Anubha Sinha, Centre for Internet and Society – India (CC-BY)
Links to original: Day 1 | Day 2 | Days 3 and 4
Day 1
Member states delivered opening statements and deliberated on the progress, substantive provisions, and method of work on the draft broadcasting treaty text. This blog post summarises positions and contentions that supported: 1) transparency in SCCR work 2) limitations and exceptions 3) addressing the object of protection and overbroad scope of rights in the draft treaty text.
- Agenda Item: Protection of Broadcasting Organisations
1. Opacity around informal work on the broadcasting treaty agenda
Indonesia, Pakistan, Iran, South Africa and Chile shared their disappointment on the lack of transparency of informal meetings on the treaty text, and urged for greater openness. The informal meetings were conducted between WIPO and an ad hoc group of countries known as ‘Friends of the (SCCR) Chair’. This group currently includes 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 met in April and June 2021, but Indonesia questioned whether there was a mandate for it in the first place.
Indonesia and Pakistan requested for further updates on the status of the treaty text from the WIPO SCCR Chair and Vice-Chair, especially as an outcome of the informal work. The two delegations also noted the lack of diversity and imbalance in representation in the ‘Friends of the Chair’ group. Pakistan noted that this agenda item had always had a diversity of viewpoints, and that this new mechanism was reductive and not inclusive.
The WIPO SCCR Chair’s and Vice-Chair’s response was that the ‘Friends of the Chair’ mechanism was adopted to do inter-sessional work (work between two SCCRs), in a flexible and less-time consuming manner. The Chair added that the group was created in 2019 (i.e in the previous Chair’s term). However, it should be noted that the group was created only for an “exceptional informal intersessional meeting” with the objective to “brainstorm on possible ways to make progress on the draft treaty on the protection of broadcasting organizations in view of the upcoming WIPO General Assembly and the 40th session of the SCCR which will be held in October.” Indonesia made a request to join this group, which was denied by the Chair. The Chair only assured that the concerns raised will be addressed.
2. Support for adding better limitations and exceptions to the treaty text
South Africa emphasised on the critical role of broadcasting organisations in transmitting information and knowledge, and cautioned that the treaty text should be balanced and not negatively impact access to information, culture and education. Iran (speaking on behalf of Asia-pacific group) highlighted the public interest stakes in the treaty and stated that the way forward was to ensure that no layer of rights is created which might affect the right to access information. Chile also was in favour of a more balanced approach that should include limitations and exceptions. Indonesia and Pakistan added that limitations and exceptions in the current text need to be addressed more properly, as they are essential provisions for digital preservation, online use and research.
3. Alternative legal solutions to address broadcast piracy
Canada highlighted how in its national law it provides signal protection and combats piracy without granting exclusive rights to broadcasters on transmission.
- Agenda Item: Limitations and Exceptions
1. Support for Limitations and Exceptions agenda item
India noted the importance of the limitations and exceptions agenda for the benefit of the work of libraries, archives, museums, and educational and research institutions, and shared its support for the agenda item.
Day 2
Member states delivered opening statements and deliberated on the scope, direction, and progress of work on the limitations and exceptions agenda. This blog post summarises positions and contentions around: 1) Information Session on impact COVID 2) Creating a binding limitations and exceptions international instrument 3) Work Plan under the L&E agenda 4) Conducting regional consultations as per the report on regional seminars and international conference on limitations and exceptions.
There was a strong consensus on the fact that COVID had adversely affected actors and beneficiaries involved with the copyright system, but there was less consensus on which stakeholders and beneficiaries to focus on as a priority, and which next steps and remedies should be considered. The gamut of stakeholders under the limitations and exceptions agenda item includes authors, publishers, creative cultural industries, educational and research institutions, persons with disabilities, libraries, museums, and archives, licensing societies, and users’ rights advocates.
Agenda Item: Limitations and Exceptions
1. Conducting an Information Session on impact of COVID
Bangladesh (on behalf of Asia-Pacific group) proposed an information session on the copyright framework in the format of presentations from experts and relevant stakeholders as well as exchange of views among them at the next SCCR (SCCR42) to understand the impact on COVID-19, especially as developing countries, with a view of rights, related rights and exceptions and limitations. It noted the lack of international settings that could have enabled a collaborative approach during COVID-19 to handling the impact on education, research, culture and knowledge.
Pakistan, Indonesia, and Iran supported the proposal. South Africa backed both the proposal and the regional consultations along with a preference for completing them in a time bound manner by the next SCCR. Belarus was in support as well.
