Centre for Internet and Society

Statement on the Proposed Treaty for the Protection of Broadcasting Organizations at WIPO SCCR 28

nehaa — 2014-07-14T05:40:27Z

Nehaa Chaudhari, attending the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 30 June, 2014 to 04 July, 2014, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 3, 02 July, 2014.

Thank you, Mister Chair.

Mister Chair, there are two things that I would like to talk about, on behalf of CIS- first, on justifications for this Treaty; second on the scope and the rights sought to be granted under this Treaty, which I will speak of together, if I may.

On justifying the need for this Treaty, Mr. Chair, we would reiterate what we have said in past sessions of this Committee – there has been no conclusive demonstration on the need for this Treaty and on why existing mechanisms in international legal instruments, including, among others TRIPS and the Rome Convention are not sufficient to address the concerns of the broadcasters. We have heard that these are insufficient, but no justifications as to why- something that KEI also pointed out in their statement before us. Further, Mr. Chair, we’re concerned by the fact that the latest study on the unauthorised use of signals presented to this Committee is the one from 2010 at the 20^th Session of this Committee. We strongly support the proposal made by India, TWN, CCIA and TACD to update this study and include an impact assessment of ALL the stakeholders, something that the earlier study does not address; in order to more comprehensively assess not just the need, but also the impact of this proposed treaty, and address some of the questions and concerns raised by TACD and TWN in their statement earlier.

Without prejudice to this submission on the need for this treaty, Mr. Chair, we would also like to comment on the scope of, and the rights under this Treaty.

Mr. Chair, we would continue to submit that this proposed treaty should be based on a signals based approach and not a rights based approach. We have heard submissions by broadcasters at this and at previous sessions of this Committee, where the basis of seeking additional protection for broadcaster is to protect the underlying investment. Mr. Chair, investments made in infrastructure for broadcasting in the traditional sense are very different from those required for an IP based transmission, even if the same broadcaster is engaging in both. Therefore, Mr. Chair, given that the rationale for seeking this additional layer of rights over and above existing copyright is the protection of investment for broadcasting in the traditional sense is the , IP based transmissions should not be covered in any way under this Treaty.

Further, Mr. Chair, fixation and post fixation rights envisaged under Article 9 of Working Document SCCR 27/2/ Rev. and indicated in the Informal Document circulated today, are inconsistent with a signals based approach. We are strongly opposed to all of the rights indicated in the Third Row of this Informal Discussion Document. This Document, we believe, is moving the discussion towards a rights based approached and not a signals based approach, which we find deeply concerning. We also believe, Mr. Chair, that it is not logical to prescribe a term of protection (beyond the life of a signal), least of all 20 or 50 year term (as under Article 11 of this Working Document) for a signal that lasts milliseconds.

Thank you, Mr. Chair.

Video

Videos of the WIPO's proceedings from June 30, 2014 to July 04, 2014 are available online. To view CIS' Statement, select 'Standing Committee on Copyright and Related Rights: Twenty-Eighth Session- June 30 to July 4, 2014 (Geneva, Switzerland)' from the drop-down list of videos. CIS' Statement is in the video titled SCCR/28- Wed2 - English - Morning session. The length of the video is 44:51. The statement is available in this video from 24 minutes, 00 seconds- when the Chair recognizes CIS.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-on-proposed-treaty-for-protection-of-broadcasting-organizations

India's Ratification of the Marrakesh Treaty Celebrated; Accessible Books Consortium Launched

nehaa — 2014-07-01T11:09:08Z

On Day 1 of the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”), the WIPO organized an event to mark India’s ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, 2013 (“Marrakesh Treaty”), and to launch the Accessible Books Consortium (“ABC”).

India Becomes the First Country to Ratify the Marrakesh Treaty

Francis Gurry, Director General, WIPO said that the Marrakesh Treaty received 79 signatures in the twelve month period that the treaty was open for signatures. He further said that India’s ratification of the Marrakesh Treaty one year from its conclusion was a “WIPO record of sorts” and a “great example from a major country” of the importance attached to the Marrakesh Treaty.

Dilip Sinha, Ambassador and Permanent Representative of India to the United Nations in Geneva handed over India’s Instrument of Accession to the Marrakesh Treaty to Francis Gurry. Ambassador Sinha in his speech stressed on the importance of the Marrakesh Treaty to India and said that it helped that India had its amendments to its Copyright Act, 1957 in place, incorporating the provisions of the Marrakesh Treaty.

Maryanne Diamond, the Immediate Past President of the World Blind Union (“WBU”) congratulated India on its ratification. Calling it a country who showed “huge leadership” in negotiations of the Marrakesh Treaty, Ms. Diamond said that this ratification was extremely significant, with India being home to a large number of blind and print disabled people and a part of the Global South. Ms. Diamond urged other nations to follow India’s example and make it a priority to ratify the Marrakesh Treaty.

Jens Bammel, Secretary General, International Publishers Association (“IPA”) also congratulated India on its ratification of the Marrakesh Treaty and called on other member states to ratify it.

Accessible Books Consortium Launched

At the launch of the ABC, Mr. Gurry said that the Marrakesh Treaty was only the means to an end, where the end was books in the hands of print disabled and visually impaired persons across the world. “To make it operational,” said Mr. Gurry, “we need to have operational activities.” He said that the ABC was an operational activity which would “breathe life” into and “make operational” the legal framework provided by the Marrakesh Treaty.

What Does it Do?

Mr. Gurry said that the ABC aimed at achieving three things- first, capacity building; second, international book exchange and third, international book exchange.

Capacity Building- Mr. Gurry said that the ABC seeks to provide training on accessible book production and distribution. He thanked the Republic of Korea which has committed to providing financial assistance for training in respect of production of books in accessible formats.
International Book Exchange- Mr. Gurry said that this activity was an IT supported facility, namely, the TIGAR Service which has its origins in India. This would allow participating institutions to perform international searches of databases to find out if accessible formats of books are available.
Inclusive Publishing- Mr. Gurry said that at the end of the day, “books should be born accessible” and technology was creating the “promise of the realization of this aspiration.” Mr. Gurry said that the ABC would promote accessible publishing and to this end, had drawn up a charter of accessible publishing- Accessible Publishing Best Practice Guidelines for Publishers. Elsevier is the first publisher to have signed this charter.

India, WBU and IPA delighted

Praising the ABC, Ambassador Sinha called it an indicator of what multi-stakeholder cooperation needs to do. He said that the ABC would assist organizations such as the DAISY Forum of India in achieving the goal of access to books in accessible formats. Congratulating the WIPO for its efforts on this front, Ambassador Sinha said that this would help nations like India realize their goal of achieving the purposes of the Marrakesh Treaty. Ms. Diamond, representing the WBU congratulated Elsevier on signing the charter. Jens Bammel, on behalf of the IPA expressed concern for making books available in accessible formats for non English speakers. The ABC, he said, was a project initiated to “genuinely complement” the Marrakesh Treaty, and would create a global catalogue of accessible works, whether provided by libraries or by publishers. Expressing his delight that the ABC was being supported equally by all stakeholders, Mr. Bammel reached out to member states to support this initiative politically.

For more details visit https://cis-india.org/accessibility/blog/indias-ratification-of-marrakesh-treaty-celebrated

Mapping Institutions of Intellectual Property: Part B — India's National Program on Intellectual Property Management

nehaa — 2014-06-26T15:27:18Z

As a second part in the series on Mapping Institutions of Intellectual Property this blog post deals with the documents introduced at the Stakeholders’ Consultation for India’s National Program on Intellectual Property.

Many thanks to CIS interns Jessamine Matthew, Tanvi Mani and Upasana Chauhan for their support on this.

On the 21st of February, 2014, the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India organized a Stakeholders Consultation at New Delhi (“the Consultation”) to discuss India’s National Program on Intellectual Property Management. (Click here: http://cis-india.org/a2k/blog/mapping-institutions-of-intellectual-property-part-a to read our post about this, the first in this series on mapping institutions of intellectual property). I attended this Consultation on behalf of CIS. Discussions were informed by three documents introduced at this meeting, the important parts of which have been summarized below:

Report of the Evaluation Committee on Continuation of the Scheme of Intellectual Property Education, Research and Public Outreach (IPERPO) (“the Scheme”) in the XII Five Year Plan Period 2012-2017 (PDF, 21378 Kb)

Introduction

The Evaluation Committee involved in the preparation of this report comprised of Prof. Sudhir K. Jain, Shri T.C. James and Shri J.R. Agarwal. The rationale behind such scrutiny was to yield recommendations with regard to whether the Scheme should be continued or not. And if the answer was found to be in affirmative, to analyze the scope for improvement, phasing of expenditure and setting of targets for each component of the Scheme.

Essentially the report seeks to analyze the overall impact of the Scheme in the discipline of IP rights with respect to education and awareness. It examines the trajectory of progress of the MHRD-IP Chairs and assesses ways to monitor them more efficiently. In addition to that it also analyzes the procedure adopted to release grants to the Chairs and to recognized universities and explores the possibility of widening the scope of the Scheme.

Genesis of the Scheme

The Scheme was formulated to encourage study of IP rights and research, and create awareness about copyright and IP matters. It also aimed to develop specialized courses, train enforcement personnel, organize seminars and workshops on IPR matters, develop inputs, awareness on WTO matters and evolve strategies of regional cooperation.

Under the Scheme, the purposes for which expenditure is to be incurred by the Ministry are clearly chalked out. The details of the same are given in the Report of the Committee. It also lays down the eligibility of Institutions/ Organizations that are to be selected under the Scheme.

MHRD-IPR Chairs

Around 20 MHRD-IPR Chairs have been set up across various universities, IITs and National Law Universities for growth and development of IPR education, research and training. The staff –pattern followed for MHRD-IPR chair is one Chair Professor, two Research associates, one Steno-cum- Documentation assistant and one group-D employee. Such appointments are supposed to be made in accordance with the rules and guidelines of the UGC. Apart from the recurring expenditure towards salaries of the above-mentioned staff, the Chairs have also been given a non-recurring provision for library, equipments and ancillary items. However, such grants are to be given upon fulfilment of certain conditions imposed under the Scheme.

The working of MHRD-IPR Chairs is overlooked by two committees-namely, the ‘Coordinating Committee’ and ‘Review Committee’. The Coordinating Committee is responsible for discussing proposed activities and resolving pending disputes while the Review Committee review their progress periodically.

Observations on Performance of IPR Chairs

Inability to find a suitable Professor level person to occupy the IPR Chair.
Absence of qualification- criteria for the IPR Chair in the Scheme.
Less focus on research component, development of human resource and teaching.
Few IPR-Chairs have appointed full staff which is complementary to their working.
Flow of fund to IPR-Chairs is interrupted dur to lack of proper documentation.
Uncertainty about the continuation of IPR Chairs which has a detrimental effect on their performance.
Active participation in seminars and workshops organized by universities, institutes and colleges on IPR awareness.

Plan Allocation and Expenditure

There exists variations with respect to allocation and actual expenditure of funds due to various reasons.

New Initiatives to be taken during XII Plan

New IPR-Chairs should be established to encourage research in the field of IPR and create a pool of trained human resources.
IPR Centres/ Cells should be set up and they should be linked to the IPR-Chairs.
Internal Monitoring and Information Systems should exist for effective implementation of the Scheme.
National Seminars/ Conference should be held annually.
World Intellectually Property Day should be celebrated annually with various themes as decided by WIPO.
Awareness about copyright and IPR should be spread through print and electronic media.
Copyright Office should be strengthened and modernized to bring it at par with offices in the USA, UK.

Specific Recommendations

The Committee recommended that the post of IPR-Chairs needs to be incentivized and given full functional autonomy. Moreover, the support provided by Government to the Chairs should be long-term.
The appointment of academic and administrative staff needs to be revised periodically.
Only publicly funded universities and institutes of higher learning should be beneficiaries to this Scheme.
The proposed activities and achievements of the IPR Chairs should be made public.
IPR Chairs should provide assistance to the Central Government by way of research and providing solutions to policy problems and issues.
Some flexibility should be allowed with respect to documentation for uninterrupted flow of accounts.
Provision for replacement/ purchase of equipments.
It should be made mandatory for IPR-Chairs to appoint full staff and conduct lon term training programmes in advanced areas of IPR at the national level.
The work of the IPR Chairs needs to be chalked out explicitly by the Scheme.
Having a scheme for converting the well-functioning Chairs into Specialized IPR Centres with the participation of MHRD.
Raising awareness on IPR issues and problems by holding workshops and seminars. Moreover, universities and colleges should ensure adequate participation in such seminars/ workshops.
School-curriculum should include Chapters on IPR.
Modernization of the Copyright Office should be considered to be a priority to ensure easy access and to make copyright registration easier.

