[A2k] Notes day 2 WIPO Copyright committee (morning session)
Manon Ress
manon.ress@keionline.org
Tue Mar 11 09:39:17 2008
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After a rather disappointing day 1 of the standing committee on
copyright and related rights at WIPO, Day 2 is turning out to be a
good constructive day.
As you all probably know by now, after over 6 hours of deliberations,
the committee re-elected the same chair we've listened to for years.
There's been some tweaking of the role of the vice-chairs (Chile and
Morocco) who are supposed to have acquired more influence in the
process. We'll see. Any change is welcome for a committee that has
not been successful regarding its norm-setting activities since the
90s (database treat, performers rights and lately the "casters" treaty).
Today started with a description of work done by WIPO regarding
Limitations and exceptions. There have been workshops on
implementation since 1999 and in 2001. And the secretariat has
produced studies on the situation for the visually impaired and on
limitations and exceptions for education. A new study on Limitations
and exceptions for libraries should be available at the end of this
quarter.
The Chair asked questions such as is work on limitations and
exceptions a priority? Is it about "international level work". And
on what basis would the delegates want to work on this issue. He also
asked questions on methodology, on how the work would be organized and
"what would be the objectives?".
Then Chile took the floor and presented a joint proposal by Chile,
Brazil, Nicaragua and Uruguay. If some people thought that delegates
do not always do their homework carefully...it was clear that some
delegations were really "ready" to go with a detailed and well
argumented proposal for work on limitations and exceptions.
The exact proposal is forthcoming (we're waiting for the delegates to
circulate it) but I can try to summarize my notes here. Of course the
Chilean delegate's delivery was more elegant and diplomatic but I'm
trying to give you a quick update.
"Chile: For our delegation, work on L&E is key. It is a fundamental
proposal. It is about protection for the authors and for society. We
have a specific proposal on how to make progress on this matter. The
meaning of this work, the reasons why Chile is proposing this work.
For Chile, the issue is important, it must benefit society and also
seen as key to guarantee interest of authors at the same time.
Authors do not create out of nothing and they need clear rules. You
need to know the rules to have access to knowledge and to know how to
use. A clear instrument benefits authors. In Berne for example, all
countries recognize quotation exception. Clarity is important for
their rights too. Society must know what are the limitations of the
rights. if it is not clear to users they do not respect rights.
There's a weakening of process when it is not clear. Need to know
clearly when there is for example free use when no permission is
needed and then there's no enforcement. In fact there cannot be real
enforcement if there's no clear exceptions.
If there's no minimum globally, it prevents progress. To summarize,
we're seeking recognition that L and E are important for society and
authors (for access and for those who need protection for their
work). We have been working on a minimum standard of protection. As
we are making progress and there are new rights, we need to clarify
free use or use without permission. We seek consensus.
The delegate reads joint proposal with Brazil, Uruguay and Nicaragua
3 major points:
need identification of national laws and practices
need analysis of effects for innovation
need establishment of an agreement on minimum L&E for benefit of the
community
To do this we need a work plan, a structure to move forward. We are
proposing a plan with consideration of these 3 points to achieve a
consensus in particular re education, persons with disabilities,
archives, and libraries and on how to foster innovation.
We are convinced that it will strengthen the existing copyright system
and we suggest 4 phases:
1. the SCCR with secretariat undertakes specific research of
availability and scope of current national as well as international
norms
2. the sccr undertakes specific research. in areas selected by the
committee
3. the sccr prioritize
4. select mandatory
5. a recognition of a commitment to have mandatory minimum L&E
for 1 and 2: we call for an information meeting where authors will
present and
for second set of activities an open forum on technology with
technologists, researchers.
Finally we also request a wipo study in 2008 for education, how do
educators perceive copyright, use works etc.."
End of notes/quotes
The reactions were mostly positive with a little push back from the
usual suspects:
"El Salvador: welcome proposal by Chile. we 'll send to capital. it
is indeed of interest for members. we have &LE but exercise useful
for rights holders.
Ukraine: thank you for your help in Kiev and we want to incorporate
L&E in our legislation
Brazil: associate with Chile. we need to set up a positive process.
this issue is a permanent item. Opportunity and possible consensus.
this is a strong joint proposal, step by step work plan. We would
add that the secretariat must provide in depth study and informative
session.
