Eduardo Fajardo
The following statements were submitted by the participants and organized in document SCCR/43/INF/4. These are edited versions of selected manifestations by the members of civil society in the recent SCCR from March 13th to March 17th. Items 5, 7, 8, 9 were freely translated from Spanish.
GENERAL STATEMENTS
- International Authors Forum (IAF)
There are individual authors whose rights are involved in all countries. Those rights must be given primary consideration to ensure the continued creation of the culture we value today. Authors must be rewarded for their contribution to society and maintain rights to control how their work is used. (…) This comes when multiple studies and surveys from around the world have found that the earnings of authors are in significant decline. It is more important than ever that we recognise the impact these policies can have on authors and a nation’s culture and find ways to ensure that the work of WIPO helps authors share in the global growth of creative industries in the digital age. (…) Potential measures for this include rights such as the Public Lending Right (PLR), Artist’s Resale Right, also known as droit de suite, and a remuneration right for online uses of work. Understanding the issue of authors’ earnings will be an ongoing challenge, in many countries there are no in-depth studies on authors’ earnings, and far more can be done to understand the international situation of the author.
- KNOWLEDGE ECOLOGY INTERNATIONAL (KEI)
KEI encourages the SCCR to include in its future work, the topics of unfair contracts, particularly as relates to Article 40 of the TRIPS Agreement, and the concerns expressed by libraries, educators, journalists and performers. In addition, the SCCR should focus on the management of metadata on copyrighted works, particularly as it relates to the attribution and management of rights, in the context of cross border uses and the topic of standards and interoperability of databases on metadata on works. (…)
STATEMENTS ON PROTECTION OF BROADCASTING ORGANIZATIONS
- EDUCATION INTERNATIONAL (EI)
During the pandemic, countries all over the world increased the use of television to broadcast educational content. In my country, Kenya, TV broadcasts have helped millions of children to practice reading and literacy skills. We urge you to avoid imposing constraints on education and research systems that are already struggling. Exceptions and limitations to broadcasting protection are crucial to enable quality teaching and research with broadcasted materials.
- SOCIETY OF AMERICAN ARCHIVISTS (SAA)
SAA is deeply troubled by the latest draft text [of the broadcasting treaty] for three reasons. First, while we support prevention of signal piracy, the inclusion of a fixation right goes way beyond signal protection. Article 7 adds new layers on copyrighted works that will lock up content that archives must acquire, preserve, and make available to the extent permitted by the underlying copyrights. Second, the draft makes exceptions and limitations optional. New mandatory exclusive rights require balancing mandatory exceptions. Further, Article 11’s suggested exceptions are too narrow to accommodate the work the world demands of archives. Finally, by not stating the duration of the new right, the draft text opens the door to a perpetual term and thus threatens the central mission of archives.
- FUNDACÍON KARISMA
Regarding the second revised draft of the broadcasting treaty, the definition of broadcasting organism has evolved to a point that is not limited to grant rights to traditional television and radio stations. The terms of Article 2 indicate that from broadcasting companies to educational institutions that broadcast events in their Facebook or YouTube account can qualify as potential broadcasters. We consider that this generates confusion and creates considerable secondary effects. We suggest that the draft should not go forward before there is an impact analysis of what that entails in a world in which any user can broadcast.
- KNOWLEDGE ECOLOGY INTERNATIONAL (KEI)
KEI is opposed to the fixation right in the WIPO broadcasting treaty. This would give broadcasters, including technology companies like YouTube or Facebook a perpetual intellectual property right in the fixation of transmissions even when the companies did now own, license or pay for content. The streaming company would get a right in the fixation even when the content is in the public domain, or the content has been infringed. It is not necessary to provide a fixation right, and the fixation right runs counter to the notion that this is signal based treaty. The limitations and exceptions should not apply to the three-step test for specific exceptions, such as those found in the Rome Convention or the Berne Convention exceptions for education, news of the day, or quotations.
- INNOVARTE
The current definition of “broadcasting” in this treaty includes already dominant platforms and escapes the traditional definition of what was defined by the General Assembly. The lack of international practice regarding the new proposed rights, which are, in its majority, not included in national legislations, do not allow for a proper analysis of its effects, particularly if assigned to global international platforms. Platforms such as Google, Amazon, Spotify, Facebook and other multinationals, that have been the subject of investigations and sanctions by abusing their dominant position in the digital market, such as the Google search cases prevent the development of new independent services, harms consumers and creators from traditional organizations. These new rights can only increase the power those platforms have and harm broadcasters, consumers and creators. (…) It seems essential to limit the reach of this agreement to the broadcasting organisms in the traditional sense so those can be the actual beneficiaries. (…) Another essential point is the revision of the article about exceptions and limitations so it includes a list of mandatory exceptions that encompass the needs already identified by this Committee, particularly for the cross-border use of works for educational purposes, libraries, archives and museums, persons with disabilities as well as other legitimate activities, such as private uses.
