SCCR30 (Day 4): Discussion heats up on discussions on copyright limitations and exceptions for libraries and archives

During WIPO’s discussions of copyright limitations and exceptions for libraries and archives at the 30th session of the Standing Committee on Copyright and Related Rights (SCCR30, the Chair (Martin Moscoso) presented a non-paper, intended to guide discussions. The Chair’s non-paper is a chart containing eleven themes including 1) Preservation, 2) Right Reproduction and Safeguarding Copies, 3) Legal Deposit, 4) Library Lending, 5) Parallel Importation, 6) Cross-border uses, 7) Orphan works, 8) Limitations on liability of libraries and archives, 9) Technological Protection Measures, 10) Contracts and 11) Right to Translate Works.

The United States, in a previous session, proposed a principles and objectives document (SCCR26/8) to guide discussions.

The following extracts from the transcript of day four of SCCR30, provides some insight into the morning discussions.

BRAZIL: Thank you, Chair, for giving me the floor once again. I’m to take the floor on this discussion, on the procedure of our discussions. Mr. Chair, this morning we have a group meeting with our regional group and the message that I was asked to convey is that we as a group are astonished that we are not being able to discuss the substance of exceptions and limitations because of procedural matters. We would like through you to request that any member that has this concerns that their positions would not be — would be hindered by your non-paper or would not be — would be in some way are have the discussion of the — have the discussion being stopped or not fully accomplished, we would like to — this delegation should clarify in which way their proposals would not be able to be presented or be discussed under your non-paper in order for the other members or even yourself to provide the — a response or a change — an eventual change in a non-paper. But so far, we haven’t had the clarification of what are the constraints that this very flexible non-paper poses to the proposals that we have in front of us. Thank you, Chair.

CHAIR: Well, thank you to the Distinguished Delegate from Brazil. I think that we will listen to the different statements coming from the different delegations here in order to see their reaction or initial reaction that these proposed tool has triggered, and I think that after that round, we can take into account the question posted by the Distinguished Delegate from Brazil, if, well, some concerns are expressed.

Of course, I will be ready to be engaged in the discussion through clarifying what is required to be clarified. Uruguay has the floor.

URUGUAY: Thank you, Mr. Chairman. Very briefly, sir, I would just like to thank you, sir, and to show the support of our delegation for this document, which was submitted yesterday. We think it’s a good tool to begin our discussions, because we think it’s unfortunate that we’re now back to procedural matters and we are not dedicating time to substantive issues for libraries and archives and many people who are making many efforts to come to one session after another to hear us speak of issues of form, rather than things that interest them, the people who come here. They have much to say. Their parties know about the topic and teach us, the Member States, how we can improve their situations. So I think that we think it’s very unfortunate.
We regret the fact that there are a few delegations that are questioning issues which go back to three sessions back in time. You have put down the topics. The topics that you have — that you have pointed out here are all topics we discussed in different meetings, even the 26th session, for example, and we seem to be starting from scratch. It would appear that we have never discussed these issues and even when you are making reference to the names of the topics. So I would like to tell you that we support your document. We support the topics that you have referred to, and if the discussion makes us understand that one topic will be appropriate or not, then we can take it out or not. We might include others or not, but we should stop talking so much about issues of procedure and move on to substantive issues which is what is important here.

So I would like to thank you, once again, and urge those delegations who have — seem to have some opposition to this procedure to remind you that these topics were discussed quite naturally without any problems at least until April 2014 — ’13/14.

CHAIR: I thank the Distinguished Delegate from Uruguay for his words and for giving — giving his view regarding the process that we will undertake.
It is, as I said before, this is a proposed tool, especially particularly designed in order to enter into that substantial discussion on the topics that are there included, which for sure will give us a chance to receive the different views we have with the collaboration of NGOs that are on the floor.
EU has the floor.

EUROPEAN UNION: Thank you, Chair, good morning.

We would like to — the EU and the Member States would like to thank you for your efforts, first of all, and we would like to give a cautious welcome to your paper. However, we note that our views on the process do not appear to be reflected in your paper. In particular, clarity open the outcome is not reflected and we need to have that if we want to avoid a repetitive discussion on outcome issues under every heading.

We would ask you to take the time over the next day or so to reflect on how you could bring opposition into focus in your paper. Finally, it might be useful if your paper was headed by a short introduction, explaining what, indeed, the intentions of this paper are.

