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NGO Profile: Knowledge Ecology International
https://cis-india.org/a2k/blogs/ngo-profile-knowledge-ecology-international
<b>As CIS’ observer in Geneva, I will be profiling NGOs and other prominent actors at the WIPO. In the first in a series of blogs, I profile the work of Knowledge Ecology International (KEI) at the various International Organisations in Geneva.</b>
<p style="text-align: justify; ">Knowledge Ecology International (KEI) is an NGO <i>that searches for better outcomes, including new solutions, to the management of knowledge resources</i>. KEI is focused on social justice, particularly for the most vulnerable populations, including low-income persons and marginalized groups.<a href="#fn1" name="fr1">[1] </a></p>
<p style="text-align: justify; ">KEI has a strong presence in Geneva and their works revolves around the International Organisations that are located here. Their Geneva office is run by Thiru Balasubramaniam, who previously worked with the WHO.</p>
<h3 style="text-align: justify; ">International Organisations in Geneva</h3>
<p style="text-align: justify; ">KEI is active in the World Intellectual Property Organization (WIPO), the World Health Organisation (WHO) and the World Trade Organization (WTO) in Geneva. At the WHO KEI is represented at the World Health Assembly and the WHO Executive Board. KEI was alsoan active participant at the Intergovernmental Committee on Public Health, Innovation and Intellectual Property (IGWG), which existed from 2006-08.</p>
<p style="text-align: justify; ">At the WTO, KEI is engaged in work around TRIPS council meetings- this includes technical assistance to Members and research and analysis of the outcomes of these meetings (the TRIPS Council unlike the WIPO is not open to Observers). KEI along with other NGO’s are also looking towards a possible Treaty on the Supply of Global Public Goods.</p>
<h3 style="text-align: justify; ">Work around WIPO</h3>
<p style="text-align: justify; ">KEI is active at the following WIPO Committees: the General Assembly, the Standing Committee on the Law of Patents (SCP), the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP). Their work in these areas is outlined below:</p>
<p style="text-align: justify; ">KEI has been actively involved in the Development Agenda at the WIPO from the beginning. They have actively participated in shaping discussions related to the transfer of technology and access to knowledge (A2K). Jamie Love, the Director of KEI was commissioned by the WIPO to author a paper on Alternatives to the Patent System. KEI had also mooted the idea for a Global Conference on Open Collaborative Research in 2003. The idea had widespread support from the scientific community, which saw fruition with the organization of the conference in January, 2014.</p>
<p style="text-align: justify; ">KEI was instrumental in the conception and passage of the Treaty for the Visually Impaired (TVI) at the WIPO. They are currently engaged in work surrounding the Broadcast Treaty and Limitations & Exceptions for Libraries and Archives. KEI’s stance<a href="#fn3" name="fr3">[3] </a>on the former is that the proponents of the Treaty have not made a strong enough case in favour of the Treaty and that it could potentially impede access to knowledge and create barriers to the enjoyment of the internet. On the latter, they believe that the Berne appendix must be revisited to recraft it to strengthen the education exception and that the Tunis Model Law on Copyright for Developing Countries (1976) should also be used as a way for developing countries to serve their education and libraries needs.</p>
<h3 style="text-align: justify; ">Publication</h3>
<p style="text-align: justify; ">KEI’s publications and Research Notes can be accessed <a href="http://keionline.org/publications">here</a>. In addition, they run two Listserves on IP-Health and A2K which can be accessed <a href="http://keionline.org/lists">here</a>.</p>
<hr />
<p><i>I would like to thank Thiru Balasubramaniam, KEI’s representative in Geneva for agreeing to do the interview which was the primary source of this blog</i>.</p>
<hr />
<p>[<a href="#fr1" name="fn1">1</a>]. See <a href="http://www.keionline.org/about">http://www.keionline.org/about</a></p>
<p>[<a href="#fr2" name="fn2">2</a>]. The proposal can be accessed here: <a href="http://keionline.org/sites/default/files/kei_wto_agreement_on_public_goods.pdf">http://keionline.org/sites/default/files/kei_wto_agreement_on_public_goods.pdf</a></p>
<p>[<a href="#fr3" name="fn3">3</a>].Interview with Thiru Balasubramaniam on file with the author.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/ngo-profile-knowledge-ecology-international'>https://cis-india.org/a2k/blogs/ngo-profile-knowledge-ecology-international</a>
</p>
No publisherpuneethAccess to KnowledgeWIPO2014-03-11T16:10:57ZBlog EntryNational IPR Policy Series : India's National IPR Policy - What Would WIPO Think?
