WIPOD – Arbitration and Mediation Matters: Transcript of Episode 10

ADR and Copyright Management and new technologies

Oscar Suárez

Welcome to another podcast of the WIPO Arbitration and Mediation Matters. My name is Oscar.

Today we have a very special guest joining us, Anita Huss, the CEO and Secretary General of the International Federation of Reproduction Rights Organizations, also known as IFRRO.

With over two decades of experience in intellectual property and copyright, Anita has been instrumental in fostering international cooperation, advocating for robust copyright policies and supporting creators in the digital age, her leadership has made significant strides in ensuring authors and right holders to receive fair compensation for their works.

Today, we'll discuss Anita's journey, explore the challenges she has faced, the ones that she sees ahead, and gain valuable insights into her vision for the future of copyright management and, of course, alternative dispute resolution.

So, let's dive in. Welcome.

Oscar Suárez

Anita, welcome. It's a real pleasure to have you with us in this podcast and be able to discuss with you all these subjects about collective management organizations, artificial intelligence, dispute resolution, and what is happening around the world in these subjects. So, it's a pleasure to have you. Thank you for sharing your thoughts here today with us.

Anita Huss

Thank you so much, Oscar. I'm really honored to be with you today and it's a big privilege to speak with you and of course, always a big pleasure. So, thank you so much for having me.

Oscar Suárez

Thank you again. And let's start with the usual question we ask here in this podcast: what drove you to become an IP practitioner?

Anita Huss

Well, for me, it was not at all planned. It actually started by accident, as a lawyer, usually I had finished my law studies. Then I met my Swedish husband in Geneva on my first day as an intern at the WTO. That was more than 20 years ago, a long time ago. And after some time then as a junior lawyer and as I'm German, I started working in Munich on commercial law and mergers and acquisitions. I decided to apply for a position in Brussels, which would be easier for me where we could both have an international career.

And then I was looking for jobs and the first job I applied for was something I thought might be interesting because I have always loved books.

Books are really my big passion. And perhaps I should say that I grew up in Romania. We didn't have a TV, but we had a lot of books. So, I have always loved reading. And to me, this was something natural and so I saw this ad from IFRRO, and IFRRO is the International Federation of Reproduction Rights Organization, and they were looking for a general counsel.

I thought this would be a great opportunity to combine my law studies and my passion for books for the first time. But it was also the first time I ever heard about CMOs, Collective Management Organizations, to be very honest with you. And so those organizations that are managing the rights on a collective basis, they collect and distribute revenue to its members, typically for mass users. And so...I worked there at IFRRO for nearly eight years. More generally speaking, IFRRO works to develop and promote effective collective rights management to ensure that the copyrights of authors and publishers are valued through the lawful and remunerated use of text and image -based works. And I love this international environment really, very much and the copyright community and stayed with IFRRO for a long time until my husband got another post in Stockholm.

I was there for one year, had one Swedish winter and that was really, really, hard. It was dark, it was cold. And I thought I need to move south. So, I was actually, by accident again, seeing that ad on the WIPO website, that I thought, wow, that ad really suits me perfectly because it was a post in in a copyright management position as a counsel in the area of collective management in the copyright and creative industry sector.

And I just tried my luck. I applied, I wrote a written test, I had an oral presentation, I had an interview, and in the end, I got the post.

So, I was really happy and privileged, and I was there for eight years. I led the rights management team within the copyright management division and had the global responsibility for WIPO's legislative and regulatory advice in the area of copyright and related rights management, as well as for capacity building programs and technical assistance.

And worldwide, that was really great to work globally with so many governments and CMOs. And of course, it's all teamwork. And I had a very nice team there and we provided policy and legal guidance also on WIPO Connect. Some of you might have heard about it, WIPO has a software for CMOs, and this IT solution is offered free of charge in developing countries. And I worked very closely across several sectors at WIPO also, so not only externally from WIPO but also in - house with the development sector, the regional bureaus, the academy, because the academy also has distance learning courses on collective management.

the WIPO building respect for IP division because piracy is a big issue also for the CMOs and the creative sector. And of course, the WIPO arbitration and mediation center, it was always a big pleasure to work with you, Oscar, and your colleagues. yeah, several cases do involve CMOs. Those are confidential, I know.

But WIPO services are really attractive, especially also for CMOs because you have reduced fees. And sometimes actually just the suggestion to enter into mediation resolves the conflict quickly.

Oscar Suárez

We see that quite often.

Anita Huss

Exactly. And well, now since October, eight months now, I'm back at IFRRO as IFRRO CEO and Secretary General. And I really enjoy it and still work on many joint projects and initiatives together with WIPO.

