Although our last post regarding the agenda for the 26th session of the Standing Committee on Copyright and Related Rights (SCCR) provided a broad overview of the issues to be discussed at this December’s session, we decided that in order to provide more in depth coverage regarding the texts that are on the agenda, a small blog post summarizing these provisional documents would help to put these documents under further scrutiny.
Working Document for a Treaty on the Protection of Broadcasting Organizations
As mentioned in the previous post regarding the 26th session of the SCCR, the Working Document for a Treaty on the Protection of Broadcasting organizations represents one of the first major amendments to the state of international copyright law as it specifically pertains to broadcasting since the Brussels Convention of 1974, but more generally the Rome Convention of 1961. In this document there are currently sixteen articles: relation to other conventions and treaties, general principles, protection and promotion of cultural diversity, defense of competition, definitions, scope of application, beneficiaries of protection, national treatment, protection for broadcasting organizations, limitations and exceptions, term of protection, protection of encryption, provision of enforcement rights, formalities, and application in time. To refer yet again to our previous blog post, it was noted that the definitions section was an area of particular difficulty for the delegates at the previous session of the SCCR. Primarily, the difficulty stemmed from both a desire and apprehension in drafting specific definitions regarding the technological aspects to be covered by the working document, and the potential implications it could have on access to public information, especially in regards to the digital environment. In its current textual form, however, most of the document consists of a proposed treaty and alternative definitions to some of its subsections. This is due to a difficulty in adapting specific legal definitions to the realities of modern broadcasting technologies and their rapid advancement. It is because of this that it will remain to be seen how much progress the committee will make regarding this text at the next session.
Provisional/Working Document Towards an Appropriate International Legal Instrument on Limitations and Exceptions for Educational, Teaching, and Research Institutions and Persons with Other Disabilities Containing Comments and Textual Suggestions
At the present time, a provisional working document regarding the creation of an instrument/treaty has been prepared by the secretariat in lieu of the upcoming meeting. Currently, suggestions have been made by various member states as to the breadth and scope of such an instrument/treaty. These suggestions have been categorized into seven sections: preamble, definitions, generally applicable considerations, uses, exceptions and limitations for persons with other disabilities, and broader topics with implications for education. Aside from the preamble, which is fairly self-explanatory, the separate sections mentioned above also break into separate subsections that further correspond to the specifics of the limitations and exceptions that would be granted to those who are deemed able to do so in the definitions section of the document. In regards to that section, working definitions for accessible format, archive, database, disability, exclusive rights, library, and work are provided. Although this is one of the shortest parts of the document, it is undoubtedly the most important because it determines the overall parameters for the application of the exceptions and limitations to copyright and related rights that are outlined in the rest of the treaty/instrument.
Apart from the definitions section, the rest of the document, in its current form, contains comments and suggestions regarding the other sections. Section 3, generally applicable considerations, contains textual discussions such as the balance between the fostering of public knowledge and the economic protection and security of the knowledge economy, flexibilities for educational institutions, libraries and archives, the application of the three step test, obligations and proposals to update exceptions, and the ongoing WIPO work plan. Particularly interesting to note in this section is the disagreement between developing nations wishing to pursue the furtherance of free access to information and developed ones that are wary to do so because of a desire to provide a large commercial market for education and research materials. This is a conflict, albeit small, that carried over into the next section regarding the use of copyrighted material by the beneficiaries outlined in the definitions section. In this case, there was a division in opinion between developed nations of the European Union and the United States of America and delegations from developing countries because of the fact that the former delegations in particular mentioned that hey already had legislation already dealing with uses in their national law. Nevertheless, in its current form, this section covers the specific application of how exceptions and limitations for beneficiaries may be applied both inside and outside educational and research institutions, including but not limited to reproduction, translation, preservation research, the making available of copies in an accessible format, recitation and performance, and reverse engineering. Furthermore, the document contains beginning discussions regarding limitations and exceptions for peoples with perceptual or cognitive disabilities as well as broader topics with implications for educations, which focuses on technology.
Provisional/Working Document Containing Comments on and Textual Suggestions Towards an Appropriate International Legal Instrument on Limitations and Exceptions for Libraries and Archives
Similar to the previously described treaty dealing with exceptions and limitations for educational and research institutions, the working document containing comments and suggestions towards for a legal instrument for archives and libraries is concerned with the nexus of public knowledge and free access to copyrighted material for the spread of such knowledge. However, although perhaps somewhat obviously, this document is concerned particularly with the copyright and related rights that affect these institutions specifically. Where the treaty regarding limitations and exceptions for the purposes of education and research is concerned with the role of libraries and archives in a learning environment, this document is rather concerned with the daily activities of the library or archive that come into consideration when discussing possible exceptions that could be provided such that the objective of furthering public knowledge can be much more easily accomplished, both domestically and internationally. In its current form comments and suggestions have been put forth regarding preservation, the right of reproduction and safeguarding of copies, legal deposit, library lending, parallel importations, cross-border uses, orphan works and/or retracted works or works out of commerce, technological measures of protection, contracts, and the right to translate works. In some cases, such as the right of reproduction, some states mentioned that they did have provisions in place within their national law, however they did also acknowledge the need to make amendments to the current international system in light of the increasingly prevalent shared digital environments that are used by many libraries and archives. Nevertheless, how this treaty/instrument shall change remains to be seen but is undoubtedly something to watch for at the 26th session of the SCCR.
Although the documents described in this post may, at the current time, be unfinished or seem radically incomplete, they are still a very good indicator as to how past deliberations have gone. By examining past deliberations hopefully our readers can become better informed as to what to expect this December at the 26th session of the SCCR as well as, hopefully, be able to follow the session with a much more critical eye.