[A2k] Unpacking the WIPO SCCR Limitations and Exceptions (to copyright) agenda

[James Love]

http://www.keionline.org/blogs/2008/11/11/unpacking-lne/
Knowledge Ecology Notes
12 November 2008

Unpacking the WIPO SCCR Limitations and Exceptions (to copyright) agenda

The World Intellectual Property Organization (WIPO) divides its norm
setting work among several committees.  The 17th meeting of the Standing
Committee on Copyright and Related Rights (SCCR) met last week, and
considered several topics, including the first in-depth effort to
consider a work program on limitations and exceptions for copyright.
This work program, first proposed formally by Chile (SCCR/13/5) among
WIPO member states, is a work in progress. In the initial Chile
proposal, the work program would include:

--------------
    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.
----------

In subsequent discussions at the SCCR and elaborations by Chile and
other countries, including most recently the March 2008 Proposal by
Brazil, Chile, Nicaragua and Uruguay for Work Related to Exceptions and
Limitations, (SCCR/16/2),  some sectors and areas have been identified
for particular attention, including visually impaired and other persons
with disabilities, education (including but certainly not limited to
distance education), libraries, archives and innovative services.

The communities and sectors that are specifically identified in the
SCCR/13/5 and SCCR/16/2 are diverse, as are the prospects and timing for
meaningful actions at the SCCR.   There is a need in each area for the
relevant stakeholders to focus on the SCCR work program and to propose
concrete asks in terms of a research or norm setting agenda.

It seems likely that some sectors and communities will be faster than
others in identifying their concerns and proposing solutions.  At the
head of this list is the visually impaired and disabled community, led
at the SCCR by the World Blind Union (WBU).  The WBU has been making
concrete asks of the SCCR since SCCR 7 in 2002, and at SCCR 17 the WBU,
collaborating with the DAISY consortium and many national organizations
and non-profit publishers of accessible formats, proposed language for a
treaty for blind, visually impaired and other disabled persons.

None of other other sectors and communities are as far along as the
visually impaired and disabled communities, in terms of analysis or
requests for norm setting.

In some of the other areas, particularly libraries and education, there
is considerable interest by some delegations to undertake information
gathering and analysis, but little in the way of strategic asks from the
effected communities =E2=80=94 so far.   This should change, as the librari=
es
focus on the SCCR work program, and WIPO completes a new study on the
education sector, to complement the four earlier studies it has done,
including those on the visually impaired and library sectors.

Lagging behind considerably is the SCCR work on innovative services.
The tech sector itself has largely ignored the SCCR work program on L&E
so far.  KEI expects to tech sector to become more involved in the SCCR
work, but it also will be quite challenging for the tech sector to
develop an internal consensus of the asks for the SCCR work program =E2=80=
=94
even in terms of research.  The U.S. Google Book deal and various
litigation settlements over user generated content also raises questions
about the shifting interests and perceptions of key technology sector
members.

KEI supports the notion that the SCCR continue with the big package, as
described in SCCR/13/5 and SCCR/16/2.  Work should proceed on parallel
tracks, allowing some norm making to take place in sectors where
consensus is more mature.   Certainly the visually impaired and disabled
community is ready now for norm setting =E2=80=94 and probably has been for=
 six
years.  Other sectors and communities should look at the SCCR work
program as an important opportunity, and provide more guidance in terms
of the concrete areas for action.

At the SCCR 17, IFRRO, representing collection societies, attempted to
displace the leadership of the disabled community by proposing, without
consultation with the disabled community, a WIPO forum on best practices
for licensing, while it circulated a statement in opposition to
statutory L&Es.  The European Union and the United States supported this
effort, as did some WIPO staff.  This was a bold effort by IFRRO to turn
WIPO away from work on L&E, but it may have another effect.  Now IFRRO
has opened the door for WIPO to look at licensing practices, within the
SCCR work program on L&E.  This may legitimatize efforts to raise issues
relating to the control of anti-competitive practices, or the
implementation of Article 40 of the TRIPS.  Certainly unfair licensing
terms and excessive prices are an issue for libraries these days, and it
will be interesting to see if libraries include this in their asks to
the SCCR, particularly given the extent of language in the WIPO
development agenda on the control of anti-competitive practices.

Another area for attention will be the WIPO research and analysis agenda
associated the L&E work program.  In SCCR/16/2, a very detailed and
interesting research agenda is proposed for the education sector:

-------
    b) At a minimum an additional WIPO study should be prepared during
2008, addressing the following issues related to exceptions and
limitations for educational purposes, taking into consideration current
national practices as well as international law:
    i) How do educators use copyrighted works for the purpose of
education?
    ii) How do educators perceive current copyright norms affect their
ability to provide educational services?
    iii) What are the requirements under which educational institutions
and individuals providing education, or receiving education in both
developing and developed countries, can qualify for uncompensated
utilization of works?
    iv) What are the conditions or requirements under which compulsory
licensing systems for educational purposes could be implemented in
developing countries?
    v) How can remuneration for compulsory licenses that are justified
for educational purposes be reasonably calculated and fairly
distributed?
---------

Stakeholders should think about the types of data gathering, research
and analysis that would be appropriate for the WIPO Secretariat, and
possibly raise these issues in the context of the SCCR. One immediate
task will be to think about the proposed questionnaire on L&E that was
requested by Chile, and that will be discussed at SCCR 18. The
questionnaire has already been politicized by the EU and the US, and
will be seen by some as framing in some ways the future work program for
the SCCR.

James Love, KEI

--
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.=
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