Things got underway in the public session a little after 4 pm here. After a great deal of private negotiation on the part of the regional groups, Jukka Liedes was again elected as chair of the SCCR. In a change, however, Luis Villaroel of Chile was elected as one of the vice-chairs, along with a representative from Morocco. Chile has often been at the forefront of discussions regarding limitations and exceptions at WIPO, introducing two documents in earlier sessions that proposed WIPO analyze limitations and exceptions and see if there was consensus to be found on them.
Limitations and exceptions to copyright would include specific copyright exceptions like those provided in many countries for libraries, as well as more flexible doctrines like fair use in the US. There's some hope that their placement on the agenda for this meeting will create some progress towards establishing user rights at a global level.
So after the long-negotiated result of the election, and after a moment of silence for the recent death of Otavio Afonso of Brazil, Jukka Liedes gave an introductory speech on the substantive topics of the meeting.
He noted the long period of time during which the audiovisual performers treaty had been discussed, and the inability for nations to reach consensus in a diplomatic conference on the topic. He also noted that a long series of years has now passed in the discussion of a broadcasting treaty, also as yet without consensus. He noted that despite these outcomes, a lot of work had been put into these projects, and that the question was now what to do with them—to “be honest with ourselves” and look at the divergences of opinion and see if there was a possibility to continue.
Also, he said, the period of time for these discussions has been so long that a lot of development has taken place in the world in operating environment—and the SCCR has had no meaningful possibility to take stock of what has happened.
For that reason, and given Chile's proposal, there is question of L&Es, and whether the Committee can reach agreement now that there is concrete proposal.
Following this introduction, Slovenia, on behalf of the European Community, requested that a discussion of WIPO's arbitration and mediation center be added to the agenda. As it turns out, the Slovenian delegation, again, on behalf of the EC, was interested in eventually examining whether the center could be useful in settling copyright disputes or collective licensing agreements.
Brazil made a request regarding the agenda, after Algeria asked the chair if the order of topics on the agenda would reflect the order of work in the Committee. Brazil asked that the discussion of exceptions and limitations be moved up in priority, before the discussion of audiovisual performers and broadcasters. The Brazilian delegate made this request based on the fact that both the audiovisual and broadcast treaties were issues that had been discussed at length before without resolution, so they hoped that the Committee would be able to address new matters.
Liedes responded by noting that, at least for the audiovisual treaty, the SCCR couldn't actually engage in substantive discussion, since the treaty was currently in the hands of the larger General Assembly. Since discussions on the audiovisual treaty would be more of a taking stock of the situation, he suggested it remain first.
On the other hand, and after both El Salvador and Chile supported Brazil's proposal, it was decided that exceptions and limitations would be discussed before the broadcast treaty.
Senegal also spoke out strongly against the idea that the SCCR should move on to a discussion of exceptions and limitations before concluding work on the audiovisual and broadcasting treaties. The Senegalese delegate argued that, since exceptions are only valid when there is a rule, that for the requirements of consistency, the Committee should discuss substance of the rules before exceptions of the rules.
This is a somewhat odd argument—there are a number of copyright and related rights rules already agreed upon by the members of WIPO, in the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty, among others. A discussion of limitations and exceptions can certainly take place with respect to the rules laid out in there treaties.
A more important point, though, is that limitations and exceptions are not merely odds and ends—details to be addressed in the final provisions of treaties focused on granting rights to copyright holders. Detailing the circumstances under which users don't have to ask an author's permission to use a work is just as much a part of defining copyright law as defining the extent of exclusive rights granted to rightsholders.
Furthermore, it's clear that there are a number of fairly uncontroversial minimum rights that all of the member countries are comfortable granting to rightsholders, even if other types of rights that go beyond that (like rights for broadcasters) start to result in disagreement. Coming from the user's end of the scale, though, there should also be a number of uncontroversial minimum exceptions and limitations that all member countries can agree on. After all, who could object to certain limitations allowing specific educational uses, or access for the blind? From both the rightsholder's and the user's perspective there should be plenty of common ground at the most basic levels.
After a discussion of the report from the last session, talk moved to the audiovisual treaty. A large number of delegations noted their support for the process continuing, including the seminars and workshops WIPO has scheduled and continues to schedule to raise awareness and build consensus on the issue. Some delegations had an expressed desire to see the treaty come to pass (Senegal, Colombia, Japan), while others expressed more general support for continued attempts at consensus building. Morocco and Brazil, however, noted that the failure of the diplomatic conference in 2000 made success unlikely.
Non-governmental organizations who commented on the audiovisual treaty included the International Federation of Actors (FIA); the Comite Actores, Interpretes (CSAI); and the Ibero-Latin American Federation of Performers (FILAE). All of these groups urged the Committee not to merely keep the audiovisual treaty on the agenda, but to take active steps to move towards a treaty.
The session adjourned for the day with the chair reserving the right to remain on the topic of the audiovisual treaty for final remarks on the agenda item.