Legislative Improvements and Reform

4.11.1 Accession to International Treaties

56. As mentioned in Unit 1, there are a number of international treaties and conventions which governments have acceded to and ratified. Two of the more important international treaties addressing the interests of copyright owners are the Berne Convention and the WCT. As indicated, the Berne Convention was incorporated into the TRIPs Agreement of the WTO by reference. These treaties commit the signatories to certain minimum legislative arrangements in their countries. It would be important for CMOs to have a working knowledge of these two treaties and to encourage their governments to accede to these treaties. More importantly, CMOs need to determine if national legislation has fully incorporated the standards embodied in these treaties. As noted in Unit 1, rights holders may, in their lobbying efforts, appeal to arguments relating to the protection of human rights, especially the provisions of Article 15(1) (c) of the International Covenant on Economic, Social and Cultural Rights which elevates the rights of authors to the level of human rights.²¹¹

4.11.2 Relevance of National Legislation

57. As noted above, accession to international treaties is not enough if national legislation does not fully incorporate the protection provided for in the treaties. In this regard, it is important for rights owners/holders that national Copyright legislation should be a modern instrument relevant to its time. The past 20 or so years have seen rapid developments in the

information, communications and technological fields (especially with respect to digitization and online media), resulting in new ways of creating and exploiting copyright works and the emergence of new business models. In view of this, national legislation needs to at least reflect the principles and

211 Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights provides that everyone has the right ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’

standards provided for under the WCT to ensure better protection for rights holders. To deal with complications arising from the enforcement of copyright in the digital environment, including the question of liability for online

infringement of copyright [related rights], some jurisdictions have introduced mechanisms such as take-down notices, which are issued to ISPs/DSPs by rights holders instructing the ISPs/DSPs to remove material that allegedly infringes the rights holders’ copyright [related rights]. Some countries (e.g.

France, UK, South Korea etc.) have introduced the so-called graduated response (or ‘three strikes’) system, in terms of which a series of notices are sent to consumers warning them of alleged copyright infringement and giving them an opportunity to stop the infringement, failing which measures such as bandwidth reduction, protocol blocking or account suspension may be implemented.

58. Measures implemented must of course ensure better protection of members/rights holders in the modern environment. It is thus clear that effective and efficient collective management on behalf of members/

rights holders is in part dependent upon the extent to which a country’s constitution and its national copyright laws are harmonized and reflective of the current environmental circumstances faced by rights holders. Where legislation is not up-to-date or reflective of the circumstances faced by the country’s authors, publishers and producers, it would be important to persuade government to improve, revise or amend such legislation. In order to effectively lobby legislators, it would be important for rights holders to organize themselves in order to lodge a united front. This may require the CMO to solicit the support of other interested parties, such as rights holder associations and the broader body of copyright holders (even if these are not directly concerned with the rights administered by the CMO). It would also be important for members/rights holders to lend whatever support they can to their CMO in its lobbying efforts, and not to think that the CMO management and/or board has to carry this work out on their own. As indicated in Unit 1, the involvement of rights holders in the lobbying process can lend more credence to the process and is likely to assist in persuading legislators to heed the call for legislative reforms/new laws.

4.11.3 Law Reform Commissions, Advisory Boards and /or Working Groups 59. In many countries governments have set up formal structures such as law

commissions to address the efficiency of laws, to deal with necessary developments and to propose legislative changes. These structures are often of a statutory nature but are ostensibly there to carry out independent research and make recommendations to improve a nation’s laws. Other

entities/bodies specific to certain areas of law may also exist to support this activity. Some of these entities/bodies have formal state recognition and may play an ‘advisory’ role to government on prospective legislative reform. In this regard, national copyright legislation often provides for a copyright advisory board (or its equivalent), whose membership is comprised of representatives from the broader copyright and related fields, many times also including judges and prominent lawyers. The CMO needs to take advantage of such entities/bodies and to endeavor to have representation in them or at least to seek to influence discussions taking place in such entities/bodies.

60. Many CMOs have at their disposal a legal department/section which, in collaboration with rights holders and with the assistance of external counsel, may undertake research and associated work relating to the impact of proposed reforms in laws. In some dispensations, it is practice to establish a working group made up of CMO officials, rights holder representatives and/

or representatives from rights holder associations, external legal counsel and any other directly-interested parties. Governments are sometimes loathe to consider new legislation/amendments to legislation where there is little evidence of the need to change existing laws. At the outset, it would be important for a CMO working group to be able to demonstrate to a law commission, copyright advisory board, government departments or the legislature that the CMO is a bona fide representative of the rights concerned and that it carries out its duty in a conscientious manner and in the best interest of members/rights holders. Whether the reform proposals relate to the introduction of new legislation or the correction of existing legislation which impedes upon or rather is a hindrance to the effective administration of rights, (with resultant prejudice and economic hardship to rights holders), the working group’s research and proposals must provide adequate evidence and information in support of the CMO’s cases. Once draft proposals are available from the CMO working group, these would be submitted to the CMO’s management and board and ideally also to a wider audience of rights holders/rights holder associations, so as to ensure that the consultations are as inclusive as possible and to receive all relevant inputs on the proposed reforms. Part of the consultation and input-gathering process may be to obtain views, experiences and information from other external institutions or groups as well as examples from other countries. Such broader, additional consultation may include (i) receiving input from other domestic institutions/

groups affected by the legislative reform initiative; (ii) receiving input from institutions/groups from countries within the same region or economic community; (iii) obtaining examples of good legislation from the same region or economic community; and (iv) receiving input and examples from other groups having an interest in and/or displaying support for the reform initiative.