Paraguay: Clearly developing countries need access to culture,
knowledge and it is a delicate balance between authors and society.
There are difficulties for disabled persons and libraries . And new
technologies give rise to problem for education. So, we support
proposal as long as it protects the balance between the two parties.
Nicaragua: We need clarity for scope of rights. and welcome proposal
New Zealand: we endorse recommendations to do studies on disabled
persons especially regarding international exchange of format. This
important in NZ. We want to secure rights to import, L&E is
territorial and further work is needed. NZ sees value in facilitating
import and export and the role of wipo to facilitate.
Russian Federation: We consider favorably this subject. We have free
reproduction for personal purposes, for blind persons, for teaching
for news and for quotation. We have a number of these L&E in our new
legislation.
Cuba: thank you for proposal, we'll study the proposal
Senegal: Remercie Chile pour interessante proposition qui
particulierement retenu notre attention. Importance of art 27 UCHR de
1948 mentionee par uruguay toujours creer equilibre entre auteur,
droit de l'information et le droit a l'information. une des
meilleures illustrations. art 9 de berne. droit de development cas de
libre utiisation avec respect des regles prevues. il faut garder le
besoin imperieux de conserver les 2 interets. pas de protection point
d'info. Dans tous les instruments juridiques toujours eu prevoir des
LE avec souci d'encadrer comment les utiliser. il faudrait toujours
en les examinant essayer de reflechir sur la meileure strategie. le
point n'est pas nouveau, dans tous les traites il y a des L&E. Si le
probleme se pose c'est qu'il y a des besoins. Il nous faut une
demarche de coherence, d'abord faire un etat des lieux existant.
Faire une evaluation de ce qui existe, une revue des legislations.
et il est essentiel de pouvoir decrire les insuffisances par rapport
aux nouveaux besoins. Seulement apres ces 2 etapes on pourra parler
de proposition. Il y a des points qui se chevauchent. il fau
demythifier la PI. c'est un outil de development et non pas une fin
en soi
China: congratulations. this issue deserve a further discussion with
more effort and time to put on the agenda. we suggest to work out a
work plan. with aim to elaborate minimum and binding universal norm.
The Chilean proposal is detailed and positive
Egypt: deep interest in proposal. extremely important proposal.
would like to refer to Egyptian legislation. we include LE ad aim at
balance authors, creators and public domain and society. it is at the
heart of wipo and rights of men.
We have question regarding the methodological framework. Are we
talking about guiding principles? are they the minimum or are they a
maximum of these LE?
we prefer it to be a minimum.
The second question: can we separate L&E in copyright from L&E in IP
as a whole?
These are only some of the queries, the proposal must be further
clarified.
Iran: thanks. great importance of copyright and of L&E. It should be
in the light of enforcement and implementation. And it should balance
right holders and public.
South Africa: on behalf of African group. it is a good basis for
future work. we also listen with great attention to proposal and look
forward to study documents.
Saudi Arabia: congratulations. no doubt that reaching knowledge
culture is important to all countries. thank you for putting L&E on
this committee. We have L&E in national legislation. Thanks Chile
for its proposal
Australia: congratulations. we are interested in following. it was
an extensive proposal and as expected we have to study it. So far as
it was described, taking stock of L&E that enacted in national law is
valuable exercise. Also the interest of NZ ways to access specific
format in different countries for people with visual disability. But
the proposal raises questions for us like for the like Egyptian
delegation. Where would this exercise lead? would there be new
exception established? how about existing treaties? that is a
difficult terrain to open treaties. One feature we noted. There is
the issue of greater certainties but also we understood the proposal
to include opportunity or possibility for other or greater exception
to be enacted at national level. That would be at odds with quest for
certainty.
Ghana: congratulations to Chile and the other countries. We will
submit the proposal to our capital. This is a good basis for
discussion on the subject matter. As far it addresses human rights of
visually impaired and the blind persons.
USA: we're at the beginning of the conversation on this with this
committee; the US would like to share few thoughts and comments. We'd
like to share positive experience in US copyright laws and some
principles in international.
Finally, we'd like to provide preliminary comments to delegates.
