[A2k] SUNS: Work plan on "limitations and exceptions" proposed at copyright meet

[Sangeeta]

WIPO: Work plan on "limitations and exceptions" proposed at copyright meet

Published in SUNS #6434 dated 13 March 2008

Geneva, 11 Mar (Riaz K. Tayob) -- Developing countries have proposed that
WIPO adopt a work plan to examine "limitations and exceptions" (L&E) to
copyright, which would lead to establishing a "consensus" on mandatory
minimum levels of L&E for member states.

The work plan was proposed and discussed at a meeting of WIPO's Standing
Committee on Copyright and Related Rights that is taking place on 10-13
March.

The L&E work plan was proposed by Chile, Brazil, Nicaragua and Uruguay. The
plan is based on and a follow- up to an earlier proposal on L&E by Chile in
2005.

The advocates of the work plan consider the strengthening of L&E to be
needed in order to have a better balance between the rights of copyright
holders and the public interest.

The meeting is also discussing the long-standing question of whether to
proceed with a diplomatic conference as a prelude to establishing a new WIPO
broadcasting treaty. In early discussion, countries for and against
intensifying negotiations on a possible treaty reiterated their previous
positions.

Almost the entire first day of the three-day session was spent on whether to
retain the Chair of the committee, Finland's Jukka Liedes, who has held the
position for many years. Many members have been dissatisfied with his
performance, especially in chairing discussions on a broadcasting treaty in
the past two years. Eventually, he was re-elected as Chair late on Monday
afternoon.

Chile's 2005 proposal (SCCR/13/5) sought the identification of national
models and practices concerning limitations and exceptions (L&E), analysis
of L&E and the establishment of an agreement on setting mandatory minimum
levels of L&E in all countries, especially with regard to increasing access
(to information) in sensitive sectors and for vulnerable people.

Its new proposal on a work plan includes eventually a "formal recognition
and commitment" by WIPO members states (perhaps through a General Assembly
resolution) that establishes minimum mandatory limitations and exceptions,
particularly with regard to educational activities, people with
disabilities, libraries and archives, and exceptions that foster
technological innovation.

The 2005 proposal provides the rationale for strengthened L&E provisions. It
says that there has been a consensus on copyright for over a century.
Additionally, new rights for rights-holders have been recognised
progressively and previous rights have been extended to "new forms" in the
digital environment.

For instance, the WTO TRIPS (Trade Related Aspects of Intellectual Property
Rights) agreement incorporated the rental right for the first time while the
WIPO Internet treaties incorporate rights of distribution. Extending these
rights-holders interests "has not been as marked for exceptions" needed to
establish balance in the intellectual property rights (IPRs) system,
especially the digital environment.

The proposal stressed that L&E have always co-existed with the rights of
rights-holders. They are inherent to the IPR system. L&E confirm the need to
harmonize copyright with the other values of the legal system; even where a
right applies to a specific work, certain uses are exempt from requiring
authorisation or payment for use to the rights-holder.

Chile's 2005 proposal notes that there is a disparity in the scope and depth
of L&E amongst countries. This lack of a minimum common international
standard can inhibit making available to the public protected material. In
particular, it limits international activities of public interest, like
distance learning.

Member states of the United Nations Educational, Scientific and Cultural
Organisation (UNESCO) have already agreed to update national legislation to
balance the interests of rights-holders and the public interest.

In the new proposal on a work plan, the co-sponsors (Chile, Brazil,
Nicaragua and Uruguay) said the objective of the work plan was to achieve "a
consensus on minimum mandatory limitations and exception particularly with
regard to educational activities, people with disabilities, libraries and
archives, and exceptions that foster technological innovation."

The work plan should consist of four phases. First, the SCCR with assistance
from WIPO and interested stakeholders should undertake specific research and
exchange information on the availability, scope and nature of L&E, in
countries and internationally. Second, this should also be done for the
interaction between L&E and contractual practices and digital rights
management.

Third, the SCCR shall discuss and evaluate the justifications and
implications of L&E in nationally prioritised areas. Fourth, the committee
should select and delimit the L&E appropriately, and identify L&E models
that should be considered best practices.

These four phases should culminate in a formal recognition of and commitment
to creating mandatory minimum L&E, for instance, through an adopted
recommendation by the General Assembly.

For the first two phases, the short term SCCR agenda or areas of work should
include information meetings before the next SCCR at which all
WIPO-commissioned studies on L&E would be presented and discussed together
with other inputs from countries. Also, an open forum with relevant
stakeholders should be held on the development of the technology sector and
the L&E impact on the interaction.

