WIPOD – Arbitration and Mediation Matters: Transcript of Episode 7

Resolving Copyright and Content-Related Disputes in the Digital Age

Selin Ozturk: Welcome to WIPOD Arbitration and Mediation Matters. The WIPO Arbitration and Mediation Centers podcast on intellectual property and innovation disputes. My name is Selin and thank you for listening as this podcast aims to provide practitioners a deeper understanding of the use of alternative dispute resolution mechanisms, for example, mediation or arbitration for such disputes. Today, we are joined by our very own Oscar Suarez, Associate Legal Officer, here at the WIPO Arbitration and Mediation Center, to discuss how WIPO mediation, arbitration, and other alternative dispute resolution services can be used to resolve copyright and content-related disputes. Welcome, Oscar.

Oscar Suarez: Hi Selin, how are you?

Selin Ozturk: This topic is particularly relevant these days, as the digital environment is rapidly evolving, and we see new products on the market every day. We have seen this become increasingly relevant for authors, creators, as well as anyone involved in areas such as software and video games, and as we've previously discussed in our latest WIPO ADR chat on LinkedIn, these areas can range from music to photography, and mobile applications. So, let's dive right in!

Oscar, what is digital copyright and why is it important in the digital age?

Oscar Suarez: Of course. And thank you so much for having me here today. It's a privilege to be here. So, for your first question, let's say that digital copyright refers to changes brought by digital technology, particularly the internet, of course, in production, modification, dissemination, and consumption of creative works. So, in the digital age copyright is vital to protect the economic impact of creative industries and the rights of creators. The internet, of course, has revolutionized the production, distribution, and consumption of these creative contents as we see every day, enabling wider audiences in new markets - let's say, for example, this podcast we're listening to today. So, copyright encompasses legal protection for creators covering traditional works like books and films, as well as newer forms like computer programs, and databases. Let's say it grants exclusive rights to creators to reproduce, distribute, display, and perform the works and control others' use, by safeguarding economic and moral rights.

Digital copyright fosters creativity and innovation, and of course, it helps with the production of higher and higher quality content. It also provides a crucial framework, let's say, for resolving disputes in cases of, for example, unlawful use, or unauthorized use, infringement. Whether between, let's say, big corporations or going to the creators, the individuals, and the artists. So, this is to sum up what digital copyright is.

Selin Ozturk: Thank you, Oscar. Could you dive a little bit deeper into some key challenges faced by these creators and right holders in this particular field?

Oscar Suarez: Certainly. And I want to clarify that when I say "Creators", it involves many of the actors -- we're talking about interpreters. We're talking about producers. We're talking about broadcasters. We're talking about the creators, of course. But I'm just generalizing here. And right holders. Creators and rights holders in the digital field face key challenges. Let's say one of the first ones and one of the main ones is closing the value gap, which is crucial for creators to earn a livelihood from their works. So, ensuring fair remuneration in terms remains an ongoing debate. Despite the opportunities for independent artists, for example, to expand or reach given all the new distribution channels they have.

Another important challenge is transparency. Tracking and monitoring the use of digital works can be very difficult. Particularly because everything has a global reach to many distribution channels, platforms, etcetera. Establishing mechanisms for accountability in content usage is a significant hurdle, and we see that more and more in legislation and whatnot. Determining fair compensation, we're talking about making a livelihood out of this. So, it is very complex, considering, for example, streaming platforms, new licensing agreements, renegotiating licensing agreements, and other online distribution models.

Finally, I could also say that balancing exceptions and limitations in copyright law is delicate, and we've seen many changes on this, and still, it's ongoing, and we have a caseload coming out. We have regulation directives. We have laws trying to implement this. Finding a middle ground that promotes innovation, education, and the public interest goes hand in hand with exceptions and limitations, while respecting creators, rights, it’s an ongoing challenge.

Selin Ozturk: So how does alternative dispute resolution or "ADR" play a role in resolving digital copyright and content-related disputes?

Oscar Suarez: Alternative dispute resolution, and we're going to call it ADR for the sake of simplicity, offers a faster and cost-effective alternative to traditional litigation. In this realm of copyright, and especially digital copyright, ADR provides not only flexibility in the approach and not only fastness that it can provide, but also brings a collaborative approach to solving the dispute and effectively addresses technical and legal intricacies.

So digital copyright disputes involve challenging technical, and legal issues. And these are issues that can be difficult to navigate through litigation. For example, sometimes it takes too long; you may need to open different litigations everywhere for infringements. ADR methods like mediation, allow parties to work together with a neutral third party, which in this case of mediation - I'll explain this a bit further along the way-, It will help the parties find a solution. It won't impose a decision. Fostering cooperation and finding mutually available acceptable solutions is one of our main goals.

