TWN Info Service on Intellectual Property Issues (Nov10/06)
11 November 2010
Third World Network
 
WIPO: South pushes for progress on exceptions and limitations to copyright
Published in SUNS #7038 dated 11 November 2010  
 
Geneva, 10 Nov (Sangeeta Shashikant and Heba Wanis) -- Developing countries that are participating in a week-long meeting of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) have called for progress to be made on the issue of exceptions and limitations to copyright (E&L).
 
The SCCR is currently holding its twenty-first session from 8-12 November.
 
In a bid to move forward the issue of E&L, several developing countries, at this SCCR session, pressed for informal consultations on the matter in order to enable the charting of a work-plan that would hopefully lead to the start of concrete negotiations on this issue.
 
However, the task before the Committee is tricky. To develop a work-plan on the issue of E&L, the Committee will have to narrow the differences among the four proposals before it, and agree, in particular, on the scope and nature of the work on E&L in the Committee.
 
The four proposals are: (i) a draft WIPO Treaty for Improved Access for Blind, Visually Impaired and Other Reading Disabled Persons (VIP treaty) (SCCR/18/5) and a related timetable for the adoption of the VIP treaty by 2012 submitted by Brazil, Ecuador, Mexico and Paraguay (SCCR/20/9); (ii) a draft consensus instrument submitted by the United States (SCCR/20/10); (iii) a draft Joint Recommendation Concerning the Improved Access to Works Protected by Copyright for Persons with a Print Disability submitted by the European Union (SCCR/20/12); (iv) a draft WIPO treaty on exceptions and limitations for the disabled, education and research institutions, libraries and archive centres submitted by the African Group (SCCR/20/11).
 
Proposals (i)-(iii) pertain to E&L for the visually impaired, although only proposal
(i) calls for an international binding instrument. The African Group proposal while agreeing to an international binding instrument, also proposes extending the scope of such a treaty beyond the visually impaired.
 
The twentieth session of the SCCR on 21-24 June failed to agree on a way forward on this issue due to disagreements on how to proceed. In particular, differences emerged over whether the SCCR should agree to negotiate a legally-binding treaty for the visually impaired, or whether it should task the Secretariat to prepare a (literal/non-analytical) comparative table of the four proposals in order to organize informal consultations to move forward the negotiations, as well as organize informal consultations on all issues or only on the issue of the visually impaired.
 
Frustration over the lack of progress on the issue of E&L (which has been on the agenda since the sixteenth session of the SCCR in March 2008) was visible, as developing countries delivered their opening statements on Monday and spent much of Tuesday debating how the discussions on this matter should proceed.
 
The opening statements also revealed positions with regard to norm-setting in the area of protection of broadcasting organizations and the protection of audiovisual performances.
 
On the protection of broadcasting organizations, the developing countries, in their opening statements, reiterated that any move towards norm-setting in this area must be within the agreed mandate.
 
[During the 2007 WIPO General Assembly, it was decided that only after agreement on objectives, specific scope and object of protection has been achieved, should the Committee consider convening a Diplomatic Conference to finalise a treaty on the protection of broadcasting and cable-casting organisations.]
 
On the issue of protection of audiovisual performances, both developing and developed countries renewed their commitment to move on the issue.
 
[In 2000, a diplomatic conference (final negotiations) over a treaty for the protection of audiovisual performances broke down as a result of divergences in the area of transfer of rights and agreements between performers and producers; moral rights of audiovisual performers; and flexibility of the treaty implementation, as to whether the obligations can be implemented by means of collective bargaining instead of legal statute. Presently, there is a lack of formal agreement on whether the 19 articles that were previously agreed in the failed diplomatic conference should be reopened.]
 
The Committee also heard calls for a separate agenda item for a decision on how the SCCR will report on the implementation of the Development Agenda (DA).
 
[The WIPO General Assembly this year approved the Coordination Mechanism and Monitoring, Assessing and Reporting Modalities (WO/GA/39/14 Prov. Para 102), which requires WIPO bodies to include in their annual report to the Assemblies a description of their contribution to the implementation of the respective DA recommendations and to identify the ways in which the DA recommendations are being mainstreamed in their work, and urges them to implement the recommendations accordingly. See SUNS #7008 dated 30 September 2010.]
 
