exception the right of creation or exceptions that might be allowed and we saw this pattern with later treaties and later revisions to the earlier treaties so they keep national treatment but they add in more detailed and prescriptive provisions about what subject matter can be protected what minimum standards are required then trips comes in and provides requirements about remedies and so this gives much greater certainty much better degree of global uniformity but the more specific you are the more likely you are to get out of date unless you have some adjusting mechanism and so now here in the UK with contracting state to the Berne Convention and revisions to WTO and tricks and Antony Taubman considered its continuing relevance in an earlier lecture but whatever the theoretical position is if the UK is sort of rather out there on a limb later this year we're going to try and make the best of what we've got and we've also signed up to the WIP copy of copyright treaty the WCT of 1966 and the other convention which I'd like you to consider tonight is the European Convention on Human Rights 19:50 Council of Europe which of course means it covers a much wider membership than the EU treaties that dude and so this slide shows you how terribly terribly hard it is for your examiner's to make up problems about international copyright because there's a hundred ninety five sovereign states in the world hundred and seventy six of them are parties to the Berne Convention which leaves how many nineteen but of those nineteen some of them are members of the World Trade Organization which is said to represent ninety-eight percent of the world trade amongst its members and of course the TRIPS Agreement the WTO agreement on trade-related aspects of intellectual property rights which imports incorporates the Berne obligations as well as adding more so it's a real headache I continue to try and and set those those questions but it means that a lot of countries a lot of us are in the same boat if we need to update something it applies pretty widely and say what I'm trying to do here is to come up with all the options and if you can think of any other options I would be extremely grateful to hear from you these are the ones I thought of so far with examples so we could say oh well the Berne Convention is a bit out of date you know it can't deal with Internet let's negotiate a brand new treaty and so that's what happened within the Berne union with the 1990 six WCT so to bring copyright up-to-date for the digital age and it introduced for example a right of making available to the public at a time and a place chosen by the members of the public which is giving us lots of delightful food for thought and case'll another new treaty very interesting because it's in a treaty not about rights but about exceptions was the 2013 Marrakesh treaty to assist access to works by the visually impaired but it's hard work time-consuming difficult negotiating treaties and as soon as you've got multiple treaties you've got again the problem of overlaps and differences and so if you read the text of draft treaties like the trans-pacific trade treaty for example it's full of little options and alternatives and statements that everything is consistent with trips and burn even while the text that you're looking at it's not quite so clearly consistent so I also think it was very very clever of WTO trips just to import the obligations from the Paris Convention from the Berne Convention very elegant solution then at least if there's a clash you're looking at a clash within the same international instrument so that's the first method the next method would be to negotiate revisions to the old treaty now it seems a bit more promising because by definition not everyone is a party to the old treaty and you've got some measure of agreement already and this happened with burn for a number a very large number of years and safe cinematographic works films were introduced into the list of protected works the moral rights of authors as opposed to the economic rights were added in we got an optional artists resale royalty right and so on but of course they're more trouble is that the better the treaty the more popular it is the more States adhere to it the harder it is to revise and so it's now thought quite impossible to revise the Berne Convention again whether that's true or not I don't know and even if you do revise the banned convention you have to make do with lack of unanimity and so if enough people at the diplomatic conference are prepared to sign up to the new revision it's concluded but it may take decades for half let alone all of the contracting States to sign up and so if we look down the list of contracting states to the Berne Convention we can see but you know everyone signed up to 1887 by no means everyone who signed up to the 1971 revised version I'd say that also gives complexity if we're trying to advise a client or concluded a series of cross-border licenses so the next thing is that we could have a kind of bootstrap principle could we have a mechanism for revision inside the treaty itself an obligation on existing treaty parties to accept revisions and this actually was tried in trips and so a 3/4 of member states agree and there was of course a ministerial conference at Doha about access to medicines which produced this result then it may be possible to bind the quarter who don't agree but of course it's hard enough to get three quarters of states to agree there let alone deal with grumpy members from other states so probably the best thing to do would be to stick with the old treaty but somehow bring it up to date so how could we do that well I guess