19th March 2008

CALL FOR WORK ON EXCEPTIONS AND LIMITATIONS IN WIPO COPYRIGHT COMMITTEE

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Exceptions and limitations to copyright protection dominated discussions in a key World Intellectual Property Organization committee last week.

Chile, Brazil, Nicaragua, and Uruguay put forward a work plan calling for global norms establishing a “minimum mandatory [level of] exceptions and limitations particularly with regard to educational activities, people with disabilities, libraries and archives, and exceptions that foster technological innovation.”

Clearly-defined exceptions and limitations on copyright protection are important for improved access to knowledge, backers say, particularly for libraries and schools. They are also crucial for groups such as blind people: in the US and many other countries, it is legal to produce alternate versions of - audio tape or braille, say - of copyrighted works for use by the visually impaired, without permission from the copyright holders. Such exceptions do not exist everywhere.

Several developing countries expressed support for the work plan, which Chile presented on behalf of the four sponsors to the 10-13 March session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR). The plan built on an earlier Chilean proposal dating back to 2005.

The work plan would consist of four phases. First, the SCCR, with assistance from the WIPO secretariat and interested stakeholders, would examine the availability, scope and nature of exceptions and limitations to copyright protection at the international level.

Second, a similar research and information exchange exercise would also be carried out on the availability, scope and nature of exceptions and limitations in national copyright systems, and for their interaction with contractual practices and digital rights management.

Third, the SCCR would discuss and evaluate the justifications and implications of exceptions and limitations in areas prioritised by member states.

Finally, the committee would select specific exceptions and limitations that could form part of a prescriptive minimum global framework, and identify best practices for other exceptions.

As per the work plan, these four phases would culminate in a formal commitment to creating mandatory minimum exceptions and limitations to copyright protection, for instance, through a recommendation adopted by WIPO’s annual General Assembly.

During the SCCR session, Uruguay underlined the importance of exceptions and limitations in achieving a fair balance between the rights of authors and those of society at large, as envisaged in the Universal Declaration of Human Rights (article 27). Brazil affirmed that preserving the fundamental notion of balance between the public interest and the interests of property rights holders was particularly important for developing countries.

The proposal was also supported by South Africa, Ukraine, El Salvador and Paraguay. Algeria, on behalf of the African Group, said it supported the 2005 Chilean proposal and was looking favourably upon the proposed work plan.

Some developed countries, while acknowledging the relevance and importance of the issue, were more reserved about some aspects of the proposed work plan, and asked for more time to study it.

New Zealand and Canada largely supported the information gathering activities provided for in the plan.

Switzerland argued that the committee should focus on unfinished work such as the protection of audiovisual performances and broadcasting organisations. It opposed establishing a catalogue of minimum mandatory exceptions and limitations, claiming that this ran counter to the historic logic of the Berne Convention.

The US said that although it had a long and rich history of exceptions and limitations at the national level, it was not convinced that international norms needed to be set. An evidence-based case needed to be made for doing so, it said, warning that a global instrument might limit traditional national flexibility in setting exceptions and limitations. It expressed opposition to the proposed work plan’s call for analysis of the sort of exceptions and limitations that would be necessary to promote creation and innovation, and questioned whether the plan should be a priority for the SCCR at this time.

Slovenia, on the behalf of the EU, expressed support for further studies into existing exceptions and limitations, particularly at the national and regional levels.

The SCCR ultimately agreed to request the WIPO secretariat to conduct a study on exceptions and limitations for the benefit of educational activities, and to hold an information session on the issue during the committee’s next meeting. It also decided that at its next session, member states would consider a more detailed work plan on this subject, as a number of developed countries requested more time to examine some elements of the proposal presented by the four countries.

The meeting also addressed the question of whether to proceed with negotiating a “broadcast treaty.”

Even though decade-long discussions at WIPO on an international treaty to update broadcasters’ rights in the internet age broke down last summer after governments failed to agree on what the agreement should protect, last September’s General Assembly decided to keep the issue on the SCCR’s agenda. However, it specified that members should consider convening a ‘diplomatic conference’ to finalise a treaty “only after agreement on objectives, specific scope and object of protection has been achieved.”

Nevertheless, Japan expressed hoped that a diplomatic conference would be held soon for the early adoption of a broadcast treaty. Slovenia, on behalf of the EU, said that the protection of broadcasting was among the SCCR’s current priorities.

In contrast, India and the African group pointed out that the committee had been unable to agree on the objective and scope of a possible treaty, despite lengthy discussions.

Ultimately, members agreed that the chair of the SCCR would prepare an informal paper outlining his understanding of delegations’ main convergences and divergences on the committee’s new mandate. The paper is to be discussed at the next SCCR session.

As for the protection of audiovisual performances, the secretariat was requested to prepare a factual document summarising the outcome of activities; compile members’ views; and organise seminars at the national and regional levels, as well as an information meeting, before the next session.

Regarding the SCCR’s future work, the EU suggested that it consider resale rights, collective management, orphan works and applicable law. The US, Switzerland, Australia and New Zealand supported these priorities. Brazil and Chile requested further information on the objectives and scope of these proposals.

The committee ultimately concluded that a decision on its future work would be considered at its next session, tentatively scheduled for 3-7 November. It decided to retain on its agenda the three main discussion items: exceptions and limitations, the protection of broadcasting organizations and audiovisual performances.

Chile and the other proponents of the work plan on exceptions and limitations expressed cautious optimism about the outcome of the meeting despite the committee’s failure to adopt the plan, saying that it was a concrete first step in a long process of work on the issue.

Almost the entire first day of the three-day session was spent on electing the chair of the committee. The long-time chair, Finland’s Jukka Liedes, was ultimately re-elected, despite signs from some delegations that they would like to see changes in the way the committee’s work was conducted.

ICTSD reporting.