WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 3 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.
Day 5 – 26th SCCR
The agenda for the final day of the 26th SCCR was set as limitations and exceptions for educational and research institutions and for persons with other disabilities.
Trinidad and Tobago, speaking on behalf of the GRULAC group of nations, supported the idea of an international convention on this agenda. It was of the opinion that such an instrument would work for the benefit of the economic development and socioeconomic enablement of millions of people in the GRULAC region. Algeria, speaking on behalf of the African Group, emphasized the digitalization of education, research and living across the world and the impact that this has on the right of peoples of all nations to access knowledge. Responding directly to sustained opinion from the developed world of the absence of a need for an international convention, Algeria spoke about the need for balance and uniformity in regulations. This balance between the right to access knowledge and to protect intellectual property is often achieved through the concept of limitations and exceptions. This balance also requires uniformity because conflicting cross-border norms in our digitally borderless world would render the ameliorative effects of limitations and exceptions moot. Further, the Berne Convention has proved to be of minimal help since interpretations have emerged of its dissonance with the tools needed for distance education. Therefore, in order to cover the digital dimension of limitations and exceptions, an international treaty is critical. In the words of the Algerian delegate, “We know that the balance between Intellectual Property rights and public interest are generally translated by exceptions and limitations. Unfortunately in the area of education and scientific research, national legislation does not seek this balance in a uniform and comprehensive manner.”
The delegate also responded to concerns about the text proposed by the African Group. The proposal, he said, was a text-oriented tool to find an apt balance. Further, it was also imbibed with a certain degree of flexibility to allow for its adaption to the needs of development as understood by nations, various kinds of copyright protections and various treaties in literary and artistic property. Furthermore, the African Group wished for this text, if adopted, to move on the principle of consensus and expressed a willingness to incorporate any constructive concerns that delegates may have in order to stay true to the ideal of consensus-based diplomacy.
A number of developing and developed countries supported the need for greater discussion at the international paradigm on the topic of limitations and exceptions, and also the swift adoption of an international instrument in this respect. Kenya and the Islamic Republic of Iran put their weight behind the African Group, emphasizing similar values of digitalization of information and communication, right to access knowledge, public interest and need for an international instrument. Tunisia also supported the notion that an international instrument would lead to the harmonization of standards and benefit the international community. China came out in strong support of further negotiations. Russia noted that it was in support of a single document for limitations and exceptions that covers within its ambit the entire gamut of protections discussed at this forum. Further, it also supported the contention of the Japanese delegation that the international instrument should not include contentious issues such as instance liability.
It is also pertinent to note that Japan, on behalf of Group B, came out against the idea of a treaty based approach to the negotiations, much preferring “constructive work on principles and updating of studies by the Secretariat”. The European Union submitted that the extant international copyright framework was both adequate and ideal for the needs of both the digital and analog world of education, research and needs of persons with other disabilities. The EU proceeds to draw a distinction between the needs of educational and research institutions and persons with other disabilities vis-à-vis needs of persons with visual and print impairment. In drawing this distinction, it seeks to achieve principled coherence across its support for the Marrakech Treaty and its opposition to any treaty on limitations and exceptions. It expressed concern that the working document was not an accurate reflection of the views of those countries that were of the opinion that present negotiations should be confined to the sharing of national experiences. Given the diversity in domestic regulations, any international treaty should seek to achieve domestic regulatory harmony and then proceed, assuming that the need argument fails to hold water.
The Indian delegate submitted that the discussions were in furtherance of earlier deliberation on limitations and exceptions for libraries and archives. There was a dire need to understand libraries and education not in a parochial, institutional sense but in a broad and enabling manner to meet the needs of developing and least developed nations. Both the material and transmission should be covered in order for distance learning to be enabled in any meaningful manner. Further, it was also of the opinion that an expansion of ISP liability is needed, citing the IT Act in support of this.
At this point, the developing nations made their voice heard in opposition to the fundamental premise of the ongoing negotiations – that an international treaty is a worthwhile goal to work towards. Poland, on behalf of the CEBS Group, commecnced his statement by taking cognizance of the importance of educational and research institutions and activities in our society and economy. The delegate recognized the existence of the knowledge triangle of education, research and innovation. Proceedings from this premise, it was the view of the CEBS Group that the best way to hone this innovation is by establishing a robust and strong system of intellectual property. Further, it went on to draw the link between the critical activities of distance learning, collaborative research with the activities of publishing and other aspects of the creative sector. Copyright policies therefore have to also take into the account the economic and social effects of not enabling access to research. The CEBS Group argued for a balanced copyright approach. It went on to support the idea of each WIPO member incorporating enabling limitations and exceptions within their domestic copyright regimes through a mutual sharing of best practices and national experience using multilateral for a such as this one. It was of the belief that modern copyright systems should provide for efficacious licensing mechanisms that are flexible, supportive and enabling to education, research and teaching activities as well as the needs of persons with other disabilities. Supporting the values emphasized by the developing world does not necessarily require the adoption of a binding international instrument. It concluded that the need to develop a comprehensive understanding of limitations and exceptions should not come at the flexibility that is conventionally afforded to WIPO member states to determine their own educational, research and teaching policies and norms to enable the lived experience of persons with disabilities.
