Centre for Internet and Society

34th SCCR: Observer Statements on Limitations and Exceptions for Educational and Research Institutions

sinha — 2017-05-30T05:51:42Z

Observers made the following statements on discussion around limitations and exceptions for educational and research institutions on 3rd May 2017.

Communia:

Thank you, Mr. Chair, for the opportunity to address for the limitations and exceptions for educational purposes. I would like to give a brief statement that by saying Professor Seng's studies, national countries had exceptions narrowly in various ways the copyright works of educational activities. These narrow exceptions prevent certain educational practices such as the quotation of entire image in a school presentation. When it comes to modern educational practices, namely those that occur in digital and online teaching environments, the legal standing is even more problematic. Indeed, certain acts which teachers are allowed to perform in face-to-face teaching may not be permitted in digital and online contexts. For instance, in the Netherlands, the law is clear that a teacher can show a movie from a DVD in class, but if the same teacher wants to show a video from a free publicly accessible website, it seems that you'll need to be -- you will not be able to do it. This is due either to inappropriate legislative techniques or to domestic policy decisions. In any case, what is certain is cross-border educational uses are compromised at the outset due to the current national copyright laws, including within regions that enjoy a high level of harmonization, such as the European Union. Therefore, continue to discuss this issue in the forum which we will lead toward from an internationally binding instrument as mandated by the General Assembly 2017 seems essential. Thank you.

International Federation of Journalists:

Good afternoon. We've already introduced ourselves. All these works are and remain one of the key raw materials for education. The international federation of journalists deeply regrets the educational and research institutions underfunded. No one is proposing, however, as far as I'm aware, that schools and colleges should get free electricity or free phone calls. Here, most clearly of all, the solution is collective licensing through collective management organizations that are democratically controlled by the rights holders they represent. There is a wealth of misunderstanding of the issues. I take as one example the very first statement on a pro education site and the magic of Internet indexing may enable you to identify it, are which demonstrates how ill thought out the costs of education can be, not withstanding the previous. This is addressed to the European Union. It says, quotes, we want you to have the freedom to teach without breaking the law. Good. Quotes, before teaching her students about how representations of Shakespeare's Romeo and Juliet have changed through the ages, a teacher may have to ask permission from the rights holders of every movie she wants to screen in class, unquote. It says, this is -- we want to relieve educators from this impossible task, but I'm aware of nowhere in the European Union and few countries in the -- what we're pleased to call the more advanced economies where this is an impossible task. The school just pays for a license from a collecting society and goes ahead with no further administration. In my home country, United Kingdom, the collecting societies are working successfully on streamlining the system of licensing and making it more efficient in time and cash. Personally, I do recognize that some categories of textbooks are overpriced...(Speaker went over time and was asked to stop).

International Authors Federation:

Thank you very much. As this is the first time the International Office Forum has taken the floor this session, we'd like to congratulate you, Chair, and your vice chairs on your election and thank the Secretariat on their work. The international authors forum represents authors from the text, screenwriting, and visual arts sectors and their interests in copyright, as members of 60 organizations representing well over 600,000 authors worldwide. In ran increasingly homogenized world, cultural diversity is important, authors maintain that in digital arts, literatures, language, and music. It is the authors works being considered in the proposals being discussed at WIPO. There are individual authors whose rights are involved in all countries. Those rights must be given primary consideration. They need fair remuneration if they are to continue the work everybody wants access to. Without payment, they will not be able to continue to create. The diversity and quality of content will suffer and the quantity of works produce produced will be limited. We believe that there are already international copyright provisions in place that work well to enable the development of licensing frameworks, which enable access, including cross-border access provision through educational institutions and ensure fair payment. Authors believe that these existing provisions contain sufficient flexibility for countries represented at WIPO to continue to work towards national solutions, such as licensing frameworks, which can be developed according to local needs. Thank you for your time.

Corporacion Innovarte:

Thank you, Mr. Chair. The study of exceptions for educational limitations in current legislation shows that there is a fragmentation, that it's not appropriate to the countries, and very often this is an insolvable problem for international and learning cooperation in the area of communication. In order to overcome these, we think it's ins dispensable to have an international agreement which will enable us to have a minimum of common exceptions and limitations which will make it possible to have compatible roles for cross-border use of educational resources. Thank you, Mr. Chairman.

Programme on Information Justice and IP:

Thank you, Chair. You and I are from countries that have educational exceptions that are open to the use of any work, for any education related activity or purpose, and by any user — subject to a fairness test that takes into account the rights of authors and rights holders. This openness in the exceptions environment enables innovations that promote access to learning materials, including through new technologies and over the internet. Tomorrow at a side meeting over lunch, Communia and American University will be presenting the outcomes of different research projects that examine the operation of user rights in practice. That research shows that wealthy countries are developing openness in these factors much more quickly and thoroughly than poorer countries currently. But the research also shows that this is not a developing country problem alone. Many wealthy countries as well lack exceptions that allow such basic practices as showing a movie, streaming a video or performing a play in a classroom setting. These problems are compounded when we deliver educational products across borders through distance learning. A lack of harmonization on these issues will produce a race to the bottom where teachers like myself are forced to not deliver the best materials possible for our students because of the lack of rights to do so in some countries.I would encourage the process going forward to focus on the value of educational exceptions that
cover all:

Works,
Apply to all users, and that
Extend to a full range of activities

Thank you.

Note: Source of the statement texts are WIPO's realtime transcription service.

For more details visit https://cis-india.org/a2k/blogs/34th-sccr-observer-statements-on-limitations-and-exceptions-for-educational-and-research-institutions-and-persons-with-other-disabilities

34th SCCR: Observer Statements on Proposal for Analysis of Copyright related to the Digital Environment

sinha — 2017-05-30T05:39:22Z

Observers made the following statements on GRULAC's proposal on analysis of copyright related to the digital environment on 5th May 2017. CISAC:

Thank you, Chairman. I'd like to thank the WIPO Secretariat for this initiative because I think it can contribute to a constructive discussion in this committee on a number of issues raised in the document proposed by GRULAC. CISAC would like to thank the two professors on their presentations on the work done in April, and we look forward in great interest to the presentation of the conclusions at the next meeting of SCCR in November. (CISAC) we have a number of -- I'd like to refer to the need to the transfer of values. The greatest challenge -- which is the greatest challenge facing creators, and then there's the changing role of Internet service providers. As very often the authors are marginalized by the digital economy and the value chain. And then the comments about the need to interpret WIPO treaties in the most faithful way possible to the original spirit and also prudence in implementing exceptions and limitations using other alternatives where possible, such as licenses. Thank you.

FILE:
Thank you, Chairman, and I congratulate you and your vice chairs on your guidance at this meeting, and I associate myself with these statements made by -- the statements made by states such as the USA, E.U.. I'd also like to congratulate GRULAC on this proposal and recommend the committee, in the face of all these studies, which are very interesting, that we performers believe there are priorities, including, for example, the very low or zero remuneration being paid to authors for our works and our performances on Internet in the digital environment, and so we would, therefore, recommend that mainly this study should focus on that and the GRULAC proposal should be a permanent item on the agenda, and as regards the discussion of the legal systems used -- so this should be included and also the three conclusions reached by the professor should be included on the agenda of this committee. And in all this, the market is developing so rapidly, so we should invent our norms as quickly as possible so that we can compete on an equal footing, on a level playing field in this market. Thank you.

Knowledge Ecology International:
Thank you very much. I was -- like others, we'd like to take a harder look at the study. One observation I would make is in the original GRULAC proposal, looming large were issues about economics, concentration of ownership in the area of distributing works, questions about the fairness of the distribution of revenue between creative people and distributors of works. I think in some ways that what was described as the study, although it looked very competent and a great cast of characters in terms of the researchers, I would -- I think you may want to examine whether there's more economics or economists that can be brought in to shed more light on the issues raised in the initial paper. And the last thing I wanted to say is we're -- and we've talked to some Delegates about this, or actually, I should say they've talked to us about it and we agree, that the issue of metadata as it relates to digital works is really a new topic that has come about because of the digitalization of works and the development of the Internet. We often feel that the metadata's managed on behalf of right owners but not necessarily on behalf of either the creative individuals or the audiences or the readers or the listeners, and so I think this is a -- related to the GRULAC proposal. It may be a subset, but I also think it's a topic that we would like to see explored more. Thank you very much.

PAAIG:
Thank you, Chair. I would like to focus on the role of limitations and exceptions in the digital environment for the priority of the committee at this time. There's things called non expressive uses, uses that are necessary for technological processes but do not compete with the copyright owner necessary to offer the services and Internet offer over it. We have been doing research on this topic and have been doing studies that suggest the presence of such exceptions is related to investment in growth of local digital technologies. We cannot have streaming without buffering, we can't have artificial intelligence, machine learning, text and data mining, Internet-based translation services without the right to use whole works for purposes that do not compete with the original, but only a small number of countries around the world provide these clear limitations and exceptions, and the lack of those limitations and exceptions is reducing local investment and local innovation in this area. As the experts note, the E.U. has taken a step in the right direction in this regard, creating a mandatory exception for certain technological processes in the directive. That model's not perfect. Many of these digital innovations that I mention actually require permanent copies. Nonetheless, the concept that we need a mandatory exception in this regard that can facilitate cross-border digital trade and local production and innovation should guide this committee. Thank you.

Corporacion Innovarte:
Thank you very much, Mr. Chairman. We're grateful for the work done by the Secretariat on this topic, as also the explanations from the professors that gave us their opinions. We think that the issue of guaranteeing fair remuneration for creators is extremely important. This item should be considered as a standing item on the committee's agenda. However, we also wanted to hearken back to what El Salvador said; in other words, there should be more participation and transparency in the work done in the group of experts in order to guarantee that all of the concerns and issues are covered that are related to this work. Finally, as to the checklists on contracts, this should include not just intermediary platforms such as YouTube, but also contracts between authors and producers or collective entities which also should be a subject of interest for this committee. Thank you.

Latin Artists:
Thank you very much, Mr. Chairman. Latin artists represents associations of actors and other performers in the audiovisual field. We are grateful for looking at the precarious situation of artists and other creators in connection with the use of their performances in the digital era. This was described, effectively, by GRULAC in its proposal. This affects not only musical work but audiovisual works as clarified by the Delegation of Brazil at the last session of this committee, and despite the fact that the same Delegation has referred exclusively today to music. In this situation, we think that the solution is not just exploratory studies, as we heard this morning. We also need to bear in mind that this scope exceeds the specific problems indicated in the GRULAC proposal, more particularly in the need to find appropriate formulas to guarantee that artists and other creators can benefit from the economic content of their performances in the digital era; in other words, formulas that guarantee that artists and authors can have fair remuneration in online use of their interpretation and performance and works. From this viewpoint, we think in the framework of the study we have to look not just at computers or databases. This can simply distract us from the questions we have before us, something that seems to be of concern to certain Delegations, as was expressed this very morning. In fact, ultimately, sir, if the debate that took place at the last session of this committee focused on the proposal of GRULAC, the study should focus exclusively on the problems identified in that proposal. That is all. At any rate, we are attentive to the conclusions which we hope will be reached and presented at the next session of this committee, and we hope that they will foster a debate that can no longer be delayed. Artists and authors need solutions. With all due respect, we cannot allow this time wastage to take place. We need an equitable sharing and the economic benefits derived from the digital use of their interpretations and works. Lastly, Latin artists understands that this question should be a standing independent item on the agenda of the committee. Thank you very much.

LCA:
Thank you, Mr. Chairman. I'd like to echo the statement of El Salvador and the United States that it will be very helpful to have written conclusions of the experts in advance so that we can react to them intelligently. Also, I would like to agree with the United States that the committee should focus on copyright issues and not more abstract market issues. If we start focusing on issues like the value gap, we also need to consider the value to authors of the free global distribution provided by Internet platforms. Thank you.

AADI:
Thank you very much, Mr. Chairman. On behalf of the general association of performers and collective management of related rights of musical performers in the Republic of Argentina, I should like to congratulate you on your appointment as Chairman of this committee as also your new vice chairs. We wish them every success in their work with the cooperation of the Secretariat and the Delegations of the countries making up this committee. I have no doubt that you will have a successful outcome. Also, I'd like to congratulate professors to thank them for both of their presentations and also the Secretariat for its necessary and positive work to bring information to us. Since the first time that the GRULAC brought a document forward has welcomed this discussion. This was an informed document made available in December 2015 by the Delegation of Brazil. At that time and today, apart from a legal solution for each country, that has found four questions on this item, the document is 31/4, which plays a major role placing on the agenda the issue of performers' rights in a digital era to make the possible damage visible to them that are suffered by performers and artists as also to make it obvious who has caused this damage; in other words, major musical production companies. We have made this public and we have fought for obligatory reflective remuneration for artists and performers in my country. I would like to point out today we are not the only ones to have this stance. We have the extraordinary of Filia, which is a Latin America company of artists and performers, which stated at its annual meeting in October 2016, it is important for document SCCR/31/4, which proposes an analysis of copyright in the digital age to be made visible and to make obvious the various difficulties encountered as also to enable our artists to consolidate their work. I do not wish to dwell on these matters further, but I must say that on a daily basis, I see how major corporations make huge profits at the expense of performers. Is this some kind of a joke? But what we need is actions from whatever quarter can prevent their action and promote our action as performers in the digital era. Thank you.

Centre for Internet and Society:
Thank you Mr. Chair. On behalf of CIS, it is my submission that the study can additionally focus on all the key actors along the entire supply and value chain involved in content dissemination in the digital environment, complementing the study of the legal environments. This would shed considerable light on national legal frameworks and also provide us evidence of transparency, or the lack thereof in the businesses involved and the extent of low proportions of copyright and related rights payment to the creators and their unfair treatment. Thank you.

Electronic Information for Libraries:

Thank you, Mr. Chair. There were very many proposals on the interest of libraries, including the management of copyright limitations and exceptions in the digital environment, digital exhaustion, licenses, territoriality, and the interpretation of the three-step test. I'd like to thank the two professors for their presentations. We'd be very interested in the findings with regard to the review of copyright laws for digital uses that was dealt with at the start of the presentation. When we looked at data from the Crews study on limitations and exceptions for libraries and archives, we found that in countries that have amended their copyright laws in the last five years, digital copying is expressly barred in over 1/3 of them, even for preservation reasons. My question is are you also considering in the work the evidence and examples of problems experienced by beneficiaries of certain exceptions, such as the library and archive community, when working in the digital environment, as presented to this committee by the community over the last number of years? That would help to further inform the discussion and the possible conclusions. Thank you.

Program on Information Justice and Intellectual Property:
I would like to support that aspect of the GRUAC proposal that focuses on the role of limitations and exceptions in the digital environment as a top priority for this committee.
There is an increasing recognition that so-called non-expressive uses – uses necessary for technological processes that do not compete with the copyright owner – are necessary to enable the internet and the services that are offered over it.
We at American university have been doing studies that suggest that the presence of open exceptions for technological processes isrelated to investment and growth of local digital technologies. Countries with more open exceptions do better at attracting investments in fields such as software engineering. We cannot have local streaming services without local buffering rights. We cannot have local search, artificial intelligence, machine learning, text and data mining, and internet based translation services without local rights to use whole works for purposes that do not compete with the original.
Only a small number of countries around the world provide the clear limitations and exceptions in these areas. And only a small number of countries have robust industries in related fields. But all these services are international by nature, and therefore the lack of harmonization of enabling rights is increasingly perceived as a barrier to trade.
As the experts note, the EU has taken a step in the right direction that can serve as a model in this regard – creating a mandatory exception for certain technological uses in the INFOSOC directive.
That model is not perfect. Many digital innovations I have mentioned use entire works on a basis that might not be viewed as temporary. Nonetheless, the concept that we need a mandatory exception in this regard to facilitate cross border digital trade is salient, and should guide this committee.
Thank you.

