Exceptions To Copyright, Protection Of Broadcasters – Entangled Subjects At WIPO

Efforts by the newly elected chair of the World Intellectual Property Organization copyright committee, and ongoing studies and initiatives commissioned by WIPO to move past irreconcilable differences on limitations and exceptions to copyright, had little effect last week in terms of agreeing a work programme. However, the committee agreed to ask the WIPO secretariat to propose a draft action plan on those items, and also adopted a new version of a text on the protection of broadcasting organisations. But there was no agreement on recommending to the annual General Assemblies in October to convene a diplomatic conference to finish negotiations on a broadcasting treaty.

The 34^th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) took place from 1-5 May.

The summary by the chair [pdf], Daren Tang, issued on 5 May, originally included a set of recommendations from the SCCR to the October WIPO General Assemblies, which asked the SCCR to continue working on the items on the agenda at this 34^th session. But following a request by Switzerland, the recommendations, which merely reproduced conclusions stated in the summary, were deleted from the text. This means the committee has no recommendations for the annual General Assemblies in October.

The next session of the SCCR is scheduled to take place from 13 – 17 November, after the next annual General Assemblies.

Protection of Broadcasting Organisations

On the protection of broadcasting organisations, the SCCR adopted a new version [pdf] of consolidated text on definitions, object of protection, right to be granted and other issues.

This new version includes three parts: Part A, reproduces the text [pdf] that was agreed upon at the 33^rd session of the SCCR, and on which delegates started discussing at the beginning of the week; Part B contains proposals submitted during informal discussions last week (IPW, WIPO, 3 May 2017), and Part C, provides proposals submitted after the informal discussions sessions last week.

Part C includes proposals on general principles, on the relation to other conventions and treaties, and on the protection, the promotion of cultural diversity, and a proposal on defence of competition.

According to sources, Part B and Part C reproduce parts of a 2014 Working Document [pdf] for a Treaty on the Protection of Broadcasting Organizations. That might constitute a step backwards, according to sources.

Meanwhile, the US-based Electronic Frontier Foundation (EFF) issued a statement opposing the idea of a broadcasting treaty, and saying there was word that pro-treaty delegations at this SCCR would be “pushing hard” to move negotiations to a diplomatic conference. That combined with initial uncertainty over the position of the new US administration’s previous opposition to a diplomatic conference led EFF to attend the meeting, it said.

Limitations and Exceptions for Libraries and Archives

The topic of limitations and exceptions to copyright has been discussed at the SCCR for a number of years, and is divided into two strands: those for libraries and archives, and those for education, research and persons with disabilities other than visual impairment.

Limitations and exceptions for people with visual impairment were also discussed at the SCCR in the past and as a result WIPO members adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled

Several countries said that the Informal Chart [pdf] on Limitations and Exceptions for Educational and Research Institutions drafted by previous SCCR chair Martin Moscoso should be treated as an official SCCR document. This was not agreed yet, and according to the Tang’s summary, the chart will become a SCCR document “of the chairman.” Discussions are expected to continue on whether the chart should become a formal SCCR document at the next SCCR.

Informal discussions on the last day of the session could not deliver a draft action plan for limitations and exceptions for libraries and archives. The SCCR thus requested the WIPO secretariat propose a draft action plan for the next session of the SCCR.

Tang had suggested the updating of a 2015 study [pdf] on copyright limitations and exceptions for libraries and archives authored by Prof. Kenneth Crews. He also suggested that the WIPO secretariat organise a seminar or a conference gathering researchers, academics and experts to talk about the cross-border impact of exceptions and limitations. He also suggested the elaboration of benchmarks and principles that could guide domestic regulators.

The SCCR agreed on the updating of the Crews study and on the collection of data and information relating to limitations and exceptions for museums to be presented at the next session of the committee.

Several countries requested that museums be added to the topic of exceptions and limitations for libraries and archives.

For the rest, no agreement was found, and the WIPO secretariat was requested by the SCCR to propose a draft action plan for the next session.

Limitations and Exceptions for Education, Research

As for the other limitations and exceptions, several delegations asked that the Informal Chart [pdf] previously drafted by Moscoco on limitations and exceptions for education, research, and persons with disabilities other than visual impairment, be transformed into a formal SCCR document.

According to Tang’s summary, discussions will continue at the next session on this possibility.

Progress on two ongoing studies: “Study [pdf] on Copyright Limitations and Exceptions for Educational Activities,” authored by Prof. Daniel Seng, and a scoping study on limitations and exceptions for persons with disabilities other than print disabilities were presented during the session last week, and both completed study are expected to be presented at the next session of the SCCR.

