The Forty-Sixth Session of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) concluded with modest but meaningful progress on key agenda items, including on the Broadcasting Treaty, the limitations and exceptions (L&Es) agenda and the agenda item on copyright remuneration in the digital environment. The SCCR was Chaired by Vanessa Cohen, Copyright Director of Costa Rica.
Broadcasting Treaty: Refined Focus, Continued Dialogue
The Committee continued its examination of the Draft WIPO Broadcasting Organizations Treaty, which has been on the SCCR’s agenda since its first meeting in 1998. After the first failure to create a basic text for the negotiation in 2006, the 2007 General Assembly mandated that the SCCR achieve “agreement on objectives, specific scope and object of protection” before a recommendation to complete the treaty in a diplomatic conference. (WO/GA/34/16). The GA has further instructed that the Broadcasting Treaty be “confined to the protection of broadcasting and cablecasting organizations in the traditional sense” and “based on a signal-based approach” (WO/GA/33/10, para 107, 2006).
The Chair’s statements for SCCR 44 and 45 aptly summarized the current consensus on the committee on the bounds of a text that could be advanced to the Diplomatic Conference:
“With respect to objectives, there is common understanding … that the treaty should be narrowly focused on signal piracy, should not extend to any post-fixation activities and that it should provide member states with flexibility to implement obligations through adequate and effective legal means” and “that the object of protection (subject-matter) of the treaty is related to programme-carrying signals linked to linear transmission”.
But the bounds of these concepts have been pressed by Chair’s Drafts of a treaty that continue to use exclusive rights as a baseline, including rights to fixation and to make available stored programs on the Internet. This SCCR featured more vigorous debate over the draft than at the last few SCCR meetings, with a larger number of countries offering specific comments on provisions including on national treatment and reciprocity, exceptions and limitations, the protection of signals used in making available stored programs, and the functioning of the mechanism for alternatives to exclusive rights.
Some member states, including the European Union, the Central European and Baltic States Group (CEBS) and the Group of Latin American and Caribbean Countries (GRULAC) supported moving the current text to a diplomatic conference. But the two days of deliberations showed significant concern about many of the draft text’s provisions. After the deliberations showed a lack of consensus on the document, Brazil proposed that the Broadcast Treaty be removed from the formal agenda of the SCCR and be worked on by groups of countries outside of the SCCR. Ultimately the Chair’s Summary concluded that the facilitators would create a new draft text and the item would remain on the agenda without any endorsement of a timeline toward a diplomatic conference.
Opposition to the current Chair’s Text appeared to be growing. The Africa Group noted that “some members are concerned about the potential overreach of those protections, fearing that they could restrict access to broadcast or create unintended barriers to the flow of information.” The Asia Pacific Group similarly reported the views of some of its members “determination as to whether and how Intellectual Property rights should apply with respect to broadcasting is also a development to the issue that requires a delicate balance.” The Africa Group stated an additional position that “an instrument on the protection of broadcasting organizations should advance to a Diplomatic Conference jointly with an instrument on limitations and exceptions that meets the 2012 General Assembly’s mandate.”
Among the “Group B” coalition of wealthy countries, the United States continued to raise serious substantive objections, stating the view that “significant work remains to be done” on the Chair’s Draft, which “continues to exceed the GA mandate for a signal based approach to protect broadcasters in the traditional sense.” The US stated that it supports “a narrow text that is focused solely on the live signal,” including through deletion of the Chair’s Draft’s rights to fixation (Art 7) and making available stored programs (art 8).
Ultimately, while the level of engagement on the Broadcast Treaty was elevated, it does not appear the current text, especially its extensions to Internet-based transmissions and post-fixation rights to stored content, have sufficient consensus to move to a diplomatic conference.
Limitations and Exceptions: A Foundation for Bridging Divergence
The key issue for the limitations and exceptions agenda is reaching an agreement to begin text-based work on the 2012 GA mandate to work toward an “appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms)” on uses by libraries, archives, museums, educational and research institutions, and persons with other disabilities (WO/GA/41/14). In SCCR 43, the Committee adopted a Work Program SCCR/43/8 REV to draft “objectives, principles, and options” for potential instruments. As noted above, the African Group will not support moving the Broadcast Treaty to a Diplomatic Conference without an instrument on L&E prepared to also be endorsed for finalization.
The Chair announced at the start of the L&E agenda that she had a meeting of “volunteer” member states the week before the SCCR to consult on ways forward. She further proposed that she could use the Chair’s position to “help put together a list of objectives and principles that could be seen as ground, a common basis” and that “could be seen as the cornerstone for a soft law instrument” that “could be an important tool used by WIPO and adopted by the General Assembly, it could provide Member States with significant guidelines and guiding principles.” She further proposed “the possibility of appointing facilitators to try and identify that common base.”
