Winston Tabb’s Perspectives on WIPO

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Winston Tabb's Perspectives on WIPO
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For more information about the Standing Committee on Copyrights and Related Rights, see this SCCR website

Sara:     Welcome to another episode of copyright chat. Today I have Winston Tabb joining me from Johns Hopkins University he’s the University Librarian and a longtime expert adviser to the copyright and other legal matters committee to the IFLA organization. Welcome.

Winston: Thank you.

Sara: It’s so nice to see you and to see you on the verge I understand of your retirement?

Winston: Yes. I think it’s going to happen sometime. I just don’t know exactly when because I had agreed to stay until my successor was in place. So the process is moving along. I heard a rumor the day will come soon.

Sara:     Well, congratulations! And I know throughout your career you’ve had a lot of interest and expertise with international copyright issues, both with the copyright and other legal matters committee and with the World Intellectual Property Organization. And I wanted to take this opportunity to kind of pick your brain about that process of how we the United States and IFLA engage with the World Intellectual Property Organization. From what I’ve heard, it seems to move pretty slowly and it’s a very political process. But, correct me if I’m wrong.

Winston: Well, I think one of the first things to understand is what an unusual organization the World Intellectual Property Organization is. Within a particular subgroup, the Standing Committee on Copyright and Related Rights, which is the one with which we engage, I don’t remember how many branches there are at WIPO, but that’s the most important one for us. What I couldn’t believe when I went to my first meeting and it still amazes me is that you can have an organization with, I think, 185 of so member-states and WIPO functions entirely by consensus. That is, there is never a vote taken in the sense that you would have your normal body where 51% of the people would be able to prevail if they can do that. So any one country, whether it’s Russia or Ukraine, the largest or smallest country, can really bring things to a halt. And that’s why it is so frustrating sometimes because the progress is so glacial. On the other hand, when you do have a victory in an environment like this, it’s really a major one. So the most important thing that has happened, I believe that the 20 or so years that I’ve been engaged there is the adoption of the Marrakesh Treaty and it almost didn’t happen and took quite a long time several false starts and starting over. But part of the reason that happens in actual fact is because of the necessity for having consensus.

Sara: Yeah, that’s a really good point. I mean, I think most people in the world, or I guess maybe not most, but many are aware of that treaty. And it seemed like a pretty smooth process from the outside. But can you give us an insider’s view a little bit of how long this was pending and what happened with the treaty?

Winston: Well, as I said, there were several false starts. So, I went to WIPO for the first time in 2003, which is the time when I was appointed to be the chair of IFLA’s copyright committee. Of course, I was just amazed at how things worked and how they didn’t. My very first meeting that I went to was of the cultural administration group. I think you’re gonna be working with them, if I understand right. So, we’re working on some kind of instrument that would deal with cultures and I was so fascinated to see, but sitting at the table were people from various minority groups. The Sami from the North and the Maori from New Zealand were actually part of the official groups. And it was a very substantive discussion. So I was expecting it to be like that when I went to other meetings such as to the meetings of the standing committee on copyright, but it was definitely not the case. The Standing Committee on Copyright it members of federal agencies only. The United States usually has people there led always by the Patent and Trademark Office because they are the executive branch, but also generally at least one person from the US Copyright Office. But I was really kind of amazed when we first started working on what came to be the Marrakesh Treaty to find that there had been a lot of efforts in the early 1990s to have such a treaty and they finally just completely collapsed. So, this was like a second start. And you never know exactly why something works the second time around. I don’t think it was just because we all had t-shirts which we probably wore saying “stop the book famine.” But I think that really helped as a way of kind of characterizing what it would feel like to be blind, able to have access to books it was a book famine. That word famine really just captured people’s attention. Nevertheless, it did take at least six or seven years. I can’t even remember quite how long it went. At first everyone was kinda just nice about it. And then there’s the publishing industry that began to realize this might actually happen. They began to be very, very oppositional—really oppose almost every aspect and were able quite often to get other national entities to agree with them. Probably the most negative force against this treaty and the one that I believe was most susceptible to the publishers was the European Union. So this is another thing that is very unusual about the SCCR, which is that when we’re in session, it is possible for someone from Luxembourg to speak or from France in their national capacity. But really the authority speaking comes from the European Union representatives. Of course, in a way it represented  the bureaucrats who speak for that entire group. And the EU was just not willing to have any part of this until this moment that I will never forget in Marrakesh. We finally met and the negotiations were going on. But the EU was not moving. And I saw the then Director General do something that I never saw before or after which was essentially to call out the EU in the public session and basically say you are continuing the book famine. If we can’t make some progress here after we’ve gathered, and made so much progress and get to the finish line, it’s going to be on you. And you can just feel the moment when the publishers and their representatives to the EU understood that they were getting ready to come under a very black cloud, so to speak. So it was really one of those wonderful turning moments right in the middle of that week. And then things fairly quickly came to a close, but it was at least a 20 maybe even a 25-year process. So I try to think about what I think our first Copyright Treaty for libraries was only introduced in 2005 or 2006 I think we first began to shop it around. So if you’re taking a long view and compare it to what happened with the blind, where we’re doing okay. We have to take solace.