Note: Source of the statement texts are WIPO's realtime transcription service.

For more details visit https://cis-india.org/a2k/blogs/34th-sccr-observer-statements-on-proposal-for-analysis-of-copyright-related-to-the-digital-environment

34th SCCR: CIS Statement on the Proposal for Analysis of Copyright Related to the Digital Environment

sinha — 2017-05-15T10:42:28Z

Anubha Sinha, attending the 34th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 1 May, 2017 to 5 May, 2017, made this statement during the discussion on the Proposal for Analysis of Copyright Related to the Digital Environment.

Thank you Mr. Chair.

On behalf of CIS, it is my submission that the study can additionally focus on all the key actors along the entire supply and value chain involved in content dissemination in the digital environment, complementing the study of the legal environments. This would shed considerable light on national legal frameworks and also provide us evidence of transparency, or the lack thereof in the businesses involved and the extent of low proportions of copyright and related rights payment to the creators and their unfair treatment.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/34th-sccr-cis-statement-on-the-proposal-for-analysis-of-copyright-related-to-the-digital-environment

34th SCCR: CIS Statement on the Discussion on Limitations and Exceptions for Libraries and Archives

sinha — 2017-05-15T10:35:36Z

Anubha Sinha, attending the 34th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 1 May, 2017 to 5 May, 2017, made this statement during the discussion on limitations and exceptions for libraries and archives.

Thank you, Mr. Chair.

CIS works on issues of access to knowledge and other digital rights in India.

I would like to share with you my experience which highlights the difficulty of building digital archives in India. Mr. Chair, earlier last year the government of India embarked upon the important project of digitizing the cultural audiovisual material stored in government and private collections to store material for preservation purposes, and set up a virtual network of these repositories to offer online access. My organization has been assisting them in this crucial public service mission. These works are oral traditions, dance, music, theatrical practices, cultural practices – all of which lie largely inaccessible and languishing in several small and large collections in India. Since, the Indian copyright Act does not contain an exception for the purposes of preservation by an archive; the entire project has suffered high costs in terms of money and time. Money, because the project had to get expensive legal assistance to set up processes to obtain rights clearance from all the performers who were a part of the works and copyright holders- some of which are orphan works, thereby compounding the problem. Further, partnering organizations also expressed legitimate fears of supplying their works, in case of a potential copyright and related rights violation that could implicate them with civil/criminal liability.

In such a scenario, for the benefit of other states to update their standards corresponding to this international legal instrument as well, it would indeed be useful to adopt the proposals mentioned in the document SCCR/26/3 that address these issues, and others.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/34th-sccr-cis-statement-on-the-discussion-on-limitations-and-exceptions-for-libraries-and-archives

25th Session of the WIPO SCP: Statement on Future work

rohini — 2016-12-16T23:01:40Z

Rohini Lakshané, attending the 25th session of the World Intellectual Property Organization (WIPO) Standing Committee on the Law of Patents (SCP) held in Geneva from December 12, 2016 to December 15, 2016, made this statement on Agenda Item #12, "Future Work".

Thank you, madam Chair.

On behalf of my organisation, the Centre for Internet and Society, India, I urge future SCPs to include the topics of standards as well as patents in the hardware and software domains. In many developed countries, the mobile phone is the only means of access to the Internet, and in turn, of access to knowledge and information. In a study published this year by CIS, we found that all mobile phone patents in India are owned by non-Indian entities. Like in the case of pharmaceuticals, we believe that a rise in prices should not drive affordable hardware out of the reach of the people. To that effect, I would like to reiterate that the SCP consider including this topic in future meetings.

Thank you, madam Chair.

See the agenda

For more details visit https://cis-india.org/a2k/blogs/25th-session-of-the-wipo-scp-statement-on-future-work

25th Session of the WIPO SCP: Statement on Assessment of Inventive Step

rohini — 2016-12-16T22:27:03Z

Statement emailed by Rohini Lakshané on behalf of the Centre for Internet and Society to the Secretariat for the WIPO Standing Committee for the Law of Patents, Twenty Fifth Session, with reference to agenda item 7, "Sharing session on examples and cases relating to assessment of inventive step including, but not limited to, the topics suggested in document SCP/24/3, paragraph 8.

Based on submissions by various stakeholders, the Indian Patent Office released a new set of guidelines for patent examiners to examine Computer Related Inventions or CRIs, in February 2016. The guidelines, inter alia, introduced a new three-step test, which The Centre for Internet and Society, India, had proposed to the IPO in its submissions. The test determines the applicability of section 3(k) of the Indian Patents Act, which excludes as inventions "a mathematical or business method or a computer program per se or algorithms".

The three-step test places a restriction on the patenting of software. An invention which merely uses or implements a computer programme is not granted patent on the basis of the inventiveness of the computer programme per se. Only if the contribution of the claim lies in both the computer programme as well as hardware, it would be considered for other steps of patentability. All in all, the new guidelines are in compliance with the legislative requirement for patentability of software.

Innovation in electronic hardware as well as in software is cumulative and often involves building upon previous inventions. Various small and medium enterprises in their submissions had requested a strict standard for patentability of software inventions. We hope that the implementation of these guidelines would enable start-ups and small and medium enterprises to innovate without the fear of patent infringement litigation.

Thank you, Madam Chair.

For more details visit https://cis-india.org/a2k/blogs/twenty-fifth-session-of-wipo-scp-statement-on-assessment-of-inventive-step

33rd SCCR: CIS Statement on the GRULAC Proposal for Analysis of Copyright in the Digital Environment

sinha — 2016-11-18T15:28:21Z

Anubha Sinha, attending the 33rd Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 14 November, 2016 to 19 November, 2016, made this statement on the GRULAC Proposal for Analysis of Copyright in the Digital Environment on behalf of CIS on Day 5, 18 November, 2016.

Thank you, Mr. Chair.

The Centre for Internet and Society is a non-profit organisation in India that undertakes research on internet and digital technologies from an academic and policy perspective.

In an environment of monopolies controlling the distribution of software and digital services, which connect users and developers, such a comprehensive study assumes significant importance.

Such a study/or a parallel study after the scoping exercise must encompass the methods in which such digital corporations are enforcing their own IP rules on creators worldwide, and if there are fair systems in place to address violations, and restoration of works unfairly taken down from their platforms. It must be noted that there is a serious lack of transparency as far as the conduct of such corporations go, and often actions are taken without appropriate justification/explanation. Back in India, I have met several creators who have suffered as a result of such unilateral actions. In this, regard it will be useful to know how creators in developing countries are impacted by rules enforced by platforms largely situated in developed countries, which can help us build a framework for the benefit of all, equally.

I welcome the proposal.

Thank you, Mr. Chairman.

Access the proposal here.

For more details visit https://cis-india.org/a2k/33rd-sccr-cis-statement-on-the-grulac-proposal-for-analysis-of-copyright-in-the-digital-environment

33rd SCCR: CIS Statement on the Proposed Treaty for the Protection of Broadcasting Organizations

sinha — 2016-11-16T13:37:41Z

Anubha Sinha, attending the 33rd Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 14 November, 2016 to 19 November, 2016, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 3, 16 November, 2016.

Thank you, Mr. Chair.

The Centre for Internet and Society is a civil society organisation from India. We would like to associate ourselves with the statements made by KEI and Karisma Foundation.

First, Mr. Chair, on SCCR/33/5 Note on the Draft Treaty to Protect Broadcasting Organizations which is a document presented by the delegations of Argentina, Colombia and Mexico – which was flagged off as relevant for SCCR/33/3. Mr. Chair, this document is problematic as it in essence, tries to extend the scope of the treaty to apply to internet-originated content, and thus by extension internet transmissions. This manifested in the push for protection of on-demand material and catch-up services as well in the discussions over the past two days.

Mr. Chair, I’d like to reeiterate that the mandate of the General Assembly was confined to broadcasting and cablecasting organizations in the traditional sense; the definition of broadcasting, protected by the scope of the Treaty, should as such be limited to the type of transmission exploited by traditional broadcasters – as stated by the delegation of Iran.

Further, Mr. Chair where as EU, China, Argentina, Colombia and Mexico continue to speak of technological advancements to justify expansion of rights under the treaty, there has still been no discussion on the inadequacy of existing international legal instruments to address these technological advancements, to justify the broadcasters’ ask of an additional layer.

Finally, reiterating the Asia-pacific group, the canvassing of this treaty should be balanced: it should take into account commercial interests in copyright and right holders, and equally important, it should also take into account other competing interests in copyright, including the public interest in scientific, cultural, social progress and promoting competition.

Thank you.

For more details visit https://cis-india.org/a2k/33rd-sccr-cis-statement-on-the-proposed-treaty-for-the-protection-of-broadcasting-organizations

33rd SCCR: Opening Statement by India on behalf of the Asia and the Pacific Group

sinha — 2016-11-14T11:04:27Z

Dr. Sumit Seth(Economic Affairs) of the Permanent Mission of India in Geneva delivered the Opening Statement on behalf of the Asia and the Pacific Group at 33rd Session of the of the Standing Committee on Copyright and Related Rights on 14th November 2016.

Mr. Chair,
India has the honor to deliver the Opening Statement on behalf of the Asia and the Pacific Group in this 33rd Session of the Standing Committee on Copyright and Related Rights.
Asia & the Pacific Group would like to express its confidence in your experience and your leadership skills. We are confident that your hard work and diligence will yield desired results and help this committee reach a mutual understanding on all outstanding issues. Our group would also like to thank the WIPO Secretariat for the preparation of this meeting.

Mr. Chair,
The SCCR is an important committee of WIPO dealing with three issues of critical importance to member states, namely protection of broadcasting organizations; limitations and exceptions for libraries and archives; and limitations and exceptions for educational and research institutions and for persons with other disabilities.
These three issues are of great importance to our group. Going by the discussions in this committee since its 27th session, it would not be wrong to say that we are facing difficulty in finding agreement on how to continue our work on each of the three important agenda items. We believe, in order to further our work, we have to refer to the 2012 General Assembly guidance to the SCCR on the work plan on the three issues.

Mr. Chair,
Our group believes that these issues have not received the equal level of commitment and understanding proportionate to their importance based on the differential socio-economic development of the Member States.
In this spirit of multilateralism, Asia and the Pacific Group reaffirms its commitment to engage constructively in negotiating a mutually acceptable outcome on all three issues before the committee. Our group would like to put on record its support for the proposed program of work.

Mr. Chair,
Determining whether and how intellectual property rights should apply with respect to broadcasting is a developmental issue that requires careful balancing. Members of the group would like to see the finalization of a balanced treaty on the protection of broadcasting organizations, based on the mandate of the 2007 WIPO General Assembly to provide protection on the signal based approach for cablecasting and broadcasting organizations in the traditional sense.

Mr. Chair,
For our Group, exceptions and limitations are of critical importance. Application of copyright system should be balanced, it should take into account commercial interests in copyright and right holders, and equally important, it should also take into account other competing interests in copyright, including the public interest in scientific, cultural, social progress and promoting competition.
Exceptions and limitations have an important role to play in the attainment of the right to education and the access to knowledge, actualization of which in many developing countries is hampered due to lack of access to relevant educational and research material.
However, there is no denying the fact that some divergence on how exceptions and limitations should be approached exists among member states.
It is unfortunate that absence of adequate will to discuss and develop the two exceptions and limitations before this committee has resulted in a stalemate on the work of this committee.
We hope that all member states shall engage constructively in this session on these two issues based on previous discussions and new inputs so that we are able to develop a mature text to discuss and work on

Mr. Chair,
Asia and the Pacific Group has taken note of the proposal submitted by the GRULAC in the 31st session to discuss the current digital environment and copyright interface. Members of my group will make interventions in their national capacity under this agenda item and will proactively participate in the discussion on this contemporary topic.

Mr. Chair,
This is the same committee which has given us the Beijing and the Marrakesh Treaties. My group is optimistic that with the noble intentions and the right will we can pave the path for the development of appropriate international instruments on all three issues.
We look forward to productive results and tangible progress in this session
I thank you once again Mr. Chair for the opportunity.

For more details visit https://cis-india.org/a2k/blogs/33rd-sccr-opening-statement-by-india-on-behalf-of-the-asia-and-the-pacific-group

Report of the 30th Session of the WIPO SCCR by the Centre for Internet & Society

nehaa — 2016-04-04T14:39:05Z

This report was edited by Nehaa Chaudhari, Programme Officer; compiled with assistance from Nisha S.K., Administrator, and, Aarushi Bansal, Amulya P., and Saahil Dama, interns.

I. Broadcast Treaty Negotiations

Day 1: June 29, 2015

Opening Statements from Regional Coordinators

Japan, speaking for Group B, said that the Group continued to attach importance to the negotiation of the Broadcast Treaty. It emphasized the importance of the information session by technical experts to strengthen the understanding of technical issues. A better understanding of the legal aspects and language of the Treaty text would prove advantageous during Treaty negotiation.

It acknowledged that the presentation by Professor Kenneth Crews indicated that the Member States required an informative reference to adopt the limitations and exceptions. It recommended that the reference be made more user-friendly and accessible. Additionally, it proposed for an exchange of national experiences and a background check on the collection of outcomes.

Germany spoke next, on behalf of the Central European and Baltic States (CEBS). It supported a "forward-looking approach that would take into account the technical progress achieved in broadcasting systems so far". It argued for the inclusion of new media platforms used by broadcasting organizations into the Treaty.

It appreciated Kenneth Crews' study on limitations and exceptions for libraries and archives.
Germany believed that progress on these issues would be facilitated if the committee agreed on common objectives. It wanted to exchange best practices on both - limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and for persons with disabilities.

Nigeria, on behalf of the African group, wanted equal time to be given to both the issues on the agenda - the Broadcast Treaty and limitations and exceptions. The African Group supported a balanced Treaty on protection of broadcasting organizations as per the mandate of the 2007 General Assembly. It welcomed Kenneth Crews' study on copyright trends. It also suggested a discussion on copyright exceptions for museums.

Argentina, speaking on behalf of GRULAC (Group of Latin American and Caribbean Countries), asked for equal time be given to all the issues on the agenda. This view was also supported by Mexico.

On behalf of the Asia Pacific group, Pakistan supported a balanced Treaty which followed the signal-based approach, for protecting broadcasting organizations as per the mandate of the 2007 General Assembly.

Belarus, representing the Central Eastern and Caucasian Countries, wanted a Diplomatic Conference for the conclusion of the Treaty soon.

The European Union (EU) stated that in building consensus on the Broadcast Treaty, the broad aim should be to make a meaningful Treaty that would be relevant to technological realities and needs of broadcasting organizations in the 21^st century.

Information Session on Broadcasting

Preceded by opening statements by regional groups and countries, the main event on Day 1 was an information session on broadcasting. The panel consisted of George Twumasi, Deputy Chairman and CEO of ABN Holdings Ltd.; Daniel Knapp, Director, Advertising Research; Shida Bolai, CEO of Caribbean Communications Network Ltd.; Anelise Rebello de Sa, Legal Manager of International Business and Contracts Compliance, TV Globo; Avnindra Mohan, President, Zee Network; and Tejveer Bhatia, Singh and Singh Associates, New Delhi.

