WIPO Sees Progress On Broadcaster Rights, Library Exceptions; Treaty For Blind Readers SlipsPublished on 5 December 2011 @ 11:51 am
By William New, Intellectual Property Watch
In what was termed a “marathon” session at the outset, World Intellectual Property Organization members took up a large number of copyright-related topics over the past two weeks with varying results. By the late-night end, an audiovisual treaty was on track, exceptions for libraries and a draft broadcasters’ treaty had new life, IP enforcement was going strong, but a draft treaty for print-disabled readers was unravelled.
The WIPO Standing Committee on Copyright and Related Rights (SCCR) met from 21 November to 2 December. Held within that time was a meeting of the preparatory committee for a treaty negotiation on audiovisual performances, and meeting of the WIPO Advisory Committee on Enforcement, both on 30 November to 1 December.
The draft conclusions document adopted late on the final night is available here [pdf].
If it was a marathon, it might be said that the first place finisher was the arrangement of the audiovisual treaty negotiation. In their 30 November – 1 December meeting, members agreed to hold a diplomatic conference, or high-level negotiation, on the draft audiovisual treaty in Beijing around late June (IPW, WIPO, 2 December 2011). This treaty negotiation has run a marathon of its own, having started in the year 2000.
Meanwhile, the surprise gainers for the two weeks were a proposed treaty on broadcasters’ rights and an effort to address exceptions and limitations for libraries and archives. Lagging behind was the proposed treaty on limitations and exceptions for visually impaired persons and persons with print disabilities.
The next meeting of the SCCR is not until July 2012 – safely just after the AV treaty negotiation.
The Advisory Committee on Enforcement (ACE) considered several proposals for future work, including to look at parallel importation, and several studies that critiqued current enforcement data and practices (IPW, WIPO, 5 December 2011).
Libraries and Archives
Exceptions and limitations for libraries and archives received robust treatment during this meeting, according to participants, with several days of discussion and agreement for more in the future. The issue still is considered by some members to be less mature than the print disabilities issue, and it is not clear that support will crystallise for a legally binding treaty, but the outcome was clear step forward.
Governments agreed to pursue a list of library and archive topics they had settled on during three full days of discussion early in the meeting (IPW, WIPO, 23 November 2011).
These topics include:
2. Right of reproduction
3. Legal deposit
4. Library lending
5. Parallel importation
6. Cross-border uses
7. Orphan works, retracted and withdrawn works
8. Liability of libraries and archives
9. Technological measures of protection
11. Right to translate works
Member states may submit written comments on the topics to the WIPO secretariat until 29 February 2012.
Rumblings of possible underlying discord, or at least national differences, appeared in the lengthy debate on the last night over the title of the document, to be called SCCR/23/8 Prov., that will be the basis for discussion on the libraries and archives exceptions. In the end, the agreed title is: “Provisional working document containing comments on and textual suggestions towards an appropriate international legal instrument (in whatever form) on limitations and exceptions for libraries and archives.”
France on behalf of the European Union [correction: a French official from the EU delegation] was unyielding in its insistence on the inclusion of a single word, “observations,” in the title, sources said, but this was finally overcome after several hours of debate and reworking of the title, prompting complaints from some delegations afterward over the pace and focus of negotiations.
Several proposals were put forward and discussed during the week (IPW, WIPO, 22 November 2011). A draft compilation of proposals and discussion prepared by the secretariat during the week lays out the proposals and comments made at the meeting on each of the topics.
Library and archive groups hailed the progress, releasing a statement that they were “delighted” with the progress made.
“The way WIPO Member States have engaged with library and archives issues has been very encouraging indeed,” International Federation of Library Associations and Institutions (IFLA) President Ingrid Parent said in the statement. “We feel that real progress was made during the SCCR that we hope will lead to an international solution to benefit libraries and archives, and their users, everywhere.”
Libraries and archives are seeking “a set of basic, minimum limitations and exceptions for the benefit of libraries, archives, and their users in their national copyright laws,” they said in their release.
“Currently, libraries operate under a patchwork of provisions that differ from country to country that often do not meet the needs of libraries especially in the global, digital environment,” they said.