Note on the establishment of an Inter-University Centre for Intellectual Property Rights

Background

The Inter-University Centre for Intellectual Property Rights (“the Centre”) will be established under UGC/ Ministry of HRD, Government of India. Broadly, the mission of this independent autonomous Policy Research Centre is to provide research and policy inputs in the arena of IPR. The targeted audience for these inputs will be the State and Central Governments. In addition to that, it also seeks to serve as a connecting bridge for dialogue between developing countries on IPR. To actualize the mission, it will work on inter-disciplinary research and disseminate information on various socio-legal and other aspects of IPR. It will also promote, integrate and develop models and mechanisms associated with IPR.

Functions

In order to make IPR resources more accessible, the Centre will establish a repository of such resources by entering into collaboration with other organizations and institutions. It will also provide assistance to stakeholders by ways of and not limited to organization of seminars, awareness programmes. As a means to encourage inter-disciplinary research which is quintessential for this Centre, it would offer visiting fellowships and forge links with national and international research institutions. As a nodal centre with respect to interfacing government on IP matters, it will also have the added responsibility of reviewing performance of MHRD-IP chairs.

Broad Deliverables and Outcomes of the Centre

The Deliverables of this Centre world would include Policy Research Inputs, Research Publications, Research Monographs, Treaty Analysis, Sensitization Programmes and National and International Conferences. On the other hand, the outcomes would include Research on thrust areas, Knowledge Management in IPRs, IPR Online Resources and discussions.

Linkages

The Centre seeks to link MHRD-IP Chairs, Industry Associations, Civil Society Advocacy Groups and Public Institutes with IPR research capacity.

Organizational Structure and Funding

The organizational structure of the Centre would include the Governing Council, Governing Board and the Research Advisory Council. Each Council/ Board will comprise of Chairman, Ex-Officio Members and Nominated Members. The individuals who are responsible for the nomination of members to these structures are the President, Chairman of the GB and Chairman of the Centre respectively. It has laid down the specification of such composition in its note on establishment.

For the purpose of funding, the Centre would depend on UGC for its building infrastructure, salary and non-salary components. In addition to that it will also aim to create its own corpus by means of consultancy and other grant-in-aids. Towards capital expenditure, the required allocation would be Rs. 65 crores. While the revenue expenditure is estimated at Rs. 25 crores annually. A detailed break-down of the expenditure also been laid down by the Centre in its note.

Discussion Paper for the Establishment of a National Institute for Intellectual Property Rights

Introduction

The National Institute for Intellectual Property Rights (“the Institute’) will be established as an autonomous policy research institute under the Department of Higher Education, Ministry of Human Resource Development, Government of India. It envisages a specialization in policy research and development cooperation in the field of IP rights. Further, it aims to provide multi-stakeholder collaborations in the fields of IPRs. It will provide policy inputs to the government of India for formulating legislations and international agreements. The Institute will serve as a common platform for dialogue among developing countries on IPR issues. Moreover, it will act as a ‘Hub and ‘spoke’ model to connect and coordinate with the MHRD IPR Chairs/ other institutions working in the field of IPRs.

Vision: To be an institute of excellence in policy research and advocacy of IPR.

Mission: To provide effective research and policy inputs in the field of IPR.

Objectives

The Institute would serve as a think-tank to provide policy inputs on IPR at a regional, national and international level. It would work on interdisciplinary research involving multi-stakeholders and focus on IPR trade related issues and their impact on socio-economic aspects at regional, national and international levels. Further, it would disseminate information regarding the social, legal, ethical and economic aspects of IPR. It would endeavour to promote, integrate and develop ‘Academia-Industry’ knowledge structures. Models and mechanisms associated with IPR. Further, it would coordinate the activities of ‘MHRD-IPR’ chairs on behalf of the Ministry of HRD. Lastly, it would engage in capacity building and provide inputs on IPR policy makers including the judiciary.

Functions

In order to realize the objectives elucidated, the Institute would perform the following functions. It would undertake inter-disciplinary research and provide necessary inputs to the State and Central governments to formulate the required policy in IPR. It would further establish a repository of IPR resources in collaboration with various academic institutions, organizations, chairs and stakeholders engaged in IPRs. It would also offer visiting fellowships to encourage multi-disciplinary research. It would organize and participate in seminars, conferences and awareness programs. It would also undertake consultancy and conduct training in IPR to assist various stakeholders. Additionally, it would forge links with national and international IP research institutions/ organizations and act as a nodal institute to interface various Ministries/Departments of the Government on IP related matters. In furtherance of its adjudicative functions it would also undertake a review on the performance of MHRD-IPR chairs on behalf of the Ministry of Human Resource Development. Lastly, it would offer a Ph.D program in IPR in association with reputed Universities/ Institutions in India and abroad.

The Institute will mainly focus on: (I) Research, (ii) Policy and Advocacy, (iii) International Collaboration and (iv) Developmental Agenda

The Broad Deliverables and outcomes of the Institute include:

Deliverables : (i) Policy Research Inputs (ii) Research Publications (iii) Research Monographs (iv) Treaty Analysis (v) Sensitization Programs (vi) National and International Conclaves/Conferences/Roundtables

Outcomes: (i) Research on thrust areas: Preparation of occasional briefs/ annual briefs and discussion papers/ books/journals. (ii) Knowledge and Management of IPRs: Documenting and mapping the competencies on various segments of IP (iii) IPR Online resources: Online documents relating to IPR policy inputs (iv) National/ International Conferences/ Public Debate and Distinguished Lectures: To provide a common platform for deliberation on contemporary IPR practices, issues and critical analysis.

Linkages and Network

The Institute will establish linkages and network with:

MHRD-IPR Chairs
Industry Associations (National and International)
Civil Society Advocacy Groups
Public Institutes with IPR research capacity

Organizational Structure

The organizational structure of the Institute would include the following sub committees:

Steering Committee: Ex-Officio Members: The Secretary, DHE,MHRD would be the president of the Committee. The members would include the Secretary of The DIPP,MOC, The Secretaries of the Ministry of Environment and Forests and The Department of Science and Technology, The Joint Secretaries of the (BP&CR),MHRD and the DIPP. MOC, GOI, The Director of (BP&CR),MHRD, The Vice Chancellor, Delhi University (Host Institution) and the Director of the NIIPR. The Members nominated by the President are the Two Members from the governing board, the two vice- chancellors of Universities having MHRD Chairs, the two directors of IITs/IIMs having MHRD IP Chairs and the two experts from the regulatory/ research councils.
Governing Board: The Chairman of the governing board shall be appointed by the president of the Steering Committee as per the procedure given in Rule 33.
Ex-Officio Members: These members include the Joint Secretary (BP&CR),MHRD, Joint Secretary (DIPP),GOI, The Director (BP&CR),MHRD and The Director, NIIPR who will be the member Secretary.The members nominated by the Chairman of the GB includes the Two Faculty Members of the Institute, The Two MHRD IPR Chair professors and Three National and International Experts in the field of IPR.
The Research Advisory Council: The Director of the Institute is the Chairman of the Research Advisory Council. The Ex-Officio Members include the Deans and Two Professors of the Institute. The members nominated by the Chairman include two IP experts and one representative each from The Ministry of Culture, Arts, Agriculture, Information technology, Environment and Forests, Science and Technology and External Affairs, Two representatives from Civil Society Advocacy Groups and the Administrative Officer of the Institute would be a Non Member Secretary.

Funding

The Institute will be established by UGC funding for its building, infrastructure salary and non-salary components. The institute will also strive to create its own corpus by way of consultancy and other grant-in aids from relevant National/ International Organizations to compliment the UGC funding. Required allocation is estimated at Rs 65 crore towards capital expenditure relating to acquisition of land, building (Academic Block, Conference Halls, Guest House, Administrative Block, Faculty Quarters, Equipment, IT infrastructure etc) The revenue expenditure is estimated at Rs. 25 crore annually, towards meeting the operating activities of the proposed Institute.

The report also contains particulars with respect to staff requirements. It also contains estimates with respect to Non-recurring Capital Expenditure and Recurring Expenditure per annum.

Lastly, attached along with the report is the Memorandum of Association for the National Institute for Intellectual Property Rights.

The memorandum contains the objectives, functions, members of the Steering Committee and the Rules of the Institute.

The Rules include the functions and powers of the Governing Board. The Board is to carry out the objectives of the Institute. It will be subject to the limitations of the Department of Higher Education, MHRD (the Department will also have the power to inspect the Institute at any time). The Governing Board will have the power to:

Manage the affairs of the Institute, consider annual and supplementary budgets,
Create and abolish emoluments structures of various posts,
Appoint staff to these posts,
Enter into agreements with the Central or State Governments or public or private organisations or individuals for grants, donations etc,
Appoint Committees or Sub-Committees,
Delegate any administrative or financial powers to the Director,
Prepare budget estimate and sanction expenditure,
Prepare for the recruitment of offices, faculty and establishment of the Insitute, terms and conditions of scholarships, fellowships, etc.

It also contains details regarding meetings and the powers and functions of the chairman.There are guidelines for the appointment of the Director and Staff Employees.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-b

Mapping Institutions of Intellectual Property (Part A): India's National Programme on Intellectual Property Management

nehaa — 2014-06-10T07:34:34Z

This blog post discusses India’s National Program on Intellectual Property Management, including the establishment of a National Institute of Intellectual Property Rights.

On the 21^st of February, 2014, the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India organized a Stakeholders Consultation at New Delhi (“the Consultation”). I attended this meeting on behalf of CIS. The discussion was centred around devising a strategy for India’s National Program on Intellectual Property Management under our 12^th Five Year Plan (2012 to 2017). On the agenda were two key issues:

Evaluating and rethinking the role of IPR Chairs established by the MHRD
Establishing a National Institute of Intellectual Property Rights

Pawan Agarwal, Advisor, Higher Education, Planning Commission, Government of India made a detailed presentation on both of these issues. The key parts of his presentation and the ensuing discussions have been reproduced below.

Presentation and Ensuing Discussions

The diagrams in this section correspond to those in Pawan. Agarwal’s presentation.

Ecosystem

In Figure 1, the proposed structure of the national intellectual property system has been outlined. Those government departments and ministries that would have a role to play have been identified, as well as the functions expected to be performed.

In the discussion that followed it was observed that traditional knowledge should also be included within this ecosystem. The Department of Industrial Policy and Promotion (“DIPP”) could coordinate and seek inputs from the Ministry of Culture and the Ministry of Health and Family Welfare.


Figure 1

Education: Programs and Courses

Figure 2 details the proposed structure of IPR education, including courses, financial aid and the nature of the program. Members attending the Consultation were of the opinion that having ten centres for doctoral education was an ambitious target. They were also of the opinion that there was need to integrate IPR education with more courses, for instance, MBA and MSc.


Figure 2

Education: Various Elements

Figure 3 deals with other elements of the IP education universe- curriculum development (envisaged as a joint effort), faculty development (of selected faculty) and funding. Various suggestions emerged on the role of the IP Chairs. This has been examined in greater detail subsequently in this blog post. A key suggestion was made regarding the establishment of more law schools in the IITs, along the lines of the Rajiv Gandhi School of Intellectual Property Law at the Indian Institute of Technology (“IIT”), Kharagpur.


Figure 3

Research and Policy Support

Figure 4 lays out the details of the research and policy support to be provided by the Government towards developing this IPR ecosystem. The Government seeks to achieve this through the existing institutions of the IP Chairs, by way of awarding fellowships and research grants. Once again, concerns and questions were raised regarding the role of MHRD IP Chairs, which will be discussed subsequently in this blog post.


Figure 4

Training & Capacity building

Training and capacity building has been visualised on two levels- basic awareness building about intellectual property rights in institutions of higher education and on the advanced level, dealing with specialised courses on trademark/patent drafting or technology licensing, among others.


Figure 5

Creation/ Protection and Management

For the creation, protection and management of intellectual property, a two pronged approach has been envisaged- the establishment of cells for the management of intellectual property in institutions of higher education and an increased focus on patents, including the creation of incentives for patenting for researchers. Figure 6 lays out the scheme.


Figure 6

National/ Regional Centres/ Chairs

This program on intellectual property outlines a proposal for the establishment of one national centre, five regional centres and twenty chairs, with a distinct role outlined for each. Details are available in Figure 7.


Figure 7

Governance

The National Program on intellectual Property Management lays out a three tiered governance structure, headed by the National Steering Committee on IPR, assisted by the Advisory and Project Approval Committees, with five Regional Committees constituting the final tier. This has been represented in Figure 8.


