[A2k] FromGeneva: Of Limitations, Exceptions and Verse (WIPO copyright committee)

[Thiru Balasubramaniam]

http://www.keionline.org/index.php?option=3Dcom_jd-wp&Itemid=3D39&p=3D110

WIPO Casting Treaty | WIPO | Thiru, from Geneva | Copyright policy |
Access to Knowledge
Of Limitations, Exceptions and Verse (WIPO copyright committee)
April 3rd, 2008 by Thiru Balasubramaniam

Following the WIPO Standing Committee on Copyright and Related Rights
(SCCR) which for much of its existence has endeavored to
unsuccessfully hammer out a Treaty for the Protection of Broadcasting
Organizations has provided a window into the human condition replete
with incidents of humor, frustration and hope. Since 2003, KEI has
witnessed illegal votes cast, NGO literature trashed and the rehashing
of stale arguments to provide broadcasters, cablecasters and
webcasters an instrument giving them exclusive, copyright like
privileges creating an additional layer of =93broadcast rights=94 on top
of existing copyright. However, from 2003 there has existed within the
work agenda of the WIPO SCCR, a counterpoint to the broadcast treaty
fever so favored in the Committee.

In June 2003 at the 9th session of the SCCR, Professor Sam Ricketson=92s
(University of Melbourne) seminal 86 page opus on =93Limitations and
Exceptions of Copyright and Related Rights in the Digital Environment=94
was made available to delegates. However, it is unclear as to whether
Professor Ricketson has formally presented his study before the
Committee. At the 12th session of the WIPO copyright committee (17-19
November 2004), Chile tabled a proposal on =93Exceptions and Limitations
to Copyright and Related Rights=94 which called upon the Committee to
include the

     subject of exceptions and limitations to copyright and related
rights for the purposes of education, libraries and disabled persons
in the current agenda item referring to =93other issues for review.

Chile=92s initial proposal was further strengthened by its second
submission at the 13th Session (21-23 November 2005 of the SCCR on
=93Analysis of Exceptions and Limitations=94. The background, fundamentals
and the international dimensions with respect to exceptions and
limitations presented in the Chilean submission are well conceived and
are recommended reading.

The analysis proposal called upon the Committee to consider three work
areas namely:

     1. Identification, from the national intellectual property
systems of Member States, of national models and practices concerning
exceptions and limitations.

     2. Analysis of the exceptions and limitations needed to promote
creation and innovation and the dissemination of developments stemming
therefrom.

     3. Establishment of agreement on exceptions and limitations for
purposes of public interest that must be envisaged as a minimum in all
national legislations for the benefit of the community; especially to
give access to the most vulnerable or socially prioritized sectors.

Despite Chile=92s submissions in 2003 and 2004, the Copyright
Committee=92s fixation with concluding a broadcast treaty preventing any
serious discussion at the Committee on this matter till it reconvened
for the 16th session in March 2008. During this nearly 5 year
exceptions and limitations interregnum, an inchoate movement
engendered by CPTech (a project of KEI) and many other partners on a
Treaty on Access to Knowledge (a2k) took root and blossomed into a
platform supported by like-minded countries, civil society, academics
and corporations. In February 2007 WIPO released a 227 page Study on
Copyright Limitations and Exceptions for the Visually Impaired (SCCR/
15/17). In 2007 Pakistan noted that =93broadcasting needs a time out=94
and many countries including Chile, Uruguay, Brazil, India and South
Africa indicated that the time was ripe for change.

At the 16th session of the WIPO SCCR held in Geneva from 10-12 March
2008 there were signs and portents that augured change. This was
evidenced by a nearly 6 hour negotiation on the election of the chair.
Traditionally the election of the Chair had been a formality that
lasted five minutes at most. From the genesis of the SCCR (March
1998), Mr. Jukka Liedes (Finland) had been the Chair of this Committee
with the Vice Chairs playing a nominal role. Some commentators dubbed
Mr. Liedes =93Chairman for life=94. Notwithstanding Mr Liedes=92 eminent
grasp of matters related to copyright and related rights, Member
States came to the realization that after 10 years, perhaps it was
time for change. In the run up to the 16th session, the names of
Canada, Italy and Senegal had been circulated as possible contenders
for the Chair of the SCCR. Despite Mr. Liedes=92 eventual election as
Chair, the 6 hour debate on the leadership of the Committee bore
witness that WIPO Member States were not pleased with the status quo.
Finally the leadership question was resolved with Mr. Liedes (Finland)
resuming the chairmanship of the Committee, but a new Vice-Chair was
elected, Mr. Luis Villarroel Villalon (Chile) with Mr. Abdellah
Ouadrhiri (Morocco) retaining his post as Vice-Chair. From sources
close to the negotiations, there was expressed agreement that role of
the Vice-Chairs would be further strengthened thus paving the way for
a positive agenda on exceptions and limitations.

