Sean Flynn, Program on Information Justice and Intellectual Property

PIJIP and other members of the global Access to Knowledge (A2K) Coalition participated as registered observers in the 41st meeting of the WIPO Standing Committee on Copyright and Related Rights. This note summarizes the positions of delegations and the recorded outcomes of that meeting in relation to the policy aims of the Coalition. 

In briefings and statements prior to SCCR 41, civil society organizations and academic members of the A2K Coalition requested: 

  • the broadcast treaty negotiations re-open the provision on limitations and exceptions for further discussion,
  • the SCCR prioritize work on a joint recommendation on emergency uses of copyright during COVID, and 
  • the limitations and exceptions agenda prepare a work plan prioritizing progress toward an instrument on preservation, online uses, and cross border uses by libraries, archives, museums, education and research.

The 41st meeting of the SCCR displayed some progress toward these goals. It also displayed a a new wrinkle in the form of revival of a closed process for moving forward broadcast treaty text through a “Friends of the Chair” group. I discuss the wrinkle first, and then the progress on A2K priorities.

BROADCAST SHIFTS TO EXCLUSIVE FRIENDS OF CHAIR MEETINGS

The first day of the meeting of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights featured an animated debate over the transparency norms. 

The Broadcast Treaty negotiation has been the subject of SCCR deliberations for over two decades. But the pace quickened in recent rounds with the largest roadblocks to a treaty — including the U.S., Brazil, India, and Chile — all changing their positions and now supporting a binding treaty. That support continued, with all regional groups in SCCR 41 stating support for a broadcast treaty. The major sticking points that need to be ironed out in the text are on scope of protection and limitations and exceptions — two issues where the current text is widely perceived to be inadequate. 

The 2019 General Assembly mandated that the SCCR resolve these issues and advance toward a diplomatic conference — the final process for completing an international treaty. To aid this process, former SCCR chair and now Director General Darren Tang convened a Friends of the Chair group leading up to SCCR 39. Negotiations were suspended at SCCR 40 due to the COVID pandemic. But, unbeknownst to many Members and observers, the Friends of the Chair group was reconvened twice before SCCR 41.

Vice Chair, Peter Labody of Hungary, explained that the Friends of the Chair met in April and June, 2021. The only specific progress reported from the two meetings was that the group “agreed to work on a text that could assist the acting chair and possibly provide a new basis for formal discussions during the next SCCR session to be held in a face-to-face format.”

The members of the Friends of the Chair include delegates and experts from Argentina, Colombia, the European Union, Finland, Germany, Japan, Kenya, Mexico, the Philippines, Republic of Korea, Russian Federation, and the United States of America. The group is not open to any member that wishes to be part, which was true of the Friends of the Chair during the Marrakesh negotiations. And it does not include Regional Coordinators, who are chosen by regional groups and act on their behalf. This Friends of the Chair group notably excludes some very active and interested countries, including Chile, Brazil, India, Canada, and Indonesia. Some of these countries used the SCCR 41 to criticize the current Friends of the Chair process and urge its expansion:

SOUTH AFRICA: [We] believe that the make-up of the group should be diverse and reflect the make-up of the member states of WIPO.

INDONESIA: In the interest of transparency we would like to urge that such future discussions should include all the regional coordinators and interested members and no formal agreements should be taken outside of the formal sessions.

PAKISTAN: We are of the view that this informal work should be more open and inclusive, therefore we support the proposal made by the delegation of Indonesia to include the regional coordinators and also the interested member states during this important process.

CHILE: We were somewhat surprised by the information from the group of the Chair, and our delegation regrets that our regional group was not informed about that by the Chair or by the secretariat, and so we were unable to take part in that. We hope that in the future, we will be invited.

The Chair of the Committee, Mr. Aziz Dieng of Senegal, responded:

CHAIR: With regard to the issue of the composition of the group,… I have noted the proposals and we will certainly follow-up on that. … We need to reflect calmly and rationally with regard to the criteria and to see whether or not the criteria that was used by the previous chair are no longer judged adequate. So the only commitment that I can make right now is that the principle of having the best possible inclusiveness and the most optimal transparency is very much accepted and shared by us and we will be working on this.

