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UN body debates copyright

The thrillingly-titled World Intellectual Property Organization Standing Committee on Copyright and Related Rights, a United Nations organisation, is holding its 19th meeting in Geneva from December 14 to 18 (WIPO SCCR 19). These notes from inside the meeting are, unfortunately, infected with the ponderous phrasing that diplomats are forced to employ. On the other hand, it gives a flavour of how it works...

On Tuesday 15 December SCCR started discussing a proposed Treaty setting out "exceptions and limitations" to copyright that should be included in every country's copyright and authors' rights law.

There has been intense lobbying over the past few years, headlined by the World Blind Union and library associations. Their overt goal is that international law should allow copying of copyright works for the purposes of access by people with disabilities, for libraries and for education, including online libraries and distance education.

They are backed, however, by a slew of self-declared "consumer" organisations, some of which appear to think copyright itself is evil.

One of their major concerns is that, for example, a Braille book produced in Chile should be exportable to Spain. At the moment, they say, national laws on books for the blind permit accessible books to be produced only witin the one nation. But for some of their sighted backers, the point appears to be to undermine the entire idea of a licence to use a work in a defined territory - especially since an "accesible" book is increasingly likely to be an audio-book or an e-book.

We spent most of Tuesday morning discussing the wording of a questionnaire that WIPO will be sending to member states' governments, asking about the state of their existing exceptions. The developed countries all said it was too complicated and asked governments for too many opinions. Less-developed countries - especially from South America - wanted it to do just that. The WIPO Secretariat declared that they would clarify what questions are factual and which seek opinions, and that governments have until 29 December to submit concerns about particular questions, and then it will be distributed.

Limitations and exceptions

Feelings run high. As the meeting broke for lunch the representative of Knowledge Ecology International - mission statement "Attending and mending the knowledge ecosystem" - yelled at me that I was "fundamentally dishonest" for (as far as I could make out) not supporting his conviction that an exception to copyright was the only way to guarantee blind people's access to knowledge: "Are you going to betray the blind people?" I replied that I would be interested to discover the true motives of some of the groups claiming to support blind people.

Brazil, Ecuador and Paraguay are here to propose a new WIPO Treaty making international law setting out exceptions to copyright under the banner of the visually impaired. The last draft I saw, at this meeting in May, was very loosely worded. [Checked: that's still the version technically on the table. It's so loosely worded that in places it may as well say that anyone can do X, Y, Z or anything else. ]

Sweden, speaking for the the European Union, "Strongly supports the WIPO Stakeholders' Platform". This is where publishers and representatives of the visually-impaired, etc, are meeting to work out solutions to give access through licences, more than an exception to copyright. Sweden reminded us that "there are well-functioning systems - it is important that we benefit from this experience" and suggested that WIPO prepare "an information document outlining such successful examples".

The Commission of the European Union gave a reading from the relevant EU law, the InfoSoc Directive, and described meetings about future policy and the Commission's Reflection Paper.

The UK described the working system in this country, with publishers and the visually impaired working together to deliver accessible documents, and the need for funding for transcription. It "Recognises the need at an international level to make sure that works made available in the UK can benefit visually impaired people overseas and vice versa."

This does not reflect huge keenness in Brussels or Westminster for exceptions to copyright.

New Zealand supports the intention of the treaty, to provide accessible formats and transfer them across borders. "However studying the Draft Treaty has raised some concerns."

The weightiest speaker

The US expresses willingness to back a Treaty, or something, later, with the quid pro quo that other countries work with it to enforce copyright.

It is in favour of "some form of international consensus on basic exceptions ... for people with print disabilities. This could be a model law [for states to adapt and pass]; a WIPO joint recommendation; or a [full-blown] multilateral treaty. A first goal should be international consensus on free exportation and importation for special format materials [That is, tightly-defined rules - an implicit criticism of the draft text.]

The US "is committed both to better exceptions within copyright law and better enforcement of copyright law - as we work... we will ask countries to work with us for improved enforcement of copyright law." [Emphasis in the delivery as I heard it.]

The US and the EU are the heavyweights in the room. There will be no agreement without their support - which is why everyone pays rapt attention and types furiously when they speak, and makes general notes such as that the African Group generally supports the idea of a Treaty but wants it to be more wholistic. Russia observes that the issue "can be tackled in many ways, for example through a model law or through recommendations - which can be made accessible in as short a time as possible."

The states' representatives wrap up and I am called first among the non-governmental organisaions to deliver the IFJ presentation to the committee. Shame, really, because it was intended as a reply to the emotive rhetoric.

Wednesday

The meeting comes to order 51 minutes late. We've been waiting for the Latin American and African 9am meetings, which started at 9:55...

Rumours are flying (or being sown?) in the corridors that the EU is about to announce that, yes, it will support an "instrument" on copying for people with print disabilities. "Instrument" is a deliberately vague term that doesn't mean "treaty" - the majority of the content of a diplomatic sentence is contained in the things it clearly might have said but, clearly deliberately, didn't.

A publishers' represenative appreciates my intervention and reads my eyes: "So, you're asking yourself what you said wrong?"

NGO interventions continue with emotive rhetoric. Also, representatives of publisher and author interests referring to the international law governing when it is allowable to make an exception to copyright: the "three-step test". As expressed in the World Trade Organization's treaty on Trade-related aspects of Intellectual Property RightS (TRIPS), this allows for exceptions in:

  • certain special cases
  • which do not conflict with a normal exploitation of the work and
  • do not unreasonably prejudice the legitimate interests of the rights holder.