4.11.4 Lobbying Activities and Reform Proposals

61. In many countries, the activity of lobbying²¹² is progressively being used to ensure that rights holders’ interests are protected and enhanced. Lobbying is thus an important aspect of the role of the modern CMO. Having indicated this, it needs to be noted that lobbying is not an easy activity and the CMO concerned may not have the expertise to engage in lobbying activities. In this regard the following has been noted about lobbying:

Although lobbying as a whole serves as a checks-and-balances safeguard on the legislative process, individual lobbyists are not necessarily equal. Unlike voters, who each get one vote, lobbyists vary in their degree of influence.

The level of influence a lobbyist has over the legislative process is often proportional to the resources – time and money – the lobbyist can spend to achieve its legislative goal.²¹³

62. In view of this, the CMO needs to think seriously about its lobbying strategy.

Does the CMO have the capacity on its own, to lodge a successful lobbying strategy? The formation of the CMO working group referred to above can greatly assist the CMO on its lobbying endeavors. Joining forces with others can also enhance the CMO’s chances of succeeding, rather than being a ‘lone ranger’ that is seen as pursuing its own, secluded interests. The CMO could also solicit support for the lobbying activity from high profile members/rights holders, particular member/rights holder associations and even user groups (where appropriate). Furthermore, if the CMO constantly conducts isolated lobbying (without being part of a broader interest group), legislators may treat its submissions as self-serving and in time develop apathy towards them. Forming a CMO working group and also working with other interested parties can assist the CMO in lodging a successful lobbying strategy. The CMO’s role in lobbying must of course, itself, be approved at board level. The CMO working group should ideally prepare the reform proposals under the guidance of the CMO’s Legal department /section, so as to ensure moderation or sensitivity in respect of any controversial aspects of the proposals or any possible opposition from other groups (e.g. certain user groups). Under such circumstances the legal department/section may, as part of the reform strategy, assist in formulating alternative (secondary, next-best or compromise) positions, in the event that the first option is not accepted. The lobbying strategy must clearly identify primary and secondary targets of the lobbying activities (e.g. the law commission, members of

212 Defined as involving ‘the advocacy of an interest that is affected, actually or potentially, by the decisions of government leaders’. See in this regard http://legal-dictionary.

thefreedictionary.com/Lobbying (Accessed on 18 March 2015).

213 Ibid.

the copyright advisory committee, particular government departments and officials, members of the relevant parliamentary portfolio, other important members of parliament, members of political parties etc.).

63. In some jurisdictions, collective lobbying in respect of issues affecting members of a broader industry is carried out by a separate representative body that focusses on lobbying initiatives. In the UK, for example, UK Music (formerly British Music Rights) was formed as a representative body of various music industry entities (e.g. PPL, PRS for Music, BPI, the Musicians Union, Music Publishers Association etc.) to, inter alia, ‘[engage] in high level political lobbying to ensure any new legislation benefits its members’.²¹⁴ Where such an industry body exists, the CMO working group can augment its lobbying strategy by working with such a body, thus obtaining a stronger voice on the issues raised. It is important to note, however, that the strategy adopted by the broader industry representative may not fully represent the issues that the CMO wishes to bring to the attention of the legislator (in particular because the broader industry body often represents divergent interests). In view of this, it may be necessary for the CMO not to solely rely on the submissions made by the broader industry body but to lodge its own parallel lobbying strategy that focusses on its own unique issues.

For example, both UK Music (of which PRS for Music is a member) and PRS for Music itself, made separate submissions in relation to the so-called Hargreaves Review in the UK.²¹⁵

4.11.5 Lobbying ‘Package’ and Communication

64. The CMO Working Group needs to devise a proper lobbying package involving a convincing communication strategy. As lobbying is directed at legislators (and other officials) who generally have busy schedules and often do not have the time to research the issues raised, the communication needs to be concise and to the point. It needs to clearly highlight both the legal, economic and business arguments relating to the issue raised and where appropriate, provide essential statistical information in support of the arguments raised. It has been said that a good lobbying communication strategy needs to clearly reflect who the communication is intended for (e.g. is it parliament, government officials, members of the law commission etc.); when the communication is to take place (e.g. just before general

214 See further http://www.ukmusic.org/about-us (Accessed on 17 March 2015).

215 See in this regard http://musically.com/2011/08/03/uk-govt-to-respond-to-hargreaves-review-today-but-music-biz-gets-reaction-in-early/ (Accessed 18 March 2015).

elections); what message is being communicated,²¹⁶ and how the message is to be communicated (e.g. writing, visits and meetings, committee hearings, one-on-one meetings with politicians etc.).²¹⁷ The CMO may also solicit the assistance of external professionals, consultants and the media at large in devising its communication strategy (e.g. through the use of press statements). Nevertheless, it is important that the CMO remains actively involved in the lobbying process to ensure that the message it wishes to communicate is not diluted.