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TWN Info Service on Intellectual
Property Issues (Mar08/05)
15 March 2008
Third World Network
Please find below news story on the discussions that took place at the
WIPO Copyright Committee last week particularly on limitation and exceptions.
It was first published in SUNS and is reproduced here with permission.
Our past news report on WIPO are available at http://www.twnside.org.sg/IP_wipo.htm
Best Regards
Sangeeta Shashikant
Third World Network
email: ssangeeta@myjaring.net
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WIPO: Work plan on "limitations and exceptions" proposed at
copyright meet
Published in SUNS #6434 dated 13 March 2008
Geneva, 11 Mar (Riaz K. Tayob) -- Developing countries have proposed
that WIPO adopt a work plan to examine "limitations and exceptions"
(L&E) to copyright, which would lead to establishing a "consensus"
on mandatory minimum levels of L&E for member states.
The work plan was proposed and discussed at a meeting of WIPO's Standing
Committee on Copyright and Related Rights that is taking place on 10-13
March.
The L&E work plan was proposed by Chile,
Brazil, Nicaragua and Uruguay. The plan is based on and
a follow- up to an earlier proposal on L&E by Chile in 2005.
The advocates of the work plan consider the strengthening of L&E
to be needed in order to have a better balance between the rights of
copyright holders and the public interest.
The meeting is also discussing the long-standing question of whether
to proceed with a diplomatic conference as a prelude to establishing
a new WIPO broadcasting treaty. In early discussion, countries for and
against intensifying negotiations on a possible treaty reiterated their
previous positions.
Almost the entire first day of the three-day session was spent on whether
to retain the Chair of the committee, Finland's Jukka Liedes, who has held
the position for many years. Many members have been dissatisfied with
his performance, especially in chairing discussions on a broadcasting
treaty in the past two years. Eventually, he was re-elected as Chair
late on Monday afternoon.
Chile's 2005 proposal (SCCR/13/5) sought the identification of national
models and practices concerning limitations and exceptions (L&E),
analysis of L&E and the establishment of an agreement on setting
mandatory minimum levels of L&E in all countries, especially with
regard to increasing access (to information) in sensitive sectors and
for vulnerable people.
Its new proposal on a work plan includes eventually a "formal recognition
and commitment" by WIPO members states (perhaps through a General
Assembly resolution) that establishes minimum mandatory limitations
and exceptions, particularly with regard to educational activities,
people with disabilities, libraries and archives, and exceptions that
foster technological innovation.
The 2005 proposal provides the rationale for strengthened L&E provisions.
It says that there has been a consensus on copyright for over a century.
Additionally, new rights for rights-holders have been recognised progressively
and previous rights have been extended to "new forms" in the
digital environment.
For instance, the WTO TRIPS (Trade Related Aspects of Intellectual Property
Rights) agreement incorporated the rental right for the first time while
the WIPO Internet treaties incorporate rights of distribution. Extending
these rights-holders interests "has not been as marked for exceptions"
needed to establish balance in the intellectual property rights (IPRs)
system, especially the digital environment.
The proposal stressed that L&E have always co-existed with the rights
of rights-holders. They are inherent to the IPR system. L&E confirm
the need to harmonize copyright with the other values of the legal system;
even where a right applies to a specific work, certain uses are exempt
from requiring authorisation or payment for use to the rights-holder.
Chile's
2005 proposal notes that there is a disparity in the scope and depth
of L&E amongst countries. This lack of a minimum common international
standard can inhibit making available to the public protected material.
In particular, it limits international activities of public interest,
like distance learning.
Member states of the United Nations Educational, Scientific and Cultural
Organisation (UNESCO) have already agreed to update national legislation
to balance the interests of rights-holders and the public interest.
In the new proposal on a work plan, the co-sponsors (Chile,
Brazil, Nicaragua and Uruguay) said the objective of the
work plan was to achieve "a consensus on minimum mandatory limitations
and exception particularly with regard to educational activities, people
with disabilities, libraries and archives, and exceptions that foster
technological innovation."
The work plan should consist of four phases. First, the SCCR with assistance
from WIPO and interested stakeholders should undertake specific research
and exchange information on the availability, scope and nature of L&E,
in countries and internationally. Second, this should also be done for
the interaction between L&E and contractual practices and digital
rights management.
Third, the SCCR shall discuss and evaluate the justifications and implications
of L&E in nationally prioritised areas. Fourth, the committee should
select and delimit the L&E appropriately, and identify L&E models
that should be considered best practices.
These four phases should culminate in a formal recognition of and commitment
to creating mandatory minimum L&E, for instance, through an adopted
recommendation by the General Assembly.
