December 2016 – WIPO Monitor

WIPO’s move to open access laudable among international organizations

It’s important, in the interests of transparency, accountability, and access to knowledge, that international organizations adopt open licencing of their publications and records. WIPO’s recent move to implement a new Open Access policy puts it among the forefront of international organizations adopting Open Access policies.

In 2013, Creative Commons announced a new Creative Commons licence specifically designed for international organizations (IGOs). International Organizations’ Creative Commons licences are similar to other Creative Commons licences, but are specially designed for international organizations, which have special copyright licencing requirements due to their privileges and immunities in national legal processes.

In adopting the Creative Commons-IGO licence, WIPO is at the forefront of UN agencies and other international organizations. WIPO joins UNESCO and a number of UN-funded programs and portals, as well as the World Health Organization (WHO) and the World Bank Group in adopting the licence. WIPO and other UN agencies must go further.

The 2012 Hague Conference on Private International Law unanimously endorsed a set of recommendations that included a set of 18 guiding principles on access to law (Greenleaf, Mowbray, & Chung, 2013). The principles of access to law widely endorsed by states call for not just open access to legislation and case law, but also open access to “relevant historical materials, including preparatory work and legislation that has been amended or repealed, as well as relevant explanatory materials.” Further, they call on states to “permit and facilitate the reproduction and re-use of legal materials[…]by other bodies, in particular for the purpose of securing free public access to the materials, and to remove any impediments to such reproduction and re-use.”

While not perfect, WIPO has been noted for its relative transparency and the accessibility of its documents. WIPO’s new Open Access initiative is a part of this. However, the licence, at present, will be applied to WIPO publications published online on or after November 15, 2016 and other select content. In the interests of continued openness, transparency and accountability, WIPO should apply the Creative Commons-IGO licence to all of its publications, including historical materials, meeting documents, and explanatory materials, and including documents published prior to November 2016. In an era of increasing skepticism of globalization, WIPO can build on its own best practices and take the lead on transparency and free access to law.

With thanks to Coralie Zaza for her extensive research on the Open Access policies of international organizations.

Reports and studies from the latest SCCR meeting

Photo: WIPO – Emmanuel Berrod.

As discussed in our previous post, the SCCR meeting held in November in Geneva discussed, among other topics, the limitations and exceptions for libraries and archives. Most notably, WIPO released a Study on Copyright Limitations and Exceptions for Educational Activities prepared by Professor Daniel Seng from National University of Singapore. The extended study reviews 2,048 pieces of copyright legislation from 189 WIPO member states. It was a necessary addition to the other studies commissioned by WIPO mapping different limitations and exceptions in many different countries. As EIFL relates, the study focuses on eight categories of limitations and exceptions that relate to educational activities, forming the basis of an informal chart prepared by the Chair for further discussion on the topics by the committee. The revised chart will provide the basis for future discussion at the next SCCR meeting in May 2017.

Additionally, a preliminary presentation of the scoping study on limitations and exceptions for persons with disabilities, other than print disabilities, and a description of topics was discussed and will further be studied. (Item 22 of the Summary) The complete study is expected to be presented at the next SCCR meeting as well.

Of note, the Committee discussed the Proposal for Analysis of Copyright Related to the Digital Environment submitted in 2015 by the Group of Latin American and Caribbean Countries (GRULAC). Delegates of Chile delivered a powerful statement on behalf of GRULAC, acknowledging the digital work and help of archivists and museologists in Brazil and the U.K. in ensuring gender equity in the UN Charter of 1945.

In this statement, Chile explains that Brazilian scientist and diplomat “Bertha Lutz – with the help of delegates from Uruguay, Mexico, Dominican Republic and Australia – demanded the inclusion of women’s rights in the Charter and the creation of an intergovernmental body for the promotion of gender equality, while the plenipotentiary delegate of the United States and the British delegate opposed.”

The Committee supported the proposals that were made by some delegations to commission a scoping study on the impact of digital developments on the evolution of national legal frameworks over the last ten years. A proposal was made to add the topic to the SCCR agenda as a standing agenda item.

