[Ecommerce] CI at WIPO on Limitations and Exceptions to Rights of Copyright Holders

[James Love]

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Statement of Consumers International to the SCCR Agenda for
Limitations and Exceptions to Rights of Copyright Holders

World Intellectual Property Right Organization (WIPO), Standing
Committee on Copyright and Related Rights (SCCR)

November 22, 2005

(A somewhat shorter summary of this statement was delivered orally to
the SCCR on November 22, 2005).

Consumers International (CI) represents consumer groups and agencies
all over the world.  It has a membership of 234 organisations in 113
countries.  It strives to promote a fairer society through defending
the rights of all consumers, especially the poor, marginalized and
disadvantaged, by supporting and strengthening member organisations
and the consumer movement in general campaigning at the international
level for policies which respect consumer concerns.

Many of the members of CI are also publishers.  CI is a strong
supporter of copyright as a mechanism to stimulate and reward
creative activity, but also a strong advocate for a robust system of
limitations and exceptions to rights of copyright holders, in the
areas where such limitation and exceptions are necessary, in order to:

1.    promote access to works,
2.    ensure the realization of human rights,
3.    overcome market failures, such as high transaction costs,
orphaned works, excessive prices, or other anticompetitive practices,
and
4.    to enable and protect the creation of new works, and innovative
approaches to broadening access to works, including through the use
of new technologies.

We therefore support the current initiative to discuss the issue of
limitations and exceptions (L&E) to copyright.  We congratulate the
WIPO Secretariat for an excellent information session on this topic
on November 21, 2005, and we greatly appreciate the leadership of
Chile in putting this topic on the WIPO SCCR agenda.

The issues L&E are complex and important.  They are important not
only for education, libraries and the handicapped, for the economy as
a whole.

     Special concerns of developing countries

There is a relationship between the issues of enforcement, and L&E.
Many developing countries have very limited formal L&E, but have
informal practices regarding copying of works that have allowed
students to obtain access to information, sometimes outside of the
official legal frameworks.  As there is increasing pressure on
developing countries to strengthen enforcement mechanisms for
copyright, it is important for these countries to develop modern and
appropriate limitations and exceptions, in order to ensure the
protection of access to knowledge.

CI notes also the growing realization that the Appendix to the Berne
Convention has not been an effective mechanism to overcome market
failures, and it is of limited relevance to modern electronic
publishing technologies.  We recommend a new effort to create an
updated protocol that is easier to use, and which addresses also the
new digital technologies, including those that are distributed over
the Internet.

Special Trade Related Issues

CI notes and supports the comments by the World Blind Union, and by
EFF, that it is essential to look at the important issue of the cross-
border exercise of limitations and exceptions.  Areas where cross-
border transactions are important include but are not limited to the
following:

* Distance education
* Archiving of works
* Visually impaired and disabled
* Fair use for information share on non-commercial listserves
* Search Engines

The control of anti-competitive practices also raises important cross
border issues, as do the relationship between contracts and L&E, an
issue that was addressed in the recent Hague Convention on the
Jurisdiction and Enforcement of Foreign Judgments.

Technical Protection Measures (TPMs) and Digital Rights Management
(DRMs) present enormous challenges.   TPM/DRM measures can override
the practical ability of persons to exercise traditional L&E, and
when fully effective, essentially give the publisher the ability to
determine a private system of copyright, and that has no requirement
for balance found in public copyright regimes.  We note that in those
cases, it is inconsistent to allow L&E, but not to allow the
circumvention of TPMs and DRMs that are necessary to exercise those L&E.

The problems caused by TPM/DRM measures are of great concern to
consumers, and they are global problems, with standards being set
globally, and devices and knowledge products and services being
traded across borders.  It is appropriate to discuss this issue at
WIPO, and to acknowledge that a global regime of obligations to
implement TPM/DRM measures must be accompanied by oversight and
regulation of the TPMs or DRMs system, in order to ensure the public
is protected from well known abuses.

What will be the work program for SCCR on the topics of L&E?  CI
recommends the SCCR support (1) further sharing of information on
specific topics, (2) empirical studies of practices and impacts of
practices, (3) the identification of those areas where global
harmonization on minimum L&E are appropriate and essential, and (4)
consideration of new global agreements that would provide for minimum
L&E in specific areas, either as standalone agreements, or as part of
a broader Treaty on Access to Knowledge (A2K).

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Annex
Universal Declaration of Human Rights Adopted and proclaimed by
General Assembly resolution 217 A (III) of 10 December 1948

Article 26.
(1) Everyone has the right to education. Education shall be free, at
least in the elementary and fundamental stages. Elementary education
shall be compulsory. Technical and professional education shall be
made generally available and higher education shall be equally
accessible to all on the basis of merit.

Article 27.
(1) Everyone has the right freely to participate in the cultural life
of the community, to enjoy the arts and to share in scientific
advancement and its benefits.
(2) Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or
artistic production of which he is the author.




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James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040