Georgia (on behalf of the CEBS group) was in favour of an information session for evaluating an all-round impact of the pandemic which was not only from a limitations and exceptions viewpoint. In a similar vein, USA suggested that the information session be holistic in its framing – all parts of the copyright system should be taken into consideration. UK (on behalf of Group B) stated that it would prefer to examine a formal proposal document on such a session first, that should adopt a ‘holistic approach’.
Towards the end, Indonesia questioned whether the idea of a ‘holistic’ information session equally focused on rights and related rights could even be counted or considered as a next step in the limitations and exceptions (“L&E”) agenda item.
2. Working towards a binding international L&E instrument
Georgia (on behalf of the CEBS group) stuck to its position of 1) taking an evidence-based approach on the way forward for the L&E agenda and preference to 2) exchanging national best practices instead of creating a binding treaty. Ecuador was also in favour of exchanging best practices. UK (on behalf of group B) was in favour of providing technical assistance to countries, and the EU and USA maintained their position against an international instrument.
Bangladesh (on behalf of Asia-Pacific group) stated that COVID had forced a rethink of role of copyright in ensuring access to educational and resource materials as well as protecting the rights of the creators of the copyrighted works, in situations such as the pandemic. The absence of an international instrument on limitations and exceptions has been widely felt in this context.
Pakistan stated that a baseline international instrument was necessary and would be useful for looking at one’s own national law. South Africa (on behalf of Asia-Pacific group) Indonesia reminded everyone that work under this agenda item should proceed under the 2012 mandate of developing a legal instrument on limitations and exceptions. Iran also expressed its support for a norm-setting instrument.
3. Work Plan under the L&E agenda
South Africa said that a clear way forward for limitations and exceptions was necessary, and that way forward should not be limited to the views and steps mentioned in the report on the regional seminars and international conference on limitations and exceptions (“report“). It also supported the 2012 mandate on developing an international instrument on limitations and exceptions.
UK (on behalf of group B) stated that access to knowledge should not inhibit the remunerative rights to authors and performers. Ecuador said that it supported narrow limitations and exceptions that comply with the Berne three-step test.
Russia suggested the creation of a set of “general principles” underpinning this agenda item, to set a base standard agreed by everyone and begin work from that point. It noted that it was crucial to resolve the issues of cross-border sharing, legal uncertainty between countries, and digital preservation. It added that the principles could become the guiding principles for national legislation as well.
Pakistan, noting the COVID impact, stated that cross-border cooperation or international norm-setting could be useful. Brazil stated that there was a consensus on preservation and cross-border issues, and room for further discussions on limitations and exceptions for ‘persons with other disabilities’ under this agenda item. Chile added that international guidelines were desirable at least in the area of education, libraries, and archives.
In the end, Indonesia in its statement reminded everyone that there was still no concrete work plan (under this agenda) on the table. This despite the draft report indicating issues such as preservation, online uses, cross-border uses, and safe harbour as feasible for discussion on next steps. The report had also recommended formation of expert groups to study these issues further (para 400 of the report (SCCR42/2)) It added that while it was aligned to the 2012 mandate (of producing a legal instrument), the work plan could include a joint recommendation.
4. Regional Consultations (as per report’s recommendation)
China endorsed the regional consultation. EU supported regional consultations, noting that COVID had impacted creative cultural industries as well. Pakistan stated that it was important for the consultations to include beneficiaries of this agenda item.
UK (on behalf of Group B) questioned whether holding regional consultations were necessary during a pandemic, and later added that the regional consultations and information session exercises should not be executed together.
Days 3 and 4
Day 3 and 4 saw the presentation of four studies conducted by external experts on music markets in various regions in the world and one study on rights of stage directors of theatrical productions. Day 4 saw member states sharing their positions on a proposal for creation of two rights 1) rights of stage directors of stage productions and 2) public lending right. The Chair also presented the draft summary of the session upon its conclusion, on Day 4. This blog post shares the specific text under the broadcasting and limitations and exceptions agenda items, relevant from an access to knowledge perspective.
1. On the issue of transparency and inclusivity in informal work on the ‘protection of broadcasting organisations’ agenda item, that emerged on Day 1, the Chair summarised:
” The chair and vice chair and 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.”
2. An ‘information session’ on impact of COVID was proposed by the Asia-pacific group on Day 2, the Chair summarised:
” The Committee requested the Secretariat to organise 1/2 day information session, footnote 1, the text of the footnote is as follows. The reference to half day is based on a meeting day with two three-hour sessions, in case SCCR/42 has truncated meeting days with single daily meeting sessions of up to three hours, the information session could take place during one entire day.
So, back to the sentence after the footnote. I will repeat, the Committee requested the Secretariat to organise 1/2 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 42nd 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 42nd session.”