All countries implicitly endorsed moving to text based work on principles and objectives for limitations and exceptions. The debate in the Committee was about where to start. Group B and CEBS endorsed starting to discuss the US proposed document – SCCR/44/5. The African Group and many developing countries opposed beginning with the US text and instead called for the Chair to assemble a document based on past proposals of countries. Many such proposals exist in the prior work of the Committee, See https://digitalcommons.wcl.american.edu/research/146
The Chair’s Summary for the L&E agenda was intensely negotiated until after 3am Saturday morning. In the end, the document recorded the following agreement:
- The SCCR will move forward in discussions based on the 2012 Mandate and the Work Program.
- The SCCR will use, in a complementary manner, all relevant documents at the disposal of the Committee, along with input made by delegations during SCCR/46.
- The Chair and Vice-Chair will prepare a document with concrete suggestions seeking to find common ground on the topic of limitations and exceptions, for the implementation of the Work Program, to present for consideration of the Member States during the next session of the SCCR, taking into account the aforementioned documents and the contributions made during the plenary and informal discussions held during SCCR/46.\
- The Chair and Vice-Chair will remain open and available to receive input from Members, although there will be no intersessional work.
Part A of the Chair’s Summary on L&E appears to provide adequate structure for continuing the agenda item without further debate on process. Endorsement of the 2012 Mandate makes clear the focus of the agenda must be on an “instrument” in whatever form. The Work Program adopted by the SCCR “sets out concrete and practical steps” that the Committee can take both in order to provide guidance and support to Member States in the short term, while also allowing it to work towards the adoption of an appropriate international legal instrument or instruments on exceptions and limitations.” Work Programme at p. 2. The work is to be “based upon and built upon the prior work of the Committee,” as called for by the African Group, not only on the proposal of one country. Work Programme p. 2, Para 1. The Work Programme endorses a schedule of topics. There is to be “discussion of priority issues considered in previous Sessions and in Chair’s Charts and identified in the Report on Regional Seminars and International Conference on Limitations and Exceptions (SCCR/40/2), including:
a. to promote the adaptation of exceptions and limitations to ensure that laws at the national level enable the preservation activities of libraries, archives, and museums, including the use of preserved materials;
b. to promote the adaptation of exceptions and limitations to the online environment, such as by permitting teaching, learning and research through digital and online tools; and
c. to review implementation of the Marrakesh Treaty and how to ensure that people with other disabilities (also covered by the Convention on the Rights of Persons with Disabilities) can benefit from similar protections, in particular in order to benefit from new technologies.
Work Programme P.3, Para 2.
Para 3 of the work programme has been completed. The Secretariat hosted “further presentations by experts on the questions related to choice of law for cross-border uses of copyrighted works.” Accordingly, if the Program is followed in order, it is time for the Committee to progress to para 4:
4. The Chair should advance information sharing and consensus building on points 1-3 between SCCR meetings through processes which are transparent and inclusive in conformance with WIPO Development Recommendation #44, such as working groups of member states, supported by experts as appropriate and agreed, preparing objectives and principles and options for implementation at national level for consideration by the Committee.
The proposal for “working groups” is not mandatory under para 4. The Chair’s Summary recording the rejection of intercessional work (part D) reflects the decision to not form such working groups. But all chairs may informally consult between sessions to advance consensus, as the chair did before this SCCR. Thus, the Chair may still meet paragraph 4’s instruction to “advance information sharing and consensus … between SCCR meetings.”
The Chair’s summary’s lack of a specific endorsement of text based work at the next SCCR was less than many beneficiaries had hoped for. See IFLA; Education International Statement. But it is possible that the “document with concrete suggestions” called for in part C of the Summary could be a Zero Draft of a principles and objectives document that could begin the process toward an instrument. Such a document could, for example, include text from the US proposed document supported by Group B and CEBS with additional language from previous SCCR proposals, as supported by the African Group and many developing countries.
AI & Copyright: Institutionalizing the Conversation
The key issue under the ‘other matters’ part of the agenda is whether to make Copyright and the Digital Environment a standing agenda item. The GA decision creating the SCCR in 1998 instructed the Committee to consider “Copyright, Related Rights and Digital Technology … from the viewpoint both of owners and managers of rights, and of users and the general public.” (GA A/37/7). But this work has never had a standing agenda item.
For the second consecutive session, the SCCR held a dedicated Information Session on Generative AI and Copyright. The member states agreed to invite the Secretariat to host a follow-up session on AI at SCCR/47.
GRULAC reiterated its proposal for the Work Plan on Copyright in the Digital Environment (document SCCR/45/4) and renewed its request for Copyright in the Digital Environment to be a standing item on the agenda of the Committee. There was not, however, consensus to make the item a permanent one. The main conclusion of the agenda was that “at SCCR/47 GRULAC will present a revised version of its proposal, which will consider the feedback received during SCCR/46.”
