WIPO Committee Sees Breakthrough On Audiovisual Treaty After 11-Year Delay

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An international treaty on the protection of audiovisual performances might be back on track after a hiatus of over 10 years, as World Intellectual Property Organization delegates today reached an agreement on a text and will propose to the WIPO General Assembly to convene a high-level treaty negotiation. A major step was also taken in the direction of a possible treaty on copyright limitations and exceptions for blind and visually impaired people, according to all sides, although some countries are still in favour of a softer instrument.

The 22nd session on the Standing Committee on Copyright and Related Rights (SCCR), took place from 15-24 June. The committee also addressed a potential treaty on the protection of broadcasting organisations. Although there is no negotiating text as yet, delegates agreed on a work plan.

A second version of the draft conclusions [pdf] of meeting Chair Manuel Guerra Zamarro, director general of the Mexican National Institute of Copyright, were approved today after a first version [pdf]was issued early this afternoon and needed several amendments, in particular on the description of the negotiating text of the protection of audiovisual performances. The conclusions were adopted with minor language changes and a new version should be published by WIPO early next week, according to WIPO.

The treaty on the protection of audiovisual performances failed to be adopted during a diplomatic conference – the highest level negotiations in WIPO terms – in 2000. All but one article was agreed upon at that time but it was characterised by some sources as very important to the treaty. The audiovisual issue has been kept on the agenda of the copyright committee ever since.

That article, Article 12, now has been agreed upon by all parties, completing the negotiating text. Article 12 [pdf] deals with the transfer of rights between performers and producers [pdf]. According to a WIPO source, one of the problems that was to be addressed by a treaty was that different countries addressed the issue of the transfer of rights between performers and producers in a different manner. In some countries, the rights belong to performers and in other countries rights belong to producers. With the new article, the treaty would establish some balance between performers’ and producers’ rights, the source said.

The chair’s draft conclusions state that, “Member States should recommend to the General Assembly that the General Assembly resume the suspended 2000 Diplomatic Conference,” including all 19 articles [pdf] agreed upon at the 2000 diplomatic conference and Article 12 agreed upon at this session of the SCCR.

A source from the audiovisual industry told Intellectual Property Watch that although the industry had some concerns, the text was a consensual language that “everybody could live with.”

Hope for Treaty on Exceptions for Blind Readers

On limitations and exceptions for persons with print and other reading disabilities, there are now two texts on the table for the next SCCR session: One proposed by the Brazil, the European Union, Mexico and the United States, and a chair’s text, which is based on the one proposed by Brazil, the EU, Mexico, and the US, with comments from delegations. Comments include options on the definition of work, the definition of authorised entities, the definition of reasonable price for developing countries, the nature and the scope of obligations, and the circumvention of technological measures.

Since it includes comments from delegations, the chair’s text is considered by many delegations and civil society as the basis of negotiations towards a treaty text. Some delegations, such as the European Union and the United States, have been sponsoring the idea of soft law, such as a joint recommendation, to establish limitations and exceptions to copyright for visually impaired people.

The support for the proposal from Brazil, the EU, Mexico and the US is a big victory, said a source from the US delegation. “We submitted a careful compromise” and that proposal now has about 40 sponsors from three regions, the source said, adding, “The US is very pleased that Brazil, US, Mexico and EU were able to reach such a complete compromise and agreement.”

Broadcasting Organisation: Catching Up at Next Session

On the protection of broadcasting organisations, a work plan proposed by the chair was adopted after lengthy discussions on the amount of time and scheduling of a two-day informal consultation that should take place around the next session of the SCCR in November. This informal consultation will aim at working on a draft treaty “with a view to making a recommendation to the 2012 WIPO General Assembly on the possible scheduling of a Diplomatic Conference,” according to the chair’s summary.

It was decided that the scheduling of this informal consultation will be left to the WIPO secretariat. The discussion will be based on different proposals submitted at this session of the SCCR by South Africa, Canada, and Japan, as well as the basic proposal for the treaty, and comments from the chair of informal consultations held on 14-15 April.

Civil Society Pleased

World Blind Union (WBU) President Maryanne Diamond said the group is pleased with the progress achieved this week and in general “we find the text pretty good and workable.” The WBU is ready to support it, she told Intellectual Property Watch. It is an important step which might lead to a treaty.

However, she said, “we are disappointed about the practice of double standard,” in which the concept of a treaty is obvious when talking about broadcasting and audiovisual but not on the exceptions and limitations to copyright for visually impaired people. The United Nations Convention on the Rights of Persons with Disabilities does not tolerate that people with disabilities be treated as “second class citizens,” she said, adding that a UN agency like WIPO should do likewise.

Dan Pescod, for the Royal National Institute of Blind People in the United Kingdom, told Intellectual Property Watch that some parties still do not want a treaty but “the treaty ball is running down the hill and gaining momentum.” It is a “massive step” to have a single negotiating text and “we are not going to settle for a soft law,” he said.

The next session of the SCCR in November will span over eight days, with the first three days devoted to discuss the issue of limitations and exceptions to copyright for libraries and archives, as agreed in the previous session of the committee.

Library representatives told Intellectual Property Watch they are “pleased with the progress that was made on limitations and exceptions for persons with print and other reading disabilities during the past ten days in Geneva.”

Libraries are “hopeful that the chair’s document produced during SCCR 22 can proceed towards an international legal instrument as quickly as possible,” they said. “We now look forward to the scheduled discussions on limitations and exceptions for libraries and archives in November, and are naturally keen to see progress in this area.”

