After Marrakesh, WIPO Copyright Committee Eyes Next Treaties

The future work of the World Intellectual Property Organization on copyright policy after the success of the treaty to facilitate access to special format works for visually impaired people last June in Marrakesh is subject to controversy this week at the General Assembly of the Organisation. The committee still has three potential treaties brewing and priorities have to be decided upon. As of last night, the issue remained open, joining a set of others left to informal consultations.

The annual WIPO General Assembly of member states is taking place from 22 September to 2 October.

The WIPO Committee on Copyright and Related Rights (SCCR) reaped two successes in two years: the Beijing Treaty on Audiovisual Performances in 2012, and last June the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

Unanimous recognition was given during the Assembly this week by a large number of countries to the success achieved in Marrakesh (IPW, WIPO, 26 June 2013). The success was also hailed as a demonstration that consensus can be found on hard issues such as copyright exceptions and limitations in WIPO.

On the agenda of the SCCR remain several items, one of which is an international treaty for the protection of broadcasting organisations. Two other instruments are also being discussed on exceptions and limitations to copyright: One for libraries and archives, the other on educational, teaching and research institutions and persons with other disabilities. At issue is the order of priority of the work of the committee, if any.

Yesterday, the group of Central European and Baltic States (CEBS) tabled a non-paper [pdf] on the roadmap for the work of the SCCR. The CEBS group proposed that work of the SCCR be accelerated on the treaty on the protection of broadcasting organisations and that a strong focus be given to the matter in the next meeting of the SCCR, with the objective that the 2014 WIPO General Assembly can decide on the convening of a diplomatic conference in 2015.

Exceptions for Libraries, Education Dividing Delegates

In general, developing countries are in favour of two international legal instruments on exceptions and limitations for libraries and archives, and education and research. Developed countries are of the view that limitations and exceptions already exist in the current framework of international treaties and conventions.

The United States expressed reluctance to negotiating another treaty on limitations and exceptions. The delegate said the country already has a range of exceptions and limitations to copyrights – both specific exceptions and a long-standing judicially developed doctrine of fair use. The US supports work of the SCCR deepening the mutual understanding of member states on copyright limitations and exceptions, she said. The SCCR should focus on developing common understanding and goals while ensuring appropriate flexibility at the international level, but “moving towards norm-setting activities would not be productive,” the US delegate said. The US also proposed a work plan for the SCCR, with particular focus on the broadcasting treaty discussions.

India said the sharing of materials is vital for the advancement of knowledge, in particular for libraries in developing countries. Reproduction and making available of educational material in the digital online environment is key to the progress of education and the improvement of access to knowledge, the delegate said, adding that India would support an international legally binding treaty for libraries and archives, and for education and research.

Brazil, on behalf of the Development Agenda Group (DAG), asked for clarification on the CEBS proposal, followed by the African Group. Egypt also said that the impact of the proposal on the SCCR work plan needed to be evaluated. Brazil later in the meeting said it was not in a position to approve the CEBS proposal at this stage.

Protection of Broadcasting Organisations Flying High

Most countries, including developing countries said they are in favour of the protection of broadcasting organisations and the prevention of signal piracy. However some developing countries said the instrument should not prevent access to knowledge. Iran said a potential treaty should be established without prejudice to access to information, in particular information belonging to the public domain.

India reiterated its clear opposition to any element of webcasting in the proposed broadcasting treaty but confirmed its commitment to comply with a signal-based approach in an international treaty to update the protection of broadcasting and cablecasting organisations in the traditional sense, consistent with the decision of the 2007 WIPO General Assembly. According to the delegate, the 2007 mandate takes care of technological developments in the traditional platforms.

Broadcasters Call for Urgent Treaty, Civil Society Cautious

The North American Broadcasters Association said new digital technologies have made it easy, fast and cheap to copy and redistribute broadcast signals on a variety of platforms, which makes it urgent to adopt a treaty to remedy the problem.

The European Broadcasting Union said live television is the fastest growing sector of all copyright infringement and signal piracy is affecting all broadcasting organisations whether public or private, in every country, which calls for an urgent solution. Signal piracy is a threat to easy access to education and affordable access to knowledge, the representative said.

Knowledge Ecology International (KEI) said a treaty to protect broadcasting organisations should not create a new layer of permissions to use copyrighted works. “It is not obvious to us why broadcasters cannot solve the problem they have in enforcement under the existing copyright system,” said James Love, KEI director. There is a probably a story that explains why that problem exists, he added, but it has not been expressed and it would be useful if it were more clearly stated, and if it was understood that the remedy proposed would not just be another agenda such as expanding the economic rights of broadcasters.

Libraries Call for Treaty, Industry Cautions about Implications

The International Federation of Library Associations and Institutions described the role of libraries as having a critical and privileged role in the preservation of cultural heritage. Libraries also have a critical role in educating users about the use of copyrighted works, acting as intermediaries between right holders, publishers, and library users. The disparities in national limitations and exceptions worldwide makes it impossible to fulfil the latter role, the representative said. Exceptions and limitations for libraries already exist in a number of countries but in some 25 percent of WIPO member states, mainly in the African continent, there is no exception or such a general exception that it is of little use to libraries, he said.

The circumstances of the Marrakesh treaty were special and unique, according to the representative of the International Publishers Association. There was a “clear and distinct humanitarian cause”, special file format, unique to persosn with print disabilities, and no “existing legitimate international commercial or non-commercial traffic in these kinds of files,” he said.

Circumstances “are very, very different from the situation of libraries around the world or educational institutions,” and the circumstances of the Marrakesh do not apply, he said, calling all member states to “reassess the facts, and look at the implications of international treaties for libraries and for education.”

“IPA believes that in these areas local publishers can collaborate with local authorities and local educational institutions and libraries to create the access that is required” and it is not the role of international treaties to “bully member states in doing things that they can already do under the existing legal framework,” he said.

The World Blind Union pronounced a vibrant statement [pdf] thanking WIPO and member states for the adoption of the Marrakesh treaty.