The United States started by submitting their own document – SCCR/23/4 – on objectives and principle for limitations and exceptions for libraries and archives. The US chose to further the CEBS submission by underscoring the potency of the extant copyright regime – Berne Convention 1886 and WIPO Copyright Treaty 1996. Both have a balance between copyright and education and have the promotion of education, research and teaching as their stated goals. Therefore, notwithstanding the contention that they are anachronistic given the digitalization of information and communication, it is possible to accommodate contemporary needs within existing regimes. The US stated that it was of the opinion that finding common ground on principles and an examination of the diverse national treatment of the issue of limitations and exceptions would render a more productive, positive solution than foisting a treaty or international legal instrument on the domestic regimes of WIPO members. It was of the opinion that this would “permit progress by promoting steps forward on shared goals and principles while enhancing international understanding and maintaining flexibility at the national level. We do not support work towards a treaty.” It also went on to voice concerns about the inclusion of controversial and broad areas of protection within the rubric of the treaty – topics such as public health and ISP liability were causing much consternation to the delegate of the United States. A plethora of reasons were advanced by the US that articulated its layered opposition to this entire process. There was a concern that given fundamental differences of opinion, inclusion of contentious protection would be pernicious to the negotiation itself. It was also of the opinion that a lot of the provisions had only incidental relevance to the central question of education and rights of persons with other disabilities would distract the nations from the purpose of the proposed international instrument. This proliferation of protections would in turn harm the considerable economic, social and political capital invested in the negotiation process.
Senegal affirmed the idea of an international agreement on limitations and exceptions. It believed that the contemporary is far removed from the world in which the Berne Convention and extant international copyright regime was conceptualized. Therefore, Senegal was in favour of a flexible international instrument that responded to digitalization and was proactive rather than reflexive. Sudan also threw its weight behind the African Group proposal and offered a scathing critique of the exclusivist tendencies of the contemporary copyright regime. It called for “efforts to break the current situation faced by certain countries in communication or in building the infrastructure and bridging the digital gap.
Columbia, on the other hand, spoke about the need to understand if there is a lacuna in the present international copyright regime and understand the implications of adding to existing corpus of limitations and exceptions.
At this juncture, the Chair opened the floor for contributions from civil society representatives. Knowledge Ecology International focussed its submissions on three foci – specific exceptions, three-step test and the corporate system. KEI acknowledged the raft of protections for limitations and exceptions within existing copyright structures but articulated the need for specific exceptions. Further, it reasoned out the incompatibility of the Berne three-step test with the needs of contemporary knowledge creation, research and access. Transplanting the Berne Convention to this context would render it moot and have far-reaching pernicious consequences on the international community’s reactions to dire questions of access particularly in the developing and developed world. KEI acknowledged the underlying premise of US/EU/Group B objections to an international instrument by pointing out the difference in national treatment of limitations and exceptions. As a response to this legitimate concern, it suggested that complimentary confidence building measures such as a multi-stakeholder platform work alongside the treaty negotiations so as to ensure that it is an inclusive process that alienates no stakeholder.
IFRRO came out in strong support of the position against an international treaty. It stated that in pursuit of limitations and exceptions, one must not lose sight of the legitimate rights that creators have over their work. Diluting that principle would do harm to the idea of copyright and by extension creative and innovative thought. In support of this contention, studies were cited that showed a causal link between IP protection and income of authors.
The Centre for Internet and Society underscored the value of universal access to education and knowledge. Information and communication technology in the contemporary carry the tantalizing prospect of the realization of this ideal without excessive expenditure. It is also critical for this access question to be all-inclusive, for “formal and informal institutions and for environments and in digital and non-digital formats”. The experience of developing and least developed nations is a feeling of exclusion from the silos of knowledge in the west and it falls upon the international community to disrupt these silos to ensure equitable access to knowledge and, as a consequence, power. Individuals in these countries not only have to spend more on each book but have to spend a higher proportion of household income on it vis-à-vis Western households. The present international copyright framework lacks the ability to facilitate the realization of this ideal for three reasons. First, the myopic and complex compulsory licensing provisions in the Berne Convention. Second, the incompatibility of the three step test to contemporary limitations and exceptions. And finally, the need for harmonization of national practices and facilitation of cross-border exchange of information and knowledge.