The Chair’s Summary recorded that some action may be taken in the future to expand the Friends of the Chair group: 

“The Chair and Vice Chair will take the views expressed during the session on the modalities of the informal work into consideration, including the need to uphold the principles of transparency and inclusivity.”

ACADEMIC ANALYSIS OF TRANSPARENCY IN IP NEGOTIATIONS

International negotiations are often forged at the intersection of more transparent formal processes and less transparent informal processes. The risk of less transparent and inclusive processes is that they lose legitimacy, fail to address a full range of concerns, and thereby fail to reach an ultimate outcome that is acceptable to all parties and the public. The risk of overly transparent and inclusive processes is that discussions cannot advance.

The risks of overly secretive processes are canvassed in two products of the Global Expert Network on Copyright User Rights analyzing the exceptionally secretive Anti-Counterfeiting Trade Agreement negotiations, which ultimately failed to reach a binding outcome in part because of extensive criticism of its process and substance by technical experts and civil society leaders. See David Levine, Bring in the Nerds: Secrecy, National Security, and the Creation of International Intellectual Property Law, 30 CARDOZO ARTS & ENTERTAINMENT 105 (2012); Jeremy Malcolm, Public Interest Representation in Global IP Policy Institutions, PIJIP Research Paper no. 6, American University Washington College of Law, Washington, DC. Both papers praise the relative openness of WIPO processes generally. 

Features of the Friends of the Chair process that could aid its transparency and inclusivity could include:

  • Expanding the group to include one more designate per regional group, to be decided by that group to facilitate inclusion of additional views;
  • Publishing agendas of meetings and proposals for textual change on the WIPO SCCR website before Friends of the Chair meetings to facilitate transparency and ability to comment on proposals before meetings;
  • Permitting delegate and non-delegate observers to listen silently to meetings, as is permitted in informal sessions held with SCCR meetings to facilitate transparency to the public and preparation for formal rounds.  

SUPPORT FOR DISCUSSIONS OF BROADCAST LIMITATIONS AND EXCEPTIONS

The agenda for the Broadcast discussion asked for comments “on possible next steps” when formal discussions continue at the next SCCR. A2K advocates urged that a next step include addressing the deficient limitations and exceptions provision of the Chair’s text. This provision currently is more limited than the exceptions provided under the Rome Convention and fails to ensure that copyright limitations and exceptions extend to broadcasted content.

Several delegations endorsed the A2K coalition position by calling for limitations and exceptions to be prioritized in the next SCCR:

SOUTH AFRICA (Africa Group): We should also keep in mind the important role of broadcasters in transmitting information and knowledge. Despite the proliferation of other platforms, millions of people still rely on traditional broadcasting organisations for their everyday consumption of a variety of content. The text of the broadcasting treaty should therefore not negatively impact on the access to information, culture and education.

PAKISTAN: As for possible next steps, Pakistan is of the view that more attention should be given to the issue of limitations and exceptions in the future of a broadcasting treaty, particularly with regards to education, research and access to information with the aim to serve larger public interests.

RUSSIAN FEDERATION: We need to ensure that we work on issues of translation and also on the rights for keeping videos of the original translation for re-translation, and also we need to ensure that we take into account current and future technologies so we can future proof the documents.

INDONESIA: With regard to the areas of interest for this delegation, we hope that one part of the next deliberations on the broadcasting treaty will also address the limitations and exceptions provisions. Exceptions and limitations to broadcast rights are essential, including for the purpose of digital preservation, online education and research. 

CHILE:  We would like to point out the importance of a balanced approach and also looking at exceptions and limitations, which will hopefully be able to lead us towards consensus.

IRAN: We all need to make an endeavor to reach a consensus on how to respond to the needs of the broadcasting organisations while preserving the rights of the public and accessing information. Safeguarding the balance of rights has been in the public interest and are essential elements that should be taken into account in further consideration of the broadcasting treaty. Conditional broadcasting continues to play a key role in accessing knowledge and culture in many countries so it’s imperative to take this agenda forward without creating a new layer of rights which might negatively affect the right to access information.