At a minimum, Chile called for an additional WIPO study on national and
international law on L&E for educational purposes including - how
copyrighted works are used for education; what are the requirements, in
developed and developing countries, to qualify for uncompensated use of
works; what are the conditions or requirements under which compulsory
licensing systems for educational purposes could be implemented in
developing countries; and how can remuneration for compulsory licenses for
educational purposes be reasonably calculated and distributed.

Chile said it was convinced that this will strengthen the legitimacy of the
copyright system while promoting cultural exchanges and protecting authors
of works.

Uruguay explained that fairness was needed, and the rights of authors and
limits on them should be balanced as envisaged in article 27 of the
Universal Declaration of Human Rights.

Brazil said this issue is a permanent item on the agenda. It said that
through the work plan we will be gathering materials and for making a
comparative analysis of how L&E are treated at the national level and which
aspects would be relevant at the international level. It believed that this
issue is particularly relevant for developing countries to preserve the
fundamental notion of balance between the public interest and property
rights holders, which has been captured in the WIPO Development Agenda.

The proposal was also supported by South Africa, Russia, Ukraine, El
Salvador, Paraguay, while interventions from New Zealand and Canada mainly
supported further information gathering. Algeria, for the Africa Group, said
it supported the 2005 Chilean proposal and was considering the proposed work
plan.

Some developed countries objected to or were cool to the work plan proposal.
Switzerland said the committee should first finish what was started, namely
protection of Audio Visual performances and Broadcasting Organisations. It
strongly opposed any work to draw up a catalogue of L&E to make them
mandatory, for instance, through recommendations. It said that such work
would be incompatible with the 1876 Berne Convention.

The US said that it had a long history of L&E but that it was not convinced
that norm setting on it was needed at the international level. The case
needs to be made and it would listen carefully to an evidence-based case.
It, however, also explicitly did not support the "3rd work area" of the
Chilean work plan proposal ("discuss and evaluate the justifications and
implications of L&E in nationally prioritised areas").

It said a global minimum instrument may have deleterious effects on national
flexibility. While supporting the sharing of national experiences, it
questioned whether this is a priority for the committee at this time.

Slovenia, for the European Communities, said it was premature to decide on a
new programme of work on L&E but supported further studies.

A representative of UNESCO said that there is a soft law instrument,
Recommendation Concerning the Promotion and Use of Multilingualism and
Universal Access to Cyberspace, which calls for the balance between
protection of rights-holders and the public interest. [It has a section on
"Reaffirming the equitable balance between the interests of rights-holders
and the public interest" - SUNS.]

A number of Civil Society Organisations made strong statements during the
discussions.

Consumers International called for further study to investigate excessive
pricing and also to see how the diffusion of knowledge was affecting
cultural autonomy in countries.

The meeting also addressed the question of whether to proceed with
negotiating a "broadcasting treaty." The WIPO General Assembly last
September decided that "the subject of broadcasting organizations and
cable-casting organizations be retained on the agenda of the SCCR for its
regular sessions and consider convening of a Diplomatic Conference only
after agreement on objectives, specific scope and object of protection has
been achieved".

Liedes asked the committee whether they would be willing to continue efforts
on a treaty, and if so, on what basis, and when.

Japan called for the early adoption of a treaty to protect broadcasting
organisations and hoped that a diplomatic conference would be held soon.

Slovenia for the EC said that protection of Broadcasting and Audiovisual
works are current priorities for the committee. With goodwill, further
consensus can be achieved. It was willing to continue discussions on
broadcasting.

India did not want a discussion now on a treaty, as this would be premature.
It said that it was unfortunate that fault lines had emerged in the
discussions that were long and deep. Even an understanding of the aims and
objectives (of a treaty) eluded members.

India said members should eschew a temptation to pursue a shortcut as all
members need to be taken along. It said the current mandate to the SCCR is
diluted. Earlier discussions were under the mandate to discuss a treaty.

The current mandate is restricted, so that we can build on discussions of
the objective, specific scope and object of protection. Perhaps many more
meetings are required before an optimal instrument based on convergence is
an outcome. To say that this is a discussion on a treaty is putting the cart
before the horse, said India.

Algeria, for the Africa group, said that despite length discussions so far,
the committee has been unable to agree on the objective, specific scope and
object of protection (of a possible treaty).

Further discussions were required and Member states would have to decide on
the question of convening a diplomatic conference at the General Assembly. +