E-News No.47

E-News No.47

32nd Session of WIPO Standing Committee on Copyright and Related Rights (SCCR) – Incubation of the next Treaties, 9-13 May 2016

by Shiri Kasher-Hitin (Kasher Law Offices – Israel)

During last May the WIPO’s Standing Committee of Copyright and Related Rights held its 32nd session. This committee prepares the drafts for the next IP treaties which shall influence all of us, whose world is significantly comprised of copyrights. AIPPI was invited to participate in the session and sent a delegate from its Copyright Committee.

The matters on the agenda of the committee were hot and so were the positions and opinions presented by the attendees. The items on the agenda included the scope of protection for broadcasting organizations and the scope of the research and education exemption in copyright law.

AIPPI reached a detailed resolution regarding the second item above, and so its delegate could present the AIPPI’s position during the meeting[1].

Protection of Broadcasting Organizations

The major questions were who may be considered a broadcaster for purpose of the future treaty regarding broadcasters’ rights and where we should draw the boundaries of protected broadcast signal. On the surface, all participants agreed that the content of the future treaty regarding broadcasters’ rights ought to fit the current actual age. But, when it came to implementation of that purpose in wording of definitions and scope of protection, there was a gap between the different positions.

Several developed countries supported expansion of the definition of broadcasting beyond its classical meaning, namely, wireless broadcast, so the treaty shall apply also to cable casting and re-transmission, both of which do not necessary take place simultaneously with the first TV wireless broadcast. Developed countries also supported the inclusion of the pre-broadcasting signal, i.e., the signal that reaches the broadcasting organization from the location where the production is shot, within the scope of protection. The rationale of the developed countries position was that an infringer would equally benefit at the broadcaster’s expense whether he takes over the broadcasting signal before it is assembled and scheduled by the broadcasting organization, after the first wireless broadcast, by catch-up/on demand or otherwise, and that is why the definition of broadcasting should be broad. Many developing countries were more conservative and supported narrow definitions according to which only wireless broadcast signal shall be protected and non-simultaneous broadcasting should be one that is postponed due to time differences in the same country only. The main rationale for their position was that the legislation in their countries does not protect the various other kinds of broadcasting and they do not desire to provide that broad and new protection.

Copyright Exceptions and Limitations for Educational Activities

The discussion regarding exceptions and limitations for libraries, archives, education and research is only in a preliminary phase. Many delegates of developing member states emphasized their absolute need to access protected works in order to develop through education and research. Delegates of developed member states stressed against setting out any new norms and requested to leave current legal status as it is.

The discussion was opened by a presentation given by Prof. Daniel Seng from Singapore. Prof. Seng presented the preliminary results of his study on copyright limitations and exceptions for educational activities[2]. The aim of the study was to review the exceptions and limitations of national legislations to better understand how legislatures have balanced the public interest in advancing education against the interests of authors and artists in their works[3]. Seng reviewed the legislation of 136 countries. ALL 136 countries provided exceptions for education and Seng examined those exceptions by classifying them according to 8 (eight) different parameters:

  1. Private or personal use (personal education and research)
  2. Quotations – as they play significant role in process of learning and research
  3. Reproductions for educational purposes
  4. Educational publications (as instructing material)
  5. School performance (as part of educational curricula)
  6. Educational communication (broadcasting and making available)
  7. Compulsory licenses for reproduction and translation of works for educational purposes
  8. Exceptions to the implementation of technological protection measures

The interesting data was that more than 95% of the legal provisions examined from all the countries included provisions regarding 1 to 6 above (!).

Delegates of non-governmental organizations that represented libraries and archives organizations claimed that they store and own enormous quantities of works relevant for all kinds of studies and research – all works that should be accessible to every person. They described the obstacles that they are facing in their attempt to achieve the common and agreed upon goal: enhancement and promotion of education and research, while keeping the copyright law. They described the due diligence process necessary to locate the author/owner of a work, which is a very time and costs consuming process that in many cases is not fruitful. They also pointed out that it is necessary to let international lending of books between libraries since many books are out of print and also since nowadays most studies and researches are made thanks to cooperation between researchers around the globe.

The next session of the SCCR shall include discussion regarding Seng classification above and also regarding the resale right and implications of digital age, specifically, equitable remuneration to authors.

[1] The resolution can be found at: http://aippi.org/wp-content/uploads/2015/10/2015-Resolution-Exceptions-and-limitations-to-copyright-protection-for-libraries-archives-and-educational-and-research-institutions-Q246.pdf

[2] http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=337036

[3] Ibid, SCCR/32/4, pg. 2.