Figure 8

Funding Arrangements


Figure 9

The discussion that occurred after Pawan Agarwal’s presentation was centred around the issues of intellectual property education, revisiting the role of the MHRD IPR Chair Professor and on the establishment of a National Institute of Intellectual Property Rights.

Intellectual Property Education

On a broader level, the Consultation dealt with the subject of intellectual property education, which the proposed plan envisaged on a generic basic level as well as a more advanced technical level. Narendra Sabharwal, former Deputy Director General, World Intellectual Property Organization (“WIPO”) was had a three pronged opinion on intellectual property education- first, that intellectual property education had to be mainstreamed, and that this mainstreaming should be a part of the vision and strategy of any national plan on intellectual property; second, that intellectual property education should be used to synergise and encourage the creation of more IP assets and third that the proposed national institute should play an advisory role in the intellectual property education framework.

Evaluating and Rethinking the Role of IPR Chairs Established by the MHRD

Background

The MHRD has, under the Scheme for Intellectual Property Education, Research and Public Outreach (“the Scheme”), established twenty IPR Chairs in various universities and other institutions of higher learning across the country. According to the MHRD IPR Chairs website, six of these Chairs have been set up in Universities (University of Delhi, University of Madras, Tezpur University, CUSAT- Kochi, JNU- Delhi and the Delhi School of Economics); five in National Law Universities (NLSIU- Bangalore, NALSAR- Hyderabad, NLU- Jodhpur, NLIU- Bhopal and WBNUJS- Kolkata); six in the Indian Institutes of Technology (IIT- Delhi, IIT- Madras, IIT- Kanpur, IIT- Kharagpur, IIT- Bombay and IIT- Roorkee) and three in the Indian Institutes of Management (IIM- Bangalore, IIM- Kolkata and IIM- Ahmedabad).

With the purpose of creating awareness among the “general public intelligentsia etc. on IPR Copyright and WTO Studies”[1] , the Scheme has been implemented with the objectives of encouraging the study of intellectual property rights in universities and other institutions of higher learning and developing and encouraging study in specialized courses of IPR; creating awareness about IPRs; organizing activities such as seminars and workshops for IPR awareness; creating knowledge resources, developing policy inputs and negotiating strategies and course awareness- all on WTO matters and evolving strategies of Regional Cooperation and Regional Trading Agreements. Expenditure under the Scheme may be incurred by the MHRD (directly or indirectly) for a wide array of purposes including inter alia, the institution of “Chairs” for IPR Studies for higher education and “also on WTO Studies” (sic.).

At the Consultation

There was a general consensus on the need to restructure the existing ‘MHRD Chair’ institutions and questions were raised regarding their longevity and the sustainability. Veena Ish, Joint Secretary, Department of Higher Education, MHRD, Government of India, spoke of the need to strengthen the existing IPR Chairs and bring about changes in the funding scheme. She also sought inputs on what form and structure the institutions should adopt.

Faculty members of various educational institutions present at the meeting were of the opinion that there was an urgent need to set norms clarifying the role of Chairs. Out of the various suggestions put forth, some of them were as under:

Specify the number of hours (if any) that a Chair was expected to teach. This proved to be a contentious issue at the meeting, with various members of the faculty raising questions on how one was to balance teaching requirements with research and policy feedback obligations.
Envisage the role of the Chair as that of a mentor who would not teach except for the occasional guest lecture, but would guide younger faculty in teaching. The Chairs would then instead produce at least three research outputs in a year based on topic inputs from the National Institute/Centre for Intellectual Property Rights. These research outputs would then act as policy inputs to the government.
The Chair would liaison with industry, academia and policy makers to identify issues of policy concern and research interest.
The institution of the MHRD Chair should be delinked from the university set up. Chairs should be appointed directly by the MHRD through a transparent and accountable process, distinct from the present state of affairs where the Vice Chancellors of universities were allowed to exercise discretion in appointments.

Establishment of a National Institute of Intellectual Property Rights

Context
The present circumstances that might necessitate the establishment of a National Institute of Intellectual property Rights were highlighted at the Consultation by D.V. Prasad, Joint Secretary, Department of Industrial Policy and Promotion (“DIPP”), Ministry of Commerce and Industry, Government of India. He said that there was a need for a nodal agency for World Intellectual Property Organization (“WIPO”) matters. He also said that there was a need for a body to focus on government policy and provide policy inputs to the DIPP and other departments and ministries working on intellectual property law and policy issues. At the moment, he said, there were no formal mechanisms in place though which the DIPP sought policy input, and instead relied on basic inputs from paid external consultants.

At the Consultation

The discussion at the Consultation pertained to the form and functions of this proposed institution. D.V. Prasad emphasised that this institution ought not to become an academic exercise or a university and that the focus should remain policy inputs to the government. This view was echoed by Shilpi Jha of the Confederation of Indian Industries. V.C .Vivekanandan, MHRD Chair Professor, NALSAR University of Law, Hyderabad, was also in agreement with D.V. Prasad and Shilpi Jha, and said that the proposed institution ought to be a ‘stand alone model’. Narendra Sabharwal envisaged this institution as a think-tank that would research on legal and policy issues and international relations on emerging areas of technology. This would be distinct from university research undertaken by MHRD Chairs, although some of the university research ought to feed into the think-tank. N.S. Gopalakrishnan, former MHRD Chair Professor at CUSAT, Kochi was of the opinion that this proposed institution ought not to be within the aegis of the University Grants Commission. Further, he said that it was critical to develop capacity for policy research within the country, but until that time, it was critical to attract people from both within as well as outside India to undertake policy research. Sunita Tripathy, Assistant Professor, Jindal Global Law School was also of the opinion that there was a need to build capacity for policy research in India.

Concluding Observations

From the conversation at the Consultation it seems evident that there is a need to revisit the institution of the MHRD Chair Professor, but what remains moot is the form that it should take. The viability of the proposed national institute would also have to be studied in further detail, against similar models in other countries.

This is an exercise that we shall continue to undertake in subsequent blog posts as a part of this series of mapping institutions of intellectual property.

[1].See Scheme for Intellectual Property Education, Research and Public Outreach, available at http://copyright.gov.in/Documents/scheme.pdf (last accessed 03 June, 2014) at page 1.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-a

Comments on the Open Licensing Policy Guidelines of the National Mission on Education through Information and Communication Technology

nehaa — 2014-06-30T11:26:44Z

The Centre for Internet and Society submitted its comments on the Open Licensing Policy Guidelines to the National Mission on Education through Information and Communication Technology (NMEICT), Ministry of Human Resource Development, Government of India, on May 28, 2014. The comments were prepared by Sunil Abraham and Nehaa Chaudhari.

I. PRELIMINARY

1.1 This submission presents comments from the Centre for Internet and Society (“CIS”)[1] on the Open Licensing Policy Guidelines (“Guidelines”) of the National Mission on Education through Information and Communication Technology (“NMEICT”).

1.2.The Guidelines provide a set of recommendations and procedures to ensure that content produced under the NMEICT is openly licensed.

1.3 CIS commends the NMEICT for this initiative, and appreciates the opportunity to provide feedback on the Guidelines. CIS’ comments are as stated hereafter.

II. SECTION-WISE COMMENTS

2.1 Preamble

2.1.1 Recognizing the role of intergovernmental agencies in promoting the use of open licenses, the Preamble makes a reference to the 2012 Paris OER Declaration.[2] CIS appreciates this inclusion and suggests that reference may also be made to another important declaration, i.e., the Cape Town Open Education Declaration, released in 2008,[3] which encourages the publishers and governments to make available, at no charge, via the internet, publicly funded educational materials.

2.2 Principles of Openness

2.2.1 The first principle[4] requires the treatment of information products as “national resources.” The phrase “national resource” most often used in connection with rivers, forests, mines and minerals or spectrum would imply specific legal connotations and might therefore prove to be a misnomer for information products. It is suggested that “national resources” be replaced with “commons” or, alternatively, the sentence be restructured to state that content, software and technology would be treated as “information commons”.

2.2.2 The third principle[5] states that “information and knowledge resources” shall be available “freely”. “Freely” has a wide array of connotations including the absence of restrictions and the absence of payment/costs. It is suggested that “freely” be further clarified and perhaps be replaced with “on a gratis basis”.

2.2.3. The fifth principle deals with the transfer of “all intellectual property rights” to the Government of India and the retention of “moral rights” with the contributor. Intellectual property rights is a wider term including among others copyright and related rights, patents, trademarks and industrial designs. There are two types of right under copyright- moral rights (of attribution for the work) and economic rights (which allow the owner to derive financial benefit and reward from the use of her/his work).[6] It is submitted that the intention behind the fifth principle is seemingly to transfer all economic rights to the Government of India while ensuring due credit to the author/contributor for her/his work. “Intellectual property rights” being a wider term would be a misnomer in this sense, as would the use of “copyright”, since this does not appreciate the distinction between economic and moral rights. Therefore, it is suggested that “intellectual property rights” be replaced with “economic rights” for the applicable branch of copyright law.

2.2.4. The sixth principle deals with the release of information and knowledge resources in a “suitable open licence”. “Suitable open licence” could include both indigenously developed as well as existing licences. It is submitted that in the interests of interoperability, one of the fundamental principles of open access, it would be appropriate to adopt an existing system of licensing. It is recommended therefore, that the Creative Commons approach could be adopted for content and the GNU or BSD licenses could be considered for software. It is strongly suggested that “suitable open licence” be replaced with a specific license framework to ensure interoperability, particularly between information and knowledge resources produced by other nations also funding and adopting OER.

2.3 Guidelines

2.3.1 The second guideline mandates a single portal/gateway for all knowledge resources under this project. It is suggested that this be replaced with the adoption of the principle ‘lots of copies keep stuff safe’, the basis for the LOCKSS Program of Stanford University.[7] The LOCKSS Program allows participating libraries to take custody of and preserve access to the content to which they have subscribed. It is suggested that a similar approach be adopted towards the content being developed under the NMEICT OER project.

2.3.2. The fourth guideline makes a reference to the possible adoption of a CC-BY-SA licence to make content available. The rationale behind a Share-Alike clause could be to prevent the appropriation of the education market by ‘rent seekers’. However, it is necessary to examine this further. The danger of appropriation and subsequent monopolization of content is one that needs to be addressed provided that the process of content creation itself is dependent on contributions from subsequent utilizers of content. Content under the NMEICT model is developed as a result of government contributions and is not dependent on subsequent utilizers feeding back into the system, thus invalidating the need for a Share -Alike clause. Additionally the absence of a Share-Alike clause is likely to incentivise private participation. Private players would have the freedom to utilize the content generated under this scheme, modify and develop it further and make it available in the market for sale. This would be extremely useful in meeting the last mile connectivity and ensuring the wider availability of content. It is therefore submitted that that the licence to be adopted should be CC-BY.

2.3.3. The fifth guideline places a requirement on the grantee/creator to intimate the NMEICT about the use of other open license materials. It is submitted that this could be excessive regulation. It is suggested that this guideline be modified and a two- fold requirement be placed on the content creator/grantee- one, to specify clearly and explicitly the licence being used and the licensing conditions in her/his work, and two, to attribute any and all content used to the rightful creator and holder of copyright.

2.3.4. The eighth guideline mandates the use of “open formats” for delivery of outputs. It is suggested that “open formats” be replaced with the mandatory adherence to “open standards” and a reference be made to the National Policy for Open Standards notified in 2010. The eighth guideline also discourages the use of proprietary software. It is submitted that the requirements of sharing the source file along with the relevant APIs need a more detailed explanation. It is suggested that the difference between a development platform/environment and the software written subsequently over this platform be clarified. Notwithstanding that the former may be proprietary if no other alternative is available, developers/creators/licensees would be obligated to openly license any code/software they create using the platform. It is suggested that it ought to be made explicit that there shall be no choice for the latter and that the choice was limited to the type of platform being employed.

2.3.5. It is suggested that a ninth guideline be included. This guideline would deal with accessibility for persons with disabilities. The Web Content Accessibility Guidelines 2.0[8] may be referenced and invoked.

CONCLUDING OBSERVATIONS

3.1. CIS welcomes the initiative of the NMEICT towards the adoption of an OER Policy. These Guidelines, while indeed addressing the important issues associated towards the end of adoption of an OER Policy, would be further strengthened by addressing the concerns enumerated above.

3.2. CIS is thankful to the NMEICT for the opportunity to provide feedback on this Policy. As a non-governmental research organization working in the areas of Openness and[9] and Access to Knowledge,[10] CIS appreciates this effort by the NMEICT, and would be privileged to work with the Government on this and other matters in these areas.

[1].See www.cis-india.org (last accessed 26 May, 2014).

