[Random-bits] Of Limitations, Exceptions and Verse (WIPO copyright committee)
James Love
james.love@keionline.org
Thu Apr 3 15:26:03 2008
This is Thiru's detailed account of the last WIPO SCCR meeting,
including much on the context of the negotiations. Jamie
http://www.keionline.org/index.php?option=com_jd-wp&Itemid=39&p=110
Of Limitations, Exceptions and Verse (WIPO copyright committee)
April 3rd, 2008 by Thiru Balasubramaniam
Following the WIPO Standing Committee on Copyright and Related Rights
(SCCR) which for much of its existence has endeavored to unsuccessfully
hammer out a Treaty for the Protection of Broadcasting Organizations has
provided a window into the human condition replete with incidents of
humor, frustration and hope. Since 2003, KEI has witnessed illegal votes
cast, NGO literature trashed and the rehashing of stale arguments to
provide broadcasters, cablecasters and webcasters an instrument giving
them exclusive, copyright like privileges creating an additional layer
of "broadcast rights" on top of existing copyright. However, from 2003
there has existed within the work agenda of the WIPO SCCR, a
counterpoint to the broadcast treaty fever so favored in the Committee.
In June 2003 at the 9th session of the SCCR, Professor Sam Ricketson’s
(University of Melbourne) seminal 86 page opus on "Limitations and
Exceptions of Copyright and Related Rights in the Digital Environment"
was made available to delegates. However, it is unclear as to whether
Professor Ricketson has formally presented his study before the
Committee. At the 12th session of the WIPO copyright committee (17-19
November 2004), Chile tabled a proposal on "Exceptions and Limitations
to Copyright and Related Rights" which called upon the Committee to
include the
--- subject of exceptions and limitations to copyright and related
rights for the purposes of education, libraries and disabled persons in
the current agenda item referring to "other issues for review. ---
Chile’s initial proposal was further strengthened by its second
submission at the 13th Session (21-23 November 2005 of the SCCR on
"Analysis of Exceptions and Limitations". The background, fundamentals
and the international dimensions with respect to exceptions and
limitations presented in the Chilean submission are well conceived and
are recommended reading.
The analysis proposal called upon the Committee to consider three work
areas namely:
---------
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.
-------
Despite Chile’s submissions in 2003 and 2004, the Copyright Committee’s
fixation with concluding a broadcast treaty preventing any serious
discussion at the Committee on this matter till it reconvened for the
16th session in March 2008. During this nearly 5 year exceptions and
limitations interregnum, an inchoate movement engendered by CPTech (a
project of KEI) and many other partners on a Treaty on Access to
Knowledge (a2k) took root and blossomed into a platform supported by
like-minded countries, civil society, academics and corporations. In
February 2007 WIPO released a 227 page Study on Copyright Limitations
and Exceptions for the Visually Impaired (SCCR/15/17). In 2007 Pakistan
noted that "broadcasting needs a time out" and many countries including
Chile, Uruguay, Brazil, India and South Africa indicated that the time
was ripe for change.
At the 16th session of the WIPO SCCR held in Geneva from 10-12 March
2008 there were signs and portents that augured change. This was
evidenced by a nearly 6 hour negotiation on the election of the chair.
Traditionally the election of the Chair had been a formality that lasted
five minutes at most. From the genesis of the SCCR (March 1998), Mr.
Jukka Liedes (Finland) had been the Chair of this Committee with the
Vice Chairs playing a nominal role. Some commentators dubbed Mr. Liedes
"Chairman for life". Notwithstanding Mr Liedes’ eminent grasp of matters
related to copyright and related rights, Member States came to the
realization that after 10 years, perhaps it was time for change. In the
run up to the 16th session, the names of Canada, Italy and Senegal had
been circulated as possible contenders for the Chair of the SCCR.
Despite Mr. Liedes’ eventual election as Chair, the 6 hour debate on the
leadership of the Committee bore witness that WIPO Member States were
not pleased with the status quo. Finally the leadership question was
resolved with Mr. Liedes (Finland) resuming the chairmanship of the
Committee, but a new Vice-Chair was elected, Mr. Luis Villarroel
Villalon (Chile) with Mr. Abdellah Ouadrhiri (Morocco) retaining his
post as Vice-Chair. From sources close to the negotiations, there was
expressed agreement that role of the Vice-Chairs would be further
strengthened thus paving the way for a positive agenda on exceptions and
limitations.
