No Directions For WIPO Copyright Committee, Despite Positive Mood

Despite what was described as good momentum by World Intellectual Property Organization delegates trying to find ways to protect broadcasting organisations against piracy and providing copyright exceptions and limitations for the benefit of libraries, archives, education and research, no recommendation to the upcoming annual WIPO General Assembly could be agreed last week.

The 30th session of the WIPO Committee on Copyright and Related Rights (SCCR) took place from 29 June to 3 July 2015.

Although all delegations who took the floor expressed a strong interest in both subjects, the way to achieve results differ in particular when it comes to establishing international binding norms limiting copyrights.

SCCR Chair Martin Moscoso of Peru issued a summary of the session [pdf] on the last day of the committee. But no consensus could be found on the summary or on later issued recommendations [pdf] to be delivered to the WIPO General Assembly in October.

The first part of the week was devoted to a potential treaty protecting broadcasting organisations (IPW, WIPO, 3 July 2015). The proposed recommendation to the General Assembly was that the SCCR continue discussions on the topic and that the 2016 General Assembly, after taking stock of progress, might decide on convening a high level negotiating meeting (diplomatic conference) in 2017.

Some delegations, such as the Asia and Pacific Group, said it was premature to talk about the timing of a diplomatic conference for broadcasting.

Exceptions and limitations in the committee are dealt with in two parts: Exceptions and limitations for libraries and archives; and exceptions and limitations for education, research, and persons with disabilities other than visual impairment.

The proposed recommendations for both items were broadly worded and asked that the SCCR continue its work on both topics.

The wording of both recommendations was challenged by some countries, such as the African Group, the Latin American and Caribbean Group, and “the majority” of the Asia and Pacific Group, which argued that the recommendation should include a mention of an international legal instrument “in whatever form.”

In general, developing countries have been pushing for a legally binding agreement to provide copyright exceptions and limitations for libraries, archives, educational institutions, research and persons with disabilities other than visual impairment.

Visual impairment was carved out of the broader discussions of exceptions and limitations in the SCCR and became the subject of a treaty adopted in June 2013 (Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled).

Developing countries have argued that an international norm would provide countries that do not currently have such exceptions and limitations in their national system with clear guidance, and would harmonise the global system. They also argue that this international instrument would facilitate cross-border exchange of material between countries.

Developed countries argue that there are ample exceptions in existing global copyright law and that the SCCR should concentrate on sharing national experiences so that countries which do not have such exceptions can be informed on how best to proceed according to their local conditions. The European Union, for example, confirmed this week that it is not ready to support a legally binding instrument.

Most countries taking the floor at the close of the session expressed disappointment in the lack of a recommendation to the General Assembly.

According to a WIPO source, the General Assembly could choose to provide some direction for the future work of the SCCR. However, if it does not do so the committee will continue to meet and set its own agenda as a standing committee, the source told Intellectual Property Watch.

Exceptions and Limitations to Copyright

In its opening statement on the issue, the Africa Group said, “The principle of exceptions and limitations to meet specific objectives is an essential part of international instruments.” It said a large number of WIPO member states wish to enter into text-based discussions. This was supported by some other countries, such as the Asia and Pacific Group.

In its statement, India said, “Knowledge creation is at unprecedented phase and yet access to the knowledge is far behind in many jurisdictions.”

Iran, for its part, said, “We believe that there is a need for protection of authorship and expanding opportunities for participation in cultural life.” The delegate added that the existing limitations and exceptions envisaged in the current international copyright treaties do not sufficiently address emerging technological changes.

Several developing country delegations mentioned the report of Farida Shaheed, the United Nations Special Rapporteur in the field of Cultural Rights (IPW, Access to Knowledge, 11 March 2015). Her report was presented on 11 March at the 28th session of the Human Rights Council. Shaheed said exceptions and limitations to copyright should be developed “to ensure the conditions for everyone to enjoy their right to take part in cultural life by permitting legitimate educational usages, expanding spaces for non-commercial culture and making works accessible for persons with disabilities or speakers of non-dominant languages.”

Shaheed described the main challenge as being related to international copyright treaties making copyright protection mandatory, while treating exceptions and limitations as optional.

A number of developing countries, such as the African Group, the Asia and Pacific Group and individual countries, requested that at the next session of the SCCR the three items of the committee receive an equal amount of time to be discussed, as they view the broadcasting discussions as benefitting from more time in the meetings than limitations and exceptions.

Studies to Help Discussions

At the last session of the SCCR, in December, a Study [pdf] on Copyright Limitations and Exceptions for Libraries and Archives by Prof. Kenneth Crews was discussed and most delegations said the discussions were fruitful (IPW, WIPO, 18 December 2015). Some countries said a comparable study might be useful on the remaining exceptions and limitations. The Crews study, updated for this session of the SCCR, analyses law related to copyright exceptions “from all 188 countries that are current members of WIPO.”

WIPO has five regional studies on limitations and exceptions dating back to 2009. They are: Study on the Limitations and Exceptions to Copyright and Related Rights for the Purposes of Educational and Research Activities in Latin America and the Caribbean  prepared by Juan Carlos Monroy; Study on Limitations and Exceptions for Copyright and Related Rights for Teaching in Africa prepared by Joseph Fometeu; Study on Limitations and Exceptions for Copyright for Educational Purposes in the Arab Countries prepared by Victor Nabhan; Study on the Copyright Exceptions for the Benefit of Educational Activities for Asia and Australia prepared by Daniel Seng; and Study on Copyright Limitations and Exceptions for Educational Activities in North America, Europe, Caucasus, Central Asia and Israel  prepared by Raquel Xalabarder.

Several countries, including Brazil, asked that those studies be compiled so to have a global study, much in the same way the Crews study was organised.

According to a WIPO source, the regional studies will be updated and the secretariat is expected to consolidate those five regional studies. There is also a scoping study concerning the issue of persons with other disabilities than print disabilities, and is expected to survey copyright exceptions for those disabilities, the source said.

Request for Discussion on Resale Rights

Congo introduced a new topic for potential discussion in the next session of the SCCR: resale right for visual artists.

The topic was the subject of a side event on 30 June (IPW, WIPO, 2 July 2015). Resale right is a right that visual artists (graphic, plastic and photographic creator) might benefit from in the resale of their work.

The request by Congo was supported a number of African countries, such as Senegal, Sudan, Kenya, Tanzania, and Côte d’Ivoire, as well as Switzerland and the European Union. The United States and Canada said they could consider it and requested more time to reflect. Brazil and Iran said the discussion has value, but should be limited to one hour given the already full agenda of the SCCR. Japan, however, said it could not support the proposal.

Limitation on Remedies

Knowledge Ecology International (KEI), in its statement [pdf] on limitations and exceptions to copyright on education material, referred to a 2013 proposal by the African Group (in 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 proposals by several delegations.

The text proposes “to give educators the broad right to use works, in four specific areas of education, subject to the ‘reasonable and fair compensation’ to the ‘owner of the exclusive right’,” KEI said.

“The advantage of having the option of remunerative exceptions is both to expand access to more works than can be justified under a “free use’ exception, and to provide, in some cases, authors with compensation for the use,” KEI said.

KEI’s intervention was positively commented on by several developing country delegations.

Electronic Information for Libraries (EIFL) delivered a statement [pdf] in favour of exceptions and limitations, in particular in cross-border situations.

According to EIFL, in January 2012, “the British Library, one of the world’s largest research libraries, ceased its international document supply service that was supported by a copyright exception (known as the Overseas Library Privilege Service), to protect the library from claims of copyright infringement.”