TWN Info Service on Intellectual Property Issues (Nov10/07)
19 November 2010
Third World Network 
 
WIPO: Text-based work to begin on exceptions and limitations to copyright
Published in SUNS #7042 dated 18 November 2010
 
Geneva, 16 Nov (Sangeeta Shashikant and Heba Wanis) -- The Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) concluded its week-long session in the early hours of 13 November, with a breakthrough decision on the future work on exceptions and limitations to copyright (E&L) for the 2011/2012 biennium.
 
According to the decision, the Committee agreed to work towards an "appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms)" on the basis of proposals already tabled or any additional submissions.
 
The decision adds that "Recognizing the need to advance the more mature areas, the Committee will undertake text-based work with the objective of reaching agreement on appropriate exceptions and limitations for persons with print disabilities and other reading disabilities."
 
"In a similar manner, the Committee will undertake text-based work on appropriate exceptions and limitations for libraries, archives, educational, teaching and research institutions, and persons with other disabilities," the decision states.
 
The decision further states that the SCCR will submit recommendations to the WIPO General Assembly in 2011 on exceptions and limitations for persons with print and other reading disabilities, and will also undertake to submit recommendations to the General Assembly in 2012 on exceptions and limitations for education, teaching and research and for libraries and archives and persons with other disabilities.
 
The decision also addressed the issue of the protection of broadcasting organisations and audiovisual performances.
 
The Committee also agreed to extended SCCR sessions to discuss E&L in a detailed timetable for the biennium of 2011/2012 that is annexed to the decision.
 
The SCCR held its twenty-first session from 8-12 November.
 
The decision on E&L, which emerged as the most contentious issue in this session of the SCCR, was agreed on after numerous informal meetings were held to try to narrow the differences over the future work in the SCCR on this issue.
 
The battle over the way forward on E&L began with a draft decision (dated 9 November) presented by the African Group calling for the SCCR "to work towards an appropriate international legal instrument or instruments", and "to undertake text-based negotiations with the objective of reaching agreement on an international legal instrument or instruments which will ensure appropriate exceptions and limitations for persons with disabilities, including print disabilities, education, teaching and research institutions; and libraries and archives".
 
In an annex, the proposed draft decision defined a clear work program on E&L for the biennium of 2011/2012 that included three inter-sessional working groups in addition to the regular SCCR sessions to be held in May/June and November of 2011 and in May/June 2012. It proposed that the first inter-sessional (in March 2011) would address persons with disabilities including print disabilities; the second inter-sessional (in October 2011) would address E&L for education, teaching and research institutions; and the third inter-sessional (in February/March 2012) would address E&L for libraries and archives.
 
The African Group's initiative was followed by a draft decision (dated 10 November) tabled by Group B (composed of developed countries).
 
The Group B text proposed work towards "an appropriate international legal instrument or instruments (whether model law, joint recommendations, treaty and/or other forms)", and "to undertake text based negotiations to achieve appropriate exceptions and limitations for persons with print disabilities and continue its work on appropriate limitations and exceptions on libraries and archives; education and research institutions; and persons with other disabilities".
 
In comparison to the African Group's proposal, Group B's proposed decision limits text-based negotiations to persons with print disabilities and incorporates an open-ended list of possible legal instruments in the text. Moreover, unlike the African Group's proposal, Group B's proposal does not contain additional sessions (to regular SCCR meetings) to work on E&L.
 
Group B's text was followed by another draft decision (dated 11 November) jointly proposed by the African Group and the Group of Latin American and Caribbean countries (GRULAC) prepared on the basis of the African Group's draft decision. The Asian Group later co-sponsored this draft decision text.
 
This joint draft text called on the SCCR to work towards an appropriate international legal instrument or instruments (as also found in the African Group's paper). It however added in brackets -- whether model law, joint recommendation, treaty and/or other forms. It also called for "text-based negotiations with the objective of reaching agreement on an international legal instrument or instruments, recognizing the need to advance with the more mature areas, currently persons with print and other disabilities to be followed by educational, teaching and research institutions and libraries and archives".
 
The joint draft decision also endorsed the timetable proposed by the African Group.
 
While differences had emerged between GRULAC, the Asian Group and the African Group in past SCCR sessions over the prioritization of E&L issues, these differences were bridged in the joint proposed decision, with language that stressed on the need to advance the more mature areas, i. e., E&L in relation to persons with print and other disabilities. This would be followed by text-based negotiations on educational, teaching and research institutions, and libraries and archives.
 
