Peaks and Valleys at WIPO’s Latest SCCR

WIPO’s latest meeting of the SCCR had both failures and successes. Although it was without any agreements on established agenda items, for the second time in a row, the meeting did mark the very first ratification of the Marrakesh treaty.

The meeting of WIPO's twenty-eighth session of the Standing Committee on Copyright and Related Rights
Photo: WIPO – Emmanuel Berrod

It seems as though a pattern is starting to form in the WIPO’s SCCR where developed countries are resisting efforts made by developing countries to create a copyright environment that will be favourable to their development.  Several developing countries stressed the development aspect of this UN agency in hopes to steer the focus of discussions to issues found in the Development Agenda. “Developing countries are pushing for limitations and exceptions to copyright, developed countries contend that the current copyright system is adequate” (Info Justice).

In order to bypass the refusal of the European Union and other countries to get to a text-based work on libraries and archives, the US delegation was invited by the Chair to present objectives and principles for exceptions and limitations for libraries and archives. The US delegate stated that the proposal was “seeking agreement on basic goals at the international level on which to base further work on national laws” but the EU insisted that they were “not willing to work towards a legally binding instrument” (IP Watch), a position they adopted at the previous meeting of the SCCR. This is troublesome for developing countries that rely mostly on foreign works and who do not have developed and self-sustaining publishing industries.

This position is troublesome to librarians and archivists who are seeking to have updated the legal frameworks that they work within to preserve and acquire works and make them available for education and research. A further issue that they want WIPO to address is that of contract licenses for digital content which often overrides the exceptions and limitations currently being discussed within the SCCR. “Collectively, libraries today spend billions of dollars each year on licensed digital content” according to the International Federation of Library Associations (IFLA).  Ellen Broad, the manager of digital projects at IFLA said that “amounts spent on content differ dramatically” while Simonetta Vezzoso, copyright consultant at the Associazione Italiana Biblioteche (Italy) added that “There is little transparency in costs across suppliers” (IP Watch).

Despite setbacks however, India became the first country to ratify the Marrakesh Treaty. “We congratulate India on its ratification of the Marrakesh Treaty and hope this ratification will be the first of many,” said WIPO Director General Francis Gurry. “When the Marrakesh Treaty takes effect, the lives of people who are visually impaired around the world will be enriched” Gurry Said (AG-IP News). The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled seeks to, as the name suggests, facilitate the production, dissemination and exchange of works for “persons who are blind, visually impaired, or reading disabled or persons with a physical disability that prevents them from holding and manipulating a book” (WIPO). The treaty will come into force once 20 ratifications have been presented to WIPO.

In addition, the Accessible Books Consortium was launched and is tasked with increasing the number of accessible books “for use by hundreds of millions of people around the globe who are blind, visually impaired, or otherwise print disabled, most of whom live in less-developed regions” (WIPO). According to WIPO, ABC was created to help increase access to works by print disabled individuals through work in three areas: “the sharing of technical skills in developing and least developed countries to produce and distribute books in accessible formats, promoting inclusive publishing, and building an international database and book exchange of accessible books”.

What will be discussed at this meeting of the CDIP?

The Committee on Development and Intellectual Property (CDIP) is a body created by WIPO’s general assembly in 2008. It is tasked with creating and adapting programs according to the 45 recommendations of the Development Agenda. The CDIP will be meeting from May 19th to the 23rd of this year and has many items on its agenda. Several topics are planned for discussion, the most relevant of which will follow.

First, the committee has chosen to have a third party independent review of its implementation of the development agenda recommendations to its programs. Before doing this however, the committee must discuss and arrive at a consensus on the terms of reference to be used for the review (CDIP/13 Webcast: Mon 19 – English Morning Session).

The next item has the CDIP tasked with the discussion and reporting of two important issues. The first is the implementation of the ‘Coordination Mechanism’, or the Coordination Mechanisms and Monitoring, Assessing and Reporting Modalities, which requests reports from all WIPO bodies on how they are implementing the development agenda recommendations. Secondly, CDIP must come to consensus on a new agenda item on the third pillar of the CDIP mandate, Technology Transfer, Information and Communication Technologies (ICT) and Access to Knowledge. According to WIPO Director General Francis Gurry, this “cannot be referred back to the General Assembly until such time as you, in the CDIP, have reached agreement upon a recommendation that can form the basis of a decision of the General Assembly” (CDIP/13 Webcast: Mon 19 – English Morning Session).

The External Review of WIPO Technical Assistance in the Area of Cooperation for Development will further be discussed in order to identify the best ways to improve WIPO’s technical assistance activities. Technical assistance, in this context, refers to the development of programs that will enable developing nations to participate in the global intellectual property system. This encompasses a number of programs including online services that seek to facilitate filing and registering IP rights and other initiatives that seek to better integrate regional systems to the global IP infrastructure (WIPO).

Finally, the CDIP will discuss Patent Related Flexibilities in the Multilateral Legal Framework and their Legislative Implementation at the National and Regional Levels. According to recommendation 14 of the WIPO’s Development Agenda, “Within the framework of the agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs, on the implementation and operation of the rights and obligations and the understanding and use of flexibilities contained in the TRIPS Agreement” (WIPO).

At the Thirteenth Session of WIPO's CDIP
Photo: WIPO – Emmanuel Berrod

Little Progress at SCCR

There was again no real progress after another effort to concretize the future work of the World Intellectual Property Organization’s (WIPO) Standing Committee on Copyright and Related Rights (SCCR). The inability to arrive at any conclusions was due to tension between the positions of developing and developed nations.

