Eighteenth Session of the WIPO Standing Committee on

UNCLAS GENEVA 000507

SIPDIS

SECSTATE FOR EB
COMMERCE FOR USPTO

E.O. 12958: N/A
TAGS: ECON KIPR WIPO
SUBJECT: Eighteenth Session of the WIPO Standing Committee on
Copyright and Related Rights


1. SUMMARY: Member States at the 18th session of the WIPO Standing
Committee on Copyright and Related Rights (SCCR) agreed to continue
without delay their work on facilitating the access of the blind,
visually impaired persons (VIP) and other reading-disabled persons
to copyright-protected works. Though certain non-governmental
organizations (NGOs) that do not specifically represent the blind
community sought to mischaracterize the U.S. position as not
supportive of the access issues for the blind through Internet press
reports, the U.S. demonstrated its leadership in this area at the
18th session by delivering, on day two of the session, a detailed
account of its national experience, including U.S. Copyright Law
exceptions and limitations and recent, comprehensive stakeholder
consultations. On day 4 of the session, Brazil, Ecuador and
Paraguay tabled a draft treaty (internationally binding) that would
mandate a specific copyright exception for VIPs for all member
states and would, among other things, authorize the cross border
movement of copyright works by users without permission from the
rights holder. Broader questions of limitations and exceptions to
copyright law as they relate to libraries, archives and educational
activities were also highlighted during discussions at the session
and will be included in an upcoming limitations and exceptions
questionnaire. The SCCR also agreed to continue discussing a treaty
on the protection of broadcasted signals, and the protection of
audiovisual performances. END SUMMARY.

2. The 18th session of the SCCR was held March 25 - 29, 2009 in
Geneva, Switzerland. The meeting was chaired by Jukka Liedes
(Finland). Several non-governmental organizations from industry
groups and civil society attended and delivered interventions at the
meeting.


3. The United States delegation was represented by Michael Shapiro
and Neil Graham of the United States Patent and Trademark Office
(USPTO),Maria Pallante and Steve Tepp of the U.S. Copyright Office,
Nancy Weiss of the Institute of Museum and Library Services, and
Deborah Lashley-Johnson, IP Attach at the U.S. Mission to the UN.

SCCR to Expedite Work in Favor of Reading Impaired
-------------- --------------

4. In continuation of its discussions at the 17th session,
discussions at the 18th session of the SCCR meeting centered on a
series of practical measures to facilitate access to
copyright-protected materials by reading impaired persons, a key aim
of which is to develop solutions to make published works available
in accessible formats in a reasonable time frame. All participants
supported moving forward with this work. Specifically, the blind
community has acknowledged in meetings with the U.S. that
cooperative arrangements with publishers are needed, and fully
support the work of the stakeholders' platform that will focus on
contractual, technological and other arrangements among
rightholders, charitable organizations and the blind community.
Some representatives of this community, however, also maintain that
a binding international instrument that would exempt some users from
liability may be necessary to facilitate the movement of certain
copyrighted works across borders. Per the mandate prescribed by
the SCCR meeting of the 17th session, the meeting of the 18th
session was to focus on a discussion of national experiences and
existing national laws to address the issue. Thus, the United
States came to SCCR 18 prepared to lead by example.

U.S. Consultation Process
--------------

5. The U.S. intervention centered on its domestic consultations with
American (and some foreign) stakeholders, noting both its open-ended
and transparent nature and providing a few preliminary observations
on lessons learned. From the outset of discussions on exceptions
for VIP in the SCCR, the United States noted the premise that issues
affecting accessibility for VIP persons are fundamentally important.
The United States underscored its view that national consultations
are a critical first step in any further work on this issue within
the SCCR, and that deliberations regarding any specific instrument
(whether binding or nonbinding) would be premature because we are
still immersed in fact-finding and evaluation. We also have been
made aware that few countries and regions are actively engaged with
their stakeholders at the domestic level.