No agreement was found on future work on the subject of limitations and exceptions for education, research, and person with disabilities other than visual impairment, and the WIPO secretariat was asked by the SCCR to propose a draft action plan at the next session.

WIPO Deputy Director General Sylvie Forbin gave a presentation on the project on facilitating access to educational materials and learning modules.

[Update:] The project aims at developing and promoting sustainable local publishing industries with a focus on educational and learning materials for primary and secondary education, she said last week.  To deal with the need for materials that address local situations and contexts in local languages, the project would help to strengthen the production of educational material in the countries instead of relying on material coming from other jurisdictions, she explained.

This initiative seeks to bring parties together in consensus-based ways and to address concerns shared by multiple countries in multiple regions, according to Forbin.

The initiative with the distribution of a questionnaire to all WIPO members in April, has received expression of interest from several members, a WIPO source said. A further phase of the initiative includes pilot projects in some countries, which has also raised interest by some of them, the source added.

The initiative seeks to bring stakeholders together, gather data, look at national legislations and see if countries need assistance, discuss licensing solutions, and foster public-private partnerships, Forbin said. The end product of the initiative would be to help countries build and sustain an entire ecosystem encompassing all stakeholders, such as authors, publishers, and illustrators, she added. [end of update]

Underlying Problems

One of the underlying problems, as stated by SCCR delegates since the start of the discussion on exceptions and limitations is the fact that some countries are requesting a binding international instrument, such as a treaty, while other countries do not agree that this is necessary.

For example, Group B developed countries said last week that there is no consensus for normative work on limitations and exceptions, and “such reality should be taken into account.”

Several developing countries called for a binding instrument, such as the African Group and members of the Asia and Pacific Group.

Russia suggested merging the two issues into one discussion, however some countries disagreed because they said the subject of limitations and exceptions for libraries and archives is more mature than the other subjects.

According to some sources, there is a bargaining game at the SCCR between the broadcasting treaty, which is viewed by some members as a response to a demand of developed countries, particularly the European Union, and the issue of limitations and exceptions to copyright, which are considered as a developing country demand.

But it is not a clear North-South dichotomy as some developing countries are interested by the broadcasting treaty, and libraries and research institutions of most countries are in favour of limitations and exceptions to copyright.

Copyright in Digital Environment

A proposal [pdf] by the Group of Latin American and Caribbean countries (GRULAC) on copyright related to the digital environment and in particular the distribution of copyright revenue from online use of performers’ work was on the agenda last week.

Some members, such as members of GRULAC, requested that the item becomes a permanent agenda item of the SCCR, but this was not deemed necessary by others.

The rationale of the GRULAC proposal was explained by artists during a side event organised by the International Federation of Musicians (FIM) on 2 May (IPW, WIPO, 5 May 2017).

The preliminary findings of a scoping study on the impact of digital developments on the evolution of national legal frameworks over the last 10 years were presented to the SCCR, and the complete study is expected to be ready by the next session of the SCCR.

Push for Resale Right Continues

Some members also asked that the issue of resale right, which refers to a right of visual artists to benefit from royalties on the profit made on their work when it is resold, be made into a standing agenda item, but this was not agreed upon. Senegal and Congo proposed [pdf] a few sessions back to introduce this new item on the agenda.

On the topic of resale right, a scoping study on the economic implications of the resale right is ongoing and is expected to be presented at the next session of the SCCR.

A substantive daylong event and reception on resale right was held just prior to the SCCR meeting. At the reception, WIPO Director General Francis Gurry acknowledged efforts to advance a resale right at WIPO. He underlined the presence of Senegalese Minister of Culture and Communication  Mbagnick Ndiaye at the event. Gurry remarked on several activities conducted by Senegal to develop the resale right and ensure the recognition of creative industries as levers of economic development.

He cited in particular the setting up of the new collecting society (SODAV) in Senegal, which will soon be managing the resale right.

The resale right is not only a material recognition but also a moral one, he said.

The international regulatory framework is already well developed for authors, producers and performers, however, visual artists, in many countries, do not have the legislation and the infrastructure which would allow them to benefit from a growing global art market, he added

“Our wish would be that thanks to the resale right, they are able to be part of the large community of copyright beneficiaries.”

He thanked Senegal and Congo for having suggested to the SCCR that such a conference be convened on the subject.

 

Image Credits: Emmanuel Berrod, WIPO Flickr