Wednesday, Morning Session
23 November 2011
The morning session of day 3 of the WIPO Standing Committee on Copyright and Related Rights (SCCR23) has open with member states deciding on how to proceed with the discussion of the 10 themes raised during the deliberations on libraries and archives. The ten topics are 1) preservation, 2) the right of reproduction, 3) legal deposit, 4) library lending, 5) parallel importation, 6) cross-border uses, 7) orphan works and the retraction of orphan works, 8) liability of libraries and archives, 9) technological protection measures and 10) contracts. Yesterday’s session witnessed a rich discussion on preservation; country interventions will be posted shortly. Today is the final day devoted to the discussion of limitations for libraries and archives.
Now, the question facing WIPO is whether to continue a plenary discussion of all ten thematic clusters or break out into parallel working groups. Ultimately, the Chair and the Committee agreed that Member States would submit written comments on the ten thematic clusters by Friday. These comments would be published on Monday, 28 November 2011 with a further deadline of three months (February 2012) for written comments on the initial round of comments.
For a flavor of the real time discussions on the modalities for moving forth on text based work on libraries and archives please see the following interventions taken from the WIPO live-stream.
CHAIR (Manuel Guerra Zamarro, Mexico): What I would like for us to do is work on each of these ten topics in the plenary, in the plenary session. I would like for comments to be voiced on each and every one.But in a parallel fashion, in parallel or perhaps simultaneously, at the same time, all countries should have the possibility, as well, to voice comments in writing, comments in writing on each of these topics.
So in this way, what I’m seeking to do is to keep open a two-track approach. So the possibility of oral expression of one’s opinion and then also to entertain the possibility of voicing one’s opinion or comments in writing, perhaps leaves more time to be more focused and go into more detail.
But at the same time, work in a two-track way so this could spur greater progress. This is the idea. So the two values here, being able to voice one’s opinion in an oral way and be made aware of the viewpoints of others, and also to submit opinions in writing. This could be done at the same time, in a simultaneous fashion. And so yesterday I believe that we dealt with item No. 1, preservation. We can move on today to reproduction and safeguards.
We could, of course, as I said, express our viewpoints. But also have comments submitted to the Secretariat in writing, as well. So perhaps an area of contracts, some people have a very well thought out position. But we’re not there yet. But that could be submitted to the Secretariat so the Secretariat can take note of this. That way, we could capture in writing all the comments because of course we want to follow the order 1 to 10 in voicing the comments orally.
So as I said, this is a list of ten items. This is not exhaustive. Perhaps another theme to be could be added to this list. And perhaps passing out this theme of ten or more themes.
And in this way we hear everyone’s views and we create a mechanism which means that today we can cover all these — which means that today we can cover all these ten topics. So if there are any questions or views or any other recommendations or options, please put them forward now. I give the floor to the European Union.
European Union: Thank you, chairman. Thank you for your proposal, which was very clear, which I think provides satisfaction to all delegations, at least I hope so.I just had two additional questions to ask. The first: I do understand that we would continue today to discuss the items on this list. But what I wanted to ask whether we could go cluster by cluster because I don’t know whether you’re suggesting to work on one cluster then another or whether you want us to work on everything at once, which I think would undermine the clarity of our discussions.
And then my second question is you’ve mentioned the possibility of sending in written comments to Secretariat. Thank you for that suggestion.
As we understand it, these comments could take the form of both amendments to the texts that are already on the table or the form of comments. Or they could even take the form of new texts. My question is: What would be the deadline for sending in these written comments?
I presume that we would need a reasonable deadline. As you’ve said, we need time to look into it, should these topics and look each at proposed texts, so thank you for clarifying these t
Chair: Thank you, I’ll try to reply to those two questions.We’re going to adopt a two-track approach here.
We’re going to do that simultaneously. We have three days on these items. Why three? Because that is our mandate. But we also have to produce a text as the delegations have said. So we’ll take a two-track approach to this.
First of all, the oral approach, if I could call it that. And here we would go cluster by cluster. Number 1 we have already done. We would go through the others up to 10. That’s what we will try to do. And this is why it’s very important for people’s statements to be concise and precise because the idea is to finish that today.
