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Notes from the World Intellectual Property Organization

Sleepless in Geneva

THE INTERNATIONAL Federation of Journalists has suggested that it is time for the World Intellectual Property Organisation (WIPO) to get positive and live up to the promise of its mission statement, which specifies that it shall:

promote through international cooperation the creation, dissemination, use and protection of works of the human spirit for the economic, cultural and social progress of all mankind.[note 1]

In a statement delivered to 200 countries' representatives at WIPO's Standing Committee on Copyright and Related Rights on 16 December the IFJ said:

There has been much talk of "rebalancing" authors' rights... those who speak of "rebalancing" really mean weakening the rights of authors, in favour of their sponsors. To do so in the case of education, for example, raises serious questions about how education is to be achieved.

...It is commonly agreed that education should be an independent quest to extend and to impart knowledge. That requires not only access to works expressing knowledge, but to specialist educational works. The requirement of independence argues very strongly against those works being funded by patronage or by sponsorship - against them being the product of political, religious, or commercial interest groups, or just those with an idée fixe who write and edit for free.

The inventor of the modern dictionary, Samuel Johnson, summed up this argument succinctly: "No man but a blockhead ever wrote, except for money." The question confronting education is: "whose money?"

The only known way to provide independent educational materials is to pay for them, at the point of delivery, so that their authors (and, increasingly, performers) may be paid for the work they do, not for promoting someone else's message.

The statement went on to call for WIPO to take all parts of its mission statement seriously - and to be positive about authors' rights.

Monday 16 December, 17:20

The day contined with member states debating a proposed treaty on a new right for broadcasters. Behind the scenes, there are big arguments over the scope of the proposed new right. Positions ranging from it covering "the signal", narrowly defined, to the entire internets.

It would be a "neighbouring right" to authors' rights and copyright and the draft treaty opens by specifying that "Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright or related rights in subject matter carried by broadcast signals."

My personal concern is that the "mechanical right" in a sound recording has the same legal status, but it ends up being the "trump card" - before anyone can deal with the composer and performers they have to deal with the record company over its right in a recording. It "trumps" creators' rights. The effects of granting such a right to "broadcasters" over all internet content - but not to individual authors and performers and not to newspaper publishers, are difficult to predict but worrying.

Discussion is in fact a bit desultory: as always at these meetings, the positions of the European Union and US "trump" other states' views. The EU is sceptical about a wide right effectively . The US didn't say a word until the end of the day: it then said was "prepared to examime" a proposal from Japan that each country be allowed to decide the scope for itself - a standard US response to defend its own legal system from any international measures.

Tuesday 17 December

Debate over definitions of "broadcasting" and "broadcasting organization" continue: does it include "traditional cable TV"? This morning the US set out a compromise position: that there should be a single right, available only to "broadcasting organizations" including cable TV, and affecting the internet only in respect of simulcasting or near-simulcasting. But how near is "near" - a show delayed by an hour? A day? A month?

The mood after the US intervention suggests that WIPO may after all meet its stated goal of deciding in the autumn of 2014 to hold a Diplomatic Conference to adopy a Treaty on broadcasters' rights.

There's also a rather interesting discussion about whether broadcasters' rights apply only in respect of content which they have legitimately licensed: the EU says no, they should be for the broadcast signal.

One of Iran's representatives works in broadcasting and asks us to imagine that the content owner granted the right to broadcast over air only: the broadcaster should have the right to prevent rebroadcasting that it is not in fact authorised to licence.

Wednesday 18 December

And, after an hour of wrangling over the official conclusions on the protection of broadcasting organisations, SCCR moves on to limitation and exceptions to authors' rights for the benefit of libraries and archives.

The Chair introduces the session by saying (or rather by the simultaneous translator saying): "We are giving to the world the message that we are keeping to our purpose of balancing and strengthening a balanced system of copyright and related rights. That could almost be a response to the IFJ's statement on Monday.

The honourable representative of Poland observes that "It is not indispensable to enter into treaty on limitation and exceptions" which is the most elegant way of saying "f*ck off" that I can remember. Japan, speaking for the non-EU industrial countries, says it "believes that due recongition and respect should be given to differences between member states' traditions and legislation... [the Group's] first priority will be... an exchange of experiences between member states." which also suggests that it is not indispensable to have a treaty.

The European Union announces that "we are not willing to consider a legally-binding instrument in this area" which is utterly klar. As is the US: "We do not support an approach including norm-setting through treaty provisions."

The African and Latin American groups believe that it is, er, indispensable. This is going to turn into a decade-long argument in which Google and whichever corporations become its successors take on the mantle of the needs of developing countries' antipathy to media corporations - in order to argue that they are the corporations that must be allowed in international law to take what they want and sell adverts alongside it.

And at the end of the day Russia says "we must not lose sight of the main person who is the reason for us all coming together here - the author! ... When we are setting the possibilities for libraries to make archive copies we must not permit them to make commercial copies."

Thursday 19 December

The Chair has proposed, on exceptions for libraries, that those for the purposes of archiving, exceptions should be dealt with "under certain circumstances yet to be defined and discussed".

Belarus, Azerbaijan and, I understand, Ukraine have repeated the Russian sentiment yesterday.

The rest of the day was pretty tedious, with the countries proposing a new Treaty repeatedly saying how wonderful libraries are and European delegations repeatedly saying that there was no need for a Treaty.

Toward the end, while discussing how "lending" would be defined were there to be an international instrument, Greece asked of the African Group: "If someone can borrow a movie from a library, even for a limited time, over the internet, without even going to the libary, why would they ever go out and buy a copy?"

The answer didn't satisfy them: "I don't believe that the missions of most libraries in the world are to deliver market-available works in your computer at home permanently."

At this point the proponents stared arguing that their proposal was a necessary part of the "Development Agenda" - which would seem to suggest that their goal was indeed to make the products of evil developed-world corporations available for free.

Friday 20 December

The opening of discussion on exceptions for education: as I understand it, statements of positions much as those above: the "development agenda" deployed to argue for weakening the rights of .

At 18:17 it all gets a bit warmer, with Brazil and India sharply informing the Chair that there is no consensus on the working programme for 2014. The issue just before this was whether to adopt the Central European proposal for three 5-day meetings of SCCR (instead of the normal 2) with 9 days devoted to broadcasting; and whether to have an "intersessional" meeting on exceptions as well . If you're losing the will to live part-way through that sentence, you have a good flavour. I keep thinking we've gone into Catholic theology with an intercessional meeting. Nevertheless, the argument that's ostensibly about an agenda for April is really about whether to press on toward giving libraries rights in international law, or not to press on. Also, there are issues of pride.

And then Brazil drops into this news, or claim, that the US and the EU are proposing new topics for debate at WIPO.

At 18:56 the Chair proposes, that the timetable for the next session be 2.5 days for broadcasting; 2 days for exceptions (including those for education if time) and half a day for arguing about the conclusion document. This is accepted by applause.

...

At 21:26 Brazil is arguing that a view with which it disagrees should be credited to the EU in the official conclusions of the meeting: and Ecuador that the whole point should be deleted.

"It was interesting to hear this exchange" says the chair. Isn't diplomatic language wonderful.

Next steps

See Contracts in question - we need information.


[note 1] This is the wording of the mission statement of the World Intellectual Property Organization. The IFJ would recommend "... all humanity".

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