Broadcasting Treaty Moving At WIPO, Copyright Exceptions For Libraries Not

Positive momentum seems to have been found on a potential global treaty to protect broadcasting organisations as delegates moved towards convergence on some language this week at the World Intellectual Property Organization. Meanwhile, copyright exceptions for actors like libraries and research institutions is meeting the same strong opposition from some, and informal consultations and studies are being set out by the committee chair over the next 18 months, over concerns of delay.

The 36th session of WIPO Standing Committee on Copyright and Related Rights (SCCR) is taking place from 28 May to 1 June.

After a day and a half of informal closed discussions on the core issues of the broadcasting treaty, Daren Tang, chair of the SCCR, came back to plenary meeting on 29 May with words of optimism.

Discussions focused on the Revised Consolidated Text [pdf] on Definitions, Object of Protection, Rights to be Granted and other issues, the chair’s note [pdf] on the Draft Treaty to Protect Broadcasting Organizations, and a recent proposal [pdf] by Argentina on deferred transmissions (IPW, WIPO, 28 May 2018), Tang reported.

Today, a new revised version [pdf] (with track changes) of the consolidated text, was issued by the WIPO secretariat and circulated by NGO Knowledge Ecology International. The document is dated 1 June and a formal version is expected to be publicly available tomorrow.

As in the revised version from the beginning of the week, the new revised version includes two parts: Part A containing the consolidated text itself, including draft language on definitions, object of protection, rights to be granted, beneficiaries, terms of protection, and limitations and exceptions. Part B displays not-yet-agreed proposals submitted during informal sessions, on definitions, object of protections, and beneficiaries.

This week, although views diverge on the degree of progress, it seems that agreement was reached on some definitions. For instance, countries’ varying treatment of cablecasting was addressed by stating that the treaty does not affect national regulatory frameworks.

The definition of broadcasting organisations also seems agreeable to most delegates, as the issue of cablecasting was removed and addressed in the broad definition, according to sources, but the question of broadcasting signals delivered exclusively by means of a computer network not falling under the definition of a broadcasting organisation is still open, they said.

Other changes in the new text include the move of two paragraphs relating to the right to protect pre-broadcast signals from Part B to Part A.

The term of protection also went to 50 years from the end of the year in which the programme-carrying signal was transmitted to either 20, 50, or a period to be decided.

A proposal on limitations and exceptions was also deleted from part B. It contained a list of situations to which limitations and exceptions would apply.

An Argentinean proposal on deferred transmission was extensively discussed, according to Tang (IPW, WIPO, 28 May 2018). According to sources, members felt they needed to discuss the proposal further.

According to KEI, the new text “is very responsive to the broadcasters, and mostly hostile to the civil society groups’ positions, on issues such as terms and exceptions, and extending the right to materials delivered over the internet.”

Exceptions and Limitations

Another issue discussed this week at the SCCR are limitations and exceptions to copyright. Limitations and exceptions for libraries and other institutions are included in the copyright legislation of a large number of countries, but there is no international binding instrument making those exceptions mandatory, in particular in cross-border exchanges. This week, delegates are continuing negotiations on this issue.

In April, two draft action plans [pdf] on limitations and exceptions were tabled by SCCR Chair Tang. At the last meeting of the SCCR, following a request made at the 34th session of the committee, WIPO tabled draft action plans [pdf], which could not find agreement among delegates (IPW, WIPO, 21 November 2018). Tang was then requested to redraft the action plans. This week, Tang explained that the draft action plans are intended to structure discussions and engagement over the next 18 months.

The draft action plans, one on limitations and exceptions for libraries and archives, the other one on limitations and exceptions for educational and research institutions, and persons with disabilities other than visual impairment, span from the next session of the SCCR in the fall, to the end of 2019.

The action plans suggest a scoping study on archives, a scoping study on museums, a brainstorming exercise on libraries with stakeholders, including publishers and consumers, and two regional seminars to discuss both topics.

Several countries said the document prepared by the chair is a good basis to resume discussions, such as Ecuador on the Group of Latin American and Caribbean countries (GRULAC), Indonesia on behalf of the Asian and Pacific Group, and Iran.

Others, like Morocco for the African Group, however, voiced concern that the draft action plans might overshadow substantive discussions the normative work of the SCCR on limitations and exceptions.

A number of countries underlined the 2012 General Assembly decision mandating the SCCR to continue discussion to work towards an appropriate international legal instrument or instruments, whether it is model law, joint recommendation, treaty or other forms. The target then was to have recommendations to the General Assembly in 2014.

Iran said that the activities included in the draft action plans should not act as a substitute of substantive negotiations, adding that all past activities of the SCCR towards drafting a legal instrument should be part of the action plans of the committee.

Indonesia, in its national capacity, said the SCCR should continue to seek common ground for normative work establishing an effective international framework on limitations and exceptions. Brazil cautioned against the duplication of work and called for creating a single draft working document on limitations and exceptions, which was also suggested by Russia.

Kenya said the draft action plans was among the first SCCR documents that provide direction as to “where we are and where we are moving to.”

Tang, addressing concerns about delaying the normative discussions of the SCCR, said the actions plans are designed to organise and give predictability and structure, and will not take away the SCCR ability to discuss “what we think is right and fit to be discussed.” “It is not meant to take away but to add value,” he said.

Europe, Group B Cite Lack of Consensus on Normative Work

Lithuania on behalf of the Central European and Baltic States (CEBS) group said it is not in favour of a legally binding international instrument on limitations and exceptions. That was also the opinion of Group B developed countries, and of the European Union.

Group B is generally of the view that no new binding instrument is needed and the current international copyright framework is adequate to address any issue relating to limitations and exceptions. The European Union reiterated its position that it cannot support work towards a legally binding instrument(s) but said the draft action plans go in the right direction.

Switzerland on behalf of Group B said this week that the draft action plans are a good basis for discussion to explore common ground, but remarked that the reality is that no consensus currently exists in the SCCR for normative work. The United States noted that countries should retain their ability to design domestic limitations and exceptions to their own cultural and economic circumstances.

The CEBS group believes that sharing national practices in line with current international treaties would be valuable, the Lithuanian delegate said. The current international legal framework allows enough policy space for establishing national legislation providing exceptions and limitations, she added.