For the first two phases, the short term SCCR agenda or areas of work
should include information meetings before the next SCCR at which all
WIPO-commissioned studies on L&E would be presented and discussed
together with other inputs from countries. Also, an open forum with
relevant stakeholders should be held on the development of the technology
sector and the L&E impact on the interaction.
At a minimum, Chile called for an additional WIPO study on national
and international law on L&E for educational purposes including
- how copyrighted works are used for education; what are the requirements,
in developed and developing countries, to qualify for uncompensated
use of works; what are the conditions or requirements under which compulsory
licensing systems for educational purposes could be implemented in developing
countries; and how can remuneration for compulsory licenses for educational
purposes be reasonably calculated and distributed.
Chile
said it was convinced that this will strengthen the legitimacy of the
copyright system while promoting cultural exchanges and protecting authors
of works.
Uruguay
explained that fairness was needed, and the rights of authors and limits
on them should be balanced as envisaged in article 27 of the Universal
Declaration of Human Rights.
Brazil
said this issue is a permanent item on the agenda. It said that through
the work plan we will be gathering materials and for making a comparative
analysis of how L&E are treated at the national level and which
aspects would be relevant at the international level. It believed that
this issue is particularly relevant for developing countries to preserve
the fundamental notion of balance between the public interest and property
rights holders, which has been captured in the WIPO Development Agenda.
The proposal was also supported by South
Africa, Russia,
Ukraine, El Salvador,
Paraguay, while interventions
from New Zealand
and Canada
mainly supported further information gathering. Algeria, for the Africa Group, said
it supported the 2005 Chilean proposal and was considering the proposed
work plan.
Some developed countries objected to or were cool to the work plan proposal.
Switzerland said
the committee should first finish what was started, namely protection
of Audio Visual performances and Broadcasting Organisations. It strongly
opposed any work to draw up a catalogue of L&E to make them mandatory,
for instance, through recommendations. It said that such work would
be incompatible with the 1876 Berne Convention.
The US
said that it had a long history of L&E but that it was not convinced
that norm setting on it was needed at the international level. The case
needs to be made and it would listen carefully to an evidence-based
case. It, however, also explicitly did not support the "3rd work
area" of the Chilean work plan proposal ("discuss and evaluate
the justifications and implications of L&E in nationally prioritised
areas").
It said a global minimum instrument may have deleterious effects on
national flexibility. While supporting the sharing of national experiences,
it questioned whether this is a priority for the committee at this time.
Slovenia,
for the European Communities, said it was premature to decide on a new
programme of work on L&E but supported further studies.
A representative of UNESCO said that there is a soft law instrument,
Recommendation Concerning the Promotion and Use of Multilingualism and
Universal Access to Cyberspace, which calls for the balance between
protection of rights-holders and the public interest. [It has a section
on "Reaffirming the equitable balance between the interests of
rights-holders and the public interest" - SUNS.]
A number of Civil Society Organisations made strong statements during
the discussions.
Consumers International called for further study to investigate excessive
pricing and also to see how the diffusion of knowledge was affecting
cultural autonomy in countries.
The meeting also addressed the question of whether to proceed with negotiating
a "broadcasting treaty." The WIPO General Assembly last September
decided that "the subject of broadcasting organizations and cable-casting
organizations be retained on the agenda of the SCCR for its regular
sessions and consider convening of a Diplomatic Conference only after
agreement on objectives, specific scope and object of protection has
been achieved".
Liedes asked the committee whether they would be willing to continue
efforts on a treaty, and if so, on what basis, and when.
Japan
called for the early adoption of a treaty to protect broadcasting organisations
and hoped that a diplomatic conference would be held soon.
Slovenia
for the EC said that protection of Broadcasting and Audiovisual works
are current priorities for the committee. With goodwill, further consensus
can be achieved. It was willing to continue discussions on broadcasting.
India
did not want a discussion now on a treaty, as this would be premature.
It said that it was unfortunate that fault lines had emerged in the
discussions that were long and deep. Even an understanding of the aims
and objectives (of a treaty) eluded members.
India
said members should eschew a temptation to pursue a shortcut as all
members need to be taken along. It said the current mandate to the SCCR
is diluted. Earlier discussions were under the mandate to discuss a
treaty.
The current mandate is restricted, so that we can build on discussions
of the objective, specific scope and object of protection. Perhaps many
more meetings are required before an optimal instrument based on convergence
is an outcome. To say that this is a discussion on a treaty is putting
the cart before the horse, said India.
Algeria, for the
Africa group, said that despite length discussions so far,
the committee has been unable to agree on the objective, specific scope
and object of protection (of a possible treaty).
Further discussions were required and Member states would have to decide
on the question of convening a diplomatic conference at the General
Assembly. +
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