Down To The Wire, WIPO Copyright Committee Seeks CompromisesPublished on 24 July 2012 @ 11:48 pm
By William New, Intellectual Property Watch
World Intellectual Property Organization members working morning, noon and night for over a week in order to agree on texts for broadcasters’ rights and a range of copyright exceptions appear to be finding ways forward on all of them as they head into the final day, according to participants.
The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting from 16-25 July. Issues include three types of limitations and exceptions: for visually impaired and print-disabled persons; for educational and research institutions; and for libraries and archives.
Much of the meeting has been held in closed-door informal meetings that exclude stakeholders such as industry and non-governmental organisations, as well as many delegates.
Today (24 July), members approved a working document. SCCR/23/8/prov on limitations and exceptions for libraries and archives [pdf]. The document had been previously negotiated but was given approval as the text on which negotiations will be based going forward.
On the visually impaired, progress was made on the text, but it seems unlikely that there will be an outright decision to recommend a diplomatic conference (high-level negotiation) in 2013.
There were some emerging ideas about how to keep open the possibility of such a negotiation next year, however.
An idea that gained some attention, according to participants, was a proposal for an “intersessional” meeting after the early October annual WIPO General Assembly, but before the next proper SCCR meeting in November. Then, if there is support, an extraordinary General Assembly could be called in December to decide on a diplomatic conference in 2013. It might be worth noting that the US presidential election is in early November.
There was optimism among many going into the meeting that a decision might be made this week to recommend a diplomatic conference, but the developed countries appear to opposed to it, though they have not made direct statements about it.
However, a US official told Intellectual Property Watch today that the US “has always been open as to the nature” of the instrument, as long as they “get the substance right.” That is because if the substance is not right, the rest will fail and it will not be effective, he said. It was also pointed out that negotiations going slowly do not necessarily mean negotiations going badly.
James Love of Knowledge Ecology International, a strong proponent of a treaty for the visually impaired, said in a blog post tonight: “It is worth noting that the EU proposals are not rooted in EU legal traditions, which include robust exceptions for disabilities, but rather EU publisher wish lists. In effect, the publishers and the EU want to turn the project into a new international norms for turning exceptions in highly regulated extended licensing agreements only to be used in limited cases. The US is not resisting the EU efforts in this regard.”
Another key area of the week has been exceptions for educational and research institutions, and there a new text emerged today [pdf], and it appears to be heading for agreement as the working document going forward.
Developed countries such as the United States still have considerable concerns about some language in the educational text, such as a broad proposal related to internet service provider liability. They also hope to trim proposals on exhaustion of rights, importation and exportation, orphan works and others. But those questions will come in the course of negotiations on this document.
Finally, on broadcasting, members appear to be in agreement to proceed on the basis of a single text, which should be issued tomorrow. The latest available broadcasting text, the “chair’s non-paper,” from early today (24 July) is here [pdf].
This week, Japan took a strong position on broadcasting, adding a new proposal to the South African/Mexican proposal that had begun to gain consensus. A key issue, a Japanese official told Intellectual Property Watch today, is the scope of application. There is general agreement that the treaty apply only to traditional broadcasters, and Japan wants it only to apply to traditional broadcasts, not webcasts or simulcasts. It is supported by Brazil and India, it said.
All countries except India showed support for it today, many of them noting clearly that major changes can still be made to it. But India saw such profound problems with the text – including direct contradictions between clauses and apparent divergence from the 2007 mandate that it be strictly about broadcast signals – that it said it could not agree to it as a basis for work. In the end, however, it is expected that the committee will move ahead on the basis of the document and will take India’s concerns on board.
Several non-governmental groups took the floor this week to criticise the idea of the broadcasters’ treaty.
The Computer and Communications Industry Association (CCIA), which counts Google among its members, said it is “a physical impossibility” to fix a signal, as it “no longer exists once a device capable of making the programme perceptible receives it.” So granting a copyright on fixations or anything requiring a fixation (such as reproduction) is “to grant a right in a non-existent object.”
CCIA also cautioned that a treaty making copyright protection technology-neutral would have unintended negative effects, such as turning anyone streaming something live on a platform like YouTube into a broadcaster with decades of broadcaster “signal” protection.
Broadcasting nearly went to a diplomatic conference in 2007, and might possibly be mature enough to come up again in 2013.
William New may be reached at email@example.com.