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Copyright & Regulation

WIPO’s SCCR fails to reach a consensus on the proposed Broadcasting Treaty



The World Intellectual Property Organisation‘s Standing Committee on Copyright and Related Rights (SCCR) met up for its 42nd session in Geneva May 9-13. The SCCR’s purpose is to “examine matters of substantive law or harmonisation in the field of copyright and related rights.”

This year’s agenda was packed and dominated by the proposed Broadcasting Treaty that WIPO has been drafting during the past few years. However, the Committee failed to reach a consensus on the proposed draft, and the text will have to be revised and presented again at SCCR 43.

Due to a lack of time, the SCCR did not have opportunity to discuss a proposal on the resale right for visual artists, and the discussions on this topic have been postponed for a future meeting.

Below is an overview of SCCR’s five days of discussion by James Taylor, Director of Communications and Freedom to Publish at Geneva-based International Publishers Association (IPA).

Day 1

A blue sky welcomed back delegates to Geneva for the first in person WIPO SCCR since 2019. An information session on the impact of COVID on the copyright ecosystem, election of a new officers and approval of observers were the headline discussion points for the day but the Russian invasion of Ukraine cast a shadow over the morning’s proceedings.

The conference hall was well attended with delegations and observers also joining remotely. You can follow the week’s meetings here.

The 42nd Standing Committee began without an official chair. The WIPO secretariat, through Michelle Woods, assumed the role of Chair to keep things moving. Deputy Director General, Sylvie Forbin, welcomed the delegates but then the Russian invasion of Ukraine dominated the morning’s proceedings, with delegates and observers leaving the chamber en masse after the Russian Federation Delegation took the floor to call for WIPO’s work to remain non-political, and using its right to reply to justify the invasion of Ukraine.

Following a short break, delegates returned to the chamber for an information session, not formally part of the SCCR agenda, on the impact of COVID on the copyright ecosystem. The session opened with the presentation of a new report: The impact of the COVID-19 pandemic on creative industries, cultural institutions, education and research.

The WIPO report wasn’t the only report released on this first day of SCCR. IFLA, the International Federation of Library Associations and Institutions, and EIFL, Electronic Information for Libraries, released their own on How well did copyright laws serve libraries during COVID-19? (spoiler: libraries complain about copyright).

The Information Session closed and the SCCR resumed with the agreement on the officers for the coming period:

  • Abdoul Aziz Dieng (Senegal) became Chair until the first meeting of 2023, then becoming Vice Chair until the first meeting of 2024;
  • Owen Ripley (Canada) was elected Vice Chair until first meeting of 2023 when he will assume the SCCR Chair until the first meeting of 2024;
  • Peter Labody (Hungary) was elected SCCR Vice Chair, until the first meeting of 2024.

Officers duly elected, the Committee proceeded with Committee business and approved seven of the 13 applications for observer status. There was however no consensus over the approval of the six national Wikimedia associations, with Chinese delegation expressing its opposition and a number of other delegations reminding the Committee of the need for consensus.

The last item of the day was the adoption of the report of the last SCCR. This will be the last time that such a written report will constitute the recording of an SCCR meeting with the video recording and transcript to be the future report of reference.

Day 2

The broadcasting treaty was the key agenda item SCCR’s second day. Delegates seemed impatient to move on to this discussion after two years of delay and with a new text in front of them.

This being a hybrid SCCR, with some delegations joining remotely, a number of delegations reminded the SCCR that “real” or “final” negotiations would not be possible while a significant number of delegates were not present in the Conference Hall. There were also a range of reactions that suggested the road to a possible treaty might yet be long and winding.

The first side event of the week on ‘Copyright Exceptions and Research was organised by the Program on Information Justice and Intellectual Property (PIJIP) of the American University Washington College of Law. The presenters displayed a green-yellow-red map of the world to advance their plan to introduce a cross-border copyright exception they hoped would no longer be an exception but quickly become the rule: this irony was not lost on the IPA team…

The afternoon was mainly taken up by Finnish copyright expert Jukka Liedes walking through the details of the new text of the Broadcasting Treaty, meticulously and adroitly, before the day’s session was adjourned.

Day 3

Day 3 of SCCR 42 opened with further discussion and analysis of the new text on the broadcasting treaty with the afternoon reserved for discussions on exceptions and limitations.

While there still seemed to be a reasonable divergence of opinions, Chair Abdoul Aziz Dieng suggested convening a second special, technical session this year to enable quick progress on the text. The suggestion took a few delegations by surprise: some understood it was for a full SCCR, while others for just a technical meeting. The floor swung between national delegations and observers, from comments on the proposal for a technical meeting to questions on the draft text without resolution by the lunch break.

The side event on The role of copyright in the growth of national audiovisual sectors – A focus on Turkish film and TV production and global distribution was well attended and gave delegates and observers a fascinating window into the world of Turkish TV, which has been successful in finding audiences in Latin America, Europe, the Baltics and the Middle East. An example of the power and reach of copyright.

