An occasional blog on international developments related to intellectual property, innovation, development and public policy
PREFACE BY ADJUNCT PROFESSOR WENDLAND
Member countries of the World Intellectual Property Organization (WIPO) have been discussing and negotiating substantive law topics in the field of copyright and related rights (or, “neighbouring rights”) for many years. Since 1998, they do so in WIPO’s Standing Committee on Copyright and Related Rights (the SCCR). The SCCR last met in May 2022, for its 42nd time[i]. The SCCR reports to the annual meeting of WIPO’s member states, referred to as the “WIPO General Assembly” (the WIPO GA). This year’s GA took place from July 14 to 22, 2022, and it considered the report presented by the SCCR contained in document WO/GA/55/1.[ii] As invited in the report, the GA took note of the Committee’s work since the last GA and directed the SCCR to continue its work on the issues referred to in the report.
What are the substantive law issues currently on the SCCR’s agenda? What is its composition and structure? What did it report to the 2022 WIPO GA on?
To answer these questions, I invited Dr. Susan Isiko Štrba to write this blog. Susan is the author of aleading guide on copyright and access to education in developing countries.[iii] She has followed the work of the SCCR and of WIPO generally for many years and is well placed to provide her perspectives on the matter. Susan, over to you.
THE SCCR IN A NUTSHELL
Set up in the 1998-1999 biennium, the SCCR was established to examine substantive law topics in the field of copyright and related rights. In terms of composition, the Committee includes all member states of WIPO and/or of the Berne Union for the Protection of Literary and Artistic Works (this refers to the member countries to the Berne Convention for the Protection of Literary and Artistic Works, the original and still primary international convention dealing with copyright. It was adopted in 1886 and most recently amended in 1971).The SCCR has observers from certain member states of the United Nations (UN) who are not members of WIPO or the Berne Union, as well as some intergovernmental and many non-governmental organizations. At the time of writing, there are 193 member states of WIPO all of whom, with inputs from observers, contribute to the substantive law making in various ways. The most recent meeting of the SCCR, the 42nd session, took place from May 9 to 13, 2022 in hybrid format. This blog is thus based on developments in the SCCR that took place until that date.
The report of the SCCR to the recent WIPO GA provided a summary of the status of work of the SCCR since the last GA. The SCCR’s report covered, therefore, the period since the last GA which took place in October 2021. Of particular importance is the fact that the report requested the Assembly to direct the SCCR to continue its work regarding all issues reported on.[iv] While the GA could have decided that the SCCR stop working on any item or issue, it did not do so and thus enabled the SCCR to continue with its work as planned.
Currently, the SCCR is working on:
- the protection of broadcasting organizations;
- limitations and exceptions; and
- “other matters” which include copyright in the digital environment, resale rights, the protection of theatre directors’ rights and public lending rights.
Let us examine each of these issues in more detail.
COPYRIGHT AND RELATED RIGHTS ISSUES UNDER NEGOTIATION IN THE SCCR
Protection of Broadcasting Organizations
Important developments in technology and the marketplace have taken place in the broadcasting sector since the adoption of the Rome Convention in 1961.[v] The exercise of updating the broadcasting treaty was initiated at the WIPO Worldwide Symposium on Broadcaster’s Rights which was held in Manila in 1997.[vi] Since 1998, the SCCR has been discussing updating the protection of broadcasting organizations in response to technological developments. In 2007, two special sessions exclusively devoted to broadcasting organizations were held. The main issue is updating the protection of broadcasting organizations, which are holders of related rights, in response to digital and other new technologies and the growing use of the Internet.[vii] The fact that the discussions are still on-going is proof of the complexity of the issues involved and the negotiations themselves. This is the only agenda item of the SCCR on which there is currently a draft treaty text under negotiation.[viii]
The Committee discussed whether to hold a special technical session dedicated to this agenda item before the end of 2022, but there was no consensus on this proposal. Nevertheless, the Committee agreed to hold two regular sessions of the SCCR on broadcasting organizations in 2023, and the GA endorsed this agreement.
