SCCR Day 2: Re Limitations and Exceptions (Finally)

After a rather disappointing day 1 of the standing committee on copyright and related rights at WIPO, Day 2 is turning out to be a good constructive day.

As you all probably know by now, after over 6 hours of deliberations, the committee re-elected the same chair we’ve listened to for years. There’s been some tweaking of the role of the vice-chairs (Chile and Morocco) who are supposed to have acquired more influence in the process. We’ll see. Any change is welcome for a committee that has not been successful regarding its norm-setting activities since the 90s (database treat, performers rights and lately the “casters” treaty).

Today started with a description of work done by WIPO regarding Limitations and exceptions. There have been workshops on implementation since 1999 and in 2001. And the secretariat has produced studies on the situation for the visually impaired and on limitations and exceptions for education. A new study on Limitations and exceptions for libraries should be available at the end of this quarter.

The Chair asked questions such as is work on limitations and exceptions a priority? Is it about “international level work”. And on what basis would the delegates want to work on this issue. He also asked questions on methodology, on how the work would be organized and “what would be the objectives?”.

Then Chile took the floor and presented a joint proposal by Chile, Brazil, Nicaragua and Uruguay. If some people thought that delegates do not always do their homework carefully…it was clear that some delegations were really “ready” to go with a detailed and well argued proposal for work on limitations and exceptions.

The exact proposal is forthcoming (we’re waiting for the delegates to circulate it) but I can try to summarize my notes here. Of course the Chilean delegate’s delivery was more elegant and diplomatic but I’m trying to give you a quick update.

Chile: For our delegation, work on L&E is key. It is a fundamental proposal. It is about protection for the authors and for society. We have a specific proposal on how to make progress on this matter. The meaning of this work, the reasons why Chile is proposing this work. For Chile, the issue is important, it must benefit society and also seen as key to guarantee interest of authors at the same time. Authors do not create out of nothing and they need clear rules. You need to know the rules to have access to knowledge and to know how to use. A clear instrument benefits authors. In Berne for example, all countries recognize quotation exception. Clarity is important for their rights too. Society must know what are the limitations of the rights. if it is not clear to users they do not respect rights. There’s a weakening of process when it is not clear. Need to know clearly when there is for example free use when no permission is needed and then there’s no enforcement. In fact there cannot be real enforcement if there’s no clear exceptions.

If there’s no minimum globally, it prevents progress. To summarize, we’re seeking recognition that L and E are important for society and authors (for access and for those who need protection for their work). We have been working on a minimum standard of protection. As we are making progress and there are new rights, we need to clarify free use or use without permission. We seek consensus.

The delegate reads joint proposal with Brazil, Uruguay and Nicaragua
3 major points:
need identification of national laws and practices
need analysis of effects for innovation

need establishment of an agreement on minimum L&E for benefit of the community

To do this we need a work plan, a structure to move forward. We are proposing a plan with consideration of these 3 points to achieve a consensus in particular re education, persons with disabilities, archives, and libraries and on how to foster innovation.
We are convinced that it will strengthen the existing copyright system and we suggest 4 phases:
1. the SCCR with secretariat undertakes specific research of availability and scope of current national as well as international norms
2. the sccr undertakes specific research. in areas selected by the committee
3. the sccr prioritize
4. select mandatory
5. a recognition of a commitment to have mandatory minimum L&E

for 1 and 2: we call for an information meeting where authors will present and
for second set of activities an open forum on technology with technologists, researchers.

Finally we also request a wipo study in 2008 for education, how do educators perceive copyright, use works etc..”

End of notes/quotes

The reactions were mostly positive with a little push back from the usual suspects:

El Salvador: welcome proposal by Chile. we ‘ll send to capital. it is indeed of interest for members. we have &LE but exercise useful for rights holders.

Ukraine: thank you for your help in Kiev and we want to incorporate L&E in our legislation

Brazil: associate with Chile. we need to set up a positive process. this issue is a permanent item. Opportunity and possible consensus. this is a strong joint proposal, step by step work plan. We would add that the secretariat must provide in depth study and informative session.

