Back in, back in Geneva - international © again
THE WORLD Intelelctual Property Organization is a United Nations body charged with looking after copyright (authors' rights) as well as patents and trademarks and so on. Its Standing Committee on Copyright and Related Rights is meeting in Geneva on the week starting 14 November 2016.
The story so far
The main items on SCCR's agenda are:
- A Treaty to give broadcasters the right to authorise (or to obect to) re-transmission of their signals. This would be a "neighbouring right" to copyright, analagous to the "mechanical right" that a record producer has in the recording of a piece. The variegated proposals all insist that these neighbouring rights have no effect on the rights of the writers, composers and performers. The problem I see is that they act as "gatekeeper" rights. Before you talk to the creators about using a particular piece of work, you have to talk to the owner of the neighbouring right. The biggest
- Treaties codifying internationally "exceptions" to copyright under which educational institutions, and libraries and archives, can make copies without permission (and perhaps without payment).
The proposed Broadcasting Treaty has been on SCCR's agenda since 1999 (at least). The opening of the meeting resembles a Philip Glass composition: haven't we heard that phrase before, just now, and a decade ago?
Opening remarks to a thinly-attended hall
The Latin American group is in favour of the wide exceptions to copyright for the benefit of libraries and archives, and for education, that they have promoted. They want any new right granted to broadcasters to be very narrow. The Central European Group, by contrast, deploys the wonderful diplomatic phrase "will need more time to study" concerning the latest iteration of the exception proposals. It wants a new right for broadcasters that "reflects present reailities" and extends to online "broadcasting", which may be difficult for authors.
Turkey is speaking for "Group B" - the industrialised countries, broadly speaking. The delegate spells out "will need more time to study": it "looks forward to more discussion at the next session of the Committee". It supports, strangely enough, the US proposal on definitions in a broadcasting treaty.
Given events in the US, China's position will be interesting. "It is a fact that there are divergences on some issues... our delegation will continue to participate actively..." Which is to say: we'd be rather surprised if we agreed to anything this week.
The UK is speaking for the EU. On broadcasting, the EU wants a treaty that deals with broadcasting organisations' current and future needs... that reflects the technological developments that have taken place in the 21st century. That would be a wide definition, then. In our view discussions on exceptions "would be most useful if they aimed at a more thorough understanding of the issues at stake"and exploring what can be done under existing laws. We "do not see a need for any new binding instruments in this area."
The US delegation - to whom my sympathy in their current predicament - proposes further discussion on, for example, what organisatios would benefit from the new right. "As we move through the process of an orderly transition from one administration to another... if you find us a little bit quieter at this session it is because we are listening carefully as we take stock..."
Iran is determined that any Treaty should protect only traditional broadcasters and not "future undefined technologies".
The EU seeks not to disagree too vehemently. Discussion continues on the "object of protection" - the broadcast signal, or something wider. Still no very substantive discussion of whose signals or broadcasts are covered.
16:11 informal consultations
Informal discussions among member states mean: I can listen remotely but I cannot report anything that is said.
Informal discussions continue until at least lunchtime. It is probably not a breach of confidence to say that they remind me of a particularly detailed discussion with sub-editors.
The Chair reports back on the extensive informal discussions. They've refined defintions of "broadcast", "programme", "retransmission" and so on. But they've not got to the key question: what organisations would be "beneficiaries" of the new right. More "informal" discussion tomorrow.
And just before lunch the Chair reports back and allows Non-Governmental Organisations to make comments. For the International Federation of Journalists I raised three points:
- The IFJ recognises the desire of broadcasters to codify internationally the rights they already have in many member states to object to commercial unauthorised use of their programming.
- We are concerned, however, that the laudable desire to be "technologically neutral" may accidentally create new rights that are much wider than intended. There is a suggestion that the definition of "broadaster" specifically exclude those who first distribute material on computer networks. A proposed Treaty that did not do this would risk adding a new right on top of everything except handwritten manuscripts and chamber music recitals. So if there is to be a Treaty it must make this exclusion.
- Even then, there is a risk of a "gatekeeper" effect, whereby anyone wanting to make use of a broadcast work must contact the broadcaster before they ask permission of authors and performers. This risk exists in practice however strong the protestations in the (draft) Treaty that the (proposed) new neighbouring right for broadcasters does not affect rights in the creative works that are broadcast. We urge distinguished delegates to do their utmost to avoid it.
I refrained from suggesting that it would be a good idea to agree a Treaty while there are still "broadcasters".
Wednesday, after lunch
The new Vice-Director-General Ms Fordham proudly announces WIPO's "Open Access Policy" to provide free online access to all its publications - and to photos on Flickr and video on YouTube while retaining copyright. Will use the Creative Commons Intergovernmental Organisations Licence. (Note to self: one day, research the effects on the rights of the authors, especially photographers & videographers.) That's symbolically a big win for Creative Commons.
We are now listening to a professor reading highlights of a 1009-page study of what exceptions for education apply in what jurisdictions.
Near the end of the second hour of a "brief" presentation he declared "numbers do not lie". "They do if you confuse ordinals and cardinal numnbers" I spluttered.
[That is to say: the study counts the number of clauses in national laws dealing with different kinds of exception. But these are all different. Listing them is like saying "Here are sheep: Susan, Jaques and Kali." That is what mathematicians call an "ordinal" listing. A "cardinal" list is "first sheep, second sheep, third sheepuot;. (And an example of an "integer" is: "Here are 3 sheep"). The report does statistics on the distribution of the number of clauses in the law of different countries. That's completely meaningless! Unless, that is, the authors have some revolutionary method of reducing legal texts to numerically equivalent units. Time to read the first few hundred pages... and I never expected to be applying number theory here.]
The EU says that it welcomes discussion on how the existing framework of international law can support libraries, archives and education (that is, nothing like a Treaty is required). Licensing plays an important role, either alongside exceptions or instead of exceptions - so the EU supports income to authors through collecting societies.
China notes that it already has provision in its law; it is ready to take constructive attidudes to the work of this committee. India, for the Asian-Pacific group, is in favour of harmonising national laws (that is, is for something like a Treaty) and also of exchange of best national practices (that is, measures to help countries make their own laws). The African group is for international exceptions (and has in the past submitted proposals amounting to "do what thou wilt". The Latin American and Caribbean group is making the proposal. Brazil speaks in favour of it referring to the "high price of academic books" - with which everyone can sympathise, especially the many lawyers here.
A discussion of exceptions for the benefit of libraries and archives. Same as above: Latin America and Africa, plus Iran and others, want maximum exceptions in international law. The EU says it cannot support the call for a Treaty but it can help countries amend their own laws.
Breaking the repetition, the International Federation of Journalists asks for a new direction, asking WIPO "to re-focus on supporting creativity"
Interestingly, all the libraries' presentations and some of the countries supporting them focus on indemnity from liability for their activities. The US did the diplomatic equivalent of a long "hmmmm" by reporting what its law already states.