Limitations and Exceptions
In order to maintain an appropriate balance between the interests of rightsholders and users of protected works, international copyright instruments allow certain limitations and exceptions to economic rights, that is, cases in which protected works may be used without the authorization of the rightsholder and with or without payment of compensation.[ix] The issue of limitations and exceptions has been on the agenda of the SCCR since 2004, with a focus on limitations and exceptions for libraries and archives, educational and research institutions, and persons with other disabilities at every session since 2012. The 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (or the Marrakesh VIP Treaty), as the title clearly states, is limited to those visually impaired or otherwise print disabled.[x] The SCCR doesn’t address disabilities covered by the Marrakesh VIP Treaty. However, the practice of Members States shows ‘other disabilities’ to refer to visual impairment , aural (deafness or hard of hearing) and cognitive or intellectual disability,[xi] which hinder the use of a copyrighted work.
At the 42nd session of the SCCR in May 2022, the coordinator of the African Group presented the Group’s Proposal for a Draft Work Program on Exceptions and Limitations (SCCR/42/4).[xii] The WIPO Secretariat presented a recap of the work done pursuant to the Action Plan for Libraries, Archives, and Museums and the Action Plan for Institutions and Persons with Other Disabilities. It also presented a recap of the Report on Regional Seminars and International Conferences (SCCR/40/2)[xiii], which noted considerable agreement among members states on priority areas of work, including to ensure that reproductions and other uses of works for preservation should be permitted under exceptions in national copyright laws, and to promote the adaptation of exceptions to permit teaching, learning and research through digital and online tools, including across borders.
In its proposal, and in summary, the African Group appealed to the SCCR to continue to work towards an appropriate international instrument or instruments on limitations and exceptions for libraries, archives, museums, education, research, and uses for persons with other disabilities. The work should begin discussion of proposed provisions by Member States on the priority issues identified in the Report on Regional Seminars and International Conferences mentioned above. The aim should be to ensure that all laws enable the preservation activities of libraries, archives, and museums, including the use of preserved materials across borders. Furthermore, the work should promote the adaptation of exceptions to the online and cross border environment, such as by permitting teaching, learning and research through digital and online tools. The African Group further proposed that the WIPO Secretariat invite presentations by experts on the problems of choice of law for cross-border uses of copyrighted works, such as in an online educational class with students in multiple countries, or where collaborating researchers or the subjects of their research are located in different countries.
According to the African Group, the WIPO Secretariat should convene information sessions and exchanges with Member States, experts, copyright offices and other agencies, and beneficiary organizations, drawing on new or existing research studies where appropriate, on the issues outlined above and on other issues including: limitations and exceptions for text and data mining research. The information session should take into account new developments in this area, including the UNESCO Recommendation on Open Science (2021) and its implications for international copyright laws and policies. The session should also take into account models for the protection of limitations and exceptions from being overridden by terms in contracts, safe harbour protections for educational, research and cultural heritage institutions (and their agents), and exceptions to technical measures of protection and rights management information to protect uses permitted by limitations and exceptions. Finally, the African Group proposed that drawing on the work completed to date, the WIPO Secretariat should develop toolkits to guide targeted technical assistance programs which help Member States to craft laws and policies which support education, research and cultural participation, developed in consultation with experts and stakeholders from beneficiary communities and through transparent consultation processes.
The Committee invited members to continue to engage with the African Group with a view to discussing a revised Proposal at the 43rd session of the SCCR, scheduled for March 2023.
As next steps, the Committee agreed on two lines of action: a) at the next SCCR session, the Secretariat should invite the presentations as proposed by the African Group, b) the Secretariat should develop the toolkits as proposed by the African Group; and c) at SCCR/43, the Secretariat would present (1) a scoping study on limitations and exceptions on research and (2) a toolkit on preservation. As can be seen, the lines of action largely reflect the proposals by the African Group.