[2].See http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/Events/Paris%20OER%20Declaration_01.pdf (last accessed 26 May, 2014).

[3].See http://www.capetowndeclaration.org/read-the-declaration (last accessed 26 May, 2014).

[4].See 2(a), Principles of Openness of the Guidelines.

[5].See 2(c), Principles of Openness of the Guidelines.

[6]. See illustratively http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html#moral_rights (last accessed 26 May, 2014); http://cyber.law.harvard.edu/property/library/moralprimer.html (last accessed 26 May, 2014); http://www.ipo.gov.uk/types/copy/c-otherprotect/c-moralrights.htm (last accessed 26 May, 2014).

[7]. See http://www.lockss.org/about/what-is-lockss/ (last accessed 26 May, 2014).

[8].See http://www.w3.org/TR/WCAG20/ (last accessed 28 May, 2014).

[9].See http://cis-india.org/openness (last accessed 26 May, 2014).

[10].See http://cis-india.org/a2k (last accessed 26 May, 2014).

For more details visit https://cis-india.org/openness/blog-old/comments-on-open-licensing-policy-guidelines-of-national-mission-on-education-through-information-and-communication-technology

France, Greece, India and the European Union Sign the Marrakesh Treaty

nehaa — 2014-05-02T23:23:25Z

On April 30, 2014, on Day 3 of the 27th Session of the WIPO Standing Committee on Copyright and Related Rights, a Signing Ceremony was conducted for member states wishing to sign the Marrakesh Treaty to facilitate access to books and other reading material for the print disabled.

Read the WIPO Signing Ceremony for Marrakesh Treaty

Opening the proceedings, the Director General of WIPO, Francis Gurry called the Marrakesh Treaty “one of the greatest achievements of this Committee in the past year.” The Hon’ble Ambassador of France in his speech following that of the Director General emphasised the importance that his government placed on this treaty. Mrs. Veena Ish, Joint Secretary, Ministry of Human Resource Development signed the Marrakesh Treaty for the Government of India. In her address at the Signing Ceremony, Mrs. Ish placed emphasis on India’s 2012 amendments to the Copyright Act, 1957, stating that these provisions were “in complete harmony” with the Marrakesh Treaty and that India was “well poised” to implement the same. Mrs.Ish also stated that India would be ratifying the treaty “very soon.” Most importantly perhaps, Mrs. Ish reminded the Committee that appropriate mechanisms to implement this treaty would have to be put in place; and that implementing it in its true spirit would require cooperation from all member states. The Ambassador of Greece, speaking on behalf of Greece and the European Union said that they wanted the Marrakesh Treaty to serve its original purpose of benefitting persons with print disabilities.

The European Blind Union (EBU) and the Secretary General of (and speaking on behalf of) the International Publishers’ Association (IPA) also made statements at the Signing Ceremony. EBU was of the opinion that while the signature was a “major, symbolic leap forward”, the next crucial step was to ensure its speedy ratification so that it might become effective. IPA echoed previous speakers on the point that ratification and implementation were but first steps, and that access would only be achieved as a result of “collaboration between rights organizations and rights holders.”

It will be interesting to see how these member states follow up on their signatures to the Marrakesh Treaty. The treaty will only be effective 3 months after at least 20 nations have ratified it.

For more details visit https://cis-india.org/a2k/blogs/france-greece-india-eu-sign-marrakesh-treaty

CIS Statement (on Technological Measures of Protection) at 27th SCCR on Limitations and Exceptions for Libraries and Archives

nehaa — 2014-05-02T11:18:23Z

The 27th Session of the WIPO Standing Committee on Copyright and Related Rights is being held in Geneva from April 28, 2014 to May 2, 2014. Nehaa Chaudhari, on behalf of CIS made the following statement on May 2, 2014.

This statement was in response to the Chairperson seeking NGO inputs specifically on "Technological Measures of Protection", which is topic 9 of Working Document SCCR 26/3.

Thank you, Mister Chair.

We believe that in an environment where much of the preservation and dissemination of knowledge by libraries and archives is in the digital format, having a limitation and exception provision as regards this particular provision of TPMs in this international instrument is integral; and we echo the Canadian Library Association and The Charted Institute of Library and Information Professionals among others on the need for such an exception.

TPMs have the potential to override any fair use or fair dealing exceptions in copyright; and would render much of the discussion that we have been having over the past two days and at earlier sessions of this Committee, redundant, were where such an exception not to be talked about along with other exceptions that we are discussing for libraries and archives. TPMs may prevent end users from using works in ways that are allowed under fair use or fair dealing provisions- permitted exceptions in copyright law. If for instance, TPMs were in place on master copies of files that were obtained by libraries and archives, these institutions would not be allowed to carry out basic preservation activities such as file format migration which in turn would limit the life span of the master files in question and also render access to these files difficult (if that's the word that I could use); which in turn defeats the very purpose of preservation and access to knowledge by libraries and archives.

Therefore Mr. Chair, we think that the suggestion echoed — that the suggestion made by KEI earlier, that Article 7 of the Marrakech Treaty that deals with TPMs would be a logical — could be a logical step forward, and we think that there is merit in that statement, and we would like to align ourselves with that statement.

Thank you, Mr. Chair.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-on-technological-measures-of-protection-27-sccr-on-limitations-exceptions-for-libraries-and-archives

CIS Statement (on Orphan Works, Retracted and Withdrawn Works, and Works out of Commerce) at 27th SCCR on Limitations and Exceptions for Libraries and Archives

nehaa — 2014-05-02T11:21:05Z

This statement was in response to the Chairperson seeking NGO inputs specifically on "Orphan Works, Retracted and Withdrawn Works, and Works Out of Commerce", which is topic 7 of Working Document SCCR 26/3.

Thank you very much, Mister Chair.

Mister Chair, we will be addressing this topic on two levels:

First, the need for limitations and exceptions for libraries and archives for orphan, retracted and withdrawn works and works out of commerce.

Second, the need for these limitations and exceptions to be a part of an international legal instrument.

On the first level, Mr. Chair- we are of the opinion that this limitation and exception is necessary for libraries and archives to be able to perform their key functions- the preservation and dissemination of knowledge.

This exception speaks to a very complex environment- One where the owner of a work cannot be located despite an exhaustive search and therefore digitazation cannot take place because to do so would be copyright infringment; one where the volumes of works that we’re speaking of are anywhere between 10 and 70 percent of the collections of some libraries (these figures are based on reports released by various libraries, library associations and others, that are available online); one, where rights information of works is lacking; and an environment where works have been withdrawn for a variety of reasons. The outcome which commonly arises as a result of all of these is that works are not available to the public, in turn affecting access to and the dissemination of knowledge and information, which is one of the basic purposes of copyright. Any interpretation or understanding of copyright ought to be one that aids in the achievement of this purpose, as opposed to deviating from it.

On the second level, Mr. Chair- we believe that there is a need for an international legal instrument to govern these limitations and exceptions.

We have heard the statements made to this Committee by various Hon’ble delegations today and at earlier sessions of this Committee. What emerges, as KEI said earlier, is that there is a lack of uniformity in national legislations and approaches in addressing this issue. What also emerges is that the current copyright framework in some developing and least developed countries does not adequately address these issues. Therefore, Mr. Chair, as we have stated at earlier Sessions of this Committee- to be able to harmonize these limitations and exceptions, to ensure that these limitations and exceptions have a cross border effect, and hopefully to have discussions that we have here are influence national law making and state practice (also, as KEI said earlier), we believe that an international legal instrument that deals with among others the exception we are discussing in Topic 7, is very important.

That’s all we have to say at the moment, Mr. Chair. Thank you very much.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-orphan-works-retracted-withdrawn-works-and-works-out-of-commerce-at-27-sccr-on-limitations-and-exceptions-for-libraries-and-archives

Transcripts of Discussions at WIPO SCCR 27

nehaa — 2014-05-25T04:50:59Z

We are providing archival copies of the transcripts of the 27th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from April 28, 2014 to May 2, 2014.

Note: This is an unedited transcript of the discussions at SCCR 27. We are hosting the text for archival purposes:

Day 1: April 28, 2014:

Day 2: April 29, 2014:

Day 3: April 30, 2014

Day 4: May 1, 2014

Day 5: May 2, 2014

Click for WIPO Signing Ceremony for Marrakesh Treaty

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-27-discussions-transcripts

CIS Statement at 27th SCCR on the WIPO Proposed Treaty for the Protection of Broadcasting Organizations

nehaa — 2014-05-01T14:27:48Z

This statement was in response to the Chairperson seeking NGO inputs specifically on the Scope of the Treaty and the Rights of Broadcasting Organizations. The statement makes references to a specific Working Document available here. CIS statement is quoted in Knowledge Ecology International on April 29, 2014 and in the Intellectual Property Watch on May 1, 2014.

Thank you, Mister Chair.

We have some concerns regarding the intended scope and language of Article 9 in Working Document SCCR/27/2 Rev. We believe that this expands the scope of this proposed treaty and is likely to have the effect of granting broadcasters rights over the content being carried and not just the signal. On this issue, we have two brief observations to make:

First- Article 9 envisages fixation and post fixation rights for broadcasting organizations- for instance among others, those of reproduction, distribution and public performance This, we believe is not within the mandate of this Committee, being as it is, inconsistent with a signal based approach.

Second- we express our reservations on the inclusion of “communication to the public” reflected in Article 9 Alternative B, which also relates to the definition of communication to the public under alternative to d of Article 5 of this document. Communication to the public is an element of copyright and governs the content layer, as distinct from the “broadcast” or “transmission” of a signal. Therefore, attempts to regulate “communication to the public” would not be consistent with a signal based approach, which we believe is the mandate binding on this Committee.

That is all, Mr. Chair. Thank you very much.

In response to CIS' statement, the Chair had this to say:

Thank you, CIS,. That was a very clear statement and gave us a very clear explanation of the situation. We will indeed take due account of that in the course of this afternoon's further discussion.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations

Signing and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled

nehaa — 2014-05-06T08:32:58Z

The Centre for Internet and Society sent the following letter to the Secretary, Ministry of Human Resource Development on March 14, 2014.

14 March 2014
Shri Ashok Thakur
Secretary, Ministry of Human Resource Development
Government of India
New Delhi

Dear Sir,

Subject: Signing and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled

I write to you on behalf of The Centre for Internet and Society, Bangalore, India (“CIS”). CIS is actively involved in work on accessibility[1] and access to knowledge[2]
The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”) was signed on June 28, 2013 at Marrakesh, Morocco. Reportedly, the Marrakesh Treaty was signed by over fifty countries on the final day of the Diplomatic Conference held to finalize this treaty, in late June, last year.
We are given to understand that reportedly[3] the Union Cabinet had in its meeting held at the end of last year cleared the Marrakesh Treaty for both, signature and ratification.
We write this letter to enquire about the status of India’s signing of the Marrakesh Treaty.
We strongly believe that the signing and ratification of the Marrakesh Treaty would be in India’s best interests, and in consonance with the amendments made to India’s copyright law in 2012, as reflected in India’s Closing Statement at Marrakesh on the Marrakesh Treaty.[4]
In light of this we request you to take the necessary steps for the signature and ratification of the Marrakesh Treaty as a consolidation of India’s long standing commitment to providing access to books and printed material to the blind, visually impaired and persons with other print disabilities.
We would be deeply obliged to provide you with any assistance necessary.

[1]. See http://cis-india.org/accessibility (last accessed 14 March, 2014).

[2]. See http://cis-india.org/a2k (last accessed 14 March, 2014).

[3]. Email correspondence from Dr. Sam Taraporevala, available here- https://groups.google.com/forum/#!topic/daisyforumofindia/tksq9kAdD0Q (last accessed 13 March, 2014). and here- http://lists.keionline.org/pipermail/marrakesh_lists.keionline.org/2013-November/000240.html (last accessed 13 March, 2014).; Email correspondence from Shamnad Basheer, available here- https://groups.google.com/forum/#!topic/spicyip/DupESMX2lkg (last accessed 13 March, 2014). See also http://spicyip.com/2013/12/marrakesh-blind-treaty-okayed-for-signature-and-ratification.html (last accessed 13 March, 2014).

[4]. See http://cis-india.org/a2k/blog/india-closing-statement-marrakesh-treaty-for-the-blind (last accessed 13 March, 2014).

For more details visit https://cis-india.org/a2k/blogs/signing-and-ratification-of-marrakesh-treaty-to-facilitate-access-to-published-works-for-persons-blind-visually-impaired-print-disabled

WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 3 of 3)

nehaa — 2014-04-01T09:48:59Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th session. This blog post (Part 3 of 3) summarizes Day 4 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

Day 5 – 26th SCCR

The agenda for the final day of the 26th SCCR was set as limitations and exceptions for educational and research institutions and for persons with other disabilities.