Sara:  So it’s interesting because you are pointing out that the only folks that really have a voice at these treaty discussions are official representatives. So how are the publishers then getting their voices heard? Is this through independent meetings? Do they come to the meeting as an observer? How are they involved?

Winston: Yes. Well, they’re involved in exactly the same way we are. So one thing I will say about the standing committee on copyright or related rights is very open to NGOs that wanted to come. Usually the very first agenda item after adoption of the agenda is the addition of new members. And so we’ve never had a problem about that. So we’re often actually seat them side-by-side with the publishers that are all as usual people from the licensing agencies. I’m sorry. It’s been so long since I was actually there. But we’re all sitting there together, representatives from all the NGOs with our label in front of us. Almost always, member states are invited to speak first, and then if there’s time, then we will be invited to speak. And I will say, I think we’ve been treated very fairly. When I put my light on saying I want to speak, I’m almost always the first or one of the very first people who is invited to make what we call an intervention.

Sara:  Okay, so. they’re there talking with the EU. They’re also participating in the group discussions. That makes perfect sense. So, after Marrakesh, where do you see the SCCR headed? What is the next kind of issue that’s on the horizon?

Winston: Well, the very biggest issue that’s on the horizon and the longest there is a broadcasting treaty. So there are basically right now two major issues before the SCCR. There are a few others that are kinda crept in, like the Russians wanting to have theater stage directors rights. But the two topics that are given, roughly four out of the five days, more or less evenly divided are the treaty on broadcasting and then the treaty for libraries, archives, and museums. That one has been under discussion. It was under discussion the first time I went, and it is still under discussion. Glacial progress is made. Then one of the things I need to be clear about another oddity or feature of the SCCR is that regime change really matters. So you can be moving along very nicely and suddenly a country’s regime changes. This happened to us very explicitly with Brazil. We had two very, very strong supporters from the Brazilian copyright office working with us very closely who were advocating for us, and would often introduce articles or motions that were in our favor. And one day we were there and they had this panic came across their faces. We found out the regime had changed. They had been summoned home. And the next people who came from Brazil had no interest in library. So that’s a whole other reason that it takes so long to get things done because you develop relations and then those people vanish. Another problem is that people who are there usually, not for the United States, for example, who really do come from our federal agencies, but most of the people representing countries there are the ambassador of that country to the United Nations in Geneva. And so they don’t have any copyright expertise. There may be meetings that are going on across town, one of the other United Nations agencies, so they may have to divide their time. And of course, as is true with diplomats, they usually have a two or three-year posting. So it’s been a constant reeducating for the people who are actually representing the countries and have the vote. So that’s another factor that complicates what actually makes speed and possible. We’re in the constant educational mode, which is enjoyable from one of view, because you are training people. But it’s really sad when you see someone who’s really been a strong, fervent supporter from one of the country’s depart. And you know, you may not get a good replacement. And you have to start all over again.

Sara: It’s curious to me that the strong supporter doesn’t then talk to their replacement. Because it seems to me that the education could be within the organization instead of from the other participants. Does that ever happen or is that pretty rare?

Winston: It does happen and I  could name examples. I won’t necessarily here, but there are countries where that has definitely happened. But again, these people are diplomats who aren’t necessarily in copyright. They may have much more concerned about human rights, which is across the street, or international trade, which is down the road. So they don’t necessarily think that this is even an important topic as compared to others that they would really highlight as putting up the top of the list for their successor.

