[A2k] TWN Info: WIPO - Text-based work to begin on exceptions and limitations to copyright

Sangeeta ssangeeta at myjaring.net
Fri Nov 19 05:03:22 PST 2010


Title : TWN IP Info: WIPO - Text-based work to begin on exceptions and
limitations to copyright
 Date : 19 November 2010

 Contents: 

TWN Info Service on Intellectual Property Issues (Nov10/07)
19 November 2010
Third World Network
www.twnside.org.sg
 
 
WIPO: Text-based work to begin on exceptions and limitations to copyright
Published in SUNS #7042 dated 18 November 2010
 
 
Geneva, 16 Nov (Sangeeta Shashikant and Heba Wanis) -- The Standing
Committee on Copyright and Related Rights (SCCR) of the World Intellectual
Property Organization (WIPO) concluded its week-long session in the early
hours of 13 November, with a breakthrough decision on the future work on
exceptions and limitations to copyright (E&L) for the 2011/2012 biennium.
 
According to the decision, the Committee agreed to work towards an
"appropriate international legal instrument or instruments (whether model
law, joint recommendation, treaty and/or other forms)" on the basis of
proposals already tabled or any additional submissions.
 
The decision adds that "Recognizing the need to advance the more mature
areas, the Committee will undertake text-based work with the objective of
reaching agreement on appropriate exceptions and limitations for persons
with print disabilities and other reading disabilities."
 
"In a similar manner, the Committee will undertake text-based work on
appropriate exceptions and limitations for libraries, archives, educational,
teaching and research institutions, and persons with other disabilities,"
the decision states.
 
The decision further states that the SCCR will submit recommendations to the
WIPO General Assembly in 2011 on exceptions and limitations for persons with
print and other reading disabilities, and will also undertake to submit
recommendations to the General Assembly in 2012 on exceptions and
limitations for education, teaching and research and for libraries and
archives and persons with other disabilities.
 
The decision also addressed the issue of the protection of broadcasting
organisations and audiovisual performances.
 
The Committee also agreed to extended SCCR sessions to discuss E&L in a
detailed timetable for the biennium of 2011/2012 that is annexed to the
decision.
 
The SCCR held its twenty-first session from 8-12 November.
 
The decision on E&L, which emerged as the most contentious issue in this
session of the SCCR, was agreed on after numerous informal meetings were
held to try to narrow the differences over the future work in the SCCR on
this issue.
 
The battle over the way forward on E&L began with a draft decision (dated 9
November) presented by the African Group calling for the SCCR "to work
towards an appropriate international legal instrument or instruments", and
"to undertake text-based negotiations with the objective of reaching
agreement on an international legal instrument or instruments which will
ensure appropriate exceptions and limitations for persons with disabilities,
including print disabilities, education, teaching and research institutions;
and libraries and archives".
 
In an annex, the proposed draft decision defined a clear work program on E&L
for the biennium of 2011/2012 that included three inter-sessional working
groups in addition to the regular SCCR sessions to be held in May/June and
November of 2011 and in May/June 2012. It proposed that the first
inter-sessional (in March 2011) would address persons with disabilities
including print disabilities; the second inter-sessional (in October 2011)
would address E&L for education, teaching and research institutions; and the
third inter-sessional (in February/March 2012) would address E&L for
libraries and archives.
 
The African Group's initiative was followed by a draft decision (dated 10
November) tabled by Group B (composed of developed countries).
 
The Group B text proposed work towards "an appropriate international legal
instrument or instruments (whether model law, joint recommendations, treaty
and/or other forms)", and "to undertake text based negotiations to achieve
appropriate exceptions and limitations for persons with print disabilities
and continue its work on appropriate limitations and exceptions on libraries
and archives; education and research institutions; and persons with other
disabilities".
 
In comparison to the African Group's proposal, Group B's proposed decision
limits text-based negotiations to persons with print disabilities and
incorporates an open-ended list of possible legal instruments in the text.
Moreover, unlike the African Group's proposal, Group B's proposal does not
contain additional sessions (to regular SCCR meetings) to work on E&L.
 
Group B's text was followed by another draft decision (dated 11 November)
jointly proposed by the African Group and the Group of Latin American and
Caribbean countries (GRULAC) prepared on the basis of the African Group's
draft decision. The Asian Group later co-sponsored this draft decision text.
 
This joint draft text called on the SCCR to work towards an appropriate
international legal instrument or instruments (as also found in the African
Group's paper). It however added in brackets -- whether model law, joint
recommendation, treaty and/or other forms. It also called for "text-based
negotiations with the objective of reaching agreement on an international
legal instrument or instruments, recognizing the need to advance with the
more mature areas, currently persons with print and other disabilities to be
followed by educational, teaching and research institutions and libraries
and archives".
 
The joint draft decision also endorsed the timetable proposed by the African
Group.
 
