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 copyright2. 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.”