Sara: Well, that makes sense, but it’s also seems like it’s unfortunate for those folks who are invested. And when you’re talking about libraries and archives, are you talking about the ongoing discussions about how we have, for instance, in the United States, exceptions for libraries and archives for preservation is that they issue because I understand Kenny Crews wrote a report years ago for WIPO, kind of outlining the world and how different countries have different laws on this topic.

Winston: Yeah. Well, I would say there are three major things that have been wonderful for libraries during the time that I have been working at SCCR. The first one I already talked about was Marrakech. From beginning we’re able to see the end of that. The second was that we were invited by the WIPO secretariat in 2003 or 2004, fairly early on in the time that I became engaged, we told them one of the things that was really, really difficult for all of us to know, actually, what were the conditions at all the member states. And WIPO is quite eager and willing to fund nonpartisan kind of activities. And so they asked us to suggest three or four people who might be able to undertake such a study. We put Kenny at the top of our list. I think at the time he was still a Columbia as the copyright librarian. He was engaged to undertake this work, but he did, and it was published. And he was invited to come and do a presentation for, I think a half-day and take questions from the member states about it. So it was the very first time I think there was ever one central place where you could go to see, well how many countries actually have an interlibrary loan provision. About a decade later, WIPO asked Kenny, if he would update that study, which he did. And it’s on the SCCR website and has become very, very useful for all of us and providing data that we can actually use, both in our oral presentations that we make, but also in our meetings with the various regional groups. So if I could take another kind of a side note, one of the things I didn’t mention, that’s also an interesting factor of how we work as a group. Each region has a group, there’s an African group, there’s a Latin American, Caribbean group, and so on. There is also what’s called group B. Which is really the European Union, Canada, the United States. So it’s going to be the more developed countries or in a group. And then there’s a small subset of the countries of the former Soviet Union and China as its own group, but indicates what we often do both before we get to Geneva, but also while we are there is to arrange meetings with these groups. So quite often at seven o’clock, on a Wednesday morning, we’re going in and sitting down with all the representatives from the African countries and talking with them about not only what we want in general, but about what the situation is in those countries. And we’ve tried with some success to always have a librarian from one of those countries with us because people really prefer to hear someone from Algeria talking about what Africa needs more than they do about someone for the United States. So that’s been a wonderful way of making inroads. But again, all of those groups have a one-year term for the chair. So you may have a year when you’ve got someone from Algeria who loves libraries. The next year? You may get someone from Togo, has no interest at all and doesn’t even want to have the library group come and talk to them necessarily. So that’s another thing that this constantly changing in interactions with people, because the people changed and then the roles change as well. But anyway, the whole study that was done by Kenny. I think that was one of the most useful things the SCCR has done, and that was our recommendation, but at their expense with something that is still very, very proud of.

Sara: You mentioned also there’s turnover of the Secretary General. And you also mentioned how instrumental the secretary at was in getting the Marrakesh Treaty past. Does it depend a lot on who that person is?

Winston: Yes, it definitely does. And I think what happened with the Marrakesh treaty is that there’s a 10-year term of the Director-General and that person’s term was coming toward the end. And it’s very unusual for that person to be reappointed. So he knew he’s going home to Australia. And I think that really made it maybe easier from a practical sense to really press as he did. The good news for us is that we had as the most, the former chair of the standing committee on copyright, the copyright office of Singapore works. And when it came time to choose a new Director General, he was chosen out of several different applicants. So we now have at the top level, within the World Intellectual Property Organization, someone who is himself a copyright specialist, has direct experience of having lead the SCCR for a five-year term. He has continued to be very, very supportive of us.

Sara: And what year is he now and his tenure term?