Speaking at the SCCR session that began on Monday, Bangladesh, on behalf of the Asian Group, said that it regretted that the last SCCR session (in June) could not reach an agreed outcome. It however expressed optimism for this session, seeing that countries "share common grounds including the wide recognition of the developmental dimensions".
 
On the issue of the protection of broadcasting organizations, Bangladesh cautioned that while it was necessary to update the protection of broadcasting organizations, this should be done without prejudice to the public interest, especially access to information already in the public domain. It reiterated its willingness to move forward on developing a treaty to protect broadcasting and cable-casting organisations within the mandate given by the General Assembly in 2007.
 
With regard to the protection of audiovisual performances, Bangladesh expressed its readiness to engage constructively on this issue.
 
Bangladesh further said that it was of great importance to ensure a balance between the interest of the right-holders and the larger public interest. It stressed that norm-setting in WIPO should not be seen as limited to IP (intellectual property) rights and protection but should reflect a broader social and development context if WIPO is to remain the principal international body responsible for IP. Its norm-setting activities should reflect the broader context of current IP debates and, if possible, try to address some ramifications of IP which spill over onto other sectors, especially those concerning the common good, it added.
 
With a view to bringing in a greater balance, Bangladesh, referring to the issue of E&L, stressed the importance of a framework for safeguarding the public interest, adding that such a framework does not currently exist. It also expressed readiness to work on the basis of the proposals that have been submitted, adding that the proposals point towards an agreement that something needs to be done to alleviate the situation of persons with print disabilities. On this, it urged the Committee to move forward on substantive discussions without preempting any outcome at this stage.
 
At the same time, it also supported commencing a broader and more meaningful discussion on establishing a normative framework for E&L encompassing other public policy areas. In this context, Bangladesh suggested that the future work programme for the Committee be comprehensive in nature with a sequential approach being built into the programme to facilitate substantive discussions on issues that have attained a certain degree of maturity.
 
Mexico, speaking on behalf of the Group of Latin American and the Caribbean countries (GRULAC), while reaffirming the group's interest for progress on the topics before the Committee, pointed to substantive progress in E&L, particularly those for persons with print disability, as a priority for GRULAC. In this context, it also expressed support for the draft VIP treaty proposed by Brazil, Ecuador, Mexico and Paraguay, adding that GRULAC was ready to proceed on that basis to enable adoption of a treaty in 2012.
 
It further said that it saw the treaty as being linked to the principles and objectives of the United Nations treaty on persons with a disability, which is the promotion, protection and the ensuring of the full acquisition of human rights by persons with a disability. Mexico also warned that it did not wish to see a repeat of the last session where no progress was achieved. It thus called for informal consultations to facilitate progress on the issue.
 
Brazil, on behalf of the Development Agenda Group (DAG, a group of like-minded developing countries), noted that the discussion on E&L concerns a broad range of issues including the visually impaired and persons with other disabilities, uses for purposes of education including distance learning, archives and the issue of E&L within the digital environment. It noted that while the approaches and the scope of proposals on E&L differ, there existed "a good deal of substantive convergence".
 
"The challenge for us now is to not lose that momentum and find ways of building on that substantive convergence with a view of reaching agreement on a programme of work on limitations and exceptions," Brazil added.
 
On the protection of broadcasting organizations, Brazil expressed the main concern of the DAG as one that is related to the "risk that granting stronger copyright protection or additional rights protection measures will increase costs and affect access to broadcasts in developing countries". On the issue of protection of audiovisual performances, it agreed that further work was required on this, adding that "the best way to proceed is to start where we left off at the last session."
 
Brazil also highlighted the absence of an agenda item on reporting on the implementation of the Development Agenda. As a way forward on this issue, Brazil suggested an outcome similar to that reached at the 15th session of the Standing Committee on the Law of Patents (SCP) in October 2010 wherein the matter was referred to the next session and it was agreed that Member State views will be considered "in the context of the standardized procedure that WIPO will propose for relevant WIPO bodies".
 
Angola, on behalf of the African Group, stressed on the need for an effective solution at the international level to E&L, by adopting an appropriate international legal instrument. In this context, it also called for a more holistic approach on E&L through its proposed draft treaty.
 
