WIPO Members Advance Draft Texts On Copyright Exceptions, AV Protection

After a week of substantive discussions about potential international instruments on the protection of broadcasting and audiovisual rights, and on providing limitations and exceptions to copyright for visually impaired people, pressure is building at the World Intellectual Property Organization as the end of the negotiating session draws near.

Today, members discussed a new draft text on limitations and exceptions issued by the chair of the meeting.

Accounts of the discussions are divergent according to different sources, with some delegations finding the progress very promising and some delegations still having reservations on the content and form of the potential instruments (whether a formal treaty or something less).

The three main instruments under consideration this week are: a treaty for the protection of audiovisual performances, a treaty for the protection of broadcasting organisations, and an instrument whose nature is still under discussion to provide limitations and exceptions to copyright for visually impaired people.

Argentina, Brazil, Ecuador, the European Union, Mexico, Paraguay, and the United States presented a “non-paper” on exceptions for the visually impaired to the 22nd session on the Standing Committee on Copyright and Related Rights (SCCR), taking place from 15-24 June (IPW, WIPO, 17 June 2011).

Last week, South Africa, speaking on behalf of the African Group said they had participated in the informal meetings to elaborate the non-paper starting in February, the requirements of the African Group were not taken into account. It appears South Africa’s copyright expert was unable to attend the informal consultations that started in February. Several delegations, such as the African Group, Nigeria, Barbados, and Venezuela, requested this week that the text become a formal document so that it could be discussed in plenary and that comments could be included, according to sources.

On 20 June, the secretariat issued a text, SCCR 22/15 [pdf], called “consensus document on an international instrument on limitations and exceptions for persons with print disabilities.” The text was discussed in plenary with much the same concerns as before. Some countries said the text should not be called a consensus text and some countries requested that a text be issued by the secretariat with comments from delegations.

On 22 June, SCCR Chair Manuel Guerra Zamarro, director general of the Mexican National Institute of Copyright, decided after dissension appeared again among delegations on the title and the status of SCCR 22/15 document, to issue a chair’s document, including comments from delegations.

Also on 22 June, an updated document SCCR 22/15 Rev. 1 [pdf] was issued, titled, “Proposal on an international instrument on limitations and exceptions for persons with print disabilities,” including new co-sponsors of the document.

Document SCCR /22/16 [pdf] from the chair was issued today and this is the text on which delegations worked from today. This new version includes views from delegations as stated in plenary.

According to the European Union, the initial non-paper, which was meant to aggregate four proposals that had been put forward by delegations during former SCCR sessions, was supported by a growing number of delegations, such as Norway, Russia, and the Group of Latin American and Caribbean Countries (GRULAC).

The final form of the instrument to be negotiated is still dividing countries, even those supporting SCCR/22/16. Some countries, like the EU members, have always favoured a joint recommendation over a treaty, while others, like Brazil and India, are strongly in favour of a treaty.

A two-step approach was suggested in which a joint recommendation could be used first, and then some time later, according to the results of the joint recommendation, a treaty could be discussed. Some countries have voiced concern that this could postpone a decision on a treaty indefinitely, sources told Intellectual Property Watch. They said they would need a firm commitment and a set timetable to agree on this two-step procedure.

African Concerns

A source from the African Group told Intellectual Property Watch that the group had three main issues with the initial text that had been presented to the plenary. The first was that the process of discussing the document did not follow United Nations and WIPO procedure where all the member states participate, and said that some countries were trying to override this procedure. The African Group was inclined to approve of the chair’s text of today but the source said the EU and the US seemed now reluctant to adopt the text as a working document.

The second issue was the substance of the document and that it did not reflect the positions of all member states. This issue is being resolved with the text put on the screen and comments been added by countries, the source said. The third issue is the nature of the instrument. For Africa, a treaty is the only way to deal with the problem of access to copyrighted work for visually impaired people, the source added.

A joint recommendation would already allow cross-border shipments of copyrighted work in special format for visually impaired people among the countries signatory to the Berne Convention for the Protection of Literary and Artistic Works, a source said. Cross-border shipment have been a major problem for visually impaired people, especially in developing countries unable to access works translated into special format in other countries.

Protection of Audiovisual Performances, Broadcasters

On the protection of audiovisual performances, a diplomatic conference (the highest level negotiation at WIPO) in 2000 failed to agree on the full text of a draft treaty. There was agreement on 19 articles but some outstanding issues remained irreconcilable; in particular, Article 12 on the transfer of rights remained empty.

The delegations of India, Mexico and the United States have consulted intensively since the beginning of this SCCR meeting to draft a new Article (12) [pdf] combining proposals from those three countries. A draft article was presented to the plenary this week, which, according to proponents, gathered a majority of approval among delegations. Agreement on this article, the last one not agreed in 2000, could yield a consensual negotiating text.

Brazil submitted a proposal to include several changes to the draft treaty text, including a request to include a new paragraph to be inserted into the preamble of the draft text to take into account the WIPO Development Agenda.

According to some sources, a majority of countries would prefer not to touch any of the 19 articles that were agreed in 2000. If common ground with Brazil is found, it is possible that a recommendation could be made to the WIPO General Assemblies in September to call for a diplomatic conference, sources said.
The draft treaty on the protection of broadcasting organisations is the “least mature,” according to a developing source. A timeline needs to be defined and there is no consensus on a working document, the source said.

One of the concerns from developing countries, including India, is that the treaty should cover only a signal-based approach in a traditional sense since that is the mandate that was given by the General Assembly to the SCCR in 2007. Signal-based refers to a more limited scope that likely would not include the internet.

South Africa proposed a draft work plan [pdf] for the treaty detailing steps to convene a diplomatic conference in 2012-2013 biennium. The work plan includes the establishment of a working group on the protection of broadcasting organizations during this session of the SCCR.

Civil Society Still Favour Blind Treaty

According to David Hammerstein of the Transatlantic Consumer Dialogue, “the US and the EU are filibustering, trying to gain time to escape the growing pressure in favour of a treaty for the blind on the part of NGOs, countries of South and the European Parliament.”

“A joint recommendation is a non-starter, a smokescreen, to push the issue off the agenda now that there is momentum in favour of a treaty. In fact, the EU has proposed to eliminate from the ‘consensus document’ in the part on ‘cross-border exchange of reading material’ the phrase that says ‘without the authorisation of rightsholders’- which would defeat the whole idea of having an exception,” he told Intellectual Property Watch.

What is needed, he said, “is the convening of a WIPO diplomatic conference to approve a binding legal instrument that would stop rights holders from being the gatekeepers and guarantee the right to read as stipulated by the UN convention on the rights of disabled persons. Anything less is a waste of time.”

No Need for Broadcasting Treaty, Some Say

On the broadcasting treaty, the Computer and Communications Industry Association (CCIA), in its statement [pdf] said that “if the objective is just signal protection – protection which completely excludes the programmes being carried by the signal – then that is easily done and without copyrighting signals.”

According to the statement, the Brussels Satellite Convention, administered by WIPO, provides protection against misuse of signals and “there is no justification for further copyrighting of signals,” they said.

In a joint statement [pdf], representatives of civil society, rights holders, cablecasters, webcasters and private sector said, “so far we have heard not a single example of harm to broadcasters with cannot be remedied using existing international norms in the field.” They added that, “many challenges confront the copyright and related rights system at the present time and it would be unfortunate if the SCCR were to continue to devote time to a subject that has produced no agreement on any fundamental point.”

The SCCR could, for example, “deal with limitations and exceptions that support creation, access, and innovative services,” they said.