By William New
As the senior staff of the World Intellectual Property Organization gathered outside its headquarters Friday to set the foundation stone of a new office building, WIPO member governments were struggling inside to agree on the foundation for the future of its key committee on copyright.

In the end, the committee agreed to continue discussing exceptions and limitations to copyright, a treaty on protection of broadcasters’ signals, and the protection of audiovisual performances. Highlights of the week were the extent to which exceptions and limitations were discussed – including a possible treaty on exceptions for the blind, and the possible return of a United States proposal to discuss protection for webcasters.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) was held from 3-7 November. The chair’s conclusions of the meeting are posted below.

Other agenda items were suggested during the week by the European Union but appeared to be left off the committee’s future agenda. These included artists’ resale rights, orphan works, collective rights management, and questions of applicable law.

Meeting Chairman Jukka Liedes told Intellectual Property Watch during the week that a “pipeline” for agenda items was being established. He also said that a “full discussion” of exceptions and limitations had been given, with a “full opportunity” for stakeholders to discuss the issue.

Some participants said the important point of the week was that indepth talks were held on exceptions and limitations for the first time. “This is a turning point,” said a representative of libraries. If developing countries could get to the same level as developed countries on implementation and use of copyright exceptions (such as for libraries or disabled), “it would be wonderful,” he said.

The first half of the week was dedicated to “informative sessions” on exceptions and limitations, which numerous developing country officials said afterward had been very helpful to them to understand the need for such exceptions. The exceptions issue has been under some consideration in the committee since Chile offered a proposed treaty on exceptions and limitations several years ago with the aim of filling gaps in national laws and harmonising them.

Treaty for Blind a Possibility

A hot topic during the week was treatment of a non-governmental proposal by the World Blind Union for a treaty on exceptions and limitations for the visually impaired, which developed country rights holders delicately opposed. Governments from Africa, Asia and Latin America referred to the proposed treaty, though none tabled the text directly as their own proposal, according to sources. Key developed countries resisted progress on this issue, asserting sensitivity to the needs of disabled people but arguing more time was needed to review the proposal and that the issue is well addressed at the national level. The WBU proposal had strong support from a range of non-governmental groups.

A key concern for publishers is the possible “leakage” of works transmitted for nonprofit purposes to developing countries, which end up in commercial markets. The WBU sees that as a solvable technology problem, and publishers see it as not solvable through changes to copyright.

France on behalf of the European Union objected to the inclusion of a line in the final meeting conclusions stating, “The SCCR took note of the paper presented by the WBU and many delegations expressed interest in further analysing it.” The line had been proposed by Brazil, according to sources. In the end, a compromise was reached that the line could say, “a number of delegations referred to a paper presented by the World Blind Union and expressed interest in further analysing it.”

Another change followed a US suggestion to narrow the focus to “reading-disabled” persons rather than all disabled, sources said. The chair urged acceptance of the notion because, he said, opening the talks to all disabled would considerably slow down the process, and he saw potential for a “quick start” for visually impaired persons. The understanding was that the committee could return to other disabilities later.

The WBU argues that developing countries have extremely minimal availability of visually impaired accessible content, even if it exists in developed countries. Accessible format materials cannot easily be shipped across borders due to technological and political barriers, including copyright problems, even if it is for nonprofit purposes, sources said (IPW, Copyright Policy, 31 October 2008).

A number of national laws which have copyright exceptions for the blind are silent on the import and export of accessible format materials, a source said, but the United States copyright law specifies that exceptions to copyright for the blind are only applicable to the United States market, which could conflict with any international agreement on the subject.

Another line removed from the final text in the same paragraph on visually impaired persons would have specifically called for limitations and exceptions to be analysed “including their application to the international exchange of materials in accessible formats,” which had been proposed by New Zealand. This had been intended to focus the committee on cross-border problems, sources said.

A give and take occurred between what was sought by rightsholder representatives and user representatives, echoed by member governments. In the chair’s first draft conclusions text, consumer representatives were surprised to see no mention of the WBU proposal, and the inclusion of language very similar to a proposal from the collection societies. The language called for a stakeholders’ platform, and a focus on contractual and other arrangements rather than new normative policies.

It was also agreed that the secretariat will prepare a draft questionnaire for governments to clarify their exceptions and limitations for educational, library and archive purposes as well as for disabled persons, and to obtain information about digital technology related to copyright.

During the week, some proponents of exceptions and limitations said outside the meeting that consideration was given to whether a broader treaty on exceptions and limitations may not be necessary if a “soft law” approach such as recommendations might be agreed. But most supported talks for a treaty specifically for the visually impaired. Meanwhile, some opponents of discussing the exceptions issue, such as the United States, also appeared to “mellow” their position, as one non-governmental participant put it. [Clarification: Other sectors seeking exceptions remain interested in pursuing this at WIPO, but there is recognition of moving first on addressing the visually impaired.]

Broadcasting Still Making Waves; Webcasting Returns

The discussion of broadcasters’ rights has dominated the committee agenda for 10 years, culminating in a high-profile failure to agree on a draft treaty text in 2007. The committee had previously agreed to set aside talks on protection for webcasters while it tried to move to a diplomatic conference (high level negotiation) on a treaty to protect against piracy of signals of broadcasters and cablecasters. The understanding was that the committee would return to webcasting and simulcasting later.

During the week, the United States declared the time for trying to move to a diplomatic conference on broadcasting had “expired,” so that talks could return on webcasting. But there was no decision on this.

