The following is the written statement for the record that KEI has provided to the WIPO General Assembly, on the topic of the work program for the Standing Committee on Copyright and Related Rights (SCCR).
Knowledge Ecology International (KEI) recommends that the topic of the broadcast treaty be removed from the SCCR agenda, for the following reasons.
- the theft of copyrighted signals from broadcasting organizations is already illegal under copyright and regulatory laws. There is no evidence that new laws are needed to address this issue, and there is also no evidence that a treaty dealing exclusively with signal piracy will receive support from broadcasters. Broadcasters are actually seeking a new and expanded intellectual property right (IPR) in programs they assemble and distribute, but do not create.
- Any new intellectual property rights for broadcasters will come at the expense of both consumers and the creative communities who are protected by copyright. New IPR for broadcasters will present additional layers of rights that will make it more costly and difficult to reuse information in ways that are legitimate under copyright laws.
- Work on a broadcast treaty will come at the expense of work on copyright limitations and exceptions, which is more important for the public, to address important social needs.
KEI encourages the SCCR to focus on a robust work program on copyright limitations and exceptions that addresses a broad set of exceptions, including those dealing with people with disabilities, libraries, education, distance education, archives, orphaned works, innovative services, translations, excessive pricing and the control of other anti-competitive practices.
KEI does not believe that deep harmonization of all copyright limitations and exceptions is needed or appropriate in most cases. In general, it will be best if the global rules provide for the appropriate level of freedom to operate, so that national laws can experiment to find ways to balance and protect both consumers and creative communities, while using a diversity of approaches consistent with domestic legal traditions and values.
However, in some special cases, global norms will be useful, including (in some cases) minimum limitations and exceptions for copyright. In particular, where cross-border uses of works or technologies are necessary, some global norms will be needed to stimulate public and private investments in such services. For example, cross-border uses that will or may benefit from global norms include:
- the sharing of accessible works for persons who are blind or have other disabilities;
- distance education, delivered across borders;
- the cross border sharing of works by libraries;
- the regulation of Digital Rights Management (DRM) and Technical Protection Measures (TPMs), as they relate to the exercise of legitimate uses of works, or the control of anti-competitive practices; and
- the development of some innovative services,
In future years, the SCCR may find it productive to consider new global rules for compulsory licensing of recorded music or orphaned works.
The SCCR should also review the Appendix to the Berne, to determine if it has been successful in meeting its objectives, and if a new version of the Appendix is needed to improve its usefulness and relevance in addressing the objectives of the WIPO development agenda.
Global norms are durable, and should be done correctly. While some of these projects are ready now, others may take many years before sufficient analysis, consultation and consensus emerges and there is a strong basis for global norm setting.
A treaty for sharing works in accessible formats for persons who have reading disabilities can be done now, and is long overdue. WIPO considered global norms for this issue as early as 1982, and has received frequent petitions from the disabilities community to act. The proposal by Brazil, Equator and Paraguay provides a good basis for negotiations. In this regard, it should be noted that SCCR18/5 is inclusive in terms of reading disabilities, and provides countries considerable flexibility in terms of implementation on topics such as the works that are “legally available” for import under the exception, and the role of trusted intermediaries. The SCCR will of course find it useful to strengthen the proposal in certain areas, and KEI looks forward to the discussion at SCCR 19.
KEI notes the work of WIPO on the Stakeholder Platform, and the concerns of developing countries regarding the need for transparency and participation by persons in developing countries. KEI is concerned that publishers have not participated directly in this process so far, and are instead represented by lobbyists for trade associations – people who cannot actually commit to licensing works for global distribution. KEI is concerned that some delegations have presented the stakeholder platform as a substitute for a global norm on the export and import of works created under a copyright exception. This is an uninformed and cruel misreading of mountains of evidence of the barriers to equality faced by the disabilities community.
Other WIPO delegates have suggested privately that the needs of the reading disabilities community can be satisfied by a statement at the WIPO General Assembly that the exporting and importing of works created under an exception comport with the TRIPS and the Berne, leaving the implementation up to national action, without a treaty instrument. While such an approach does offer some benefits, it will predictably have far less benefit than a treaty instrument, which will certainly lead to greater use of the cross-border sharing of works.
The best evidence of the importance of a treaty or binding trade agreements is the vigor with which the copyright owners themselves press for such measures at WIPO, and fora outside of WIPO. Why has WIPO considered the WCT and the WPPT, and more recently a treaty for broadcasters or audiovisual performances, if not for the fact that a treaty itself is the most powerful way to advance a new global norm, and to promote implementation of that norm?
If WIPO only provides a declaration that imports and exports are legally allowed, but fails to provide a framework for authorizing the cross border sharing of accessible works, many countries will take years, and perhaps never change their laws to create the enabling legal environment. Just as the WCT was designed to accelerate the adoption of legal protections of DRM/TPM measures, and to provide for a common framework for expansions of other rights for copyright owners, the treaty for reading disabilities is design to promote rapid implementation of a new global platform for sharing accessible works.
Work on disabilities should be considered an issue of human rights, and a logical implementation of obligations under the UN Convention on the Rights of Persons with Disabilities. While a treaty for sharing accessible formats of works is consistent with the Development Agenda, KEI cautions WIPO against framing such a treaty as a developing country issue only. Persons with reading disabilities live everywhere, have very different levels of access to technologies, and use different languages. The benefits of an expanded sharing of works will be particularly important for countries that need access to accessible works from foreign countries, and have the capacity to use them.
Work on reading disabilities should not be delayed until a broader work program on copyright limitations and exceptions is completed, and indeed, neither should work on distance education, libraries or other topics be limited by requirements that the entire work program be finished.
For norm setting, the SCCR should move each project forward when it is ready – not before, and not much after.
In the case of reading disabilities, the SCCR should aim to authorize a diplomatic conference at the 2010 General Assembly meeting. That diplomatic conference should be held as early as Spring 2011. Work on other norm setting activities involving limitations and exceptions should go forward in parallel, including but not limited to proposals that may be offered in the areas of distance education and libraries.