WIPO Committee Sees Breakthrough On Audiovisual Treaty After 11-Year Delay

An international treaty on the protection of audiovisual performances might be back on track after a hiatus of over 10 years, as World Intellectual Property Organization delegates today reached an agreement on a text and will propose to the WIPO General Assembly to convene a high-level treaty negotiation. A major step was also taken in the direction of a possible treaty on copyright limitations and exceptions for blind and visually impaired people, according to all sides, although some countries are still in favour of a softer instrument.

The 22nd session on the Standing Committee on Copyright and Related Rights (SCCR), took place from 15-24 June. The committee also addressed a potential treaty on the protection of broadcasting organisations. Although there is no negotiating text as yet, delegates agreed on a work plan.

A second version of the draft conclusions [pdf] of meeting Chair Manuel Guerra Zamarro, director general of the Mexican National Institute of Copyright, were approved today after a first version [pdf]was issued early this afternoon and needed several amendments, in particular on the description of the negotiating text of the protection of audiovisual performances. The conclusions were adopted with minor language changes and a new version should be published by WIPO early next week, according to WIPO.

The treaty on the protection of audiovisual performances failed to be adopted during a diplomatic conference – the highest level negotiations in WIPO terms – in 2000. All but one article was agreed upon at that time but it was characterised by some sources as very important to the treaty. The audiovisual issue has been kept on the agenda of the copyright committee ever since.

That article, Article 12, now has been agreed upon by all parties, completing the negotiating text. Article 12 [pdf] deals with the transfer of rights between performers and producers [pdf]. According to a WIPO source, one of the problems that was to be addressed by a treaty was that different countries addressed the issue of the transfer of rights between performers and producers in a different manner. In some countries, the rights belong to performers and in other countries rights belong to producers. With the new article, the treaty would establish some balance between performers’ and producers’ rights, the source said.

The chair’s draft conclusions state that, “Member States should recommend to the General Assembly that the General Assembly resume the suspended 2000 Diplomatic Conference,” including all 19 articles [pdf] agreed upon at the 2000 diplomatic conference and Article 12 agreed upon at this session of the SCCR.

A source from the audiovisual industry told Intellectual Property Watch that although the industry had some concerns, the text was a consensual language that “everybody could live with.”

Hope for Treaty on Exceptions for Blind Readers

On limitations and exceptions for persons with print and other reading disabilities, there are now two texts on the table for the next SCCR session: One proposed by the Brazil, the European Union, Mexico and the United States, and a chair’s text, which is based on the one proposed by Brazil, the EU, Mexico, and the US, with comments from delegations. Comments include options on the definition of work, the definition of authorised entities, the definition of reasonable price for developing countries, the nature and the scope of obligations, and the circumvention of technological measures.

Since it includes comments from delegations, the chair’s text is considered by many delegations and civil society as the basis of negotiations towards a treaty text. Some delegations, such as the European Union and the United States, have been sponsoring the idea of soft law, such as a joint recommendation, to establish limitations and exceptions to copyright for visually impaired people.

The support for the proposal from Brazil, the EU, Mexico and the US is a big victory, said a source from the US delegation. “We submitted a careful compromise” and that proposal now has about 40 sponsors from three regions, the source said, adding, “The US is very pleased that Brazil, US, Mexico and EU were able to reach such a complete compromise and agreement.”

Broadcasting Organisation: Catching Up at Next Session

On the protection of broadcasting organisations, a work plan proposed by the chair was adopted after lengthy discussions on the amount of time and scheduling of a two-day informal consultation that should take place around the next session of the SCCR in November. This informal consultation will aim at working on a draft treaty “with a view to making a recommendation to the 2012 WIPO General Assembly on the possible scheduling of a Diplomatic Conference,” according to the chair’s summary.

It was decided that the scheduling of this informal consultation will be left to the WIPO secretariat. The discussion will be based on different proposals submitted at this session of the SCCR by South Africa, Canada, and Japan, as well as the basic proposal for the treaty, and comments from the chair of informal consultations held on 14-15 April.

Civil Society Pleased

World Blind Union (WBU) President Maryanne Diamond said the group is pleased with the progress achieved this week and in general “we find the text pretty good and workable.” The WBU is ready to support it, she told Intellectual Property Watch. It is an important step which might lead to a treaty.

However, she said, “we are disappointed about the practice of double standard,” in which the concept of a treaty is obvious when talking about broadcasting and audiovisual but not on the exceptions and limitations to copyright for visually impaired people. The United Nations Convention on the Rights of Persons with Disabilities does not tolerate that people with disabilities be treated as “second class citizens,” she said, adding that a UN agency like WIPO should do likewise.

Dan Pescod, for the Royal National Institute of Blind People in the United Kingdom, told Intellectual Property Watch that some parties still do not want a treaty but “the treaty ball is running down the hill and gaining momentum.” It is a “massive step” to have a single negotiating text and “we are not going to settle for a soft law,” he said.

The next session of the SCCR in November will span over eight days, with the first three days devoted to discuss the issue of limitations and exceptions to copyright for libraries and archives, as agreed in the previous session of the committee.

Library representatives told Intellectual Property Watch they are “pleased with the progress that was made on limitations and exceptions for persons with print and other reading disabilities during the past ten days in Geneva.”

Libraries are “hopeful that the chair’s document produced during SCCR 22 can proceed towards an international legal instrument as quickly as possible,” they said. “We now look forward to the scheduled discussions on limitations and exceptions for libraries and archives in November, and are naturally keen to see progress in this area.”

According to a source, publishers associations are concerned about exceptions and limitations and that they would like to reinforce the role of authorised entities.

In the chair’s text on limitations and exceptions, the following appears to be worrisome for the industry: “An authorized entity has the trust of both persons with print disabilities and copyright holders. It is understood that to obtain the trust of right holders and beneficiary persons it is not necessary to require the prior permission of said rightholders or beneficiary persons.”