Paraguay: Clearly developing countries need access to culture, knowledge and it is a delicate balance between authors and society. There are difficulties for disabled persons and libraries . And new technologies give rise to problem for education. So, we support proposal as long as it protects the balance between the two parties.

Nicaragua: We need clarity for scope of rights. and welcome proposal

New Zealand: we endorse recommendations to do studies on disabled persons especially regarding international exchange of format. This important in NZ. We want to secure rights to import, L&E is territorial and further work is needed. NZ sees value in facilitating import and export and the role of wipo to facilitate.

Russian Federation: We consider favorably this subject. We have free reproduction for personal purposes, for blind persons, for teaching for news and for quotation. We have a number of these L&E in our new legislation.

Cuba: thank you for proposal, we’ll study the proposal

Senegal: Remercie Chile pour interessante proposition qui particulierement retenu notre attention. Importance of art 27 UCHR de 1948 mentionee par uruguay toujours creer equilibre entre auteur, droit de l’information et le droit a l’information. une des meilleures illustrations. art 9 de berne. droit de development cas de libre utiisation avec respect des regles prevues. il faut garder le besoin imperieux de conserver les 2 interets. pas de protection point d’info. Dans tous les instruments juridiques toujours eu prevoir des LE avec souci d’encadrer comment les utiliser. il faudrait toujours en les examinant essayer de reflechir sur la meileure strategie. le point n’est pas nouveau, dans tous les traites il y a des L&E. Si le probleme se pose c’est qu’il y a des besoins. Il nous faut une demarche de coherence, d’abord faire un etat des lieux existant. Faire une evaluation de ce qui existe, une revue des legislations. et il est essentiel de pouvoir decrire les insuffisances par rapport aux nouveaux besoins. Seulement apres ces 2 etapes on pourra parler de proposition. Il y a des points qui se chevauchent. il fau demythifier la PI. c’est un outil de development et non pas une fin en soi

China: congratulations. this issue deserve a further discussion with more effort and time to put on the agenda. we suggest to work out a work plan. with aim to elaborate minimum and binding universal norm. The Chilean proposal is detailed and positive

Egypt: deep interest in proposal. extremely important proposal. would like to refer to Egyptian legislation. we include LE ad aim at balance authors, creators and public domain and society. it is at the heart of wipo and rights of men.
We have question regarding the methodological framework. Are we talking about guiding principles? are they the minimum or are they a maximum of these LE?

we prefer it to be a minimum.
The second question: can we separate L&E in copyright from L&E in IP as a whole?
These are only some of the queries, the proposal must be further clarified.

Iran: thanks. great importance of copyright and of L&E. It should be in the light of enforcement and implementation. And it should balance right holders and public.

South Africa: on behalf of African group. it is a good basis for future work. we also listen with great attention to proposal and look forward to study documents.

Saudi Arabia: congratulations. no doubt that reaching knowledge culture is important to all countries. thank you for putting L&E on this committee. We have L&E in national legislation. Thanks Chile for its proposal

Australia: congratulations. we are interested in following. it was an extensive proposal and as expected we have to study it. So far as it was described, taking stock of L&E that enacted in national law is valuable exercise. Also the interest of NZ ways to access specific format in different countries for people with visual disability. But the proposal raises questions for us like for the like Egyptian delegation. Where would this exercise lead? would there be new exception established? how about existing treaties? that is a difficult terrain to open treaties. One feature we noted. There is the issue of greater certainties but also we understood the proposal to include opportunity or possibility for other or greater exception to be enacted at national level. That would be at odds with quest for certainty.

Ghana: congratulations to Chile and the other countries. We will submit the proposal to our capital. This is a good basis for discussion on the subject matter. As far it addresses human rights of visually impaired and the blind persons.