EIFL concludes, on behalf of librarians and archivists everywhere, that “with a busy agenda ahead, we will have to work hard to ensure that limitations and exceptions for libraries, archives and museums get their rightful attention and that we keep moving forward in 2017 for the benefit of libraries everywhere.”

Canada’s Interventions at the IGC 32

WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) 32nd session took place from November 28 to December 2, 2016. A Seminar on Intellectual Property and Traditional Knowledge was held on November 24 and 25, 2016, just prior to the IGC session.

On the agenda for this meeting, Item 6: Traditional knowledge was predominantly discussed. The committee reviewed “The Protection of Traditional Knowledge: Draft Articles” (WIPO/GRTKF/IC/31/4) last revised on March 28, 2014. The Chair introduced the discussion by reminding the committee that “in reviewing the objectives, Member States could reflect on which of the concepts detailed in the Policy Objectives set out in document WIPO/GRTKF/IC/31/4 were most directly related to IP, noting the mandate of the IGC was to “reach an agreement on an international legal instrument(s) relating to IP” for the balanced and effective protection of TK.”

Photo: WIPO – Emmanuel Berrod.

The Delegation of Canada, in response to a speech from the Delegation of Greece expressing the hope that “IGC would develop a common understanding on core issues and advance in a meaningful way”, conveyed their support and agreement, but questioned the concept of national authorities as beneficiaries. Currently, the draft article reviewed designates the Indigenous Peoples, local communities, and nations as beneficiaries of traditional knowledge, potentially offering national authorities power of control over ways in which traditional knowledge is used beyond the traditional and customary context. No formal agreement on the term used in the draft resulted from the meeting, with other delegations such Algeria suggesting to replace “nation” or “national authority” by national bodies or competent bodies. The Delegations of Ghana, Nigeria and Thailand indicated that on the contrary, they were in favor of a definition that would be as inclusive as possible to identify and recognize IPLCs (Indigenous Peoples and Local Communities) and States as beneficiaries.

In another response, the Delegation of Canada expressed their concern over the wording of the draft article, mixing the definition of Traditional Knowledge, the subject matter of the instrument and the scope of protection. They suggested that the IGC “had to come up with one clear, well-drafted statement about what was the subject matter of the instrument.” Their intervention sparked discussion over the definition of key words such as traditional and protection. Further in the meeting, Canada expressed again their request for clarification, asking for instance what the terms “dynamic and evolving” added to the definition in Article 1 of the draft: “The subject matter of [protection]/[this instrument] is traditional knowledge: (e) which may be dynamic and evolving.”

They suggested two options:

(1) a well-drafted definition of TK could be referred to in the article on “Subject Matter”, or

(2) a stand-alone article with the definition of TK that would be covered by the instrument

In response to this debate, the Chair reminded the committee that “the material presented was simply work-in-progress, and it had no status and was not a revision. It was just some ideas and thoughts that the facilitators thought were worthy of presenting and getting initial comments on before working on the first revision.”

The Chair later discussed the introduction of a tiered approach to the scope of protection, “whereby different kinds or levels of rights or measures would be available to rights holders depending on the nature and characteristics of the subject matter, the level of control by the beneficiaries and its degree of diffusion. The tiered approach proposed differentiated protection along a spectrum from TK that was available to the general public to TK that was secret/not known outside of the community and controlled by the beneficiaries. That approach suggested that exclusive economic rights could be appropriate for some forms of TK (for instance, secret TK, and TK uniquely attributable to the specific IPLC), whereas a moral rights-based model could, for example, be appropriate for TK which was disclosed, already publicly available but still attributable to a specific IPLC.”

Canada conveyed their interest in such approach, with some reservation in regards to the practical measures as applied and interpreted by administrative or judiciary bodies of the Member States. They suggested once again the need for clarification, concrete information and agreement from all parties before moving the discussion forward.

As reminded by the facilitators, the discussion and debates recorded during this meeting were not meant to be an official revision of the text. “It was meant to elicit further comments from Member States on the core issues prior to production of a Rev 1. […] The objective was to aid in the development of a cleaner, simpler, more streamlined text that captured and reflected common positions on core issues.”