we could agree upon an interpretation of the old treaty if lots of people agree what the old treaty means it might be as good as a new treaty we could refresh its its application for the modern era and so this actually happened as a byproduct of the 1996 WCT there were areas of agreement where the delegates were able to agree statements at de Pratt so slightly more general level for example that reproduction might should apply equally in the did an analog environments so at least there was a public statement about that even if they didn't agree so much as to be able to conclude treaty language to encapsulate that agreement say non-binding but could be influential okay but that's still only one example of a possibility so we need some help and where can we find the help well we would really really love to have something that everyone recognized or nearly everyone recognized to help us with interpretation would it be at another treaty or maybe it's customary international law and what we're looking for of course is some rules that allow the interpretation of its existing treaties to evolve and reflect changing technological social commercial situations and we have got to these at least in the field of intellectual property we've got the Vienna Convention on the law of treaties from 1969 which actually codifies customary international law and very very soon I presume in this hall Peter draft is going to come and speak and he was one of the first people to say now hang on there's a vienen law on convention on the law of treaties that must apply to intellectual property treaties as it applies to any others and it does allow subsequent events state practice subsequent international agreements should be taken into account in the putting an existing treaty we've also got within the WTO system dispute settlement mechanisms and a dispute settlement understanding which itself of course is a side treaty and article through 2 and other articles are perhaps less encouraging about evolutionary interpretation but not completely discouraged so this is all very well but where is this going to happen so the first thing is that we could say our own national regional courts could well the world with the brilliance of the judicial reasoning they could impress and influence the world and so in country X they would be a judicial decision and in countries all around the world people would refer to that decision and urge their own courts to follow it a sort of common law cross-border effect perhaps and some commentators have recently mentioned this Daniel share they for example has pointed out that courts have advantages over legislators there's less regulatory capture more judicial independence so courts a very good place to look for good interpretations of good applications of international law and Justin Hughes recently gave a paper on the migration of the u.s. doctrine of fair dealing in to copyright legislations in other countries but it will be really really nice if we had an international adjudicatory body to tell us what the interpretation is and again we really like it to be an international adjudicatory body which could interpret the treaty to reflect social and set the technological train change so where can we look well the Berne Convention envisage envisages disputes being taken before the International Court of Justice but this has never happened partly because States can declare themselves not bound by the procedure anyway the WTO trips is a bit more promising because the dispute settlement understanding system sets up a mechanism for the establishment of panels and appeals to the appellate body now this of course is limited to interstate disputes known access by individuals but perhaps at least powerful individuals can Lobby their own states to bring a dispute to a WTO panel now what can these panels do according to the DSU they're not supposed to add to or diminish the rights and obligations provided in the covered agreement and of course in our case that's trips but they may clarify existing provisions in accordance with customary rules of interpretation which of course are set forth in the Vienna Convention so this is getting a little bit more promising are there any other adjudicatory bodies well a lot of the free trade agreements bilateral investment treaties set up tribunal mechanism but and a lot of these treaties have IP provisions but scholars DAF are cautious about these because they're approached being very very for example investment oriented might undermine the accepted rationales of copyright I might undermine the ethos that we're hoping to bring nicely up-to-date in a proper way now actually the European Court of Human Rights also occasionally hears intellectual property cases not because the European Convention on Human Rights says anything significant about intellectual property rights so as you'd expect it's not a big docket a miniscule topic as docket as Aurora Plummer has called it but they have some very very interesting rulings on on the right to property or at least the right to enjoyment of possessions and some very important rulings on the right to fair trial for example search and seize orders in intellectual property disputes so we might compare those rulings for example with the obligations in relation to enforcement of copyright in trips and say well here is a pretty representative indication of how those search and cease remedies should be carried out but what's even more interesting is the approach of that court to interpretation of its treaty European Convention on Human Rights so if we step back a bit and look at the possible impro cheese to interpretation and again this is a selection if you've