On Limitations and Exceptions for Educational Research and Institutions for Persons with Other Disabilities, the coordinator of the African Group presented the Group’s Proposal for a Draft Work Program on Exceptions and Limitations (SCCR/42/4).[xiv] As with the other exceptions and limitations, the WIPO Secretariat presented a recap of past work done.
Under this issue, the Committee agreed on the same lines of action as under limitations and exceptions for libraries and archives.
In addition to the proposed broadcasting treaty and limitations and exceptions, the SCCR is addressing other issues, which are collectively referred to as “Other Matters”.[xv] These include Copyright in the Digital Environment, a Resale Royalty Right, Strengthening the Protection of Theatre Director’ Rights and a proposal for a study on a Public Lending Right.
Copyright in the digital environment
Digital technology and the Internet are powerful tools for the fast and affordable distribution of creative content reaching billions of people in every corner of the world. The rise of the digital environment brings both opportunities and challenges to rightsholders and the general public; understanding and addressing how this affects the functioning of the copyright system is possibly among the most fundamental IP questions currently discussed by policy makers around the globe,[xvi] including the WIPO SCCR.
The issue of Copyright in the Digital Environment has been discussed in the SCCR under “Other Matters” since 2015. At the 42nd session, presentations and discussions were had on multiple studies related to the music industry value chain in the digital environment. Examples [RW3] of the studies include Etude Portant sur le Marché Numérique de la Musique en Afrique de L’Ouest (SCCR/41/6) [Study on Digital Music Market Place in West Africa] by Mr. El H. Mansour Jacques Sagna.
Resale royalty right
Resale royalty right or “droit de suite” refers to the idea that artists should be able to receive a royalty every time one of their works is resold. This is a common right in certain parts of the world like in France but not common in others like the USA.
Not all artistic products can benefit from the resale right in all countries. In some countries, resale royalty is nonexistent when it comes to fine art. This means that, although a work originating from an artist is considered uniquely their own (which is why it is valuable), once that piece of art is sold the creator can no longer make money from it. A buyer can resell the piece of art at a profit without paying the original creator. This is a problem unique to originators of paintings, drawings, and sculpture but is not the case with writers, filmmakers, and musicians.[xvii]
The issue of a resale right has been discussed at the SCCR since 2015. At the 42nd session, an update on the work of the task force on a resale right was presented to the Committee. At the same session, GRULAC (the Group of Latin America and Caribbean countries), proposed that the Committee holds a half-day information session on the music streaming market at SCCR/43. The WIPO Secretariat was asked to organize the session based on the Proposal for an information session on the music streaming market at SCCR 43 submitted by GRULAC.
Protection of theatre directors’ rights
This issue has been discussed in the SCCR since 2017. Research has shown that there are various ways of handling Stage Directors’ rights in various Member States.[xviii] At the 42nd session of the SCCR, there were no new developments under the issue so it was postponed to the 43rd session of the Committee.
The public lending right
The public lending right has been on the agenda of the SCCR since 2020. At SCCR/42, Sierra Leone and Malawi reiterated their proposal for a scoping study on the public lending right.
The four issues under “Other Matters” were maintained on the agenda of the SCCR and will be addressed again at the 43rd session.
INFORMATION SESSION ON COVID-19
COVID-19, although not an issue in itself for law making on copyright and related rights, has had an impact on how the sessions are conducted, for example forcing virtual and now hybrid meetings. It has also highlighted some challenges, for example, of online exchange of copyrighted works within the cultural ecosystem. Thus during the 42nd session, the Committee held a half-day information session on the topic of the impact of COVID-19 on the cultural, creative and educational ecosystem, including copyright, related rights, and limitations and exceptions. During the information session, experts, Members and observers exchanged views and experiences, which were compiled into a report that is accessible to the public.[xix]
The SCCR has many issues before it for substantive law making. Some issues have been on the agenda of the Committee for a long time. This reflects the complexity of the negotiations. The wide membership and the many observers[xx] ensure wide representation of different interests. But it also slows down progress. The SCCR will meet again, for its 43rd session, from March 13 to 17, 2023. Multilateral Matters will continue to monitor the work of the SCCR and may provide an update in due course.