So turning to the subject of deadlines, the point raised by the delegate of the European Union, this is very important. We have to conclude this oral approach to the 10 topics today. That’s the deadline, today.
Now, regarding the second approach, that is submitting written comments, the written comments can be submitted in practically any order. There is no fixed order there. And they can be submitted at any time, as well. However, I would like to have all these comments in, at the latest, by the end of this week. So that the end of this we can would be the deadline for receiving written comments. And the purpose would be for all these written comments, the written comments to have been received at that time by the Secretariat. And then I would request the Secretariat that those written comments should be collated. In other words, all the comments on preservation would be grouped together and come out in one document. All the comments on reproduction and safeguarding would come out in one document under that heading. Then all the comments on legal deposit would be under that heading.
And by the end of this week, which is the deadline, the deadline for handing in these written comments would be Friday. It would be Friday so that then the Secretariat, over the weekend, could put together this document containing all the written comments set out in order, topic by topic. And then on Monday, we would have this document before us and see what everybody has suggested in writing.
So that would be the idea behind this exercise. So as to make progress and to produce documents. Delegations have said that what they want to do is have a text-based discussion. They don’t want to just throw out opinions in the air. So I think this would be a good exercise.
CHAIR: Thank you very much. I give the floor to South Africa.
South Africa. Thank you, Mr. Chairman. We just want to provide apply to your suggested way forward. With regard to the last issue, documents, because we’re interested in the outcome of this few days, we would rather have one set of documents as you suggested because you would explain following the questions from the EU, would rather have one document constituting all classes rather than having several ones of them have.And then on the issue of 10 comments, it is — from the discussions here rather than leaving a long period after the session. So we are willing to agree with the deadline of Friday on the comments so that we can have the document on Monday. So that would be our reply to the way forward. And we hope that would just work on the basis of what we agreed in terms of the hierarchy which was proposed by the European union. We are willing to go through all of them today, of course, sequential, so that we provide time to discuss each, all of them together but hierarchical. Thank you, Mr. Chairman.
CHAIR: Thank you. Yes. What we are trying to achieve is just one text, a single text, but divided into 10 parts or 10 clusters. That is precisely the objective that we are seeking through this exercise.Furthermore, what South Africa is requesting is that oral comments, too, should be considered by the Secretariat, not just the written comments. That is a Titanic work. I would like to pay tribute to the Secretariat for the enormous efforts they do make. And very often when we are up here on podium, we realize the magnitude of the work that the Secretariat does. Very often we leave here, we go home or we go to another meeting, but that is just the start of the work for the Secretariat. We have to realize that the Secretariat, when they’re up here on the podium is when they work the least. When we finish our meetings, that’s when their real work starts. So I would ask you to realize that, to bear that in mind.
And then to satisfy all your requests, let’s say that the oral comments will be taken into account, but I two request that you — I would request that you show consideration for the Secretariat because the number of oral comments are going to add up to a pile of documents this high on just one cluster. Note moment so let’s be considerate towards the Secretariat. And realize the magnitude of their work because they’ve always tried to deal with all our requests most attentively. South Africa, if you wish to clarify?
South Africa: Just to clarify, I am in agreement with you. But regarding comments, but you say the text, what I was referring to is because you have used written comments, I was referring to the comments made during this session rather than waiting for a month of an the session. So I’m talking about text that will be discussed here or proposed, that will be the one which will be in the written format submitted to the Secretariat. So that’s what I’m referring to. Not just general comments. We don’t want a document with general comments. We want a document with texttual suggestions. Thank you.
ALGERIA: Thank you, Chair. I go to speak on behalf of the DAG, which would like to react to the present work. DAK welcomes the substantive discussion on the first two days, on the preservation of library and archival material. The methodology being used that is organizing things in clusters is one we approve of. We encourage that to continue.And I think we should follow the order of the Secretariat document. We welcome the constructive spirit prevailing. We hope that it will continue. We use this opportunity to thank the Secretariat for drafting the document, which highlights the different proposals. And they did that in a very short time, as well. And DAG hopes that we will continue to work on the basis of one document so that things are clearer and more visible. This is in line with the mandate of the 21st SCCR where it said that we should engage in text-based discussions we request that the format of the basic document be improved in the light of statements made by member states. DAG would like the Secretariat in the light of the discussions on the clusters to produce a document that will cover the three proposals.