USA: we’re at the beginning of the conversation on this with this committee; the US would like to share few thoughts and comments. We’d like to share positive experience in US copyright laws and some principles in international.
Finally, we’d like to provide preliminary comments to delegates.
At the domestic level: great deal of sympathy. US courts have refined a sophisticated jurisprudence. Fair use formalized in 76 and we have 4 factors to determine if use is fair. Extremely valuable to US judges. US congress also work on L for libraries etc. We make adjustment according to need to stakeholders.
we’d be pleased to provide and to hear. We recognize that L&E national and willing to share successful approach.

On the international level some L&E to advance flow of culture and Berne grants right to limit for education of news. Berne Art. 2 what Ricketson has called the horizontal, the Berne 3 step test, incorporated in wipo treaty and in trips.
The US believes that Berne principles to balance at national level has serve Berne members well. Decided at national level where competing interest an be calibrated. It works well. We’re not aware of problems. The us is not convince that a case has been made to undertake norm settings. Nonetheless, the US will listen careful, we need evidence-based case to do this activity.
We could limit latitude that has served Berne well. It could be difficult.
Fair use is applied case by case. It is not easy to codify. For these reason we do not support third area of the proposal. We stand ready to share experiences but we question if should be priority. we’ll reserve judgment on first area of proposal.

Re the ambitious work plan of Chile and its co-sponsors, the high priority but US has not seen proposal and no opportunity to review details. This is not ready for discussion at this session. The scope of proposal need to evaluate scarce resources (human and financial). Finally, the second area, pits exclusive rights to innovation and thus is turning up side down the principle, absent clarification US could not accept.

We took note. Not opposed to sharing info on this matter. but moving to norm setting decision should be after. we already have 3 step-test. it has been fair balance. to ensure public interest. we agree with US del, we should not move to norm setting. so far no written document.

Nigeria: congratulations. Issue of developing international L&E is a challenge, IP is a tool for development. This committee must be careful and well informed.
Importance of access to knowledge. it is utmost interest of developing countries. Careful consideration to adopting existing jurisprudence we appreciate Chile proposal and note the matter provides historical possibility to harmonize, and important window for future work of wipo

Indonesia: important issue.

Columbia: Thank you Chile. Not in writing. We should have general rules not an international instrument. using the 3 step test. it affects normal use of work, interest of author. An international agreement not suitable nor appropriate.

Kenya: Support to document drawn by Chile. It is notable that have been addressed at the national and regional. We need to have holistic approach, rights of authors, creativity and users. we should be able to discussed at both producers and consumers of work.

End of notes

As we were getting really close to lunch time (and a side event on Limitations and Exceptions organized by IFLA, Library Copyright Alliance, AALL, ALA, MLA, SLA, and KEI) Chile answered some of the questions that had been raised.


Chile: thank you for support. I would like to answer some questions that were raised. First concern: is this proposal affecting treaties already signed?
the answer is absolutely No. when we talk about minimum and mandatory we’re thinking what should be adopted in existing limits. the limits are not to be changed, but for specific area, for the blind persons, education we should agree on minimum, for some 3 step steps or Berne…
good point about lack of evidence, but after reading wipo reports, 60 countries have exception for the blind persons. in many countries there is none. recently we did a study in APEC region. for Distance Education only 7 countries have expressed exceptions for education. And these are economically high level countries and high level of sophistication and it does not mean there’s no DE there. We’ll try to have discussion in some cases. We’re not proposing change of limits that’s left but basic need in some areas.
Other question: a treaty? recommendations? we’re not clear about aim because it is open. In case of Chile, we support soft norms. But it is to premature to have an answer. ”

End of notes

Of course the discussion is far from over but for a first morning session on the topic, I believe it was quite impressive. Not only was the substance of the discussion (finally!) interesting but the mood of the committee shifted. We went from a “de-mobilized” group of experts and diplomats to a “challenged” and constructive crowd.

Maybe the committee members (or at least most of them) are again interested in the work ahead?

We’ll see this afternoon if the positive shift can be sustained.