6. Against this background, the USDEL decided to deliver a
relatively long intervention describing the U.S. consultation
process and preliminary observations early in the Committee's
deliberations on exceptions and limitations in order to set the tone
for the overall discussion. The intervention included a detailed
summary of the many questions the United States has raised with
stakeholders in published, public inquiries, a summary of some
initial points of common focus derived from public comments, and a
summary of some of the nuanced issues (legal, technical and
business) discussed by multiple stakeholders during a day-long
public meeting. Our principal message was that the United States is
constructively engaged with its stakeholders with a view toward
finding timely, effective, and practical solutions to enhance
accessibility of copyrighted works for the benefit of VIP (taking

into account complex, inter-related issues of law, business,
technology, and resources) and that those conversations will
continue in the United States. The U.S. noted that national
consultations are important to find timely, efficient, and practical
improvements in the availability of accessible copyrighted works.
Specifically, the United States believes that the Committee should
actively pursue a strategy of "guided development" to identify
whether there are specific problems and, if so, to act on possible
solutions for improving access to copyrighted works for the benefit
of blind and disabled persons. Once the Committee has developed a
deeper understanding of the underlying problems in national law and
the international framework, if any, the SCCR has many tools to
determine whether and how to address such problems. The United
States is aware that, outside of the Group B Members, a significant
number of Member countries (including some proponents of the
aforementioned treaty proposal) lack even a basic exception for VIP
in their national copyright laws.


7. With respect to U.S. Copyright Law, over a decade ago, the United
States enacted amendments to our copyright law to establish a
limitation on exclusive rights for the benefit of the blind or other
persons with disabilities. That provision was amended five years
ago in an effort to improve access to educational materials. In
broad outline, under Section 121 of the U.S. Copyright Act, certain
authorized organizations may make copies (or phonorecords) of
previously published, non-dramatic literary works and certain
instructional materials in specialized formats (braille, audio, or
digital text) for the exclusive use of blind or other persons with
disabilities without permission from the rightsholders.


8. By all accounts, the U.S. intervention (which also was made
promptly available to delegations) was very well received. Group B
incorporated the importance of national consultations into its
statement on this agenda item. In addition, delegates from Germany,
France, Japan, and Australia personally thanked the USDEL for its
hard work on this issue, noting that similar domestic consultations
were needed in their countries. In the plenary, SCCR Chairman Jukka
Liedes (Finland) also noted that the US had done its homework for
this meeting. Liedes also noted that national consultations were
underway in some countries in his conclusions for the meeting. Even
the delegate from Ecuador, a co-sponsor of the WBU treaty proposal
thatis discussed more fully below, expressed its appreiation to
the USDEL for the positive U.S. statemnt.

WBU Proposal Tabled by Brazil
--------------

9. On the fourth day of the sesion, the delegations of Brazil,
Ecuador, and Parguay formally tabled a treaty proposal based on th
proposal of the World Blind Union (WBU) that ha been circulating
informally for many months. With little surprise, the proposal
attracted ready uport from developing and least developed
countries, including statements made by the African group, GRULAC,
and the Asian group and a number of delegations in these groups.
Apparently concerned that the VIP treaty proposal could eclipse the
full range of exceptions and limitations before the SCCR, some of
these delegations stated that the Committee should work on
exceptions and limitations within a "global and inclusive
framework." Russia and China also supported the treaty proposal.


10. In response, Group B, the EU, and the Central European and
Baltic States received the proposal with interest as well as
appropriate caution, and confirmed that they would take it home for
further study. Japan, Australia, Korea, Greece, the United States
and a number of other member delegations also individually thanked
the proponents of the proposal, with some noting that actual
deliberations on the proposal at this time would be premature
because Member States are still immesed in fact-finding and
evaluation, and that, gien the diversity and complexity of the
issues affecting accessibility for VIP, further study is needed.
The full range of views on the treaty proposal is reflected in the
Chair's conclusions with reasonable accuracy. Group B did not
object to discussing (as opposed to deliberating on) the treaty
proposal at the 19th session, along with other potential solutions.
The SCCR decided to continue discussions on the treaty and other
proposals and contributions put forth by the Members at the 19th
session, to give member states time to reflect on the best way to
move forward.


11. Unfortunately, certain activist NGOs (with Knowledge Ecology
International perhaps taking the lead) were quick to take to the
Internet with their spin on the meeting, and mischaracterized the
actual positions taken by the US, the EU, Canada, and other
delegations. One particularly aggressive blog headline in 'The
Huffington Post,' for example, noted that "Obama Joins Group to
Block Treaty for Blind and Reading Disabilities." To clarify the
actual position of the US at the meeting, U.S. Mission in Geneva
with the assistance of the USPTO and the Copyright Office prepared
talking points for State and worked with the Disabilities Policy
Office in the White House to prepare a press statement on the

issue.