No country opposed discussing limitations and exceptions at the next round. But the Chair’s Summary does not indicate a decision on priority issues for the next SCCR. 

COPYRIGHT AND COVID

A2K Coalition members called for SCCR to prioritize work toward a Joint Recommendation or other instrument on copyright and COVID. A public statement endorsed by over 250 experts and organizations called for an instrument explaining that existing copyright treaties:

  • Can and should be interpreted and implemented to respect the primacy of human rights;  
  • Permit governments to promote emergency access to copyrighted works; 
  • Permit governments to extend exceptions to digital uses, including on an emergency basis.

The Chair’s agenda asked for comments on possible next steps for the limitations exceptions agenda, including “the possibility of holding a number of regional consultations [on] the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them.” While supporting regional consultations, the Asia Pacific Group proposed that a broader information session on copyright and COVID be held at SCCR 42, not limited to limitations and exceptions issues: 

BANGLADESH: The APG believes that holding an information session on the impact of COVID-19 on the copyright framework, including rights, related rights and exceptions and limitations during SCCR 42 would be another useful step. This would give the members an opportunity to have some presentations from the experts and relevant stakeholders as well as exchange of views among them. 

Other delegations supported the idea of holding an information session in the next SCCR, often with conditions of support that the session be “holistic,” including the impacts of COVID on creators and publishers. Indonesia opined that if the session will be holistic, it should not be included in the Chairs Summary as a next step of the limitations and exceptions agenda, but rather should be listed separately. 

The Chair’s summary records agreement to hold a separate and “holistic” information session on copyright and COVID at the next SCCR:

The Committee requested the Secretariat to organize a half-day information session on the topic of the impact of Covid-19 on the cultural, creative and educational ecosystem, including copyright, related rights, and limitations and exceptions, during the week of the forty-second session of the Committee. During the session, following presentations from experts, Member States will have the opportunity to exchange views and experiences. This process will be guided by a holistic and balanced approach. The information session will be separated from the rest of the agenda during the forty second session.

WORK PLAN / PRIORITIES ON LIMITATIONS AND EXCEPTIONS

The limitations and exceptions agenda items are operating in accordance with a mandate from the 2012 General Assembly to work toward “instruments (whether model law, joint recommendation, treaty and/or other forms)” on issues affecting libraries, archives, museums, educational and research institutions, and for people with disabilities other than the visually impaired. UN Doc. WO/GA/41/14 (Aug. 13, 2012). 

In the last SCCR, the Secretariat released a Report (SCCR/40/2) summarizing the year of work on the Action Plans on Limitations and Exceptions. The Agenda requested inputs on the Way Forward and Take Away Considerations, pages 63-73. A2K Coalition members criticized the final pages of the report, which restricted the priorities of WIPO to “the provision of legislative and technical assistance,” and to “develop a range of tools such as models, recommendations, guidance, handbooks, and toolkits, among others, containing information on licensing options and limitations and exceptions.”

Many delegations explicitly supported the A2K Coalition priority of work toward an international instrument, often expressly supporting prioritization of preservation, online uses, and cross border uses in such an instrument: 

SOUTH AFRICA (Africa group): The African Group maintains its support for the 2012 general assembly mandate to continue discussions to work towards an appropriate legal instrument or instruments on limitations and exceptions. … There is no doubt that international action is necessary to deal with those challenges that transcend national borders and are best attended to by global action. Some of the areas that clearly deserve the committee’s attention include preservation, online uses, and cross border uses. 

BANGLADESH (APG): In this backdrop [of the COVID pandemic] the absence of an international instrument on limitations and exceptions has been widely felt.

RUSSIAN FEDERATION: We can formulate general principles on the basis of which it would be possible to harmonize our approach and create an international instrument which will serve as a guideline. … I should like to underline that it is extremely important that we resolve the issue of cross-border issues and look at the legal uncertainties and the differences in legislation between countries. In particular we should look at the issue of preservation of cultural heritage in the digital form.

PAKISTAN: Copyright limitations and exceptions vary across countries and therefore Pakistan supports the formation of a baseline international instrument to act as assistance and as an umbrella guideline for statutes.