[GRULAC has been pushing for the SCCR to first undertake negotiations concerning persons with print and other disabilities on the basis of a proposal tabled by Brazil, Ecuador, Mexico and Paraguay on "Limitations and Exceptions: Treaty Proposed by the World Blind Union" (SCCR/18/5). On the other hand, the African Group has been stressing on the need for all E&L issues to be considered at the same time and on an equal footing. To this end, the African Group has proposed a draft treaty on exceptions and limitations for the disabled, educational and research institutions, libraries and archive centres (SCCR/20/11)].
 
Group B (composed of developed countries) could not accept many elements of the proposed joint draft decision by the African Group, Asian Group and GRULAC.
 
The final decision that was agreed past midnight on the last day of the week-long SCCR session (in the early hours of 13 November) is a delicately drafted text, which while taking the issue of E&L substantially forward, also retains some differences that have yet to be narrowed.
 
The relevant part of the agreed decision reads as follows:
 
"Bearing in mind
 
"- the Development Agenda recommendations;
 
"- the agreement reached during the 19th session of the SCCR in December 2009 "all aspects concerning limitations and exceptions will be maintained on the Agenda of the 20th session of the SCCR with the aim of establishing a work program concerning those limitations and exceptions, following a global and inclusive approach and taking into account their equal importance and different level of maturity, while recognising the need for concurrently addressing all the issues with a view to achieving progress on all of them";
 
"- the international conventions in the field of copyright and related rights, including the SCCR's authority to make a recommendation to convene a Diplomatic Conference."
 
"Following a global and inclusive approach, the SCCR agrees to work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms), taking into account the proposals already tabled or any additional submissions.
 
"The SCCR agrees to the following work program on exceptions and limitations for the two-year period 2011/2012:
 
"1. Recognising the need to advance the more mature areas, the Committee will undertake text-based work with the objective of reaching agreement on appropriate exceptions and limitations for persons with print disabilities and other reading disabilities. In a similar manner, the Committee will undertake text-based work on appropriate exceptions and limitations for libraries, archives, educational, teaching and research institutions, and persons with other disabilities.
 
"2. The Committee will follow, as set out in this Annex, a clearly defined work program for the two-year period 2011-2012.
 
"The focus of the Committee's work in the two-year period 2011/2012 will build on the existing work carried out by the Committee and use all WIPO working documents on exceptions and limitations as well as any additional relevant working documents, which are to constitute the basis of the Committee's work, including:
 
"- Proposal by Brazil, Chile, Nicaragua and Uruguay for work related to exceptions and limitations (document SCCR/16/2);
 
"- Proposal by Brazil, Ecuador, Mexico and Paraguay relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU) (document SCCR/18/5);
 
"- the Draft Consensus Instrument, submitted by the United States (document SCCR/20/10);
 
"- the Draft WIPO Treaty on Exceptions and Limitations for the Disabled, Educational and Research Institutions, Libraries and Archive Centers, submitted by the African Group (document SCCR/20/11);
 
"- the Draft Joint Recommendation Concerning the Improved Access to Works Protected by Copyright for Persons with a Print Disability, submitted by the European Union (document SCCR/20/12);
 
"- Updated report on the Questionnaire on Limitations and Exceptions (SCCR/21/7).
 
"All four current substantive proposals were presented and Members made initial comments and asked preliminary questions thereon, and were invited to submit in writing questions asked during the meeting.
 
"3. The Committee is requested to submit recommendations to the General Assemblies on exceptions and limitations for persons with print disabilities and other reading disabilities. In a similar manner, the Committee will undertake to submit recommendations to the General Assemblies on limitations and exceptions for libraries, archives, educational, teaching and research institutions, and persons with other disabilities, according to the annexed timetable."
 
"4. The International Bureau is requested to continue to assist the Committee by providing Member States with necessary expertise and funding of the participation of experts, according to the usual formula".
 
On the protection of broadcasting organisations, the agreed decision reaffirms the SCCR's "commitment to continue to work, on a signal-based approach towards developing an international treaty to update the protection of broadcasting and cablecasting organisations in the traditional sense".
 
SCCR Members are also invited "to present new proposals on the protection of the broadcasting organisations by March 1, 2011, if possible in treaty language, in addition to the proposals contained in the document SCCR/15/2 rev, to form the basis of the preparation of a new draft treaty".
 
It was further agreed that the Secretariat would organise, in Geneva, before the 22nd session of the SCCR, "an informal consultation meeting of Members involving technical experts, to clarify outstanding technical and technological issues, relevant for the updated protection of the broadcasting organisations in the traditional sense, by following the signal-based approach".
 
"The Secretariat will prepare a list of issues based on the 2007 mandate of the General Assembly, with regard to the objectives, specific scope and object of protection. The consultation meeting will report its suggestions to the Committee," the decision adds.
 