Trinidad and Tobago, speaking on behalf of the GRULAC group of nations, supported the idea of an international convention on this agenda. It was of the opinion that such an instrument would work for the benefit of the economic development and socioeconomic enablement of millions of people in the GRULAC region. Algeria, speaking on behalf of the African Group, emphasized the digitalization of education, research and living across the world and the impact that this has on the right of peoples of all nations to access knowledge. Responding directly to sustained opinion from the developed world of the absence of a need for an international convention, Algeria spoke about the need for balance and uniformity in regulations. This balance between the right to access knowledge and to protect intellectual property is often achieved through the concept of limitations and exceptions. This balance also requires uniformity because conflicting cross-border norms in our digitally borderless world would render the ameliorative effects of limitations and exceptions moot. Further, the Berne Convention has proved to be of minimal help since interpretations have emerged of its dissonance with the tools needed for distance education. Therefore, in order to cover the digital dimension of limitations and exceptions, an international treaty is critical. In the words of the Algerian delegate, “We know that the balance between Intellectual Property rights and public interest are generally translated by exceptions and limitations. Unfortunately in the area of education and scientific research, national legislation does not seek this balance in a uniform and comprehensive manner.”

The delegate also responded to concerns about the text proposed by the African Group. The proposal, he said, was a text-oriented tool to find an apt balance. Further, it was also imbibed with a certain degree of flexibility to allow for its adaption to the needs of development as understood by nations, various kinds of copyright protections and various treaties in literary and artistic property. Furthermore, the African Group wished for this text, if adopted, to move on the principle of consensus and expressed a willingness to incorporate any constructive concerns that delegates may have in order to stay true to the ideal of consensus-based diplomacy.

A number of developing and developed countries supported the need for greater discussion at the international paradigm on the topic of limitations and exceptions, and also the swift adoption of an international instrument in this respect. Kenya and the Islamic Republic of Iran put their weight behind the African Group, emphasizing similar values of digitalization of information and communication, right to access knowledge, public interest and need for an international instrument. Tunisia also supported the notion that an international instrument would lead to the harmonization of standards and benefit the international community. China came out in strong support of further negotiations. Russia noted that it was in support of a single document for limitations and exceptions that covers within its ambit the entire gamut of protections discussed at this forum. Further, it also supported the contention of the Japanese delegation that the international instrument should not include contentious issues such as instance liability.

It is also pertinent to note that Japan, on behalf of Group B, came out against the idea of a treaty based approach to the negotiations, much preferring “constructive work on principles and updating of studies by the Secretariat”. The European Union submitted that the extant international copyright framework was both adequate and ideal for the needs of both the digital and analog world of education, research and needs of persons with other disabilities. The EU proceeds to draw a distinction between the needs of educational and research institutions and persons with other disabilities vis-à-vis needs of persons with visual and print impairment. In drawing this distinction, it seeks to achieve principled coherence across its support for the Marrakech Treaty and its opposition to any treaty on limitations and exceptions. It expressed concern that the working document was not an accurate reflection of the views of those countries that were of the opinion that present negotiations should be confined to the sharing of national experiences. Given the diversity in domestic regulations, any international treaty should seek to achieve domestic regulatory harmony and then proceed, assuming that the need argument fails to hold water.

The Indian delegate submitted that the discussions were in furtherance of earlier deliberation on limitations and exceptions for libraries and archives. There was a dire need to understand libraries and education not in a parochial, institutional sense but in a broad and enabling manner to meet the needs of developing and least developed nations. Both the material and transmission should be covered in order for distance learning to be enabled in any meaningful manner. Further, it was also of the opinion that an expansion of ISP liability is needed, citing the IT Act in support of this.

At this point, the developing nations made their voice heard in opposition to the fundamental premise of the ongoing negotiations – that an international treaty is a worthwhile goal to work towards. Poland, on behalf of the CEBS Group, commecnced his statement by taking cognizance of the importance of educational and research institutions and activities in our society and economy. The delegate recognized the existence of the knowledge triangle of education, research and innovation. Proceedings from this premise, it was the view of the CEBS Group that the best way to hone this innovation is by establishing a robust and strong system of intellectual property. Further, it went on to draw the link between the critical activities of distance learning, collaborative research with the activities of publishing and other aspects of the creative sector. Copyright policies therefore have to also take into the account the economic and social effects of not enabling access to research. The CEBS Group argued for a balanced copyright approach. It went on to support the idea of each WIPO member incorporating enabling limitations and exceptions within their domestic copyright regimes through a mutual sharing of best practices and national experience using multilateral for a such as this one. It was of the belief that modern copyright systems should provide for efficacious licensing mechanisms that are flexible, supportive and enabling to education, research and teaching activities as well as the needs of persons with other disabilities. Supporting the values emphasized by the developing world does not necessarily require the adoption of a binding international instrument. It concluded that the need to develop a comprehensive understanding of limitations and exceptions should not come at the flexibility that is conventionally afforded to WIPO member states to determine their own educational, research and teaching policies and norms to enable the lived experience of persons with disabilities.

The United States started by submitting their own document – SCCR/23/4 – on objectives and principle for limitations and exceptions for libraries and archives. The US chose to further the CEBS submission by underscoring the potency of the extant copyright regime – Berne Convention 1886 and WIPO Copyright Treaty 1996. Both have a balance between copyright and education and have the promotion of education, research and teaching as their stated goals. Therefore, notwithstanding the contention that they are anachronistic given the digitalization of information and communication, it is possible to accommodate contemporary needs within existing regimes. The US stated that it was of the opinion that finding common ground on principles and an examination of the diverse national treatment of the issue of limitations and exceptions would render a more productive, positive solution than foisting a treaty or international legal instrument on the domestic regimes of WIPO members. It was of the opinion that this would “permit progress by promoting steps forward on shared goals and principles while enhancing international understanding and maintaining flexibility at the national level. We do not support work towards a treaty.” It also went on to voice concerns about the inclusion of controversial and broad areas of protection within the rubric of the treaty – topics such as public health and ISP liability were causing much consternation to the delegate of the United States. A plethora of reasons were advanced by the US that articulated its layered opposition to this entire process. There was a concern that given fundamental differences of opinion, inclusion of contentious protection would be pernicious to the negotiation itself. It was also of the opinion that a lot of the provisions had only incidental relevance to the central question of education and rights of persons with other disabilities would distract the nations from the purpose of the proposed international instrument. This proliferation of protections would in turn harm the considerable economic, social and political capital invested in the negotiation process.

Senegal affirmed the idea of an international agreement on limitations and exceptions. It believed that the contemporary is far removed from the world in which the Berne Convention and extant international copyright regime was conceptualized. Therefore, Senegal was in favour of a flexible international instrument that responded to digitalization and was proactive rather than reflexive. Sudan also threw its weight behind the African Group proposal and offered a scathing critique of the exclusivist tendencies of the contemporary copyright regime. It called for “efforts to break the current situation faced by certain countries in communication or in building the infrastructure and bridging the digital gap.

Columbia, on the other hand, spoke about the need to understand if there is a lacuna in the present international copyright regime and understand the implications of adding to existing corpus of limitations and exceptions.

At this juncture, the Chair opened the floor for contributions from civil society representatives. Knowledge Ecology International focussed its submissions on three foci – specific exceptions, three-step test and the corporate system. KEI acknowledged the raft of protections for limitations and exceptions within existing copyright structures but articulated the need for specific exceptions. Further, it reasoned out the incompatibility of the Berne three-step test with the needs of contemporary knowledge creation, research and access. Transplanting the Berne Convention to this context would render it moot and have far-reaching pernicious consequences on the international community’s reactions to dire questions of access particularly in the developing and developed world. KEI acknowledged the underlying premise of US/EU/Group B objections to an international instrument by pointing out the difference in national treatment of limitations and exceptions. As a response to this legitimate concern, it suggested that complimentary confidence building measures such as a multi-stakeholder platform work alongside the treaty negotiations so as to ensure that it is an inclusive process that alienates no stakeholder.

IFRRO came out in strong support of the position against an international treaty. It stated that in pursuit of limitations and exceptions, one must not lose sight of the legitimate rights that creators have over their work. Diluting that principle would do harm to the idea of copyright and by extension creative and innovative thought. In support of this contention, studies were cited that showed a causal link between IP protection and income of authors.

The Centre for Internet and Society underscored the value of universal access to education and knowledge. Information and communication technology in the contemporary carry the tantalizing prospect of the realization of this ideal without excessive expenditure. It is also critical for this access question to be all-inclusive, for “formal and informal institutions and for environments and in digital and non-digital formats”. The experience of developing and least developed nations is a feeling of exclusion from the silos of knowledge in the west and it falls upon the international community to disrupt these silos to ensure equitable access to knowledge and, as a consequence, power. Individuals in these countries not only have to spend more on each book but have to spend a higher proportion of household income on it vis-à-vis Western households. The present international copyright framework lacks the ability to facilitate the realization of this ideal for three reasons. First, the myopic and complex compulsory licensing provisions in the Berne Convention. Second, the incompatibility of the three step test to contemporary limitations and exceptions. And finally, the need for harmonization of national practices and facilitation of cross-border exchange of information and knowledge.

On being called on by the United States, Ecuador and Egypt, it was decided that the Secretariat would study the possibility of a study on the ambit of copyright and related rights as also limitations and exceptions for persons with disability and from the perspective of learning concerns. It was also decided that the Secretariat would update regional studies on limitations and exceptions for educational, research and teaching institutions.

The next session, SCCR 27, would focus on a discussion on exceptions and limitations with a focus on libraries and archives.

Draft Conclusions

The draft conclusions to this year’s SCCR was put up by the Chair for comments by all members. Belarus and CEBS fully supported the text and praised it for its balanced approach. The United States also supported it but requested an edit to Paragraph 6 Line 4 – a ‘to be defined’ in parenthesis after the words ‘on demand transmissions’. India expressed gratitude that everyone’s views were taken into account in the draft conclusions and asked for two edits. It stated that parts of the discussion on Article 9 were absent from the text. Further, the words beneficiaries in the draft conclusions was included when it had no definition in the document. Finally, it suggested that the word last line in paragraph 5 be changed to might or may. The Chair responded to India’s concerns on paragraph 5 by directing attention to the word ‘if’ in the text. Ecuador and Brazil both supported India’s opinion that the word should be may or might and not should. India submitted that this is not simply an editorial or cosmetic change but one that reflected a substantive issue. Ecuador also stated that countries might in the future want to include internet transmissions and the word should conditions the negotiations, lending it a restrictive air. Brazil also stated that it was crucial for the text to be both balanced and reflective of every stakeholder’s concerns. India stated that this was a demand from two or three groups. The lack of consensus on this point implies that the word should be may and not should. The EU, US, Japan, Switzerland and Poland (on behalf of the CEBS) supported the text in toto- a tacit snub to India’s suggestion. Italy stated that the word ‘if’ in the text provides the kind of flexibility that India is seeking and that altering the word should to may would rob the provision of meaning and be grammatically grotesque. Looking for alternatives, India also requested that the words ‘at least’ be deleted in order for some aspect of its concerns to be taken into account. Belarus characterized the text as entirely factual and accurate portrayal of the negotiations that took place-gave its support to the entire text. The Chair then offered an explanation of the terminology and showed how the wording allowed for both possibilities of inclusion and exclusion of transmission over the internet.

Indian then turned attention to the lack of a definition to the word beneficiaries. The Chair acknowledged India’s concerns and accepted the US suggestion to add the words ‘to be defined’ after both beneficiaries and on demand transmissions. Brazil also suggested traditional broadcasting/cablecasting or broadcasting/cablecasting organizations in the traditional sense as possible ways to word the text. The EU requested the Chair for some language suggestions on how best to resolve this. The proposals (and not issues, after a request from India) on Articles 5,6,7,9 and 12 were added to the annex. After the incorporation of all these concerns and compromises, the Chair approved this section.

Libraries and Archives

On the limitations and exceptions for libraries and archives, the United States made two suggestions. First, that the word may be removed from paragraph 18 as it detracta from the nature of the deliberation on that point. Second, the inclusion of the phrase “other proposals submitted” in paragraph 21. Brazil stated that it stood for the draft conclusions to be a clear picture of the positions adopted by WIPO members. In this light, it called for the inclusion of the names of member states that wished to discuss national laws in paragraph instead of the nebulous phrase ‘some member states’. He also requested a clarification on the last line of paragraph 16. Trinidad and Taboga indicated that it was adopting a flexible approach; it supported the suggestions by the US and Brazil but were also willing to work with the text.