Thank you.

CHAIR: Well, thank you for your suggestions and for the welcoming to the chart I’m submitting, even if it’s cautious, I thank you for the welcome reception of the document. I take note of your suggestions. As I said, I will keep on receiving contributions in order to try to use it immediately as a bridge to enter into a substantial discussion on the topics.

Frequent has the floor.

SOUTH AFRICA: We would also like to thank you for your non-paper. We support the use of this paper as a basis to move forward. As my colleague from Uruguay mentioned, there are a lot of experts that have come from far and wide, and who have valuable contributions to make to the problems that have been identified in in committee. Thank you, Mr. Chairman.

CHAIR: Thank you very much, and I agree that we are looking forward to receive that contribution from that part of the room.
Any other requests from the floor?
Brazil has the floor.

BRAZIL: Thank you, Chair, for giving me the floor. I would just like to recall all of us that in the end we have a mandate, I believe from 2012 that was also second in our program budget of this biennium that speaks on the discussion on international legal instruments in whatever form. This was a very flexible approach that all Member States decided to take together in order to discuss this very important issue. We, the members of the GRULAC, we always have that in the back of our minds when we come to this meeting and we like to also have the clarity, whether this understanding is shared by all members, whether they understand that we have a mandate that was agreed by all in 2012.
Thank you, Chair.

EUROPEAN UNION: Thank you, Chairman.

The intervention that has just been made by the Distinguished Delegate of Brazil, has — poses some questions. I mean, I could read out the mandate that we have, word for word, which appears in document WO/GA/41/14, which details the mandate that we have before us. It’s not clear what the relevance of the previous intervention from Brazil is to attempting us to move forward in this discussion. We have held back deliberately from talking about mandate issues because we knew that this was a sensitive issue and is interpreted differently by different groups and we didn’t think that we would be particularly productive. So we were rather surprised to hear Brazil take the floor to discuss the mandate issue.
Perhaps the you or the Secretariat could tell us where we stand with respect to the mandate, either now or at a later stage. Thank you

VENEZUELA: Chairman, we support the roadmap that you have submitted. We find it very unfortunate that those who have spent two and a half days listening to a topic which really is not as important to us as broadcasting as a country. We were here. We listened. We thought it was valuable. And the atmosphere in the room, particularly because of the way you have been conducting this committee meeting. And then when the topic comes up which is really very important for the developing countries, we once again start talking about issues which are not substantive.

So perhaps the next committee should invest itself and begin with exceptions and limitations so that we can then, when Wednesday comes up, those delegations that are not as interested in broadcasting, they can withdraw and go to other organizations because this an issue of respect. I think it’s important that there be a good atmosphere under the issues of topic and imitations, exceptions and limitations to developing countries but also developed countries, there are many people with those needs and those requirements. So I consider that the proposal made by Brazil on the issue of reviewing the map date is a proposal on Brazil. We agree with the mandate, and we think it’s quite clear as to how we should make headway, and where we can get to or arrive at.

Thank you,

SWITZERLAND: Thank you, Mr. Chairman. We would like to thank you for your efforts, trying to take into account of all the different views and concerns expressed. Our delegation supports the approach you just proposed. We propose that this — we think that this proposal is useful, fair, and will be able to continue our discussions on the substance without anticipating the results.

MEXICO: Thank you, Mr. Chairman. We would also like to join other delegations and support the work that you have carried out with this chart. We think it’s a very good way of initiate discussions without judging any results or outcomes. Thank you.

CHAIR: Thank you, Distinguished Delegate from Mexico. Thank you for the support provided by the two proposed and once again underscore that
without prejudging the outcome or the results, a topic, which I think is impossible to clarify and to be taken into account by the remainder of the delegation
Canada has the floor.

CANADA: Thank you, Mr. Chairman. I would like to join the voice of my delegation to those of other delegations in supporting your efforts and I would like to echo what was said by Switzerland and Australia.
Thank you.

CHAIR: Thank you very much to the Distinguished Delegate for Canada its very brief but clear statement.
US has the floor.