Daniel Knapp started the information session by providing an outlook on broadcasting from a technical and revenue perspective. He highlighted that traditional broadcasting was different in different countries. In Greece, for example, there was little or no cable other than at the national level, while in the Middle East and Africa, a large proportion of access came from free satellite prescribers.

Knapp stated that despite digitization paid TV homes were growing at a 6% annual rate which was expected to slow down to 3.4% by 2018. While the growth was being led by India and China, pay TV homes in the US were declining as people were moving to over-the-top services. He added that users of connected devices such as smart-phones, broadband players and smart TVs were predicted to surge to more than 8 billion by 2017. This would result in the decline of TV-usage as audiences would move to online open source resources such as Facebook, YouTube, AOL and premium services such as Amazon and Netflix.

Kanpp voiced concerns about development in technology leading to piracy. He warned that traditional threats such as smart cards on set-top boxes and new methods of piracy such as online file-sharing needed to be checked.

John Simpson of the British Broadcasting Corporation ("BBC") outlined how broadcasting had changed through the years due to advancement of technology. He stated that the world was moving from analog TVs to digital services. Digital technologies had enabled broadcasters to offer more channels and programs, providing users with more choice and control. The definitional boundaries between broadcasting and digital video libraries were becoming increasingly blurred.

He argued that broadcasting was an important tool for social cohesion, economic development and ensuring public access to information. He believed that new content delivery mechanisms, such as computer networks or smart-phones, could bridge the knowledge-gap in developing countries. In Africa, for instance, the recent transition from analog television to digital television has the potential to improve both the quantity and the quality of content on television.

However, Simpson noted that the Treaty-text had no mention of the quality and accuracy of the information being broadcasted. It failed to discuss the need for televisions and videos to produce programs which did not just represent the beliefs of the government, but had a genuine observational truth to them. Simpson stressed upon maintaining quality and developing new ways in which things are broadcasted to people.

Shida Bolai of Caribbean Communications Network Limited spoke about challenges broadcasters faced during transition to digital technologies and migration of viewers and advertisers from traditional to new platforms. She noted that while most of the Caribbean was still grappling with standards and infrastructure to go digital, Bahamas and Surinam had already made the change. Legal protection offered to broadcasters in the Caribbean was inadequate and piracy in the form of CDs or fraudulent satellite use and internet were issues yet to be tackled.

Piracy was the result of the costly distribution of content on the internet leading to the broadcasters obtaining expensive licenses. Hence cable-operators pirated signals and free broadcasters had to look for new content. This showed that broadcasters were given inadequate protection. Bolai also indicated that it was difficult to invest in high-cost sports programmes due to financial losses arising out of piracy. She highlighted the need for the indigenous community to find primary channels of production and distribution.

George Twumasi from ABN Holdings LTD said that the central challenge for broadcasting in Africa was the creation of commercially viable content by Africans for Africans. If such content increased, the broadcast industry would grow to become a $75 billion industry over the next 15 years. With respect to piracy, he stated that Africans did not like foreign content and that it was not a pressing concern for them. He argued that the best way to stop piracy was through invasive technologies.

Twumasi wanted to create a lobby group to facilitate the growth of broadcasting. Given Africa's history, he emphasized on its need to define its role as a broadcaster and to entertain the world through its powerful mythology and culture.

Yaw Owusu from University of Ghana stated that copyright could be protected to the extent of monetizing what existed in the marketplace. He explained that the business strategy would operate by broadcasters driving the digital content and revenue system. Intellectual property and ownership would be protected through encryption software. Since English content had also been pirated in Africa, expert enhancement of existing content was required.

Anelise Rebello de Sa from International Business and Contracts Compliance, TV Globo said that the most important challenge to Latin American broadcasters were not other broadcasters, but Google, Facebook, Twitter and piracy. Audiences for the Brazilian advertising market had grown from 10 million in 2000 to 33 billion in 2014. Traditional TV had 72% of the advertisement market. Piracy was a problem since Brazilian signals would be picked up and used by broadcasters in other countries.

She also said that online piracy and set-top boxes were major causes for concerns. She explained the functioning of piracy using the example of Globo in Japan. Pirated content on Globo could not be removed since it did not originate in Japan. Hence the protection was inadequate.

Fingerprint technology would be useful against piracy since it automatically removes instead of comparing videos with one another. She concluded by stating that television also needed an updated legal framework and dependant businesses and investments to continue.

Avnindra Mohan from Zee Telefilms stated that by end of 2016, all of India would be on digital TV. The TV industry was set to increase its revenue from 7.8 billion USD to 12.1 billion USD in the future. However, piracy through DTH box cloning, IPTV, cable TV, inter-country smuggling and over the internet was a major concern. With regards to web-initiated transmissions, he argued that as long as the signal was hacked by someone, broadcasters should have the right to prevent that piracy or illegal transmission from happening.

Day 2: June 30, 2015

Day 2 began with the Chair calling for statements from Member States and regional groups on general principles and key objectives of the proposed Broadcast Treaty.

Regional Group Statements on General Principles

Japan, on behalf of Group B, reiterated that after the session it hoped to move forward with the discussion in line with the 2007 General Assembly mandate and to convene the diplomatic conference at the earliest opportunity.

Speaking on behalf of the Asia Pacific Group, Pakistan stated that it supported the development of an international treaty based on the mandate of the 22 ^nd SCCR which was reiterated in 2012. It sought an agreement based on traditional broadcasting and cable casting; a balanced text that prioritized the interests of all the stakeholders. Pakistan said that the original mandate without new layers of protection would achieve this balance.

Nigeria, representing the African Group, stated that it wanted a pragmatic and effective outcome in conformity with the 2007 mandate, and looked forward to moving towards a Diplomatic Conference soon. Noting the efforts made at the 29^th SCCR, it welcomed the discussion on broadcasting protection. Nigeria concluded by reaffirming its commitment for constructive development in order to protect broadcasting rights within the directives of the 2007 General Assembly mandate.

Romania supported a Treaty that would provide adequate protection in line with modern technological developments. It sought a broad consensus on the signal-based approach. It also stated that it hoped to recommend the convening of a Diplomatic Conference to the General Assembly.

The EU considered the Broadcast Treaty to be a high priority. It wanted a treaty that would be meaningful in view of the technological realities and the needs of broadcasting organizations in the 21^st century. It argued that both - traditional broadcasting and broadcasting over the internet- - required international protection against piracy.

Iran supported the statements made by Pakistan and the Asia Pacific group. It wanted the Treaty to follow the signal-based approach decided in the 2007 General Assembly. Iran only wanted protection for traditional broadcasters. It argued that expanding protection to transmissions over the internet raised concerns of rising transaction costs and reducing access to broadcast in developing countries. It sought an assessment of the impact of the Treaty on the public domain, access to knowledge, freedom of expression, users, performers and authors.

South Korea believed that after the introduction of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization ("Rome Convention"), the protection of broadcasting organizations had not been updated to reflect advances in technology. Therefore, it wanted the Treaty to respond to changes in technology.

National Statements on General Principles

Japan wanted the SCCR to end with a recommendation for convening a Diplomatic Conference to adopt the Treaty. It hoped to discuss objectives of protection and rights to be granted. It wanted to move to textual work in the near future and have more elaborate discussions to expand the scope of common understanding.

The US wanted to continue discussions to obtain a general consensus on a meaningful and targeted text. In its opinion, a right that protected broadcasters against signal piracy on any platform without an extra layer of protection could attract such a consensus.

Russia wanted to adopt a new document on the protection of broadcasting organizations. It wished to confine the Treaty to traditional broadcasting, but also lay a basis for content for future protection. It suggested that new forms of broadcasting should be identified and new directions for future protection should be introduced. Russia conveyed its support to all collective decisions to be taken while discussing the text of the future Treaty, as well as a speedy adoption of a common approach.

Belarus, on behalf of the Central Asia and Eastern Europe group, hoped that the new Treaty would reflect specificities of different regions and possibilities of adaptation to changes in broadcasting.

Indonesia supported the statements delivered by Pakistan. It wanted the Treaty to be based on the 2007 General Assembly mandate and use a signal-based approach with broadcasting and cablecasting defined traditionally. It opposed the introduction of any new layers of protection and wanted to strike a balance between rights and responsibilities of broadcasting organizations.

India supported a Treaty with the 2007 General Assembly mandate and also sought the prevention of unauthorized live transmission over computer networks. It opposed expanding the mandate to include elements of webcasting, simulcasting and retransmission over computer networks or other platforms, as these were not a part of broadcasting as defined in a traditional sense. India wanted the Treaty to provide exceptions to private use, use by experts in connection with reporting of current events, use solely for the purpose of education and research and the fixation of a broadcast by means of its own facilities.

Objectives of Treaty, Scope of Protection and Object of Protections

The EU argued that there was a need to ensure that the Treaty was up to date and in line with technological advancements. It wanted protection to extend to broadcasters who used new technologies and urged for the inclusion of a broad retransmission right that would involve simultaneous retransmission and deferred retransmissions. It believed that the objective of the Treaty was to stop piracy whether it was in the form of simultaneous transmissions or organized by websites. It also expressed eagerness to go to text-based work as opposed to working on clarifications.

Speaking next, the US supported a Treaty that would respond to advancements in digital technology and address piracy concerns by eliminating loopholes that pirates could exploit. It said that piracy was a significant concern but not necessarily the suitable object for the Treaty in question. It was not a major part of broadcasters' protection, which could be resolved by enforcing only signal protection.

Romania, speaking next on behalf of the CBES group, stated that it believed in a Treaty that would protect broadcasters against piracy regardless of the platform. It wanted to protect cablecasting and simulcasting in addition to traditional broadcasting. It re-iterated the stand taken by US in saying that a broad retransmission right would be the way forward.

Japan believed that there was a need for separating traditional broadcasting from internet originated initial transmission. Since newer broadcasting organizations dealt with internet broadcasting, it wanted Member States to discuss methods of dealing with such a transmission.

Argentina supported a Treaty that would include broadcasters and cablecasters but would exclude internet originated transmissions except in the context of near simultaneous transmissions.

The EU noted that India, Iran, CEBS, South Africa, Argentina and Kenya seemed to agree that live signals transmitted over any platforms would be the object of protection of the Broadcast Treaty. It stated that it would support a Treaty that protected cablecasting in addition to traditional broadcasting.

Italy endorsed the stance of the EU. It explained that the broadcasting rights to fixation, reproduction of fixations and retransmissions of such fixations and protection of signals sent over the internet could find a background in Article 14 of the TRIPS. It further argued that even the idea of exclusive rights to broadcasters could find precedence in Article 14 of TRIPS and in the Rome Convention.

China argued that the Treaty should account for technological developments. While it fully supported a Treaty that only covered traditional broadcasting including cablecasting, it wanted to include simulcasting, on demand casting and near simulcasting within the Treaty.

India, in response to the EU and Italy, sought to emphasize the difference between a right to authorize and a right to prohibit broadcasting. It stated that the Broadcast Treaty should not provide for a positive right to authorize. It argued that internet companies often broadcast events based on a contract with the content creators, and such a right should not conflict with rights that may be given to broadcasters by virtue of the Treaty. India emphasized the need to stick to the signal-based approach as it balanced the interests of broadcasters and content creators. It pointed out that in cases where broadcasters doubled up as content creators, copyright law would be enough to prevent piracy.

Brazil, along with the US and South Africa, wanted to take into account the concerns of content owners in other platforms.

The US stated that the common ground would be the protection of live signals. If the signal is transmitted by any means, it should be protected. Since many broadcasters used the internet to transmit signals, it would be important to ensure that the signals thus transmitted were protected from piracy as well. It wanted a technologically neutral definition of broadcasting and argued that this would still be limited to a signal-based approach because there were no rights over the content per se.

India clarified its stance and stated that while it did believe that unauthorized retransmissions over the internet should be prohibited by the Treaty, providing broadcasters with a sole right to transmission over the internet would be beyond the signal-based approach. Internet transmissions could rarely be said to be signal theft in the traditional sense.

Iran, responding to the EU, stated that it supported a Treaty that covered traditional broadcasting, cablecasting and even live retransmissions on the internet. It expressed concerns with the Treaty granting exclusive rights to broadcasters, and stated that it would support a Treaty against signal theft as long as the signals belonged to traditional broadcasters.

Chile argued that only broadcasts open to the public should be protected by the Treaty and broadcasts requiring decryption without a cable should be excluded.

The EU restated that it supported a Treaty with technologically neutral terminology. It expressed concerns with the Treaty benefitting all kinds of broadcasters since technological developments had enabled everyone to become a broadcaster. Italy supported this caveat and stated that a workable definition of a "broadcast organization" would be an organization that transmits a broadcast signal. A "broadcast signal" would be a signal that includes only broadcasts or cablecasts; and broadcasting does not include the transmission over computer networks. It believed that such a definition would differentiate between broadcasts, cablecasts and webcasts.

Japan stated that broadcasting organizations would have to be defined as broadcasters in the traditional sense since the idea of a broadcasting organizations had not changed despite technological advancement. It wanted to start with the definition of broadcasting as it was laid out in the WIPO Performances and Phonograms Treaty ("WPPT") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").

Nigeria stated that broadcasting should be clearly defined before broadcasting organizations since the two were inevitably linked.

Russia believed that the discussion was becoming overly complicated. It argued that a simple method of understanding broadcasting would suffice to define broadcasting and broadcasting organizations. The means used by broadcasters were of little concern to Russia.

The US stated that along with being forward-looking, the definitions also needed to be consistent with treaties passed by the WIPO in the past, including the WPPT and Beijing Treaty. Broadcasting organizations should be defined as entities that would assemble and schedule programmes carried by the signal keeping in mind the distinction between a signal and a program.

As per the EU, the definitions in Document SCCR 27/2 needed to be discussed as they covered important elements of broadcasting such as broadcasting by wireless means including satellite for public reception. The EU also stated that while the definition of broadcasting organizations should not include transmissions over computer networks, transmissions over computer networks could be included as a part of the object of protection.

At the end of the evening, Ann Lear, of the WIPO, intervened to stress that definitions must be adopted keeping keep in mind that many broadcasters today viewed the internet as the main platform for distribution of their broadcast in the near future and were using streaming and downloading over the internet.

Day 3: July 1, 2015

Day 3 of the negotiations began with the Chair noting the general consensus emerging in the matter of protecting live signals over any platform, and, allowing broadcasters to prohibit unauthorized access regardless of the platform from which the signal was transmitted. The Chair opened the floor for debate on whether there was a need for defining 'broadcasting organizations' or whether defining 'broadcasting' as an activity would suffice, and on whether the definitions must reflect those existing in other international treaties.

Defining 'broadcasting organizations'

The EU spoke first, stating that the definition laid out in Alternative B to Article 5 in Document SCCR 27/2 was similar to what it wanted. It believed that defining broadcasting and cablecasting was crucial to defining the beneficiaries of the Treaty. But this did not mean that it was unimportant to outline who the beneficiaries of the Treaty were.

Australia argued that the Rome Convention operated well without having defined broadcasting organizations and the same would hold true for the Broadcast Treaty as well. It further argued that the definition of broadcasting should be based on the definitions that already existed in the Beijing Treaty and the WPPT.

Serbia stated that the definition of a broadcasting organization had to conform by the definition of broadcasting. Additionally, it felt the need to define the responsibility of broadcasting organizations for collecting information and editorial functions.

