Hopes Dampened For Copyright Exceptions For Libraries/Archives At WIPO

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World Intellectual Property Organization delegates sitting on the copyright committee had to declare defeat late into the night yesterday as they could not agree on the conclusions of the meeting or its future work. The efforts by developing countries to craft a treaty providing copyright exceptions for libraries and archives met with stonewalled resistance by some developed countries, in particular the European Union.

“Let’s just say it slowed everything down,” a developed country official said afterward. “It’s a big bump in the road.”

At the beginning of the last day of the 27th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), which took place from 28 April to 2 May, the mood was cautious but echoes from the corridors talked of progress made on both major items of the agenda.

SCCR Chair, Martin Moscoso © WIPO 2014

SCCR Chair, Martin Moscoso
© WIPO 2014

The agenda items were rights for broadcasters’ at the start of the week, and exceptions to rights for libraries and archives at the end of the week.

However, the draft conclusions [pdf] of the meeting, proposed by SCCR Chair Martin Moscoso, director of the Peru Copyright Office, were dissected for hours as delegations tried to insert language which they thought would guarantee their positions. In the end, firm lines were drawn by both sides of the debate, and neither the conclusions nor the future work of the committee could be adopted.

Faced with the risk of wasting the ground covered during the week, Moscoso decided to present the document, along with all textual changes agreed upon as his own conclusions of the meeting.

“It was really something discouraging that we could not reach an agreement at the very end,” he said as a concluding remark in plenary past midnight on 2 May.

The conclusions contained different sets of conclusions. The first concerned the SCCR’s work about a potential treaty protecting broadcasting and cablecasting organisations (IPW, WIPO, 30 April 2014). Delegates managed to adopt the conclusions after lengthy discussions and textual changes of almost all paragraphs.

The second set of conclusions was about copyright exceptions and limitations for libraries and archives.

The major stumbling block was language referring to “text-based” discussions in the conclusions by the chair. The European Union, in particular, resisted this language, as they said it evokes a treaty. Developing countries, such as the African Group, India, Brazil, and the Group of Latin-American Countries (GRULAC), contended that discussions have been based on a working document [pdf], thus text-based and that the term “text-based” has already been used in several SCCR meeting conclusions, and in the committee mandate.

This issue has divided the SCCR delegations from the start of the discussions some years back. It only grew during the past week. Developing countries are pushing for a treaty, while developed countries have maintained that they oppose an international legal binding instrument to address the issue, as the current international copyright framework gives ample room to provide solutions, which should be applied at national level (IPW, WIPO, 2 May 2014).

Ironically, the EU has pushed hardest for a broadcasting treaty and many opponents use a similar argument – that this is already amply covered under existing copyright law. It is possible that delegations on either side are playing one off of the other, though none said so. This blow to developing countries also comes on the eve of this week’s General Assembly, in which developed countries are seeking agreement to proceed to a final treaty negotiation (diplomatic conference) on a design law treaty.

Work related to exceptions and limitations to copyright has been on the SCCR agenda since 2003, according to the report [pdf] of the 16th session of the SCCR from 10-12 March 2008. In June 2013, WIPO member states adopted the first international treaty ever to provide for copyright exceptions. It is the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

The road to adoption to the Marrakesh Treaty was a strenuous one and met vigorous resistance from some developed countries. A 2010 SCCR meeting on exceptions and limitations to copyright for visually impaired people met the same fate as last week’s, with no conclusions adopted (IPW, WIPO, 26 June 2010). One of the reasons for resistance was that such treaty would open the door to further exceptions and limitations, undermining the whole international copyright system.

Moscoso, now chair of the SCCR, was given unanimous credit for the conclusion of the Marrakesh Treaty as the facilitator of informal discussions between parties (IPW, WIPO, 1 July 2013).

Shameful! Say Librarians, Blaming EU

Librarians, which had been hopeful at the start of the session, showed dismay at the result of the 27th session.

“This week libraries and archives came to SCCR from Latin America, Australia, the United States, and Central and Western Europe and presented substantial evidence of a problem facing us at an international level,” Stuart Hamilton of the International Federation of Library Associations and Institutions (IFLA) told Intellectual Property Watch afterward.

“We think they [the European Union] are trying to kill the exceptions agenda at WIPO altogether,” Hamilton said.

“They have come here with one goal in mind this week, and that’s to ensure discussions on exceptions for libraries and archives, and for education, are gutted if not halted entirely,” he said. “The librarians and archivists are very angry at what happened.”

Detailed Discussion of Exceptions for Libraries

Meanwhile, a number of topics were covered during the second half of the week on libraries and archives exceptions. The working document contains 11 topics, 4 of which were addressed at the last session of the SCCR in December 2013.

During last week’s SCCR, topics 5 to 9 (Parallel importations; Cross-border uses; Orphan works, retracted and withdrawn works, and works out of commerce; Limitations on liability of libraries and archives; and Technological protection measures [TPMs]) were addressed and discussions started on topic 10 (Contracts).