This blog is written exclusively in the author’s capacity. Any views expressed are those of the author alone and do not necessarily represent the views of any organization or institution.
Additional readings are listed on the Multilateral Matters portal (http://ip-unit.org/multilateral-matters/)
[i] See https://www.wipo.int/meetings/en/details.jsp?meeting_id=69311 (accessed July 22, 2022).
[ii] Available here: https://www.wipo.int/about-wipo/en/assemblies/2022/a-63/doc_details.jsp?doc_id=574551 (accessed July 24, 2022).
[iii] Susan Isiko Strba, International Copyright Law and Access to Education in Developing Countries: Exploring Legal and Quasi Legal Solutions, The Graduate Institute Publications, (Martinus Nijhoff Publishers: Leiden and Boston, 2012).
[iv] World Intellectual Property Organization, Standing Committee on Copyright and Related Rights, 42nd session, “Summary by the Chair”, May 9 to 13, 2022.
[v] Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961. The text is available here: https://www.wipo.int/treaties/en/ip/rome/ (accessed July 22, 2022).
[vi] World Intellectual Organization, Broadcasting Organizations, available at https://www.wipo.int/copyright/en/activities/broadcast.html, last visited on July 11, 2022.
[vii] For meetings related to the Broadcasting Organizations, see the World Intellectual Property Organizations, Broadcasting, available at https://www.wipo.int/meetings/en/topic.jsp?group_id=228, last visited July 11, 2022.
[viii] Revised Draft Text for the WIPO Broadcasting Organizations Treaty (document SCCR/42/3).
[x] On the Marrakesh Treaty and IP multilateralism, see Charlene Tsitsi Musiza, “Multilateral Matters #9: The Marrakesh Treaty and the Accessible Books Consortium: What Lessons for Successful Intellectual Property Multilateralism?
“http://ip-unit.org/2021/multilateral-matters-9-the-marrakesh-treaty-and-the-accessible-books-consortium-what-lessons-for-successful-intellectual-property-multilateralism/, accessed on 05 August 2022; for a discussion of the limitations of the Marrakesh VIP Treaty, see Susan Isiko Štrba, “The Marrakesh Treaty, Public-Private Partnership and Access to copyrighted Works by Visually Impaired Persons”, in The Cambridge Handbook of Public Private Partnerships, Intellectual Property Governance, and Sustainable Development, (Margaret Chon, Pedro Roffe, & Ahmed Abdel-Latif eds., 2018), pp. 176 – 198.
[xi] Blake Reid and Caroline Ncube, Scoping Study on Access to Copyright Protected Works by Persons with Disabilities, Standing Committee on Copyright and Related Rights, Thirty-Fifth Session, November 13 to 17, 2017, Document SCCR/35/3/REV.
[xiii] Report on the Regional Seminars and International Conference on Limitations and Exceptions, Standing Committee on Copyright and Related Rights, Fortieth Session, Geneva, November 16 to 20, 2020. Doc SCCR/40/2.
[xv] Documents from the previous sessions on “Other Matters” are available at the dedicated web page at https://www.wipo.int/meetings/en/details.jsp?meeting_id=69311
[xvi] WIPO, Copyright in the Digital Environment, available at https://www.wipo.int/copyright/en/activities/digital.html, last visited July 11, 2022.
[xviii] WIPO, Study on the Rights of Stage Directors of Theatrical Productions, available at https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=539751, last visited July 11, 2022.
[xix] See Report on The Impact of the COVID-19 Pandemic on Creative Industries, Cultural Institutions, Education and Research, questionnaire responses from SCCR Members and Observers, and the recording of the Information Session at https://www.wipo.int/meetings/en/2022/info-session-impact-covid-19-copyright-ecosystems.html
[xx] Observers do not vote but they can make interventions in the plenary meetings.