Deja Vu: Broadcast Treaty to Remain on SCCR Agenda
Deja Vu: Broadcast Treaty to Remain on SCCR Agenda
Deja Vu: Broadcast Treaty to Remain on SCCR Agenda

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    The 18th session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) concluded last week. The most substantive discussions centered around: 1) a treaty for limitations and exceptions to copyright to facilitate access to works by the blind, visually impaired, and other reading disabled and 2) a proposal to consider possible norms for limitations and exceptions to copyright. I have written about some of these discussions in my previous post.

    In addition, the Committee also discussed proposed treaties for protection of broadcasting organizations and audiovisual performers. Discussions concerning the broadcasting treaty during this session mirrored that of the last session of the SCCR which Sherwin has reported here. Country after country expressed support for keeping the broadcast treaty on the agenda though they differed on the approach a treaty should take.
    We have said before that the proposed broadcasting treaty would give broadcasters exclusive copyright rights in content they may not own. Such protection would harm the interests of copyright owners, consumers, Internet intermediaries, and device makers. Further, the treaty is not properly tailored to prevent signal theft – the harm that is put forth as the justification for the treaty.

    Some of these concerns animated member states when the broadcast treaty was discussed at the SCCR. Pakistan, India, Indonesia, and Brazil called for a signal based treaty – a treaty that would prevent misappropriation of the broadcast signal without giving exclusive rights in the content being broadcast. The Group B states (a group of countries that includes the US, European Union, Japan, South Korea, Australia and New Zealand that often negotiate as a coalition) favored the exclusive rights approach. This difference in approach has persisted for a long time and shows no signs of resolution. And the WIPO General Assembly has directed the SCCR not to move towards finalizing the treaty unless there is a consensus among member states. Despite the lack of consensus the treaty continues to be kept on the Committee’s agenda and the SCCR continues to expend valuable time and resources on the broadcast treaty when it could be addressing more pressing concerns such as securing the rights of the blind to read or working on limitations and exceptions to copyright that would help increase access to knowledge.

    The highlight of the last day of the session was a wrangling among member states on what the draft conclusions should look like. The Chairman circulated three drafts before the final language was agreed upon. The Chairman, along with leaders of groups of countries that form negotiating clusters, spent about 7 hours towards the end of the session in closed door discussions trying to work out the final language of the draft conclusions. Because civil society was kept out of these deliberations, we cannot report with certainty the points of contention that were ironed out in this meeting. Yet, if discussions during the earlier days were any indication, countries would have had differences mostly about how much importance should be attributed to the treaty for the blind versus general limitations and exceptions. The other area of disagreement is likely to have been the design and length of the questionnaire that countries had to fill out explaining copyright limitations and exceptions in their domestic laws.

    Here’s the relevant portion of the final draft conclusions:

    The Committee reconfirmed its commitment to work on the outstanding issues of the limitations and exceptions, as decided at the seventeenth session of the SCCR, taking into account development-related concerns and the need to establish timely and practical result-oriented solutions. Likewise, the Committee reaffirmed its commitment to continue without delay its work in a global and inclusive approach, including the multifaceted issues affecting access of the blind, visually impaired and other reading-disabled persons to protected works.

    The Committee expressed its appreciation for the Proposal by Brazil, Ecuador and Paraguay Relating to Limitations and Exceptions: Treaty Proposed by the World Blind Union (WBU). Views were expressed: supporting the proposal for a binding instrument; expressing the wish for more time to analyze it; expressing the desire to continue the work on the basis of a global and inclusive framework; and expressing that deliberations regarding any instrument would be premature. Member States will continue to consult on these issues at national level and report on the activities and views on possible solutions. This proposal, together with other possible proposals and contributions by the Members of the Committee, will be discussed at the nineteenth session of the SCCR.

    The Committee took note of the draft questionnaire on limitations and exceptions and invited delegations to send comments to the Secretariat before July 15, 2009. Based on those comments, the Secretariat will present a revised questionnaire at least one month prior to the nineteenth session of the SCCR for consideration and with the aim of final approval during that session.

    Although the conclusions reflect the lukewarm response by many member states to proposals for limitations and exceptions to copyright to facilitate access by the blind, the fact that this issue and the issue of limitations and exceptions generally were discussed in greater detail than treaties proposing greater rights for content owners is a good sign. We hope this will lead to a new culture at WIPO that focuses not only on the needs of copyright owners but also on the importance of copyright limitations and exceptions in promoting the progress of knowledge and culture.