Sean Michael Fiil-Flynn
Director, Program on Information Justice and Intellectual Property
American University Washington College of Law
March 13, 2023

I submit the following comments on limitations and exceptions issues in agenda items for the 43rd Meeting of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights, https://www.wipo.int/edocs/mdocs/copyright/en/sccr_43/sccr_43_inf_1.pdf

Broadcast Treaty

“The current draft allows fewer exceptions for broadcast rights as given for copyright and gives countries less flexibility to adopt exceptions for broadcast as they have under copyright treaties.”

Scope of rights. The current draft of the Broadcast Treaty continues to raise important public interest concerns. Although the mandate of the Committee is to work on a “signal based” approach, the treaty continues to use a rights-based structure and language modeled on the Rome Convention rather than the more appropriate Brussels Convention. The use of a rights-based model causes particular problems of layering rights on top of each other because broadcast signals normally carry copyrighted content. Although there is now on opt-out in Article 10 – permitting alternative effective regulatory means – the dominance of the rights based perspective in the drafting will encourage adoption of its model.

The current Second Revised Draft proposes adding a fixation right. See Flynn, Sean and Alvarenga, Miguel, “Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty, Annotated” (2023). Joint PIJIP/TLS Research Paper Series. 85.https://digitalcommons.wcl.american.edu/research/85  This right would require users – including subscribers to content – to obtain a license to record a lawfully received signal. If this right is included, it is all the more important to get the exceptions right.

The continued focus on a rights-based model, including a proposed extension to fixation and other rights (Articles 7 and 8), calls into question whether this is the kind of signal-based approach that the General Assembly has called for. For further analysis, see Hugenholtz, Bernt, “The WIPO Broadcasting Treaty: Comments on the Second Revised Draft” (2023). Joint PIJIP/TLS Research Paper Series. 84, Link

Limitations and exceptions. The current draft allows fewer exceptions for broadcast rights as given for copyright and gives countries less flexibility to adopt exceptions for broadcast as they have under copyright treaties.The limitations and exceptions in Article 11 are all permissive. The exceptions are permissive even for uses of the content of a signal permitted in a country’s copyright law and even for uses mandated to be permitted by international copyright treaties, such as for quotation. Article 11 also lacks an enabling general exception such as in 9(2) of Berne, 10(1) of the WCT and 16(1) of the WPPT.

The adoption of a rights based approach makes the limitations and exceptions incredibly important. The provision could provide a full outline of exceptions that countries can use to easily and fully implement the exceptions. Here, the Marrakesh Treaty — with its examples of how to implement the provisions — not the Beijing Treaty — with only confining provisions — should be the model.

The provision should be amended to ensure:

  • no lawful use of copyrighted content carried by a signal can be blocked by a broadcaster right;
  • Member states have maximum freedom to adopt other public interest exceptions, including for telecommunications regulation purposes that may not find expression in copyright law. 

Additional analysis can be found in PIJIP’s recent publication: Sean Flynn, Limitations and Exceptions In Second Revised Draft Text Of The Broadcast Treaty, March 6, 2032 https://infojustice.org/archives/45112

Toolkit on Preservation (SCCR/43/4)

The preservation toolkit usefully promotes preservation exceptions, including for preservation uses before content is destroyed. But it is concerning that the document does not address the use of preserved works. The goal of preservation exceptions should not be to create dark archives that no one can use.

The Toolkit should not be the end of this Committee’s work on preservation rights. Only a treaty can solve cross border issues – such as when a cultural heritage organization exchanges works to obtain preservation copies. A treaty or other instrument would also be effective in promoting the adoption of the recommendations of the tool kit. The Marrakesh Treaty, for example, has become the fastest moving and most successful WIPO treaty – showing that instruments on limitations and exceptions can be fully embraced by the international community. 

Proposal by the African Group for a Draft Work Program on Exceptions and Limitations (SCCR/42/4 REV.)

The core principle promoted by the Work Programme is that the L&E Agenda in SCCR should focus on advancing text-based work on instruments. The proposal focuses on the issues and on the type of instruments in which there is consensus in the Committee emanating from the 2019 Action Plans.