On 11 March 2008, Chile, Brazil, Nicaragua and Uruguay tabled a proposal
on Work Related to Exceptions and Limitations providing a welcome
elaboration of Chile’s original proposal (13/5) tabled in 2005. Building
on the three work areas of the original "Analysis of Limitations and
Exceptions" document (13/5) the Brazil/Chile/Nicaragua/Uruguay proposal
could be paraphrased has having three main elements:
-------------
1. To have the SCCR identify and share information on state
practices in the area of L&E in the area of copyright
2. To undertake research and to analyze the L&E needed to promote
creative and innovative activity, and for the dissemination of creative
and innovative works and services
3. To establish agreements (including one or more treaties) to
ensure member states adopt the minimum L&E needed to protect the public
interest, especially as concerns the needs of the most vulnerable or
social prioritized sectors of society.
----------------
As my colleague Manon Ress meticulously captured in her blog, the
reaction to the Chile/Brazil/Nicaragua/Uruguay ran the gamut from hot to
cold.
Ukraine, Paraguay, the Russian Federation, Egypt, South Africa and Ghana
welcomed the proposal put forth by Chile. These countries echoed the
need for clarity with respect to exceptions and limitations for the
disabled and for libraries with Paraguay noting the potential effect of
new technologies while Egypt noted its preference for guiding principle
for a set of minimum exceptions and limitations.
New Zealand endorsed the recommendations by Chile to conduct studies on
disabled persons especially regarding the exchange of state practice.
Australia and Japan expressed reluctance for WIPO to engage in any
norm-setting with respect to limitations and exceptions. The United
States briefly shared it experience with the "fair use" doctrine and
noted that the "Berne principles to balance at national level has served
Berne members well". The US representative declared his delegation was
not aware of any problems with the application of Berne on the national
level and remained to be convince that there was a case to be made for
norm-setting.
In the United States’ intervention on behalf of Group B (the group of
industrialized Member States of WIPO), Group B specifically opposed work
areas two and three of the original Chilean proposal (13/5) which called
for the
-----------
[a]nalysis of the exceptions and limitations needed to promote
creation and innovation and the dissemination of developments stemming
therefrom.
[and the]
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.
-----------
When Chile asked the United States (representing Group B) why this rich
country block opposed this "analysis of limitations and exceptions",
Group B’s only rejoinder was the Delphic reply worthy of the Oracle "in
the face of document itself, therein lies the answer". If this is the
best parry Group B can muster, there remains cause for concern.
Despite this hiccup, there was enough momentum created by the Chilean,
Brazilian, Nicaraguan and Uruguayan submission to propel the Copyright
Committee forward in a new direction. The conclusions stated:
-------------
The Secretariat was requested to make, in addition to the existing
study reports, a study on exceptions and limitations for the benefit of
educational activities, including distance education and the
trans-border aspect in it.
The Secretariat was requested to organize, in conjunction with the
next session of the SCCR, an informative session on existing and
forthcoming studies.
The Committee will consider a more detailed work plan on this item
in its next session including the organization of seminars on regional
and national level.
The matter will be maintained on the agenda of the next session of
the SCCR.
-------------
With respect to the the information session the Secretariat is
instructed to prepare, it would advisable if the timely paper by
Professors Bernt Hugenholtz and Ruth Okediji on Conceiving an
International Instrument on Limitations and Exceptions to Copyright be
presented by its authors at this information session. Regional and
national seminars are welcome provided that Member States have input
into their content.
One thing to bear in mind about the history of the WIPO Copyright
Committee is that the first few information sessions of the SCCR (in the
late 1990s) on topics such as databases and broadcasting reached
conclusions which requested Member States, the European Community,
intergovernmental organizations (IGOs) and non-governmental
organizations (NGOs) to submit comments on these respective topics for
consideration by the Committee. In this case we hope history repeats
itself and WIPO Copyright Committee will receive submissions by Member
States, NGOs and IGOs on the establishment of a Treaty,inter alia,
minimum limitations & exceptions for the visually impaired. The fate of
the limitations and exceptions negotiations are a crucible for WIPO that
must not fail.
As promised in the title of this blog entry I must leave you with some
verse. Other commentators have noted that the broadcasting agenda item
was left in the agenda for future consideration.
The Australian delegate used the metaphor (in verse form) of the Scarlet
Pimpernel to underscore the "elusiveness of the broadcasting treaty"
while the Deputy Permanent Representative of India declared on the item
of broadcasting,
"The fault lines are long and deep
We have miles to go before we seek
A treat at the Diplomatic Meet."
--
_____________________________
James Love, Knowledge Ecology International (KEI)
http://www.keionline.org, mailto:james.love@keionline.org
voice +1.202.332.2670, fax +1.202.332.2673, US mobile +1.202.361.3040, Geneva mobile +41.76.413.6584
When everyone thinks the same, no one thinks. Bill Walton remix of Walter Lippmann