[A2k] SCCR/17/4 - Justifications for topics proposed as future work by the European Community and its Member States at the SCCR

[James Love]

We are discussing future work right now.  This is the EU ask.  I
personally think that Orphan works could be discussed in the context of
the Brazil/Chile/Nicaragua/Uruguay proposal on L&E.

It seems as though a number of delegates here are not excited about
taking on the EU's proposal in whole.  Jamie

------

STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS
Seventeenth Session
Geneva, November 3 to 7, 2008
Justifications for topics proposed as future work
BY THE EUROPEAN COMMUNITY AND ITS MEMBER STATES
AT THE SCCR OF MARCH 10 - 12, 2008

SCCR/17/4

Document prepared by the Secretariat

=09The Annex to this document contains a proposal put forward by the
European Community and its Member States, received by the Secretariat on
October 27, 2008.

[Annex follows]

ANNEX

Justifications for topics proposed as future work
by the European Community and its Member States
at the SCCR of 10-12 March 2008

Artist=E2=80=99s resale right

What is the artist=E2=80=99s resale right?

=09The artist=E2=80=99s resale right entitles artists or their heirs to a r=
oyalty
based on the price obtained for any resale of an original work of art
subsequent to the first transfer by the artist, when art market
professionals (such as an auctioneer, a gallery or any other art dealer)
participate in the sale.  The resale right forms an integral part of
copyright and is intended to ensure that authors of graphic and plastic
works of art share in the economic success of their original works of
art.  It helps to redress the balance between the economic situation of
authors of graphic and plastic works of art and that of other creators
who benefit from successive exploitations of their works.  A harmonised
artist=E2=80=99s resale right was introduced at EU level with Directive
2001/84/EC of the European Parliament and of the Council of 27 September
2001 on the resale right for the benefit of the author of an original
work of art.1

Why should the artist=E2=80=99s resale right be discussed in WIPO?

=09The artist=E2=80=99s resale right is set out in the Berne Convention in =
its
Article 14ter and provides that the resale right is available only if
legislation in the country to which the author belongs so permits.  The
European Community and its member States would be interested in finding
out which other countries have introduced the artist=E2=80=99s resale right=
 and
the modalities under which it functions, thereby looking to identify
Member States of the SCCR who offer, or in the future wish to offer,
comparable protection to authors and those entitled under the artist
after her/his death.

Orphan works

What are orphan works?
=09Orphan works are works which are still in copyright but whose owners
cannot be identified or located.  Protected works can become orphaned if
data on the author and/or other relevant rightholder(s) (such as
publishers or film producers) is missing or outdated.  This is often the
case with works which are no longer exploited commercially.
=09The issue of orphan works has come to the fore in view of large scale
digitisation projects undertaken both by public entities and by private
entities such as search engines (e.g. the Google Library project) to
allow an access as wide as possible to the richness and diversity of
cultural heritage.  There is a significant demand to disseminate works
or sound recordings of an educational, historical or cultural value.  It
is often claimed that such projects are held up due to the difficulty in
finding a satisfactory solution to the orphan works issue.
=09The issue of orphan works is mainly a rights clearance issue =E2=80=93 h=
ow to
ensure that users can use orphan works in a legitimate way, e.g. to
allow the digitalization of orphan works in a way as secure and fair as
possible, respecting the rights of the rightholders.  Apart from
liability concerns also the interests of the consumers and the immense
cost and time needed to locate or identify the rightholders (especially
in case of works of multiple authorship) must be taken into account.
=09What is at stake is to assure legal certainty for the exploitation of
orphan works, without dissolving Copyright Law.  The problems involved
may vary according to the categories of protected matter and so may
their solutions.

Why should the issue of Orphan works be discussed in WIPO?

=09The orphan works issue is currently being considered both at the
national and at the EU level, as well as in other WIPO member states.
The European Community and its Member States believe that an exchange of
information on this important topic at the international level would be
a very useful exercise, and especially meaningful in the cross-border
effects of digitisation activities.

Collective management

What is collective management?

=09Collective rights management is the system under which a collecting
society jointly administers rights and monitors, collects and
distributes the payment of royalties on behalf of several rightholders.
This system evolved in view of the large number of uses, users and
rightholders involved.

=09Collecting societies currently administer rights in the area of music,
literary and dramatic works as well as audiovisual works, productions
and performances for activities such as communication to the public and
cable retransmission of broadcasting programmes, mechanical
reproductions, reprography, public lending, artist=E2=80=99s resale right a=
nd
private copying.

Why should the issue of Collective management be discussed in WIPO?

=09For cultural, historic and legal reasons, there are varied solutions on
national levels on how collecting societies are set up, the conditions
under which they operate and on their relations with rightholders, users
and other collecting societies.  These questions have not yet been
harmonized at the level of the European Community.  The European
Community and its Member States would be interested in an exchange of
information and a sharing of national experiences within the
international context.

Applicable law

What does applicable law mean?

=09The applicable law is the national law which applies to
copyright-relevant acts. Choosing the law applicable to
copyright-relevant acts is governed by an area of law referred to as
conflict of laws.  Generally speaking, national courts usually apply the
law of the country where the work is exploited or the law of the country
of origin of the work, or a combination of both.  The European Community
has harmonized only one aspect of this broad legal field, notably the
question of applicable law concerning non-contractual obligations.  The
Regulation of the European Parliament and the Council on the law
applicable to non-contractual obligations (=C2=BBROME II=C2=AB)2 deals in A=
rticle
8 with the law applicable to the infringement of intellectual property
rights.

Why should the issue of applicable law be discussed in WIPO?

=09The determination of the applicable law comes into play in situations
which involve an international dimension.  The courts must choose
between the competing laws of the different jurisdictions which have a
connection with a particular situation.  Due to information technology
and networks, works are often exploited and used across borders, and
such situations arise increasingly often.

=09The European Community and its Member States would be interested in an
exchange of information on this topic and on the possible difficulties
in that the choice of law rules lead to contradictory outcomes in
different jurisdictions.

[End of Annex and of document]


--
James Love, Director, Knowledge Ecology International
http://www.keionline.org | mailto:james.love at keionline.org
Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.=
6584