Russia argued that defining broadcasting organizations would be a misstep since different countries would have different definitions of broadcasters in their national legislations. Russia relied on the fact that the Rome Convention was operating well without having defined broadcasting organizations.

Brazil stated that while it wanted clarity on who would be the beneficiaries of the Treaty it was still debating whether broadcasting organizations had to be defined in the Treaty. It supported a technologically neutral definition of broadcasting as it would encompass different countries with different regulatory regimes.

Kenya stressed that it needed clarity on what broadcasting entailed as their national laws dealt with broadcasting in a particular manner. It required a clear definition to move things forward.

South Africa, agreeing with Kenya, spoke of its domestic legislation which defined broadcasting in several ways, and included both wired and wireless technology. It suggested accommodating different definitions of countries like Brazil and China which regulated broadcasting differently. It added that following a text-based definition would be difficult as discussions involving fundamental questions of broadcasting were constantly being raised.

Canada felt the need to examine national treatment with respect to defining or not defining broadcasting organizations. It said that a basic definition of the activity with a chance to accommodate differences in national legislations would be the best way to move forward.

The US proposed that text-based work would be more constructive in gaining clarity on these questions.

The EU commented that the definition of 'signal' could be based on the Beijing Treaty that makes a reference to public reception of sounds or images or images and sounds or representation thereof. Alternative A for Article 5 in Document SCCR 27/2 most closely reflected the definitions that already exist in other existing treaties as well. It stated that it would be sufficient to define broadcasting, cablecasting, broadcasting organizations and signal.

Romania endorsed the statement made by the EU. It stressed on the importance of defining the beneficiaries of the Treaty.

The EU intervened again to state that it was necessary to define broadcasting organizations, but that it could start with defining broadcasting based on existing treaties.

Romania intervened on behalf of the CEBS group to state that it was important to move to a text-based discussion to continue making progress. It emphasized on the need for updating the international legal framework to accord adequate protection to broadcasting organizations.

Russia supported the same proposal and stated that it was important to consolidate a text to eventually recommend convening a Diplomatic Conference.

Serbia aligned itself with the Romanian position. It further stated that it was important to identify the beneficiaries and non-beneficiaries under the Treaty.

Iran intervened to urge the commencement of text-based negotiations on the draft Treaty as there was no consensus on important concepts such as objectives, scope or objects of protection of the Treaty. It supported the proposal made by Romania on behalf of CEBS. Iran also stated that deciding on convening the Diplomatic Conference in the next biennium before resolving divergent views and arriving at a consensus would be premature.

The US argued that text-based work would be the way forward. Though consensus was beginning to appear, a number of countries had not committed to anything. Hence the draft should leave options so that there is still room for negotiations. It further said that if an acceptable text was found over the next two meetings, then a Diplomatic Conference in the next biennium could have a successful outcome.

The EU stated that while there was progress on understanding different positions, a consensus was yet to emerge. Further discussions were needed on important issues such as the term of protection and technological protection measures. It aligned itself with the proposal of the CEBS group and hoped that the work would lead to a Diplomatic Conference in the next biennium.

India, South Africa, Japan, Nigeria, Senegal and Kenya also supported the CEBS proposal to move to text-based work.

Chair's Conclusions

At the end of the session on broadcasting, the Chair noted that there had been an exchange of views on the objectives of the Treaty, the scope of protection and the object of protection. While no consensus had been reached, there was greater clarity on different positions. The Chair stated that text-based work seemed to be the way forward and agreed to prepare the draft document. Further, with the exception of one delegation, there was a consensus on the protection being granted to broadcasting organizations to prohibit unauthorized use of broadcast signals in the course of a transmission over any technological platform. The Chair lastly said that the proposed timeframe for this would be to work towards the biennium when the proposed Diplomatic Conference could take place.

II. Report on Negotiations on International Instrument for Exceptions and Limitations for Libraries and Archives

Day 1: June 29, 2015

Opening Statements by Regional Coordinators

Japan spoke on behalf of Group B and stated that the presentation by Prof. Kenneth Crews (hereafter, Crews) had provided for a way forward by showing that Member States needed an informative session on this topic. This informative session should be in an accessible and user friendly environment where exchange of national experiences could take place. It believed that the SCCR should give further consideration to the objectives and principles proposed by the US in this regard.

Nigeria, on behalf of the Africa Group, wanted to establish legal instruments on this issue and on limitations on educational and research institutions for persons with disabilities. It wanted equal time to be given to all the instruments being discussed.

Representing the GRULAC, Argentina stated that the issue of limitations and exceptions for libraries and archives was of particular importance to it. Argentina hoped that it would be dealt with in a balanced way. It attached importance to the work that had been done until then and to the report prepared by Crews. It supported an open and frank discussion on the issue and was interested in the proposal made by Brazil, Ecuador, Uruguay, the African Group and India. Mexico endorsed this statement as well.

On behalf of the Asia Pacific Group, Pakistan expressed disappointment since all the issues had not received equal commitment from all Member States, particularly the issue of exceptions and limitations for libraries and archives. It stated that while there were different priorities due to different economic realities in the various Member States, inclusiveness as an ideal meant that these priorities would be accommodated.

Pakistan believed that the issue of limitations and exceptions for libraries and archives was of critical importance for individual and collective development of societies. Libraries and archives play an important role in the right to education, which remains a challenge in many developing countries due to lack of access to relevant educational and research material. While sharing national experiences and best practices was informative and useful, it was important to understand that the lack of development with regard to exceptions and limitations resulted in no decision at the 2014 General Assembly. Therefore it wanted to move to text-based work on the same.

The EU stated that the discussion could not be furthered without clarity on direction and objectives. It sought a surer understanding of what the outcome of the discussion could be to avoid wasting time and resources. It noted that the 2014 General Assembly had not provided the SCCR with a new mandate on libraries and archives. Even on exceptions and limitations for educational and research institutions and persons with disabilities, the acceptable way forward would be to encourage best practices in the broad and flexible boundaries of the current international copyright framework and not within the realm of further legally binding instruments.

Day 3: July 1, 2015

Regional Statements on General Principles

Work on exceptions and limitations for libraries and archives resumed in the afternoon session of the third day of the meeting.

Brazil, on behalf of GRULAC, believed that Crews' report documented the important role played by libraries and archives and emphasized the need for library lending services. It supported an open and frank discussion without prejudging its outcome. It was interested in the proposal made by itself, Ecuador, Uruguay, the African Group and India on the same. It also underscored the importance of ratification with respect to any Treaty relating to limitations and exceptions.

On behalf of the Asia Pacific Group, Pakistan stated that limitations and exceptions were essential requisites for all norm setting exercises. People in all countries would benefit from exceptions and limitations for libraries and archives since it would allow for materials to be accessible by all of humankind instead of being restricted to individual countries. Pakistan believed that any agreement on this would require harmonization of domestic laws and policies. It considered sharing national experiences of Member States to be beneficial in this regard. In a report to the 28^th session of the Human Rights Council, the Special Rapporteur for Cultural Rights also supported the harmonization of exceptions and limitations in copyright for libraries in education.

Representing the African Group, Nigeria underscored the fundamental role of libraries and archives in facilitating access to knowledge for human and societal development. The principle of exceptions and limitations meeting specific objectives is an essential part of international instruments. As evidence, Nigeria pointed out legal precedents that contained specific limitations protecting educational institutions and facilitating access to learning. It sought a text-based discussion on the text prepared by the African Group, Brazil, Ecuador, India and Uruguay and the Chair's informal document streamlining various proposals.

Romania stated on behalf of the CEBS group that it welcomed the updated version of the study on copyright exceptions prepared by Crews. Romania recognized the important role that exceptions and limitations would play in facilitating library services and serving the social objectives of copyright law. It stated that the three-step test provided for by existing treaties offered a framework that was wide enough for states to establish their own exceptions and limitations but conceded that it may need more guidance on best practices. It considered an approach based on exchange of best practices to be superior to a normative approach.

Japan, on behalf of Group B, relied on Crews' study to show that many countries had already introduced exceptions and limitations for libraries and archives in their domestic legal systems. It wanted further work at the SCCR to be based on the recommendations of the Chair at the previous SCCR and the presentation by Kenneth Crews. It sought for a substantive discussion at an objective and principle level as proposed by the US.

China intervened and pointed out that there already existed a Chinese legislation regarding exceptions and limitations for libraries and museums and orphan works.

The EU stated that the study conducted by Kenneth Crews was illustrative of the fact that exceptions and limitations in domestic legal systems and other instruments were adequate. It considered this to be the basis for understanding effective ways to implement exceptions and limitations in different legal systems. It believed that an approach based on exchange of best practices and mutual learning would stimulate substantive discussions. It further stated that in the absence of a mandate by the 2014 General Assembly, there was a need for further clarity on the expected outcome of these discussions.

Brazil spoke next in its national capacity and aligned itself with the statements produced by GRULAC, the Asian Group and the African Group. It considered the discussion on exceptions and limitations to copyright law to be a subject of utmost importance. It pointed out that for libraries, the activities that could be linked to copyright exceptions were preservation of copies, making orphan works, public library lending and so on.

Mexico aligned itself with GRULAC. It reiterated that its government attached importance to exceptions and limitations for libraries and archives that were aimed at facilitating copying, preservation, archiving and the dissemination of works, and, encouraging the spread of knowledge for the common good.

India intervened and pointed out that access to knowledge was lacking in many jurisdictions despite increasing trends of digitization of information. In this context, libraries and archives act as balancing forces for increased access and it was important to strengthen this balance between ownership and access. Citing Crews' study, India argued that the diverse approaches in national laws, including that of absence of limitations and exceptions in many jurisdictions, necessitated work on an international instrument for limitations and exceptions. It stated that the work of the African Group, Brazil, Ecuador and Uruguay to get more countries aligned to a document on the eleven issues for an equitable balance relating to limitations and exceptions needed to be built upon for consensus among members. The best way forward would be to draft a legal instrument, as exchange of practices did not bring the necessary urgency to the subject.

Iran aligned itself with statements made by the Asia Pacific Group and the African Group. It stated that the rights to science, library and culture were basic human rights. It believed that limitations and exceptions played a key role in creating a balance of interests in the international copyright system and empowered creativity by increasing educational opportunities and promoting access to cultural works and inclusion. It further argued that since the existing international copyright system did not address technological developments, it needed rectification. It cited the UNHRC Special Rapporteur's recommendation to the WIPO to set a core list of minimum required exceptions and limitations. Iran strongly supported work towards a legally binding international instrument for limitations and exceptions for libraries and archives, and research and educational institutions. It sought to start text-based negotiations in this regard and suggested that the proposal by the African Group, India, Brazil and Ecuador would be a good base for preparing a consolidated text.

Indonesia agreed with the statement made by the Asia Pacific Group and sought to move on to text based negotiations. It highlighted the importance of developing a legal framework to enable libraries and archives to reproduce content without the authorization of copyright holders for the purpose of education, research and inter-library loans.

The Russian Federation pointed out that it had already partially solved the problem in its domestic legislation. It sought to strike a balance between the interests of the author and that of the society.

Ecuador endorsed the statement made by GRULAC. It had a Bill in its domestic legislature to address this issue. It wanted to proceed to text-based negotiations.

South Africa aligned itself with GRULAC, the African Group and the Asia Pacific Group and emphasized the critical role of libraries archives and educational institutions in the dissemination and preservation of their cultural heritage. It also called for progress on text based work and to send a clear message to the General Assembly and the international community that the issue was important.

The US believed in the development of non-binding principles and objectives relating to national copyright exceptions and limitations for libraries, archives, and educational institutions. It noted that statements of such principles and objectives introduced by them in earlier sessions of the SCCR had been received positively. The US further stated that it supported work through symposia or seminars to examine different approaches to national implementation of these principles. It also went on to state that libraries and archives, being central to knowledge systems, provided valuable insights to people. She referred to a document formulated by the United States which discussed the importance of enabling libraries to function properly, along with the goals the US attempted to achieve. The approach would be for the Member States to tailor the exceptions to suit their needs within the constraints of international obligations to make libraries and archives available to the world.

Pakistan agreed with the statements made by the Asia Pacific Group, the African Group and GRULAC. It was concerned with the lack of uniformity and occasional absence of exceptions and limitations for libraries, archives and educational and research institutions in some countries, which restricted a large number of people from accessing information. Pakistan argued that reformation and harmonization of the current system was essential, and that mere incorporation into domestic laws was insufficient. There was a need to engage in text-based negotiations and work towards an appropriate international legal instrument.

Cameroon also aligned itself with the position of the African Group, GRULAC and the Asia Pacific Group. It emphasized the crucial role played by libraries and the importance of providing adequate exceptions and limitations for them. Cameroon said that it was also reviewing its own national legislation on the issue.

Armenia pointed out that it was drafting a new domestic law on the issue of limitations and exceptions for libraries and archives. It also emphasized the importance of minimum international standards for countries to adopt. Armenia wanted countries to implement these limitations in their national legislations and supported a legally binding instrument for limitations and exceptions.

Sudan supported the proposal put forward by the African Group, the Asian Group, Brazil Ecuador, Uruguay and India. Citing Crews' study, it stated that with advent of the digital age, all the memory and knowledge in the world could be easily converted into accessible formats and made available on databases for researchers and educational institutions. Therefore it was necessary for the SCCR to enable students and researchers to have access to this knowledge. The EU Directives passed in 2001 and 2012, and the work undertaken by the US and UNESCO were positive steps in this regard. It wanted to work towards an appropriate international instrument such as the Marrakesh Treaty.

Aligning with the African Group, Nigeria argued that since information sharing transcended national boundaries in the digital age, national solutions would be ineffective. There was a need to balance the interests of the creators and the larger public interest. It welcomed the report by Crews and the document prepared by the Chair to stimulate discussion along with the text-based proposal of the African Group, Brazil, Ecuador, India and Uruguay.

Japan supported Group B's statements and said that libraries and archives played a pivotal role in collecting and preserving materials and providing them to the public. It cited Crews' study to argue that international differences in conditions for application of limitations and exceptions would cause problems with the increasing digitizing of materials. Principles evolved from these discussions should serve as guidelines for establishing the legal framework for libraries and archives in each Member State. Japan considered the objectives and principles document released by the US to be a good basis for discussion.

Malawi wanted discussions to be guided by Crews' report.

Uruguay supported the statements made by GRULAC, the African Group and the Asia Pacific Group. It wanted to sponsor Document SCCR 29/4 submitted by Brazil, Ecuador, India and the African Group. It believed that libraries and archives were important for culture, leisure activities and welfare of the needy sections of society. Since archivists and librarians had approached the SCCR in every session to ask for an international solution, Uruguay urged the SCCR to continue with the discussion without prejudging the result.

Malaysia considered Crews' study to be useful for deliberation. It supported limitations and exceptions that contributed to the attainment of education for all. It wanted to appoint a facilitator or a friend of the Chair to further discussion and create concrete solutions.

Algeria valued the study submitted by Crews and recognized that copyright exceptions and limitations for libraries and archives would enable the spread of cultural and scientific awareness. Algeria aligned itself with the statement made by the African group.

Congo believed that libraries and archival services had inherent rights to share knowledge and education. This would enrich cultural diversity and break the digital divide between the Global North and South. It argued that Crews' study demonstrated that domestic solutions would not solve this problem and an international instrument was necessary.

Zambia supported the statement made by the African Group. It remarked that libraries and archives played an essential role in disseminating information and provided a pool of historical knowledge which served as a base for our future. It believed that any solution should balance the interests of rights holders and that of the public.

