Unpacking the WIPO SCCR Limitations and Exceptions (to copyright) agenda

The World Intellectual Property Organization (WIPO) divides its norm setting work among several committees. The 17th meeting of the Standing Committee on Copyright and Related Rights (SCCR) met last week, and considered several topics, including the first in-depth effort to consider a work program on limitations and exceptions for copyright. This work program, first proposed formally by Chile (SCCR/13/5) among WIPO member states, is a work in progress. In the initial Chile proposal, the work program would include:

1. Identification, from the national intellectual property systems of Member States, of national models and practices concerning exceptions and limitations.
2. Analysis of the exceptions and limitations needed to promote creation and innovation and the dissemination of developments stemming therefrom.
3. Establishment of agreement on exceptions and limitations for purposes of public interest that must be envisaged as a minimum in all national legislations for the benefit of the community; especially to give access to the most vulnerable or socially prioritized sectors.

In subsequent discussions at the SCCR and elaborations by Chile and other countries, including most recently the March 2008 Proposal by Brazil, Chile, Nicaragua and Uruguay for Work Related to Exceptions and Limitations, (SCCR/16/2), some sectors and areas have been identified for particular attention, including visually impaired and other persons with disabilities, education (including but certainly not limited to distance education), libraries, archives and innovative services.

The communities and sectors that are specifically identified in the SCCR/13/5 and SCCR/16/2 are diverse, as are the prospects and timing for meaningful actions at the SCCR. There is a need in each area for the relevant stakeholders to focus on the SCCR work program and to propose concrete asks in terms of a research or norm setting agenda.

It seems likely that some sectors and communities will be faster than others in identifying their concerns and proposing solutions. At the head of this list is the visually impaired and disabled community, led at the SCCR by the World Blind Union (WBU). The WBU has been making concrete asks of the SCCR since SCCR 7 in 2002, and at SCCR 17 the WBU, collaborating with the DAISY consortium and many national organizations and non-profit publishers of accessible formats, proposed language for a treaty for blind, visually impaired and other disabled persons.

None of other other sectors and communities are as far along as the visually impaired and disabled communities, in terms of analysis or requests for norm setting.

In some of the other areas, particularly libraries and education, there is considerable interest by some delegations to undertake information gathering and analysis, but little in the way of strategic asks from the effected communities — so far. This should change, as the libraries focus on the SCCR work program, and WIPO completes a new study on the education sector, to complement the four earlier studies it has done, including those on the visually impaired and library sectors.

Lagging behind considerably is the SCCR work on innovative services. The tech sector itself has largely ignored the SCCR work program on L&E so far. KEI expects to tech sector to become more involved in the SCCR work, but it also will be quite challenging for the tech sector to develop an internal consensus of the asks for the SCCR work program — even in terms of research. The U.S. Google Book deal and various litigation settlements over user generated content also raises questions about the shifting interests and perceptions of key technology sector members.

KEI supports the notion that the SCCR continue with the big package, as described in SCCR/13/5 and SCCR/16/2. Work should proceed on parallel tracks, allowing some norm making to take place in sectors where consensus is more mature. Certainly the visually impaired and disabled community is ready now for norm setting — and probably has been for six years. Other sectors and communities should look at the SCCR work program as an important opportunity, and provide more guidance in terms of the concrete areas for action.

At the SCCR 17, IFRRO, representing collection societies, attempted to displace the leadership of the disabled community by proposing, without consultation with the disabled community, a WIPO forum on best practices for licensing, while it circulated a statement in opposition to statutory L&Es. The European Union and the United States supported this effort, as did some WIPO staff. This was a bold effort by IFRRO to turn WIPO away from work on L&E, but it may have another effect. Now IFRRO has opened the door for WIPO to look at licensing practices, within the SCCR work program on L&E. This may legitimatize efforts to raise issues relating to the control of anti-competitive practices, or the implementation of Article 40 of the TRIPS. Certainly unfair licensing terms and excessive prices are an issue for libraries these days, and it will be interesting to see if libraries include this in their asks to the SCCR, particularly given the extent of language in the WIPO development agenda on the control of anti-competitive practices.

Another area for attention will be the WIPO research and analysis agenda associated with the L&E work program. In SCCR/16/2, a very detailed and interesting research agenda is proposed for the education sector:

b) At a minimum an additional WIPO study should be prepared during 2008, addressing the following issues related to exceptions and limitations for educational purposes, taking into consideration current national practices as well as international law:
i) How do educators use copyrighted works for the purpose of education?
ii) How do educators perceive current copyright norms affect their ability to provide educational services?
iii) What are the requirements under which educational institutions and individuals providing education, or receiving education in both developing and developed countries, can qualify for uncompensated utilization of works?
iv) What are the conditions or requirements under which compulsory licensing systems for educational purposes could be implemented in developing countries?
v) How can remuneration for compulsory licenses that are justified for educational purposes be reasonably calculated and fairly distributed?

Stakeholders should think about the types of data gathering, research and analysis that would be appropriate for the WIPO Secretariat, and possibly raise these issues in the context of the SCCR. One immediate task will be to think about the proposed questionnaire on L&E that was requested by Chile, and that will be discussed at SCCR 18. The questionnaire has already been politicized by the EU and the US, and will be seen by some as framing in some ways the future work program for the SCCR.