33rd Session of WIPO Standing Committee on Copyright and Related Rights (SCCR)
by Shiri Kasher-Hitin (member of AIPPI’s Standing Committee on Copyright)
This SCCR meeting discussed mainly protection of broadcasting organizations and also limitations and exceptions for education, research institutions, libraries and archives. A comprehensive and fascinating study on exceptions for education was presented in detail and might influence significantly the drafting of the next treaty on this exception to copyright law.
Protection of Broadcasting Organizations
Some member states argued that the treaty should refer to a broadcast “signal” in its traditional sense only. Others emphasized the necessity to expand applicability of the treaty so it shall fit current technological changes. Finally, the member states agreed that any treaty should include mandatory protection for simultaneous and near simultaneous broadcasts, namely, broadcast that are postponed due to time differences or technical delay only. It was also agreed that the treaty should not apply to video-on-demand (VOD) services. Other significant issues remained open to further discussion, e.g., whether transmission via computer network will be protected and whether the definition of broadcasting organization will remain non-binding and subject to the existing framework of law in every member state.
Limitations and Exceptions for Education and Research Institutions
The Distinguished Professor Daniel Seng (Singapore) presented the results of his very comprehensive research, which included a detailed examination of the relevant legislation in all 189 WIPO member states. Prof. Seng found that copyright legislation in all member states includes exceptions for education and in most of the member states there are no less than 8 legal provisions in this regard. In states where legislation stems from common law or civil law, there are at least 13 legal provisions regarding this exception to copyright. The study shows that a significant majority of member states provide exceptions for personal use, quotations, educational reproduction, educational publications, educational performance and also educational broadcast. Accordingly, the member states were sharply divided on the question whether it is necessary to reach a norm setting treaty or whether sharing of best practices is sufficient.
Just a few days before the meeting Argentina submitted a proposition that shall be discussed on the next meeting.
Limitations and Exceptions for Libraries and Archives
The discussion focused on the following topics:
LIMITATION ON LIABILITY OF LIBRARIES/ARCHIVES. Library representatives indicated their need to receive safe harbor to avoid their potential criminal liability and to limit the amount of compensation for which they may be liable. They described the global character of their work which pushes them to obtain legal advice that they cannot afford and the effect of which on their task is chilling. They pointed out that the existing legal terms (e.g., “fair use”) are vague and therefore lead to litigation. On behalf of AIPPI, the author submitted to the Secretariat AIPPI’s position as phrased in Resolution Q246 (the “Resolution”).
TECHNOLOGICAL MEASURES OF PROTECTION (TPM). Library organizations clarified that technology prevents them from realizing the public interest in their operation due to the fact that TPM expands the protection given to right holders beyond copyright. For example, the TPM shall remain intact even after a work falls to the public domain and prevents access to it. EU and USA described how their laws allow circumvention in certain circumstances and therefore balance between the interests of both the public and the right holders.
CONTRACTS. Library organizations clarified that the burden of interpreting contracts in a language other than the local language is burdensome and if copyright international law can be inferior to the contracts, which are always phrased by the right holders, then international legislation is pointless. The author read AIPPI’s position as phrased in the Resolution.
TRANSLATION. Should we grant libraries and archives a right to translate works from their original language to local language? On the one hand, from a rights holder point of view, it might not be cost effective to translate the work to local language and that is why libraries in those member states need this exception. On the other hand, provision of such exemption contradicts the Berne Convention.
Resale Right for Visual Artists (Droit De Suites)
The right is mentioned in the Berne Convention and is not mandatory. At the end of 2015, Senegal and Congo submitted their request to exchange experiences and practices relating to the resale right between member states. Pursuant to this initiative, Professor Sam Ricketson (Australia) presented the rationale and justification for the resale right. EU declared its readiness to share its experience with the other member states.
All aforementioned topics shall stay on the agenda of the next SCCR meeting.
The writer is a member of the AIPPI Standing Committee on Copyright and was present at the SCCR meeting for AIPPI in an observer status.
- 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, p. 3, Art.5.
- Ibid, p. 3, Art. 8.
- Berne Convention for the Protection of Literary and Artistic Work, Art. 8. [http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=283693]
- Ibid, Art. 14ter.