Exceptions and Limitations Questionnaire
--------------

12. There was a lengthy discussion in plenary on a proposed
52-question questionnaire on exceptions and limitations prepared by
the Secretariat for responses by SCCR member states to inform the
Committee's future work in this area. Chile (supported by a number
of developing countries) intervened to expand the questionnaire to
include additional topics, noting that a similar APEC questionnaire
included more than 100 questions. Brazil proposed introducing
questions that would require "analytic" answers, such as "Are
exceptions and limitations sufficient in light of their underlying
public policies?" In response, the USDEL expressed a strong
preference for an approach that was at once "concise" (not much more
than 52 questions) but also allowed for "precise" responses (that
is, giving member states with complex statutory provisions and case
law the latitude to provide more information if needed to respond to
the question). Group B countries generally supported the
"concise-precise" approach. However, splitting the difference,
Chairman Liedes noted in his conclusions for the meeting that the
questionnaire will be expanded to include certain other topics,
while Member States also will be allowed to submit additional
information.

Stakeholder Platform
--------------

13. For a number of months, WIPO Director General Francis Gurry and
the WIPO Secretariat have conducted informal consultations among the
principal VIP stakeholders (including blindness groups, publishers
and other copyright owners, and NGOs) with a view toward identifying
and facilitating practical solutions (such as encouraging the
adoption of standardized accessible formats or building "trusted
intermediary" relationships between VIP charities and publishers to
encourage the production and secure distribution of content in
accessible formats. The Secretariat delivered an Interim Report on
these discussions. Gurry made clear at the opening plenary session
that a stakeholders platform was not a substitute for an "enabling
legal framework." At the same time, he noted that it is not the role
of the Secretariat or the DG to propose or oppose a treaty, which is
a decision of Member States. At SCCR 17, the U.S. supported the
stakeholder platform in principle and at SCCR 18, the U.S.
reaffirmed its support of the process after reviewing and listening
to the Interim Report.


14. Egypt and a number of developing countries requested that the
Secretariat "ensure" the effective participation of developing and
least-developed countries in the stakeholder platform by making
funding available for such participation. These countries also
called for a stakeholder platform meeting to be held in a developing
country. The Chairman's summary requires the Secretariat to use
"best efforts" to organize a platform meeting in a developing
country.

Protection of Audiovisual Performances
--------------

15. There was wide support within the SCCR for continuing to work on
an audiovisual performance treaty (AV Treaty) although no delegation
was able to articulate a way forward. The U.S. reaffirmed its
commitment to the protection of audiovisual performers in their
performances. However, the USDEL also stated that it was unaware of
any narrowing of the wide differences on the issue of the transfer
of exclusive rights from performers to producers, which resulted in
the failure of the 2000 Diplomatic Conference on an AV Treaty. The
Chair's conclusions simply state that the Committee reaffirmed its
commitment to work on the AV Treaty. The Chair also stated that the
Secretariat would prepare a background paper on the main outstanding
issues and would organize informal, open-ended consultations in
Geneva on possible solutions to the current deadlock.

Protection of Broadcasting Organizations
--------------

16. In advance of SCCR 18, the Secretariat organized an information
session on recent developments in the broadcasting sector, including
information on recent legal, business, and technological
developments. A number of speakers addressed the issue of signal
theft. The United States restated its longstanding support for
updating the 1961 Rome Convention for the protection of broadcasting
organizations, while also restating its view that the prospect of
successfully concluding such a treaty is remote because of the wide
differences among the delegations on fundamental issues related to a
possible new instrument. The USDEL carefully worded its intervention
to avoid signaling any change in the direction of the U.S. position
on the treaty (either forward or backward movement). The Chairman's
conclusions note that the Committee invited the Secretariat to
continue organizing regional and national seminars on the draft
treaty.

Documents

--------------

17. Documents relating to the 18th SCCR meeting, including a
Chairman's summary, are available at
http://www.wipo.int/meetings/en/details.jsp?
meeting_id=17458.


18. Documents relating to the formal component of the United States
consultation process with respect to accessibility for VIP are
available at http://www.copyright.gov/docs/sccr/

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