WIPO SCCR Report July 2015
By Victoria Stobo (Copyright Policy Adviser, SCA)
I recently represented the SCA at the 30th Standing Committee on Copyright and Related Rights (SCCR), which is part of the World Intellectual Property Organisation (WIPO), based in Geneva, Switzerland. If you have already seen the statement released by the International Federation of Library Associations and Institutions (IFLA), which the SCA was co-signatory to, then you'll know that the negotiations in July did not end satisfactorily. To explain why the negotiations failed, I should start by outlining what it is that the SCA and the other NGOs at WIPO are trying to achieve through the SCCR and WIPO.
WIPO is an agency of the United Nations, with 188 member states. Its principal objectives are "to promote the protection of intellectual property throughout the world through cooperation among States." This includes the provision of a "policy forum to shape balanced international IP rules for a changing world; global services to protect IP across borders and to resolve disputes; technical infrastructure to connect IP systems and share knowledge; cooperation and capacity-building programs to enable all countries to use IP for economic, social and cultural development; and a world reference source for IP information."
So the SCCR is just one small part of WIPO's activities, and one facet of the policy forum mentioned above. The SCCR was set up in 1998 to discuss "matters of substantive law or harmonization in the field of copyright and related rights." The key word we are interested in here is harmonisation: the current aim of the SCCR is to work towards drafting international treaties (a recent example is the Marrakech Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled). At the moment, the SCCR is working towards a treaty on exceptions and limitations for libraries and archives, and a treaty for broadcasting organisations.
International treaties are important because they set out a minimum standard which should be recognised in a signatory country's national legislation. For example, many countries do not currently provide a preservation exception for libraries or archives within their own legislation. As a signatory of a treaty that requires this exception, they would have to provide this exception through their national legislation. If all the member countries of WIPO implement these basic limitations and exceptions (never guaranteed) then copyright law, in this area at least, begins to become harmonised across borders. The fragmented and inconsistent nature of legislation in different countries creates legal uncertainty and promotes discrepancies in access to information between rich and poor nations. Harmonisation creates global norms, which removes international barriers to research, teaching and learning, encourages sustainable development, and allows archivists and librarians to work in an international context with predictable, uniform rules.
At the most recent SCCR, national delegations and NGOs worked from a 'non-paper' issued by the SCCR chairman, Martin Moscoso. The non-paper outlines topics which may or may not eventually be included in the draft of a treaty. We are working from a non-paper because the EU has objected to 'text-based' work: i.e., we don't currently have an official draft of a treaty to work on. The 11 topics covered in the document are Preservation; Right of reproduction and safeguarding copies; Legal Deposit; Library Lending; Parallel Importation; Cross-border Uses; Orphan works, retracted and withdrawn works, works out of commerce; Limitation on Liability for Libraries and Archives; Technological Measures of Protection; Contracts; and Translation.
Disappointingly, there was only a few hours set aside for NGOs to offer interventions on the first topic, preservation, on Thursday morning. Speaking on behalf of the SCA, I highlighted the experience of Glasgow School of Art, where archivists have engaged in a comprehensive rights clearance process to make their digital collections available online. The example of Glasgow School of Art on the topic of preservation is important in two respects: firstly, the recovery process since the fire in May last year has illustrated how vital the preservation exception is. Secondly, the rights clearance process has underlined the fact that collecting societies very often do not represent the types of rightsholders in archive collections, which means that licensing, and the market, cannot fill the gap for archives in the absence of robust exceptions within national copyright laws. If we’re providing access to our collections in a global context, then an international treaty is an essential step in creating a predictable copyright landscape.
Thankfully IFLA had organised a lunch-time side event with excellent presentations from Vincent Bonnet (Director, European Bureau of Library, Information and Documentation Associations (EBLIDA)); Teresa Hackett (Copyright and Libraries Programme Manager, Electronic Information for Libraries (EIFL)); William J. Maher (University Archivist, University of Illinois at Urbana-Champaign, representing the Society of American Archivists (SAA)); and Benjamin White, Head of Intellectual Property, The British Library, representing the Ligue des Bibliothèques Européennes de Recherche (LIBER)) which was well-attended by many of the national delegations.
Negotiations continued until 9pm on Friday evening, but no agreement was reached on future work on limitations and exceptions, because of opposition from 'Group B' countries, most notably the EU. This is especially frustrating as the EU has stated it will work towards harmonisation of copyright across its own 27 member states, a process it has repeatedly blocked at the SCCR. A small consolation is that the EU is now beginning to look marginalised: other Group B countries, including the United States, have made positive statements about beginning text-based work on a treaty. Negotiations at this level are a painfully slow process (limitations and exceptions for libraries and archives have been on the agenda at SCCR since 2009), but there is hope that progress will be made at future meetings. It’s very important that NGOs like IFLA, EBLIDA, ICA, SAA and SCA continue to lobby on behalf of the archive and library professions throughout this process.