The European Union wanted the word ‘also’ to be removed from paragraph 14. It also suggested that the final sentence of paragraph 16 be “these studies will serve as information and work resources for the committee”. Ecuador agreed with the US working document. It was of the opinion that the document should better reflect a spirit of compromise. On limitations and exceptions for museums, given the study reflected in the plenary for persons with other disabilities – there was a discrepancy between the discussions and the text. One was with the understanding that it was subject to the availability of resources while the other implied that it was mandatory in nature. The EU wanted licensing to be included in the text. The US thanked Ecuador for working out a compromise on the language and accepted it. Algeria expressed its desire to stick to the language proposed by the Chair on paragraph 13.

The Brazilian delegate called for flexibility on paragraph 14 in light of the proposal by the EU delegation on the point of discussion on national laws. The United States responded that it didn’t quite follow the position being adopted by the Brazilian delegate on paragraph 14 and much preferred a return to the text originally adopted by the Chair. Egypt pointed out the possible confusion that could emerge between paragraph 16 and 21, and in light of this expressed a willingness to engage in a full scale discussion on proposals from Canada and the EU. The EU responded directly to paragraph 14 in particular. It spoke out against the idea of listing the WIPO members that asked for a discussion on national laws as this would be against WIPO practice both in other parts of the same document as well as in other deliberations. EU stated that it saw no need to list out WIPO members and stood firmly against it. Brazil responded with a modicum of alarm at the opposition to the simple proposal to introduce the elements of precision in a document that is meant to be factual. It is far better for readers to understand the precise picture rather than having a general understanding of issues. Italy, Belarus and Greece threw their collective weight behind the EU opposition to this. All stated that this would be highly inappropriate and would amount to the singling out of the EU and other nations that took a stance, something that they didn’t see a need for. The US proposed a compromise where instead of naming the member states, ‘some member states’ would be used. Brazil said that this term was not just nebulous but could give the wrong impression to future delegates of the precise number of states that wished for discussion on national laws. Ecuador played the role of the voice of reason and stated that the progress of negotiations shouldn’t be hampered because of such a cosmetic set of differences. There was no need for the level of precision that was exemplified by the naming of WIPO members. Instead, it stated that it advocated for a general references to nations that asked for a discussion on national laws. This general reference was supported by Algeria and finally adopted by the Chair as a compromise between the opposing factions. On paragraph 16, the Chair called for the part on limitations and exceptions on museums to be deleted with the understanding that there would be an update by Professor Kenneth Cruz that would include all aspects of this issue. On paragraph 14, the Chair was in favour of the compromise suggested by the United States. It stated that in using the word ‘some’ no particular number or indication thereof was intended and that caveat was always there; instead what was only meant through the word ‘some’ was that the number of was more than one. Asked for Brazil to show some flexibility in this situation. Egypt raised the important issue of not conflating the fundamental disagreement on the nature of the proposed instrument and the desire to have discussions on national laws. It stated that in case both were being included, they be mentioned in separate paragraphs because a conflation would lead to misplaced conclusions being drawn.

Deliberations on paragraph 16 ensued and the Chair clarified that on paragraph 16, the first and third sentence were being retained while the second was done away with. Ecuador asked for thereto be no confusion between studies on limitations and exceptions and those on museums. Its objection does not extend to the latter. The Chair suggested that all references to museums be deleted. Algeria wanted the words on preparation not being delayed to be retained and applied to all studies being proposed. US agreed with the Chair’s proposal but added that perhaps a separate study on limitations and exceptions on museums be included. Algeria insisted that this principle be applicable to all studies and not just studies on museums. The Chair stated that a separate study on limitations and exceptions for museums be included with the understanding that this would not delay general discussions on limitations and exceptions. The last sentence was also retained. With this, deliberations on this topic were closed.

Limitations and Exceptions For Educational and Research Institutions and for Persons with Other Disabilities

The European Union delegate stated that it was in support of the inclusion of the point on licensing as an appropriate point in the text. Sharing Algeria’s concern, it also called for the deletion of the word ‘understood’ in paragraph 23. Algeria had earlier raised a problem with the use of the word ‘understood’, preferring the phrase ‘agreed on’. The EU also called for the text to be accurate reflection of the negotiations. Brazil responded to the concerns of the EU delegate by stating that he would not be in support of a suggestion that this document not be the basis for future work on this topic. Ecuador supported Brazil’s point on this being a text-based negotiations and that this should be the basis for future deliberations. Brazil also expressed a bewilderment at the EU insistence of the inclusion of the point on licensing. It asked for its relevance in an agreement on educational institutions; a clarification was sought from the EU. The EU responded that it was of the opinion that we’re dealing with related subjects that deserve equal treatment. In this context, since licensing was included in the previous agreement, it must also be reflected in these conclusions.

Egypt supported the Chair’s language in paragraph 23. Further, it went on to attempt a compromise by suggesting that this text be not the basis for future text-based work but a basis. This would lend the issue a degree of much-needed flexibility. The US, on the side, supported the EU on including licensing schemes. The EU responded favourably to the compromise suggested by Egypt and said that a text where the word the is replaced by a is one that is agreeable to the EU.

The Chair outlined the three issues as

The word ‘the’ in Item 27
The inclusion of the point on licensing and the tussle between the EU (arguing for inclusion, supported by the US) and Brazil (against the inclusion).
The point of this being the basis for future text-based negotiations and the compromise suggested by Egypt and accepted by the EU.

A compromise was worked out on licensing where the words “but other delegations do not see it that way” be included as a rider. Differences on points 1 and 3 were also ironed out as the Egyptian compromise was accepted. On this point, the third section was approved and deliberations came to an end.

Other Matters

It was announced that the reports of the Stakeholders’ Platform – SCCR/26/5 and SCCR/26/7 – be put up on the web page. Finally, suggestions were wielded and discussed for future meetings of the SCCR.

It was agreed that SCCR 27 would be dedicated to the protection of broadcasting organizations (two-and-half days), limitations and exceptions (two days) and conclusions and discussions on future work (half a day).

Additional Links

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-3

Broadcast Treaty: An Overview

nehaa — 2014-03-20T09:55:45Z

In this blog post, CIS intern Varun Baliga, a third year law student at NALSAR University of Law, Hyderabad, presents an overview of the Treaty for the Protection of Broadcasting Organizations, currently being deliberated by nations at the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR).

Negotiations on the Treaty for the Protection of Broadcasting Organizations (“Broadcast Treaty”) (draft circulated for discussion at the 26^th SCCR available here- http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf) were initiated for the purpose of protecting such organizations from signal piracy. For a broadcasting organization, their signal is the prime source of revenue. Therefore, state intervention at the international level was required to quell the transnational issue of signal piracy. Moves by a majority of nations indicated that the mood was in favour of drafting a treaty that would codify certain protections for broadcasting organizations in the form of rights. The obvious concerns that arose were the nature and scope of those rights. Overbroad rights often posed significant obstacles to the free flow of information. A number of developing nations were concerned that the latest move was a further entrenchment of the colonization of information and knowledge. It was in the common interest to balance the dire need to combat signal piracy in order to maintain the integrity of the business of broadcasting organizations while at the same time ensuring that it doesn’t come at the cost of the access to the information itself.

From the perspective of the Global South, the focus of the text was Article that protected possible action that states may take in the public interest. The South was interested in elevating the status of the public interest to that of an aspiration that states must seek to live up to. So, public interest must continue to guide even negotiations that seek to protect the interests of multinational corporations. The Broadcast Treaty also protects against the restriction of free flow of technology and access to the same in Article 4. One of the sticking points of negotiations has been the nature and scope of the protection that is to be offered to broadcasting organizations. India, among other countries, has advocated for a strict signal-based approach to the protection. It opines that protection should be offered to the signal alone and not the subject matter that is carried by the signal. Many nations of the developed world look at this as a distinction without a difference. There has also been a strong push from the South to limit protection only to transmission and not cover the retransmission of signals within the aegis of the treaty. Another cleavage of opinion has been on definitional concerns that have plagued the negotiations ever since they commenced. Institutions such as Knowledge Ecology International among others have noted with caution the wide meanings conferred on beneficiaries of protection. Understanding broadcasting organizations and cablecasting organizations in an all-encompassing way would result in not just the proliferation of rights, thereby harming the sanctity associated with the concept, but would also lead to the manifestation of those rights on contexts that harm free speech and access to information. For example, the protection of the rights of broadcasting organizations on the internet could play out in a pernicious fashion, particularly since the internet space has long been one of open and free access.

Many countries, including India, Brazil and South Africa, have questioned the need for the treaty in the first place. Adopting this position doesn’t mean a devaluation of the harms of signal piracy. On the other hand, questions have been raised as to whether the creation of rights is the most effective, or even the right, solution. The harms of this problem-solution mismatch mean that the stakes are high; therefore, subjecting this treaty to critical scrutiny assumes great importance.

India, South Africa and the entire bloc has also argued against the inclusion of webcasts and netcasts in the spectrum of rights being conferred on broadcasting organizations. Broadcasting and webcasting work on completely different investment models and don’t work on the same kind of infrastructure. For that and other speech and access reasons, protection should be given, it was argued, only for traditional transmission of the signal. Consensus was ultimately achieved with the US agreeing that the focus of the treaty should be “true signal piracy, real-time transmission of the signal to the public without authorization".[1]

The Centre for Internet and Society has expressed its reservations about the treaty in no uncertain terms in the past. The underlying philosophy has consistently been a robust signal-based approach to the treaty. A consequence of this would be no term of protection for signals since the rights would exist only for infinitesimal amount of time that the signal does. The absence of a term of protection would also preclude concerns about harm to free flow of information from creeping up. CIS noted that there was a need for greater clarity on the meaning of ‘mere retransmissions’ which would not be granted any rights in the April 2007 Non-Paper circulated for the delegates. When the transmission is over a computer networks, there should be inkling of doubt as to the exclusion of both transmission and retransmission from the ambit of protection. Finally, it has called for a different structure of limitations and exceptions to be conceptualized for the treaty. A simplistic transplantation of the Berne Convention provisions would be ignorant of the particular needs of broadcasting. It is critical that the limitations and exceptions be actualized in a manner that is enabling and empowering for the most vulnerable stakeholders.

[1]. http://keionline.org/node/1701

For more details visit https://cis-india.org/a2k/blogs/broadcast-treaty-an-overview

WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 2 of 3)

nehaa — 2014-03-20T04:52:53Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th session. This blog post (Part 2 of 3) summarizes Days 3 and 4 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

26th SCCR – Consolidated Notes

Day 3

The Chair commenced proceedings by noting the need to take stock of the work done over the course of the first two days of proceedings. He stated that we needed to see the points of agreement as well as sticking points that persisted in order to chart a path towards resolution. There was an urgent need for clarity.

The floor was opened to Delegations and Regional Groups. The document before the countries is the one on draft conclusions for the discussions surrounding the Broadcast Treaty.

Belarus starts by expressing its support for the document before it and is ready to engage with any proposals that nations might have on it. Poland wanted the wording changed to broadcasting an cablecasting organizations in the traditional sense, but expressed its support for the document otherwise. A few other delegations, such as the one from Trinidad and Tobago, also expressed unease at the terminology of ‘traditional broadcasting organizations” in the document and much preferred broadcasting and cablecasting organizations in the traditional sense. Notwithstanding these concerns, there was considerable support for the draft conclusions.

The EU wants its discussions on transmissions over the internet to also be included as a part of the draft conclusions.

Libraries and Archives

Trinidad and Tobago expressed its full support for the exceptions and limitations for libraries and archives. They were keen to “close this gap to strengthen the copyright system as well as the human and collective rights for the benefit of creators and users alike”. It stated that the progress made in this regard was entirely consistentwith the Millennium Development Goals and the Development Agenda of WIPO. The CEBS group also came out in support of this framework. Further, it added that it would benefit greatly from the sharing of national experiences in this matter. It was stated that the modern copyright system should have a licensing system that is supportive of libraries, archives and other every day research. CEBS was sceptical however of the need to enter into any sort of international treaty in this regard. The delegate from Bangladesh pointed out the acute need for this limitation and exception particularly from the perspective of a developing nation in dire need of free flow of information. In this context, the Indian delegate was invited to make comments. The EU put on record its opposition to any sort of binding international instrument in this regard, and they wished to see this desire reflected in the title of the document. Iran called for the commencement of text-based negotiation since it was fairly clear that there was a need for an international instrument in this matter. Colombia concluded by stating that access to knowledge should be the guiding principle for the exceptions and limitations. It was very important for the libraries to fulfil the public interest for there to be copyright protection to its activities. It stresses however the need to continue to provide incentive and legitimate copyright protection even within this framework.