Arbitration involves a neutral third party, and we see cases coming here, but it is different from mediation, where this will end up being somebody deciding the dispute. And it's bringing a decision presented on evidence based on the law, and it's more, let's say legal and less flexible and less collaborative than mediation.

ADR's efficiency and I mentioned this before, of cost and time, and let's say effectiveness are advantageous for digital copyright disputes, which often require gathering and analyzing expensive data, technical information, multiple jurisdictions, etcetera. Let's say there are many implications even how you create the works has a bunch of complexities behind it. So ADR streamlines the discovery process, for example, you can even limit it if parties decide to, saving time and money and focusing on the core issues.

Moreover, ADR helps maintain important business relationships, and we really aim for this here, avoiding the adversarial nature of litigation. Mediation avoids, and I heard this from a mediator, "having the scars in a relationship out of the litigation". So, it fosters this cooperative environment. In the digital landscape collaboration and partnerships are so common. This is very important. It creates a cooperative atmosphere, let's say, during the resolution of the dispute.

Selin Ozturk: In your particular experience, have you seen any recent developments in the area of ADR and digital copyright and content-related disputes?

Oscar Suarez: Yes. And I'm gonna make a clarification here. I work this hand in hand with Selin. So I'm going to send a question back to you on this.

Selin Ozturk: Oh, man. The tables have turned.

Oscar Suarez: So, yes, we've seen many recent developments. In ADR and digital copyright, we have seen many trends, emerging worldwide, we would say. So, let's give some examples of this. Recently, we've seen the European Union's Digital Service Act, the DSA, which regulates online content and addresses particularly unlawful content in the EU. This will come into effect, next year and it will of course include IP disputes, like copyright. So, this is something to take into account, and setting up some rules for ADR providers, around the European Union at the very least. For example, we see other legislations internationaly, such as the KAMPALA protocol, which been, which has been promoted and signed in the context of ARIPO, which is the African Organization on IP and it includes particularly on copyright, and it includes ADR as a method of solving disputes in this area. More, particularly, for example, national legislation, and I mentioned what we have in Mexico when they implemented, what they call, NAFTA2.0, they implemented some things, and they changed their copyright law. In Nigeria, we have seen very recently how they updated their Copyright Act including ADR, again, particularly talking about digital challenges. For example, in the US, last year, we saw the creation of the copyright claims board, and basically, what it's trying is to encourage the voluntary use of this mechanism for small claims related to copyright. So these are some global traits, that we've seen.

From WIPO, for example, what we're doing here at the WIPO Arbitration and Mediation Center, we have been looking into many different trends that have been occurring, for example, in the past years, developed a procedure that we call WIPO Expert Determination for User-Uploaded Content or WIPO EDUUC, which focuses on resolving disputes arising on the content of removal or blocking of what they call OCSSP, which is Online Content Sharing Service Providers. So here we developed a procedure that was mainly targeted to EU member states. However, it is global and tries to be best practices. So, these developments, I would say, acknowledge the necessity of effective ADR mechanisms in the digital copyright realm. Stakeholders are working towards fair processes using existing rules and introducing new procedures. I have been that's the ones I've been telling you about. Ensuring proper application of copyright exceptions and limitations online, for example.

Furthermore, here is where my question comes to Selin because she's been helping me out with this and is essential to this project. The WIPO Center supports national intellectual property offices in the administration of ADR proceedings. So, I don't want to explain this. I would like Selin to explain. So why don't you tell us a bit about what we've been doing with the copyright offices, relating to what we call co-administration of cases? Because I think it's very valuable work that we're doing here and of course, it is completely hand in glove with what we're discussing here today.

Selin Ozturk: Yes. So, for example, the co-administration of online conciliation meetings with offices such as the National Institute of Copyright of Mexico or INDAUTOR, and the National Director of Copyright in Colombia, or DNDA. And so for those who do not know, in the case of INDAUTOR, copyright holders who believe that another party has infringed their rights provided in the Federal Copyright Law can choose to initiate legal action, or they can opt to use INDAUTOR's conciliation procedure. This procedure allows a dispute to be resolved in an amicable way and through mediation or conciliation with access to specialized neutrals in the field.

And so this collaboration all began because of COVID-19 where in order to accommodate the safety regulations occurring all around the world, but specifically in Mexico, INDAUTOR and the WIPO Center implemented a co-administration system, which includes video conferencing and tracking tools to continue providing mediation and conciliation services. INDAUTOR actually amended its international regulations in consultation with frequent users of the service and now allows the use of information technology when conducting conciliation procedures. The online conduct of conciliation meetings has had a considerable impact on the participation of the parties in the proceedings since 2021. And this is a fun fact for you all. The general in-person party participation rate was 29.4% when this project first launched in 2021. Whereas now with the video conferencing options that are used party participation rate has increased to 90.5%. Which I'm very happy about. And so this, of course, also applies to DNDA, which uses the co-administration system in Columbia, and we believe that these changes have really helped users of the Mexican and Colombian copyright protection systems to resolve their copyright disputes more efficiently. Back to you, Oscar, I'm turning the tables back.

