Many industries across the U.S. have expressed alarm over the proposed waiver, which was put forth by a coalition of over 100 countries, led by India and South Africa, and would waive intellectual property rules in order to boost production of vaccines, medical products, and research toward ending the Covid-19 pandemic.
This might seem irrelevant to Hollywood, major publishing companies, and the music industry, but recently released disclosures show that these sectors have mobilized lobbyists to raise concerns with the waiver proposal.
The Motion Picture Association, which represents major movie and television studios, deployed five lobbyists to influence Congress and the White House over the waiver. The Association of American Publishers as well as Universal Music have similarly revealed that they are actively lobbying against it.
Neil Turkewitz, a former Recording Industry Association of America official, blasted the proposal on Twitter, claiming it will harm musicians, performers, and other cultural workers who are already struggling.
“As COVID has undermined the livelihoods of creators around the [globe emoji], you want to further expand their precarity—in the name of justice?” Turkewitz wrote.
Industry sources say the lobbyists are concerned that the waiver will be too broad in scope and could open the door for increased piracy. But the copyright industry push relates to a provision of the proposal that would waive copyright enforcement for the “prevention, containment and treatment of COVID-19.”
The MPA and AAP did not provide comments to The Intercept. Universal Music referred questions about the issue to the Recording Industry Association of America, a trade group for the music industry.
“Like others in the creative community, we strongly support the world’s efforts to defeat this pandemic, including aggressive efforts to bring the vaccine to underserved populations. As originally drafted, however, the proposed waiver would have extended to wholly unrelated areas that have nothing to do with the global fight against COVID – like copyright in creative works,” said a spokesperson for the RIAA in a statement to The Intercept. “We don’t believe the added language seeking to waive copyright on things like music and other creative content was what those originally advocating for a TRIPS vaccine waiver ever intended and, when asked our views, have explained the harm this could do to songwriters, artists, and other creatives who have faced massive economic challenges during the pandemic.”
Asked by The Intercept to identify the added language, the RIAA spokesperson did not respond to a request for clarity. The draft text for the waiver notes that “The waiver in paragraph 1 shall not apply to the protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations under Article 14 of the TRIPS Agreement.”
Advocates for temporarily suspending copyright enforcement claim that a truly global response to the pandemic requires open access to knowledge. While most of the public attention has been on vaccines, copyright enforcement also forbids sharing industrial designs used for the manufacturing of ventilators and other medical products crucial to fighting the pandemic. As early as last March, engineers who produced 3D-printed spare parts for ventilators faced warnings from corporate lawyers for potentially infringing on intellectual property and copyright protections.
“The MPA, the music industries really aggressively resist any kind of copyright policy that bends toward access,” said Sean Flynn, director of the information justice and intellectual property program at the American University College of Law.
This is not the first time that Hollywood lobbyists have intervened on a human rights-related treaty to maintain protections for copyrighted products.
In the lead-up to the 2013 Marrakesh VIP Treaty — an international accord to create copyright exceptions that would facilitate adaptations to make works of art accessible for disabled people — MPA lobbyists fought to narrow the treaty’s scope. The lobbyists argued that exceptions should apply for those with “print disabilities” only, therefore removing deaf people as beneficiaries and any audiovisual works from the text. The MPA successfully convinced negotiators to drop movies from the treaty.
Flynn said the current intervention against the Covid-19 waiver proposal again reflects the copyright industry taking a maximalist position. The concern that the waiver is overly broad, he noted, is a deliberate misinterpretation. The proposal currently under debate is simply a statement of principles, which, if accepted, will be followed by a text-drafting phase that sets the waiver’s parameters. Those are unlikely to include entertainment products.
“It’s pretty clear from the proposal statement itself that the intent is not to waive all intellectual property for everything,” Flynn added. “It’s only as needed to promote treatment and prevention of Covid, so access to Netflix videos or access to music DVDs are not necessary.”
In many countries with strict copyright laws, the pandemic has radically reduced access to scientific research. Many publishers restrict the types of use that libraries can offer, so researchers can only consult some publications on an in-person basis.
“In too many countries, researchers lack the rights they need to use the most advanced research methodologies, such as text and data mining, to help find and develop treatments to COVID-19,” noted the Documentary Filmmakers’ Association in a statement supporting the WTO waiver.
Greater access to copyrighted news and research publications could also help solve the public health challenges created by the pandemic. The artificial intelligence firm BlueDot, for example, used data from over 100,000 information sources, including news reports, to identify the spread of a viral outbreak in Wuhan in late December: weeks before the World Health Organization sounded the alarm over a flu-like outbreak in early January.
BlueDot is based in Canada, a country which, like the United States, has relatively flexible fair use policies. But similar research cannot be done in some Latin American countries, for example, with more stringent copyright laws. Flynn noted that only about a quarter of the world’s copyright laws permit noncommercial text and data mining research.
Tiago Lubiana, a Ph.D. candidate at the University of São Paulo in Brazil, noted that copyright protections have prevented her from using data mining methods for biomedical research. “If a resource is not explicitly under an open license, I will not be able to use it properly in text mining projects, for fear of legal issues,” she said.
“The research on vaccines is not finished,” added Flynn. “We need new technologies that can be even cheaper to manufacture, and we need an open copyright environment that enables modern forms of research.”
Update: April 27, 2021, 8:45 p.m. ET
This article has been updated with a comment from the RIAA.
Update: April 27, 2021, 9:47 p.m. ET
This article has been updated to include a follow-up request for clarity to the RIAA.