At WIPO This Week: Broadcasting Treaty, Copyright Exceptions And Limitations

After two difficult meetings, the World Intellectual Property Organization copyright committee is meeting this week with the hope of getting closer to a treaty protecting broadcasting organisations, although questions remain on scope and level of protection. The committee is also expected to find ways to work on exceptions and limitations to copyrights for libraries, archives, education and research, as developed countries oppose normative work, and developing countries want international instruments.

The 29th session of the WIPO Standing Committee on Copyright and Related Rights is taking place from 8-12 December.

New Deputy Director General, Culture and Creative Industries Sector, Ann Leer, opened the session in with an energetic statement She said she was “very honoured” to take on this job. Going over her career spent entirely in the creative industries, Leer – who noted it was her fifth day at WIPO – said she has worked in intellectual property all her life. Her last position was producer and editor at the British Broadcasting Corporation.

“I can’t think of anything more important than the role of WIPO” in the new digital world, she said. Using the metaphor of a storm, she said, “We are sitting here in the eye of the storm, and it might appear calm but outside it is not calm,” she said. “Our marketplace and our world have been turned upside down for the last 15 years due to the development of the digital market place and internet.”

“So, it is terribly important that we understand how the world is changing out there and how we can redefine our role in this new world,” said Leer.

“I know that the work of the SCCR has been long and tortuous somewhat for the last years or so, and this is understandable because the issues are incredibly complex, and it is hard to get on top of them,” she said. “But we mustn’t give hope and I beg you to persevere and give it your best shot this week.”

The delegates agreed on the proposed agenda [pdf], which was seen as an encouraging sign by chair Martin Moscoso, former director of the Peru Copyright Office. The two last SCCR meetings have been unable to agree on the summary by the chair, or the recommendation to be made to the General Assembly (IPW, WIPO, 7 July 2014). The General Assembly in September was equally unable to take a decision on the work of the SCCR and in particular the convening of a high-level negotiating meeting (diplomatic conference) for the adoption of a treaty protecting broadcaster organisations (IPW, WIPO, 1 October 2014).

Moscoso proposed that half the week be devoted to discussions on the broadcasting treaty draft text [pdf], while the other half would be used for discussing the two other subjects of the SCCR agenda: limitations and exceptions to copyright for libraries and archives; and limitations and exceptions for educational, teaching and research institutions and persons with other disabilities (other than visual impairment).

On the table for the exceptions and limitations are a “Working Document [pdf] Containing Comments on and Textual Suggestions Towards an Appropriate International Legal Instrument (in whatever form) on Exceptions and Limitations for Libraries and Archives;” and a “Provisional Working Document [pdf] Towards an Appropriate International Legal Instrument (in Whatever Form) on Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with other Disabilities Containing Comments and Textual Suggestions.”

On 10 December, a study [pdf] on copyright limitations and exceptions for libraries and archives is expected to be presented to the plenary by its author, Kenneth Crews. This is an update of a previous study [pdf], carried out by Crews in 2008, and seeks to offer an analysis of the copyright laws from all but one WIPO members.

A list of side events [pdf] is also planned for this week.

The SCCR has suffered from different dividing lines. In the broadcasting discussions, there is the issue of the scope of the protection which would be awarded to broadcaster organisations, and what should be covered by the protection, signal-based signal by traditional broadcasters, or extended to internet-born content.

In efforts to bridge gaps, several informal discussion papers have been circulated during past sessions: a paper [pdf] relating to the scope of protection of the treaty and laying out the technological platforms to be considered in the discussions, and a “matrix” of rights [pdf] that might be included in the broadcasters’ treaty (IPW, WIPO, 3 July 2014).

General Comments Reflect Previous Positions on Broadcasting

Most countries have signalled interest in increasing protection of broadcasting organisations, but significant differences remain on how to accomplish this.

Developed countries insisted on the importance they give to the broadcasting treaty, and the need to have fact-based substantive discussions and avoid debates on procedural matters.

The Czech Republic for the Group of Central Europe and Baltic States (CEBS) said the hard fact is that the SCCR is facing a difficult situation and doing business as usual is not advisable. In a statement on the broadcasting treaty, the delegate said the group is in strong support of an up-to-date effective protection of broadcasters’ rights.