This document should be structured by cluster. And the bottom of each page, there should be metastates comments on each of these clusters. That’s our proposal. Thank you.
European Union: Thank you, Chairman. I have listened to your request that we should facilitate the Secretariat’s task by submitting, if possible, our comments in writing. On the other hand, the deadline you’re suggesting, that is the end of the week, doesn’t appear to me either realistic or reasonable. Let me explain.First of all, the texts on the table have been produced very recently, some of them as late as yesterday, so I’m sure you’ll understand that the time required to look through these texts and react to them will take longer than a few days. And when we have important subjects within this committee, we wouldn’t like delegates to concentrate on one particular subject to the detriment of other subjects on which we would like to see progress made, as well, in our view the comparative table drawn out by the Secretariat can, of course, be improved.
The IFLA text could be used, as well, the Algerian delegate has proposed improvements. But it is a changing document, one that can be improved. In other words, delegations should be given the necessary time to react to it and make their proposals on the text in writing, and this deadline should be at least several weeks long, thank you.
Pakistan: Thank you very much, Mr. Chairman and a very good morning to all the colleagues. Mr. Chairman, we fully support your suggestions and the way forward. We believe that it is very important that we continue with the substantive discussions on all the 10 themes. We have already concluded the discussions on the first theme, or the first cluster, and we need to move forward on all the other ones.In that regard, your two-stage approach would be something which would be beneficial in terms of saving time and moving ahead in a very sequential manner.
With regard to the comments made by the EU just now, I do believe that this is a process which is not going to end today or tomorrow, but we do also believe that we have a mandate given to us to bring out the text-based work.
In that regard, Mr. Chairman, I think we are not actually talking of two different things. We are all talking of the same thing.
What we can do is exactly as you have proposed. We move ahead with all the 10 themes. The floor is open for making comments. The comments, there’s a mild difference up here between the comments and the textual additions which are being made. So what has been a request from the Secretariat, I suppose, is that they incorporate those textual suggestions into the document that we have. And by Monday we also can have the written textual solutions incorporated into the document, not in a tabulated form but in a scroll-down form. And then, even after that, if there are written comments, we can see how we can accommodate those. But this is a process that is going to continue.
But we do believe that we need to make progress on this and not lose whatever is mentioned in this room. Thank you very much.
ANGOLA: Thank you, Mr. Chairman. Mr. Chairman, my delegation would like to support the position stated by the African continent of South Africa. And we would like also to thank you and also for the effort that has been done to release this document called “the list of common copy” described by the delegation.And we have the view that it’s important to move to one document composed by the objective and principle proposed by the U.S. and the African proposal and this has to be proposed by the 10 cluster and later on we can add some comment by Friday.
Past this delay, we should only add some comment in the next session. Because this is the first reading. So I propose, Mr. Secretariat, if possible, to have one single document which reflects on the parameter, the original principle proposed by U.S. and on the 10 clusters, say the Africa proposal on this, and then you put in record, like we did in IGC, in each of the 10 clusters. And then with some comments that the members will present until Friday so that you realize that this document has to be the first release document.
And then we also open some period between now and the next CCL to also provide some written comment that we can add into the session during the second reading.
I think if we can do that very quickly, it can be very easy to follow then. Let us also move with the views of the people. Thank you.
Chile: Thank you, chairman. First of all, I would like to thank you most sincerely for your efforts to push this forward. As we said yesterday, we support progress being made on this through text-based work. And so we welcome your proposal. Reacting to a number of comments made by Angola, Pakistan and the European Union, I would say that we support a number of the things that were said.We would like, if possible, to make progress today until Friday. And those delegations can submit their written comments, should do so and should submit them to the Secretariat so that they can be included in the document. I think that would mean important progress.
However, I think it’s also important that those delegations that are not in a position to submit their comments by Friday should have a possibility of doing so after this session over a period of, say, a couple of weeks or months, a reasonable period so that everyone has an opportunity to submit their comments and so that we can focus on and give time to other issues apart from — under the heading of exceptions and limitations. Thank you.