On being called on by the United States, Ecuador and Egypt, it was decided that the Secretariat would study the possibility of a study on the ambit of copyright and related rights as also limitations and exceptions for persons with disability and from the perspective of learning concerns. It was also decided that the Secretariat would update regional studies on limitations and exceptions for educational, research and teaching institutions.
The next session, SCCR 27, would focus on a discussion on exceptions and limitations with a focus on libraries and archives.
Draft Conclusions
The draft conclusions to this year’s SCCR was put up by the Chair for comments by all members. Belarus and CEBS fully supported the text and praised it for its balanced approach. The United States also supported it but requested an edit to Paragraph 6 Line 4 – a ‘to be defined’ in parenthesis after the words ‘on demand transmissions’. India expressed gratitude that everyone’s views were taken into account in the draft conclusions and asked for two edits. It stated that parts of the discussion on Article 9 were absent from the text. Further, the words beneficiaries in the draft conclusions was included when it had no definition in the document. Finally, it suggested that the word last line in paragraph 5 be changed to might or may. The Chair responded to India’s concerns on paragraph 5 by directing attention to the word ‘if’ in the text. Ecuador and Brazil both supported India’s opinion that the word should be may or might and not should. India submitted that this is not simply an editorial or cosmetic change but one that reflected a substantive issue. Ecuador also stated that countries might in the future want to include internet transmissions and the word should conditions the negotiations, lending it a restrictive air. Brazil also stated that it was crucial for the text to be both balanced and reflective of every stakeholder’s concerns. India stated that this was a demand from two or three groups. The lack of consensus on this point implies that the word should be may and not should. The EU, US, Japan, Switzerland and Poland (on behalf of the CEBS) supported the text in toto- a tacit snub to India’s suggestion. Italy stated that the word ‘if’ in the text provides the kind of flexibility that India is seeking and that altering the word should to may would rob the provision of meaning and be grammatically grotesque. Looking for alternatives, India also requested that the words ‘at least’ be deleted in order for some aspect of its concerns to be taken into account. Belarus characterized the text as entirely factual and accurate portrayal of the negotiations that took place-gave its support to the entire text. The Chair then offered an explanation of the terminology and showed how the wording allowed for both possibilities of inclusion and exclusion of transmission over the internet.
Indian then turned attention to the lack of a definition to the word beneficiaries. The Chair acknowledged India’s concerns and accepted the US suggestion to add the words ‘to be defined’ after both beneficiaries and on demand transmissions. Brazil also suggested traditional broadcasting/cablecasting or broadcasting/cablecasting organizations in the traditional sense as possible ways to word the text. The EU requested the Chair for some language suggestions on how best to resolve this. The proposals (and not issues, after a request from India) on Articles 5,6,7,9 and 12 were added to the annex. After the incorporation of all these concerns and compromises, the Chair approved this section.
Libraries and Archives
On the limitations and exceptions for libraries and archives, the United States made two suggestions. First, that the word may be removed from paragraph 18 as it detracta from the nature of the deliberation on that point. Second, the inclusion of the phrase “other proposals submitted” in paragraph 21. Brazil stated that it stood for the draft conclusions to be a clear picture of the positions adopted by WIPO members. In this light, it called for the inclusion of the names of member states that wished to discuss national laws in paragraph instead of the nebulous phrase ‘some member states’. He also requested a clarification on the last line of paragraph 16. Trinidad and Taboga indicated that it was adopting a flexible approach; it supported the suggestions by the US and Brazil but were also willing to work with the text.
The European Union wanted the word ‘also’ to be removed from paragraph 14. It also suggested that the final sentence of paragraph 16 be “these studies will serve as information and work resources for the committee”. Ecuador agreed with the US working document. It was of the opinion that the document should better reflect a spirit of compromise. On limitations and exceptions for museums, given the study reflected in the plenary for persons with other disabilities – there was a discrepancy between the discussions and the text. One was with the understanding that it was subject to the availability of resources while the other implied that it was mandatory in nature. The EU wanted licensing to be included in the text. The US thanked Ecuador for working out a compromise on the language and accepted it. Algeria expressed its desire to stick to the language proposed by the Chair on paragraph 13.
