WIPO Limitations & Exceptions Treaty Advances; Audiovisual Treaty Gets New Life

After intensive negotiations, the World Intellectual Property Organization copyright committee reached agreement Friday night on a plan to address a proposed treaty on copyright exceptions for visually impaired persons and others. There also appeared to be a renewed focus on a decade-old treaty proposal on audiovisual performances, according to participants.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) met from 25-29 May. The committee addressed limitations and exceptions, broadcasters’ rights and the rights on audiovisual performances. On limitations and exceptions, a primary focus was a proposed binding treaty for visually impaired persons, as well as other possible exceptions such as libraries and archives.

The committee negotiated intensively on the chair’s text of the meeting conclusions, going through three drafts (IPW, WIPO, 29 May 2009) before reaching final agreement.

The committee’s late night outcome put the visually impaired treaty proposal – along with any other proposals or contributions on limitations and exceptions – on the agenda for discussion at the next SCCR, the date for which is not set. It also keeps on track a secretariat-led initiative to bring stakeholders on the visually impaired question together through a “platform”.

The final SCCR meeting conclusions text is available here [pdf].

Brazil, Ecuador and Paraguay, which introduced the proposal into committee, “have channelled into WIPO a legitimate and urgent demand from the civil society,” members of the Brazilian delegation told Intellectual Property Watch afterward.

“For the first time ever, a draft treaty on exceptions and limitations is brought to the attention of the SCCR,” they said.

The treaty proposal, which originated from the World Blind Union, “was broadly supported and member countries showed openness and willingness to discuss” it, the Brazilians added.

“This has been a very important shift of what we would like to call the ‘new paradigm’, which is to give equal importance to the private interests of rights holders and the human rights of the public,” Flavio Arosemena, national copyright director of Ecuador, said afterward. “WIPO has just taken a first step towards assessing the intellectual property system as a tool for development, and to contribute to better the lives of all people, not only rights holders.”

Committee Chair Jukka Liedes said the treaty proposal would follow “normal procedure” and that delegations would consult at home. The “heavy machinery” is set in motion, he said.

“In international organisations, proposals for treaties are normal daily business,” Liedes said, adding that “sometimes conventions appear.”

The committee also demonstrated a “new willingness” to consider the audiovisual treaty again, Liedes said.

Final Text

The final text was drafted in a closed room with regional coordinators plus one or two other delegation representatives from each region. Key changes from the third to the fourth draft conclusions included expanded references to a “global and inclusive” approach to exceptions and limitations. This reflected the African Group’s concern that libraries and education also be addressed by the committee upfront, sources said.

The final text also more evenly describes the views expressed during the week on the visually impaired treaty. It states simply that some supported the binding treaty proposal, some wished for more time to analyse it, some wished to continue the work as part of a global and inclusive framework, and some deliberations on any instrument would be “premature.”

This departed somewhat from reports midweek that the vast majority of interventions on the treaty were strongly in support, but supporters did not complain about the final wording. Some noted that in diplomatic language, “premature” translates into opposition. This was the position of the Group B developed countries.

Representatives of Group B countries such as the United States and Germany (which speaks on behalf of Group B) were reluctant during the week to discuss the treaty proposal outside of the meeting room, perhaps reflecting the sensitive nature of their position, which might be conveyed as putting economic interests over human rights.

The final draft strengthens the expected treatment of the treaty proposal and any other proposals, changing the words “will be considered” to “will be discussed.”

It also changes the stakeholders’ platform to emphasise inclusion of developing countries, including seeking to hold the next platform meeting in the South (the first two were held in Geneva and London, respectively).

The final text retains agreed language on the process of the draft questionnaire floated by the secretariat, aimed at determining the status of limitations and exceptions in member states. But it adds detail about what the questionnaire should focus on, ranging from social, cultural and religious exceptions and limitations to technology transfer, libraries, education and research. It will include questions on cross-border issues.

In the final text, the secretariat has a continued mandate to finish by the next meeting a study on limitations and exceptions for education, including distance education and cross-border issues. The secretariat also was asked to prepare analytical documents identifying the “most important features” of limitations and exceptions based on all studies, addressing the international dimension and “possibly categorising the main legislative solutions.”

Part of the delay on the final day was over whether to hold an informational session at the next SCCR. Some members wanted it focussed on the visually impaired treaty, while others wanted to have a broader limitations and exceptions focus, according to participants. In the end, the idea of an informational session was dropped.

Stakeholder Reactions

Chris Friend of the World Blind Union, which initiated the treaty proposal along with an expert drafting group that met in Washington, DC in August 2008, said afterward, “We floated the treaty as a draft” at the November 2008 SCCR, where it was “talked about a lot.”

The first objective after that, he said, was to transfer the proposal to state ownership from the non-governmental group, which was accomplished. The next objective was to get it on the agenda of this week’s SCCR, the 18th meeting of the committee, which they managed to do.

Now, the governments will take the treaty proposal back to their capitals to analyse it. And the groups working on behalf of visually impaired readers, like WBU and the DAISY coalition, are “built into that process,” he said, with advocates on the ground in each region of the world.

It is their understanding that governments will come back to the next SCCR in November “ready to discuss.”

An international publishers’ representative said of the chair’s conclusions afterward, “Clearly it’s one of those documents where every line was a battleground. It reflects the struggle between different groups, those who want to act [quickly] and those who want to aim before they shoot.”

James Love of Knowledge Ecology International, a key treaty proponent, said afterward: “The countries in Group B want to block the treaty, and not be blamed. The US and others had Germany negotiate on their behalf. At some point, you have to ask, why does the United States align itself with Germany’s anti-treaty position? Why did Canada? Why did Switzerland or Norway? Why did the Vatican? Why did these countries not co-sponsor the treaty proposal?”

“The US claims it is premature to discuss ‘any’ instrument,” said Love. “Really? This is not an old demand and an urgent need? It has not be kicking around for years?” He cited a report from a 1982 WIPO-UNESCO [UN Economic, Scientific and Cultural Organisation] meeting. KEI also has a report on discussions on the issue since 2002.

In his statement to the committee during the week, Pablo Lecuona, director and founder of Tiflolibros Argentina, appealed for the governments’ help. Lecuona, who is blind, said Tiflolibros makes 45,000 books available to 4,000 users across 44 countries. The majority of titles are available in accessible format, but despite excellent relations with authors, less than 4 percent are available under voluntary licensing agreement.

“The United States and Argentina have good exceptions in their laws,” Lecuona said. “But because there is no agreement on exportation, the United States only can export the books that fall under the 4 percent.” The treaty proposal would create a framework for sharing works that are under exception, avoiding to have duplicate the format.

There are thousands of books that are available but that cannot be obtained, he told Intellectual Property Watch, adding that the technical tools exist to resolve the issues.

The problem, he and others said, is the lack of a cross-border framework.

Separately, copyright issues will get a thorough examination at the upcoming World Copyright Summit: New Frontiers for Creators in the Marketplace. The conference, in Washington, DC on 9-10 June, includes representatives from dozens of top US government officials, creators, technology companies and rights holders.