INDIA: Thank you, Mr. Chairman. The Indian delegation appreciates your pragmatic solution to follow to deal with this agenda item, alternate ways of dealing with this, oral comments and also the written comments.We would suggest if the written comments suggested by the members with the deadline of Friday, if that content possible legal text also on each cluster, it will be more helpful. Thank you, Mr. Chairman.
USA: Thank you, Mr. Chairman, I’m speaking on behalf of group B. We welcome your approach to move forward with the discussion of the clusters. The one thing that we’re kind of hung up on and I think we agree with the European Union and our colleagues is the deadline of Friday. I think these ideas need to be flushed out more. We’re moving into the IP practicabilities tomorrow, and then broadcasting over the weekend. There’s not going to be a lot of time for delegations to really devote the necessary work. So I think we need to have a more reasonable deadline, whether it’s two weeks, four weeks, whatever the case may be to allow delegations to contribute.And also, I mean, just the sooner we get to the substantive discussions on the clusters today, , I think the better because I think we need to resolve the deadline. Thank you.
European Union: Thank you, Mr. Chairman. I’d like the thank you for working so hard to arrive at a compromise, but I fear that this, perhaps, will not be enough for the European Union. We, as is the case with Chile, as well, we think that the time frame ought to be two months from the end of this session, a reasonable time frame, making it possible to provide a proper response in terms of substance.Furthermore, we don’t think — we should avoid a double standard, that is to say there being a first deadline, Friday this, Friday so that a new text can be issued as of next Monday, and then leave another time frame, another deadline or cutoff date for those delegations who were not able to submit their document within that very short time frame, that is to say up until Friday. That’s very short. I don’t think that is the proper way forward. I think that we need to leave the time, provide enough time for all delegations to consult with one another, to think about these things.
I think it would be detrimental for our work, looking at this question of libraries and archives, also for the rest of our work that we have to carry out in this session to adopt an approach that would be rather hurried in this way.
South Africa: Thank you, Mr. Chairman. I think that is very important that we don’t belabor this. I think that you have resolved the issue. I think when Chile took the floor and sought a middle ground, that was the way forward, so that we provide opportunity for those who are in a position to do so, to submit by Friday. Then those who are not in a position to do so, we shall identify a suitable date for them to submit the comments. I think that’s the way forward. We’ve already agreed to that. So we don’t need to belabor this.I did say that we are going to discuss this in the future work, so I don’t know why we’re discussing future work before we even get involved in the substance. Let’s go to the substance, Mr. Chairman. Because we’re in agreement in principle on the way forward.
So the middle ground that we have had from Chile, that’s what we’re saying. But we will discuss it further because we still have to consult in our groups about the way forward. But we agree with the principles of saying that there will be those who are in a position to do so, to submit by Friday. Those who are not in a position to do so, to submit whenever we identify the date, the suitable date. Thank you.
Pakistan: Thank you very much, Mr. Chairman. And my colleague from South Africa has already adequately mentioned what I wanted to say. But I think it is very important that we do not lose the work that we do during these three days. And not to lose it would be very important. And only we agree to have those incorporated in forms of written comments by Friday or have the document then on Monday.And we are flexible with regard to the deadline. We do understand that the countries do need time with regard to consultations that they need to have internally. And we are flexible as to the time limit that we have to set for the subsequent comments that need to be given. I think that we can tackle when we come to the future work. And whatever U.S. mentioned has to be given due consideration at that stage. But at this point I think that we need to continue with the discussions on the thematic clusters as we had proposed, sir. Thank you.
Mexico: Thank you, Mr. Chairman. In like manner to the proposal by Chile, two-month time period I think is good. But of course our work for these two days is going to be a very good time frame to flesh out this document and also to define the formats in which the comments can be made.I think that both today, tomorrow, Friday, up to Monday will help us to actually define the way in which the comments will be made within that two-month reasonable time period. But because I think a lot could be added also already in the next few days ahead of us. Thank you very much, sir.
CHAIR: Seeking here to move toward a solution. And in that quest for a solution, I think that setting forth a time frame of Friday, from for the submission of written comments, could be a very equitable way forward. And then having a further time frame, not two months but three months, three months for the comments on those initial positions that will have been put forward by Friday and published on Monday, so this could give us perhaps a more structured way of proceeding with this theme.