Day 4

Discussions continued on the first topic of preservation as found in the SCCR/26/3 which focusses on exceptions and limitations enabling libraries and archives. For this session, the Chair outlined the issue up for comments as the right of reproduction and safeguarding copies.

Azerbaijan, speaking for the first time, stated that it took cognizance of the importance of exceptions and limitations and supported an international instrument on it. The purpose of limitations and exceptions should be to allow librarians and archives to preserve the documents. The documents protected should be used solely for research purposes and must be in accordance with fair practice. Australia clarified the role of preservation to be the continuing availability of physical and digital works already held in the collections of a library or archive for the benefit of present or past users. Critical to be very specific when talking about preservation in order to prevent the proliferation of rights. It stated that it was yet to be convinced of the need for an international instrument. Belarus noted that it supported the need for an international legislation. It supported the formulation of rules in this regard on the basis of the three step test, in order to maintain the balance of interests at play. It is imperative that strict rules of interpretation are employed while introducing this into domestic legislation in order to avoid ambiguous approaches that will lead to the abuse of the freedoms codified. The non-commercial and non-profit making nature of libraries and archives were emphasized. In explaining the merits of the three step test that would facilitate the entry of this international document into domestic law, Poland shared its national experiences in this regard with the group. Brazil suggested that the concern of proliferation of works voiced by many countries could be resolved by engaging in deliberations that result in clear definitions. It suggested that the intervention made by Canada be made into an annex as a subject that can discussed in the text in the future. Russia noted that the Berne Convention is the bedrock of international intellectual property and copyright law and coupled with reference to national legislation would help in reaching a common understanding on preservation. Morocco was in support of an international legislation since dealing with the problem nationally would be woeful piecemeal approach. Senegal pointed out definitional issues that were plaguing the discussion. If there was no common ground on the idea of a library and an archive, then the discussions on exceptions and limitations would not break any new ground. Therefore, the discussions appeared to be proceeding on two tracks – nature and scope of the exceptions and limitations for libraries and archives and the need for an international instrument that went beyond national legislation. The Chair opened comments on the latter track since that is foundational. The United States reiterated its opposition to any agreement that transcended national legislation. It also wished to introduce a bit of complexity in its discussions by pointing out that its domestic copyright law had no understanding of a library or archive. Therefore, it was going to be difficult to come to an understanding at the international level when national legislations themselves have not reached that point in their trajectory. Both El Salvador and Ecuador tacitly stated that they were in favour of an international legislation by continuing the discussion on merits. El Salvador opined that there was some degree of good faith involved and that was unavoidable in the pursuit of the desire to facilitate the sharing of knowledge. Greece stated that limitations and exceptions should only be applicable when an additional copy is not available in the market. Significantly, it stated that libraries and archives could enter into agreements with the rights holders by themselves. A flexible international framework was what Greece was aiming at, not an international legislation that went beyond national legislation. Both Greece and the EU suggested using the EU Copyright Directive as a starting point for defining libraries and archives. It asked for the flexibility it already had within the EU framework to be respected. Italy stated that it saw no international interest in a transnational agreement on exceptions and limitations. India emphasized the point that there was an international interest in preserving the culture of countries. The international dimension was in the context of cross-border cultural exchange. Congo came out in support of an international agreement as well. There was some degree of opposition from Greece that questioned India on why either manuscripts on cross-border cultural exchange had anything to do with preservation. In its opinion, those two goals could be achieved even without the formation of an international agreement on exceptions and limitations. India responded by clarifying that it did not use the example about ancient manuscripts in the context of copyright but the existence of an international interest in the matter of preservation. The issue of preservation of works within a library are for present and future use. This use, in today’s globalized world, is not just for the citizens of that country but for researchers the world over. In order to allow for thus cultural exchange, it was imperative that the copyright of the work not come in the way. Hence, there was the need for an international, and not merely national, legislation on the issue.

On France’s concern about Ecuador’s vague understanding of fair use, Ecuador clarified that this would be the same as in the Berne Convention and the three step test would apply. Finland, Jordan and Senegal then shared their countries’ national experience in this regard.

The Chair concluded the discussion on the first topic by articulating what he saw as a principle that is in the common agreement of all. In order to ensure that libraries and archives can develop their public service of the preservation of works in order to preserve knowledge and heritage, we need exceptions and limitations. Certain circumstances and guarantees are yet to be discussed and disagreements persist but none that threaten the need for a discussion.

Topic 2 – Right of Reproduction and Safeguarding of Copies

The Secretariat noted that there were proposals from the African Group, Brazil, Ecuador, India and the United States.

The EU opened the discussion with the suggestion that the title of this topic should only be focussed on the right to reproduction. This was in light of the nature of the proposals made by the various groups and nations. Ecuador situated the debate on the right to reproduction within the broader framework of limitations and exceptions for libraries and archives. It was imperative, it stated, that a right for libraries be carved out in order to facilitate the important social role they discharge. France added to the concern voiced by the EU in stating that it felt that safeguarding was already covered within the ambit of the previous topic. Brazil responded to this by drawing a clear cut distinction between the first and second topics. The right of reproduction was applicable to libraries while safeguarding was for archives. Both the role of the library and that of the archive merit discussion, it was emphasized, and both should equally be included in the second topic. Senegal supported the idea of an inclusive topic that mentions both the right of reproduction and safeguarding of copies. It stated that a distinct right of safeguarding was crucial at a time when vital cultural artefacts are vulnerable to destruction. The example of the museum in Timbuktu that was ravaged by militants leading to the irreparable loss of invaluable manuscripts was cited in support.

Italy voiced a two-pronged opposition to the very idea of articulating a right to reproduction. First, it stated that allowing for reproduction, even in University libraries, would open the floodgates to copyright violations. It was afraid that copyrighted material would be reproduced within the library which would then lead to that material appearing on for a not envisaged within the rubric of the treaty. Second, it was against the extension of the idea of research to private research. The transmission of the reproduced material to third parties would lead to a loss of revenue to the rights holder in question. To Italy, the latter was even more egregious since the former at least allowed for the possibility of, via the money paid for the reproduction, monetary compensation of the rights holder. The latter however had no room for this to be effected.

Belarus supported the EU position on the exclusion of safeguarding from the present discussions. Further, Belarus stressed that it wanted a caveat to the exception for scientific and educational research. It wanted the kind of material that would fall under the exception to be limited to “just articles or short works or excerpts from books” since “the student or researcher probably doesn’t need the whole book”.

Brazil assuaged the concerns of the right holders by pointing out that its proposal in paragraph 2 makes national legislation the focus. Fuether, it added that with respect to the international dimension to the rights, the GA had already stated that there would be an “international legal instrument”. Therefore, the multilateral nature of both the subject matter and scope of the negotiations is beyond the pale of doubt.

The representative from the International Council of Museums noted that all of the rights were equally applicable to museums as well. Very often, museums suffered from a lack of uniformity and harmonization of rules across multiple jurisdictions. This was the need it saw for an international treaty on the issue.

The Chair summed up the discussions. Despite the emergence of any sort of consensus, most countries had agreed for a need to have exceptions and limitations for libraries and archives. Further, a right to reproduction of works for libraries was recognized to facilitate the reproduction of certain works under certain conditions for the purposes of research. The scope of none of these terms have been agreed upon by states nor has there been much agreement on whether this extends to distribution of the material and to what extent. The EU and the USA mentioned that they did not think there was a need for an international agreement on this and the GA wording was not binding in any sense.

Topic 3 – Legal Deposit

The Secretariat noted that there were proposals from the African Group and India on this. This was not received very warmly by the delegates. Most thought it was out of the place in the current discussions. The US opposed the need for any discussion at the international level since the issues in question were codified in domestic law to varying degrees. Therefore, it could not be said that it was “ripe for harmonization”. Colombia found the concept of legal deposit “strange” in a document on exceptions and limitations.

Topic 4 – Library Lending

The Secretariat noted that there were proposals from the African Group, India, Brazil, Ecuador and Uruguay.

Ecuador explained in great detail that the reason behind this was to allow for libraries to lend copyrighted works to its users or to another library. Very often, research necessitates the movement of the physical copy of a particular work. In other instances, the presence of a particular copyrighted work in a specific library has great symbolic and cultural value, apart from its patent value for research activities. In furtherance of its earlier objections, Italy explained that lending could also lead to egregious copyright violations. Along these lines, it objected to the idea of digital lending since it went against the grain of lending because returning a digital copy was not possible or meaningful. The International Federation of Libraries, representative from civil society, pointed out that there were technological tools that would prevent the unintended and harmful proliferation of lent digital copies. Digital lending could take place by passing along a password encrypted digital copy that would expire after a set period of time.

Greece furthered the harm that this would have on copyrighted works by asking why anybody would want to get the original if lending is applied to the realm of films via digital transmission. Responding to the African Group proposal, it asked how this was in conformity with the three step test. The US responded by drawing a positive causal link between lending and commercial purchase of the product. Again, the Chair summed up by stating that agreement was that exceptions and limitations must extend to library lending but agreement on the scope and nature of this extension evaded consensus.

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WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 1 of 3)

nehaa — 2014-03-20T04:49:55Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th Session. This blog post (Part 1 of 3) summarizes Days 1 and 2 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

26th SCCR – Consolidated Notes of the Proceedings

Day 1
There are three salient issues outlined as part of the agenda – i) work towards a treaty for the protection of broadcasting organizations, ii) exceptions and limitations for libraries and archives and for iii) educational and research institutions and for persons with other disabilities. [1] The number of days to be spent deliberating on each issue was also outlined – two days each on the first two issues and one day on the last issue i.e. exceptions and limitations for educational and research institutions.

The Chair of the SCCR was elected to be Mr. Martin Moscoso, head of copyright for Peru and Chair of the Drafting Group for the Marrakeech Treaty.

Opening Statements by Regional Coordinators
Trinidad and Tobago
The representative commenced his speech by pledging the commitment of the Latin American and Caribbean group of states to work on limitations and exceptions for libraries and archives, educational and research institutions and for persons with other disabilities. It emphasized the need for coherence between the activities of this group and the Millennium Development Goals of the UN and the Development Agenda of WIPO. Effecting the vision articulated by the agenda of this SCCR will help bring about this coherence. Finally, he added that the Group wished to discuss the broadcasting treaty on the basis of the mandate offered by the 2007 General Assembly. This mandate was to pursue a “signal-based approach” to the drafting process of any new treaty.

Poland
On behalf of the Central European and Baltic states, the representative reaffirmed the group’s support for establishing standards for the protection of broadcasting organizations in the form of a binding treaty. To this end, the Group put forth its proposal for a Diplomatic Conference in 2015 to the end of negotiating and implementing such a treaty. Finally, best practices were also emphasized and, pertinently, the Group indicated that it understood that the digitalized and globalized business and information economy of the contemporary necessitated a licensing of rights that was adequately reflective of its needs.

Japan
On behalf of Group B, Japan emphasized the importance the Group placed on text based discussions to the developing treaty mechanism for the protection of broadcasting organizations. It noted that any further understanding or future negotiations must rest on a common understanding of critical foundational issues such as definitions, scope of application of the instruments and the spectrum of rights or protections to be granted. Finally, an offer to share experience for the optimum functioning of limitations and exceptions was made. It was the opinion of Group B that the extant copyright framework enabled the limitations and exceptions to play out both in the digital and analogue world.

Bangladesh
On behalf of the Pacific Group, Bangladesh underscored the importance of situating all countries’ concerns and deliberations on the bedrock of the social and economic development needs of the Pacific Group nations. It identified the responsibility of countries to ensure that the limitations and exceptions were articulated in a manner that copyrighted works were made available to individuals in need. Thus, its vision was for an inclusive and comprehensive framework that catered to the needs of all stakeholders, particularly the most vulnerable and needy. To this end, it saw new international legal instruments as the means.

Russia
The Russian representative supported the 2015 Diplomatic Conference time frame and emphasized the value of transparency throughout the course of the proceedings.

Algeria
On behalf of the African Group, the signal-based approach was affirmed as the basis for any treaty. The needs of the developing countries were also given special importance. While the exchange if best practices and experience is helpful, the Group does not see it as a substitute for tangible, binding treaty provisions.

European Union
Representative called for the provisions of the Marrakeesh Treaty to be implemented. The existing treaty framework was understood to be sufficient for the full realization of the limitations and exceptions in the various realms envisaged by the outlined agenda. It was necessary, it opined, for copyright to continue to remain a key incentive for creative processes. In light of this, no further international legal instruments were necessary. Finally, the licensing of rights was also within the scope of this body.