https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think
<b>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. </b>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; ">This note is a brief overview of the approach set out by the World Intellectual Property Organization ("WIPO") <a href="http://www.wipo.int/ipstrategies/en/">for the development of National IPR Strategies by various countries</a>. 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.</p>
<p style="text-align: justify; "><b> </b></p>
<h3><b>An Overview of WIPO's Approach</b></h3>
<p style="text-align: justify; ">WIPO's suggested model of a National IPR Policy operates at three levels - The Process, Baseline Questionnaire and Benchmarking Indicators. <a href="#_ftn1" name="_ftnref1">[1]</a> 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. <a href="#_ftn2" name="_ftnref2">[2]</a> 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.</p>
<p style="text-align: justify; ">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".</p>
<h3><b>Assessing the First Draft of India's National IPR Policy:</b></h3>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; "><b> </b></p>
<ol>
<li style="text-align: justify; "><b>Assessment Mission</b>: 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.</li>
<li style="text-align: justify; "><b>Assessment of existing IP framework</b>: 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.</li>
<li style="text-align: justify; "><b>On stakeholder meetings</b>: 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<sup>th</sup>, 2015.<a href="#_ftn3" name="_ftnref3">[3]</a> The first set of stakeholder meetings were only held on February 5<sup>th</sup> and 6<sup>th</sup>, 2015.<a href="#_ftn4" name="_ftnref4">[4]</a> 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 <i>precedes </i>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. <a href="#_ftn5" name="_ftnref5">[5]</a></li>
</ol>
<p style="text-align: justify; ">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.</p>
<div style="text-align: justify; ">
<table class="vertical listing">
<tbody>
<tr>
<td>
<p><b>WIPO Suggestion</b></p>
</td>
<td>
<p><b>India's National IP Policy Framework - Comparison</b></p>
</td>
</tr>
<tr>
<td>
<p style="text-align: justify; ">WIPO has also suggested a number of justifications that may be advanced for the development of a national IP strategy. <a href="#_ftn6" name="_ftnref6">[6]</a> These justifications will help in grounding the policy in a clear, lucid set of objectives. These are:</p>
<ol>
<li>Need to consolidate sectoral policies</li>
<li>National long-term development agenda</li>
<li>Benchmarking and best practices</li>
<li>International trade obligations</li>
<li>Strengthening the national IP office</li>
</ol></td>
<td>
<p>India's Draft National IP Policy provides for the following objectives:<a href="#_ftn7" name="_ftnref7">[7]</a></p>
<ol>
<li>Create awareness of the economic, social and cultural benefits of IP (<b>IP Awareness and Promotion</b>)</li>
<li>Stimulate the creation and growth of IP (<b>Creation of IP</b>)</li>
<li style="text-align: justify; ">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 (<b>Legal and Legislative Framework</b>)</li>
<li style="text-align: justify; ">Strengthen IP administration and management of IP rights (<b>IP Administration and Management</b>)</li>
<li style="text-align: justify; ">Augment Commercialization of IP rights; valuation, licensing and technology transfer (<b>Commercialization of IP</b>)</li>
<li style="text-align: justify; ">Strengthen enforcement and adjudicatory mechanisms to protect and combat against IP rights violations ( <b>Enforcement and Adjudication</b>)</li>
<li style="text-align: justify; "><b>Human Capital Development in IP</b></li>
</ol></td>
</tr>
<tr>
<td>
<p>The second prong of WIPO's suggestions is devoted entirely to the Baseline Survey Questionnaire. There are seven clusters identified:</p>
<ol>
<li>IP Administration and Management</li>
<li style="text-align: justify; ">Generation of IP by universities, research organizations, business, industry, SMEs and individuals</li>
<li style="text-align: justify; ">Commercialization of IP and technology transfer by universities, research organization, business, industry, SMEs and individuals</li>
<li>Copyright and copyright industries</li>
<li>Plan breeders; rights (plant variety protection)</li>
<li>Enforcement of IP rights</li>
<li>IP and public policy</li>
</ol></td>
<td>
<p style="text-align: justify; ">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.</p>
</td>
</tr>
<tr>
<td>
<p style="text-align: justify; ">Finally, the WIPO framework places great emphasis on the implementation of the policy.<a href="#_ftn8" name="_ftnref8">[8]</a> 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.<a href="#_ftn9" name="_ftnref9">[9]</a></p>
