[A2k] EFF Statement to WIPO SCCR 21st session

Gwen Hinze gwen at eff.org
Thu Nov 11 03:30:33 PST 2010

11 November 2010

  Mr. Chair, thank you for the opportunity to present the views of our  
organization and our more than 12,500 members worldwide.

  EFF remains concerned by the proposed Broadcasting Treaty because it  
is not limited to signal protection as mandated by the General  
Assembly, and would instead give broadcasters intellectual property  
rights over retransmissions after fixation of signals. Protection of  
signals does not require the creation of intellectual property rights.  
Granting broadcasters and cablecasters intellectual property rights  
that apply independent of copyright, together with legally enforced  
technological protection measures will allow broadcasters to restrict  
access to public domain works, add complexity to copyright clearance  
regimes for creators of podcasts and documentary films, and interfere  
with consumers’ ability to make in home recordings permitted under  
national copyright law. It will also harm competition and innovation  
by allowing broadcasters and cablecasters to control the types of  
devices that can receive transmissions, and create new liability risks  
for intermediaries that retransmit information on the Internet.

  We appreciate the new study by Professors Picard et al. on the  
socioeconomic effect of the Treaty and note the authors’ findings that  
the treaty is likely to disadvantage the public by reducing content  
currently available, and by increasing costs for acquisition of  
material. However, the report’s failure to consider the impact of the  
proposed treaty on citizen broadcasting, and on competition and  
innovation in the information technology sector are noteworthy  
omissions at a time when it is not at all clear what the future of  
broadcasting will be, and whether current encumbents will remain so,  
as consumers increasingly move away from content created by major  
media conglomerates.

On exceptions and limitations, we are heartened by Member States’  
support for adoption of a concrete work plan to focus work towards an  
international instrument taking into account the four proposals before  
it. We support the Treaty for the Visually Impaired to secure access  
to accessible works for the visually impaired as the first part of the  
work plan on copyright exceptions and limitations discussed at this  
Committee’s 16th session. A binding norm that provides both greater  
legal certainty for cross-border import and export of accessible works  
and guidance to Member States on minimum national exceptions in  
national laws is needed to address the policy and market failures that  
have created the chronic lack of material in formats accessible the  
world’s 314 million print disabled citizens.

International copyright experts agree that it is possible to create  
exceptions that comply with the Three Step Test. And yet less than one  
third of WIPO’s Member States have done so. It was therefore  
disheartening to hear the series of interventions from Group B Member  
States yesterday questioning the notion of mandatory minimum  
exceptions, while failing to acknowledge the existence of mandatory  
exceptions in the Berne Convention and in EU directives. We applaud  
all efforts to increase accessible materials, but neither a voluntary  
licensing regime nor a mechanism that covers only one of these  
elements will be able to change the status quo. We listened with  
interest to Member States’ interventions on trusted intermediaries. It  
would indeed be a tragedy to set up a mechanism for expedited access  
only to find that no entities exist in many developing countries that  
could satisfy the terms of the US and EU proposals.

We are pleased to see recognition of the need for work towards an  
international instrument on exceptions and limitations that facilitate  
the efficient operation of today’s global libraries and archives, but  
are disappointed by the removal of all references to exceptions and  
limitations for educational purposes in the work plan tabled by Group  
B. We recall that the right to education is a fundamental human right  
enshrined in Article 26 of the UN Declaration of Human Rights and  
Article 24 of the UN Convention for the Rights of Persons with  
Disabilities, and a core objective of the Millennium Development Goals.

As the five detailed studies commissioned by WIPO demonstrate, it is  
possible to create appropriately tailored exceptions and limitations  
that meet the Three Step Test and provide adequate remuneration for  
the publishing industry, but many developing countries do not have  
them. An international instrument that provides for mandatory minimum  
standards of exceptions for education is needed to provide guidance to  
Member States on how they can take advantage of the flexibilities that  
exist in the international framework.  The Internet and new  
digitization technologies offer new possibilities for distance  
education for students across the world who do not have access to  
physical classrooms or traditional libraries, and new methods for  
learning in the classroom – but these possibilities will only be  
realized if we have global copyright law exceptions and limitations  
that facilitate cross-border transfers of digital information, and  
foster innovation and transformative uses of technology for education.

We urge this Committee to work together with a spirit of renewed  
goodwill and to seize the opportunity to create a work plan to address  
all of the pressing humanitarian problems that are now before it in  
order to ensure the ongoing credibility of the international copyright  

Thank you for your consideration.

Gwen Hinze
International Director, EFF


Gwen Hinze
International Director
Electronic Frontier Foundation
email:gwen at eff.org
web: www.eff.org
Tel.: + 1 415 436 9333 x110

Please support EFF - Working to protect your digital rights and  
freedom of expression since 1990

More information about the A2k mailing list