UNITED STATES OF AMERICA: Thank you, Mr. Chair. We won’t repeat what we said earlier yesterday with respect to proceeding. We do just want to reiterate, obviously, that we did submit a principles and objectives document which we do think does provide very helpful basis to discuss some of the topics that we are considering here today, but at the same time, we also do think that the approach that you had suggested with the topics in the chart would be helpful to Member States to hear about national experiences, about some of the topics in the chart and it does not presuppose an outcome in terms of a final resolution, and it would be helpful to discuss the chart on that basis also.

CHAIR: Thank you to the Distinguished Delegate from the US for welcoming the tool that we are suggesting as well, and I would like to tell you in advance that your submission of principles will, as the Distinguished Delegate from Australia has already suggested will be an immediate tool to use in order to give us clarity, which — because we used our approach in order to not wasting our time exchanging final suggestions when we don’t share a principle, try to find a principle as a good starting point. So be sure that if this approach finally — allows us to reach a consensus, we will use the tool that you have submitted, of course, and it does not mean that the different views will not be there as we have reiterated before.
Ecuador has the floor.

ECUADOR: Thank you, Mr. Chairman. Since our — as our delegation mentioned, and the delegation referring to exceptions and limitations, we think the tool that has been submitted by you, sir, is very important and it enables us to make progress with those topics, so we can continue discussing them, particularly exceptions and limitations for libraries and archives and also to mention furthermore, this tool is — could be a starting point which could open up possibilities to continue dealing with some issues which make a reference to other issues that have been submitted in other documents such as the one submitted by the United States.
And I think at a certain point in time, we will discuss those documents as well, that of the United States, et cetera. Thank you.

CHAIR: Thank you very much to the Distinguished Delegate from Ecuador and vice president of this committee, and for welcoming the tool that I’m submitting. And just clarifying that additionally, that we can use — when. We discuss, we can use the contributions that have been posted, for example, regarding the principles that are related to each of — or some of those specific topics.
Tanzania has the floor.

TANZANIA: Thank you, Mr. Chairman. We also support the way that the tool has been prepared, and I would imagine discussing this issues without something like this, and then Tanzania, on behalf of my — on behalf of my country, I would like to also commend this job done by the Secretariat of preparing of all of these documents for this meeting, as presented by the delegation from Nigeria on behalf of the African Group. We also support this modality and we know that this tool will help us to reach into a common understanding, taking into account of all different status of different countries.
Thank you.

CHAIR: Thank you very much to the Distinguished Delegate from Tanzania for its support for use of this tool, which are coming from your countries and on your views on the use of it and of the process.
Japan has the floor.

JAPAN: Thank you, Mr. Chair. I’m speaking on behalf — in my national capacity, and we — we can support what’s said by the Distinguished Delegate of Switzerland and Canada, Australia and the US. Thank you.

CHAIR: Thank you very much for the support showed by the Distinguished Delegate from Japan and I’m very pleased that hear that we are receiving continued support for this tool and I should understand this, that it doesn’t mean that we are going to remove the different views or even opposing views related to the different topics that a contained. It has been said by most of the delegations that support the tool, it doesn’t have any implication regarding the outcome and I should say that that would be understood as having a way to obtain an undesired outcome, something that I don’t want to bore you because I’m repeating myself several times.
Guatemala has the floor.

GUATEMALA: Thank you, Mr. Chairman. Since this is first time I’m taking the floor, I would like to congratulate you on your reelection at that of the chair. My delegation would like to commend your document which has been submitted to us for discussion. On this occasion, we consider that it’s an excellent tool to be able to kick off in a fruitful way, the discussions of this topic which is of great interest to my delegation. Thank you.

CHAIR: Thank you, Distinguished Delegate from Guatemala. Thank you for your support and for the tool used.

SINGAPORE: Thank you, Mr. Chair for your efforts and Singapore would like to join the rest in congratulating you on your reappointment. We realign ourselves with the Asia Pacific Group’s position and Singapore supports the Chair’s proposal which we feel would be helpful in guiding the substantive discussions going forward. Thank you.

CHAIR: Okay. I have not received more requests from the floor. So I think that it’s a good time to have a general comment on what I see and where — where we are standing.

First of all, at this point, I would not invite the NGOs to give their views, because we will receive views about the process, we want the substance which is a stage we would like to enter as soon as possible.

Secondly, we have received, in what I’m saying require absolute attention of all the delegations because it will be very interesting for me to receive your views that are being taken in what I’m going to say.

