[A2k] IP-Watch: Participants Ready Agendas For New-Look WIPO Copyright Committee

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/wp-trackback.php?p=3D1297

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Intellectual Property Watch

31 October 2008
Participants Ready Agendas For New-Look WIPO Copyright Committee


By William New
World Intellectual Property Organization members gather in Geneva next
week to take up old and new agenda items targeting international
policy on copyright and related rights. Emerging agenda items are
limitations and exceptions to copyright - including a possible
proposed treaty on access for the visually impaired, and possibly
artists=92 resale rights, orphan works, collective rights management,
and questions of applicable law.

Time-worn issues remain on the agenda as well, such as a proposed
treaty to increase broadcasters=92 and cablecasters=92 rights - which may
be given new life - and another on the protection of audiovisual
performances.

The WIPO Standing Committee on Copyright and Related Rights (SCCR)
will meet from 3-7 November. The first half of the meeting will be
used for =93informative sessions=94 on limitations and exceptions (Monday
and Tuesday) and audiovisual performances (Wednesday morning). The
formal meeting will begin Wednesday afternoon through Friday. Among
the presenters for the limitations and exceptions session are Judith
Sullivan, a UK-based consultant who did a seminal study noting
variations between national laws, and Kenneth Crews, who just
completed a WIPO-mandated study on exceptions for libraries and
archives.

Once again the SCCR is under the chairmanship of Jukka Liedes of
Finland, according to sources. Liedes has led the committee for about
a decade, during which time it has had no substantive outcomes, and
has dwelt mainly on negotiating a broadcasters=92 rights treaty sought
by Europe and a few other countries. Chairs typically rotate in WIPO
committees.

But despite his presence, new issues are muscling their way onto the
agenda. A top issue has been limitations and exceptions to copyright
for special reasons, a concept already incorporated into many national
laws.

The World Blind Union (WBU) drafted a proposal for a WIPO Treaty for
Improved Access for Blind, Visually Impaired and other Reading
Disabled Persons, and sent it to all member states and WIPO Director
General Francis Gurry. The WBU represents 180 million blind and
visually impaired persons from about 600 different organisations in
158 countries. Since 2003, it has been asking the SCCR to consider
harmonisation of national limitations and exceptions in order to ease
publication and distribution of copyrighted works in accessible ways.
A key concern is the ability to overcome current barriers to export
and import of such works.

The WBU is working to correct antiquities in copyright law and
unnecessary hindrances to sharing of content translated for non-profit
purposes into technologically advanced braille, according to Chris
Friend, chair of the WBU copyright and right to read working group.

=93Publishers don=92t publish it in accessible formats,=94 Friend said in a
Thursday interview. =93The charitable sector has to republish and bear
the cost of that. Why should we have to re-clear copyright? We=92re
doing it for non-profit purposes. It=92s an enormous burden.=94

Then to complicate matters further, if a work is republished in one
country, for instance, the United Kingdom, it may not be able to be
shared in another country, say Kenya, due to copyright restrictions or
differences in legal exceptions. The group is seeking a =93global
lending library=94 for works that are republished for visually impaired
readers to be accessible by all who need them. Issues that can arise
include when there are different rights holders on the same book in
different countries, or when each country=92s laws differ.

WBU this year launched a global =93right to read=94 campaign under which
they will =93field test=94 exceptions laws over the next year, Friend
said. It will begin cross-border exchanges of republished works,
freeze it at the point of handover to the recipient country and then
tell the rights owner there that they have produced the work and will
be exporting or importing it under exceptions. The reactions, whether
acceptance, rejection or silence, will be noted and WBU will report
back to SCCR and the International Publishers Association.

The proposed treaty would create two tiers of limitations and
exceptions, giving non-profit institutions the right to publish and
distribute works in accessible formats if four conditions are met.
These are: the one republishing has lawful access to the work; the
work is converted to an accessible format without any other changes;
use is exclusively for visually impaired persons; the activity is non-
profit. The biggest beneficiaries will be those in developing
countries who lack the far greater access to accessible works found in
developed countries.

The WBU requested WIPO distribute the proposed treaty text to SCCR
members, and also is seeking a member government to introduce it
during the meeting. Some have indicated an interest in referring to
it, according to government sources.

According to the Knowledge Ecology International blog, CNIB, which
represents Canadians with sight loss, is pressing the Canadian
government to support the proposed treaty.

Meanwhile, Chile, a leader on the exceptions and limitations
discussion in the SCCR, is expected to suggest to the committee next
week that members complete questionnaires about their national laws,
as it proposed in recent years in the Asia-Pacific Economic
Cooperation group, a source said. This could serve to show what are
state of the art practices, where gaps exist. Chile also likely will
suggest approval of a proposal for a new study on exceptions and
limitations for education purposes. Chile may be without Luis
Villaroel, a leading voice in the government on the issue, who appears
to have been moved off intellectual property issues, according to an
official source.

The Shuttleworth Foundation in South Africa has published a study on
minimum exceptions and limitations in education.