got a favorite one that I've missed out please tell me but we could start off with a literal or textual interpretation what is it mean and then we think all listen funny language in here of course it was drafted in 1886 we'd better consider how the readers of the treaty would have understood those words at the time it was drafted and agreed so that can be very very helpful as long as those things haven't changed too much then you could say ah well in order to decide what the meaning is maybe we need to take a more contextual approach maybe we need to look at what was the intention behind the drafting of the treaty how would we find that out we could look at the preparatory documents to see what the negotiators were discussing and we might be able to discern the original intention from there so for example in the field of competition law when the the European the Common Market treaty negotiations work that became available everyone was a bit surprised to see that the drafters of the treaty the fathers of the European Union agreements were very very interested in efficiency they realized that some industries needed not to be replicated in every member state the trouble is very often when you're trying to interpret a particular piece of treaty text the travel preparator are of no help at all and they're certainly not much help if we're trying to work out how the treaty applies to new technologies or new social organisations so they're little bit above that might be a purposive approval rate so you take a slightly step back and say now you know what is the purpose of this treaty is it to protect authors in in all the circumstances of our times is it to ensure that the right of quotation is available because it's it's such an important principle and so that might allow us to start a more evolutionary approach and in fact the Vienna Convention does contemplate this and so it may be necessary to look at more recent context and say how is the purpose carried out here and now well we could look at at state practice or subsequent agreements to discern a little more about the bigger higher trajectory and the most evolutive approach of all is probably that taken by the European Court of Human Rights which says and has said on many occasions it's interpreting the Convention as a living instrument as an instrument for the here and now and of course there are important cases where it has spelt this out sometimes to such an extent that it recognizes rights which the treaty fathers back in treated mother's back in 1950 explicitly rejected Tobias Locke has made a study of the doctrinal methods the approaches used by the European Court of Human Rights and he says that this first of all evolutive interpretation interpreting as a as a living instrument and it's flipside the margin of appreciation so it recognizes that in giving effect to the right to a fair trial or the right to enjoy possessions states must be free to set up those rights in locally appropriate manners and so there's got to be more than one way of doing it another thing that the Court of Human Rights has done which is as also influenced the practice of the Court of Justice of the EU is to identify autonomous concepts the timeI come where a particular right or some right or principle is getting such widespread agreement as to its content and meaning that it takes on a life of its own and of course in that case the margin of appreciation is is no longer necessary and so it's something akin to a harmonized principle and lastly there's the principle of effectiveness it's all very well to say that let's say someone conducting a search must photocopy the documents but what if they're actually taking away the the suspects computer with all their personal information on it as well as the subject matter in hand so this again is an approach used by the Court of Human Rights which favours evolutive interpretation now I'm we're nearly there do the WTO panels an appellate body do this at the moment not really Fraenkel says they've led to negotiating history with undue haste she argues that they've Susie Frankel argues that they sort of start with a literal approach and they work their way through the principles and never get to an evolutionary approach but the Vienna Convention and the deliberations of the International Law Commission envisage that actually there should be a single combined approach you shouldn't give any approach the literal approach for example precedence over any other approach you should look at the global picture and come up with interpretation and so that would certainly allow the use of subsequent agreements state practices to interpret the treaties and Susy Frankel's thinks that there's this is coming the WTO dispute resolution people are now talking about a holistic approach which may be something close glimpses if it has seen in other cases but not yet in copyright or intellectual property and so the hope is that in the the non branded packaging disputes some of these arguments will come forth so back in 1988 Lawrence Helfer suggested we have the both best of both worlds that in copyright cases under trips and he spelled out the kinds of cases he was talking about the WTO dispute resolution panels an appellate body should follow the lead of the Court of Justice the European Court of Human Rights rather and he said even back in 1998 four years after the treaty was agreed to the WTO agreement was reached in Marrakesh that technology would soon overtake the treaty text he did look at the European Court of Justice as another model but was too complicated the doctrine of direct effect the system of references and the single market imperative the integrationist