Winston: I think it may be so hard to remember anything during COVID. I think it’s the fourth year or maybe the fifth, something, something like that, but maybe four years. I think. He also has been very instrumental in helping us get one thing done. The last big thing that I’m really particularly proud of because it is tangible, and that is the preparation is something called the preservation toolkit. So during COVID when meetings weren’t being held but there was still hoping there can be some progress. I did reach out to the director general as well as to the Assistant Secretary General who’s working in the copyright arena to see if there wasn’t something we can do in the preservation. Because that seemed to be something that everyone understood was a problem. But not every country you really has the authority to do copying even for preservation purposes. So what eventually happened was that they said, well, why don’t we prepare a toolkit? And that term is extremely important because within the odd way in which WIPO works, a toolkit, didn’t require the approval of all the member states. It didn’t have to be discussed with the member states, doesn’t have to be adopted by the member states. It’s a tool that countries may use or not use. So that’s why it was able to proceed. Something’s better than nothing. I think in this environment. And I’m especially happy we did it because of some of the things that have happened in the course of the preparation of it. Things like the war, Ukraine, things like floods, things like fires, and the National Library of South Africa and the museum and Rio has really made it very clear that if you don’t do some preemptive preservation, it’s too late and it needs to be cross-border If it’s truly gonna be preservation. So the secretary did commission representatives from each of our sectors, libraries, archives, and museum, to prepare this toolkit that has been prepared. And it is going to be presented on-site reading in Geneva at the very end of this month. I’m so sad I’m not able to go to this effect because it exactly coincides with my retirement dinner. So I really didn’t have much of a choice about it, but by the end of September, this will have been released, introduced and then we, as librarians at our friends at the archives and museum world, can begin promoting it and using it. We hope that will at least be able to get preservation provisions in national law as well as kind of moving us, we hope toward international instrument at some point that really deals with the cross-border issues.

Sara: That sounds like really important work, especially given as you mentioned, all the disasters we’ve been having. And we’re going to have more with natural disasters and fires. And I mean, you name it right. Hurricanes. I think climate change is really threatening our collections and our collective memory institutions.

Winston: We keep making the point that after the things are gone, they kept the preserved. It seems so obvious, but this need that you don’t have to even prove at this point that something is deteriorating. You just need to be able to get copies of it somewhere that are safe. And that requires that it be at a different location. Maybe ideally multiple locations, even if it’s just about to find out at some point, how many is enough? One thing I didn’t really mention at the beginning, I should have, because it’s a really important part of our collaboration. When we first began, it was libraries. And we actually drafted something we called TLAB the Treaty for Libraries Archives and Museums. And I was really happy working with archives and museums over time that we were able to get them engaged with us as well. So we now have a draft treaty called TLAB treaty for libraries, archives, and museums. And the three entities work very, very closely as we saw with the development of the presentation toolkit. But there was one representatives from each of the sectors that were very much involved in preparation of that. So that’s a great step forward as well. I think that thinking about how libraries, archives, and museums are much more alike than they are different and we worked together, not separately or against one another.

Sara: Yeah. And I think your point about the many copies is really important because it’s not only that you’ve made the copy which is important, that’s a first step. But then if that copy is held on-site and the site is destroyed, you still don’t have the copy. So, the cross-border issue really seems central. And I hope that we’re able to make some progress on that, too.

Winston: I think that it’s a fairly, fairly easy within SCCR contexts, it’s kinda crazy to say, but I can imagine getting instrument that provides for the preservation. I think the hardest part is going to be about the access part. One of the things we keep saying there needs to be able to be access. You can’t just have something that was copied in Algeria and it’s being housed in the library in Paris, but can never be open. So, at some point, there has to be reasonable trigger event that would enable the preserve work to actually used. And there are people who still are arguing, yes, but when that happens, there needs to be a fee. And that’s it, kinda battle that we’ll have to find with the people who want to monetize everything, but at least it’s a step in the right direction. And even if we could get, each country has its own preservation provision, that would be a step forward in the right direction too. I think we forget in the United States how it was lucky we really are never entirely satisfied or will we ever be? But when I think about provisions that we have an compared to a lot of our counterparts, including the European Union, we actually are much better off with mitigate them. I think that’s true and I think it’s part of the reason that this work at, at the international level is so important is to really show that these provisions are important and that these provisions help libraries, archives, museums, and our patrons right to gain access to materials. I think that’s something that the United States can really lead on. Well, we keep just saying our information is borderless. I mean, this whole idea that goes back to an era when a book was one place and then it might be the next. Just like that now and I think again with the passage of time and seeing how the Internet has developed and so on. People knowing their hearts, if that really is true, they may not want to get that embedded in a way that is really useful at the national or international level. But there’s no denying that we have to be thinking about things not at national level, international level, because of the way in which information is created and shared and stored today.

Sara: Very true. Well, this has been a really fascinating conversation. I’ve learned a lot and I hope the listeners appreciate it too. And congratulations on your well-earned retirement. It sounds like you are going to continue to do wonderful things. I look forward to many, many more years of your engagement with international copyright.

Winston: Thank you so much. I’ve really enjoyed it, bye.

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