"certain special cases" means that the exception must be narrowly-drawn and specific about what is allowed.

The EU made no statement.

The Chair provisionally concluded that:

  • WIPO will continue the work of the Stakeholders' Platform
  • consideration of the BR/EC/PY proposal will continue at the next SCCR
  • one country's proposal referred to a work program for the benefit of persons with print disabilities, including the possibility of drafting detailed joint recommendation for the [WIPO] General Assembly
  • that there was a request for the Secretariat to prepare information document on best practices in member states

"One country" in international diplomacy contexts interestingly means "the US".

Performers' rights in audiovisual recordings

The Ukraine leapt in with a presentation on perfomers' difficulty in getting paid.

Sweden, speaking for the EU, is "pleased this is on the agenda... thanks Secretariat for its work... sees positive encouraging developments... it is of great importance to achieve consensus on an international legal framework with a view to reaching an agreement as swiftly as possible." No commitment, then.

One effect of a Treaty would be to give actors, dancers and musicians appearing in films the right in international law to a credit and - the producer's nightmare of a crowded editing suite starts here - a certain amount of right to defend the integrity of their performance.

Senagal, for the African Group, noted that the (failed) 2000 diplomatic conference on performers' rights « preuve que c'est possible... toutefois preserver les droits d'individu a l'information » - I mean "proves that a Treaty on performers' rights is possible, while at the same time maintaining the right of the individual to access information." and they are in favour of the convening of a conference diplomatique.

Mexico urges SCCR to continue to discuss... with a focus on progress on transfer of rights leading up to a diplomatic conference to negotiate only those aspects which have been left outstanding. (The 2000 Conference agreed 19 Articles of a 20-Article Treaty but foundered on the US insitence that the Treaty should include a US-style presumption that performers' rights were transferred in full to movie producers.)

The Chair reminded SCCR that it was discussing a third attempt to give performers rights: this was discussed in the negotiations for the WIPO Performances and Phonograms Treaty (WPPT) in 1996, but audiovisual performers were in the end excluded. Literally, "rather important is now to take a stand on the question of what ground work should continue - whether the 19 articles that were adopted could serve as the basis of continued work."

Then the US spoke. It "reaffirms its longstanding support... in general the US supports the proposal to establish a work programme and timetable; supports the proposal to move toward a reconvened diplomatic conference" on a specific basis:

  1. adopt the results agreed on at the 2000 conference; the US understands that some are concerned that the 19 Articles are almost a decade old, but if we can move we should move forward;
  2. seek a vehicle to address the transfer or "consolidation" of rights - this is about recognising how different regimes and business practices allow consolidation of audiovisual rights - which is basic to how all audiovisual production works" and "is prepared to discuss all possible ways" to resolve this.

SCCR "should only commit ourselves to return to these chambers when we are certain we are going to succeed on that third attempt."

Japan reiterated its commitement to move forward. Angola raised an entertaining diversion (thank you translators!) about who was at the informal consultation and why they were not told... apparently they were. Look in your junk-mail folder.

China supports proceeding from the 19 Articles but some things may have changed; we should consider whether any need updated, and then convene a diplomatic conference as soon as possible but only when all necessary conditions are fulfilled".

So the conclusion is that there will be a diplomatic conference to negotiate the final text of a treaty as soon as the US can come up with a formula that works at home. Over coffee, it's clear that this will mean a Treaty allowing "national treatment" - that is, allowing US law to continue to assume that all performers' rights are automatically transferred to those who hire them.

Broadcasting

There is a standing proposal to craft a Treaty giving broadcasters rights (at least) to act against piracy of their signal. It has to date foundered on the US insisting that it cover "webcasting" - which in the brave new electromagic age could mean the whole of publishing and public virtual performance from poetry to pachinko tournaments.

The Chair asked for comments and there was a very long pause, followed by a few content-free interventions. He interpreted this as a complete lack of enthusiasm for such a Treaty. Actually, it may be because we're ahead of time and the regional groups haven't decided what to say this year.

Thursday

More NGO presentations in the morning. No surprises.

After a three-hour break to allow regional groups to discuss them, we're discussing the Chair's draft conclusions. On exceptions, it talks of Joint Recommendations - a measure short of a treaty - that would encourage rather than compel member states to implement exceptions for people with visual disabilities.

At 17:30 local time, with the session due to end at 19:00, Thailand, speaking for the Asian Group, proposes to widen the decision on exceptions to include a general commitment to work on libraries and education. Insert paragraph 4(b) in the conclusions:

At the next session the committee will prepare a work programme on copyright exceptions and limitatations in the area of educational activities, libraries, archives and the benefit of all persons with disabilities. This will be based on the analytic document and the responses from member states and the EU to the questionairre.

Long pause. No-one wants to speak against it, though it is a wrecking amendment for the strategy being followed by the powerful participants, primarily the US. Switzerland, representing "Group B", which is the powerful countries, has a brainwave: "There seems to be a technical problem with this proposition." Replies to the questionairre won't be in by the next session.

This is what passes for drama at WIPO.

This was followed by much more argument as the South American, African and Asian groups tried to reinsert the proposal into practically every paragraph of the official record of the decisions of SCCR. It's turned into a proper North-versus-South ding-dong. But there's little point in staying - it's not as if the EU needs one journalist's support to stop it folding its position.

Whatever is adopted will appear the WIPO page on SCCR 19.

Last modified: 17 Dec 2009 - © 2009 contributors
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