Oscar Suárez

Absolutely. it's pleasure. And yes, I was going to mention that we've been working closely in several projects and even in some cases here and there when there's a need for a CMO wherever in the world to maybe be able to use one of these services that we have as mediation, arbitration to solve disputes that are sometimes even long standing and via mediation they find at least a way of opening a communication channel there.

But it's very interesting to see the subject of AI, ADR, these disputes that are arising in the context of CMOs. I wanted to ask you, what emerging topics should professionals be paying attention to in the realm of IP disputes, particularly with regards to AI, CMOs, these new areas that are coming up and these new issues that are coming up?

Anita Huss

Thank you, Oscar. Well, from an IFRRO perspective, and I will speak from an IFRRO perspective now, the ultimate goal will always be to enable RROs, that's how you call the CMOs in the text and image-based sector, to collect and distribute remuneration to those that it belongs to. And those are the authors and publishers around the world. And moving forward, AI will certainly be one of the biggest challenges for RROs, authors and publishers.

On the other hand, we now also have a unique opportunity to establish more human centered protocols and standards, making AI models more reliable, fair and trusted. And on the other hand, also AI feels very different than, for instance, blockchain. Blockchain was a hype just a few years ago, but I think AI has the potential to fundamentally disrupt and change our industry. They will have to adapt. But also many other industries, of course.

Large language models like ChatGPT are being used by developers to craft code quickly and generative AI models have been developed in an opaque way. It's not always transparent exactly what kind of copyright protected works have been used, how many, we don't really know how much damage has potentially been done with existing generative text models. So, without the consent of authors and publishers, credit or compensation. So, we think that transparency is really essential to the development of a fair and safe AI ecosystem. that technology, we need to also develop the technology that is simple to apply in this regard.

And there is also the TDM opt out those mechanisms, requirements under some legislations like in the EU, in Singapore, in Japan. So, time is of the essence here and regulation takes time. Laws will take time. So, in the meantime, our members have either sued some of the large language models or both, they have offered to license large language models, either on an individual or a collective basis. And when these negotiations fail, some of them have felt obliged to sue them.

And some of you might have heard, for instance, of the New York Times versus OpenAI Microsoft case as regards the unpermitted use of the New York Times content to train GPT large language models. But more generally for CMOs disputes can always evolve. And that's why it's so important to look at arbitration and mediation especially in the digital era. For instance, a user refuses to pay the fees due to the CMO or to report or to enter into a license at all, or there is a dispute about how to interpret the law. And sometimes they cannot agree on the tariff and the fees, and they need advice on a basis of expert determination. And I know that WIPO is also offering that, which is really, really, important. And of course, also CMOs can have disputes among themselves.

So, for instance, if there are several CMOs in the same field. So, transparency can be of concerns and RROs need to have fit for purpose technology and copyright infrastructure. And one of these solutions I mentioned earlier can be WIPO Connect. WIPO has offered this service and the software, and it also contributes to the establishment of new CMOs and the strengthening of the copyright management systems in these countries.

And at IFRRO I'm also working on promoting WIPO Connect to our members and encouraging them to use it. We have many joint projects all around the world that focus on capacity building. So, well, there are a lot of specific types of copyright disputes where legislation mandatorily requires or very strongly encourages ADR solutions like mediation or arbitration.

And for instance, I know that might be very close to many listeners here, the EU Digital Single Market Directive, which updated the EU copyright rules for the internet age, has references to arbitration and mediations. In Article 13, for example, it says that where there is a contractual licensing dispute, then mediation is the proposed solution. And perhaps the most interesting development has been Article 17, which imposes duties on large - scale online providers to either seek a license in advance for rights holders or provide content moderating mechanisms of filters on their platforms. And ADR is being recommended as an option, which is very interesting development.

Oscar Suárez

We've been working quite closely in digital content in general, digital copyright. We have been following closely from the center all what relates to this digital, in the digital copyright directive, but also the new digital services act. Now we're seeing even that those ways of solving disputes that may arise in the digital environment, maybe just by having non - binding mechanisms as mediation or expert determination, non -binding expert determination, is also useful because it doesn't prevent them from going to court, which in some of the cases that you were mentioning,

It is useful to go to court to get, for example, caseload of this new developments that may not be set rules yet.

We do believe that in the context of this new technologies with AI, even though already set technologies like platforms and whatnot, having these mechanisms like mediation, expert determination will help the party solve this because they are low value, but they need to be solved quickly. And we're working quite closely on it and we'll we can talk about it a bit more. I don't want to steal the conversation either. But I think it's very interesting.