Nepal aligned itself with the Asia Pacific Group. It stated that libraries and archives played an important role in education as they were often the only sources of materials for students and academics in countries like Nepal. An international legal instrument on exceptions and limitations would balance different interests. Nepal supported appointing a facilitator or a friend of the Chair to develop a working text on limitations and exceptions.

Australia supported the proposal given by the United States as a sound basis for developing principles and objectives of the suggested clusters. It wanted simple and immediate solutions within the existing legal framework to close the gap between ideals and the reality.

The US, agreeing with Australia, showed interest in developing principles and objectives in terms of how different countries arrived at the principles and objectives. It also agreed to filling gaps between these and find consensus on the approach.

Day 4: July 2, 2015

Approach Forward

The Chair asked the Secretariat to provide an overview of the situation on this topic. The Secretariat stated that there were two studies on the issue - the first compiled by Kenneth Crews which had updated previous studies conducted in 2008 and 2014 and another study on limitations and exceptions for museums, SCCR/30/2.

There was also a working document adopted in 2014, SCCR/26/2, that compiled the reference to eleven topics and identified them as priority topics on this issue. Two proposals had also been adopted - one which refers to objectives and principles presented by USA (SCCR/26/8) and another by the African Group, Brazil, Ecuador, India and Uruguay (SCCR/29/4). The SCCR pointed out that a chart/non-paper had been submitted by the Chair in December 2014 and that delegations were to consider this non-paper in this session.

The Chair clarified that the purpose of preparing the chart/non-paper was not to push the discussion in a particular way or to side with an issue. It was to help guide discussion in an organized fashion while remaining respectful of all views. The Chair opened the floor for comments on the same.

Speaking first, Australia was willing to work on the Chair's proposal. It believed that this should be done in a three-step process. Firstly, principles and objects as proposed by the US had to be clarified; secondly, reasons had to be identified for why those principles and objectives were not already in effect; and finally, solutions for implementing the principles and objectives had to be discussed. It believed that simple and immediate solutions should be preferred to complex solutions which would take longer to come into effect.

Brazil stated that it was ready to contribute to discussions on the non-paper drafted by the Chair as a framework for the discussion. It argued that following the framework proposed by the Chair would not exclude discussion on principles and objectives. It suggested that the discussion on principles and objectives be subsumed within the framework proposed by the Chair.

Japan questioned whether the list of issues compiled or the way discussions were structured would have had an impact on the direction taken by the SCCR.

The Chair answered that the list was not fixed and that the flexible structure of the framework allowed for discussion on other related issues also. The Chair also asked if there was consensus on moving forward on the structure outlined by him or if there were suggestions on improvements.

The US agreed with the Australian delegate on the importance of developing principles and objectives. The Chair pointed out that this discussion could be included as part of the approach within the chart/non-paper prepared by him.

The EU questioned the difference between the chart and Document SCCR 26/3. It also asked how the discussion on each issue was envisaged and whether it would be limited to a principled discussion.

The Chair responded to the first question by stating that while Document SCCR 26/3 was the source, it would be better to use the chart as a tool than to refer to a document even though it had been approved by the SCCR. To the second question, the Chair stated that while he could not predict the way in which the discussion would unfold, he foresaw a discussion which would first test whether the topic had consensus with regard to its inclusion in the topic and then try to set a principle that would be agreed upon. If solutions existed, an exchange of views based on the Australian approach of contrasting the principle with the findings in the Crews' study would take place, followed by methods of resolving the issue through exchange of best practices or an international instrument.

Day 4: July 2, 2015

Day 4 commenced from the previous day's discussion on the approach forward on libraries and archives.

Brazil spoke on behalf of GRULAC and supported the approach recommended by the Chair in the non-paper submitted to the SCCR. It believed that this allowed for flexibilities. It invited comments for improvements.

This was repeated by Pakistan on behalf of the Asia Pacific Group and Nigeria on behalf of the African Group, Iran, Malaysia, Senegal, Mexico, Tanzania, Guatemala and Zimbabwe.

On behalf of the Asia Pacific group, Pakistan appreciated the proposal on the non-paper by the Chair.

Japan, speaking for Group B, required further clarifications on the approach proposed by the non-paper and reiterated its support to a discussion based on principles and objectives as proposed by the US. The Chair expressed his willingness to offer clarifications on questions from any of the delegations.

Nigeria supported the proposal on behalf of the Africa Group.

Iran supported Pakistan and the interventions made by Brazil and Nigeria. It saw these discussions as beneficial for developing a legally binding instrument. Since discussion on substantive issues was being delayed because of procedural matters, Iran asked Member States who believed that their positions would be hindered by the non-paper to express their concerns and suggest changes in the non-paper.

Uruguay speaking on behalf of their group stated that it supported the Chair's proposal and regretted that the discussion on substantive issues was being delayed due to procedural issues which, it believed, were settled in the 27^th SCCR.

The EU welcomed the proposal but raised concerns about clarity on the expected outcome of the approach suggested by the Chair.

South Africa supported the non-paper as a basis to proceed on the discussion.

Brazil, speaking for GRULAC, believed that it had a mandate on an international legal instrument in whatever form and asked whether all Member States agreed with the approach suggested by the Chair.

The EU stated that it did not find a mandate as described by Brazil in the general assembly 2014 records. It believed that the issue of the mandate would be controversial and would lead to unproductive and repetitive discussions. It asked the Chair to clarify the situation with respect to the mandate.

The Chair stated that before changing the topic to the mandate, he wanted to get more views on the proposal.

Venezuela supported the structure laid out by the Chair. Venezuela expressed dissatisfaction at the fact that even though it was supportive towards the Broadcast Treaty negotiations, which was not a priority for them, the same courtesy was not extended to them when it came to issues that were important to developing countries such as limitations and exceptions for libraries and archives. It was unhappy at substantive discussions on the latter being delayed due to procedural quarrels. It argued that if this was an indication of the way forward, it would first want to discuss exceptions and limitations at the next SCCR so that developing countries did not have to waste their time. Venezuela pointed out that even developed countries needed solutions on the issue of limitations and exceptions. It agreed with Brazil's interpretation with regard to the mandate.

Nigeria supported the statements made by the African Group, the Asia Pacific Group and GRULAC. It stated that procedural issues should not cloud discussions over substantive issues and that the approach put forward by the Chair allowed for sufficient flexibility.

Switzerland supported the Chair's proposal.

Australia believed that discussing procedures and concerns from Member States was important to ensure clarity on the way forward.

Canada supported the statements made by Switzerland and Australia.

The US supported the Chair's proposal. While it wanted a discussion on principles and objectives, it believed that the approach suggested by the Chair would help Member States. The US did not presuppose an outcome.

The Chair welcomed this statement and assured that the principles and objectives document submitted by the US would also be used as a tool to provide clarity on issues.

Ecuador supported the chart prepared by the Chair and agreed to using that chart as a starting point to guide discussions which would include principles and objectives as proposed by the US

Tanzania, on behalf of the African Group, supported the tool prepared as a means to reach a common understanding from the point of view of the different statuses of the countries.

Japan, in its national capacity, supported the statements made by Switzerland, Canada, Australia and the US.

Guatemala also showed great interest in the working of this tool for the purpose of the discussion.

Singapore realigned itself with the Asia Pacific Group's position and supported the Chair's proposal which it felt would be helpful in guiding the substantive discussions.

Zimbabwe appreciated the proposal made by Nigeria and showed its support for a constructive engagement without prejudice.

The Chair suggested that statements by NGOs should be taken only at the stage of discussing substantive issues. The Chair also welcomed questions seeking clarifications on the intention behind the preparation of the chart. The Chair agreed to write an introduction to the chart stating that the intention was not to prejudge any outcome. He encouraged Member States to discuss the substantive issue of preservation if all concerns were adequately addressed by an introductory text.

China expressed support for the Chair's proposal.

The EU sought clarifications on whether the Chair would write an introductory text and whether he would want discussions to proceed simultaneously. After receiving affirmations on both questions, the EU asked for bilateral discussions with the Chair.

After the coffee break the Chair announced that he had written an introductory text to the chart which would be circulated and sought to start discussion on the substantive issue of preservation and invited comments on the same from experts.

Preservation

Non-Governmental Organizations

Speaking first, the International Federation of Libraries and Archives (IFLA) stated that preservation was one of the most critical, frequently exercised and widely approved activities of libraries and archives and that preservation standards varied according to the medium - whether paper, film or digital. It pointed out that preservation was required only to preserve and not to create additional copies. Libraries and archives needed to collaborate across borders to preserve cultural heritage which may exist in libraries of different countries. Hence it was important to take international action.

The International Federation of Reproduction Rights Organisations (IFRRO) stated that preservation included reproduction, digitization and other forms of electronic reproduction, for the sole purpose of preserving and archiving information. It noted that many Member States did not include exceptions for this in their domestic laws. IFRRO wanted such exceptions to conform to the Berne three-step test and not be used for commercial purposes. It argued that while works that were commercially available did not need preservation, works that were no longer commercially available required an exception so as to be preserved appropriately. It believed that libraries had an important role to play in preserving and providing access to knowledge and cultural heritage and appropriate licensing agreements needed to ensure that they can perform this role adequately.

The International Council on Archives (ICA) said that without archives, countries such as South Africa would lose their past and cultural roots. The Council argued that while preservation could be thought of as a purely national issue with the only possible solution being to encourage countries to introduce preservation standards in domestic legislations, this would ignore important international dimensions involved in the question. Materials such as diplomatic reports and reports of ambassadors sent to other countries were essential to the history of a country. Such cases required stable, harmonious legislations. Also, since preservation of modern materials involved the use of technology that was not available in all countries, preservation standards would ensure that electronic materials could be frequently migrated and copied could be stored anywhere in the world.

The Federation of International Journalists (FIJ) strongly supported its work being archived as long as parallel publication was avoided. FIJ stated that exceptions should be accompanied by fair remuneration to authors and performers since the world would be deprived of cultural works if authors in poorer countries could not make a living. Authors were in an equally vulnerable state to libraries in less wealthy countries due to contracts with publishing houses. Given the imbalance in power, the WIPO needed to address this with an international instrument.

The International Authors Forum (IAF) agreed with the technical comments made by IFFRO and FIJ and supported preservation and digitization. It pointed out that while authors around the world were vulnerable due to having low incomes, it still wanted their works to be preserved.

According to (SDM), while the publishing industry depended on copyright protection to innovate, some limitations and exceptions needed to be carefully crafted. It wanted these limitations and exceptions to comply with the Berne three-step test, taking into account the increased risk of misappropriation and misuse in the digital environment. It wanted to ensure that uses under this exception were limited to preservation and replacement and did not allow the creation of additional copies.

Civil Society Coalition (CSC) called for harmonized, broad and compulsory exceptions to the right of reproduction to allow libraries to fulfill their traditional functions and to provide access to knowledge and culture on non-commercial terms. It pointed out that the world wide web of the 1990s was not preserved and would be lost without immediate preservation thereby creating a memory hole for the 21^st century.

Knowledge Ecology International (KEI) supported preservation and wanted copyright and trade negotiators to sort out context-specific access related issues. It believed that preservation should be a minimum standard and that domestic laws must be harmonized in this regard. It also pointed out that preservation included exceptions to Technological Protection Measures, exceptions to related rights, etc. Citing Wikileaks as an example, KEI stated since knowledge about one country could reside in another, there was a need for an international treaty that harmonized minimum standards on preservation.

Union internationale des éditeurs (UIE) stated that though International Publishers Association (IPA) considered topics related to libraries and archives as unrelated to the agenda, their preservation was important nonetheless. It articulated the publishers' wish to have their publications as part of the nation's heritage. It envisioned for the libraries authorized to preserve these to be technically, financially and legally enabled to do so. UIE emphasized on the need for differentiating between copyrighted, unpublished and commercially available works and achieving a consensus between stakeholders. It mentioned the following reasons for collaboration between right holders and libraries - firstly, publish may publish works in different formats, or hold information in different databases; secondly, updated data can be preserved only with collaboration; and thirdly, agreement on the mode of providing digital files to preserve libraries was also essential.

The IPA wanted a substantive debate on preservation. It wanted distinctions drawn between unpublished works, commercially available works and works in the public domain as there were different interests and different levels of consensus amongst stakeholders for these categories. The IPA also pointed out that digital preservation of digital work required co-ordination between libraries and right-holders in understanding which copies had to be preserved, the format it had to be preserved in, and how the digital files should be provided to libraries.

The (SCR) stated that there was a need for a preservation exception in copyright law since fires and other natural disasters had often led to knowledge and cultural materials being lost. SCR considered digitization to be a reliable answer. It believed that preservation could not be done simply through licensing when exceptions for archivists were unavailable. It believed that an international treaty would also prove useful where collaborative cross-border digital preservation initiatives were taking shape.

The Transatlantic Consumer Dialogue (TACD) considered preservation of a common past as a public good. It stated that current international copyrights law made it nearly impossible for librarians and archivists to engage in cross-border operations because uncertainty and possible litigation costs prevented them from engaging in preservation. It went on to state that even consumers in developed countries wanted these exceptions and limitations so that libraries could engage in cross-border preservation initiatives.

The Society of American Archivists (SAA) cited Crews' study to state that national measures and exchange of national best practices were both inadequate and instead an international instrument on limitations and exceptions for libraries and archives was necessary. It said that archivists could not preserve knowledge and serve global users without consistent and predictable laws. It also stated that 45% of WIPO's Member States provided for no exceptions on preservation and those who did were so varied in their approaches that librarians and archivists needed an international instrument to do their job. Further, according to SAA, three steps were involved in preservation - copying, updating the copies, and making the copies available when the original copy becomes damaged, obsolete, or is lost. As preservationists, it said, it needed the right to reproduce copies, migrate them either digitally or otherwise, and make them available.

The International Society for Development of Intellectual Property (the Society) pointed out that protection of IP strengthened creativity and innovation and contributed to building of a strong knowledge economy provided that it was balanced with public interest. To be successful, it said, any solution sought by the SCCR should balance different interests. It was of the opinion that this could be done either through limitations and exceptions or exchange of best practices. The Society pointed out that practical solutions were easily achievable and more likely to produce results than long term international measures.

The Canadian Library Association (CLA) explained that preservation included reproduction in digital and physical forms for the purpose of preserving and archiving a copyrighted work. It did not believe this could be adequately done with simple licensing contracts. It also pointed out that format shifting was important to ensure works remained preserved where the original mediums became obsolete or too fragile. It ended with emphasizing the importance of cross-border initiatives toward preservation.

The German Library Association stated that digital long-term preservation necessitated technical instruments. It opined that storing archives on CDs was not enough as the CDs might become unusable after a decade. It argued that multiple copies in newer formats were required to adequately preserve works. It further stated that publishers often refused to license works for this purpose and this necessitated an international instrument that harmonized laws across countries.

The European Bureau of Library Information and Documentation Associations (EBLIDA) considered libraries' role in preserving a nation's history to be a public good. It pointed out that licenses expired according to terms of subscription. It also said that libraries could not obtain back-up files for preservation and could only access them from the producer's website which provided no guarantee of preservation. Further, it stated that even in the EU, several Member States had not put in place clear comprehensive policies to ensure preservation; and, that an international solution which provided for a minimum standard for preservation regardless of the format of publication was necessary.

Member States

Brazil spoke first and underlined the importance of preservation. It proposed using technology-neutral and format-neutral terms in an exception for preservations.

