WIPO Copyright Committee Agrees On Future Work, No Decision On Broadcasting Treaty Deadline

The World Intellectual Property Organization copyright committee last week agreed on work for its spring session, which is expected to advance work towards a treaty protecting broadcasting organisations. Discussions on limitations and exceptions to copyright for libraries, archives, education, and research will remain on the agenda. Although some delegations remarked that the agenda is already heavy, they agreed to continue work on resale right for visual artists and copyright in the digital age.

The 33^rd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) took place from 14-18 November.

The summary of the chair [pdf] was adopted on 18 November after long discussions on work of the committee at its next session from 1-5 May 2017.

Martin Moscoso of Peru, who became chair of the SCCR after his notable negotiating abilities during the diplomatic conference concluding the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, stepped down after this session. Members will choose a new chair at the next session.

Broadcasting Organisations: Progress but No Deadline

On the protection of broadcasting organisations, delegates worked on a document prepared by the chair for the session of the committee entitled Revised Consolidated Text on Definitions, Object of Protection, and Rights to be Granted [pdf]. According to delegates, some progress was made during the week, in particular in broadening the common understanding.

WIPO delegates spent two days in closed, informal sessions discussing the chair’s document, with precise instructions to delegates not so share the content of the discussions outside of the room.

According to several delegates, most discussions focused on the definition of terms and the object of protection. The summary of the chair says delegations discussed those two issues, as well as rights to be granted. Some delegations made some textual proposals on those topics, the summary says.

A coming story from Intellectual Property Watch will try to shed more lights on what the treaty aims to achieve, what are the main convergences and divergences concerning the object of protection.

According to the summary of the chair, the SCCR decided to continue discussions on a revised version of the document, which is to be prepared by the chair for the next session of the SCCR in May, and is expected to reflect textual proposals made by countries during informal sessions, as well as clarifications made during those sessions.

Argentina, Colombia and Mexico submitted a note [pdf] on the draft treaty to protect broadcasting organisations calling for discussions on remaining issues to be expedited so that a diplomatic conference could be convened by the spring of 2018 at the latest. However, the summary of the chair notes that discussions at the SCCR should be with the view to achieving the consensus required for convening a diplomatic conference, but without specifying a deadline. Delegates told Intellectual Property Watch that the proposal had not really been discussed in informal discussions.

Exceptions and Limitations for Libraries, Archives

Discussions during the 33^rd session of the SCCR were based on an informal chart [pdf] introduced by the chair on exceptions and limitations for libraries and archives.

This chart is an updated version of a previous document, and the topics laid out in the chart are: preservation, right of reproduction for research and similar purposes, legal deposit, library lending, parallel importations, cross-border uses including international library lending, orphan works, limitations on liability of libraries and archives, technological measures of protection, contracts, and the right to translate works.

The chart lays out, for each topic, the concerns to be addressed and a suggested approach.

Those topics have already been discussed in the committee. On 17 November, librarians and archivists delivered statements explaining the reasons why they need limitations on liability (IPW, WIPO, 18 November 2016).

Moscoso said the chart will serve as a basis to have an evidence-based discussion on the 11 topics, to gain better understanding.

For example, for the issue of preservation, the concerns as characterised by the chart, is that there is legal uncertainty regarding whether existing limitations and exceptions for preservation/replacement purposes are applicable to digital content. The approach suggested by the chart is to ensure that existing or proposed limitations and exceptions will enable libraries and archives to make digital preservation and digital conversion for the purpose of carrying out their mission.

For the rights of reproduction for research and similar purposes, the concerns relate to the way of securing the introduction of limitations and exceptions to reproduction for research, which will not negatively affect the balance between the rights holders’ interests and the public interest, according to the chart. It suggests that limitations and exceptions should not affect the normal exploitation of the works and should not prejudice the legitimate interests of rights holders.

The concerns as stated in the chart for cross-border uses, including international library lending, is that limitations and exceptions should not affect legitimate established market of published works. The suggested approach is that those limitations and exceptions for cross-border uses should not affect the normal exploitation of the work and should not prejudice the legitimate interests of rights holders.

A revised version of the chart is expected to be prepared by the WIPO secretariat.

Limitations and Exceptions for Education, Research

Professor Daniel Seng of the National University of Singapore law school presented an updated version of his study [pdf] on Copyright Limitations and Exceptions for Education Activities. He had presented a first version of the study in May, which analysed 136 out of the 189 WIPO members (IPW, WIPO, 13 May 2016). The study presented last week included all WIPO members.

Seng received comments and suggestions from member states, and according to the summary of the chair, he will continue working on the study for the next session of the SCCR, including additional topics as suggested by member states, such as the impact of the cross-border use of works and reproductions.

The committee also considered a proposal [pdf] by Argentina concerning limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and for persons with other disabilities, and took note of the document. Several delegations said they would welcome discussions on the proposal at the next session of the SCCR. The proposal suggests “the introduction of rules of international law to mitigate the principle of territoriality, so that acts that are valid and legal in one jurisdiction, according to the terms of the treaty itself, are valid in another jurisdiction where they have effect.”

Delegates discussed a chart provided by the chair including the elements identified by Seng, as well as elements coming from previous discussions. The chart includes the following topics: private/personal use; quotations; educational reproduction; educational publications/anthologies/compilations/composite works; school performances; educational broadcasts/communications/recordings; compulsory licences for educational reproductions translations; and technological protection measures/right management information exceptions for educational purposes. Other topics expected to be included are: orphan works, contracts, and importation and exportation (cross-border issues), and limitation of liability for educational institutions.

According to the summary of the chair, the SCCR is expected to continue discussing the issue of limitations and exceptions at the next session of the committee.

In their closing statements, several developing countries said they would have preferred a clear roadmap on exceptions and limitations. The Asia and Pacific Group suggested that a “friend of the chair” or a facilitator be appointed to hold informal sessions in which the text for exceptions and limitations as an instrument could be discussed.

There were no textual discussions this week on limitations and exceptions. At the moment, two working documents are on the table from previous sessions: 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,” and 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.”

Developing countries have been pushing for treaty-like texts, which has been resisted by some developed countries that have said since the start of the discussions some years ago that they would not agree to international treaties providing copyright exceptions, since those exceptions are already included in international copyright agreements.

In 2014, the African Group, Brazil, Ecuador, India, and Uruguay tabled proposed treaty language [pdf] from the working document on libraries and archives. This document was not discussed either last week but remains on the agenda for future discussions, as several developing countries remarked that work should continue towards legally binding instruments.

A middle-income country suggested that limitations and exceptions for libraries, archives, education, research and persons with other disabilities be considered as a single issue.

Resale Rights, Copyright in the Digital Age

Two rather new items have been introduced at the SCCR since the last sessions. One is a proposal from Senegal and Congo to include the matter of the resale right, and the other one is a proposal by the Group of Latin American and Caribbean countries (GRULAC) for an analysis of copyright related to the digital environment.

On the resale right, which describe royalties that a visual artist may perceive on the resale of his art work, a video presentation was made by Sam Ricketson of the University of Melbourne.

According to the summary of the chair, the SCCR supported the proposals that were made by some delegations to hold a conference before the 34^th session of the SCCR in May on the issues raised by the application of the resale right from both legal and economic perspectives, including its potential effects on art markets, as well as to commission a study which would address in particular the economic implications of the rights.

Both issues will remain on the agenda of the SCCR for the next session.