Participants Ready Agendas For New-Look WIPO Copyright Committee

By William New
World Intellectual Property Organization members gather in Geneva next week to take up old and new agenda items targeting international policy on copyright and related rights. Emerging agenda items are limitations and exceptions to copyright – including a possible proposed treaty on access for the visually impaired, and possibly artists’ resale rights, orphan works, collective rights management, and questions of applicable law.

Time-worn issues remain on the agenda as well, such as a proposed treaty to increase broadcasters’ and cablecasters’ rights – which may be given new life – and another on the protection of audiovisual performances.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) will meet from 3-7 November. The first half of the meeting will be used for “informative sessions” on limitations and exceptions (Monday and Tuesday) and audiovisual performances (Wednesday morning). The formal meeting will begin Wednesday afternoon through Friday. Among the presenters for the limitations and exceptions session are Judith Sullivan, a UK-based consultant who did a seminal study noting variations between national laws, and Kenneth Crews, who just completed a WIPO-mandated study on exceptions for libraries and archives.

Once again the SCCR is under the chairmanship of Jukka Liedes of Finland, according to sources. Liedes has led the committee for about a decade, during which time it has had no substantive outcomes, and has dwelt mainly on negotiating a broadcasters’ rights treaty sought by Europe and a few other countries. Chairs typically rotate in WIPO committees.

But despite his presence, new issues are muscling their way onto the agenda. A top issue has been limitations and exceptions to copyright for special reasons, a concept already incorporated into many national laws.

The World Blind Union (WBU) drafted a proposal for a WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons, and sent it to all member states and WIPO Director General Francis Gurry. The WBU represents 180 million blind and visually impaired persons from about 600 different organisations in 158 countries. Since 2003, it has been asking the SCCR to consider harmonisation of national limitations and exceptions in order to ease publication and distribution of copyrighted works in accessible ways. A key concern is the ability to overcome current barriers to export and import of such works.

The WBU is working to correct antiquities in copyright law and unnecessary hindrances to sharing of content translated for non-profit purposes into technologically advanced braille, according to Chris Friend, chair of the WBU copyright and right to read working group.

“Publishers don’t publish it in accessible formats,” Friend said in a Thursday interview. “The charitable sector has to republish and bear the cost of that. Why should we have to re-clear copyright? We’re doing it for non-profit purposes. It’s an enormous burden.”

Then to complicate matters further, if a work is republished in one country, for instance, the United Kingdom, it may not be able to be shared in another country, say Kenya, due to copyright restrictions or differences in legal exceptions. The group is seeking a “global lending library” for works that are republished for visually impaired readers to be accessible by all who need them. Issues that can arise include when there are different rights holders on the same book in different countries, or when each country’s laws differ.

WBU this year launched a global “right to read” campaign under which they will “field test” exceptions laws over the next year, Friend said. It will begin cross-border exchanges of republished works, freeze it at the point of handover to the recipient country and then tell the rights owner there that they have produced the work and will be exporting or importing it under exceptions. The reactions, whether acceptance, rejection or silence, will be noted and WBU will report back to SCCR and the International Publishers Association.

The proposed treaty would create two tiers of limitations and exceptions, giving non-profit institutions the right to publish and distribute works in accessible formats if four conditions are met. These are: the one republishing has lawful access to the work; the work is converted to an accessible format without any other changes; use is exclusively for visually impaired persons; the activity is non-profit. The biggest beneficiaries will be those in developing countries who lack the far greater access to accessible works found in developed countries.

The WBU requested WIPO distribute the proposed treaty text to SCCR members, and also is seeking a member government to introduce it during the meeting. Some have indicated an interest in referring to it, according to government sources.

According to the Knowledge Ecology International blog, CNIB, which represents Canadians with sight loss, is pressing the Canadian government to support the proposed treaty.

Meanwhile, Chile, a leader on the exceptions and limitations discussion in the SCCR, is expected to suggest to the committee next week that members complete questionnaires about their national laws, as it proposed in recent years in the Asia-Pacific Economic Cooperation group, a source said. This could serve to show what are state of the art practices, where gaps exist. Chile also likely will suggest approval of a proposal for a new study on exceptions and limitations for education purposes. Chile may be without Luis Villaroel, a leading voice in the government on the issue, who appears to have been moved off intellectual property issues, according to an official source.

The Shuttleworth Foundation in South Africa has published a study on minimum exceptions and limitations in education.