New Study Shows Variations, Patterns in Exceptions

A key study of copyright exceptions for libraries and archives by
Prof. Kenneth Crews of Columbia University (US) will be discussed at
the SCCR. Crews=92s study collected research on 149 of the 184 WIPO
members, and found that 128 have at least one statutory library
exception (most with multiple exceptions). The remaining 21 countries
have no library exception.

Crews said the statutes =93differ greatly from one country to the next,=94
with wide variation on issues such as what can be reproduced for
research, application to digital formats, and terms for delivery and
use of copies. But he also noted patterns, some historically based
showing influence of British law, some regional, such as the trend in
Africa to have no or very broad library exceptions. The 27 members of
the European Union have similarities in their laws but important
differences too.

=93The specific terms of the library exceptions reveal much about the
relationship of copyright law to library services in different
countries,=94 the study said. =93They are a reflection of cultural,
historical and economic objectives,=94 sometimes in conflict with one
another. Statutes therefore often reflect a compromise between
permitting copies by libraries while setting conditions to protect
copyright owners=92 and publishers=92 interests.

Teresa Hackett, programme manager at Electronic Information for
Libraries (eIFL.net), in a statement called the study a =93tremendous
new resource in which we can compare and contrast library provisions
for almost every country in the world.=94 She said it is especially
useful for the debate on core, minimum library provisions, and on the
=93future shape of users=92 rights in the networked environment.=94

Europe=92s Agenda

The European Union circulated a communication ahead of the meeting
offering justifications for topics it raised at the last SCCR in March
as possible work items for the committee. On artists=92 resale rights,
the EU said it entitles artists or their heirs a royalty based on the
price obtained for any resale of an original work subsequent to the
first transfer by the artist, when art market professionals
participate in the sale. The aim is to ensure artists are reimbursed
appropriately, according to the communication, which is not public.
The European Commission introduced a directive (2001/84/EC) in 2001 on
the issue.

On orphan works, which are those still under copyright but whose
owners cannot be identified or found, the EU said the issue has risen
in prominence with large-scale digitisation projects, such as the
Google Library. Projects are often delayed by the absence of a clear
policy on use of orphan works that could allow exploitation of works
while respecting copyright law, the EU said. Clarifying the issue
could reduce concerns about liability and costs of searches, and
address consumer interests, it said. Europe is considering the issue
at the national and EU level, as are other member states, and all
could benefit from sharing information at the multilateral level, it
added.

Under collective rights management, another proposed agenda item,
collecting societies jointly administer rights and collects and
distributes royalties for rightsholders, including for music, literary
and dramatic works. The EU is working to harmonise national collecting
societies and suggests a sharing of national experiences at WIPO.

Finally, the EU plans to raise rather legalistic questions of
applicable law =96 the national law which applies to copyright-related
acts, which it said is governed by an area of law referred to
=93conflict of laws.=94 National courts typically apply the law of the
country of exploitation or of origin of the work, and the EU has
harmonised only applicable law concerning non-contractual obligations,
which is under the Rome II treaty, it said. But Europe would like an
exchange of information on this issue, as courts are being confronted
with cross-border complexities due to information technology and
networks.

Other countries may have agenda items to raise as well. For instance,
the United States previously indicated interest in raising
negotiations on client-attorney privilege.

Broadcasting, Audiovisual

On broadcasting, some countries led by Europe remain steadfast in
their wish to see negotiations continue, but others appear to have
moved on following the high-profile collapse of formal treaty talks in
2007. There are suggestions that attempts may be revived to discuss
protection of broadcasts over the internet.

SCCR Chair Liedes produced an informal paper detailing the
broadcasting issue for next week=92s meeting, noting the topic had been
discussed by the committee for 17 straight meetings dating back to
November 1998, and summarising work and positions to date.
Broadcasters=92 rights are currently protected under the 1961 Rome
Convention on the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations. Only 86 of WIPO=92s 184 members are
members of the Rome Convention.

Liedes as much as encourages members to consider two possible avenues
to return to negotiations on broadcasting. First, he said they could
resume talks on the basis of the previous proposed draft treaty, SCCR/
15/2 rev., but this time might consider establishing a treaty based on
majority rather than the usual consensus.

The other possible avenue would be to develop a new model based
loosely on Articles 2 and 3 and the Geneva Phonograms Convention of
1971, similar to the Brussels Satellite Convention. He proposed core
provisions that would essentially declare protection for broadcasting
and cablecasting organisations=92 retransmission and fixation, and would
leave implementation up to national governments.

Liedes also tied the broadcasting project to the WIPO Development
Agenda by arguing that updated rules for broadcasters and cablecasters
would help developing countries.

On audiovisual performances, the secretariat has provided a summary of
the outcome from national and regional seminars it held over the year
on the issue. The summary offers an in-depth look at the state of the
issue for actors globally, and a =93stocktaking=94 of positions. It said
three main groups of issues emerged in the seminars: the subject and
object of protection, organisations of performers, and rights in
performances.

William New may be reached at wnew@ip-watch.ch.
Filed under:

     * English
     * Internet and Communications Technology
     * Technical Cooperation/Technology Transfer
     * WIPO
     * Broadcasting
     * Access to Knowledge
     * Education
     * Human Rights
     * Copyright Policy
     * Features
     * Enforcement

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


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