1. The first paragraph makes clear that any work should be based upon and built upon the prior work of the Committee and existing SCCR documents. These documents should include the latest products of and proposals in the Committee, such as:

The first paragraph also records that the work is to be “without prejudging the final outcome.” This expresses the consensus of the members that the Committee can work on text, at least on non-binding instruments such as a Joint Recommendations or model laws. This is consistent with the General Assembly’s decision that the Committee should “continue discussion to work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms).” (WO/GA/41/14).

2. Paragraph two calls for the work of the Committee to focus on the issues on which there is the most consensus now. This consensus was promoted in the 2019 Action Plan activities and recorded in its final report.

3. Paragraph three calls for more research and deliberation on policy options to address cross border uses of works that require limitations and exceptions. The next step could be to invite textual proposals from member states on provisions of international instruments that could help address cross border issues. These can include, as noted in the paragraph: “the cross-border use provision proposed by Argentina (SCCR/33/4); the legal fiction model adopted in Article 5 of the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market, and such other models as are proposed for consideration by Member States.”

4. Paragraph four calls for the beginning of text based work on the priority issues identified in paragraph 2. It suggests using processes “such as working groups of member states, supported by experts as appropriate and agreed, preparing objectives and principles and model provisions for consideration by the Committee.”  Other processes could be used. The important principle is that a process begins to work on text of an instrument in whatever form in the SCCR.

5. Paragraph 5 identifies issues for further study and information exchange on additional pressing issues. These include limitations and exceptions for text and data mining research; the UNESCO Recommendation on Open Science (2021); and models for protection of limitations and exceptions from override by terms in contracts, safe harbor protections for educational, research and cultural heritage institutions (and their agents), and exceptions to technical measures of protection and rights management information to protect uses permitted by limitations and exceptions. This is the kind of work that could be pursued in conferences, webcasts and workshops outside of the formal Committee meetings. Particularly when the Committee meets only once or twice a year, additional meetings and workshops to share information can be supported between sessions.

Cross border uses panel

Cross border uses can only be enabled through an international instrument. The examples to be discussed at the SCCR show the importance of cross border uses for education, research and other important purposes. Recent PIJIP publications illuminate additional examples of important research uses of materials that often involve exchanges across borders:  

The African Group Proposal, described above, proposes evaluation of international law models for overcoming cross border issues that this Committee should consider.

References

PIJIP has published the following materials to inform the deliberations at SCCR 43:

Workshop Presentations

Archived webcast of our recent workshop: What’s at Stake for the Public Interest at WIPO SCCR 43? March 6, 2023, Link, including the following presentations available for on-demand viewing:

Teresa Hackett, EIFL/ History of the L&E Agenda at WIPO
Sean Flynn, American University / The Broadcasters’ Treaty and L&E
James Love, KEI / What’s Wrong with the Broadcasters’ Treaty; Exit Strategies
Dick Kawooya, U. South Carolina / The Preservation Toolkit
Martin Senftleben, University of Amsterdam / Comments & discussion

Analysis of the Broadcast Treaty

  • PIJIP, Limitations and Exceptions In Second Revised Draft Text Of The Broadcast Treaty https://infojustice.org/archives/45112
  • Flynn, Sean and Alvarenga, Miguel, “Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty, Annotated” (2023). Joint PIJIP/TLS Research Paper Series. 85.https://digitalcommons.wcl.american.edu/research/85
  • Hugenholtz, Bernt, “The WIPO Broadcasting Treaty: Comments on the Second Revised Draft” (2023). Joint PIJIP/TLS Research Paper Series. 84, Link

L&Es in International Treaties

  • PIJIP, “Limitations and Exceptions in International Copyright and Related Rights Treaties” (2023). Joint PIJIP/TLS Research Paper Series. 86 (excerpts of limitations and exceptions from previous treaties) https://digitalcommons.wcl.american.edu/research/86

Examples of uses of L&Es

SCCR 42 reports

  • Teresa Nobre, THE WIPO FILES II: IS INTERNATIONAL LAWMAKING ON COPYRIGHT STILL POSSIBLE?, report on SCCR 42, May 25, 2022, Link
  • Andres Izquierdo, Report of SCCR/42 on Limitations and Exceptions and the African Group Work Plan Proposal,  Link