On a treaty to protect broadcasters’ rights, proponents were positive during the week and indicated new life in the longstanding issue after an informal weekend consultation put sides together and then South Africa and Mexico came out with a new proposal on Monday.
The South Africa/Mexico proposal, SCCR/23/6, was intended to take into account the preceding proposals and discussion, according a delegate from a drafting country. It was given a first reading item-by-item, but at meeting’s end, some delegations said they would need more time before being able to consider it the basis for future negotiation on the issue.
Members may submit textual and legal comments on the South Africa/Mexico proposal to the WIPO secretariat by 29 February 2012. Comments will be made available for review on an “SCCR Forum” at www.wipo.int/copyright. The aim of the committee is to be able to recommend to the 2012 General Assembly in September to schedule a diplomatic conference on the broadcasting treaty.
The committee agreed to continue with its focus on “signal-based approach” to a treaty.
The South Africa/Mexico proposal attempts compromise on a previously controversial issue of whether the treaty should cover webcasting or only “traditional” broadcasting. It is not intended for webcasting, but it would cover traditional broadcasts sent from any type of platform, in a technologically neutral way, a proponent told Intellectual Property Watch.
The chair of the broadcasting discussion, Alexandra Grazioli of Switzerland, outlined an agenda to the informal consultations. She presented the result of consultations to the SCCR plenary and is expected to prepare a written document to be numbered SCCR/23/9.
A high-level diplomatic conference was attempted on the broadcasting treaty in 2007, but was dropped at the last minute due to an inability to reach agreement (IPW, WIPO, 22 June 2007).
People who have disabilities in reading print have been urging WIPO members to come up with a solution to cross-border copyright barriers to sharing of specially formatted reading material for the blind and visually impaired. The SCCR made significant progress on the issue at its last meeting (IPW, WIPO, 23 June 2011), raising hopes.
So it came as a surprise to many that previous apparent accord on a draft text of a treaty on limitations and exceptions for print-disabled readers was saddled at this meeting by hefty comments and suggested changes by numerous delegations, in particular the European Union.
The new “working document on an international instrument on limitations and exceptions for persons with print disabilities,” document SCCR/23/7, shows the proposed changes and comments.
Of “grave” concern to advocates for the blind and visually impaired are new provisions proposed by the European Union, such as requiring rights holder approval in cases where it does not currently exist, they said.
“We made relatively little progress, and in some ways went backward,” said Dan Pescod, who represents the World Blind Union, which initiated the WIPO proposal. But he chose to view it as a temporary setback. “This is not the first time I’ve seen it go backward,” he said. “This is not a smooth upward curve.”
Also causing “confusion and difficulty” was a side process generated by the International Publishers Association, which gave members the sense that differences were being worked out so that governments did not need to proceed, Pescod said.
Jens Bammel of the IPA told Intellectual Property Watch afterward that the industry group is “delighted that they had a substantial discussion” on the print-disabled treaty. Print-disabled advocates and rights holders “are not that far apart,” he said.
Pescod told Intellectual Property Watch that there may be work done between now and the next SCCR in July that could move the issue along. He would not rule out the possibility that the committee could decide in July to recommend to the September General Assembly to convene a diplomatic conference.
The document layout itself was the subject of concern to the EU, which demanded reworking of the formatting of the text such as font size, according to sources. This, and the long debates over document titles and other minutiae in this and the other limitations and exceptions document during the SCCR, led to several sharp comments from member states in closing remarks.
“We cannot stand for any more of this type of discussion,” the representative of Panama on behalf of the Group of Latin American and Caribbean countries told Intellectual Property Watch afterward. “We are disappointed to be having superficial discussions” about formatting and document titles.
Brazil told the plenary that it had “mixed feelings” about the work on the print-disabled treaty, sources said. The text on the table has many more elements than the previous proposal (which had drawn together four pre-existing proposals), putting the committee further behind.
“We are now perhaps more distant from the goal than before,” Brazil said, according to sources. “We must not lose the momentum. We don’t think it’s fair to the visually impaired communities.”
William New may be reached at firstname.lastname@example.org.