WIPO Copyright Committee In Fight To Overcome Differences On Exceptions, Limitations

On the World Intellectual Property Organization committee on copyright’s final day of weeklong negotiations, the hopes of visually impaired readers and others – librarians, schools – looking for an agreement on copyright exceptions and limitations hang on whether delegates can resolve differences and create a plan for future work.

At the close of plenary sessions last night, WIPO Assistant Director General for Copyright Trevor Clarke said the committee had reached the same point in negotiation as the previous meeting in June had reached late on Friday evening, just before giving in to a declaration of ‘no agreement’ (IPW, WIPO, 26 June 2010). With a full day left for talks, he begged assembled delegates not to allow the committee to have two consecutive failed meetings, several participants said.

“Not only does the World Blind Union and its associates depend on the work you do tonight and tomorrow, but this organisation, a strategic and key part of this organisation, depends and relies on your success,” he said, according to participants.

The Standing Committee on Copyright and Related Rights (SCCR) is meeting from 8-12 November. Exceptions and limitations

Most developing countries are now banded together behind a joint proposal for a future work plan from the African Group and the Group of Latin American and Caribbean countries (GRULAC) submitted to the plenary last night, participants said. The Asian group today officially signed on to the proposal. This proposal sets out a programme of work addressing all limitations and exceptions according to a timetable, beginning with limitations and exceptions for persons with print disabilities.

A copy of the “African-Grulac” proposal from last night is available here [doc]. A newer text labelled the “African-Asian-Grulac” proposal was circulated today, but has not changed other than to add Asia’s name.

The African-Asian-Grulac work programme includes special sessions between the biannual meetings of the SCCR to speed the work towards agreement on these issues. It proposes an evaluation be made by the WIPO General Assembly in 2011 on whether to call a diplomatic conference on limitations and exceptions for persons with print and other disabilities, and a similar evaluation be made at the Assembly in 2012 over limitations and exceptions on educational, teaching and research institutions as well as libraries and archives. Diplomatic conferences are highest level final negotiations for treaties.

There is also a proposal from the Group B of developed countries, which also sets out a work plan for the SCCR. The Group B work plan does not include special sessions or the mention of diplomatic conferences. It is available here [pdf].

As of this morning, Group B was working from the African-Asian-Grulac proposal, and had submitted comments to it. These comments, available here [pdf], include a paragraph in the introduction “recognizing the need to advance the more mature areas,” the committee will work towards “an international legal instrument (or instruments) on appropriate exceptions and limitations for persons with print disabilities” and then to continue work on other areas such as limitations for libraries, archives, educational and research institutes.

This paragraph would replace the original calling for text-based negotiations towards an instrument or instruments for all areas of exceptions and limitations, beginning with the print disabilities but also including later work on instruments for exceptions for libraries, archives, educational and research institutes. The B comment text could be a problem for countries that see these other exceptions as equally critical, as it does not explicitly state an instrument or instrument will be worked on for those areas.

The original Group B proposal had said the SCCR would “undertake text based discussions to achieve agreement on appropriate exceptions and limitations.”

The scope of disabilities covered by future talks could also be a potential sticking point, said representatives of non-governmental groups who are preparing a statement on the issue.

Currently, delegates are in informal negotiations trying to find consensus. The next plenary is scheduled for later tonight.

The SCCR is only now negotiating on a work plan; what delegates are negotiating towards – i.e., a treaty or a recommendation – will likely be decided towards the end of the negotiation, several participants have said. Many developing countries have made no secret that they want a treaty to protect the exceptions and limitations they see as critical, but developed countries have expressed reservations about such an instrument.

Meanwhile, negotiations toward a potential treaty to protect broadcasting organisations and on work to protect audiovisual performances continue in parallel to the exceptions and limitations debates. “Non-draft non-papers” for potential conclusions on these issues have been circulating among delegates.

Early informal papers are available here: on audiovisual performances [pdf] and on broadcasting [pdf]. There have been later revisions, according to participants, and they will be posted here when available.

Background

The African-Asian-Grulac compromise text represents a significant step in the negotiations of the SCCR, bringing together two groups of developing countries that had previously had disagreements about how to proceed with work on the committee.

Negotiators from GRULAC and other supporters of a treaty for the visually impaired wanted to see movement on the project as fast as possible, fearing the loss of momentum that often happens in complex WIPO negotiations. In May of 2009, Brazil, Ecuador and Paraguay submitted to the SCCR a proposal of the World Blind Union for a Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons [pdf], and this was later supported by India and then other developing countries.

The African Group had been concerned that forward momentum on the visually impaired treaty – while desirable – would leave behind work on other critical areas of exceptions and limitations they viewed as equally urgent, if not necessarily equally mature in the negotiating process.

“There was always the notion that the African Group was hampering the movement on access to persons with print disabilities. This is not true,” said Mohammed Gad, an Egyptian negotiator, at a side event hosted by non-governmental group Knowledge Ecology International on Wednesday. It “needs to be made very clear that the African Group is fully supportive, and the African proposal is arguably the most encompassing” of all the exceptions and limitations, he added. “We will not hamper the progress on any issue. At the same time we will not accept that progress on one issue will hamper treatment on other issues.”

Earlier in the week, there was a proliferation of proposals indicating some of the differences of opinion on how to proceed, including from the African Group [pdf], from the Group B, and from Mexico. But now those differences appear to have been set aside as negotiators enter the final hours.

Comparing the current copyright debate to the separate Geneva debate on IP and access to medicines, Gad said there is a need to balance the industry of culture with the mission of culture. WIPO has “a long history of catering to rights holders,” he said, but thanks to the 2007 Development Agenda that has begun to change. “This is the juncture where we need to identify how we are going to proceed.”