WIPO Copyright Committee Done For Year; Exceptions And Limitations ‘Here To Stay’

By William New
The World Intellectual Property Organization copyright committee on Wednesday concluded work until next November in a way similar to recent years, with the same chair, European dominance, no agreement, and division over a proposed treaty on broadcasters’ rights.

But it also contained the elevation of a proposal to improve exceptions and limitations to copyright, and a proposal for four new agenda items: resale royalties, collective management, orphan works, and applicable law.

“Exceptions and limitations is here to stay,” a supporting government official said afterward.

The WIPO Standing Committee on Copyright and Related Rights met from 10 to 12 March. The next meeting is tentatively scheduled for 3-7 November. With many changes made at the end, the final version of this week’s meeting conclusions will not be available for days, a secretariat official said.

[Editor’s Note: the conclusions have now been posted on the WIPO website]

The meeting conclusion appears to include a request to the secretariat to make a study on exceptions and limitations for educational activities, including distance learning and trans-border aspects. It also may include a request to the secretariat to organise an information session on studies at the next committee meeting, at which the committee will consider a more detailed work plan, according to a draft version of the conclusions and participants.

The Chilean proposal on exceptions and limitations, which is cosponsored by Brazil, Nicaragua and Uruguay, includes a call for an open forum and studies by WIPO (IPW, Copyright Policy, 11 March 2008), ran into resistance from key developed countries, especially the European Union but also the United States, participants said. But proponents remained optimistic that the issue will receive full treatment in the future. To some degree, the difference between governments may be the speed with which the topic should progress.

A Slovenian official representing the European Union in the meeting told Intellectual Property Watch afterward that Europe requires more analysis of the exceptions and limitations proposal.

A US official told Intellectual Property Watch that the issue appears to be adequately addressed under existing agreements and at the national level but that it remains open to hearing evidence of the need for further discussion on the issue. One US concern is the way the language of the very first version of the proposal (from 2005) characterised the connection between exceptions and limitations and creativity. The original definition appears to overlook the view that copyright has traditionally been seen as the driver of creativity, an official said.

The statement given by non-governmental Knowledge Ecology International emphasised that the copyright system needs rebalancing by looking at exceptions and limitations from the standpoint of the user and not only copyright. KEI also suggested examining the Appendix to the Berne Convention for the Protection of Literary and Artistic Works in light of new technologies.

A Chilean official said in an interview afterward that “the outcome was very good,” because of the recognition that there is “a wide number of delegates that are willing to engage in a constructive process to provide a better understanding of the use of exceptions and limitations in the context of a balanced copyright system.”

This would mean providing secondary creators and users legitimate access to copyrighted work without authorisation or compensation in certain cases that he said “are necessary to achieve important values to society and economic and technological development.”

“Some delegations did not fully support the proposal because they might have had some misunderstanding about the object of the work being proposed,” the Chilean official said. “So I’m certain that once we have further discussions we will be able to provide sufficient answers and probably they will join this effort.”

Possible New Agenda Items

The four new items were proposed by the European Union for consideration after the committee’s unfinished business, which includes the broadcasting treaty, an audiovisual performances treaty, and an agreement on minimum standards for exceptions and limitations for certain uses such as public libraries, and persons with disabilities like visual impairment.

According to a participant, resale royalties relate to success of works after sale of the rights by their creators, collective management relates to royalty collecting societies, orphan works are those for whom the rightsholder cannot be found, and applicable law relates to which country’s law applies in disputes.

The additional proposals came months after the meeting mandate was handed out by the annual September-October WIPO General Assemblies, and was seen by some as an attempt to draw attention away from the proposal for an exceptions and limitations agreement that had taken centre stage in the committee this year. The committee agenda has been dominated for a decade by negotiations on a proposed broadcasting treaty that collapsed last year.

But proponents of the additional agenda items said this was the first meeting at which new ideas could be brought forward. It was the only meeting of the committee between the last General Assemblies and the next, as the meeting planned for last November was cancelled with the notion that more time was needed to consider the committee work plan.

The United States made a statement supporting three out of the four European agenda items, leaving out only resale royalties. A US official said afterward that it did not support or oppose the idea.

There was no agreement on the additional agenda items, sources said. Europe, meanwhile, led the push to revive talks on broadcasting, but was joined by nations from a variety of geographical and economic levels, including in Latin America and Africa, sources said. The issue was said by some participants not to have advanced in the meeting. Division among members also persisted on the audiovisual treaty proposal.

NGOs Support Exceptions and Limitations

Winston Tabb, chairman of the International Federation of Library Associations copyright committee, and on behalf of Electronic Information for Libraries and the Library Copyright Alliance said afterward, “The library community is pleased that exceptions and limitations have become a focal point for SCCR. For librarians, who are dedicated to increasing access to knowledge for library users, it is a good omen that WIPO may yet be seen as an organisation committed to equity and balance in copyright.”

“We were heartened that many member states expressed interest in pursuing the discussion,” Tabb said. “There was also general support to hold an information session on exceptions and limitations and for taking steps to improve access to information for visually impaired people.”

In its statement during the meeting, non-governmental group Public Knowledge supported the proposal for minimum international standards and highlighted the importance of clarifying rights related to use and the exclusive rights of authors. “It is necessary to update and clarify minimum standards and principles for exceptions and limitations,” Public Knowledge said. “This will better allow us to deal with the new challenges created by digital media, including technological protection measures and the rapid copying, storage, and transmission of data.”

The Electronic Frontier Foundation also backed the proposal for minimum international standards, and for studies and an open forum. EFF highlighted successful global public domain projects and the threats they face under the global copyright system.

European Digital Rights, EDRi, also stressed a focus on “ordinary citizens” along with other users, and said that the value in many consumer goods now lies in the software rather than the hardware, making it necessary for software to “learn to live with” consumer protection regulation.

EDRI highlighted the importance of limitations and exceptions to protecting free speech, such as parody and satire, quotations for criticism, and use of works in news reporting. “Copyright has a dark history for being a tool for censorship and oppression of controversial opinions,” he said.

Michael Keplinger, WIPO Deputy Director General responsible for copyright and related rights, declined to comment on the meeting afterward except to say that it was “successful.”

William New may be reached at wnew@ip-watch.ch.