According to a source, publishers associations are concerned about exceptions and limitations and that they would like to reinforce the role of authorised entities.

In the chair’s text on limitations and exceptions, the following appears to be worrisome for the industry: “An authorized entity has the trust of both persons with print disabilities and copyright holders. It is understood that to obtain the trust of right holders and beneficiary persons it is not necessary to require the prior permission of said rightholders or beneficiary persons.”

Catherine Saez may be reached at info@ip-watch.ch.

Creative Commons License"WIPO Committee Sees Breakthrough On Audiovisual Treaty After 11-Year Delay" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Comments

  1. says

    Re Prognosis for WIPO SCCR23: It should not require the reading of tea-leaves:

    “IPA, it’s members, their publishers and their writers want the works they write and publish to be read by all regardless of abilities… (Secondly), any legal instrument must base cross-border file transfers on licensing arrangements. There should be no international transfer of eBooks across borders without some form of rights holder approval.

    “(Finally), the legal instrument IPA asks for should make explicit reference to the three-step test.” from IPA remarks, SCCR22 17 JUN 2011

    So who actually gets to decide if any given country’s existing or newly adopted national copyright law exceptions actually conform to the wording ‘Certain Special Cases’ i.e. what exactly is so SPECIAL about it?

    After 15 years in the USA no one has yet offered let alone litigated an authoritative interpretation (even so says the President of the NFB) as to what an Authorized Entity as per Section 121 actually conforms. The current wording of AE in 22_16 includes “ONE of its primary missions” … How many PRIMARY missions can any entity of any kind actually have before one or more becomes secondary?

    The Preamble to SCCR 22_16 contains the wording:

    “Recognizing the need to maintain a balance between the rights of authors and the larger public interest …”

    If the ‘balance’ is between how many copies of a copyrighted work are sold and paid for globally through conventional channels versus how many FREE copies are distributed through SCCR 22_16 provisions especially in NON-specialized format (ePub, DOC, RTF, PDF, DAISY, Mp3, etc.), then that use of the word ‘balance’ might be called into question if those free copies globally constitute many multiples of the conventionally sold units as, after all, they are FREE.

  2. says

    A brief quantitative perspective on the above comment:

    According to the American Library Association (ALA) 2010 ‘Public Library’ facts:

    “Americans check out an average of more than seven books a year.”
    http://www.ala.org/ala/aboutala/offices/ola/quotablefacts/QF.3.8.2010.pdf

    According to a 2009 US Department of Education study, the ‘Mean Usage’ number of materials checked out per K-12 student is about 2 books per week.
    http://www2.ed.gov/rschstat/eval/other/libraries/libraries09.pdf ( Exhibit 4-19 )

    from the Bookshare.org website FAQ:

    9. How many books can I download?
    “The default number of downloads per month is 100 books. Individuals wanting more may increase this default by contacting Bookshare.”
    http://www.bookshare.org/_/membership/faq#9

  3. says

    One of the seemingly straight-forward definitions in the current WIPO SCCR 22_16 proposed international instrument –

    ‘Beneficiary Persons’ at Article ‘B’ is defined as someone who:

    “… has a visual impairment or a perceptual or reading disability or any other print disability, which cannot be improved by the use of corrective lenses to give visual function substantially equivalent to that of a person who has no such impairment or disability …”

    Consider however the following which was referenced in the recent 2011 (at page 22 of 350 total pages) WHO ‘Report on Disability’:

    “Take for example, mild to moderate vision problems correctable by glasses. In countries like the United States or Australia, this type of body function limitation would have no effect on a child’s ability to attend school. In a developing country with large classes, limited reading material, and no access to glasses or vision screening, such a problem could very well lead to higher drop-out rates or an increased tendency to have to repeat a grade. In fact, 40 percent of disabled children not attending school in Brazil were found to be not attending because of vision problems correctable by glasses.” http://siteresources.worldbank.org/DISABILITY/Resources/Data/MontPrevalence.pdf at 4.6

    So much for definitions

  4. says

    The WBU/Brazil 18_5 Treaty as submitted uses the verbiage for Copyright exceptions at Article 4: “It shall be permitted …” as if the Treaty language would preempt or override any national Copyright legislation to the contrary.

    The WIPO SCCR 22_15 / 22_16 document states at Article C: “Member State/Contracting Party should/shall provide in their national copyright law for an exception or limitation…” which means that even if the 22_15/16 document is passed as a binding treaty, it still will be incumbent upon each exporting and importing nation to modify its existing copyright legislation or enact new legislation. Such time as required, if such legislation is ever passed at all, might even exceed the EU ‘soft’ recommendation of a 3-5 year evaluation period.

    Quote from above: Dan Pescod, for the Royal National Institute of Blind People in the United Kingdom, told Intellectual Property Watch that some parties still do not want a treaty but “the treaty ball is running down the hill and gaining momentum.” It is a “massive step” to have a single negotiating text and “we are not going to settle for a soft law,” he said. (end quote)

    So maybe — like the forest fire technique of back-burning — some clever person or persons inserted the 22_15 Article C language such that, even if a binding Treaty is passed, it can be halted at the national country level by opposing the enactment of new or modified Copyright legislation by claiming that it greatly exceeds even the most broad interpretation of the TRIPS 13, Berne, and WCT Treaties or some other wrinkle in existing national law … Copyright-related or otherwise.

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