STATEMENTS ON LIMITATIONS AND EXCEPTIONS FOR LIBRARIES AND ARCHIVES, FOR EDUCATIONAL AND RESEARCH INSTITUTIONS AND FOR PERSONS WITH OTHER DISABILITIES
- SOCIETY OF AMERICAN ARCHIVISTS (SAA)
Internationally consistent exceptions and limitations are essential to the work of all archivists. (…) The proposal’s strengths are: recognizing that a fair and balanced copyright system must advance public interest while supporting creativity; understanding that archives collections require cross-border work; making institutions the beneficiaries of exceptions; and presenting concrete and practical steps for SCCR’s work.
- FUNDACIÓN KARISMA
We understand that treaties or binding agreements are the way to succeed in balancing author’s rights, the right to education, cultural rights and the right to access to information – a balance of copyright with human rights. (…) It is especially relevant to the Global South countries the completion of model texts or norms that can provide solid guidance to the legislative reworks that are so necessary in our countries.
- INTELLECTUAL PROPERTY INSTITUTE
The focus of my intervention is research – the driving force of social progress. The possibility of independent research is a fundamental human right. It is also the foundation of the sovereignty of states, especially today when big data and data analytic play such an important role in research and innovation. Humanity is facing enormous challenges: e.g. climate change, global health challenges. The cooperation of individuals across national borders, and especially the cooperation of researchers and scientists, is key to solving these gigantic challenges. The establishment of a legal regime that will adequately encourage not only creators and investors in creative processes, but also researchers and scientists is therefore crucial. Researchers and scientists among other are responsible that new technologies and new methods for research are available for the common progress of society, It is crucial for international legislators, this is you, dear delegates, to establish appropriate legislative frameworks, that copyright regime will not represent obstacles and unnecessary walls on the way to solving the biggest global challenges. Harmonized exceptions and limitations for research are the key. Exception and limitations are not a tools to take away, but a way forward to design a balanced system that will work for common good. African proposal shows the right way forward.
- CENTRUM CYFROWE
The lack of an international instrument allowing for cross-border uses for education and research impacts daily practices of researchers all over the globe. Especially those interested in running their research in international partnerships. During our recent interviews with researchers in Poland they stressed the immense value of such SCCR/43/INF/4 page 16 collaborations, as: they provide access to international resources allowing to execute, otherwise impossible, comparisons in research using digital or online tools and; they allow to get the critical mass of research material when working on specific theme, with corpuses of work coming from different countries. The current challenges the researchers face are not abstract. To quote their words, quote: “no access to texts and data and no possibility to share it legally, a shady border between copyright and fair use, and regulations that are not understandable by non-legals”. End of quote. These constraints simply block the research work or put it in a grey zone. This Committee has the power to change the situation by reforming the existing framework so that it supports an enabling, harmonized cross-border environment for research. And we urge you to do so.
- INTERNATIONAL ASSOCIATION OF SCIENTIFIC, TECHNICAL AND MEDICAL PUBLISHERS (STM)
STM’s overall mission is to advance trusted research worldwide. Together with our member publishing houses, we work daily to serve society by developing standards and technology to ensure research is high quality, trustworthy, and accessible. We promote the contribution that publishers make to innovation, openness, and the sharing of knowledge and we are embracing change to support the growth and sustainability of the research ecosystem. (…) We would like to emphasize how existing SCCR/43/INF/4 page 21 law, based in the three-step test and buttressed by responsible licensing practices, has provided the necessary flexibility for publishing houses to work with initiatives such as Research for Life to provide for equitable access to academic and professional content for the developing world; and to allow and encourage parties to voluntarily define, structure, and tailor access by way of licensing based on the reasonable needs of each in a given situation. The three-step test is a time-tested principle that permits Member States to implement limitations and exceptions at the national level with the salutary qualities of flexibility and the ability to capture local socioeconomic realities, all while maintaining the necessary guardrails to ensure authors maintain the appropriate share of their exclusive rights while users can avail themselves of the breathing room that exceptions and limitations provide. (…) We support the ability of libraries and cultural heritage institutions to digitize materials they hold in order to ensure their preservation. We recognize the challenges these institutions face, including the need to combat technological obsolescence or degradation of original copies. For these activities, we support the fashioning of limitations and exceptions in domestic law, provided that any exception respects the three-step test and is tightly drafted enough to uphold contractual freedom and does not conflate or broaden exceptions outside itself.