On 11 March 2008, Chile, Brazil, Nicaragua and Uruguay tabled a
proposal on Work Related to Exceptions and Limitations providing a
welcome elaboration of Chile=92s original proposal (13/5) tabled in
2005. Building on the three work areas of the original =93Analysis of
Limitations and Exceptions=94 document (13/5) the Brazil/Chile/Nicaragua/
Uruguay proposal could be paraphrased has having three main elements:

     1. To have the SCCR identify and share information on state
practices in the area of L&E in
     the area of copyright

     2. To undertake research and to analyze the L&E needed to promote
creative and innovative activity, and for the dissemination of
creative and innovative works and services

     3. To establish agreements (including one or more treaties) to
ensure member states adopt the minimum L&E needed to protect the
public interest, especially as concerns the needs of the most
vulnerable or social prioritized sectors of society.

As my colleague Manon Ress meticulously captured in her blog, the
reaction to the Chile/Brazil/Nicaragua/Uruguay ran the gamut from hot
to cold.

Ukraine, Paraguay, the Russian Federation, Egypt, South Africa and
Ghana welcomed the proposal put forth by Chile. These countries echoed
the need for clarity with respect to exceptions and limitations for
the disabled and for libraries with Paraguay noting the potential
effect of new technologies while Egypt noted its preference for
guiding principle for a set of minimum exceptions and limitations.

New Zealand endorsed the recommendations by Chile to conduct studies
on disabled persons especially regarding the exchange of state
practice. Australia and Japan expressed reluctance for WIPO to engage
in any norm-setting with respect to limitations and exceptions. The
United States briefly shared it experience with the =93fair use=94
doctrine and noted that the =93Berne principles to balance at national
level has served Berne members well=94. The US representative declared
his delegation was not aware of any problems with the application of
Berne on the national level and remained to be convince that there was
a case to be made for norm-setting.

In the United States=92 intervention on behalf of Group B (the group of
industrialized Member States of WIPO), Group B specifically opposed
work areas two and three of the original Chilean proposal (13/5) which
called for the

     [a]nalysis of the exceptions and limitations needed to promote
creation and innovation and the dissemination of developments stemming
therefrom.

     [and the]
     Establishment of agreement on exceptions and limitations for
purposes of public interest that must be envisaged as a minimum in all
national legislations for the benefit of the community; especially to
give access to the most vulnerable or socially prioritized sectors.

When Chile asked the United States (representing Group B) why this
rich country block opposed this =93analysis of limitations and
exceptions=94, Group B=92s only rejoinder was the Delphic reply worthy of
the Oracle =93in the face of document itself, therein lies the answer=94.
If this is the best parry Group B can muster, there remains cause for
concern.

Despite this hiccup, there was enough momentum created by the Chilean,
Brazilian, Nicaraguan and Uruguayan submission to propel the Copyright
Committee forward in a new direction. The conclusions stated:

     The Secretariat was requested to make, in addition to the
existing study reports, a study on exceptions and limitations for the
benefit of educational activities, including distance education and
the trans-border aspect in it.

     The Secretariat was requested to organize, in conjunction with
the next session of the SCCR, an informative session on existing and
forthcoming studies.

     The Committee will consider a more detailed work plan on this
item in its next session including the organization of seminars on
regional and national level.

     The matter will be maintained on the agenda of the next session
of the SCCR.

With respect to the the information session the Secretariat is
instructed to prepare, it would advisable if the timely paper by
Professors Bernt Hugenholtz and Ruth Okediji on Conceiving an
International Instrument on Limitations and Exceptions to Copyright be
presented by its authors at this information session. Regional and
national seminars are welcome provided that Member States have input
into their content.

One thing to bear in mind about the history of the WIPO Copyright
Committee is that the first few information sessions of the SCCR (in
the late 1990s) on topics such as databases and broadcasting reached
conclusions which requested Member States, the European Community,
intergovernmental organizations (IGOs) and non-governmental
organizations (NGOs) to submit comments on these respective topics for
consideration by the Committee. In this case we hope history repeats
itself and WIPO Copyright Committee will receive submissions by Member
States, NGOs and IGOs on the establishment of a Treaty,inter alia,
minimum limitations & exceptions for the visually impaired. The fate
of the limitations and exceptions negotiations are a crucible for WIPO
that must not fail.

As promised in the title of this blog entry I must leave you with some
verse. Other commentators have noted that the broadcasting agenda item
was left in the agenda for future consideration.

The Australian delegate used the metaphor (in verse form) of the
Scarlet Pimpernel to underscore the =93elusiveness of the broadcasting
treaty=94 while the Deputy Permanent Representative of India declared on
the item of broadcasting,

=93The fault lines are long and deep
We have miles to go before we seek
A treat at the Diplomatic Meet.=94

------------------------------------------------------------


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997