WIPO Committee Debates Future Of Copyright Exceptions, Will Keep Working On Broadcasting Text

The World Intellectual Property Organization copyright committee last week sent back to the drawing board draft action plans provided by the secretariat on exceptions and limitations to copyright for specific actors such as educational institutions and libraries. Meanwhile, discussions on the rights of broadcasting organisations against signal theft and piracy are expected to give way to a new text on specific topics, to be produced by the end of the month, while topics such as the resale right did not make it to standing agenda items but remain on list of items to be discussed in the spring.

The 35th session of the Standing Committee on Copyright and Related Rights (SCCR) took place from 13-17 November.

Draft Action Plans Back to Drafting Table

Following a request made by the 34th session of the SCCR last spring (IPW, WIPO, 9 May 2017), the WIPO secretariat tabled draft action plans [pdf] for limitations and exceptions to copyright for selected actors: libraries, archives, educational and research institutions, persons with disabilities other than visual impairment, and museums (IPW, WIPO, 13 November 2017).

At the beginning of the SCCR session last week, some delegations, in particular Group B developed countries, complained about the fact that the draft action plans were made available only a few days before the 35th session, and they did not have time to reflect on it.

After closed informal discussions on the draft action plans, sources told Intellectual Property Watch that no agreement could be found on the proposed document, which will have to go back to the drafting table for the next session of the SCCR, scheduled to take place from 28 May to 1 June 2018.

Sources told Intellectual Property Watch that the draft action plans as presented by the WIPO secretariat were found too ambitious by Group B. Also, according to sources, some delegations asked that the draft action plans, which currently are divided into five topics (libraries, archives, museums, research and educational institutions, and persons with other disabilities than visual impairment), be “re-centred”. This would put them in line so that they follow the current two strands in the discussion, on the one hand libraries and archives, and on the other hand research and educational institutions and persons with other disabilities than visual impairment.

Historically, developed countries have been in favour of using the existing international copyright framework to tailor national exceptions and limitations, and to that objective, national experiences should be shared and explored in the SCCR so as to help national legislators.

Developing countries view exceptions and limitations to copyright as crucial to help development and some of them are requesting international binding rules to govern those exceptions and limitations, in particular in cross-border situations. Libraries, archives, museums, educational and research institutions are also asking for binding rules.

Several studies were presented on limitations and exceptions last week (IPW, WIPO, 17 November 2017).

Broadcasters’ Rights

After closed informal meetings where participants were warned by the WIPO secretariat not to share any information about the discussions, it appears that some text-based work was conducted on a document [pdf] (Revised Consolidated Text on Definitions, Object of Protection, Rights to be Granted and other Issues), prepared by the chair of the SCCR.

Different opinions on the progress made were heard in the WIPO corridors, with some who thought progress was made, especially on the text, while others told Intellectual Property Watch not much was achieved.

At issue is what the potential treaty should cover, and in what terms. Although most countries taking the floor, whether they come from the North or from the South, are calling for an international instrument, views continue to differ on questions such as transmission of programmes over the internet.

In his summary [pdf] of the session, SCCR chair Daren Tang Heng Shim, from Singapore, mentioned a new revised text, which was not available at press time. According to a WIPO source, the text is expected to be published by end of November.

Copyright In Digital Environment, Expert Suggestions

In 2016, the Group of Latin American and Caribbean countries (GRULAC) tabled a proposal requesting the WIPO secretariat to conduct a study on the impact of digital technology on the development of national legal framework governing copyright and related rights over the past ten years.

In the wake of that request, WIPO organised a meeting of academic experts on 6-7 April 2017 to discuss the preliminary results of the study and provide observations, in particular if it would be necessary to supplement or clarify WIPO-administered treaties in light of changes in technology, according to a summary presentation [pdf] of the “brainstorming exercise” convened by WIPO.

The participants came from different parts of the world, and included a number of familiar faces at WIPO: two experts from Africa: Joseph Fometeu (Cameroon) and Marisella Ouma (Kenya); two experts from Latin America: Fernando Zapata (Colombia) and Andres Guadamuz (Costa Rica); two experts from Asia: Daniel Seng (Singapore) and Tatsuhiro Ueno (Japan); three experts from Europe: Mihaly Ficsor (Hungary), Pierre Sirinelli (France), and Raquel Xalabarder (Spain); and two experts from North America: Jane Ginsburg and Justin Hughes (US).

Prof. Ginsburg, a professor of literary and artistic property law at Columbia Law School in New York, gave a summary of the meeting of experts on 17 November.

Ginsburg presented the summary of the meeting and said the scoping study [pdf] presented last week on the impact of the digital environment on copyright legislation adopted between 2006 and 2016 was essential, but surveying legislation is not sufficient given that much depends on how laws are interpreted by courts, administrative agencies, and business practices on the ground.

Ginsburg said experts in April agreed on three suggestions (listed on page 10 of the summary). The first is to have an updated Guide to the Copyright and Related Rights Treaties Administered by WIPO, originally published in 2003.

The second is to establish a checklist of fair contractual provisions which could serve as a toolbox for creators to guide them in the preparation of their copyright assignment or licensing contracts and ensure that they benefit from a better sharing of value. Ginsburg noted that in the original summary the text refers to right holders but should be replaced by “creators,” since the group of experts “was quite concerned … with the unequal bargaining position of authors and performers.”

The third suggestion is to conduct a reflection on ways and means of preparing a reliable and easily accessible mapping of information related to ownership of rights.

No agreement was found on including the item as a permanent agenda item on the SCCR but the topic will be maintained under “other matters” at the next session of the SCCR.

Resale Right, Protection of Theatre Directors

The same decision applied to the topic of the resale right, which provides visual artists with a royalty when their works are resold at a higher price than its original price. A presentation made on 17 November explained that the introduction of a resale right is likely to have no adverse consequences on the art market of countries introducing that right (see related IP-Watch story published today).

Russia had introduced a proposal [pdf] to strengthen the protection of theatre directors’ rights at the international level. The topic will also remain under “other matters” at the next session of the SCCR.

According to the summary by the chair, he is expected to make a proposal for suggested activities as a follow-up on the three topics under “other matters” for the next session of the SCCR: resale right, copyright in the digital environment, and the protection of theatre directors’ rights at the international level.

 

Image Credits: WIPO