approach led him to reject it so is this a good idea well there are lots of similarities the Convention on Human Rights trips their minimum rights treaties and they take effect within domestic laws and actually there's a body of recognition in cases showing that human rights actually take effect horizontally between parts as well as vertically between states and individuals national treatment and margin of appreciation and related doctrines in both cases there's a supranational dispute resolution mechanism by an expert tribunal how to disputes come because of inadequacy of national rights and remedies and these rights and remedies are imposed for the benefit of individual or at least private interests the systems are empowered to seek amicable settlement decisions are binding at the international level although people from the European Court of Human Rights say that persuasion is actually the method that they use to try and get compliance there's no direct communication with the national courts although of course there are some links being established with the Court of Justice of the EU they both cover contracting States with diverse legal systems and they both involve a high level agreement on core concepts at a high level of abstraction but disagreement about detail so the problem is of course that very often copyright are become commercial rights rather than the rights of individuals there's a mismatch in that the European Convention of Human Rights the applicants are trying to enforce the Convention against their own governments whereas by definition WTO is enforcement between states of defence of other people's governments no access by individuals to the trip to dispute mechanisms but as we mentioned before individuals can Lobby the enforcement of rulings well hmm patchy in both both cases actually the last thing is where to look for consensus so the European Court of Human Rights has said you can look from specialized international instruments so if we apply that to copyright we can look at the later treaties in the field of copyrights the practice of contracting States we could look at legislation we could look at case law and of course it's very very often the case law of the European Union which is a potent source for the European Court of Human Rights well there's certain degree of transparency in the in the Tripps arena there are biennial reviews there are lots of interesting WIPO documents surveys are commissioned on sort of national practices in relation to exceptions and limitations the EU made a very interesting proposal to bypass and AM pass in relation to exceptions and limitations for libraries and Archives which was being discussed at the WIPO Standing Committee it said why don't we have an exchange of best practice now that wasn't a universally popular proposal so it didn't happen but such a mechanism could be a very very good source of information on state practices and again subsequent treaties should be available I'm I think I'm miss mentioned that health are recommended that panels should be quicker to recognize where there wasn't consensus than when they were panels should be cautious I'm not sure about some of these European called conventional and human rights obviously imposes positive rights and states and so does trips to confer confer rights internally by legislation there's since nineteen eighty nineteen ninety eight there's been a lot of elaboration by the Court of Human Rights of the way it does consensus there are instances of WTO panels actually reaching a dynamic interpretation in relation to environmental matters in the shrimp case for example there's lots of interesting scholarship on the Vienna Convention which Marcel has argued to subsume the principle of evolutionary interpretation PTU who writes a lot on trips has actually adverts advocated the Helfer approach back in 2007 but there also some later or parallel developments that we can the analogy the European Court of Human Rights here's a huge number of cases which allows them to develop the law by tiny steps really an evolutionary they simply aren't that number of disputes which go to panels at the WTO say it would have to be a bit more revolutionary at the WTO there's a limit to what kind of disputes you can bring to the bodies and George lettis has suggested that for commercial rights commercial interests you need more certainty in interpretation it points out that the European Court of Human Rights does give a wider wider margin of appreciation for example for freedom of commercial speech but is is stricter on states when it comes to freedom of individual or political speech alpha took the view that the call of human rights has garnered the trust of states I'm not sure if that could be sent about WTO panels distinguished there they are I'm not sure that the WTO panels could ever expand into areas that were deliberately omitted by the drafters and then of course there's the rise of bilateralism and regionalism and anti Tolman has suggested that the implementation and interpretation is a dynamic process so would an evolutionary approach to interpretation interfere with that dynamic in some way in my view it would interfere with it in a good way but there's room for other other views say it might be health ascesis has become even more interesting again with our current political developments it's worth revisiting there's not that many WTO panel decisions and there aren't that many quarters of human rights cases on intellectual property so I'm going to stop there but I would love to receive any questions or comments or suggestions thank you very much for hearing me out and for being generous with the time martyr [Applause]