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WIPO and out?

THE WORLD Intellectual Property Organization could be in trouble. WIPO is the United Nations body in Geneva charged with looking after international law on copyright (as well as patents and trade marks). Its Standing Committee on Copyright and Related Rights (WIPO SCCRR) ended at midnight on Thursday 24 June without agreed conclusions.

The failure to reach an agreed conclusion is a bit of a disaster in diplomatic terms. Such meetings usually manage at least an anodyne promise to continue work. It increases the risk of WIPO - generally, as an institution, aware of individual creators' rights - being sidelined by such developments as: bilateral agreements between the US and other countries; the World Trade Organization; and the "secret" Anti-Counterfeiting Trade Agreement (ACTA) talks on an enforcement regime - a draft of which emerged in April. None of these developments can be expected to be friendly to individual creators.

There were three proposals on the table in Geneva.

1) A treaty giving rights "neighbouring to" copyright to broadcasting organisations

The draft SCCRR conclusions called for further informal consultation, in particular on whether it is only to protect traditional broadcast signals, or to "webcasting" too. In the standard picture of the future, of course, all creators' works will be distributed as "webcasts". So imposing an extra layer of rights on top would be a bad plan, whereas a right for traditional broadcasters doesn't do an enormous amount of harm. It seems that this will be a battle in the future.

The Group of Latin American and Caribbean Countries (GruLAC) proposed an amendment weakening the conclusion, omitting "treaty".

2) A second try at a treaty for audiovisual performers

Nineteen of twenty Articles of a treaty to give "audiovisual" performers - mostly actors - rights similar to those of authors and musicians were agreed at a Diplomatic Conference in 2000. That foundered on the insistence of the US at the time that the twentieth be a "presumption of transfer" of audiovisual performers' rights to their employers or movie producers. This was the Diplomatic Conference at which the Motion Picture Association of America had a person actually on the US diplomatic delegation.

What the US is now willing to agree to is "national treatment". That would leave a "presumption of transfer" in place in the US - where it is not much of a problem for actors because of the collective bargaining clout of the Screen Actors' Guild - and possibly in the UK and India, where it is a problem, because of the lack of clout. I heard second-hand that Mexico would propose there be a right of remuneration (cash!).

The draft SCCRR conclusions called for informal consultations, with a view to proposing a timetable for a new Diplomatic Conference to SCCRR 21 on 8-12 December 2010.

GruLAC proposed an amendment weakening the conclusion, with the effect that the consultation could re-open the 19 articles agreed in 2000. India supported. The US, like other powerful countries and blocs, was in favour of leaving the 19 articles untouched and offered Brazil & India a consultation.

Spain, holding the Presidency of the EU, proposed that the item remain open "for discussion" on the agenda of SCCRR 21. The Assistant Director-General asked off-microphone "Why else would it be there? What else would we do with it?"

3) Limitations and exceptions to copyright

This is where the real fight broke out.

There are now two proposals (Latin American and African) for Treaties setting out exceptions - that is, that particular uses would not be subject to copyright. The EU and US made separate proposals for a measure short of a Treaty, a WIPO Recommendation.

The Latin American proposal, tabled in May 2009, would implement an exception for use by "persons who are visually impaired or have other disabilities in accessing copyrighted works".

The African proposal extends it to include exceptions to copyright for use in education, libraries/archives, private use and research, and reverse-engineering computer programs. It's loosely written: it would allow libraries to make everything available online to all BUT says such use must be "without conflicting with the normal exploitation of the work or unreasonably prejudicing the legitimate interests of the author".

It declares that "a disabled person means any person suffering from visual impairment or a physical, mental, sensory or cognitive incapacity [or] persons with any other disability who, due to that disability, need an accessible format".

Could it be that some of the anti-copyright forces that are briefing what are often referred to in Conference English as "the blinds" are looking forward to a post-literate society in which only the remaining readers pay? It is widely suspected among creators' and publishers' groups that these are using "the blinds" as a "wedge strategy" - who would dare argue against more rights for people with visual disabilities?

The EU proposal recommends exceptions for a tightly defined set of uses by print-impaired people - which would not apply where there is a licensing scheme. This is much like the UK exception for educational use of broadcasts, which does not apply because there is a licensing scheme which distributes money through collecting societies.

The US proposal recommends a single exception allowing the export of versions for visually impaired people - unregulated in the case of Braille and through a "trusted intermediary" for other types such as audiobooks.

The draft SCCRR conclusions proposed preparing a comparative table of the four proposals and the pursuit of negotiations preceded by informal consultations.

The African group proposed that the timetable for a treaty proposed by Brazil, Ecuador, Paraguay and Mexico had not been officially introduced to SCCRR for debate. The proposers responded angrily that they believed any document that had been presented but not discussed had been agreed.

Things clearly got rapidly worse from there on. Your correspondent had to leave when the meeting adjourned at 6pm, to catch a plane (which was broken, entailing another night in Geneva anyway).

Several representatives of international creators and publishers' organisations believe that WIPO has made a serious mistake in entertaining hundreds of national organisations (and even the Perkins School for the Blind of Watertown, Massachusetts) speaking to an international meeting. The anti-authors'-rights lobby is piling in the Non-Governmental Organisation registrations. We spent about two hours of the three allocated to NGOs listening to identical presentations of why blind people deserve respect.

An intervention by the International Federation of Journalists argued that we need to re-think the debate now that online publication - from FaceBook to YouTube - makes it obvious that creators' rights are essential rights of every citizenand that the dichotomy between users and creators is false. It was well received by a remarkable range of participants.

More copyright stories...

Last modified: 28 Jun 2010 - © 2010 contributors
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