Protection by Broadcasting Organizations
The working document for the treaty for the protection of broadcasting organizations[2] was declared to be the basis for any future text-based deliberation.

Proposal by Japan – SCCR/26/6[3]
The Representative outlined the purpose behind the proposal at the very outset as a step forward from the common understanding regarding the privacy of the broadcasting towards establishing the contours of the scope of application. The proposal was for the introduction of Article 6bis that included two things – first, that signal transmitted over computer networks be included within the aegis of the treaty with an exception carved out for on demand transmission signal and second, flexibility for states in deciding to afford protection for transmission signals over networks by the broadcasting organizations; in other words, the idea of national treatment in the realm of transmission signals.

While welcoming the Japanese proposal, the US Representative noted that the text was still open to changes. Given limited time for deliberations on this, he culled out three points of focus that would aid a streamlined approach to the text: beneficiaries of protection, objects of protection and the scope of the rights.

The EU had two questions directed at the Japanese proposal: whether the two alternatives proposed by Japan (simultaneous and unchanged transmission) have a different or same meaning and whether the nature of the protection is an entirely optional one or at least partially mandatory? Japan later clarified that if the former alternative had webcasting as subject to the protection of the treaty and the latter used the scope of application of this treaty.

Iran highlighted the issue of conflict of treaty protections with the legitimate interests of other stakeholders and urged that this conflict situation should never arise. Further, it added that the definition of broadcasting should not be an anachronistic one and should adapt to the needs of today’s broadcasting organizations and should, in no way, hinder free access to knowledge and information by society.

Venezuela adopted a diametrically opposite stance to most other countries on the issue. It was not of the opinion that broadcasting organizations are entities worthy of rights protection. It stated that the treaty seemed to be more for the benefit of multi-national organizations rather than member states and its citizens.

Day 2
The Chair outlined the agenda of the meeting as comments on Articles 6 and 7 which is to do with the scope of the treaty and beneficiaries respectively. Further, it was also put forth that the session would attempt to resolve and break common ground on the various discussions had in the regional groups in the previous day. Finally, deliberations would be focussed on Article 5 followed by Article 9.

The Japanese delegate outlined the conclusions of his groups’ deliberations. They want both beneficiaries and broadcasting to be included within the scope of the treaty. The country is of the view that all obligations should be made optional rather than obligatory. There is also general consensus, subject to final wording and definition of on demand, for an exceptions to be culled out for on demand transmission. Belarus expressed its wish for the scope of the treaty to be extended to both broadcasting and cablecasting organizations. It states in no uncertain terms that the signal should be protected. The proposal was to use the terminology broadcasting organizations and rights holding organization. Signals transmitted over satellite must also be protected in the model envisaged by this Group. Its application to the internet was also affirmed; pertinent, since this is a sticking point between the views of the nations and that of important third party stakeholders to this deliberative process. It did mention a clear caveat that these rights should, in no way, affect the rights of the author of the work or that of the users. Responding, in some sense directly to the words of the Venezuelan delegate’s comments the previous day, the Belarusian delegate stressed that his Group does support the idea of conferring rights on broadcasting organizations.

India reminded the nations present that the 2007 mandate, on the basis of which this meeting was being conducted, was for work towards a treaty for the protection of broadcasting and cablecasting organizations using a signal-based approach. A question was raised as to whether the current discussion transcended the limits of this mandate. Chair noted this observation and asked for the views of other states’ on the matter of mandate. The response of the delegate from Trinidad and Tobago on behalf of the group of Latin American and Caribbean states was non-committal in his answer as he briefed the chair about the difference of opinion on this matter within his group.

Moving on to the scope of the application of this treaty and the beneficiaries, it was the view of the CEBS Group, as articulated by the Polish delegate, that the protection afforded by the treaty should be effective, contemporary and technology neutral, else its purpose would be defeated by its obsoleteness. It reiterated that the transmission via the internet must also be included within the scope of the treaty, because that is a major route of circumvention that could be used to undermine the raison d’etre of the treaty. It was also of the opinion that the difference of opinion on webcasting could be overcome using the opt-in system envisaged by the Japanese proposal. CEBS was also of the firm view that, notwithstanding any foundational disagreements, those on demand transmissions that are based on multiple transmissions at the same time should be included within the scope of the protection. On behalf of the African Group, Senegal concerned about questions of mandate. It said that the strict, textual or broad, liberal interpretation of the words of 2007 mandate should be a sine qua non to any further deliberations. The Chair noted this concern and said that the floor was open to this issue as well. The EU stated that simulcasting should be the basic minimum and obligatory minimum, of any protection. It stated that it was open to discussing the extension of the protections to other transmission as its saw merit in such extension. Finally, it clarified that since current discussions were on transmissions and the scope of protection they were well within the 2007 mandate – protection of broadcasting and cablecasting organizations in the traditional sense.

The Chair then turned over the floor for comments by individual countries. Senegal commenced by posing a question to Belarus on the nature of reservations that it envisaged in light of its proposal to protect transmissions, no matter what its nature. Belarus responded that the protection definitely extends to transmissions over the internet but that does not preclude a discussion on deferred retransmissions. Reservations should ideally be outlined be provided for in the treaty itself. However, they can also be in the form of national legislation but it made it clear that such a stance would be a compromise for its Group and would be considered only if nations thought it necessary.

The floor was yielded to Canada. It noted that it is encouraged by the deliberations it had witnessed so far surrounding the various proposals received. It emphasized the value of the optional approach envisioned by Japan, as it embodied the critical component of successful negotiations – the embracing and incorporation of difference of opinion. Russia underscored its support for the unified approach of Belarus. Russia also wished to implement the kind of model that was in the Audiovisual Treaty and the Marrakeech Treaty. It wanted a reservation in the treaty itself that would establish a minimum standard of protection for cablecasting organizations as per national legislation. This would balance out the views of those in favour of an optional system against those who prefer an entirely mandatory one. Mexico welcomes the Japanese proposal and seemed to be generally in favour of it. Australia outlined three distinct issues. It was in favour of protection of transmission over the internet and saw simulcasting as a minimum obligatory protection. Its support for the Japanese proposal would depend on the definition of on demand services. Finally, Australia underlined that this entire discussion should be careful in how it understood the idea of traditional broadcasters and cablecasters. Keen to introduce an air of pragmatism to talk about the 2007 mandate, Kenya pointed out that the concept of transmission has undergone a change since 2007 and since the mandate was one that was conferred by the countries present at this discussion, there was no need to be very rigid about it. It wanted a technology neutral approach. Kenya was also keen on clarity on whether this international treaty was meant to build in existing international protections or was intended to be a stand-alone replacement for any protections that may exist for certain or all countries. It welcomes the flexibility that the Japanese proposal offered. The discussion veered in the direction of mandate yet again as India noted that any change to the mandate must be done by the GA alone. Else, the reinterpretation could be in such a manner as to allow for a treaty to emerge under the rubric of this mandate with countries reserving the freedom to enter into another treaty on the same matter in the future. It spelled out that it was crucial to remain within the confines of the GA mandate through the course of these proceedings.

The US delegate opined that the proceedings were completely in conformity with the mandate of the 2007 General Assembly. It reiterated its 2007 desire to have a clear common definition of a broadcasting and cablecasting organization. Notwithstanding that, simply because of a different mode of transmission, internet and webcasting do not fall outside the ambit of protection. As far as the signal based approach is concerned, the US interpreted that to mean the signal itself and nothing to do with the content – an issue the nations are grappling with at present.

Further, the delegate suggested a refocus on the prime problem facing broadcasters i.e. signal piracy. The suggestion is to give the broadcasters control of the retransmission. This would avoid protection for the content being broadcast and would not fall into the trap of post-fixation rights. An argument was also made for retransmission over any medium in a technologically neutral system. Such retransmission would be limited to simultaneous or near simultaneous (a term that needs definition) only to the extent necessary where the delay is meet technical requirements of delivery or to account for time differences. This would also include prebroadcast signal. There are clear advantages to this approach, as noted by the delegate

Short and simple.
Avoids a proliferation of superfluous rights.
Dos not overlap with the rights in content and does not create additional, unnecessarily layers of protection and authorization.
Affirms and codifies the kind of protection that broadcasters require to fortify against signal piracy.
Greater range of rights that could also be codified at the domestic level.
Could avoid the need for any defined term whatsoever.
The potential impact on consumer or private use also covered.

Japan adopted a self-confessed cautious approach to obligatory protection for transmission across computer networks due to the absence of a unified domestic viewpoint on the matter. South Africa was also of the opinion that the protection should not go beyond broadcasters and cablecasters. Colombia, however, was of the opinion that the protection should cover both traditional and non-traditional signals due to the advance in technology in the future that the treaty must anticipate. A broad and flexible approach was therefore preferred by this delegate. India expressed a desire to introduce an alternative.

Afternoon Session

Inclusion of transmission over the internet within the scope of the treaty
Whether or not simulcasting is within the mandate of this meeting
Inclusion of transmission of original programming by webcasting in the treaty
Deferred and unchanged transmission of broadcasting programmes within transmission over the internet

These four topics have witnessed some form of input or discussion thus far.

Comments on Article 9
Article 9 relates to protection of broadcasting organization and embodies two alternatives – A and B. Alternative A provides for a short list of exclusive rights, a limited right to authorize including retransmission of signal to the public by any means. Alternative B provides for a broader list of exclusive rights, including post-fixation rights and the exclusive right of fix and right of retransmission by any means and making available to the public.

In response to the US proposal articulated earlier, India put forth an alternative.

On the table for comments at this juncture are the US Proposal, the Indian alternative and the alternatives A and B to Article 9.

The EU stated that its position would fall closer to Alternative B than A. It was important for the EU to have broad rights of retransmission of broadcasts on all platforms. Retransmissions should be both simultaneous and based on fixations. They also wanted fixed broadcasts – the right of retransmission where the recipient pf the transmission chooses the place and the time of such transmission – to be included within the treaty. With respect to performance of broadcast signals ij places accessible to the public, the EU stressed that it should be limited to places accessible to the public on payment of an entrance fee as envisioned by the Rome Convention. Protection for prebroadcast signals was also sought, thereby covering a comprehensive list of protections.

The EU wanted to know whether the near to simultaneous transmission would be included within the US proposal. It thought the US proposal was based on a single right and was narrow vis-à-vis the EU one, but it expressed a willingness to engage. On the Indian proposal, the EU wished to enquire whether computer retransmissions would be protected against, given its ease.

Ecuador stated that it wished to add “and cablecasting” to India’s proposal Article 9(1)(i) after the mention of traditional broadcasters. India indicated that this addition was agreeable.

Japan mentioned that Alternative B was preferable to it since it had flexibility built into it thereby allowing for better harmonization and incorporation in the domestic law. Further, it stated that signal piracy had three major classifications – unauthorized access or useof prebroadcast signal, programming carrying signals and fixed broadcast. Finally, it clarified that simultaneous and near simultaneous transmission are protected under the Japanese proposal.

South Africa had two quick comments – that it was interested in the US proposal and preferred Alternative B. The EU also noted with interest the Indian proposal and expressed keen interested to engage with the same.

Both Senegal and Poland affirmed their preference for Alternative B in the deliberations on Article 9.

Iran steps in and articulates the stance that India has taken in a cogent manner. It noted the concern that if the content owner does not grant the right to broadcast over a computer or internet, then piracy could result in the absence of protection for the broadcasting organization. It is important to understand that a broadcasting organization is the owner of the signal. Therefore, if the broadcasting organization is not allowed to rebroadcast or retransmit over certain networks due to the contract then this would defeat the purpose of the treaty. Critically, this point is to do with the need for affirming the right of the broadcaster to prevent his own signal from getting used elsewhere without authorization.

India then went to make two critical clarifications on definitions. Broadcast means the transmission of a set of electronically generated signals by wireless and carrying a specific programme for conception of the general public and it should not include the transmission of signals over computer networks. Broadcasting organization means the legal entity taking the interior of packaging, assembling, scheduling of the programme and converting of the signals with the authorization of the owner of the copyright and related rights for broadcast for the reception of the public. Article 5 of the Indian proposal was distributed to all members and comments were invited. The meeting was adjourned to give time to the regional coordinators.

[1]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_1_prov.pdf

[2]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_24/sccr_24_10_corr.pdf

[3]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf

Meeting Documents for the 26th SCCR are available at this link.

Videos/Webcast of the 26th SCCR can be seen here.
CIS Statement on Limitations and Exceptions for Education, Teaching and Research Institutions and Persons with Other Disabilities here.
CIS Statement on the proposed treaty for Limitations and Exceptions for Libraries and Archives here.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-consolidated-26-session-consolidated-notes-part-1