WIPO Diary (SCCR 38) Day 3 – Exceptions, exceptions, exceptions (and limitations)

IPA-Delegation-SCCR38

Wednesday morning, before the start of the WIPO plenary session, IPA had two important meetings. Firstly, we were invited to take part in a regular briefing that the US delegation offers particular stakeholders at every SCCR. Secondly, IPA then met with the Asia-Pacific Group which includes Members States from a huge swathe of territory from the Middle East to islands in the Pacific. In a friendly meeting, we asked if there were reviews of copyright on the horizon among their members. We discussed the upcoming WIPO regional conferences (the first of which, will be at the end of April, in Singapore) as well as various other events and projects within their borders. These types of meetings are very important to ascertain current positions and plumb possible future shifts.

Following the closing of the Broadcasting Treaty discussions yesterday, today’s discussion shifted to the agenda items of major interest to IPA and publishers: Exceptions and Limitations.

The morning plenary session saw regional groupings and national delegations deliver their general positions on exceptions and limitations. The USA referred to their own study Protecting America’s Collections. The Singapore delegation confirmed the dates for the WIPO SCCR Regional Seminar which will take place there as 29-30 April (IPA has registered its interest in participating there). A number of delegations confusingly claimed that exceptions and limitations are essential to creativity. The European Union was firm in expressing its belief that an international normative text was not necessary and that the current international treaty framework is sufficiently flexible to allow individual Member States to do what is considered necessary. 

WIPO’s Regional Seminars this year will be of utmost importance and there was much jockeying and positioning today. Some observers are concerned that the Regional Seminars will be too general and high-level. Others are concerned that they will become drafting opportunities for a potential treaty text outside of the more formal rules of SCCR.

IPA President Hugo Setzer, when he spoke to Member States, chose to change tack:

Mr President, this room has been debating exceptions and limitations for nearly ten years now. All that there is to be said on the technical arguments for each proposed course of action has been said. 
Instead of repeating our position on the proposals, I would like instead to implore delegates to consider how they can combine policy ideas with pragmatism to create a brighter tomorrow. 
As I listen to the debate in this room, one thing is clear: all of us here are more united than we might think: united in a desire for a better world, for one characterized by educational opportunity and social mobility; united in a desire for progress, for an enlightened society, for an economy built on knowledge, learning and research, for a global community built on cultural exchange between nations, one in which our biggest problems can be solved only through compromise, reason, science and rationality. 
I urge all in this room to spend more time talking to their authors and publishers in their country about how to build smarter generations, and to understand better how educational books are written and made – the enormous work and thought that goes into matching content to educational outcomes; the considerable investment that goes into developing digital resources; and the steps taken to ensure that the best books are available to all. While exceptions and limitations may sometimes be necessary in special cases, they do not encourage the creation of new work.
Only by understanding your own authors and publishers can we come to an agreement on how to preserve the best of what we have while combining it with what we want to create in the future.

Senegal made a welcome intervention during the morning debate reminding participants of the importance of ensuring that creators are remunerated for their work: 

On this specific question we are discussing today, Senegal would like to highlight one point in particular. And in so doing we believe we are speaking for authors among others who speak out more and more loudly about the relevance of copyright. Africa has many great writers. But those writers are finding it increasingly difficult to live from the profits they can gain from their writing. They may be recognized for the works they have produced [for] educational establishments but … very often the free use of their works for education is not something that leads to them getting any remuneration. So up comes a question of balance that we have to tackle. Balance can't only be sought in the relationship between the rights of copyright holders and the public interest but also in the response that we provide to this question of the remuneration of those who produce creative work. The African regional conference on limitations and exceptions [in Nairobi in June]we hope will contribute to our finding a response to this question and we hope also that it will encourage us to look further and again at this notion of balance. It is essential because the credibility of our work depends upon it. The creditability of this institution depends upon it. So in a nutshell what I'm trying to say can be summed up thus: Yes, to exceptions, to facilitate the access to knowledge; No to the extinction of remuneration of authors and creators.

Mike Holderness of the International Federation of Journalists (FIJ) also underlined the need to properly remunerate creators:

We have heard from distinguished representatives of the need to close the knowledge gap … We agree but we insist the way to close the knowledge gap is to fully remunerate professional dedicated creators in every country, not to seek to import works from the ‘Global North’ at a lower price … The FIJ fully supports libraries and archives. We support an exception for archiving purposes only but where a library makes works available to the public and steps in and becomes a conduit involved in a form of publishing then the solution must be collective management of rights and payment to the journalists and the other authors in every country expressing the cultures they live and work within and not importing for free from the ‘North’.

Professors Blake E. Reid and Caroline B. Ncube then took the floor to present their Revised Scoping Study on Access to Copyright Protected Works by Persons with Disabilitiesand field questions from delegations and NGOs.

