Here are some additional observations, the day after the demise of the Jukka Liedes non-paper and the indefinite postponement of the diplomatic conference.
The process run by the longstanding SCCR chair Jukka Liedes and supported by Michael Keplinger, the WIPO Deputy Director General for the Copyright and Related Rights Sector, was (as is increasingly the case under Jukka Liedes’ leadership) highly erratic and disconnected from the messaging plainly sent from delegates. When Jukka Liedes and Michael Keplinger circulated the draft chairman’s conclusions on Friday at 1pm, jaws dropped. It was as if a meeting that for four days tore up his non-paper, and exposed the deep divisions in the room on all of the most substantive issues, was a huge success. The “conclusion” was a recommendation for more meetings on the broadcast treaty, including one organized outside of the GA mandate by WIPO DG Kamil Idris, a diplomatic conference in 2008, and the reintroduction of webcasting into the process. Once again people began to ask questions about the judgment, temperament, and reliability of the SCCR leader(s). It was an aggressive “in your face” slap directed at the critics of a diplomatic conference, even as support for the conference had collapsed in the room. Why be so aggressive? Did Jukka Liedes really think they could ram the Diplomatic Conference through, when nothing had been settled? Was he too emotionally involved in the treaty project to let go?
The coalition of countries opposing the diplomatic conference then sat by quietly as the Asian and African groups presented the specific amendments that returned the text of the document that gave the meeting’s conclusions, back to reality. Jukka Liedes ran the meeting until 5:02 pm, when the interpretation services were over, finally reaching the predictable conclusions that no, a date for a diplomatic conference would not be set, and it could only happen when the key issues were resolved.
Is this type of management of the SCCR really in the interests of the SCCR or WIPO? Can there be a more mature and graceful way to acknowledge a lack of support for a norm setting exercise?
The treaty itself increasingly looks like an example of the older way of thinking about WIPO, as an institution that rewards persistent lobbying by right-owners, without evidence of the actual need for the expanded rights, or consideration of the impact of the rights on other stakeholders, in this case, creative communities and consumers. What does this say about the next few years of the SCCR? Increasingly, SCCR members are beginning to ask some obvious questions, and reaching some obvious conclusions.
Michael Keplinger is now in his first year as the top copyright official in the United Nations system. He may want to consider taking a look at the emerging requests that WIPO deal with the practical problems facing the public, and the role that WIPO could play in helping countries deal with the needs of the disabled, libraries, and educators, as well as problems facing the new Internet services, like Google, that cannot operate without robust limitations and exceptions to exclusive rights. If done correctly, such efforts could actually enhance the prospects for enforcement, as the rules are perceived to be more fair and realistic, in terms of the needs of the public for access to works.
Below was the KEI statement from the end of the negotiation on the broadcast treaty.
“Today the WIPO SCCR decided against scheduling a diplomatic conference to create a new treaty on broadcasting, and set a high bar for doing so. Technically, the subject of the Broadcasting Treaty will continue to be on the agenda of the WIPO Standing Committee on Copyright and Related Rights, but with a fairly tough hurdle before it can move to a diplomatic conference — after there is agreement on the objectives, scope and object of protection, topics for which there is no agreement in sight.
“The negotiation over the broadcast treaty has mirrored and sometimes driven the larger changes in the culture at WIPO. When the negotiations began, it was simply about responding to demands from a powerful right-owner group — the broadcasters, for expanded commercial rights. As the discussions continued, civil society NGOs criticized the treaty, for its potential harm to the Internet. Several country delegations began to ask deeper questions about the rationale for the treaty, and examined ways to limiting the scope and nature of the treaty. In the end, the broadcasters demanded too much, and made too few concessions, for the treaty to move forward. Delegates at WIPO were no longer willing to ignore issues of access to knowledge, or the control of anticompetitive practices.
“Next, there has to be a change of conversation at the WIPO SCCR. Chile has proposed a work program on limitations and exceptions for the blind, educators and librarians, and there will be other topics presented as well. India called for a new focus on the socially important issues such as access to knowledge and education. This will be the way forward, at the SCCR, if things go well.”