So I was saying that at this point, NGOs’ contributions will be taken but not for the procedural discussion, but for the substantial discussion.
Secondly, I thank all of you for your views regarding the usefulness of this tool. I think especially want to thank those who have considered it useful and a good way to discuss properly.

Thirdly, I also want to thank those of you who have expressed the need to clarify some of the intentions, even though my intention has been to be very clear as much as I have been in trying to clarify that this is not prejudging that we are going to have any undesired outcome, because we work on a consensual-based approach.

I can say that all of the different views at this stage are welcome. I have been requested to express that in an introductory paragraph of the chart, which I will not have problems to do since it will not give you something new to think about since it will reflect what I have just been saying during these days, yesterday, and this morning.

I cannot decide for you in the chart, the outcome of the discussion, which will prevent us to have such a discussion which such an understanding when we — after we enter in discussion topic by topic. I could foresee that in the discussions some of the topics will be removed because they are far from treatment or even related probably with the national exceptions for libraries and archives and I can foresee that after a rich exchange of views, we will have some evidence-based and information-based remarks in order to have clarity regarding the outcome.

Doing so initially will be against this approach which means that we all — we will just follow our prejudgment over this. And I think that this topic deserves a structured discussion on the things without implying any undesired outcome. I can say that repeatedly, as much as is necessary. That’s why I welcome different views — different opinions which have recognized that this might be welcome as a flexible or very flexible tool, which it is, I think.

I understand that this is not a time to think about procedures also because we have a lot of expertise here, especially in the back of the room regarding these important topics. So I propose you something. I propose you to do an exercise. The exercise that I propose you to do is that while I am committed to write a general product or introductory paragraph on the chart presenting what I’m trying to do, to start discussing the first topic which is on the list, which is preservation, since we have the chance to hear contributions from NGOs, since we have that topic included in the Professor Crews report. Since we have that topic included in the principles prepared for discussion by the US delegation and since it is a good exercise to start discussion and to test if this approach is going to work.

I will beg you when we enter into discussion, not to enter in a way that we will say initially, so we need a treaty or we think we need a treaty or we don’t need a treaty or we need such an outcome, because the methodology would be to first exchange the evidence, the situation, the nature of preservation in order to then have the chance to contrast that reality with us has been collected in the report, and then did and then have an exchange of some ways different ways to tackle those issues. And as you say that, all of those ways to tackle those problems might have different views as well, and some of them will be useful at this point, because they will use — for example, national experiences to tackle this and that will have some probably impact out of this room. Others will have different views on it and there’s respect for — I have to be respectful for the different views because this is an international forum.

All of us, we don’t think in the same manner. But what I can assure you is no one will impose any undesired outcome to others, because this is not the way we work.

I think most of the delegations who have expressed support for this view and I beg you to reach a consensus on that matter and start discussing on the first topic with taking into account their request for writing a statement that might be introductory, which is a tool. I should say that I will write and I will not put it in discussion because this is just a tool. It’s not, let’s say an agreement that we are going to have on a decision for this paper, non-paper, which is even a non-paper. It’s just to clarify what I have been saying during these days and to give some tranquility to those who might think that probably they don’t want to be pushed to an undesired outcome which is not my intention.

Saying so, I’m suggesting you to think about this, which means that I will write down are that general introductory and I will add it to the chart. And saying this and additionally to enter into an exercise of the first topic discussion which is preservation with the collaboration of NGOs which I’m expecting them to be prepared — to prepare a specific contribution for that topic, while we review the section of Professor Crews on that matter and what we receive different contributions on how to set a sort of principle related to that topic, in order to have clarify and if we can find some concerns to be tackled when we undertake the effort to — to — to enact something regarding preservation which concern should be tackled with — we have to be cautious of what when we want to tackle the issue of preservation.

So I think that that’s the best way to have clarity, and we cannot — that’s the outcome. The outcome, that does not mean that proposal or that proposal. The outcome is a mature understanding of each one of those topics in an evidence-based way.
Venezuela has the floor and then EU.

VENEZUELA: Thank you, Chairman. I have think this was a technological mistake, but since you have given me the floor, I was going to request that you don’t have a coffee break at half past 11. I request that we do not have a break at half past 11, because of the time that we had to waste due to one delegation and that we get down to substantive issues right now and until 1:00.
Thank you.