Nigeria, on behalf of the African Group, pointed out that there was an overwhelming consensus amongst NGOs on the need to have an international instrument for preservation. It felt that contracts and licensing agreements could not do the job. Crews' study was credible evidence to show the need for an international instrument.

The US pointed out that the objective of their document on principles and objectives was to enable libraries and archives to do their job. Limitations and exceptions would enable libraries and archives to preserve copyrighted works in a variety of media and formats, including migration of content from obsolete formats. Though the US appreciated Crews' study, it wished to understand why different Member States had decided differently on this issue, what works required preservation, and how preservation was affected by TPMs.

Algeria stated that exceptions in its domestic laws allowed libraries to preserve one copy of a copyrighted work. It believed that an international instrument was required to harmonize these exceptions throughout the world.

UK said that its copyright law was amended in June 2014, to enable libraries and archives to make copies of copyrighted work in any format to preserve cultural heritage. It considered the current international framework and the three-step test adequate to provide for this exception.

Chile stated that its domestic law authorized libraries and archives to reproduce works that were no longer commercially available. A maximum of twelve copies could be made for non-profit uses.

Mexico also mentioned that exceptions and limitations for libraries and archives were present in its national laws. The exceptions allowed creation of copies for preservation, especially when the original had been taken out of the catalogue, had disappeared or was in a fragile state.

Ecuador said that some of the issues it wanted to consider and discuss were the subject, the number of reproductions, the format of reproductions and the circumstances in which these reproductions could be made.

India stated its Public Internet Access Programme and Information for All depended on preservation. It considered preservation important for economic development and believed it to be the foundation for intergenerational equity. Therefore, the exceptions should be wide and public interest should be the overriding factor.

Belgium stated that as in their domestic legislation, a limit on the number of copies allowed should be put in place if the purpose is preservation. Also, all exceptions should conform to the Berne three-step test. Belgium's national law did not consider works that were exhausted or out of commerce.

The Chair stated that he had prepared the introductory paragraph to the chart which mentioned that it was merely a tool to guide discussion and not a negotiating paper or a basis for the drafting exercise. The introduction encouraged evidence-based discussion without prejudging outcomes. He opened the floor for clarifications and discussions on the same.

EU thanked the Chair and stated that it wanted an agreement on what the expected outcome was before engaging in discussion. It expressed reluctance on engaging in any normative work. It stressed that there was no consensus on an international instrument. It preferred an exchange of best practices. The EU said that while a discussion on objectives and principles as proposed by the US was important, a more important exercise would be to exchange best practices and understand the rationale behind these best practices. It called for a reworking of the study by Kenneth Crews which made data more easily accessible and regrouped discussions of national studies by topic. It suggested that the WIPO Lex search database and search engine could provide for national studies even on library exceptions.

The Secretariat stated that work on the last issue was in progress and suggested that it be discussed in detail in the next session. The Secretariat also stated that it intended to organize regional seminars to provide technical assistance in this area for those who did not have exceptions yet or wanted to upgrade their laws.

Pakistan argued that the discussion was meant to include the possibility of all outcomes and not confined to any conditionality in light of the statement by EU. The Chair confirmed the same.

Nigeria, on behalf of the African Group, stated that while it was not prejudging an outcome from the discussions, it hoped that the exchange of best practices would seen as means to enhance the discussion and not as en end in itself.

Representing the Asia Pacific Group, Pakistan stated that it also did not want to prejudge outcomes but wanted to ensure that all the factual experiences were used and analyzed in a result-oriented manner. South Africa and Nigeria aligned themselves with Pakistan's position.

EU clarified that its acceptance of the chart as a tool did not mean that any outcome was acceptable or possible.

Iran aligned itself with Pakistan and South Africa.

The session on libraries and archives ended with no agreement on an international instrument.

Day 1: July 3, 2015

Agenda item 8 - Limitations and Exceptions for teaching, research, educational institutions and persons with other disabilities

Nigeria spoke first and said that the Committee should advance work on exceptions and limitations for educational and research institutions and persons with other disabilities. It reiterated that it wanted to discuss all three issues in the future sessions of SCCR.

The Central European and Baltic states group expressed interest in sharing experiences and practices regarding copyright limitations and exceptions for educational and research institutions and for persons with other disabilities.

On behalf of the GRULAC countries, Brazil welcomed the discussion on limitations and exceptions for educational and research institutions and for persons with other disabilities. It stated that there was no study on persons with other disabilities
and their relationship with limitations and exceptions and their right to culture.

The EU welcomed discussions on how copyright could support educational and research institutions and people with other disabilities in the analogue world. It stated that these exceptions could be adopted since the existing international copyright framework had adequate legal space and flexibility. It suggested that the Committee work on adopting exceptions and limitations such that national and international frameworks concur.

China, discussing its legal provisions regarding topics on the agenda, welcomed equal education and fair regulations.

Georgia, speaking on the importance of balancing the interests of copyright holders and the society, suggested that a strong and sustainable copyright system could be established through limitation and exceptions.

The US spoke about the need for exceptions and limitations for educational purposes to be consistent with international obligations. It considered collaborations with copyright industries to be essential to its education system. Firstly, it emphasized encouraging members to adopt exceptions and limitations which allowed using copyrighted works for educational purposes while ensuring a balance between rights of authors and public interest. Secondly, it encouraged the promotion of access to educational content through innovative licensing models. Thirdly, it wanted to adopt limitations and exceptions through technological learning. Finally, it included general ideals like monetary grants for non-profit education, ensuring access of copyrighted works. Owing to technological advancements and changes in the educational environment, the US welcomed the plans of WIPO to update the study on other disabilities for discussions in the Committee.

Mexico believed that education and scientific research could be encouraged by facilitating access to protected works. It also discussed executive strategies to allow the promotion of enterprises and the development of education to encourage technological innovation.

Trinidad and Tobago supported Brazil's views. It opined that the issues of limitations and exceptions for libraries and archives, and educational and research institutes are in tandem with each other.

Supporting this view, Russia stated that these issues did not have to be divided, and a single common approach could be used to resolve this conflict. It opined that it was a way of respecting the interests of authors and copyright holders, and also providing access for promoting development of science, culture and providing opportunities to citizens.

Algeria stated that the Berne Convention had established the stages for the exceptions and limitations for research and education. It argued that the exceptions and limitations should not only fulfill the needs of developing countries but other stakeholders as well. Algeria supported exceptions for research and teaching institutes.

South Africa supported a study on the challenges faced by education and research institutions and people with other disabilities, especially in the digital environment.

Sudan supported the statements of the African Group, Asia Pacific Group and GRULAC. It spoke on the need to make balanced efforts on all the issues on the Agenda to reach a consensus. In its opinion, the Marrakesh Treaty indicated that the study on exceptions and limitations and people with disabilities was required. It supported updating the study using previous studies of the International Bureau. In conclusion, it stated that libraries and archives should benefit from limitations and exceptions and should be accessible to all.

Pakistan supported the statements issued by the Asia Pacific Group, the African Group and GRULAC. It wanted time to be allocated for all three issues in future SCCR sessions. It also supported the study proposal of the African Group.

Ecuador also supported the statement of GRULAC and wished to dedicate more time to these issues in the session. It believed that all these elements, on better understanding, could help the proceedings of the committee.

Nigeria supported the intervention made by the Africa Group and the statements of Pakistan and Brazil. It considered exceptions and limitations for educational and teaching institutions, and persons with other disabilities to be important for advancement of knowledge. It highlighted the need for adjusting the international copyright system to facilitate access and usage of digital content by all.

Guatemala aligned itself with Brazil's statement. It attached importance to limitations and exceptions since it considered access to be a human right. It wanted a legal instrument covering limitations and exceptions in the digital area which considering the three-step test.

The Secretariat recalled that at SCCR 26, it had been asked to identify whether resources could be found to update the existing studies on exceptions and limitations for educational and research institutions. There were five regional studies conducted about five years ago on this topic. It reported to the Committee that it would identify the resources and start work the same year. It also sought funds in the work plan to work on it in the next bi-annum, assuming it was approved by the Member States. The Secretariat clarified that it had also been asked to look if there were resources to conduct a scoping study on the intersection of persons with other disabilities and the copyright system to understand the areas which needed to be addressed. There was an event on hearing impairment and captioning and how that intersected with this topic. There had also been a discussion on conducting additional studies and whether there would be resources for the same.

Sudan, speaking on persons with disabilities, pointed out that the same organizations which had previously tackled the subject should conduct the study since these organizations had more experience on limitations and exceptions. Sudan suggested holding seminars for direct interaction with them.

Nigeria, on behalf of the African Group, sought clarifications on whether this pertained strictly to the topics that the Secretariat had outlined - marking and scoping for persons with impaired hearing. It also wanted to know whether the captioning was for exceptions and limitations for educational and research institutions.

South Africa supported the intervention made by Nigeria.

Brazil sought further information from the Secretariat on whether it would be more efficient to have a compilation and a consolidation of the studies in one global study on the situation of exceptions and limitations under agenda item 8 than having a series of regional studies.

Japan, with regard to artists' resale rights, said that the related provision existed in the Berne Convention. However, the flexibility provided by the Berne Convention meant that the protection of resale right was left to the declaration of national laws. Japan wanted the Committee to stick with the agenda and did not support the proposal of including artists' resale rights as a new agenda item of the committee.

The US fully supported enriching the agenda, and encouraged all delegates to engage in discussions to develop it.

Chair's Summary

The Chair's draft summary was given to the regional coordinators for their inputs.. Members were free to present and reflect upon the document. But since it was the Chair's summary, he refused to enter into approval procedure for this. He suggested a set of recommendations for the Committee to discuss. The Chair advised the committee to discuss their recommendations and not the summary.

Iran raised an issue on the legal status of the summary. It pointed out that the summary had not been discussed, negotiated and approved by the Committee which went against WIPO practice.

The EU reserved the right to make comments on points of substance. These related to paragraphs that mentioned what the Committee decided, or those that mentioned individual positions taken by groups of states. It agreed with everything that was said by Japan on behalf of Group B. It also favoured the general point raised by Iran in relation to the paper carrying a disclaimer on the fact that it did not commit to the Committee in any way.

Romania, on behalf of the CEBS, expressed support for the remarks made by the Group B coordinator.

Nigeria commented on the Chair's summary as a tool for providing balance on all the concerns raised by the different regional groups. It added that even the African Group's concerns had not been reflected in the summary. However, it reiterated its confidence in the summary for the purpose of moving forward.

The Chair stated that there were fifty pages which did not appear in summary shape but did on the record shape. However a record containing different views and specific positions had been made. The Chair's view was reflected here and because it was not approved or subjected to approval by the Committee, it did not take decision on that. The Chair sought to avoid starting an exercise on common drafting of each paragraph. It invited Members to consider the approach adopted by Nigeria and some delegates from the CEBS countries without taking that as a decision of the Committee. The Chair urged members to move to the next stage of recommendations. It invited oppositions from those against this view.

The Chair distributed a separate paper to all the delegates, and a discussion was commenced to arrive at a common view for the three items on the agenda. The Chair highlighted that regarding the third topic, which was related to exceptions and limitations for educational and research institutions and persons with other disabilities, there was a mandate to deliver the Committee's recommendation to the 2015 General Assembly.

Nigeria, on behalf of the African Group, asked the Chair to have a disclaimer in the summary and set the desired precedent. It was concerned that it could lead to the Committee being extended.

Pakistan said that the Asia-Pacific Group supported text-based negotiation on agreed topics and discussions on those requiring clarification. Pakistan considered it premature to talk about the exact timing of a Diplomatic Conference which could be decided in due course after evaluating progress.

Nigeria recommended that the 2015 WIPO General Assembly direct the Committee to expedite its work towards an international legal instrument in whatever form on the topic of limitations and exceptions for libraries and archives. For agenda item 8, it recommended repetition of the same language.

Brazil, on behalf of the GRULAC group, supported the statement made by Nigeria. It supported working towards an international legal instrument in whatever form as an objective for the future work on proposed recommendation on limitations and exceptions for libraries and archives.

Pakistan, on behalf of a majority of the Asia-Pacific Group, showed support to the proposal made by Nigeria.

Iran supported the statement made by Pakistan on behalf of Asia. It pointed out that the text-based negotiations on the Treaty had not been conducted. There was also no common understanding on key issues and Articles. Iran recommended that the Committee continue its work on text-based negotiations, finding solutions for key issues and achieving consensus on key provisions in the draft Treaty. Depending on the progress of the text-based negotiations, the Committee could decide on the date for convening a Diplomatic Conference. It supported the statement made by Nigeria and Brazil, and seconded by Pakistan regarding items 7 and 8.

India supported the views expressed by Nigeria, Brazil, Pakistan and Iran on both agenda items dealing with limitations and exceptions. It suggested that the mandate of the General Assembly should reflect in the language, which was presently not the case. It sought to know the basis on which it had been decided that the Diplomatic Conference would be held in 2017 since there was no consensus of opinions yet. It suggested that the reference be left open, depending upon the two future SCCR meetings.

The Chair clarified that a recommendation without consensus could not be accepted. On observing that no Delegate requested the floor, he welcomed concluding remarks and called for closing the session.

The EU expressed disappointment on the failure to formulate a roadmap on the Treaty in 2017 and reaching a conclusion on the exception items.

Nigeria, in line with the comment made by South Africa, recommended that more effort could be made towards finalizing a language that achieves consensus.

The Chair, showing interest in the suggestion of Nigeria, expressed the desire to see whether the other delegates were keen on receiving suggestions and welcomed different views regarding this.

South Africa requested the floor and supported the statement made by Nigeria. It felt that the Committee had something on the paper and if the regional coordinators met, a consensus could be achieved.

The Chair proceeded to listening to closing remarks. The meeting closed with closing remarks by delegates.

For more details visit https://cis-india.org/a2k/blogs/report-of-the-30th-session-of-the-wipo-sccr-by-the-centre-for-internet-society

Second Meeting of the Expert Committee on WIPO

praskrishna — 2015-11-29T08:27:54Z

The second meeting of the Expert Committee on WIPO was held in the Committee Room (6th floor) of Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi on November 2, 2015. The meeting was held under the chairmanship of Special Secretary (I&B). Nehaa Chaudhari and Anubha Sinha attended the meeting.

Download the minutes of the first meeting here.

For more details visit https://cis-india.org/a2k/news/second-meeting-of-the-expert-committee-on-wipo

Statement by the Centre for Internet and Society on the Broadcast Treaty at SCCR 30

nehaa — 2015-07-02T01:20:38Z

The 30th Session of the World Intellectual Property Organization's ("WIPO") Standing Committee on Copyright and Related Rights ("SCCR") is underway in Geneva from 29 June, 2015 to 03 July, 2015. While CIS was unable to attend this meeting, we have the following statement to make on negotiations on the Proposed Treaty for Broadcasting Organizations.

This statement was prepared on behalf of CIS by Nehaa Chaudhari. Many thanks to Pranesh Prakash and Amulya Purushothama for their inputs.

Mister Chair,

Our intervention will speak to the presentations made by broadcasting organizations on Day 1 and Member and Group Statements on Days 1 and 2.

