Sean Flynn, Program on Information Justice and Intellectual Property, American University Washington College of Law
June 28, 2021 | Comments to the WIPO Standing Committee on Copyright and Related Rights
These comments are made in my capacity as the Chair of the Global Expert Network on Copyright User Rights, an association of copyright experts from more than 30 countries. The Network provides technical assistance and disseminates research on the design of user rights in copyright and related rights to promote public interests, including to enable modern research practices.[1]
The WIPO SCCR 41 Agenda asks for comments on possible next steps on the discussion of the Broadcast Treaty proposed Chair’s text. One needed next step is to address the Limitations and Exceptions provision. This provision currently is more limited than the exceptions provided under the Rome Convention and fails to incorporate any of the priorities of the Action Plans on Limitations and Exceptions on preservation, online uses, and cross border uses for libraries, archives, museums, education, research, and people with disabilities. This provision requires significant expansion to ensure that the Broadcast Treaty is balanced and does not harm the public interest.
A core goal of WIPO copyright and related rights treaties includes to achieve a balance of exclusive rights and exceptions to “serve the larger public interest, particularly education, research and access to information.”[2] A special attention to limitations and exceptions needed to protect development-oriented policies and a rich public domain is called for in the Development Agenda Recommendations.[3] The Broadcasting Treaty is one process where the Committee can develop provisions of “instruments (whether model law, joint recommendation, treaty and/or other forms)” to promote the needs of libraries, archives, museums, education and research. UN Doc. WO/GA/41/14 (Aug. 13, 2012).
Exceptions to broadcast rights are essential for the priorities identified in the limitations and exceptions agenda, including for digital preservation,[4] and online education and research.[5] Broadcasts are used, for example, to help train speech translation tools, and to provide accessible content in different languages.[6] Significantly, exceptions are needed to enable broadcasts to provide effective service to their customers. For example, one broadcaster might need to quote content created by another broadcaster for the purpose of conveying important news or healthcare information to the public.
The current limitations and exceptions provision in the Chair’s Consolidated Draft of the Broadcast Treaty offers less protection for public interest purposes than the Rome Convention. The Chairs’ Text suggests that countries may have exceptions to broadcast only for matters reflected in a country’s copyright law. The Rome Convention explicitly authorizes exceptions beyond those contained in copyright.[7] The Broadcast proposal also fails to include the Rome Convention’s explicit authorization of special exceptions for Broadcast, including “ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts,”[8] and of “compulsory licenses … to the extent to which they are compatible with this Convention.”[9]
The Broadcast Treaty presents an opportunity to improve the Rome Convention’s limitations and exceptions provision, including with lessons learned from the Action Plan on Limitations and Exceptions. First, it could solve the problem of broadcast rights blocking uses permitted by copyright by requiring that exceptions for copyright extend to broadcast rights, including for quotation, news of the day, and providing accessible formats for people with visual impairments.[10] Second, it could expressly require exceptions to exclusive rights in broadcast for the priorities of the Action Plans, i.e. for preservation, online uses, and cross border uses for libraries, archives, museums, education, research and to provide access to people with disabilities.[11]
[1] For a description of the Network, see https://www.wcl.american.edu/impact/initiatives-programs/pijip/impact/global-network-on-copyright-user-rights/. The Network recently launched a new project on the Right to Research in International Copyright Law. See https://www.wcl.american.edu/impact/initiatives-programs/pijip/impact/right-to-research-in-international-copyright/
[2] See, e.g., WIPO Copyright Treaty pmbl., Dec. 20, 1996 (stating goal of “balance” to serve “the larger public interest, particularly education, research and access to information”); Beijing Treaty on Audiovisual Performances pmbl., Jun. 24, 2012 (stating goal to “maintain a balance between the rights of performers in their audiovisual performances and the larger public interest, particularly education, research and access to information”).
[3] See Development Agenda Recommendations 17, 19 and 22 (calling for WIPO norm setting to “take into account the flexibilities in international intellectual property agreements”; “further facilitate access to knowledge”, and “address … potential flexibilities, exceptions and limitations for Member States”).
[4] Wendell Roelf, S.Africa’s UCT campus salvaging books from burned library, Reuters, (April 20, 2021) (reporting on the statements of the director of the UCT library that they had format shifted their VHS film and broadcast collection to DVDs, “but because of copyright we could not replicate” the DVDs, which melted in a fire).
[5] See UNESCO, Survey on National Education Responses to COVID-19 School Closures (2021) (reporting that TV based education has been used in 87% of countries worldwide and radio based education in 61%); Ying LiYongbin WangJian YanYing-Jian Qi , The Application of Data Mining in Satellite TV Broadcasting Monitoring, Conference: Proceedings of the Second International Joint Conference on Computational Sciences and Optimization, Sanya, Hainan, China, 24-26 April 2009, Volume 2 (discussing use of algorithms and a “data mining method” in satellite TV broadcasting monitoring).
[6] See Amelia Brust, Artificial intelligence helps Voice of America translate broadcasts worldwide, Federal News Network (Feb 18, 2020); Ram Sagar, Netflix Is Using AI For Its Subtitles, Analytics India Magazine (May 6, 2020).
[7] See Rome Convention, Art. 15 (2) (providing that, “[i]rrespective of” the permission in “paragraph 1” to provide exceptions for “(a) private use; (b) use of short excerpts in connection with the reporting of current events; (c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; (d) use solely for the purposes of teaching or scientific research,” “any Contracting State may, in its domestic laws and regulations, provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms and broadcasting organisations, as it provides for, in its domestic laws and regulations, in connection with the protection of copyright in literary and artistic works.”
[8] Rome Convention Art. 15(1)(c).
[9] Rome Convention, Art. 15 (2) (“compulsory licences may be provided for only to the extent to which they are compatible with this Convention”).
[10] See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised July 24, 1971, [hereinafter Berne Convention] Art. 10(1) ( “it shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries”); Art. 2(8) (“the protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information”); The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled [hereinafter Marrakesh Treaty] (requiring exceptions “to facilitate the availability of works in accessible format copies for beneficiary persons”); Art. 5(1) (requiring countries to “provide that if an accessible format copy is made under a limitation or exception or pursuant to operation of law, that accessible format copy may be distributed or made available by an authorized entity to a beneficiary person or an authorized entity in another Contracting Party”).
[11] For further discussion of this issue and model text for a solution, see Sean Flynn, Draft Broadcast Treaty Takes Restrictive Approach to Limitations and Exceptions, IP Watch, (May 31, 2018).