</td>
<td>
<p>The issue of implementation is covered by the draft policy at two levels:</p>
<p>1. <b>Implementation of IP rights</b> - This includes</p>
<p style="text-align: justify; ">a) Placing the burden on individuals to protect their IP rights as IP is an "essentially private rights [sic]". <a href="#_ftn10" name="_ftnref10">[10]</a> The state merely plays the role of the facilitator for protection.</p>
<p style="text-align: justify; ">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. <a href="#_ftn11" name="_ftnref11">[11]</a> Further, strengthening enforcement mechanisms includes the establishment of a centralized 'Multi-Agency Task Force' for coordination between the raft of agencies that India has. <a href="#_ftn12" name="_ftnref12">[12]</a></p>
<p style="text-align: justify; ">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. <a href="#_ftn13" name="_ftnref13">[13]</a></p>
<p>2. <b>Implementation of the Policy itself</b> -<a href="#_ftn14" name="_ftnref14">[14]</a></p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<p>c) IP support to MSMEs.</p>
<p>d) Technology Acquisition and Development Fund under the Manufacturing Policy for licensing or procuring patented technologies.</p>
<p>e) Manufacturing units will be encouraged to set up IP cells in their own units and make IP a part of their corporate strategy.</p>
<p>f) Integrate with government initiatives.</p>
</td>
</tr>
</tbody>
</table>
</div>
<h3><b>Conclusion: Testing Times Ahead</b></h3>
<p style="text-align: justify; ">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 <i>raison d'etre</i> 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.</p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> http://www.wipo.int/ipstrategies/en/methodology/</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> 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)".</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> http://spicyip.com/2015/01/examining-the-draft-national-ip-policy-stakeholder-meetings-to-be-held.html</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 11.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> National IPR Policy (First Draft), p. 6-23.</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 9.</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> <i>Ibid</i> .</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> <i>Ibid</i> , p. 20.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> <i>Ibid</i> , p. 20.</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> <i>Ibid</i> , p. 21.</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> <i>Ibid</i> , p. 22.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> <i>Ibid</i> , p. 25-26.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think'>https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think</a>
</p>
No publishernehaaIntellectual Property RightsAccess to KnowledgeWIPO2015-07-02T17:47:58ZBlog EntryMaher Reports on WIPO Copyright Deliberations
https://cis-india.org/news/society-of-american-archivists-july-2-2014-maher-reports-on-wipo-copyright-deliberations
<b>SAA Past President and IPWG member William Maher represented the views of American archivists as a permanent observer at the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights meeting, December 16-20.</b>
<p style="text-align: justify; ">Read the original published on the <a class="external-link" href="http://www2.archivists.org/news/2014/maher-reports-on-wipo-copyright-deliberations">website of the Society of American Archivists</a>. CIS is briefly mentioned.</p>
<hr />
<p style="text-align: justify; ">Attendees discussed an international treaty for library and archives exceptions for copyright, including provisions related to orphan works and making preservation copies. Maher noted that many of the national delegates are less familiar with the mission of archives than that of public libraries; his <a href="http://files.archivists.org/governance/SAA-statement-SCCR26.pdf" target="_blank">statement on SAA’s behalf</a> helped to bridge that gap. (View his presentation and that of the International Council on Archives representative <a href="http://www.wipo.int/webcasting/en/index.jsp" target="_blank">here</a>, at 26:30 and 34:00.)</p>
<p style="text-align: justify; ">View the International Federation of Library Associations and Institutions (IFLA) information flyer <a href="http://www2.archivists.org/sites/all/files/ifla_wipo_message_overview_final.pdf" target="_blank">here</a>.</p>
<p style="text-align: justify; ">Following is Maher's report on the meeting.</p>
