WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 2 of 3)
Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.
26th SCCR – Consolidated Notes
Day 3
The Chair commenced proceedings by noting the need to take stock of the work done over the course of the first two days of proceedings. He stated that we needed to see the points of agreement as well as sticking points that persisted in order to chart a path towards resolution. There was an urgent need for clarity.
The floor was opened to Delegations and Regional Groups. The document before the countries is the one on draft conclusions for the discussions surrounding the Broadcast Treaty.
Belarus starts by expressing its support for the document before it and is ready to engage with any proposals that nations might have on it. Poland wanted the wording changed to broadcasting an cablecasting organizations in the traditional sense, but expressed its support for the document otherwise. A few other delegations, such as the one from Trinidad and Tobago, also expressed unease at the terminology of ‘traditional broadcasting organizations” in the document and much preferred broadcasting and cablecasting organizations in the traditional sense. Notwithstanding these concerns, there was considerable support for the draft conclusions.
The EU wants its discussions on transmissions over the internet to also be included as a part of the draft conclusions.
Libraries and Archives
Trinidad and Tobago expressed its full support for the exceptions and limitations for libraries and archives. They were keen to “close this gap to strengthen the copyright system as well as the human and collective rights for the benefit of creators and users alike”. It stated that the progress made in this regard was entirely consistentwith the Millennium Development Goals and the Development Agenda of WIPO. The CEBS group also came out in support of this framework. Further, it added that it would benefit greatly from the sharing of national experiences in this matter. It was stated that the modern copyright system should have a licensing system that is supportive of libraries, archives and other every day research. CEBS was sceptical however of the need to enter into any sort of international treaty in this regard. The delegate from Bangladesh pointed out the acute need for this limitation and exception particularly from the perspective of a developing nation in dire need of free flow of information. In this context, the Indian delegate was invited to make comments. The EU put on record its opposition to any sort of binding international instrument in this regard, and they wished to see this desire reflected in the title of the document. Iran called for the commencement of text-based negotiation since it was fairly clear that there was a need for an international instrument in this matter. Colombia concluded by stating that access to knowledge should be the guiding principle for the exceptions and limitations. It was very important for the libraries to fulfil the public interest for there to be copyright protection to its activities. It stresses however the need to continue to provide incentive and legitimate copyright protection even within this framework.
Day 4
Discussions continued on the first topic of preservation as found in the SCCR/26/3 which focusses on exceptions and limitations enabling libraries and archives. For this session, the Chair outlined the issue up for comments as the right of reproduction and safeguarding copies.
Azerbaijan, speaking for the first time, stated that it took cognizance of the importance of exceptions and limitations and supported an international instrument on it. The purpose of limitations and exceptions should be to allow librarians and archives to preserve the documents. The documents protected should be used solely for research purposes and must be in accordance with fair practice. Australia clarified the role of preservation to be the continuing availability of physical and digital works already held in the collections of a library or archive for the benefit of present or past users. Critical to be very specific when talking about preservation in order to prevent the proliferation of rights. It stated that it was yet to be convinced of the need for an international instrument. Belarus noted that it supported the need for an international legislation. It supported the formulation of rules in this regard on the basis of the three step test, in order to maintain the balance of interests at play. It is imperative that strict rules of interpretation are employed while introducing this into domestic legislation in order to avoid ambiguous approaches that will lead to the abuse of the freedoms codified. The non-commercial and non-profit making nature of libraries and archives were emphasized. In explaining the merits of the three step test that would facilitate the entry of this international document into domestic law, Poland shared its national experiences in this regard with the group. Brazil suggested that the concern of proliferation of works voiced by many countries could be resolved by engaging in deliberations that result in clear definitions. It suggested that the intervention made by Canada be made into an annex as a subject that can discussed in the text in the future. Russia noted that the Berne Convention is the bedrock of international intellectual property and copyright law and coupled with reference to national legislation would help in reaching a common understanding on preservation. Morocco was in support of an international legislation since dealing with the problem nationally would be woeful piecemeal approach. Senegal pointed out definitional issues that were plaguing the discussion. If there was no common ground on the idea of a library and an archive, then the discussions on exceptions and limitations would not break any new ground. Therefore, the discussions appeared to be proceeding on two tracks – nature and scope of the exceptions and limitations for libraries and archives and the need for an international instrument that went beyond national legislation. The Chair opened comments on the latter track since that is foundational. The United States reiterated its opposition to any agreement that transcended national legislation. It also wished to introduce a bit of complexity in its discussions by pointing out that its domestic copyright law had no understanding of a library or archive. Therefore, it was going to be difficult to come to an understanding at the international level when national legislations themselves have not reached that point in their trajectory. Both El Salvador and Ecuador tacitly stated that they were in favour of an international legislation by continuing the discussion on merits. El Salvador opined that there was some degree of good faith involved and that was unavoidable in the pursuit of the desire to facilitate the sharing of knowledge. Greece stated that limitations and exceptions should only be applicable when an additional copy is not available in the market. Significantly, it stated that libraries and archives could enter into agreements with the rights holders by themselves. A flexible international framework was what Greece was aiming at, not an international legislation that went beyond national legislation. Both Greece and the EU suggested using the EU Copyright Directive as a starting point for defining libraries and archives. It asked for the flexibility it already had within the EU framework to be respected. Italy stated that it saw no international interest in a transnational agreement on exceptions and limitations. India emphasized the point that there was an international interest in preserving the culture of countries. The international dimension was in the context of cross-border cultural exchange. Congo came out in support of an international agreement as well. There was some degree of opposition from Greece that questioned India on why either manuscripts on cross-border cultural exchange had anything to do with preservation. In its opinion, those two goals could be achieved even without the formation of an international agreement on exceptions and limitations. India responded by clarifying that it did not use the example about ancient manuscripts in the context of copyright but the existence of an international interest in the matter of preservation. The issue of preservation of works within a library are for present and future use. This use, in today’s globalized world, is not just for the citizens of that country but for researchers the world over. In order to allow for thus cultural exchange, it was imperative that the copyright of the work not come in the way. Hence, there was the need for an international, and not merely national, legislation on the issue.
