Broadcasting Treaty Moving At WIPO; Library Copyright Exceptions SlowerPublished on 22 December 2013 @ 8:52 pm
By Catherine Saez, Intellectual Property Watch
After a week of work on the three current subjects of the World Intellectual Property Organization copyright committee, member states mostly made progress on a potential treaty to protect broadcasting organisations, while exceptions and limitations to copyright for libraries, archives, education and research remain in the stage of determining broad concepts.
The 26th session of the WIPO Committee on Copyright and Related Rights (SCCR) was held from 16-20 December. The first two days of the meeting were devoted to the protection of broadcasting organisations, the two following days to exceptions and limitations (L&Es) to copyright for libraries and archives, and the last morning to exceptions and limitations to copyright for education and research (IPW, WIPO, 18 December 2013).
Late in the afternoon of the last day, proposed conclusions [pdf] by the chair were released for delegates to examine and agree upon. Discussions drew delegates well into the night as many corrections had to be included in the document before it could be adopted.
Prior to the proposed conclusions, the Group of Central European and Baltic States (CEBS) put forward a draft work plan [pdf] for the three next sessions of the SCCR.
The future work of the SCCR divided countries on the time allocation between the three issues currently discussed in the committee. The proposed work plan allocated more time to the protection of broadcasting organisations, which a number of developing countries, such as Brazil and India, contested. Brazil suggested that the same time allocation be used as in the 26th session: 2 days for broadcasting, 2 days for limitations and exceptions for libraries and archives, and 1 day for limitations and exceptions for education and research.
The Group of Latin American and Caribbean countries (GRULAC) suggested holding an intersessional meeting on limitations and exceptions for libraries and archives between the 27th and 28th sessions of the SCCR, supported by the African Group, but this suggestion was resisted by Group B (developed countries). Some countries also pointed out that getting agreement on conclusions of the session is time-consuming.
Given the diverging views, countries agreed to only plan for the work programme of the 27th session of the SCCR and leave the 27th session to discuss future sessions.
The SCCR chair finally proposed the following work programme for the next meeting, which was accepted: two and a half days for broadcasting, two days for limitations and exceptions for library and archives, and time permitting, for education and research, with a half day to discuss the conclusions.
Exceptions and limitations to copyright for libraries, archives, education and research were discussed with the objective of advancing work on potential international instruments.
During the discussions on exceptions and limitations for libraries and archives, some developing countries drew a link between the recently adopted Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, and the current discussion on further limitations and exceptions. Developing countries are in favour of an international legal instrument to provide exceptions and limitations for libraries and archives.
Developed countries in general remarked that existing limitations and exceptions in the international copyright framework are sufficient, and favoured an exchange of national experiences to find solutions to problems. Most developed countries are not in favour of creating international binding norms, and would prefer the issue to be tackled at the national level. They said that the Marrakesh Treaty answered to a “unique” situation and need.
One of the worries of developed countries and industry during the negotiations leading to the Marrakesh Treaty, which was the first to grant exceptions and limitations, was that it would open the door to more requests for copyright exceptions, in their eyes weakening the international copyright framework.
On 18-19 December, delegates worked from a Working Document [pdf] Containing Comments on and Textual Suggestions Towards an Appropriate International Legal Instrument (in whatever form) on Exceptions and Limitations for Libraries and Archives.
This document contains 11 topics under which are listed textual proposals and comments by delegations. The 11 topics are: Preservation; right of reproduction and safeguarding copies; legal deposit; library lending; parallel importations; cross-border uses; orphan works, retracted and withdrawn works, and works out of commerce; limitations on liability of libraries and archives; technological measures of protection; contracts; and right to translate works.
SCCR Chair Martin Moscoso, director of the Peru Copyright Office, tried to identify problems being addressed and determine areas of consensus and divergence in the first four topics, which were taken in the order they appear in the working document.
On preservation, if most countries agreed about its importance, some were wary of the potential consequence for rights holders. Australia, warned against a risk of creating new rights of reproduction or distribution. Canada suggested agreeing on a future definition of libraries and archives, supported by other countries, such as Brazil, which said it might settle worries of users of the copyright system concerned with the proliferation of works.
The third topic (legal deposit) drew no comments from delegations.
On library lending, Ecuador said such lending is at the core of their activities, but in many countries, such as in Latin America, national copyright laws do not include exceptions for libraries, so that libraries are acting illegally when they are lending works to their users. This justifies the need for an international standard, he said. Guatemala said it provides an exception for libraries. Brazil associated itself with Ecuador. Brazil, Ecuador, and Uruguay have a joint proposal on library lending in the working document.