SCCR38 Weds side event

The lunchtime side event was organised by WIPO under the banner ‘Technology and Accessibility for People with Disabilities’. Chaired by British Ambassador Andrew Staines, the session opened with professors Reid and Ncube building on their presentation in the plenary chamber to talk about the range of works and rights that need to be considered when making accessible versions for people with different or multiple disabilities. They also looked at how the accessible solutions vary across different media. While publishing might need substitutive accessible formats (i.e. an alternative to the book – a braille version or an audiobook), audio-visual needed augmented versions of the original work (e.g. access to closed captioning or audio-description which are provided along with the standard work). Audio-visual poses a particular challenge however when we consider platforms like YouTube and the 60 thousand years’ worth of video that could be made accessible right now.

IPA Delegation SCCR38 crop

The afternoon sessions started with Raquel Xalabarder presenting the ‘Interim Report on Practices in Relation to Online Distance Education and Research Activities’, which she wrote with Monica Torres.Her presentation compared the wide variety of national legal frameworks governing licensing as opposed to the Berne Convention’s univocal elegance. She also identified the territorial challenges of teaching online, which she believed is the future of teaching but where exceptions, she maintained, are more restrictive than for traditional teaching. She suggested that limited higher education institution budgets, lack of awareness by teachers of applicable copyright regimes and the perceived complexity of direct and collective licensing solutions for different kinds of media (books, films) were challenges that needed to be addressed. Disappointingly, one of her slides included the statement: Complying with copyright law is a luxury, only affordable in a few countries.Despite this and her implied criticisms of the complexity of licensing across borders, when Xalabarder was asked for her recommendation, she said the solution would be national law.

The EU delegation took the floor to note that the latest text of the EU Copyright Directive includes a new mandatory exception for illustration for teaching, but it is only applicable when suitable licenses are not available. This was partly in response to critics that saw a contradiction in the EU adopting new exceptions through the Copyright Directive while opposing any such action within an international regulatory environment like SCCR. The EU underlined the fundamental difference between the supranational structure of the EU –its governing bodies, its objective of creating a single internal market, and especially its institutions of judicial review and enforcement  – with the multinational forum that is the WIPO Member States.

William Bowes, the Chair of the IPA’s Copyright Committee made the case for licences:

I would first like to support the comments of the representative of the European Union and we support the points he's made about how EU law works and the special legal environment it creates for cross-border licensing and copyright harmonisation. 
I would also like to comment on the criticisms of territorial solutions. We know as publishers and people who work with authors that creating local product is important to meet local need. Whilst we support cross-border licensing and publishing we must ensure that we don't accidentally fill the world with uniform content. If we did, we would be failing the people we seek to help. 
We are very grateful for the reports [presented today] and the chance to provide further input in the weeks and months ahead. The [Torres-Xalabarder]report highlights many of the challenges that publishers face as we seek to make the publishing marketplace work better … People have also asserted that digital technologies can create new opportunities for education. We as publishers agree. And indeed we are doing so already. Researchers the world over benefit from two decades of investment in platforms and publishing formats. This is now a digital licensing business free of constraint from familiar formats.
 Many publishers are embracing new models. A reader can buy an article, chapter or any other bespoke content they need. With collective licensing this becomes possible with the best books being available for a few cents per page. Digital is enabling publishers to democratize learning by offering content to people all around the world. We are working with UNICEF to provide a ‘learning passport’, a digital platform that provides curriculum resources to alleviate the education crisis affecting displaced and refugee children. 
Mr. President it was suggested that copyright is a luxury. We do not agree. Furthermore, books are not a luxury. Books are essential to teaching, to research, and to life. And Copyright is essential to books. If copyright’s purpose is to encourage learning, it is up to all of us to work together to ensure that it achieves that purpose in the digital world, just as it has done in a physical world. 
There are no easy or quick solutions to complex problems but we stand ready to help people around the world with licensing and to show them how publishing markets can work better. 

The final presentation of the afternoon, delivered by Kenneth Crews, looked at a typology analysis of copyright exceptionsfor libraries, archives, museums and education which ended the days’ presentations.

The dates and venues for WIPO’s SCCR Regional Seminars were confirmed:

Asia Pacific: Singapore – 29-30 April;

Africa: Nairobi – 12-13 June;

Latin America and the Caribbean: Santo Domingo – 4-5 July.

Member States are the main target audience for these sessions. There will only be limited space available for observers. The IPA will register for all three sessions. Local publishers associations in the Asia-Pacific region that want to attend the first Regional Seminar are invited to express their interest at the following page:

https://www.wipo.int/meetings/en/2019/regional_seminar_aspac.html

Please contact the IPA for the ‘secure code’. The page also includes a provisional programme and other documents.

And with that the day came to an end. More presentations tomorrow and two side-events  – one from WAN-IFRA on a press-publishers’ neighbouring right and the other celebrating Cabo Verde’s signing of the WIPO Internet Treaties.

WIPO Diary (SCCR 38) Day 4: Typologies galore
WIPO Diary (SCCR38) Day 2: An informal day in the ...

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Monday, 18 November 2019

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