The afternoon opened with the Chair clarifying that he was proposing a technical meeting later in the year not another full SCCR meeting: three days in October for a “special meeting” with a series of workshops. And with that the agenda item on the Broadcasting Treaty closed for the day.

The Africa Group, took the floor to present its Proposal by the African Group for a Draft work Program on Exceptions and Limitations.

The WIPO secretariat, through Geidy Lung, Senior Counsellor in the Copyright Division within the Copyright and Creative Industries Sector at WIPO, then reminded delegates what had happened in recent years on the issue of exceptions and limitations, including 2019’s action plans, regional seminars, and reports.

Member States took the floor to share their views of the Africa Group Proposal with all willing to engage constructively on the issue but clear divergence on much of the content. There was continued opposition to any work that may lead to a legal instrument or treaty. There was consensus on using SCCR to gather information and facilitate exchanges of best practice. But here were disagreements over the call in the African proposal to delegate drafting work to experts.

Observers then took the floor.

IPA President, Bodour Al Qasimi, delivered a statement where she underlined the importance of copyright in enabling publishers around the world to react quickly during the COVID-19 pandemic and keep people learning and reading. She spoke about her own experience in talking to IPA members in many developing economies where limited digital infrastructure and insufficient copyright enforcement slowed down the ability of publishers to adopt digital publishing. You can download the full statement here.

Observers sought clarification on Group positions and to expose divisions within Groups, calls for work on exceptions and limitations to progress urgently and suggesting copyright was to blame for many challenges faced during the pandemic. Organisations for rights holders were increasingly outnumbered in the observer stalls by a range of organisations calling for action on exception and limitations.

Day 4

Day 4 of this 42nd meeting of the SCCR picked up exactly where Day 3 left off, with discussions on exceptions and limitations and observer organisations continuing their statements.

Once the remarks regarding the African proposal had closed, delegates and observers had an opportunity to ask questions of the different experts who drafted reports for the SCCR in recent years.

IPA was quoted by the expert Raquel Xalabarder: Good copyright laws are those that are effectively enforced. And then said that exceptions could play a role in that. She made a point of underlining that exceptions can be remunerated.

The final session of the day started with the Chair welcoming the many questions and interventions from the observers, while noting that Member States had been quiet so far. Dieng reminded them that the WIPO secretariat relies on their interventions to understand and follow up on different positions.

Observers lead the way in asking the different experts (Kenny Crewes, Rina Pantalony, David Sutton, Raquel Xalabarder and Yaniv Benhamou) about their opinions on a range of matters from the technical to the practical. Some of the experts underlined that they had refrained from making recommendations and restricted themselves to analysis, as recommendations are the remit of the Member States.

Other experts underlined how the development of a binding international instrument could be extremely difficult, if not impossible given the diversity of exceptions and their implementation around the world.

The final observer to talk was Glenn Rollans from the Canadian Copyright Institute who was able to remind the Committee of the real impact of real exceptions on the creation of educational resources in Canada over the last 10 years. You can read more on that here.

The experts delivered their final reflections urging quick progress and the identification of areas that are ripe for that kind of pragmatic progress, like preservation.

The day closed with a side-event organized by IFPI – The music industry unwrapped — underlining the fundamental importance of copyright in the global musical ecosystem and how the sector had evolved with the advent of streaming services.

Day 5

The final day opened with a focus on music with the item Copyright Related to the Digital Environment and presentations from a series of seven experts who had prepared reports on different aspects of the music industry in different regions and who were then able to answer questions from observers and delegates.

The day’s side event was an update on WIPO’s Alternative Dispute Resolutions for Digital Copyright- and Content-related Disputes organised by the WIPO Arbitration and Mediation Centre.

The Copyright Related to the Digital Environment discussions continued, taking up most of the day and closing just 45 minutes ahead of the scheduled close of SCCR 42 with discussions on the resale right, the rights of theatre directors and the public lending right yet to start.

The Chair rattled through the three remaining agenda items with an international conference on theatre directors’ rights put forward, and the resale right discussions postponed for a future meeting.

The delegate for Sierra Leone took the floor to reiterate their support for a study on public lending rights noting that the WIPO secretariat had the resources to conduct such a study in a neutral way without pre-empting any formal work of the Committee on the issue. The exchange that followed revealed starkly differing views among Member States and observers. The Chair, sensing an absence of consensus agreed to postpone the issue for further discussion at the next session.

The reason for the delay to the day’s proceedings was finally revealed as the Chair handed over to Deputy Director General Sylvie Forbin who closed the day by announcing the draft conclusion for the discussions on the Broadcasting Treaty with the text to be revised and presented again at SCCR 43. There was no consensus on a proposal for a technical meeting in 2022 but decision was made to hold two SCCR meetings in 2023.

Regarding Exceptions and Limitations, there were two conclusions. The next SCCR would see presentations on cross-border uses such as in online education and research. The WIPO secretariat will also be expected to develop toolkits targeted at technical assistance programmes which could help member state craft laws and policies which support education research and reservation of cultural heritage developed in consultation with experts and stakeholders from beneficiary communities and rights holders.

A final report will be circulated in the coming days.

By James Taylor

(Picture courtesy of James Taylor)

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