In its present form, the 59-page working document contains both textual proposals and comments by delegations. Most of the textual proposals on the 11 topics came from the African Group, Ecuador, India, and some from other countries, such as Brazil and Uruguay. Kenya, on behalf of the African Group, proposed that the proposals close in nature be combined to allow for a clearer text. The working document also includes principles and objectives proposed by the United States.

SCCR Plenary © WIPO 2014

SCCR Plenary
© WIPO 2014

It was originally proposed that the WIPO secretariat be tasked with combining the proposals but that was opposed by a number of developed countries, such as the European Union, Germany, the Central European and Baltic States, Italy, and Greece who said the proponents of the textual language should work together so as not to burden the secretariat. Opponents of a treaty might be concerned that combining text is a step toward a treaty format.

Ecuador suggested that the authors of the textual proposals themselves come up with common language for the next session of the SCCR in July. It is unclear how this issue ended up.

Circumvention of Technological Measures

On topic 9 (Technological Measures of Protection, usually referred to as technological protection measures), the current textual proposals are proposing that libraries and archives be allowed to circumvent TPMs. TPMs are technologies used to control access to copyrighted content and prevent unauthorised users from copying it.

The African Group underlined the importance for libraries and archives to be able to circumvent TPMs in the digital age, and libraries and archives having to handle digital copies of books and documents. The European Union contended that the international copyright framework allowed for national provisions to this effect.

Some countries, such as Brazil, Morocco, Kenya on behalf of the African Group, and Trinidad and Tobago, suggested to look at Article 7 of the Marrakesh Treaty for inspiration on TPMs. The same was proposed by Knowledge Ecology International. This article ensures that limitations and exceptions be protected when TPMs are used.

Contracts

Topic 10 of the working document aims at shielding libraries and archives from contracts that could potentially prevent them from enjoying exceptions, in particular the exceptions provided by national legislations.

Ecuador, one of the providers of textual language, said having an international standard “would be of great value” because it would make clear that limitations and exceptions should be made available in certain cases and that contracts should not be a hindrance.

Brazil said the discussion on contracts is one of the most important topics in the potential instrument. “We should avoid that other contracts interfere in the exceptions and limitations that we are discussing in the international environment,” the delegate said. He proposed additional language to the topic to that effect.

Exceptions and Limitations for Education and Research

On the last day of the meeting, a third item currently covered by the SCCR was briefly discussed: exceptions and limitations to copyright for the benefit of educational and research institutions.

India remarked that the current document [pdf] which serves as basis for discussion “does not have any serious legal proposal from member states.” The delegate suggested that a deadline be fixed so that member states could provide legal proposals and send them to the WIPO secretariat.

The United States tabled a new document [pdf] on the last day of the meeting, titled, “Objectives and Principles for Exceptions and Limitations for Educational, Teaching, and Research Institutions.” The US delegate said the purpose of the document was “to launch a conversation in this committee to develop a shared understanding of how such objectives and principles could advance our work in this area.”

Individual countries “should have the flexibility to tailor limitations and exceptions to address their own circumstances and needs, within the constraints of international obligations taking in to consideration their specific legal cultural and economic environments,” he said.

The document proposes the adoption of national exceptions and limitations, to promote access to educational and research material by fostering a vibrant commercial market and the use of innovative licensing models, and support exceptions and limitations for use in technologically evolving learning environments.”

The US delegate added that the US does not support binding norm setting at the international level for exceptions and limitations for educational purposes.

The EU said they are not willing to consider a legally binding instrument in this area, and said they do not believe this issue is comparable to the context of the Marrakesh Treaty, which the EU signed with much ceremony last week.

Senegal, Congo, Propose New Area of Work for SCCR

Meanwhile, Senegal proposed that artists’ resale rights be added as a new area of work for the SCCR. Congo followed suit and said Congo’s national legislation includes provisions on artists’ resale rights but many artists see their works being traded by art dealers, art galleries owners, but are not getting the resale rights that they should enjoy.” They are not able to enjoy protection of their works beyond national boundaries,” the delegate from Congo said

This was supported by a number of countries such as France, Côte d’Ivoire, India, Italy, and the Central European and Baltic States. The EU and Germany said they supported the idea of the item to be discussed at WIPO. The US, Japan, and Switzerland asked to consider the proposal further and remarked on the already full agenda of the committee.

“We were delighted to see the long list of countries who took the floor in support of the resale right as an agenda item for the SCCR,” Gadi Oron, general counsel for the Paris-based Confédération Internationale des Sociétés d’Auteurs et Compositeurs, said afterward. “The right is of key importance for visual artists and it now exists in some 70 countries around the world. However, it has been many years since it was discussed at the international level and the way it is treated under existing treaties is unsatisfactory. The introduction and implementation of the right is a key priority for CISAC and its visual art societies and we believe that the time has come for harmonisation of the rules at an international level. We were strongly encouraged to see developing countries taking the lead on this important issue and getting the support of many developed ones.“

The next session of the SCCR will have to decide on which ground to start work. According to sources, they might chose to start discussions on the basis of the chair’s personal conclusions of last week’s meeting. The next session is scheduled from 30 June to 4 July.

William New contributed to this article.

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

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