Comments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives
This November at WIPO the Standing Committee on Copyright and Related Rights was witness to a tough negotiation on the proposed Treaty providing access to copyrighted materials to visually impaired persons. In between these discussions, the SCCR also found time to have two short plenary sessions on the proposed broadcast treaty as well as working documents on exceptions for libraries and archives.
Although we were unable to make a statement at the SCCR due to logistical constraints, CIS had the following comments prepared on both these issues:
Treaty for the Protection of Broadcasting Organizations:
The Centre for Internet and Society would like to reiterate the statement on principles provided in the 22nd SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcast Treaty. While we are encouraged by the inclusion of more suitable alternatives in many of the areas that civil society organizations had expressed concern, it is important that these alternatives be considered carefully. Some of the alternatives in the working document are not in keeping with the mandate of this Committee and we need to ensure that any new treaty provides a balanced protection to broadcast organizations.
We wish to enumerate a few key areas that need to be emphasized once again in this regard –
To begin with, the definition of ‘broadcast’ itself should not be too broad. The treaty needs a clear and precise definition that limits the protection to signals and does not extend to retransmissions or transmissions over computer networks.
Similarly, it is essential that the protection granted to a broadcasting organization should be limited to broadcast signals. The current working document extends this protection to public accessibility/performance of the broadcast signal and such restrictions might not be feasible in developing and least developed countries. One alternative even extends the protection available to fixations of the broadcasts and this is entirely unacceptable in a signals based treaty. The obligations with regard to technological protection measures, if any, should also be limited to protect only those broadcasts that are lawful.
Limitations and exceptions to the protections granted by this treaty are also of great importance, especially so in light of the Development Agenda. These exceptions and limitations should be made mandatory and be expanded to include issues of national interest and for free-to-air broadcast signals (such as the laws governing broadcast of cricket games in India).
Lastly, as pointed out many times already, we are of the opinion that a fixed term of protection, whether 20 or 50 years, is inconsistent with the idea of a signals based approach to the treaty.
Proposed Legal Instruments on Exceptions and Limitations for Libraries and Archives and Educational, Teaching and Research Institutions and Persons with Other Disabilities:
The Centre for Internet and Society would like to thank the Secretariat and the entire Committee for the hard work being put in this week at the SCCR.
International instruments that govern exceptions and limitations for libraries and archives as well as educational, teaching and research instruments and persons with other disabilities is key to ensure a balanced global copyright system that protects both right holders and users. Such instruments will not only allow the preservation of copyrighted works, but also provide greater access to these materials, especially in developing countries.
The working documents before us cover a number of issues and we would like to address a few of them today.
First, the three-step test. This has been a contentious issue with regard to all three instruments that are being discussed here this week. We would like to reiterate that a narrow interpretation of the three-step test should not be adopted, it is important that any and all flexibilities that can be made available to libraries and archives.
Second, libraries, archives, educational, research and teaching institutions should definitely be allowed to import and export copyrighted works and parallel trade in these works should be allowed. The language used in the current working document (SCCR/24/8) needs to be improved upon (Article 14, under 4.1 on page 12). This provision should indicate that as long as the copy of the work is lawfully produced, an educational institution, library, research organization or student is free to acquire, sell, import, export or otherwise dispose of that copy.
Thirdly, we wish to emphasize once again, the importance of protecting works that are in a digital format, as well as online libraries and archives. Additionally, the transmission of these works in a digital form as well as any internet service providers engaged in facilitating access to materials under this treaty should also be granted protection.