First, Mr. Chair, generally on technical panels- If this is the manner in which this Committee will be appraised of new developments, without prejudice to our reservations about this ad-hoc manner itself, we strongly suggest that other interest groups and stakeholders be provided a similar opportunity to present their side of the story, in front of this Committee, for one entire day. Industry representatives, including those from telecommunications, information technology, consumers electronics, and performers- and not just various public interest NGOs have been expressing reservations and concerns about this Treaty from at least as far back as 2006, if not earlier. We appreciate Group B’s ask in their introductory statement to “continue to hear the voices of the real world” – We only ask that you award all stakeholders an equivalent, if not equal opportunity to be heard in the manner that you have the broadcasters; without privileging the interests of the broadcasters above the others. There must be a recognition of the rights of other stakeholders including content owners- not just in the Treaty as noted by India yesterday, but also in the discussions leading up to it.

Second, Mr. Chair, on Technical Background Paper document SCCR 7/8 – which you had flagged off as relevant for this session in your summary of SCCR 29 – but, of course, I stand to be corrected if I have understood incorrectly. Mr. Chair, this document is more than a decade old – it seems to have seen no updates since 2002, and even in that form, it is wanting. The document excludes from its scope the rationale for the treaty as well as the scope for protection, which we find problematic, especially given as these have been among the most contentious topics in this Committee. Additionally in only dealing primarily with the Rome Convention with but a passing reference to other international instruments, if at all, it presents an incomplete overview of the legal framework already available to broadcasters. I also have other comments to this document, which I will send in writing. We’d strongly urge that an updated version of this document be presented to this Committee so that we can have a more accurate discussion, just like the one on market and technology trends has been updated as SCCR 30/5.

Third, Mr. Chair, on the presentations and statements themselves. A reason oft cited in this Committee, Mr. Chair, has been the need to protect the underlying investment and the purported loss of revenue. From their presentations on Day 1 Mr. Chair, it seems to us that the broadcasters are doing perfectly alright without a Broadcast Treaty. Mr. Knapp for IHS in fact said that “Despite digitization, TV homes, paid TV homes are growing globally”, stating also, that there was a very high average revenue per user in North America and a “double digit growth in the pay TV sector” in other regions, which meant a “fairly healthy industry despite all the digital disruption side”. We have also heard from TV Globo who told us of the progress made in advertising and pay TV and smartphone penetration in Brazil, and from Zee Telefilms from India who spoke of a booming broadcasting industry.

Mr. Chair, Nothing we have heard so far addresses three important questions – why is there a need for a separate right? Why are protections under the Rome Convention inadequate? While piracy might well be an issue, why can’t it be covered under existing copyright law – all of which comes down to why we’re discussing the creation of a para copyright regime for broadcasting organizations.

From the Caribbean Broadcasting Union, we heard about emerging technologies and the challenges due to piracy. There was also a mention of significant investment – but if that is to be the basis for this treaty, we would ask that detailed reports of these investments and losses also be placed before this Committee. Also, none of this addresses the lacunae in the Rome Convention or existing international copyright law.

Mr. Chair, we have repeatedly heard from Group B and the European Union on the ‘significant economic value of broadcasting’, but, this economic value has had international law recognition for a while now. While the CEBS group, Japan and Russia speak highly of technological advancements to justify the need for the Broadcast Treaty, there has still been no discussion on the inadequacy of existing international law to address these technological advancements. There needs to be something more that justifies this attempt to give broadcasters an additional layer of rights. It might be useful to conduct a comprehensive study on signal theft and piracy and the legal frameworks in every member state to deal with signal theft and piracy, and an updated study on the international legal framework as well. This Committee has precedent on such an exercise in Prof. Kenneth Crews’ study on limitations and exceptions for libraries and archives that has been tabled at this SCCR.

Mr. Chair, this para copyright we’re trying to create, especially without all stakeholders being heard equally, would in effect severely limit any competition that broadcasting organizations would face from the Internet and other emerging technologies; which is undesirable for any market, besides access to free knowledge and information, as well put by the delegation of Iran.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/statement-by-the-centre-for-internet-and-society-india-on-the-broadcast-treaty-at-sccr-30

Comments on the Protection of Broadcasting Organizations: Technical Background Paper Prepared by the WIPO Secretariat

Nehaa Chaudhari and Amulya Purushothama — 2015-09-03T01:47:59Z

Technical Background Paper prepared by the WIPO Secretariat in relation to the Broadcast Treaty (“Technical Background Paper) provides information on new and emerging technologies and on legal developments in the broadcasting sector. This Technical Background Paper will be discussed at the upcoming 30th session of the SCCR in Geneva on 29th June- 3rd July 2015. The Ministry of Information and Broadcasting, Government of India had called for comments on the same. This is a submission made by Nehaa Chaudhari and Amulya Purushothama on behalf of the Centre for Internet and Society in this regard.

We thank Amulya Purushothama for her assistance with research and other assistance on this subject. While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed. Click to view the PDF.

I. Preliminary

1. This submission presents preliminary comments by the Centre for Internet and Society ("CIS") on the Technical Background Paper prepared by the WIPO Secretariat in relation to the Proposed WIPO Treaty on the Protection of Broadcasting Organisations ("Broadcast Treaty").

2. This submission is based on the Technical Background Paper Submitted By the Secretariat at the Seventh Session of the Standing Committee on Copyright and Related Rights ("SCCR") held at Geneva from May 13 to 17 2002 (SCCR/7/8) dated April 4, 2002.[1]

3. CIS commends the Ministry of Information and Broadcasting, Government of India for its efforts at seeking inputs from various stakeholders prior to framing India's response to this document. CIS is thankful for the opportunity to provide this detailed submission.

II. Overview

Governing Principles

4. CIS is a non-governmental organization engaged in research and policy work in the areas of, inter alia, access to knowledge and openness. [2] CIS values the fundamental principles of justice, equality, freedom and economic development. This detailed submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's National Interest at the International Level. Accordingly, the comments in this submission aim to further these principles and are limited to those sections of the document in question that most directly have an impact on these values.

Adoption of a Signals-Based Approach

5. CIS has consistently recommended the adoption of a Broadcast Treaty consistent with the signals based approach, [3] in consonance with the 2007 mandate of the WIPO General Assembly, binding on the SCCR. In this submission as well, we re-iterate our commitment to the same.

III. Detailed Comments

On the 'Introduction'

6. The Technical Background Paper was prepared twelve years ago, in 2002. Accordingly, more recent legal and technological developments, national approaches and industry practices would need to be addressed. Accordingly, it is submitted that at SCCR 30, the Indian delegation request that the SCCR be presented with an updated study. This would be in line with the stated aims of the Technical Background Paper itself, i.e., to focus on technological changes that affect the activities of broadcasting organizations.[4] Further CIS believes that the current Technical Background Paper reads as a justification for the Broadcast Treaty as opposed to a neutral study. It is submitted that an updated version of this paper with including inter alia, some of the safeguards discussed later in this submission might address this imbalance.

7. The Technical Background Paper excludes from its scope the rationale for protection as well as the scope of protection for broadcasters. [5] CIS is of the opinion that this limits the Technical Background Paper - issues such as the justification/ need for the treaty, the scope of protection to be offered and the kind of protection, go to the very heart of the issue and must be discussed in the Technical Background Paper if it is to inform a meaningful debate on the subject.

8. CIS further believes that the very need for a Broadcast Treaty has not been clearly established in the Technical Background Paper. As we have indicated earlier,[6] investments made by broadcasters in broadcasting infrastructure, licensing of copyrighted works and creation of copyrighted works are already protected under existing legal systems. While the licensing and creation of copyrighted works are protected under copyright law, the investment in broadcasting infrastructure might be construed to be a "broadcast right", which is enshrined [7] in the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961.[8] A detailed discussion on the existing legal framework is available in the next section of this submission.

On 'Broadcasting Organizations and the Rome Convention'

The Legal Framework Applicable to Broadcasting

9. This part of the Technical Background Paper discusses in detail the various provisions of the Rome Convention. However, it is noted that there is a very limited discussion of legal developments that have happened since the Rome Convention.[9]

10. CIS believes that for a complete understanding of the legal framework applicable to broadcasting, it is important that the Technical Background Paper document the evolution of international law on the subject since the Rome Convention. This is particularly critical when the need for this treaty itself is disputed.[10] In this regard CIS believes that the Technical Background Paper is inadequate and must be revised and updated to include other legal developments[11] including but not limited to the WIPO Copyright Treaty, 1996 ("WCT"), WIPO Performances and Phonograms Treaty, 1996 ("WPPT"), the Convention Relating to the Distribution of Programme -Carrying Signals Transmitted by Satellite, 1974, ("Brussels Convention") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").

11. CIS further believes that for a complete understanding of the legal framework applicable to broadcasting, it is imperative for the Technical Background Paper to document national level legal developments in all member countries on this issue. Precedent for this exercise exists in the form of the study conducted in related to the Proposed International Legal Instrument on Limitations and Exceptions for Libraries and Archives. [12] In this regard CIS calls for a comprehensive study on legislation surrounding broadcasters rights - both as related rights and as a separate right - and on the nature and extent of protection offered to broadcasters under the national legislations of all member states.

12. CIS believes that for a complete understanding of the legal framework applicable to broadcasting, it is important for the Technical Background Paper to further document any other widely followed industry practices and contractual arrangements that might have developed in the field. In this regard CIS believes that the present Background Paper should be edited and the above mentioned information be made available to the SCCR.

Signal, Content and Program

13. This part of the Technical Background Paper documents how a signal is defined and how it is different from the content carried on the signal. Further this part also states that it has been generally indicated that protections should be granted to broadcasting organisations for their signals independent of the copyright and related rights protection of the content.[13] In this regard CIS submits that definition of a signal is well settled under various international legal instruments, which have adopted uniform terminology that excludes content underlying the signal.[14] It is submitted that the Technical Background Paper must be edited to include all of this information to allow for informed debate on the matter. It is further submitted that technologically neutral terminology must be avoided and only terminology based on the "signals based approach" decided at the 2007 WIPO General Assembly must be adopted. [15] It is lastly submitted that any deviation from the signals based approach would lead to a Para-copyright regime for broadcaster's rights which would substantially harm public interest and increase costs to access to knowledge. [16]

14. This part of the Technical Background Paper also avers "during the discussions in the Standing Committee, it has generally been indicated that protection should be granted to broadcasting organizations for their signals independently of the copyright and related rights protection of the content." [17] It is submitted that this statement is not entirely accurate. Several Member States and Observers have submitted at various sessions of the SCCR that any protection granted must be limited to signal to address signal theft only; and that any other sort of protection would create a legal fiction that would lead to uncertainty, the creation of multiple rights holders, a Para-copyright regime and increased costs for legitimate use of copyrighted material.[18]

On 'Legal Issues to be Considered'

15. CIS reiterates the impetus to fully establish the need and the justification for the Broadcast Treaty, before considering other substantive legal issues. CIS strongly believes that the need for the treaty has not been fully established.[19]

16. It is also suggested that a recommendation be made for the Technical Background Paper to include a section on limitations and exceptions as 'legal issues to be considered', critical from the perspective of the protection of freedom of speech and expression and access to knowledge.

Broadcasting and Piracy

17. This part of the document discusses the signal piracy and its effect on markets in developing and developed countries. [20]

18. CIS submits that since the justification for this treaty is based on signal piracy, this section of the Technical Background Paper ought to be more detailed. Illustratively, this section must be updated to include studies on the losses that occur due to signal piracy in various countries, and the exact lacunae in the current legal system that render it inadequate to address this issue.

Program-Carrying Signals

19. In this part the Technical Background Paper discusses program carrying signals that are sent from point to point before the broadcast that could possibly be pirated.[21]

20. CIS believes that the claim that pre-broadcast signals have been stolen before[22] must be backed up by adequate data and studies. As of this document they remain assertions. CIS further believes that any steps taken in this regard must adopt the 'signals based approach' mandated by the 2007 WIPO General Assembly[23] and ensure that the underlying content is not subject to an additional layer of protection.[24]

The Object of Protection

21. This part of the paper provides a cursory overview of the different definitions adopted to define the object of protection, i.e., the broadcast under the Rome Convention, the Brussels Convention, and the WPPT.[25]

22. CIS believes that a more in-depth study of definitions of broadcast under all international instruments [26]is called for. CIS further believes that in keeping with the 2007 WIPO General Assembly mandate as mentioned above, 'signals based approach' is to be adopted which would preclude technologically neutral terminology from being adopted in the object of the protection.

The Subject of Protection

23. This part of the paper provides a cursory overview of the different definitions adopted to define the subject of protection, i.e., the broadcast under the Rome Convention, the Brussels Convention, the WPPT and the ITU Radio Regulations.[27]

24. CIS believes that the mandate of 'signals based approach' as mentioned in the 2007 WIPO General Assembly mandate must be adhered to (as stated earlier) and only those entities that broadcast signals and are therefore vulnerable to signal theft must be considered beneficiaries under the Broadcast Treaty. As stated above, technologically neutral terminology would fall outside of this mandate. CIS believes that this should be made clear in the Technical Background Paper.

IV. Concluding Observations

25. In conclusion, CIS submits the following recommendations on the Technical Background Paper.

a) Updating the Technical Background Paper to include legal and technological developments to better inform the discussion on the Broadcast Treaty.

b) Updating the Technical Background Paper with an expanded scope that explores all issues relevant to discussion including the scope for protection and the justification for protection.

c) Updating the Technical Background Paper to include provisions made under all relevant international conventions, even those that have come into existence after the Rome Convention.

d) Updating the Technical Background Paper to include widely prevalent industry practices that could affect the discussion around the Broadcast Treaty.

e) Conducting a comprehensive study on legislations regarding broadcasters' rights and broadcasting under all national regimes to enable a more informed discussion on the possible effects of the proposed treaty.

f) Updating the Technical Background Paper to include a discussion on limitations and exceptions under the proposed treaty.

g) Conducting a separate study on the extent of signal piracy and losses incurred due to signal piracy including a section that traces the causes behind signal piracy and explores whether or not a legal lacunae is to blame.

h) Updating the Technical Background Paper keeping in mind the WIPO 2007 General Assembly mandate on 'signals based approach' especially in parts relating to object, subject and scope of protection.

V. Other Resources

Statements made by CIS to the SCCR on Broadcast Treaty

1. 29^th Session of the WIPO SCCR :CIS 2^nd (brief) Intervention on the Broadcast Treaty, http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty (last accessed 25 June, 2015)

2. CIS Intervention on Proposed Treaty of Broadcasting Organizations, SCCR 29: http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

3. CIS Statement at SCCR 28 on the Proposed Treaty for Protection of Broadcasting Organisations, Available at: http://lists.keionline.org/pipermail/a2k_lists.keionline.org/2014-July/002720.html (last accessed 25 June, 2015)

4. CIS Statement at 27^th SCCR on the WIPO Proposed Treaty for the Protection of Broadcasting Organisations, Available at: http://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

5. CIS' Statement at SCCR 24 on WIPO Broadcast Treaty, Available at: http://cis-india.org/a2k/blogs/cis-statement-sccr24-broadcast-treaty (last accessed 25 June, 2015)

6. Statement of CIS on the WIPO Broadcast Treaty at the 23^rd SCCR, Available at: http://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement (last accessed 25 June, 2015)

7. Statement of CIS, India on the WIPO Broadcast Treaty at the 22^nd SCCR, Available at: http://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement (last accessed 25 June, 2015)

8. CIS Statement on the WIPO Broadcast Treaty at SCCR 19, Available at: http://cis-india.org/a2k/blogs/sccr19-broadcast-treaty (last accessed 25 June, 2015)

Submissions made by CIS on the Broadcast Treaty

1. CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, 21 December 2014, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty (last accessed 25 June, 2015)

2. CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Braodcast Treaty Compared to Other International Conventions, 11 December 2014, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions (last accessed 25 June, 2015)

3. CIS Comments to the Ministry of Human Resource Development on the Proposed WIPO Treaty for the Protection of Broadcasting Organisations, 7 December 2013, Available at: http://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

4. Comments to MHRD on WIPO Broadcast Treaty, March 2013, Available at: http://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty

5. Comments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives, 29 November 2012, Available at: http://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives (last accessed 25 June, 2015)

6. Comments to the Ministry on WIPO Broadcast Treaty, March 2011, Available at: http://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011 (last accessed 25 June, 2015)

On behalf of the Centre for Internet and Society,

Nehaa Chaudhari Amulya Purushothama

Lawyer/Programme Officer Lawyer/Research Assistant

nehaa@cis-india.org amulyaindavar@gmail.com

[1] Hereafter "Technical Background Paper"

[2] See www.cis-india.org (last accessed 25 June, 2015) for details about CIS' work.