On 20 December, delegates started discussions on exceptions and limitations to copyright for education, research, and persons with other disabilities. Other disabilities refer to disabilities other than visual impairment, such as deafness.
Discussions were based on a Provisional Working Document [pdf] Towards an Appropriate International Legal Instrument (in Whatever Form) on Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with other Disabilities Containing Comments and Textual Suggestions.
The working document includes a preamble, definitions, and a number of headings under which there are several subtitles. It addresses issues on flexibilities, different uses such as outside of classrooms and distance learning. It also includes reference to internet service provider (ISP) liability, public health and security.
Group B said some subjects in the draft document went beyond the limitations and exceptions for educational and research institutions, for example, the subtitle referring to security.
The Civil Society Coalition delivered a statement [pdf] on copyright exceptions for education in the Berne Convention (Berne Convention for the Protection of Literary and Artistic Works) and the Three-Step Test. They argued that the three-step test was designed to address exceptions that did not have a specific mention in the Berne Convention. Teaching and education have a specific exception under the 1967 revision of the Berne Convention.
Changes Reflect Issues of Internet, Nature of Instruments
The proposed conclusions followed the work programme of the SCCR and showed three parts: one on broadcasting, one on limitations and exception for libraries and archive, and one on limitation and exception for education and research.
On the protection of broadcasting institutions, India asked that a paragraph in Article 9 (Protection for Broadcasting Organizations) of the main working document [pdf] be added to the conclusions, regarding the prohibition of unauthorised rebroadcast of signals over the internet. This issue was debated at the beginning of the week with India, and some other delegations questioning the potential inclusion of transmission over the internet in the treaty.
The chair suggested that the following text be added: “In relation to article 9, an issue was raised in relation to the prohibition of unauthorized rebroadcasting of signals over the Internet to the extent of rights acquired by beneficiaries,” which met the approval of the plenary. India, however, asked that instead of stating that an “issue was raised,” rather state that “a proposal was made.” India’s proposal was accepted.
In the same part of the conclusions, in paragraph 6, the clause “(to be defined)” was added after “on-demand transmissions,” following a request by the United States.
India also asked that the mention “(to be defined)” be added after the word “beneficiaries,” which was agreed upon.
On libraries and archives, several changes were requested. On paragraph 14, Brazil said the wording “some member states also expressed interest in discussing national laws, capacity building, technical assistance, the development of studies, and the exchange of national experiences,” did not reflect the fact that only one group suggested this, and proposed to list countries that actually expressed interest in such discussions. That was opposed by the European Union and several developed countries.
It was finally agreed that a mention referring to other delegations not being in agreement would be added to the paragraph.
On paragraph 16, the conclusions included a request that the WIPO secretariat arrange for an update of the Study on Copyright Limitations and Exceptions for Libraries and Archives prepared by US law professor Kenneth Crews, and the secretariat was “asked to arrange for a study on limitations and exceptions for museums.”
Several delegations remarked that this had not been discussed in plenary session, and the paragraph was redrafted as follows: “The Secretariat was requested to arrange for the update of the Study on Copyright limitations and Exceptions for libraries and archive (document SCCR 17/2) prepared by Kenneth Crews and also asked to arrange for a separate study on limitations and exceptions for museums. It is understood that the preparation of these studies would not delay discussion on the libraries and archives limitations and exceptions agenda item. These studies will serve as an information resource for the Committee.”
In the last part of the conclusions, on exceptions and limitations to copyright for education and research, Brazil asked that the same amendment be made on paragraph 24 about the proposal by some countries to have discussions on national laws, capacity building, technical assistance and development of studies and the exchange of national experiences. A mention was added that other member states did not agree. The EU asked that “licensing schemes” be added to the list.
The conclusions also included a paragraph on the next session of the SCCR. Discussions arose over the mention in the paragraph of an intercessional meeting on limitations and exceptions for libraries and archive.
Brazil asked that reference be made in that paragraph of the decision [pdf] of the 25th session of the SCCR about a 3-day intersessional meeting between the 26 and 27th session of the SCCR, in an effort to maintain this possibility for the future. Brazil said the SCCR has a deadline to present a recommendation on limitations and exceptions by the 28th session of the committee. This was supported by Trinidad and Tobago in its national capacity, and the African Group. However, the request was resisted by developed countries.
The chair finally came up with a textual proposal for the paragraph, which met consensus: “After a consideration of whether to hold an Intersessional meeting on limitations and exceptions for libraries and archives to comply with the goals established by the Committee. To comply with the goals established by the committee.”
Catherine Saez may be reached at firstname.lastname@example.org.