New Study Shows Variations, Patterns in Exceptions

A key study of copyright exceptions for libraries and archives by Prof. Kenneth Crews of Columbia University (US) will be discussed at the SCCR. Crews’s study collected research on 149 of the 184 WIPO members, and found that 128 have at least one statutory library exception (most with multiple exceptions). The remaining 21 countries have no library exception.

Crews said the statutes “differ greatly from one country to the next,” with wide variation on issues such as what can be reproduced for research, application to digital formats, and terms for delivery and use of copies. But he also noted patterns, some historically based showing influence of British law, some regional, such as the trend in Africa to have no or very broad library exceptions. The 27 members of the European Union have similarities in their laws but important differences too.

“The specific terms of the library exceptions reveal much about the relationship of copyright law to library services in different countries,” the study said. “They are a reflection of cultural, historical and economic objectives,” sometimes in conflict with one another. Statutes therefore often reflect a compromise between permitting copies by libraries while setting conditions to protect copyright owners’ and publishers’ interests.

Teresa Hackett, programme manager at Electronic Information for Libraries (eIFL.net), in a statement called the study a “tremendous new resource in which we can compare and contrast library provisions for almost every country in the world.” She said it is especially useful for the debate on core, minimum library provisions, and on the “future shape of users’ rights in the networked environment.”

Europe’s Agenda

The European Union circulated a communication ahead of the meeting offering justifications for topics it raised at the last SCCR in March as possible work items for the committee. On artists’ resale rights, the EU said it entitles artists or their heirs a royalty based on the price obtained for any resale of an original work subsequent to the first transfer by the artist, when art market professionals participate in the sale. The aim is to ensure artists are reimbursed appropriately, according to the communication, which is not public. The European Commission introduced a directive (2001/84/EC) in 2001 on the issue.

On orphan works, which are those still under copyright but whose owners cannot be identified or found, the EU said the issue has risen in prominence with large-scale digitisation projects, such as the Google Library. Projects are often delayed by the absence of a clear policy on use of orphan works that could allow exploitation of works while respecting copyright law, the EU said. Clarifying the issue could reduce concerns about liability and costs of searches, and address consumer interests, it said. Europe is considering the issue at the national and EU level, as are other member states, and all could benefit from sharing information at the multilateral level, it added.

Under collective rights management, another proposed agenda item, collecting societies jointly administer rights and collects and distributes royalties for rightsholders, including for music, literary and dramatic works. The EU is working to harmonise national collecting societies and suggests a sharing of national experiences at WIPO.

Finally, the EU plans to raise rather legalistic questions of applicable law – the national law which applies to copyright-related acts, which it said is governed by an area of law referred to “conflict of laws.” National courts typically apply the law of the country of exploitation or of origin of the work, and the EU has harmonised only applicable law concerning non-contractual obligations, which is under the Rome II treaty, it said. But Europe would like an exchange of information on this issue, as courts are being confronted with cross-border complexities due to information technology and networks.

Other countries may have agenda items to raise as well. For instance, the United States previously indicated interest in raising negotiations on client-attorney privilege.

Broadcasting, Audiovisual

On broadcasting, some countries led by Europe remain steadfast in their wish to see negotiations continue, but others appear to have moved on following the high-profile collapse of formal treaty talks in 2007. There are suggestions that attempts may be revived to discuss protection of broadcasts over the internet.

SCCR Chair Liedes produced an informal paper detailing the broadcasting issue for next week’s meeting, noting the topic had been discussed by the committee for 17 straight meetings dating back to November 1998, and summarising work and positions to date. Broadcasters’ rights are currently protected under the 1961 Rome Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. Only 86 of WIPO’s 184 members are members of the Rome Convention.

Liedes as much as encourages members to consider two possible avenues to return to negotiations on broadcasting. First, he said they could resume talks on the basis of the previous proposed draft treaty, SCCR/15/2 rev., but this time might consider establishing a treaty based on majority rather than the usual consensus.

The other possible avenue would be to develop a new model based loosely on Articles 2 and 3 and the Geneva Phonograms Convention of 1971, similar to the Brussels Satellite Convention. He proposed core provisions that would essentially declare protection for broadcasting and cablecasting organisations’ retransmission and fixation, and would leave implementation up to national governments.

Liedes also tied the broadcasting project to the WIPO Development Agenda by arguing that updated rules for broadcasters and cablecasters would help developing countries.

On audiovisual performances, the secretariat has provided a summary of the outcome from national and regional seminars it held over the year on the issue. The summary offers an in-depth look at the state of the issue for actors globally, and a “stocktaking” of positions. It said three main groups of issues emerged in the seminars: the subject and object of protection, organisations of performers, and rights in performances.

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