Oscar Suarez: So now you've heard it from Selin. So overall the collaborations between the WIPO Center and National Intellectual Property Offices is one of the main things that we do here, promoting and supporting ADR services, for IP disputes in particular today about digital copyright disputes.

Selin Ozturk: Thank you, Oscar. And so perhaps to continue the conversation, you could go in-depth about what specific situations ADR would be the preferred method for resolving these disputes.

Oscar Suarez: Of course. I would say mediation is highly beneficial for resolving digital copyright disputes in specific situations. Expert determination in some other cases too, as I mentioned, the EDUUC procedure. Let's see mediation. Firstly, it's ideal for the party seeking to preserve business relationships, as I have mentioned before because it particularly avoids the adversarial litigation element that brings this kind of dispute resolution. Collaboration and open communication with mediation help find mutually acceptable solutions while maintaining these partnerships and collaborations, and we see this quite often.

Secondly, mediation excels in cases involving complex, technical, or legal issues, because sometimes the legal issues get on the way of what parties actually need. So those legal issues in this context can be discussed but won't be the reason how or why the dispute will be solved. So it gives more flexibility to the parties to find more the business interests than the legal standing. Parties can explore, of course, for example, different perspectives, clarify misunderstandings, and gain a better understanding with the assistance of a neutral mediator, for example.

Additionally, mediation offers a faster and more cost-effective alternative to traditional litigation, especially for complex digital copyright cases. And when I say complex, I'm not only mentioning the technical aspects of it. It's just that we are facing a global audience. We're facing, for example, this podcast being played everywhere. If there's an infringement of a copyrighted work, infringement procedures would probably be open in each of the jurisdictions that we're claiming, there's an infringement. So in that case, we can bring it to what we call a one-stop shop, and solve all of those global disputes in one mediation, one specific process. By streamlining the resolution process and focusing on those key issues, mediation is safe, of course, and it makes sense, time, and reduces the expenses, particularly because mediation, at least, the procedures that we deal with can go completely online. So parties don't need to move around, travel, etcetera. We're talking here from Geneva right now, but we are solving disputes all over the world using video conference tools - parties located everywhere, and they don't need to incur any costs of traveling or those kinds of expenses.

Selin Ozturk: Thank you, Oscar. And so could you provide some more insight on what some of the more common types of digital copyright dispute creators may face?

Oscar Suarez: Creators in the digital environment, (excuse me if I'm repeating myself now and again), but the digital environment, they face various types of copyright disputes. And alternative dispute resolution mechanisms are there to help. So I'll give you some examples. One common type of digital copyright dispute involves licensing agreements. For example, in content distribution - and this we see it everywhere, we see new legislation talking about using even ADR to negotiate these contracts. And those are provisions that are quite recent in regional legislation. So creators may enter into a licensing agreement, for example, with entities such as broadcasters, internet service providers, music streaming platforms, video-on-demand platforms, etcetera. The list is broad. Disputes can arise when there are disagreements regarding the terms of the license, the usage restriction, and royalty payments, we see royalty payments all the time, infringements.

Another type of dispute, for example, is the breaching of these licensing terms. It's not only negotiating, it's not only the terms that we're going to go into, it's what if I break the contract that I already have. So in the digital landscape, unauthorized use, reproduction, or distribution of copyright content can occur leading to copyright infringement, for example. So creators may encounter disputes with individuals or entities who have violated the licensing terms, where ADR can provide a mechanism for addressing these disputes, allowing parties to negotiate. And this is something very interesting. We can negotiate an infringement and then it ends up being a new license. And we see this very, very frequently used, particularly by CMOs, and they settled the dispute.

Disputes may arise when right holders feel that they are not adequately compensated or when disagreements arise regarding the distribution of the royalties they're entitled to. So, it can expand the interiors of advertising databases, literary works, software, and even user-generated content, as I mentioned before. Overall ADR offers valuable means for resolving copyright disputes across a wide range of scenarios. Whether disputes are between creators and licensees, breaches of licensing terms, remuneration issues, etc. ADR provides this flexible and collaborative approach to find resolutions that protect the rights of creators while promoting, continued creativity and innovation.

Selin Ozturk: To wrap up this episode, I wanna give a big thank you again to Oscar for joining us and walking us through how creators, SMEs, and entrepreneurs can benefit from the use of ADR options when facing copyright and content-related disputes. And thank you to our listeners. Don't forget to subscribe and stay tuned for our next episode as we continue to explore the ever-evolving landscape of ADR. And its impact on the vibrant world of innovation and IP.