While differences had emerged between GRULAC, the Asian Group and the
African Group in past SCCR sessions over the prioritization of E&L issues,
these differences were bridged in the joint proposed decision, with language
that stressed on the need to advance the more mature areas, i. e., E&L in
relation to persons with print and other disabilities. This would be
followed by text-based negotiations on educational, teaching and research
institutions, and libraries and archives.
 
[GRULAC has been pushing for the SCCR to first undertake negotiations
concerning persons with print and other disabilities on the basis of a
proposal tabled by Brazil, Ecuador, Mexico and Paraguay on "Limitations and
Exceptions: Treaty Proposed by the World Blind Union" (SCCR/18/5). On the
other hand, the African Group has been stressing on the need for all E&L
issues to be considered at the same time and on an equal footing. To this
end, the African Group has proposed a draft treaty on exceptions and
limitations for the disabled, educational and research institutions,
libraries and archive centres (SCCR/20/11)].
 
Group B (composed of developed countries) could not accept many elements of
the proposed joint draft decision by the African Group, Asian Group and
GRULAC.
 
The final decision that was agreed past midnight on the last day of the
week-long SCCR session (in the early hours of 13 November) is a delicately
drafted text, which while taking the issue of E&L substantially forward,
also retains some differences that have yet to be narrowed.
 
The relevant part of the agreed decision reads as follows:
 
"Bearing in mind
 
"- the Development Agenda recommendations;
 
"- the agreement reached during the 19th session of the SCCR in December
2009 "all aspects concerning limitations and exceptions will be maintained
on the Agenda of the 20th session of the SCCR with the aim of establishing a
work program concerning those limitations and exceptions, following a global
and inclusive approach and taking into account their equal importance and
different level of maturity, while recognising the need for concurrently
addressing all the issues with a view to achieving progress on all of them";
 
"- the international conventions in the field of copyright and related
rights, including the SCCR's authority to make a recommendation to convene a
Diplomatic Conference."
 
"Following a global and inclusive approach, the SCCR agrees to work towards
an appropriate international legal instrument or instruments (whether model
law, joint recommendation, treaty and/or other forms), taking into account
the proposals already tabled or any additional submissions.
 
"The SCCR agrees to the following work program on exceptions and limitations
for the two-year period 2011/2012:
 
"1. Recognising the need to advance the more mature areas, the Committee
will undertake text-based work with the objective of reaching agreement on
appropriate exceptions and limitations for persons with print disabilities
and other reading disabilities. In a similar manner, the Committee will
undertake text-based work on appropriate exceptions and limitations for
libraries, archives, educational, teaching and research institutions, and
persons with other disabilities.
 
"2. The Committee will follow, as set out in this Annex, a clearly defined
work program for the two-year period 2011-2012.
 
"The focus of the Committee's work in the two-year period 2011/2012 will
build on the existing work carried out by the Committee and use all WIPO
working documents on exceptions and limitations as well as any additional
relevant working documents, which are to constitute the basis of the
Committee's work, including:
 
"- Proposal by Brazil, Chile, Nicaragua and Uruguay for work related to
exceptions and limitations (document SCCR/16/2);
 
"- Proposal by Brazil, Ecuador, Mexico and Paraguay relating to Limitations
and Exceptions: Treaty Proposed by the World Blind Union (WBU) (document
SCCR/18/5);
 
"- the Draft Consensus Instrument, submitted by the United States (document
SCCR/20/10);
 
"- the Draft WIPO Treaty on Exceptions and Limitations for the Disabled,
Educational and Research Institutions, Libraries and Archive Centers,
submitted by the African Group (document SCCR/20/11);
 
"- the Draft Joint Recommendation Concerning the Improved Access to Works
Protected by Copyright for Persons with a Print Disability, submitted by the
European Union (document SCCR/20/12);
 
"- Updated report on the Questionnaire on Limitations and Exceptions
(SCCR/21/7).
 
"All four current substantive proposals were presented and Members made
initial comments and asked preliminary questions thereon, and were invited
to submit in writing questions asked during the meeting.
 
"3. The Committee is requested to submit recommendations to the General
Assemblies on exceptions and limitations for persons with print disabilities
and other reading disabilities. In a similar manner, the Committee will
undertake to submit recommendations to the General Assemblies on limitations
and exceptions for libraries, archives, educational, teaching and research
institutions, and persons with other disabilities, according to the annexed
timetable."
 
"4. The International Bureau is requested to continue to assist the
Committee by providing Member States with necessary expertise and funding of
the participation of experts, according to the usual formula".
 
On the protection of broadcasting organisations, the agreed decision
reaffirms the SCCR's "commitment to continue to work, on a signal-based
approach towards developing an international treaty to update the protection
of broadcasting and cablecasting organisations in the traditional sense".
 
