On Thursday, 26 October 2017, the World Intellectual Property Organization (WIPO) published a scoping study (SCCR/35/4) on the impact of the digital environment on copyright legislation adopted between 2006 and 2016; the author of this study is Guilda Rostama, Ph.D. The mandate for this study emanates from a proposal of the Group of Latin American and Caribbean States (GRULAC) first tabled at the 31st session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) in December 2015. At SCCR33 in November 2016, WIPO Member States agreed to the following:
The Committee discussed the Proposal for Analysis of Copyright Related to the Digital Environment, document SCCR/31/4, submitted by the Group of Latin American and Caribbean Countries (GRULAC). Members of the Committee and observers acknowledged the importance of the subject and offered further comments on and reactions to the proposal. The Committee supported the proposals that were made by some delegations to commission a scoping study on the impact of digital developments on the evolution of national legal frameworks over the last ten years.
The link to the study can be found here: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_35/sccr_35_4.pdf
Not including the appendices, the report is 45 pages long. KEI will provide a further analysis in due course. In the mean time, the findings of the study are reproduced here:
According to the mandate given by the SCCR, this scoping study has focused on the general directions that Member States have taken to adapt their copyright legislation to the digital environment in the past ten years. The main objective of this document was to describe the trends and strategies adopted by Member States to adapt their copyright legislation to the digital environment, the aspects of which have been identified together with the WIPO Secretariat.
The mapping of WIPO Member States revealed that almost hundred Member States have adopted and/or updated their copyright laws between 2006 and 2016.
A vast majority of Member States have adopted provisions to address the challenges of the digital environment, in particular regarding computer programs, limitations and exceptions, and digital rights management. For instance, out of a total of 94 Member States:
– 96% of Member States have provisions on computer programs;
– 71% of Member States have wordings that mirror the provisions or are inspired by WIPO-administered Treaties concerning digital rights management; and
– 43% of Member States have adopted provisions on limitations and exceptions specifically adapted to the digital environment, addressing for example e-lending activities of libraries, or online education. 23 Member States also focus on restricting the protection against circumvention of technical protection measures. These exemptions refer to the interoperability of computer programs, encryption research and studying of flaws, protection of personal data, private use of works, and the possibilities for libraries, archives and educational institutions to benefit from the limitations and exceptions they have been granted by law.
Some Member States have provisions that are specifically drafted to adapt the economic rights to the digital environment, such as the right of reproduction in digital formats and the making available to the public in interactive networks. They address for instance the question of digital archiving and temporary reproductions. Some Member States have chosen to highlight either the fact that a communication and making available to the public is done interactively, or through the Internet or focused on electronic or technological aspects.
Only few Member States have gone beyond the provisions of WIPO-administered Treaties, by ensuring that rightholders are remunerated appropriately in the digital environment, for instance by implementing a specific remuneration for digital communication which may be granted, as the case may be, to authors and/or performers and/or producers of phonograms.
Finally, one may observe that topics not covered by WIPO-administered treaties are rarely addressed in the copyright laws of the Member States. Such topics include the liability of internet intermediaries, the questions of user-generated content, data mining or computer-generated works.
The preliminary findings of this scoping study are meant to provide a basis for consideration by the Committee.
The release of this timely study should prove an impetus for WIPO’s careful consideration of how the Organization responds to copyright in the digital environment at the upcoming meeting of the SCCR in November 2017. The WIPO scoping study on the digital environment is expected to be discussed under agenda item 8 under “Other Matters“.