[A2k] IP-Watch: Soft Law Presented At WIPO As A Solution In International Copyright Law

Thiru Balasubramaniam thiru at keionline.org
Thu May 1 21:08:11 PDT 2014


Soft Law Presented At WIPO As A Solution In International Copyright Law

Published on 1 May 2014 @ 4:25 pm

By Julia Fraser <http://www.ip-watch.org/author/julia-fraser/> for
Intellectual Property Watch

A presentation of the Tunis Model Law this week at a World Intellectual
Property Organization side event addressed how it could be updated and used
as a tool to help developing countries implement new developments in
international copyright-related law.

In addition, the model law could also be used to assess and experiment with
some of the issues and options under discussion at WIPO for a treaty on
limitations and exceptions for libraries and archive and educational and
research institutions, presenters said.

Knowledge Ecology International (KEI) convened the side event to the WIPO
Standing Committee on Copyright and Related Rights (SCCR) on 29 April,
entitled, “The Tunis Model Law on Copyright for Developing Countries: Is it
Time for an Update?”

The SCCR is meeting from 28 April to 2 May.

The Tunis Model Law, developed by the UN Educational, Scientific and
Cultural Organisation (UNESCO) and WIPO in 1976, offered developing
countries a template for implementing the Berne Convention for the
Protection of Literary and Artistic Works, while having regard to domestic
legislation and particular interests.

It was “designed to be like a complete copyright act,” said KEI President
James Love, touching upon issues relating to protection of folklore,
exceptions and limitations to rights, fair use, and the right of
translation to reproduction.

The SCCR this week is considering “different pathways to develop
appropriate legal instruments for both libraries and archives and
educational and research institutions,” said Thiru Balasubramaniam, Geneva
representative of KEI.

Love said, “There are some issues that are quite difficult to imagine
consensus internationally for a treaty,” adding that there may be benefits
in using soft law instruments “in the meantime.”

Soft law as a non-binding instrument can address some of the more
controversial issues, and allows for experimentation, for example with the
options provided for under the text for a broadcasting treaty currently
being discussed at the SCCR, said Love.

KEI is asking WIPO to “ascertain the feasibility of producing an update” of
the Tunis model adapted for the digital environment, and study where it
could be useful in addressing some of the issues currently being discussed
by the SCCR.

Gudibende Ramarao Raghavender, the registrar of copyrights in India, said
the Tunis model “respects the typical balance of rights,” but needs to be
revised following TRIPS, “TRIPS-plus” agreements, and WIPO’s
copyright-related treaties. Although there has been harmonisation in
national law in the implementation of these treaties, Raghavender said
“there is divergence in this convergence.”

Teresa Hackett, programme manager at Electronic Information for Libraries
(EIFL), said WIPO studies and EIFL’s work with libraries in developing
countries revealed that developing countries are not using some of the
flexibilities available to them, such as scope of protection, duration, and
limitations and exceptions.

In 2009, EIFL made their own draft model law on copyright linking which
applied to the digital environment, and included provisions for backup
copying, orphan works and others. However, Hackett said that this was a
“quick fix” solution to help implementation, but that it is necessary to
update it and expand on it, and WIPO and UNESCO could play a role in
updating the Tunis model to be used as a guide.

Viviana Munoz Tellez, manager of the Innovation and Access to Knowledge
Programme at the intergovernmental South Centre, emphasised that model laws
should be development-oriented, ensure a balance of the interests of right
holders and public interests, and not be imposed on countries but used as

Tellez agreed with other speakers that the Tunis model would need updating,
and should be publicly available to expand discussion among other
stakeholders other than WIPO member states.

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