WIPO Copyright Committee In Disarray Again; Development Dimension Questioned

For the second time this year, the World Intellectual Property Organization copyright committee could not agree on the conclusions of its session or on any recommendation to be made to the September General Assembly on the protection of broadcasting organisations or the establishment of an international regime of exception and limitations for libraries and education.

The development dimension of the United Nations specialised agency was again called into question by developing countries calling for more balance in the treatment of the issues on the agenda. Developing countries are pushing for limitations and exceptions to copyright, developed countries contend that the current copyright system is adequate.

After what appeared to be a week producing some convergence on broad principles at the 28th session of the Standing Committee on Copyright and Related Rights (SCCR), from 30 June to 4 July, delegates, late into the night on the last day had to admit defeat as no agreement was found on the draft conclusions [pdf] of the session.

The draft conclusions, on which regional coordinators tried to find consensus for many hours in informal consultations, suggested that the General Assembly in September approve the convening of a high-level negotiating meeting (diplomatic conference) in 2016 for the adoption of a treaty on the protection of broadcasting organisations.

This was opposed by the African Group, which proposed that the discussion on whether to hold a diplomatic conference be moved to the 2015 General Assembly, which was supported by South Africa. India also said there was no haste to make such decision.

Further discontent came from the suggested roadmap for the next three sessions of the SCCR. Developing countries found that this roadmap focused on the broadcasting discussions while not giving the same treatment to exceptions and limitations.

A number of developing countries also asked that a reference to an international framework or international cooperation be mentioned in the conclusions on limitations and exceptions, which was opposed by developed countries, in particular the European Union.

During the week, no text-based discussions were carried out on the broadcasting draft treaty text, or on the working documents for limitations and exceptions, a fact which was underlined by some developing countries.

Some Developing Countries Try to Move Closer to Treaty Text

Brazil also asked that a mention be added to reflect the fact that on 4th July, Brazil announced to the plenary the completion of a document containing an aggregation of several textual proposals coming from the African Group, Brazil, India, Ecuador and Uruguay on exceptions and limitations for libraries and archives. Brazil had asked that the text be presented at the next session of the SCCR, scheduled for December, and be added to the current working document [pdf].

This is an effort to have a clearer text, according to the proponents, who now present a text much closer to a draft treaty text than the current 59-page working document. This working document contains 11 topics with textual proposals, many of which came from the proponents, followed by a series of comments. The new text, according to Brazil, is intended to replace the previous textual proposals from the proponents in the working document.

Group B opposed such reflection in the conclusions and remarked that the report of the session would contain all interventions made by countries during the session.

SCCR Chair Martin Moscoso, a former Peruvian copyright official, expressed disappointment at the forceful disagreements and suggested that again the conclusions be presented as the chair’s conclusions (as at a past meeting). He added that the recommendations expressed in the current conclusions would be removed, as they had not been agreed upon.

“I respect the different positions and concerns that you have,” he told delegation late into the night, but said he did not share the views of delegations being struck in individual positions. *I have big concerns about the work of this committee,” he said.

Kenya on behalf of the African Group said the outcome was a chance to undertake a deep reflection “on what we really mean when we say we are inclusive and member-driven, that we taken into account the interest of all member states.”

Group B concluded by saying the lack of agreement was regrettable but still thought some “meaningful progress” was made on the protection of broadcasting organisations and good discussions on limitations and exceptions.

The United States said that no lessons were learned from the last session and the continued failure to conclude on the committee’s work might call into question the usefulness of the SCCR.

SCCR Failing to Implement Development Agenda, African Group Says

On the agenda [pdf] of the session last week was an item on the contribution of the SCCR to the implementation of the respective Development Agenda recommendations. On 4 July, as the session was already going into the evening, the chair proposed that contributions by countries be submitted in writing to be recorded in the report of the session.

However, Kenya, on behalf of the African Group said “it would not be wise” to just submit statements for a substantive agenda item without any interventions, which might lead to the belief that there is no need for such an agenda item.

It is important for the SCCR, he said, to reflect on how it is implementing the Development Agenda recommendations. The Kenya delegate remarked that discussions do not seem to be going toward meeting the interests of all member states. The SCCR “has failed in the implementation of the Development Agenda recommendations,” he said. He called for a “careful look” to be given to “how this committee in handling discussions,” commenting on the lack of balance “in terms of the importance given to agenda items.”

“Some items seem to have a lot of weight, other seem to be treated casually,” he said.

The balance should be reflected in terms of outcome, he remarked. This statement was supported by India, which said that the time allocation should be balanced between topics.

During the last two sessions of the SCCR, the protection of broadcasting organisations was allocated two and a half days, the rest to be spent on the two remaining topics: exceptions and limitations for libraries and archives, and exceptions and limitations for education, research and people with disabilities other than visual impairment. However, the last topic was only given one hour last week and little time at the previous session.

Brazil also supported Kenya and India and added that “Brazil shares the same concerns regarding how important issues relating to the Development Agenda are being dealt with at the SCCR and in WIPO as a whole.”

“The work of the SCCR is key to mainstreaming of a more development-oriented perspective in WIPO,” the delegate said. “The agenda on limitations and exceptions is one of the most important contributions given by this committee to the implementation of the 45 recommendations since it directly contributes to a more balanced IP system in a very practical way,” she added.

Limitations and Exceptions, Discussion on Broad Principles

On 3 July, Moscoso suggested that the United States present its document [pdf] on objectives and principles for exceptions and limitations for libraries and archives to the plenary, to be followed by inputs by member states and observers.

The US delegate, in her statement, said the country “was seeking agreement on basic goals at the international level on which to base further work on national laws.” The document lists six objectives, the first of which is to encourage member states to adopt national exceptions and limitations for libraries and archives.

The US further specified that their proposed objective does not suggest that national exceptions are the sole solution.

The EU reaffirmed their position that they are “not willing to work towards a legally binding instrument.” They also said that “assisting member states of WIPO with the implementation of their exceptions in the national legal framework should be the objective of discussions” at the SCCR.

India underlined the fact that developed countries such as the United States are self-sustaining. The US has a good publishing industry, but the same cannot be said of many other countries, the delegate said, and many countries rely on foreign books and cross-border exchanges are a necessary international cooperation. This view on international cooperation was shared by numerous other countries, such as those in the African Group, South Africa and Brazil.

The annual General Assembly, taking place from 22-30 September, will have to decide on the future work of the SCCR. The next session of the SCCR is scheduled to take place from 8-12 December.