On the protection of audiovisual performances, the Committee considered that "the nineteen articles provisionally agreed in 2000 were a good basis for advancing the negotiations on the treaty". It invited "Member States to submit, by January 31, 2011, written proposals, if possible in treaty language, to address the outstanding issues from the 2000 Diplomatic Conference as well as on any additional or alternative elements for a draft treaty".
 
[In 2000, a diplomatic conference (final negotiations) over a treaty for the protection of audiovisual performances broke down as a result of divergences in the area of transfer of rights and agreements between performers and producers; moral rights of audiovisual performers; and flexibility of the treaty implementation, as to whether the obligations can be implemented by means of collective bargaining instead of legal statute. Presently, there is a lack of formal agreement on whether the 19 articles that were previously agreed in the failed diplomatic conference should be reopened.]
 
The agreed decision also invites the Secretariat to organize in Geneva informal open-ended consultations among Members to examine the new proposals, with a view to making recommendations to the next session of the Committee, which should include a timetable for concluding the negotiations.
 
Annexed to the decision is a detailed timetable for work on E&L, including extended SCCR sessions.
 
According to the decision, the 22nd session of the SCCR in May/June 2011 will be extended by three additional working days. The regular and extended session will focus on E&L relating to persons with print and other reading disabilities.
 
The 23rd SCCR session in November 2011 and the 24th session of the SCCR in May/June 2012 will also be similarly extended, with the 23rd session focusing on exceptions and limitations for libraries and archives, and the 24th session focusing on exceptions and limitations for educational, teaching and research institutions, and persons with other disabilities.
 
The extended SCCR sessions were a compromise to the holding of additional "special sessions" as proposed by the African-Asian-GRULAC countries and strongly opposed by Group B, which argued that such sessions would incur additional cost to the organisation, as the participation of some developing and least developed countries is funded by WIPO.
 
Another contentious point that emerged during the session was the scope of the text-based negotiations. Group B was keen to limit such negotiations to E&L for persons with print disabilities, while on other E&L, Group B wanted language that states that "The Committee will also continue its work on appropriate exceptions and limitations for libraries, archives, educational and research institutions". On the other hand, developing countries pushed for a more inclusive approach.
 
In the agreed decision, a compromise was reached with language that recognised the need to advance more mature areas and an understanding that the Committee will begin text-based work on E&L for print disabilities and other reading disabilities. And "In a similar manner", as other areas mature, the Committee will undertake text-based work.
 
There was also some disagreement over the scope of disabilities to be covered by E&L. As negotiations progressed in the SCCR, non-governmental organizations (NGOs) pushed for widening the scope of disabilities covered by E&L to be in accordance with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which recognises that "Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others" (Article 1).
 
Such an extension is also called for in Article 15(b) of the proposal tabled by Brazil, Ecuador, Mexico and Paraguay on Limitations and Exceptions: Treaty Proposed by the World Blind Union (document SCCR/18/5).
 
While the joint draft decision proposed by the African Group, GRULAC and the Asian Group recognised the issue of persons with print and other disabilities as a mature area on which text-based negotiations should be undertaken, Group B wished to limit such initial negotiations to only persons with print disabilities.
 
Developing countries voiced satisfaction with the final outcome on E&L.
 
Speaking at the closing plenary in the early hours of 13 November morning, Brazil, on behalf of the Development Agenda Group (DAG, composed of a number of like-minded developing countries), called the outcome "groundbreaking", adding that it is now the task of Member States to give life and to add flesh to the work program. It also reminded the Committee that at its next session, the SCCR will have to discuss how best the Committee should report to the General Assembly on its implementation of the Development Agenda (DA).
 
[This year's WIPO General Assembly approved the Coordination Mechanism and Monitoring, Assessing and Reporting Modalities (WO/GA/39/14 Prov. Para 102), which requires WIPO bodies to include in their annual report to the Assemblies a description of their contribution to the implementation of the respective DA recommendations and to identify the ways in which the DA recommendations are being mainstreamed in their work, and urges them to implement the recommendations accordingly. See SUNS #7008 dated 30 September 2010.]
 
Brazil's statement prompted an intervention from Group B and the Central European and Baltic States who said that the right place for a discussion on the coordination mechanism would be the Committee on Development and Intellectual Property (CDIP), whose seventh session convenes on 22-26 November 2010.
 
Meanwhile, Trevor Clarke, the WIPO Assistant Director-General for Copyright, noted in the closing plenary that there has been a "significant degree of compromise".
 
"This achievement retrieves the ground that we lost in June, but more significantly, it has created a momentum in which the SCCR can really look forward now to an exciting future... Let us keep this momentum going," he said.
 
The next session of the SCCR has been scheduled for 15-24 June 2011. +