Positive agenda on copyright, at the WIPO SCCR

As part of the American University hosted Global Congress on Intellectual Property and the public Interest, I participated in a panel on the positive agenda for intellectual property. These are notes from my talk.

Presentation by Manon Anne Ress, Knowledge Ecology International
August 26, 2011, at American University in Washington, DC

I will discuss the negotiations at the WIPO Standing Committee on Copyright and Related Rights, known as the SCCR, and the opportunities and challenges of pushing a positive agenda on access to knowledge.

Thanks to the development agenda, early proposals by Chile, Brazil and other Latin American countries, and the determined efforts of a coalition to library, consumer, public interest, development and free software NGOs, the SCCR now has on its agenda limitations and exceptions to copyright and related rights.

It is quite important that this agenda move forward, in a positive way. The copyright limitations and exceptions agenda co-exists with other demands on the SCCR, including, for example, proposals to finalize treaties for broadcasting organizations, performers, and owners of databases.

The main proposals before the SCCR on limitations and exceptions are those relating to persons with disabilities, libraries and education -- each proposal with its own objectives, constituencies and opponents.

The SCCR can and may well develop new proposals for work in the copyright limitations and exceptions area, including work on collecting economic data and information on state practices, promoting best practices, reviewing technical assistance work, or norm setting.

The proposal for a WIPO treaty for persons who are blind or have other disabilities moved forward at the last SCCR meeting, when a wide collection of high income and Latin American countries endorsed a joint paper that could serve as a basis for a diplomatic conference. The fact that Brazil, the US and the EU were among the countries endorsing the paper was very significant.

(The document SCCR/22/15 was presented by Argentina, Australia, Brazil, Chile, Colombia, Ecuador, the European Union and its Member States, Mexico, Norway, Paraguay, the Russian Federation, the United States of America and Uruguay).

There remains some uncertainly about the next steps, with the publisher lobby, backed by the EU and the US, still holding out for a momentum killing “two step process” that would first create a non-binding soft recommendation, and defer a decision on a diplomatic conferences for several years, while the results of the soft recommendation is being evaluated.

As far as I am concerned, we did the “first step” in 1982, when WIPO and UNESCO recommended model laws, and in 1985, when WIPO consultant Wanda Noel recommended a treaty.

The World Blind Union and the NGOs supporting them have opposed the 2-step process. The Africa Group is now playing a key role in the negotiations, by proposing changes to the joint paper that are significant improvements.

In my short time, I will make several points about the negotiations on copyright limitations and exceptions at WIPO.
Everyone here should reject the 2-step approach, and insist that WIPO schedule a diplomatic conferences of a treaty for persons who are blind or have other disabilities, by the end of 2012, or early 2013. There is no longer any reason to wait. The SCCR already has a text with very few brackets.

Work on a possible global treaty for libraries or education is important, and experts need to evaluate the existing proposals, and make specific recommendations for changes in the texts, sooner rather than later. Academics have been almost invisible in this part of the WIPO discussion so far, and that should change.

KEI has questioned the strategic decision to push for norm setting for libraries or education, both because we are concerned that the rationale for norm setting has not been set out with sufficient clarity, and because we are uncertain about the prospects for a successful negotiation - given the opposition from Group B countries. That said, we will present our own suggestions for possible text for such treaties, and also contribute to the discourse on the rationale for a global treaty on minimum exceptions, and we urge others to do the same.

If a good outcome is not feasible in the short run for a global treaty on libraries and education, KEI favors (1) work on a developing country only access to knowledge instrument, which we believe would have more favorable prospects, as well as (2) work on narrower global access to knowledge issues.

Among the narrower global a2k issues that may be strategically useful to consider are (1) those relating to distance education -- a cross border enterprise, (2) methods of expanding access to orphan works, and (3) the introduction of fair use.

The EU has several times expressed support for work on orphan works. There is growing interest in Europe to look at fair use, as a policy to “enable” (the term used by Michael Carroll) new technologies and new uses of technologies.

KEI encourages Global Congress participants to consider the process forward as important as the end objective.

Part of the WIPO reform is to emphasize evidence and analysis over lobbying, and to have a high burden for harmonization. That means that proposals for work at WIPO should include components that involve gathering information, analyzing data, and considering also a range of WIPO activities, from the publishing of reports, holding workshops, reforming technical assistance, endorsing best practices and model laws, and formal treaty making. Treaties are important, but not really the only thing, and in many cases, not the most strategical target.

I would encourage people to identify the specific studies and workshops that would be particularly helpful in moving the broader copyright limitations and exceptions agenda forward. This should include also studies by the new WIPO economics staff.