After Beijing And Marrakesh, WIPO Copyright Committee Feels The Pressure

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Expectations are high this week on the outcome of discussions of the World Intellectual Property Organization committee on copyright. On the agenda is a potential new treaty protecting broadcasting organisations, and limitations and exceptions to copyright for libraries, archives, and education. In the mix is a new proposal by Japan to include computer networks in protected broadcasts.

After two consecutive successes in Beijing in 2012, with the Beijing Treaty on Audiovisual Performances, and in Marrakesh in 2013, with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, the committee is expected to continue work on a treaty that would protect broadcasting organisations and has been under discussion for the last 15 years.

The 26th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) is taking place from 16-20 December.

WIPO Director General Francis Gurry opened the meeting by paying tribute to the “constructive attitude” of delegations, which he said enabled the favourable conclusions of the Beijing and Marrakesh treaties.

However, those two treaties were different in nature. The Beijing Treaty is meant to increase protection over audiovisual performances by clarifying rights of performers in the use of their works. The Marrakesh treaty will provide an exception to copyright on special formats of copyrighted works for the benefit of visually impaired people.

The protection of broadcasting is the only item that has not been updated for the digital environment in the framework established by the Berne Convention for the Protection of Literary and Artistic Works, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, and the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms, Gurry said.

He underlined the little time remaining if the next WIPO General Assembly in September 2014 was to decide on a diplomatic conference (final treaty negotiation) in 2015.

Martin Moscoso, director of the Copyright Office of Peru, was elected chair of the SCCR for the next four sessions of the SCCR. Moscoso was a successful facilitator during the discussions leading to the adoption of the Marrakesh Treaty, in Morocco in June (IPW, WIPO, 01 July 2013).

Moscoso said achieving a well-balanced and legitimate copyright system that not only rewards rights holders but also civil society, is a difficult goal to achieve. But the last diplomatic conferences (final treaty talks) showed it was possible.

Under the conclusion of the 25th session of the SCCR, from 18-25 November 2012, the programme of work this week is expected to devote two days to the protection of broadcasting organisations, two days on limitations and exceptions for libraries and archives, and one day to limitations and exceptions for educational, teaching and research institutions and persons with other disabilities.

Developed Countries Focus on Broadcasting, Others on Exceptions

In their opening statements, developed countries emphasised the importance of achieving results on the treaty protecting broadcasting organisations.

On limitations and exceptions for libraries and archives, education and research institutions, Group B developed countries, however, said “the existing international copyright framework already enables these institutions to fulfil their roles both in the analogue and in the digital world.”

“We therefore stand ready to exchange experiences and work further with all member states so that exceptions and limitations function in the best possible way within the existing framework of international treaties and conventions,” said the Japanese delegate, speaking on behalf of Group B.

The European Union also underscored the importance to its member countries of a treaty protecting broadcasting organisations, and concurred with Group B about the current copyright framework being able to provide appropriate legal space to allow exceptions and limitations.

For developing countries, the issue of limitations and exceptions to copyright for libraries and archives, educational, teaching and research institutions, and persons with other disabilities, is of central importance, according to several opening statements, such as the Group of Latin American and Caribbean countries (GRULAC), the Asia and Pacific Group, and the African Group.

Algeria, on behalf of the African Group, said the international copyright system should respond to both private and public interests and should help the universal propagation of knowledge. The Marrakesh treaty, the delegate said, paved the way towards this goal. No delegations “can dispute the need for developing countries to have greater access to knowledge,” she said.

The work of the SCCR on the broadcasting treaty was delayed by the focus in early 2013 on the Marrakesh treaty. However, delegates met for a three-day inter-sessional meeting on the protection of broadcasting organisations from 10-12 April and focused then on three main topics: the treaty beneficiaries, the scope of protection, and the rights to be attributed to broadcasting organisations (IPW, WIPO, 16 April 2013). This session allowed delegations to clarify their position, according to the Chair of this inter-sessional meeting in April.

This week, member states are expected to make progress on a working document [pdf] for a treaty on the protection of broadcasting organisations. This document shows a number of brackets, signalling divergent views, and alternatives, in particular in Article 5 (Definitions), Article 6 (Scope of application), Article 7 (Beneficiaries of protection), and Article 9 (Protection of broadcasting organisations).

Japan has submitted a textual proposal [pdf] for an article 6 bis. The proposed article 6 bis provides for the “Protection of signals transmitted over computer networks.” The proposed article leaves the extent and specific measures of such protection to national legislations.

Broadcasters Eager, Civil Society Careful

The broadcasting organisations, such as the European Broadcasting Union, and the North American Broadcasters Association, which took the floor today expressed eagerness at finalising a long-awaited treaty protecting them. Civil society was more guarded.

Meanwhile, Knowledge Ecology International (KEI), in its statement, said it was premature to consider the convening of a diplomatic conference on broadcasting given the divergent views on the objectives of the treaty.

“Piracy of broadcasting signals already is against the law under copyright, as well as under various national and local laws on the theft of services,” KEI said. “The advocates of a broadcasting treaty have not shown that there is a problem in the area of piracy that cannot be addressed by existing laws on copyright or theft of service.”

“We have heard for years in this chamber of how there is rampant piracy of broadcasts despite the fact that every case of infringement that was used as evidence of the need for new rights was solved by relying upon existing legal protections of the content,” said the representative of the Computer and Communications Industry Association (CCIA).

The CCIA in previous sessions has underlined a conceptual problem, and stated again today that “signals cannot be fixed; the signal which carries the programme, irrespective of the medium through which that carrier signal travels, no longer exists once a device capable of making the programme perceptible receives it.”

“To grant copyright in fixations or anything derived from them such as reproduction, distribution, making available, or rental is therefore to grant a right in a fiction,” the representative added. Broadening the protection so that it is “technology-neutral” would “create an almost unlimited number of unintended negative effects,” he added.

On exceptions and limitations, the International Federation of Journalists said that too often those who speak of rebalancing authors’ rights “really mean to weaken the rights of the authors.” To do so in the case of education would “raise serious questions about what education is and how it is to be achieved.”

“The only way to have independent education materials is to pay for them at the point of delivery so that their authors … may be paid for the work they do and not promoting someone else’s message,” he said.

 

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

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