CHAIR: Thank you very much, Venezuela, for your proposal.
The European Union has the floor.

EUROPEAN UNION: Yes, thank you, Chairman. Just for me to understand — for us to understand well what you are proposing now, you said that you will be working on an introductory text on your proposed chart and that we would just move on to discuss the first subject according to methodology. This is my first question.

You have been mentioning throughout the morning this idea that under each of these items in the chart, you would see as the first sort of effort that should be made the attempt to find a consensus on a principle, from which then everything else would — would — well, the rest of the discussion would stem from. Is that correct? Thank you

CHAIR: Well, regarding the first question, yes, that’s what I’m suggesting, and regarding the second question, I think that a good way to proceed is to express this common understanding in a principle, which I have used before as a way to avoid different positions expressed in further ways and it’s always useful to try to set that common understanding that could have — that could be expressed as a principle. So I’m thinking that that is the way that we are going to undertake, and we have useful tools for that, for example, the — the US view on principles, but any other view regarding how can we shape that common understanding.

So the answer is, yes, we did clarification, but as you have requested, and I have said positively yes is that does not mean any implication on a specific outcome, meaning for outcome those different suggestions that have been posted until now in the previous. So it’s a methodlogiccal approach which I think will us give a chance no discuss properly.
China has the floor.

CHINA: Thank you, Chairman. Our delegation would like to thank the Chair and the Secretariat for the efforts they have made, in order to promote the examination of this topic. Our attitude is positive to the proposal you have made and I think it is a very useful one. Thank you.

CHAIR: Thank you to the Distinguished Delegate from China for his positive attitude to this process.

Okay. I don’t see any other comments. I have answered questions coming from the delegations. Is any delegation here opposing the approach I am going to undertake to receive your views are and I would say different views on this matter? I will be writing during the rest of the morning are introductory statement to the chart to be inserted into the chart, while not stopping the discussion on one topic that is not only there but is in the Professor’s report and in several documents that have been submitted, and in order to have — to find are — receive evidence from that, a common understanding of, and probably to set a sort of principle related to that, which could express a common understanding without in I implications on the outcomes that, of course, we have different views on that at this point.

And is any delegation against this? Are because this is the way I would like to proceed.

EU has the floor.

EUROPEAN UNION: I’m sorry — yes, thank you, Chair. Just for understanding and just to avoid misunderstanding, I’m sorry for asking this question, twice. You are now basically telling us that you would like to — have you illustrated your approach and you are now starting off with that approach; is that correct? So we will be starting to discuss the first item on your chart, according to the methodology that this chart is in principle underpinning?

CHAIR: The answer to that question is yes.
So I see no reaction and I would like to thank for this constructive way to proceed, which I think is very important, because it’s based on a good faith respect. EU has the floor.

EUROPEAN UNION (Oliver Hall-Allen): Yes, thank you, Chair. I’m not sure that we have complete agreement. And we would just like to, perhaps have a chance of a bilateral conversation with you during the coffee break to establish exactly where we are in our own minds. Thank you.

CHAIR: Okay. As I have announced before, I am ready to tackle any good faith concern that might arise. I’m aware that we are almost ready in the majority to start this discussion, but I would request with the further clarification I’m ready to do, if NGOs may be ready just in case we continue on this approach to give us thoughts about preservation and giving you the chance to review that — the results of the Professor Crews report on that matter and your views regarding this. And I will invite you, if we have the chance, which I — I try to be — I just want you to be prepared that if we have the chance to follow this road, to be ready for that, and starting the discussion, not saying, I want this and I don’t want this, but just listening, understanding and trying to be prepared to have that idea that the best way to tackle this issue are one or more, be positive for those different approaches that we might have.
I will use the time that we — because the coffee break is approaching, to talk bilaterally in order to clarify if some group of delegations are having some — the need of clarity for this, and I will be ready to do so as has been requested. However, in order to be prepared, I’m not waiting for a decision on this matter. I invite you to prepare your opinions which I’m very confident that we will try to do, even though I’m very respectful in the process, and I will clarify whatever is required to clarify.

In saying so, we are now — we now have the chance to — even though my distinguished friend and delegate from Venezuela has requested not to have coffee at this time, sometimes we need a coffee not only for having the coffee itself but for having some coordinations and I think that we will use that time for that reason as well. So we break for 15 minutes.