The Twenty Seventh Session of WIPO's Standing Committee on Copyright and Related Rights
Photo: WIPO – Emmanuel Berrod

The 27th meeting of the SCCR took place from April 28th to May 2nd, 2014. The week began with the discussion of rights for broadcasters and ended with exceptions for libraries and archives. With developing nations trying to obtain more beneficial rights regimes and developed nations trying to maintain current states of affairs which are advantageous to them, both topics ended at a stalemate.

Developing countries hope to produce a treaty that would allow exceptions in copyright for libraries and archives. This proposal was most strongly and vocally opposed by the European Union (IP Watch). Delegates from the EU were adamant about the removal of references to copyright exceptions in ‘text-based’ work relating to libraries and archives. This was seen by other delegates and library and archive NGOs as an attempt to slow or completely halt any progress on making exceptions to copyright (IFLA).

Delegates were also slow to come to any agreement in terms of broadcasters’ rights. This slow progress was attributed to the highly technical nature of the terms being discussed. Informal consultations were said to have brought many of the delegates up to speed on these matters (IP Watch). Most of the conclusions presented were accepted after changes to just about every paragraph. Nevertheless progress was made towards an international treaty to protect broadcasters’ rights.

Libraries Decry Digital Locks

A meeting at the World Intellectual Property Organization last week on a possible international treaty or international instrument that would enable libraries and archives to better preserve cultural heritage and better enable access to information by people around the world ended in stalemate.

The Twenty Seventh Session of WIPO's Standing Committee on Copyright and Related Rights
Photo: WIPO – Emmanuel Berrod

This outcome was unfortunate for developing countries as well as library and archive NGOs who feel the direct pressure of the rigidity of national intellectual property laws. On behalf of the Canadian Library Association, Margaret Ann Wilkinson made a statement at the meetings, noting that since 2012 “Canadian libraries’ abilities to meet the needs of our users have been compromised through the recent introduction into Canadian law of legal protection for Technological Protection Measures and Digital Rights Management” (IFLA).

Wilkinson concluded that:

an international treaty with a provision declaring states must legislate such that libraries and archives can circumvent Technological Protection Measures in order to exercise their statutory limitations and exceptions to the rights of the rights holders will restore balance. Such a treaty will allow libraries and archives, including Canadian libraries and archives, to serve their important public interest function.

Who Should Lead the Future of International IP: The Director General Election

Once every six years WIPO elects a new Director General. The elections will take place this year, March 6th 2014. The current Director General, Francis Gurry, during his term has worked to alleviate the tension on current patent and copyright systems that are caused by developments in digital technology. The future head of WIPO will be expected to advance the organization’s mandate to further international intellectual property systems that benefit member states in equal terms.

There are four candidates running for the position this year. They include current director general Francis Gurry (Australia), Deputy Director General Geoffry Onyeama (Nigeria), Ambassador Jüri Seilenthal (Estonia), and Ambassador Alfredo Suescum (Panama). The candidates appeared before WIPO member states to answer questions.

Candidates for Director General of WIPO: (From left to right) Alfredo Suescum, Jüri Seilenthal, Geoffry Onyeama, and Francis Gurry.
Candidates for Director General of WIPO: (From left to right) Alfredo Suescum (Photo: Intracen) , Jüri Seilenthal (Photo: ITU News) , Geoffry Onyeama (Photo: The Rainbow), and Francis Gurry (Photo: WIPO).

Gurry’s authority has come under fire recently by several US congressmen and other lawmakers for supplying North Korea and Iran with computers, violating UN sanctions that prohibited such activites. Nevertheless Gurry maintains no sanctions were violated and that the computers were sent as part of a program to enable developing countries to search through international patent databases. This project is meant to reduce counterfeits and support a strong international IP infrastructure. Gurry also angered several member states by agreeing to open a WIPO office in Moscow.

The drama surrounding current Director General Gurry’s office is heightened further in that he was the successor to former Director General Kamil Idris who was forced to step down due to misconduct. Instability and distrust in WIPO as an institution could not come at a worse time given that developments that could even the international IP playing field, especially in terms of genetic resources, traditional knowledge, and folklore (GRTKF). Among the biggest proponents of a new, fair, and effective GRTKF regime are the members of the African Union who have declared their formal support for the candidacy of Deputy Director General Geoffry Onyeama. Onyeama is also responsible for WIPO’s development sector, which is commissioned with advancing the needs of developing nations in order for them to benefit from innovation and the knowledge economy.

Candidate Alfredo Suescum is the current Chair of the WTO TRIPs Council and Ambassador to the WTO. He is a US educated lawyer who has held several other diplomatic posts including a UN ambassadorship on behalf of Panama. He is known to stand his ground on behalf of the needs of his constituents which was demonstrated in the Doha Round, after which the US apparently put pressure to remove him from his post.

Finally, Ambassador Jüri Seilenthal plans to run a campaign based on balancing the needs of developed and developing nations, special attention to small and medium enterprises and private investors, tight fiscal management and transparency, and consolidation of WIPO treaties in order to gain universal coverage and accession of WIPO treaties. He is also the former chair of the WIPO Coordination Committee, and of the Trade and Development Board of the UN Conference on Trade and Development and a human rights expert.

Along with their experience and qualifications, the results of ongoing meetings and campaign appearances will be taken into account while deciding who will be WIPO’s Director General for the 2014–2020 cycle. The deciding body, a rotating group of 83 member states called the Coordination Committee, will make its edecision based on the approved conventions. Their decision will then go to the General Assembly so that all member states can approve their decision, or not.

The Coordination Committee will meet to nominate a candidate on Marcy 6 & 7 2014.