INDONESIA: It is important that we continue our work on the agendas in accordance with the agenda in 2012 for the SCCR to work towards a legal instrument… We must now define the new plan of work for advancing the issue on limitations and exceptions. In this regard we need to build on the previous work plan which identified many things for harmonization at the international level such as preservation, cross-border issues and online for purposes such as education and research. … It is important for us to have achievement of the mandate of the 2012 assembly. This can be done by a concrete work plan with appropriate outcomes ranging from interpretations, to joint recommendations, treaty provisions, or any other instruments. Furthermore, we would also welcome works in the forms of guidelines or any other tools which can be used as a reference for member states for the national practices.  

BRAZIL: It is our view that the agenda should continue for now with a focus on the point where there seems to be some consensus, that is preservation and cross-border issues. 

SAUDI ARABIA: We would like to exalt member states to continue work so that we can reach agreement for a treaty, a convention which both protects copyrights and also the [user] rights of institutions.

CHILE: We believe that our future work needs to be strengthened with international guidelines, at least with regard to the area of education, and also libraries and archives.

IRAN: An adequate balance between copyright limitations and promoting dissemination and use of works in the public interest through the form of international instrument for the mandate of the assembly in 2012. The 2012 General Assembly mandated us to continue discussions to work towards an appropriate international legal instrument or instruments. …. We are of the conviction that norm setting is the only way to ensure that WIPO members provide a basic level of modernized limitation and exception for such institutions.

Delegations from Group B and CEBS opposed work toward a “binding” instrument, but appeared open to other forms of “guidance” that could potentially be expressed in an instrument such as a Joint Recommendation.

GEORGIA [CEBS]: We believe that the meaningful way forward would be the exchange of best national practices and a focus on how approaches are adopted by the member states can serve as a solid basis for the efficient functioning of the limitations and exceptions at the national level within the framework of existing international treaties. CEBS believes that there is enough flexibility to address potential gaps under the current international legal framework without the need for an internationally binding instrument.

UNITED KINGDOM (on behalf of Group B): We would like to encourage WIPO to encourage capacity building so countries can make full use of the existing international copyright framework to address their policy needs. … 

EU: We agree with the Report on the importance of focusing the further work on capacity building and improving legislation of members at the national and regional level, combining guidance and support. Against this background, EU member states cannot support legally binding at the international level or any preparations in this regard. However, we stand ready to continue to engage on … guidance and assistance to member states.

UNITED STATES OF AMERICA: The United States believes that the current international framework or copyright exceptions and limitations provides the flexibility consistent with the well-established international standards for countries to adopt exceptions and limitations to advance their own social, cultural and economic policies. We therefore do not think it is advisable for WIPO to engage in norm setting work that would impose minimum standards in this area. 

FRANCE: France would not be in favor of a binding instrument on exceptions and limitations. 

Perhaps the most noticeable shift in positions came from Ecuador. Ecuador was long one of the most ardent supporters of the limitations and exceptions agenda. At this round, the first after new presidential elections led to the replacement of its head of copyright, Ecuador criticized limitations and exceptions as being opposed to the interests of creators:

ECUADOR: We believe that we need to recognise certain flexibilities, but also safeguard value for the future generations whilst also promoting creativity and future work. We need to look once again at the responsibility of each state to promote creativity and culture, and therefore, we need to have adequate exceptions and limitations as limited by the 3-step test, because if L&Es were too broad and too general, it would put off creators. We need to ensure that exceptions are indeed an exception. … We need to promote discussion with regard to a strong and balanced approach which is flexible enough so we can overcome the problems and the value gap in the digital sphere.

CONCLUSION

The formal statements and outcomes of SCCR 41 demonstrates substantial influence of A2K Coalition positions and advocacy. In the intervening months until the next SCCR, there is likely to be an expansion of the members in the Broadcasting Friends of the Chair group, a focus on broadcasting limitations and exceptions (as well as scope of protection), preparation of an expansive information session on copyright and covid, and work on a draft work plan on limitations and exceptions focusing on preservation, online uses and cross border uses for libraries, archives, museums, education and research.