The Brazilian delegate called for flexibility on paragraph 14 in light of the proposal by the EU delegation on the point of discussion on national laws. The United States responded that it didn’t quite follow the position being adopted by the Brazilian delegate on paragraph 14 and much preferred a return to the text originally adopted by the Chair. Egypt pointed out the possible confusion that could emerge between paragraph 16 and 21, and in light of this expressed a willingness to engage in a full scale discussion on proposals from Canada and the EU. The EU responded directly to paragraph 14 in particular. It spoke out against the idea of listing the WIPO members that asked for a discussion on national laws as this would be against WIPO practice both in other parts of the same document as well as in other deliberations. EU stated that it saw no need to list out WIPO members and stood firmly against it. Brazil responded with a modicum of alarm at the opposition to the simple proposal to introduce the elements of precision in a document that is meant to be factual. It is far better for readers to understand the precise picture rather than having a general understanding of issues. Italy, Belarus and Greece threw their collective weight behind the EU opposition to this. All stated that this would be highly inappropriate and would amount to the singling out of the EU and other nations that took a stance, something that they didn’t see a need for. The US proposed a compromise where instead of naming the member states, ‘some member states’ would be used. Brazil said that this term was not just nebulous but could give the wrong impression to future delegates of the precise number of states that wished for discussion on national laws. Ecuador played the role of the voice of reason and stated that the progress of negotiations shouldn’t be hampered because of such a cosmetic set of differences. There was no need for the level of precision that was exemplified by the naming of WIPO members. Instead, it stated that it advocated for a general references to nations that asked for a discussion on national laws. This general reference was supported by Algeria and finally adopted by the Chair as a compromise between the opposing factions. On paragraph 16, the Chair called for the part on limitations and exceptions on museums to be deleted with the understanding that there would be an update by Professor Kenneth Cruz that would include all aspects of this issue. On paragraph 14, the Chair was in favour of the compromise suggested by the United States. It stated that in using the word ‘some’ no particular number or indication thereof was intended and that caveat was always there; instead what was only meant through the word ‘some’ was that the number of was more than one. Asked for Brazil to show some flexibility in this situation. Egypt raised the important issue of not conflating the fundamental disagreement on the nature of the proposed instrument and the desire to have discussions on national laws. It stated that in case both were being included, they be mentioned in separate paragraphs because a conflation would lead to misplaced conclusions being drawn.
Deliberations on paragraph 16 ensued and the Chair clarified that on paragraph 16, the first and third sentence were being retained while the second was done away with. Ecuador asked for thereto be no confusion between studies on limitations and exceptions and those on museums. Its objection does not extend to the latter. The Chair suggested that all references to museums be deleted. Algeria wanted the words on preparation not being delayed to be retained and applied to all studies being proposed. US agreed with the Chair’s proposal but added that perhaps a separate study on limitations and exceptions on museums be included. Algeria insisted that this principle be applicable to all studies and not just studies on museums. The Chair stated that a separate study on limitations and exceptions for museums be included with the understanding that this would not delay general discussions on limitations and exceptions. The last sentence was also retained. With this, deliberations on this topic were closed.
Limitations and Exceptions For Educational and Research Institutions and for Persons with Other Disabilities
The European Union delegate stated that it was in support of the inclusion of the point on licensing as an appropriate point in the text. Sharing Algeria’s concern, it also called for the deletion of the word ‘understood’ in paragraph 23. Algeria had earlier raised a problem with the use of the word ‘understood’, preferring the phrase ‘agreed on’. The EU also called for the text to be accurate reflection of the negotiations. Brazil responded to the concerns of the EU delegate by stating that he would not be in support of a suggestion that this document not be the basis for future work on this topic. Ecuador supported Brazil’s point on this being a text-based negotiations and that this should be the basis for future deliberations. Brazil also expressed a bewilderment at the EU insistence of the inclusion of the point on licensing. It asked for its relevance in an agreement on educational institutions; a clarification was sought from the EU. The EU responded that it was of the opinion that we’re dealing with related subjects that deserve equal treatment. In this context, since licensing was included in the previous agreement, it must also be reflected in these conclusions.
Egypt supported the Chair’s language in paragraph 23. Further, it went on to attempt a compromise by suggesting that this text be not the basis for future text-based work but a basis. This would lend the issue a degree of much-needed flexibility. The US, on the side, supported the EU on including licensing schemes. The EU responded favourably to the compromise suggested by Egypt and said that a text where the word the is replaced by a is one that is agreeable to the EU.
The Chair outlined the three issues as
- The word ‘the’ in Item 27
- The inclusion of the point on licensing and the tussle between the EU (arguing for inclusion, supported by the US) and Brazil (against the inclusion).
- The point of this being the basis for future text-based negotiations and the compromise suggested by Egypt and accepted by the EU.
A compromise was worked out on licensing where the words “but other delegations do not see it that way” be included as a rider. Differences on points 1 and 3 were also ironed out as the Egyptian compromise was accepted. On this point, the third section was approved and deliberations came to an end.
Other Matters
It was announced that the reports of the Stakeholders’ Platform – SCCR/26/5 and SCCR/26/7 – be put up on the web page. Finally, suggestions were wielded and discussed for future meetings of the SCCR.
It was agreed that SCCR 27 would be dedicated to the protection of broadcasting organizations (two-and-half days), limitations and exceptions (two days) and conclusions and discussions on future work (half a day).