“This segment of the copyright system,” he said, “remains the last one not to have been updated within the international legal framework.”

Japan for Group B, the developed country members, underlined the “enormous economic value” of broadcasting rights and thus the importance of the adoption of an international treaty. The delegate said informal discussions had proved useful in the past and suggested that such informal technical discussions be carried out in this session of the SCCR.

Informal documents and discussions in the past sessions have served to deepen the mutual understanding of member states, on issues such as categories of platforms to be covered, and the scope of protection to be granted, he said, which he said were two fundamental bases upon which the framework of protection should be established.

The European Union concurred and said “the treaty on the protection of broadcasting organisations is a high priority for the European Union and its Member States.”

The EU, which is in favour of including webcasting in the scope of the treaty, said that “While trying to build such consensus, our aim needs to remain the conclusion of a treaty which is meaningful in view of the technological realities and of the needs of broadcasting organisations in the 21st century.”

Paraguay for the Group of Latin American and Caribbean countries (GRULAC) stressed the need for a balanced agenda in the SCCR, and said Paraguay ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. He said the Marrakesh Treaty was a successful example of what the SCCR could achieve.

Kenya, for the African Group said it has been the Group’s position to see a treaty protecting broadcasters, following the mandate given by the WIPO General Assembly in 2007. The decision states [pdf]: “The scope of the Treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense.” The Asia and Pacific Group concurred.

The group supports “in principle the adoption of the proposed treaty after we have a text which will be balanced and will not provide disproportionate benefits to any party.”

Some developing countries have been worried about the broadcasting treaty adding a new layer of rights in the copyright system to the benefit of broadcasters and the detriment of users.

India reiterated its position of not expanding the General Assembly mandate for inclusion of any elements of webcasting and simulcasting issues under the framework of the proposed broadcasting treaty. The delegate said India also opposes “any attempts to amend the mandate of the General Assembly to include retransmission over computer networks or retransmission over any other platforms because these activities are not broadcasting in the traditional sense.”

The plenary was adjourned after those preliminary statements so that member states could go into informal discussions.

Exceptions and Limitations, Divide Remains

On the issue of exceptions and limitations, developed countries have said in previous sessions and reiterated it today that the current international copyright framework provides for sufficient flexibilities. And, they said, although discussing the subject and presenting best practices at the national level was of interest, they did not envisage any normative work to take place in the SCCR.

Developing countries, on the other hand, have shown a strong interest in the matter. The Asia and Pacific Group said the lack of adequate will to discuss and develop exceptions and limitations in the committee “have made all of us go round in circles” on all three issues of the SCCR in the last sessions.

Side Event: International Protection in Film Production

By Elena Bourtchouladze

Meanwhile, the International Federation of Film Producers Associations (FIAPF) held a side event today during which two film producers, Sanjeev Singh from Videovision (South Africa) and Andy Paterson from Sympathetic Ink Ltd (United Kingdom), discussed how the international copyright framework supports filmmakers. In particular, they discussed how they utilise features of the copyright system in order to produce films, raise production finance and secure international distribution making sure that the widest possible audience has access to them.

Both filmmakers appeared against the idea that film and music should be in the public domain and be allowed to be exploited publicly without any fees.

“Unfortunately, as an independent film producer, we disagree with this, as many films only get into profit on repeat television sales and some films do not recoup their production costs,” Singh said, referring to a 22-year old movie that still brings revenue each time it is re-licenced on TV, which allows the filmmakers to continue producing new films.

He also emphasised the need for “cooperation amongst different government agencies to enhance inter-agency enforcement of intellectual property rights.”

In Singh’s view, protection and enforcement of intellectual property rights need to be enhanced through the Trans-Pacific Partnership, Trans-Atlantic Trade and Investment Partnership between the US and EU, as well as through bilateral and regional trade agreements in order to “give investors and creators the confidence to engage in investment and to create more jobs in the entertainment industry.”

Elena Bourtchouladze contributed to this article.

 

Image Credits: Flickr – Santibon