SCCR Members are also invited "to present new proposals on the protection of
the broadcasting organisations by March 1, 2011, if possible in treaty
language, in addition to the proposals contained in the document SCCR/15/2
rev, to form the basis of the preparation of a new draft treaty".
 
It was further agreed that the Secretariat would organise, in Geneva, before
the 22nd session of the SCCR, "an informal consultation meeting of Members
involving technical experts, to clarify outstanding technical and
technological issues, relevant for the updated protection of the
broadcasting organisations in the traditional sense, by following the
signal-based approach".
 
"The Secretariat will prepare a list of issues based on the 2007 mandate of
the General Assembly, with regard to the objectives, specific scope and
object of protection. The consultation meeting will report its suggestions
to the Committee," the decision adds.
 
On the protection of audiovisual performances, the Committee considered that
"the nineteen articles provisionally agreed in 2000 were a good basis for
advancing the negotiations on the treaty". It invited "Member States to
submit, by January 31, 2011, written proposals, if possible in treaty
language, to address the outstanding issues from the 2000 Diplomatic
Conference as well as on any additional or alternative elements for a draft
treaty".
 
[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 agreed decision also invites the Secretariat to organize in Geneva
informal open-ended consultations among Members to examine the new
proposals, with a view to making recommendations to the next session of the
Committee, which should include a timetable for concluding the negotiations.
 
Annexed to the decision is a detailed timetable for work on E&L, including
extended SCCR sessions.
 
According to the decision, the 22nd session of the SCCR in May/June 2011
will be extended by three additional working days. The regular and extended
session will focus on E&L relating to persons with print and other reading
disabilities.
 
The 23rd SCCR session in November 2011 and the 24th session of the SCCR in
May/June 2012 will also be similarly extended, with the 23rd session
focusing on exceptions and limitations for libraries and archives, and the
24th session focusing on exceptions and limitations for educational,
teaching and research institutions, and persons with other disabilities.
 
The extended SCCR sessions were a compromise to the holding of additional
"special sessions" as proposed by the African-Asian-GRULAC countries and
strongly opposed by Group B, which argued that such sessions would incur
additional cost to the organisation, as the participation of some developing
and least developed countries is funded by WIPO.
 
Another contentious point that emerged during the session was the scope of
the text-based negotiations. Group B was keen to limit such negotiations to
E&L for persons with print disabilities, while on other E&L, Group B wanted
language that states that "The Committee will also continue its work on
appropriate exceptions and limitations for libraries, archives, educational
and research institutions". On the other hand, developing countries pushed
for a more inclusive approach.
 
In the agreed decision, a compromise was reached with language that
recognised the need to advance more mature areas and an understanding that
the Committee will begin text-based work on E&L for print disabilities and
other reading disabilities. And "In a similar manner", as other areas
mature, the Committee will undertake text-based work.
 
There was also some disagreement over the scope of disabilities to be
covered by E&L. As negotiations progressed in the SCCR, non-governmental
organizations (NGOs) pushed for widening the scope of disabilities covered
by E&L to be in accordance with the UN Convention on the Rights of Persons
with Disabilities (UNCRPD), which recognises that "Persons with disabilities
include those who have long-term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder their full
and effective participation in society on an equal basis with others"
(Article 1).
 
Such an extension is also called for in Article 15(b) of the proposal tabled
by Brazil, Ecuador, Mexico and Paraguay on Limitations and Exceptions:
Treaty Proposed by the World Blind Union (document SCCR/18/5).
 
While the joint draft decision proposed by the African Group, GRULAC and the
Asian Group recognised the issue of persons with print and other
disabilities as a mature area on which text-based negotiations should be
undertaken, Group B wished to limit such initial negotiations to only
persons with print disabilities.
 
Developing countries voiced satisfaction with the final outcome on E&L.
 
Speaking at the closing plenary in the early hours of 13 November morning,
Brazil, on behalf of the Development Agenda Group (DAG, composed of a number
of like-minded developing countries), called the outcome "groundbreaking",
adding that it is now the task of Member States to give life and to add
flesh to the work program. It also reminded the Committee that at its next
session, the SCCR will have to discuss how best the Committee should report
to the General Assembly on its implementation of the Development Agenda
(DA).
 
[This year's WIPO General Assembly 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.]
 
Brazil's statement prompted an intervention from Group B and the Central
European and Baltic States who said that the right place for a discussion on
the coordination mechanism would be the Committee on Development and
Intellectual Property (CDIP), whose seventh session convenes on 22-26
November 2010.
 
Meanwhile, Trevor Clarke, the WIPO Assistant Director-General for Copyright,
noted in the closing plenary that there has been a "significant degree of
compromise". 
 
"This achievement retrieves the ground that we lost in June, but more
significantly, it has created a momentum in which the SCCR can really look
forward now to an exciting future... Let us keep this momentum going," he
said.
 
The next session of the SCCR has been scheduled for 15-24 June 2011. +










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