And in that sense, I want to link it a bit more with your personal experience and your background and like, what is this significant experience of yours in this area that you think impacted the most and sent you in this trajectory?

Anita Huss

Well, thank you. I think I have to mention WIPO here. And I have many, many examples from WIPO and I loved my job at WIPO, but I'm particularly happy about one toolkit, the WIPO Good Practice Toolkit for CMOs. it was one of the main projects I worked on at WIPO. This initiative emerged from a previously unsuccessful, I must admit, project, which faced quite a lot of resistance from member states and stakeholders.

So it was a challenge. However, it was still perceived that there was a need for an authoritative but non -binding reference tool and a compilation of good practice tools in the area of collective management based on the different relevant topics for collective management from all over the world. And one of the chapters, and we worked actually on the drafting very closely together, is on dispute resolution as well, because this is really important for CMOs, so it includes also references to the WIPO arbitration and mediation center and the model clauses you are offering as far as I know.

So, after several rounds of consultations with governments, with the WIPO member states and all the stakeholders involved and they are not fully aligned at all, the CMO toolkit, actually everyone agreed on the wording and it became a real success, I must say, so I was very happy. It became a worldwide reference tool quoted by governments, CMOs and users as a balanced and hopefully useful tool. And it is also being updated now on a regular basis actually because laws change, regulations change, codes of conduct change. And currently WIPO is also updating that toolkit and using it also as a reference tool for legislative assistance and on collective management.

Other experiences are whiteboard. For instance, ECOWAS in Africa last autumn, or UMOA in French, I think you mostly refer to UMOA, they adopted a regional directive on private copying, which will urge ECOWAS member states to collect and distribute related remuneration to authors and publishers in ECOWAS member states. And like the European Union, those directives are mandatory, so you need to include those in the member states. And this was really a great outcome, so important for authors and rights holders in Africa, really important part of their remuneration.

And I worked on this from the very beginning, as well as another example I would like to mention is the Caribbean. I worked on draft regional CMO regulations for the Caribbean, we prepared those jointly with the intellectual property offices in the regions and also the CMOs in the CARICOM member states. We actually also worked very closely with your colleagues on this because there is always a reference to arbitration and mediation. So I was very happy that those CMO regional regulations, which is unusual actually that you have regional regulations, have been adopted at the ministerial conference in November last year.

And again, I was involved from the very beginning, so I see it as sort of my babies. And the same, I also want to mention Asia. ASEAN and WIPO had a project in the area of collective management. And there we drafted a toolkit, similarly like the good practice toolkit for CMOs and also a resource document following which now currently technical assistance is being offered in the region.

But not all countries unfortunately have established or functioning CMOs. And this is where we can help and where we can work together. WIPO, IFRRO and other stakeholders, other organizations, working together, ensuring a healthy and viable market and ecosystem.

Oscar Suárez

And then to summarize and to close up this podcast, which has been a pleasure to hear you and share with you a little while, we try to focus more about what advice would you give to young listeners or practitioners? So, what would be your advice to offer young or aspiring IP practitioners that are looking to specialize in this area of CMOs and this evolving area of the digital environment, these interesting subjects about AI and whatnot?

Anita Huss

Well, thank you so much for this. It's a really big question and I can only answer it from my personal perspective. And as I said, I haven't planned anything, so my life just developed. But personally, I would always recommend the creative industries and the publishing sector in particular.

Publishing is really an important sector among the creative industries that base their activities on copyright protected works. And WIPO actually has a series of national studies and WIPO has carried these out in 42 countries as far as I know and developed the WIPO methodology and this also shows that these industries or the publishing industries contribute with on average 5.18 % to the gross national product which is really a lot and the press and literature sector represents 39 % of the total, thus being the single most important sector in the majority of countries.

But generally speaking, personally, my advice to young colleagues would always be just follow your heart, do what you love and believe in yourself. Copyright is everywhere around us in our daily lives and not only just an abstract legal concept. So, if your passion is copyright, go for it. You will meet a wonderful international copyright community.

Oscar Suárez

Fantastic. Well, thank you so much. And before finishing, because I was very intrigued at the beginning of this podcast, that you said you love books. What is your favorite book?

Anita Huss

That's a really, really difficult question and it's changing all the time. But one of my favorite books is actually from Max Frisch, a Swiss author, Stille. And he writes a book about actually finding his identity. So he's actually refusing to be what he is supposed to be and he's creating his new identity. perhaps, yeah, I just love Swiss authors in general. yeah.

Oscar Suárez

Well, it actually wraps up very well what we were just discussing. So, thank you so much, again for your time.

Anita Huss

Great pleasure. Thank you so much.