At the domestic level: great deal of sympathy. US courts have
refined a sophisticated jurisprudence. Fair use formalized in 76 and
we have 4 factors to determine if use is fair. Extremely valuable to
US judges. US congress also work on L for libraries etc. We make
adjustment according to need to stakeholders.
we'd be pleased to provide and to hear. We recognize that L&E national
and willing to share successful approach.
On the international level some L&E to advance flow of culture and
Berne grants right to limit for education of news. Berne Art. 2 what
Ricketson has called the horizontal, the Berne 3 step test,
incorporated in wipo treaty and in trips.
The US believes that Berne principles to balance at national level has
serve Berne members well. Decided at national level where competing
interest an be calibrated. It works well. We're not aware of
problems. The us is not convince that a case has been made to
undertake norm settings. Nonetheless, the US will listen careful, we
need evidence-based case to do this activity.
We could limit latitude that has served Berne well. It could be
difficult.
Fair use is applied case by case. It is not easy to codify. For
these reason we do not support third area of the proposal. We stand
ready to share experiences but we question if should be priority.
we'll reserve judgment on first area of proposal.
Re the ambitious work plan of Chile and its co-sponsors, the high
priority but US has not seen proposal and no opportunity to review
details. This is not ready for discussion at this session. The scope
of proposal need to evaluate scarce resources (human and financial).
Finally, the second area, pits exclusive rights to innovation and
thus is turning up side down the principle, absent clarification US
could not accept.
Japan:
We took note. Not opposed to sharing info on this matter. but moving
to norm setting decision should be after. we already have 3 step-
test. it has been fair balance. to ensure public interest. we agree
with US del, we should not move to norm setting. so far no written
document.
Nigeria: congratulations. Issue of developing international L&E is a
challenge, IP is a tool for development. This committee must be
careful and well informed.
Importance of access to knowledge. it is utmost interest of developing
countries. Careful consideration to adopting existing jurisprudence
we appreciate Chile proposal and note the matter provides historical
possibility to harmonize, and important window for future work of wipo
Indonesia: important issue.
Columbia: Thank you Chile. Not in writing. We should have general
rules not an international instrument. using the 3 step test. it
affects normal use of work, interest of author. An international
agreement not suitable nor appropriate.
Kenya: Support to document drawn by Chile. It is notable that have
been addressed at the national and regional. We need to have holistic
approach, rights of authors, creativity and users. we should be able
to discussed at both producers and consumers of work.
End of notes
As we were getting really close to lunch time (and a side event on
Limitations and exceptions organized by ....) Chile answered some of
the questions that had been raised.
Notes:
"Chile: thank you for support. I would like to answer some questions
that were raised. First concern: is this proposal affecting treaties
already signed?
the answer is absolutely No. when we talk about minimum and mandatory
we're thinking what should be adopted in existing limits. the limits
are not to be changed, but for specific area, for the blind persons,
education we should agree on minimum, for some 3 step steps or Berne...
good point about lack of evidence, but after reading wipo reports, 60
countries have exception for the blind persons. in many countries
there is none. recently we did a study in APEC region. for Distance
Education only 7 countries have expressed exceptions for education.
And these are economically high level countries and high level of
sophistication and it does not mean there's no DE there. We'll try to
have discussion in some cases. We're not proposing change of limits
that's left but basic need in some areas.
Other question: a treaty? recommendations? we're not clear about aim
because it is open. In case of Chile, we support soft norms. But it
is to premature to have an answer. "
End of notes
Of course the discussion is far from over but for a first morning
session on the topic, I believe it was quite impressive. Not only was
the substance of the discussion (finally!) interesting but the mood of
the committee shifted. We went from a "de-mobilized" group of experts
and diplomats to a "challenged" and constructive crowd.
Maybe the committee members (or at least most of them) are again
interested in the work ahead?
We'll see this afternoon if the positive shift can be sustained.
***************************************************************************
Manon Anne Ress
manon.ress@keionline.org,
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.: +1.202.332.2670, Ext 16 Fax: +1.202.332.2673
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Il vaut mieux remuer une question, sans la d=E9cider, que la d=E9cider,
sans la remuer.
Pens=E9es, essais, maximes et correspondance de J. Joubert p.249
http://visualiseur.bnf.fr/Visualiseur?Destination=3DGallica&O=3DNUMM-88671
Translation: It is better to debate a question without settling it
than to settle a question without debating it