[A2k] WIPO General Assembly 2014: Hard Decisions on the Broadcast Treaty and work program on copyright limitations and exceptions

Thiru Balasubramaniam thiru at keionline.org
Fri Sep 5 04:12:30 PDT 2014


http://keionline.org/node/2079

WIPO General Assembly 2014: Hard Decisions on the Broadcast Treaty and work
program on copyright limitations and exceptions

--

In the piece, WIPO General Assembly 2014: Hard Decisions on the Design Law
Treaty and Treaty for Protection of Genetic Resources (22 July 2014)
<http://keionline.org/node/2063>, KEI highlighted the hard decisions
awaiting the WIPO General Assembly (22 September 2014 to 30 September 2014)
with respect to the Design Law Treaty, the imminent revision of the Lisbon
Agreement to include geographical indications and WIPO's work to conclude
an instrument for the protection of genetic resources, traditional
knowledge and folklore. In light of the fact that the 28th session (30 June
2014 to 4 July 2014) of the WIPO Standing Committee on Copyright and
Related Rights (SCCR) concluded without reaching agreement on
recommendations to the WIPO General Assembly on 1) Protection of
Broadcasting Organizations and 2) Limitations and exceptions: libraries and
archives. we reported that,

it is unclear at this stage whether the 2014 General Assembly will witness
high-level political maneuvering force the GA’s hand in taking a decision
to convene a Diplomatic Conference in 2016 for adoption of a Treaty for the
Protection of Broadcasting Organizations.

With the WIPO secretariat's recent publication of the Report on the Work of
the Standing Committee on Copyright and Related Rights (WO/GA/46/5)
<http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_46/wo_ga_46_5.pdf> on 29
August 2014, the picture has become somewhat clearer. The Committee's work
on copyright limitations and exceptions appears to be taking a back seat to
the conclusion of a treaty for the protection of broadcasting
organizations. Despite the report's acknowledgement that no agreement was
reached on recommendations to the WIPO General Assembly on the protection
of broadcasting organizations, the secretariat's report provides a pathway
(in the form of a draft decision) for the 2015 WIPO General Assembly to
take a decision on convening a Diplomatic Conference in 2016.

In accordance with its previous decisions, and taking into account the
progress achieved in the SCCR sessions since the last meeting of the WIPO
General Assembly, the General Assembly is invited to consider what steps to
take with respect to convening a diplomatic conference for a treaty on the
protection of broadcasting organizations, including considering whether to
direct the SCCR to take specific steps towards the development of a text or
a recommendation to the 2015 General Assembly.

The General Assembly could also provide the SCCR with a decision on a
roadmap to work towards a broadcasting treaty. If it were so inclined, for
instance, the General Assembly could consider a decision along the
following lines:

“The WIPO General Assembly requests that the SCCR expedite its work on the
‘Working Document for a Treaty on the Protection of Broadcasting
Organizations’ (SCCR/27/2 Rev.), while taking into account all documents
and submissions made to the SCCR, so that the 2015 General Assembly may
take stock of the progress made, and decide on the convening of a
diplomatic conference in 2016."

The WIPO General Assembly mandate of 2007 clearly states that the convening
of a Diplomatic Conference for the protection of broadcasting organizations
is contingent upon agreement on objectives, specific scope and object of
protection. Countries still have to finalize text on definitions, scope of
application, beneficiaries of protection and object of protection in future
discussions of the consolidated broadcast treaty text (SCCR/24/10 Corr.)
<http://www.wipo.int/edocs/mdocs/copyright/en/sccr_28/sccr_28_ref_22_10_coor.pdf>.
In this iteration, the Committee has not yet held substantive discussions
on the "juicy exceptions" (general principles, protection and promotion of
cultural diversity and defense of competition), limitations and exceptions,
term of protection and technological protection measures (digital locks).
In short, proponents of the broadcasting treaty have their work cut out for
them if their aim is for the 2015 WIPO General Assembly to convene a
Diplomatic Conference in 2016 (location unknown). .

For limitations and exceptions for libraries and archives, the Secretariat
report provides the following decision point for the General Assembly:

(iv) encourage progress on limitations and exceptions consistent with the
recommendations approved by the WIPO General Assembly in 2012, namely to
continue discussions to work towards an appropriate international legal
instrument or instruments (whether model law, joint recommendation, treaty
and/or other forms), with the target to submit recommendations on
limitations and exceptions for libraries and archives as well as on
educational and research institutions and persons with other disabilities
to the WIPO General Assembly in 2015.

As part of the conclusions of SCCR28 on limitations for libraries and
archives, the Secretariat report highlighted the importance of preservation:

it was considered that in order to ensure that libraries and archives can
carry out their public service responsibility for the preservation,
including in digital form, of the cumulative knowledge and heritage of
nations, limitations and exceptions for the making of copies of works may
be allowed so as to preserve and replace works under certain circumstances.

With respect to library lending, the SCCR28 conclusions noted:

the Committee recognized the importance of addressing this issue and
various Delegations suggested different alternatives for providing this
service, including the use of limitations and exceptions, the exhaustion of
rights, and/or licensing schemes. The Committee expressed different views
on digital distribution in the scope of library lending.

With respect limitations and exceptions for educational and research
institutions and persons with other disabilities, the SCCR 28 conclusions
noted:

Several Delegations expressed the importance of distance education, digital
learning, and cross-border exchange of works for educational purposes as
efficient tools to be considered with respect to universal access to
education and the use of the copyright system to contribute to that goal.

The Secretariat was asked to examine the available resources and if
possible arrange to update the regional studies on limitations and
exceptions for educational, research and teaching institutions, with the
understanding that their preparation would not delay discussion on
limitations and exceptions agenda item. The Secretariat was also asked to
examine the possibility, consistent with available resources, of
commissioning a scoping study on copyright and related rights limitations
and exceptions for persons with other disabilities (than blindness, visual
impairment, or print disabilities). These studies would serve as
information resources for the Committee.

Despite the failure of SCCR28 to reach agreement on recommendations for the
General Assembly, the Secretariat report provides first class treatment for
broadcasters and cablecasters. Essentially, the General Assembly is asked
to consider how to devise a pathway for the 2015 General Assembly to take a
decision on convening a Diplomatic Conference in 2016 on a broadcast
treaty. For limitations and exceptions, on the other hand, the draft
decision asks WIPO members to "encourage progress" on L&Es consistent with
the WIPO General Assembly mandate of 2012, with the goal of submitting
recommendations on limitations and exceptions for libraries and archives as
well as on educational and research institutions and persons with other
disabilities to the WIPO General Assembly in 2015", "whether model law,
joint recommendation, treaty and/or other forms."

While it is encouraging to see member states providing the explicit mandate
for WIPO to update its regional studies for limitations and exceptions for
educational, research and teaching institutions and to examine the
possibility of preparing a study on copyright and related rights
limitations and exceptions for persons with other disabilities (than
blindness, visual impairment, or print disabilities), the deadlock that
resulted in the last two sessions of WIPO's copyright committee does not
provide any mandate for the WIPO's secretariat's zealous push to ram
through the broadcast treaty.

The 2014 WIPO General Assembly is emerging as the next battleground to set
in place the road map for the Broadcast Treaty and WIPO's future work on
copyright limitations and exceptions.



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