Iran supported the African Group proposal in view of its comprehensiveness and holistic approach to the issue of E&L. With regard to norm-setting that would ensure access of the visually impaired to copyrighted materials, Iran welcomed the treaty proposal put forward by Brazil, Ecuador, Mexico and Paraguay. It added that "Voluntary recommendations or any non-binding structure could not create a practical result in favour of the visually impaired or other print disabled person and could not be considered as a solution to the existing challenges".
 
South Africa was of the firm view that properly applied, E&L could play a significant role in advancing development goals in many developing countries, adding that it attached great importance to E&L in relation to persons with disabilities including the visually impaired, for public and private institutions as well as for libraries. It also said that all issues to be considered by the Committee "merit equal treatment without elevating one issue over the other".
 
Kenya acknowledged the importance of access to copyright works especially for the visually impaired and for educational and research purposes and emphasized the holistic approach as taken by the African Group.
 
Egypt supported the African Group proposal and pointed out that "there is no conflict of interest" between the African Group proposal and the proposal of Brazil, Ecuador, Mexico and Paraguay, with which it remained "sympathetic", adding that it found the African Group proposal to be "more general and inclusive".
 
France, on behalf of Group B (composed of developed countries), on the issue of E&L, said that it recognised the special needs of persons with print disabilities. It further said that "the careful examination of possible solutions in this committee reinforces our conviction that a dual track approach involving taking forward both the work of the Stakeholders' Platform and a potential international instrument promises to be the most likely to produce concrete results." It also said that it was prepared to discuss in the future work of this committee, the other important issues under E&L raised by the African Group.
 
France also supported the conclusion of a treaty on the protection of performances in audiovisual media, adding that such an international legal instrument would greatly contribute to cultural and economic development as well as promote cultural diversity. In view of the proposals made by several members since the last session of this Committee, holding consultations would be all the more useful, it said, stressing also the need for a treaty to address the challenges of signal piracy encountered by broadcasting organisations. A normative solution should be found rapidly, it added.
 
On the second day of the meeting (on Tuesday), much time was spent debating how to approach the issue of E&L. In their interventions, several developing countries pressed for informal consultations to focus on developing a work-plan on E&L that would merge the different visions on the matter, stressing that such a work-plan would then lead to productive substantive discussions.
 
The Chair of the SCCR, Jukka Liedes of Finland, however, appeared reluctant to suspend substantive discussions for informal consultations and instead called for presentations of the four proposals by their proponents. He proceeded on the basis that the substantive discussions would provide delegations the possibility of expressing their views on future work.
 
The Chair's proposal was supported by several members of Group B. Thus, on the second day of the week-long session, the Committee also heard presentations by the European Union (EU) and the African Group on their proposals, with the EU being repeatedly queried on its objections to a binding instrument on E&L.
 
Mexico asked the EU why a binding treaty was not desired, as the EU had proposed a non-binding draft Joint Recommendation Concerning the Improved Access to Works Protected by Copyright for Persons with a Print Disability (SCCR/20/12).
 
The EU responded by saying that its "prime concern was to do something that would be quick", adding that it was not sure if a treaty would be ratified by all Member States.
 
Paraguay said that a treaty could be a rapid solution as well, while Venezuela said, "we can't say that what's quick is what's best".
 
Egypt queried the EU: "Are we politically committed as Member States to accept limitations and exceptions or not? To what extent can we accept limitations and exceptions? Shall we restrict them to the visually impaired, or should we extend limitations and exceptions to other types of these limitations, which are present in national laws?"
 
Egypt also observed among some Member States a "trend which wishes to remove itself from the format of the treaty, which is also hesitant to study the question of limitations and exceptions... And there is no political will to accept it. Then, the non-binding recommendations might be the best solution for some delegations, such as the EU for instance".
 
"I would like the delegations to answer quite frankly those two questions that I have posed," Egypt said.
 
The EU explained it is "whether the subjects are mature or not". "At the moment, it happens that the work has been focussed more on the print disabled and visually impaired," the EU added.
 
Mexico called on the EU to move towards a VIP treaty given the strong human rights element involved. It added that the convention on the rights of the disabled adopted by the EU in December 2006 came into force in "record time".
 
"This is something that is very mature, not only in WIPO but all around the world. We think this is a matter that is worthy of being treated with dignity," said Mexico. +