On France’s concern about Ecuador’s vague understanding of fair use, Ecuador clarified that this would be the same as in the Berne Convention and the three step test would apply. Finland, Jordan and Senegal then shared their countries’ national experience in this regard.
The Chair concluded the discussion on the first topic by articulating what he saw as a principle that is in the common agreement of all. In order to ensure that libraries and archives can develop their public service of the preservation of works in order to preserve knowledge and heritage, we need exceptions and limitations. Certain circumstances and guarantees are yet to be discussed and disagreements persist but none that threaten the need for a discussion.
Topic 2 – Right of Reproduction and Safeguarding of Copies
The Secretariat noted that there were proposals from the African Group, Brazil, Ecuador, India and the United States.
The EU opened the discussion with the suggestion that the title of this topic should only be focussed on the right to reproduction. This was in light of the nature of the proposals made by the various groups and nations. Ecuador situated the debate on the right to reproduction within the broader framework of limitations and exceptions for libraries and archives. It was imperative, it stated, that a right for libraries be carved out in order to facilitate the important social role they discharge. France added to the concern voiced by the EU in stating that it felt that safeguarding was already covered within the ambit of the previous topic. Brazil responded to this by drawing a clear cut distinction between the first and second topics. The right of reproduction was applicable to libraries while safeguarding was for archives. Both the role of the library and that of the archive merit discussion, it was emphasized, and both should equally be included in the second topic. Senegal supported the idea of an inclusive topic that mentions both the right of reproduction and safeguarding of copies. It stated that a distinct right of safeguarding was crucial at a time when vital cultural artefacts are vulnerable to destruction. The example of the museum in Timbuktu that was ravaged by militants leading to the irreparable loss of invaluable manuscripts was cited in support.
Italy voiced a two-pronged opposition to the very idea of articulating a right to reproduction. First, it stated that allowing for reproduction, even in University libraries, would open the floodgates to copyright violations. It was afraid that copyrighted material would be reproduced within the library which would then lead to that material appearing on for a not envisaged within the rubric of the treaty. Second, it was against the extension of the idea of research to private research. The transmission of the reproduced material to third parties would lead to a loss of revenue to the rights holder in question. To Italy, the latter was even more egregious since the former at least allowed for the possibility of, via the money paid for the reproduction, monetary compensation of the rights holder. The latter however had no room for this to be effected.
Belarus supported the EU position on the exclusion of safeguarding from the present discussions. Further, Belarus stressed that it wanted a caveat to the exception for scientific and educational research. It wanted the kind of material that would fall under the exception to be limited to “just articles or short works or excerpts from books” since “the student or researcher probably doesn’t need the whole book”.
Brazil assuaged the concerns of the right holders by pointing out that its proposal in paragraph 2 makes national legislation the focus. Fuether, it added that with respect to the international dimension to the rights, the GA had already stated that there would be an “international legal instrument”. Therefore, the multilateral nature of both the subject matter and scope of the negotiations is beyond the pale of doubt.
The representative from the International Council of Museums noted that all of the rights were equally applicable to museums as well. Very often, museums suffered from a lack of uniformity and harmonization of rules across multiple jurisdictions. This was the need it saw for an international treaty on the issue.
The Chair summed up the discussions. Despite the emergence of any sort of consensus, most countries had agreed for a need to have exceptions and limitations for libraries and archives. Further, a right to reproduction of works for libraries was recognized to facilitate the reproduction of certain works under certain conditions for the purposes of research. The scope of none of these terms have been agreed upon by states nor has there been much agreement on whether this extends to distribution of the material and to what extent. The EU and the USA mentioned that they did not think there was a need for an international agreement on this and the GA wording was not binding in any sense.
Topic 3 – Legal Deposit
The Secretariat noted that there were proposals from the African Group and India on this. This was not received very warmly by the delegates. Most thought it was out of the place in the current discussions. The US opposed the need for any discussion at the international level since the issues in question were codified in domestic law to varying degrees. Therefore, it could not be said that it was “ripe for harmonization”. Colombia found the concept of legal deposit “strange” in a document on exceptions and limitations.
Topic 4 – Library Lending
The Secretariat noted that there were proposals from the African Group, India, Brazil, Ecuador and Uruguay.
Ecuador explained in great detail that the reason behind this was to allow for libraries to lend copyrighted works to its users or to another library. Very often, research necessitates the movement of the physical copy of a particular work. In other instances, the presence of a particular copyrighted work in a specific library has great symbolic and cultural value, apart from its patent value for research activities. In furtherance of its earlier objections, Italy explained that lending could also lead to egregious copyright violations. Along these lines, it objected to the idea of digital lending since it went against the grain of lending because returning a digital copy was not possible or meaningful. The International Federation of Libraries, representative from civil society, pointed out that there were technological tools that would prevent the unintended and harmful proliferation of lent digital copies. Digital lending could take place by passing along a password encrypted digital copy that would expire after a set period of time.
Greece furthered the harm that this would have on copyrighted works by asking why anybody would want to get the original if lending is applied to the realm of films via digital transmission. Responding to the African Group proposal, it asked how this was in conformity with the three step test. The US responded by drawing a positive causal link between lending and commercial purchase of the product. Again, the Chair summed up by stating that agreement was that exceptions and limitations must extend to library lending but agreement on the scope and nature of this extension evaded consensus.
