infoJustice

By Carolina Botero

A proposal from Sierra Leone, Panama and Malawi to conduct a study on the public lending right was approved by WIPO last March. In a position paper, a civil society alliance in the region explains why it is not a good idea.

These countries are proposing to recognize a public lending right (PLR) within copyright. They want whoever is the owner of the right to be able to authorize or prohibit the public lending of originals and copies of protected works in exchange for a fee.

It was almost 20 years ago, when the first edition of Gabriel García Márquez’s novel “Memoria de mis Putas Tristes” arrived in Colombia, that I first heard about the PLR as a concept of “any use of a copyrighted work is subject to payment”. The Spanish publisher included a note warning libraries that they would have to pay for each book they lent, or they would have to stop lending it. The National Directorate of Copyright made an interpretation of the text that gave it legal value; the uproar over this was immediate. The publisher, however, explained that it was an advertisement for the Spanish market, where such a payment is legal. In any case, they said they had no plans to collect. I wrote the first OpEd of my life, which Semana published as a “readers’ column”. Two decades later, the issue is back again.

At that time, during the preparation of my text, I found out that the figure had been born in the Nordic countries as an incentive for authors of texts in native languages. They receive payments from the government. These payments are based on the free lending of their books by libraries and other cultural institutions. In these countries, knowing that the market encourages writing in English in order to have a larger audience, the government encourages writing in their languages. It is a tool that is outside of the copyright and, depending on the country, it is included in the law or in the regulations.

The document of the Latin American Civil Society Alliance for Fair Access to Knowledge explains how there are currently two countries that have developed the PLR within copyright – Spain and Germany – while in most places where there is something similar, it is outside of copyright as a support for culture – the document mentioned Australia, the UK, Cyprus, New Zealand and I would add the Nordic countries. There is nothing like this in any country in Latin America.

In the document, the Alliance goes beyond the nature of the PLR. It dismisses the arguments of the petitioning countries in four points:

1. Remember that public lending (that is, the making available to the public of works by cultural institutions for use for a limited period of time and without profit) is a cultural right that enables other human rights, such as that of education or access to information, and therefore it is an essential mechanism for access and participation in culture. It’s about our right to go to cultural institutions and access our cultural patrimony.
2. It is not true, as it is stated by the countries that present the petition to the WIPO, that there is a legal principle according to which every use entails a payment. The text recalls that General Document 17 of the Implementation Committee of the International Covenant on Economic, Social and Cultural Rights clarifies that: “Intellectual property is a social product and has a social function”. The public domain, limitations and exceptions to copyright, and the right to borrow are mechanisms that give life to this social function of copyright and balance it with other rights.
3. States have no obligation under any international instrument to have a public lending right in favor of authors. If they wish to protect or promote the economic interests of authors, they can do so through less burdensome mechanisms for access to culture, such as the recognition of other exclusive rights or the establishment of public policies in support of authorial production. This is the case in most countries where such policies exist.
4. Finally, the Alliance also affirms that, if the payment for public lending of works is adopted in Latin America, the effects of its application could amplify the critical state of cultural institutions that exist in contexts of precariousness, lack of financing or limited budgets. This would widen the gap between those who can pay for the consumption of content and those who cannot. These are the majority of people in the region.

All of this does not hide the fact, which is also a reality, that the request from Sierra Leone, Panama and Malawi has at its core the idea of finding effective tools to support authors, and we must continue to work towards that end. It will be interesting to see how WIPO will move forward with the agenda item on the fair remuneration of artists in the digital environment, which is focused on this issue and on the digital environment.