<p style="text-align: justify; "><b>Summary Report on Service as </b><b>Society of American Archivists <br /> NGO Representative </b><b>at the World Intellectual Property Organization’s <br /></b><b>Standing Committee on Copyright and Related Rights, 26<sup>th</sup> Session</b></p>
<p style="text-align: justify; ">William J. Maher<br /> January 10, 2014</p>
<p style="text-align: justify; "><b>Executive Summary:</b> At the December 2013 Standing Committee on Copyright and Related Rights (SCCR), the SAA was instrumental in educating not only the WIPO national delegates but also the library advocacy groups on the differences between libraries and archives and the specific archival needs for a treaty supporting copyright exceptions and limitations. With our coalition partners, the SAA helped prevent the marginalization of work on library and archives exceptions during future meetings. Meanwhile, new leadership of the SCCR helped the Committee avoid the stalemate that had been evident at SAA’s prior attendance in November 2011. Thus, momentum has been maintained for continued work on library and archives exceptions at the three SCCR sessions scheduled for 2014.</p>
<p style="text-align: justify; "><b>Next Steps:</b> Because of the positive outcome of SCCR 26 calling for continuation of “text-based” work on library and archives exceptions over the next three meetings in 2014, it will be important for SAA to secure funding to ensure that our archival voice, experience, and particular needs continue to inform both the NGOs and national delegates at the these sessions. In addition, to help make that representation most effective, the Intellectual Property Working Group will need to develop several concise case study statements or “issue briefs” to exemplify the particular archival dimensions of the eight remaining themes in the draft text being considered for a treaty. Finally, early consultations should be held with coalition partners to develop a strategy to ensure retention of the text’s orphan works provisions.</p>
<p style="text-align: justify; "><b>Background:</b> Copyright law may be established by national laws, but it is international treaties, such as the Berne Convention and the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty that provide the broad framework of copyright and authors’ rights. While current treaties allow nations to provide some exemptions to authors’ monopoly of exclusive rights, the areas for exceptions are quite limited, and none are mandated except in the recently treaty supporting exceptions for visual impaired persons.[1] Meanwhile, there continue to be onerous regimes for exclusive rights,[2] and it has been difficult to get attention to archivists’ and librarians’ specific interests in supporting acquisition, preservation, and accessibility of our of collections, and services to our users.</p>
<p style="text-align: justify; ">Fortunately, there are global actors with whom American archivists can collaborate. Thanks to 2004 and 2008 initiatives by Chile, Brazil, Uruguay, and Nicaragua, there has been a call for WIPO to develop treaty language that would require member states to enact education- and development-friendly exemptions into national law. The International Council on Archives (ICA) has commissioned a copyright working group to examine these issues, created a “white paper” entitled <i>Current Issues in Copyright for Archives</i>, and appointed the UK’s Tim Padfield as a representative to WIPO. By their joint work, ICA and the International Federation of Library Associations (IFLA) have created a plan to secure appropriate exceptions and limitations to copyright’s exclusive rights. The plan’s success, however, would require continued engagement in and representation at WIPO.</p>
<p style="text-align: justify; ">WIPO’s Standing Committee on Copyright and Related Rights (SCCR) is the body authorized to draft language for international treaties on copyright and generally meets twice a year. The possibility of “library and archives rights” was the subject of a special SCCR meeting in Geneva in November 2011. This meeting was the first time the Society of American Archivists was able to participate as an <i>ad hoc</i> Non-Governmental Organization (NGO) observer, and I attended as SAA’s representative. Subsequently, SAA applied for and was granted status as a permanent NGO observer, and on that basis sent me once again as a representative to the SCCR 26 meeting December 16-20, 2013. Given what I had observed in 2011, the protocol and process of the SCCR made much more sense in 2013. Perhaps this was just part of the learning curve, but it equally well could be a result of new leadership of the committee.</p>