India restated opposition to webcasting and encouraged completion of broadcasting negotiations on signals prior to and during transmission only. It noted that broadcasting is covered in Article 14.3 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Chairman Liedes of Finland has long shown a willingness to continue the broadcasting treaty efforts pushed primarily by Europe in the committee. Liedes’ first draft meeting conclusions last week characterised the broadcasting issue differently from the final conclusions. He first said, “Most of the delegations which referred to the informal paper prepared by the Chair did not want to reject any option concerning the way forward, while some preference to option A in the Chair’s paper was expressed.”

Option A in Liedes’ paper issued before the meeting said “another try” could be attempted to negotiate a treaty based on the previous draft text, and that informal papers could be used and agreement could be reached by “majority,” rather than the usual consensus basis followed in WIPO committees.

In the final version, it says simply, “The Committee took no decision regarding the options presented in the Chair’s paper.”

On decisions by consensus, Pakistan on behalf of the Asian Group noted that Liedes dropped any items related to exceptions and limitations that did not have consensus, such as the proposed treaty for the blind. Pakistan said this should be remembered if any proposals are attempted again to use “majority” instead of consensus related to broadcasting.

Liedes also said in his first draft meeting conclusions that “all delegations who took the floor expressed their support for continuing the work on this item.” The final version states that “the Committee decided to continue its work on this item.”

An information meeting will be held at the next SCCR to look at current conditions of the broadcasting environment.

Audiovisual Seen but not Heard

The longest-standing topic in the committee – whether to give performers greater international protection over their audiovisual performances – was discussed and was kept on the agenda for the future but with no breakthrough, sources said. The committee suggested the secretariat continue to organise seminars at the regional and national level, in part to encourage stronger protections at that level and collect possible proposals on any outstanding issues.

The next meeting of the copyright committee will be held from 25 – 29 May.

William New may be reached at wnew@ip-watch.ch.

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Text of the Final Meeting Conclusions (unofficial):

Draft Conclusions of the SCCR

Prepared by the Chair

Limitations and exceptions

The Committee expressed its appreciation for the studies prepared by outstanding experts, and thanked them for their presentations in the preceding informative meeting.

• The study by Professor Sam Ricketson provides an information basis and a detailed analysis of the norms in the international treaties and conventions regulating limitations and exceptions.

• The studies by Mr. Nic Garnet, Mrs. Judith Sullivan and Professor Kenneth Crews establish an information basis on the availability, scope and nature of limitations and exceptions currently present in selected Member States’ national system, as well as their interaction with contractual practices and digital rights management.

In order to update and complement the studies, governments are invited to submit to the Secretariat any supplementary information regarding their national law before February 1, 2009. The Secretariat will consult with the experts on the necessary updates of their studies.

The Committee noted with approval the forthcoming study on exceptions and limitations for the benefit of educational activities, including distance education and the trans-border aspect thereof, in particular for developing and least developed countries.

The Committee acknowledged the special needs of visually impaired persons and stressed the importance of dealing without delay and with appropriate deliberation, with those needs of the blind, visually impaired, and other reading-disabled persons, including discussions at the national and international level on possible ways and means of facilitating and enhancing access to protected works. This should include analysis of limitations and exceptions. This should also include the possible establishment of a stakeholders’ platform at WIPO, in order to facilitate arrangements to secure access for disabled persons to protected works. A number of delegations referred to a paper presented by the World Blind Union (WBU) and expressed interest in further analysing it.

In order to further complement the information on limitations and exceptions in national systems, the Secretariat will prepare a draft questionnaire which will be submitted for comments to the Member States before the next session of the SCCR. The areas covered by the questionnaire should include educational activities, activities of libraries and archives, provisions for disabled persons, as well as implications of digital technology in the field of copyright.

After the work in progress has been completed, the SCCR will consider the further steps in this area.

The matter will be kept on the Agenda of the next session of the SCCR.

Protection of audiovisual performances

The Committee reaffirmed its commitment to work on developing the international protection of performers concerning their audiovisual performances, and stressed the importance of the exchange of information and informal consultations with the aim of finding a way forward.

The Committee encouraged the Secretariat to continue to organize seminars at the regional and national level, in order to allow extensive exchange of information, also for the purpose of developing protection of audiovisual performances on the national level and to collect information and possible proposals on outstanding issues.

The matter will be maintained on the Agenda of the next session of the SCCR.

Protection of broadcasting organizations

The Committee decided to continue its work on this item in consonance with the mandate of the General Assembly. A number of delegations showed their interest towards the conclusion of a treaty. The Committee reaffirmed that according to the decision of the General Assembly the protection must be established on a signal-based approach, and the convening of a diplomatic conference could be considered only after agreement on objectives, specific scope and objective of protection has been achieved.

The Committee took no decision regarding the options presented in the Chair’s paper.

The Committee will continue its analysis of the matter and requested the Secretariat to convene an information meeting on the current conditions of the broadcasting environment for developing and least developed countries in connection with the next session of the SCCR.

The matter will be maintained on the Agenda of the next session of the SCCR.

Future Work

The Committee shall in its forthcoming sessions give priority and adequate emphasis to the outstanding issues of

- the work in progress on limitations and exceptions
- the protection of broadcasting organizations, and
- the protection of audiovisual performances.

Next session of the SCCR

The next session of the SCCR and the information session will take place in the week of May 25 to 29, 2009.