With our unusually large contingent at this SCCR, the IPA team was able to attend a number of simultaneous meetings today, even before the SCCR morning session began. Some of us were at the meeting convened by WIPO to come up with a set of non-binding principles relating to the functioning of Collective Management Organisations; while others attended a high-level briefing by the USA delegation; and still others were at a joint meeting of the so-called Group B (developed) countries and the Central European and Baltic States (CEBS) group. The IPA was joined by other Creative Sector Organisations for the latter. These meetings are essential opportunities for dialogue but this morning the Members States were mostly playing it safe and giving very little away.
When the SCCR proper finally got under way at 10:00am, we immediately started discussing exceptions and limitations for libraries, archives and education, including in particular draft Action Plans that had been prepared by the WIPO Secretariat. A good summary of all the plans is provided by the website IP Watch here. The IPA intervened on the draft Action Plan through our representative at the SCCR, Ted Shapiro, who is a Partner and Head of the Brussels Office of the law firm Wiggin. Ted said:
‘We would like to reiterate our view that the current international legal framework provides ample flexibility for Member States to enact exceptions and limitations consistent with their own legal traditions. It goes without saying that exceptions and limitations, which are legal defences to what are otherwise infringements of copyright, have a profound impact on all rightholders as well as other stakeholders. The Berne Convention/TRIPS/WCT three-step test provides the means for measuring this impact – which is why it is applied internationally and nationally both by legislatures and courts.
We believe that the draft action plan, while some details may need further clarification, provides a useful basis for a number of activities that could support exchange of info and capacity building that can inform countries — including, in particular, developing nations — in their efforts to ensure balanced national copyright laws consistent with the international framework. The IPA stands ready to participate in conferences and provide both legal and commercial experts to assist.
Peace love and copyright.’
The next agenda item was an update by Dr Kenneth Crews of his already monumental study on copyright Limitations and Exceptions for Libraries and Archives. Crews’s presentation and the attendant questions from Member States and NGOs occupied the most of the meeting on either side of the lunch break.
When we returned to the debate on Limitations and Exceptions on Educational and Research Institutions as well as on disabilities, Group B made a succinct statement pointing to the ‘the importance of the exchange between Members States of experiences with limitations and exceptions for educational and research institutions.’ The IPA’s own position supports Group B’s observation that, ‘as the studies presented during the previous SCCR sessions have described, many countries have already established their own exceptions and limitations for educational and research institutions which work well and respect the respective domestic legal systems within the current international legal framework. The work of this Committee should be shaped in a manner reflecting this reality and complementing the well functioning current framework.’
The EU group earlier in the day had observed that there was no consensus in the room that would allow a move toward a Treaty text for limitations and exceptions for libraries and archives and Group B agreed that the same situation pertained for educational and research institutions.
For the IPA, the take-away from the Crews study (and indeed other studies) is that a huge number of the Member States have adopted varied exceptions and limitations for libraries, archives, educational and research institutions that fulfil specific national needs. In other words, the current copyright framework is flexible and responsive to local needs and there is no need for a one-size-fits-all international instrument.
As the shadows around the WIPO building deepened we embarked on a presentation by Blake Reid and Caroline Ncube about their scoping study on access to copyright protected works by persons with disabilities. Unlike the Crews study, which referenced all 191 Members States of WIPO, the response to the Reid/Ncube study was disappointing with data from only 20 Member States being available. It is difficult to see how useful conclusions can be made from such a shallow data pool.
The draft Action Plan will be discussed further tomorrow, as will be that other monumental study on copyright limitations and exceptions for educational activities by Daniel Seng.