In the piece, WIPO General Assembly 2014: Hard Decisions on the Design Law Treaty and Treaty for Protection of Genetic Resources (22 July 2014), KEI highlighted the hard decisions awaiting the WIPO General Assembly (22 September 2014 to 30 September 2014) with respect to the Design Law Treaty, the imminent revision of the Lisbon Agreement to include geographical indications and WIPO’s work to conclude an instrument for the protection of genetic resources, traditional knowledge and folklore. In light of the fact that the 28th session (30 June 2014 to 4 July 2014) of the WIPO Standing Committee on Copyright and Related Rights (SCCR) concluded without reaching agreement on recommendations to the WIPO General Assembly on 1) Protection of Broadcasting Organizations and 2) Limitations and exceptions: libraries and archives. we reported that,
it is unclear at this stage whether the 2014 General Assembly will witness high-level political maneuvering force the GA’s hand in taking a decision to convene a Diplomatic Conference in 2016 for adoption of a Treaty for the Protection of Broadcasting Organizations.
With the WIPO secretariat’s recent publication of the Report on the Work of the Standing Committee on Copyright and Related Rights (WO/GA/46/5) on 29 August 2014, the picture has become somewhat clearer. The Committee’s work on copyright limitations and exceptions appears to be taking a back seat to the conclusion of a treaty for the protection of broadcasting organizations. Despite the report’s acknowledgement that no agreement was reached on recommendations to the WIPO General Assembly on the protection of broadcasting organizations, the secretariat’s report provides a pathway (in the form of a draft decision) for the 2015 WIPO General Assembly to take a decision on convening a Diplomatic Conference in 2016.
In accordance with its previous decisions, and taking into account the progress achieved in the SCCR sessions since the last meeting of the WIPO General Assembly, the General Assembly is invited to consider what steps to take with respect to convening a diplomatic conference for a treaty on the protection of broadcasting organizations, including considering whether to direct the SCCR to take specific steps towards the development of a text or a recommendation to the 2015 General Assembly.
The General Assembly could also provide the SCCR with a decision on a roadmap to work towards a broadcasting treaty. If it were so inclined, for instance, the General Assembly could consider a decision along the following lines:
“The WIPO General Assembly requests that the SCCR expedite its work on the ‘Working Document for a Treaty on the Protection of Broadcasting Organizations’ (SCCR/27/2 Rev.), while taking into account all documents and submissions made to the SCCR, so that the 2015 General Assembly may take stock of the progress made, and decide on the convening of a diplomatic conference in 2016.”
The WIPO General Assembly mandate of 2007 clearly states that the convening of a Diplomatic Conference for the protection of broadcasting organizations is contingent upon agreement on objectives, specific scope and object of protection. Countries still have to finalize text on definitions, scope of application, beneficiaries of protection and object of protection in future discussions of the consolidated broadcast treaty text (SCCR/24/10 Corr.). In this iteration, the Committee has not yet held substantive discussions on the “juicy exceptions” (general principles, protection and promotion of cultural diversity and defense of competition), limitations and exceptions, term of protection and technological protection measures (digital locks). In short, proponents of the broadcasting treaty have their work cut out for them if their aim is for the 2015 WIPO General Assembly to convene a Diplomatic Conference in 2016 (location unknown). .
For limitations and exceptions for libraries and archives, the Secretariat report provides the following decision point for the General Assembly:
(iv) encourage progress on limitations and exceptions consistent with the recommendations approved by the WIPO General Assembly in 2012, namely to continue discussions to work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms), with the target to submit recommendations on limitations and exceptions for libraries and archives as well as on educational and research institutions and persons with other disabilities to the WIPO General Assembly in 2015.
As part of the conclusions of SCCR28 on limitations for libraries and archives, the Secretariat report highlighted the importance of preservation:
it was considered that in order to ensure that libraries and archives can carry out their public service responsibility for the preservation, including in digital form, of the cumulative knowledge and heritage of nations, limitations and exceptions for the making of copies of works may be allowed so as to preserve and replace works under certain circumstances.
With respect to library lending, the SCCR28 conclusions noted:
the Committee recognized the importance of addressing this issue and various Delegations suggested different alternatives for providing this service, including the use of limitations and exceptions, the exhaustion of rights, and/or licensing schemes. The Committee expressed different views on digital distribution in the scope of library lending.
With respect limitations and exceptions for educational and research institutions and persons with other disabilities, the SCCR 28 conclusions noted:
Several Delegations expressed the importance of distance education, digital learning, and cross-border exchange of works for educational purposes as efficient tools to be considered with respect to universal access to education and the use of the copyright system to contribute to that goal.
The Secretariat was asked to examine the available resources and if possible arrange to update the regional studies on limitations and exceptions for educational, research and teaching institutions, with the understanding that their preparation would not delay discussion on limitations and exceptions agenda item. The Secretariat was also asked to examine the possibility, consistent with available resources, of commissioning a scoping study on copyright and related rights limitations and exceptions for persons with other disabilities (than blindness, visual impairment, or print disabilities). These studies would serve as information resources for the Committee.
Despite the failure of SCCR28 to reach agreement on recommendations for the General Assembly, the Secretariat report provides first class treatment for broadcasters and cablecasters. Essentially, the General Assembly is asked to consider how to devise a pathway for the 2015 General Assembly to take a decision on convening a Diplomatic Conference in 2016 on a broadcast treaty. For limitations and exceptions, on the other hand, the draft decision asks WIPO members to “encourage progress” on L&Es consistent with the WIPO General Assembly mandate of 2012, with the goal of submitting recommendations on limitations and exceptions for libraries and archives as well as on educational and research institutions and persons with other disabilities to the WIPO General Assembly in 2015″, “whether model law, joint recommendation, treaty and/or other forms.”
While it is encouraging to see member states providing the explicit mandate for WIPO to update its regional studies for limitations and exceptions for educational, research and teaching institutions and to examine the possibility of preparing a study on copyright and related rights limitations and exceptions for persons with other disabilities (than blindness, visual impairment, or print disabilities), the deadlock that resulted in the last two sessions of WIPO’s copyright committee does not provide any mandate for the WIPO’s secretariat’s zealous push to ram through the broadcast treaty.
The 2014 WIPO General Assembly is emerging as the next battleground to set in place the road map for the Broadcast Treaty and WIPO’s future work on copyright limitations and exceptions.