[3] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[4] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.3.

[5] Id at p.2.

[6] See for Instance CIS' Statement at SCCR 24 on the WIPO Broadcast Treaty, Available at: http://cis-india.org/a2k/blog/cis-statement-sccr24-broadcast-treaty (last accessed 25 June, 2015).

[7] Id.

[8] Hereafter, the Rome Convention.

[9] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.4-5

[10] See 'Overview' of this submission.

[11] See for instance CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[12] See for example, Study on Copyright Limitations and Exceptions for Libraries and Archives, Available at: www.wpio.int/copyright/en/limitations/libraries_and_archives.html (last accessed 25 June, 2015).

[13] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5

[14] CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[15] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[16] CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 : http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79(last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015)

[17] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5

[18] For details see CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[19] See comments under Introduction in this submission.

[20] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15

[21] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15-16

[22] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15

[23] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[24] CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015).

[25] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.16-17

[26] CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn (last accessed 25 June, 2015).

[27] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.17-18

For more details visit https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper

National IPR Policy Series : India's National IPR Policy - What Would WIPO Think?

nehaa — 2015-07-02T17:47:58Z

As part of the National IPR Policy Series, CIS is evaluating how India's National IPR Policy framework and process holds up to WIPO's suggestions. In this note, Varun Baliga and Nehaa Chaudhari examine in particular, the functioning of the IPR Think Tank and the first draft of the National Policy in light of the WIPO framework and the principles it encapsulates.

This note is a brief overview of the approach set out by the World Intellectual Property Organization ("WIPO") for the development of National IPR Strategies by various countries. This note also compares WIPO's approach to the approach adopted by the IPR Think Tank ("Think Tank") in the formulation of India's National IPR Policy This note is only an academic exercise and is not to be construed as a recommendation of the procedure set out by WIPO for the development of National IPR Policies/Strategies.

An Overview of WIPO's Approach

WIPO's suggested model of a National IPR Policy operates at three levels - The Process, Baseline Questionnaire and Benchmarking Indicators. [1] On process, WIPO suggests an 8-step procedure in developing a National IP Strategy that lays clear emphasis on both continuous consultation and methodological rigour in data collection. The initial 'Assessment Mission' is aimed at preparing the ground for the formulation of the policy, and includes meetings with stakeholders so as to involve interested entities from the very beginning. [2] Given that an IPR policy is necessarily a political exercise, WIPO recommends that the mission be used to secure the political capital and commitment that would be necessary to see the exercise through. Then, a 'project (national) team' is constituted for an IP audit and develop an understanding of the economic, social and political infrastructure as context for the formulation of the policy. It is also stated that, in most instances, the team will include an international consultant. This is further complemented by 'Desk Research' and 'Data Collection' using the 'Baseline Survey Questionnaire', an integrated data collection tool developed by WIPO. The desk research is an assessment of the existing IP policies coupled with the country's broader goals - developmental, economic and social, so as to conceptualize a policy that is in conformity with the goals.

The data collection through the Baseline Survey Questionnaire is meant to complement the IP audit to understand the "weaknesses, strengths and potential" of "the current IP situation in the country". This audit and data collection drive is then buttressed with 'National Consultations' to validate the data and conclusions reached thus far. WIPO is unambiguous that the aim of these consultations is to enable a wide range of parties to exercise meaningful ownership and agency over the process of conceptualizing a national IPR policy. With the inputs received from the process so far, WIPO recommends that the drafting of the strategy commence on the basis of the "suggestions, opinions and recommendations received during the national consultation process". The drafting should operate at the level of each sector and the country as a whole. This is followed by a 'second round of stakeholder consultations'. These serve a dual purpose: to validate the findings of the first draft and to verify whether the first round of inputs are reflected in the draft itself. Finally, an 'implementation framework' including "implementation structures, a resource mobilization strategy, and monitoring and evaluation mechanisms".

Assessing the First Draft of India's National IPR Policy:

Now, we look at the National IPR Policy in India in light of the WIPO framework outlined above. First we look at the Assessment Mission or process followed prior to the announcement of any IPR policy. Then, we look at what assessment was undertaken of the existing IP laws in the country. Finally, the stakeholders meetings conducted so far are analysed in comparison to the purpose of such consultations that WIPO envisages.

Assessment Mission: There are no reports of an initial meeting having been held to explain the scope and methodology of the process. However, the IPR Think Tank invited comments before the release of the draft national policy in order to seek suggestions on the tentative policy. It should be noted that these comments have not been published.
Assessment of existing IP framework: The overview of the existing IP system in the draft policy covers just the various IP legislations and the relevant government departments. It then proceeds to underscore elements in Indian law that enhance and incentivize stricter standards for IP protection. For example, it illustrated the future challenge in copyright law as being enforcement on digital platforms. It identifies a need for concerted action to increase patent filings by Indians as over "75% of patent filings are by foreign entities". Further, even when it mentions India's ratification of the 2013 Marrakesh Treaty ensuring access to copyrighted works for persons with visual impairment, it is in the context of further reinforcement of copyright.Therefore, it is clear that the perspective of the draft policy towards India's existing framework downplays provisions ensuring access and protecting the public interest and focusses on more expansive IP protection, narrower exceptions and an overall priority for IP rights over the public interest in accessing knowledge. The purpose of the IP audit and desk research, "to obtain a clear picture of the current IP situation…, its weaknesses, strengths and potential.", has not been done justice by this audit weighted in favour of rightsholders. Finally, the Baseline Survey Questionnaire -an integrated tool for extensive data collection - has no mention in the draft policy. There is no indication that it has been utilized for the purpose of data collection, if any.
On stakeholder meetings: The Draft National IP Policy was released on 24 December 2014. A DIPP Press Release called for comments and suggestions to the First Draft to be sent in by January 30^th, 2015.[3] The first set of stakeholder meetings were only held on February 5^th and 6^th, 2015.[4] This is at odds with what the WIPO recommends. The very first step in the WIPO framework is the 'Assessment Mission' which involves meetings with stakeholders that explains the scope and methodology of the process, presumably to elicit views. There is no publicly available information that suggests that this has taken place. Second, the national consultation precedes the drafting of the strategy with the explicit goal of validating the IP audit findings and eliciting views on the drafting of the strategy. This is not intended to be a merely formalistic exercise but meaningful involvement of stakeholders in the whole process of conceptualizing a national IPR policy. Now, the DIPP has solicited comments prior to the publication of the first draft. However, mere solicitation of comments without meaningful consultation is a mere shadow of the objective of the WIPO recommendation of national consultations - "..to actively participate in the validation of the IP audit findings and the formulation of the National IP Strategy..to enhance a wide a range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy." Therefore, the principled objective of the consultation process as outlined by WIPO - enabling stakeholders to exercise a sense of agency over the policy document and drafting process - was severely undermined. Furthermore, WIPO suggests that the drafting of the policy should be based on the findings and suggestions submitted by the stakeholders. Given that comments have been solicited before the policy was drafted, it is incumbent upon the Think Tank to make comments submitted public. [5]

The following table summarizes the comparison in the WIPO approach to that of the IPR Think Tank. Apart from the procedure outlined thus far, the table touches upon other points of comparison that are sure to inform the continued functioning of the Think Tank in the road towards a National IPR Policy.

WIPO Suggestion	India's National IP Policy Framework - Comparison
WIPO has also suggested a number of justifications that may be advanced for the development of a national IP strategy. [6] These justifications will help in grounding the policy in a clear, lucid set of objectives. These are: Need to consolidate sectoral policies National long-term development agenda Benchmarking and best practices International trade obligations Strengthening the national IP office	India's Draft National IP Policy provides for the following objectives:[7] Create awareness of the economic, social and cultural benefits of IP (IP Awareness and Promotion) Stimulate the creation and growth of IP (Creation of IP) Strong and effective laws that protect IP rights in a manner consistent with national priorities and intl obligations and that balance the interests of the rights owners and the public (Legal and Legislative Framework) Strengthen IP administration and management of IP rights (IP Administration and Management) Augment Commercialization of IP rights; valuation, licensing and technology transfer (Commercialization of IP) Strengthen enforcement and adjudicatory mechanisms to protect and combat against IP rights violations ( Enforcement and Adjudication) Human Capital Development in IP
The second prong of WIPO's suggestions is devoted entirely to the Baseline Survey Questionnaire. There are seven clusters identified: IP Administration and Management Generation of IP by universities, research organizations, business, industry, SMEs and individuals Commercialization of IP and technology transfer by universities, research organization, business, industry, SMEs and individuals Copyright and copyright industries Plan breeders; rights (plant variety protection) Enforcement of IP rights IP and public policy	While there are elements of these clusters in the draft policy, there is no mention of them in the context of the method of a Baseline Survey Questionnaire. This means that the data collection was not undertaken in compliance with WIPO's recommendations and means that there was either no data collected or the results are undermined.
Finally, the WIPO framework places great emphasis on the implementation of the policy.[8] It has elements of this in all three prongs. It requires the policy to have an effective framework for its implementation that includes resource mobilization and monitoring and evaluation mechanisms.[9]	The issue of implementation is covered by the draft policy at two levels: 1. Implementation of IP rights - This includes a) Placing the burden on individuals to protect their IP rights as IP is an "essentially private rights [sic]". [10] The state merely plays the role of the facilitator for protection. b) Enacting rules and setting up institutions. Examples include the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 framed to implement border control measures as well as the Copyright Enforcement Advisory Council. [11] Further, strengthening enforcement mechanisms includes the establishment of a centralized 'Multi-Agency Task Force' for coordination between the raft of agencies that India has. [12] c) Facilitate IP dispute resolution through the designation of a specialized patent bench in select High Courts. It also calls for the creation of regional benches of the IPAB in all five regions where IPOs are located as well as an increase in the powers of the IPAB. [13] 2. Implementation of the Policy itself -[14] a) It suggests that the integration of the policy with stated government programmes such as 'Make in India' and 'Digital India' would enable its implementation. b) The establishment of IP Promotion and Development Council (IPPDC) which will open IP Promotion and Development Units (IPPDU) for promoting IP awareness, protection and utlilization. c) IP support to MSMEs. d) Technology Acquisition and Development Fund under the Manufacturing Policy for licensing or procuring patented technologies. e) Manufacturing units will be encouraged to set up IP cells in their own units and make IP a part of their corporate strategy. f) Integrate with government initiatives.

Conclusion: Testing Times Ahead

The IPR Think Tank has not been consistent with WIPO's recommendations on drafting a National IPR Policy. In terms of data analysis, the Think Tank has not displayed an iota of the analytical rigour and data collection that WIPO believes is necessary to understand both the state of IP in the country and devise effective means of responding to lacunae. Further, while consultations have been held with civil society, these have been lacking in two respects. They have not followed the timelines prescribed by WIPO insofar as consultations have happened only after the release of the first draft. As a result, the Think Tank has failed in actualizing the raison d'etre behind national consultations - "enhance a wide range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy". Finally, this piece is not an endorsement of WIPO or its recommendations but a mere acknowledgement of the role WIPO has played in this exercise. In the final analysis, India has fallen short of adhering to the principles reflected in the WIPO framework.

[1] http://www.wipo.int/ipstrategies/en/methodology/

[2] The stakeholders that WIPO mentions are "..inter alia, the national IP office(s), relevant government departments, universities and research institutes, SMEs, inventors, creators, legal practitioners, non-governmental organizations (NGOs)".

[3] http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf

[4] http://spicyip.com/2015/01/examining-the-draft-national-ip-policy-stakeholder-meetings-to-be-held.html

[5] http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

[6] Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 11.

[7] National IPR Policy (First Draft), p. 6-23.

[8] Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 9.

[9] Ibid .

[10] Ibid , p. 20.

[11] Ibid , p. 20.

[12] Ibid , p. 21.

[13] Ibid , p. 22.

[14] Ibid , p. 25-26.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think

29th Session of the WIPO SCCR: Statement on the Limitations and Exceptions for Education, Teaching, Research Institutions and Persons with Disabilities

nehaa — 2014-12-20T13:40:19Z

At the 29th session of WIPO's SCCR, the Chair, Martin Moscoso, requested NGOs to send in their statements on limitations and exceptions for education, teaching, research institutions and persons with disabilities in writing, to be placed on the record. Nehaa Chaudhari, on behalf of the Centre for Internet and Society (CIS) sent in this written statement.

Thank you very much, Mr. Chair.

As we have always maintained in the past sessions of this Committee, the Centre for Internet and Society strongly believes that everyone, regardless of borders and barriers, either physical, or those created by time, distance and costs should have access to knowledge and education.

To that end, we strongly support the proposal made by India, earlier, on continuing constructive work in this area. We also welcome the suggestion by the Indian delegation on a synthesis of these issues (facilitated by an expert, through the Chair), so that we can have a constructive discussion on these issues.

Mr. Chair, we are very mindful of the fact that there exists a very real, very demonstrable need for limitations and exceptions for education, teaching and research institutions and also for the benefit of persons with disabilities. There is also an equally crucial need to ensure that these limitations and exceptions are open ended and are appropriate for the digital environment; a conversation we believe that is imperative for Member Nations to take forward, definitely more so than one around granting a 'para-copyright' for organizations that already enjoy a great deal of protection under existing treaties, and are far less vulnerable than beneficiaries of these limitations and exceptions.

We thank the United States of America for their document- SCCR/27/8 on the Objectives and Principles for Exceptions and Limitations for Educational, Teaching and Research Institutions. We appreciate the recognition of the copyright system in the dissemination of works of authorship as well as the critical role that it plays in the promotion of educational, teaching and research objectives. We also appreciate the acknowledgement of a balance of rights and exceptions and limitations sustaining the role and activities of educational, teaching and research institutions.

However, we do believe that for a true balance to be achieved between rights and limitations and exceptions, the rights of the users of copyrighted works for the purposes of access to knowledge will have to be treated on par with those of the rights holders themselves. We believe that for this to be possible, measures will have to be taken to ensure international interoperability of limitations and exceptions and international standards suitable to address emerging and present issues of the digital environment will have to be developed. As we have submitted before this Committee earlier, it is our belief that the present international legal framework does not sufficiently address the opportunities presented by these information and communication technologies. Mr. Chair, we reiterate the need for open ended exceptions and limitations in this area, that will facilitate a cross border exchange of books and other learning material.

As a first step towards this end, we urge Member States to collaborate on and engage in substantive discussions building on existing Working Documents presently before this Committee. We look forward to an engaging discussion and providing all our complete support as we move forward on this very important agenda item.

Thank you, Mister Chair.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-on-limitations-and-exceptions-for-education-teaching-research-institutions-and-persons-with-disabilities