<p style="text-align: justify; ">The effort to develop a treaty to provide exceptions and limitations for libraries and archives has been tied to development concerns of the “global South.” When the WIPO General Assembly adopted a development agenda in 2007, SCCR had a mandate to make development needs an integral part of its work. It commissioned Kenneth Crews to provide a report examining copyright laws of 149 of WIPO’s 184 member states.[3] Results, not surprisingly, showed wide variations in national practices and a general lack of provisions addressing library and archives needs. In 2010, SCCR expanded its consideration of exemptions and limitations to include provisions for visually impaired persons, libraries and archives, and education. Then, in June 2011, the 41-member Africa Group presented a draft WIPO treaty for these latter areas, based heavily on a 2010 proposal from IFLA. Finally, IFLA itself presented its own “Treaty Proposal on Copyright Limitations and Exceptions for Libraries and Archives” (TLIB) at the November 2011 meeting.[4] The draft was cosponsored by ICA, Electronic Information for Libraries (EIFL), and a library NGO called Innovarte.[5]</p>
<p style="text-align: justify; ">Although IFLA, as an NGO, cannot propose treaty language, at the 23<sup>rd</sup> session of SCCR in November 2011 a coalition of Brazil, Ecuador, and Uruguay put forward a document incorporating all of the essential elements of IFLA’s proposal, and that document received standing for debate and discussion within SCCR. However, the discussion revealed deep divides among the national delegates. Developed countries argued that their separate laws already contained provisions to meet the needs of users for access to library and archival material and that no mandatory treaty was needed. Developing and lesser developed countries argued that the needs of their populations for access to information and knowledge was impaired by the lack of exceptions and limitations to copyright and particularly by the lack of an international instrument that could provide predictability and uniformity across national borders. At best, the developed countries suggested the adoption of so-called “soft law,” or guidelines that countries could adopt. At worst, some argued that attention to balancing copyright with exceptions and limitations was unnecessary use of the committee’s time.</p>
<p style="text-align: justify; ">In the end, while the November 2011 SCCR 23 could not agree on the nature of the “international instrument” it would be pursuing, it adopted a work plan to continue to discuss library and archives exceptions at its future meetings while also focusing attention on the creation of exceptions to support the needs of visually impaired persons (VIPs). Over the course of 2012 and through mid-2013 (i.e., SCCR 24-25), the Committee focused most of these discussion of exceptions on the VIP matter, but it did set a timetable to devote particular attention to the library and archives exceptions over the course of SCCR 26 through 29, with the objective of adopting a text for submission to a diplomatic conference in 2015.</p>
<p style="text-align: justify; ">Despite the seemingly intractable positions evident in 2011 and widely reported through early 2013 regarding VIP provisions, a June 2013 diplomatic conference in Marrakesh was able to reach an unexpected agreement on a VIP treaty. This was an important development because it represented a first. It elevated copyright exceptions to treaty status, and it involved obtaining consensus among hitherto seemingly irreconcilable parties.</p>
<p style="text-align: justify; ">The so-called “Miracle of Marrakesh” set the stage for potential drama at the December 2013 SCCR 26. Could the momentum of creating copyright exceptions carry forward from the VIP area to also support library and archives exceptions? Would the publishing industry, collective rights organizations, and the global north be able to argue that the exceptions created at Marrakesh had rebalanced copyright so that attention could now focus on other areas of exclusive rights, such as the long-deferred matter of exclusive rights for broadcasting organizations?</p>
<p style="text-align: justify; "><b>Preparations: </b>Once it was clear that SAA Council would be funding participation at SCCR 26, I was asked to join various listservs and e-mail lists of other treaty advocates and invited to to brainstorm and coordinate positions among treaty-friendly NGOs. These collaborations involved assessing the variant drafts that national delegates had put forward for the 11 separate “topics” or provisions of a proposed treaty text and advising on which variant was best for our particular needs. Particularly important was being able to participate in the shaping of the message for a general publicity piece to explain to the public why copyright reform for libraries and archives mattered. Because of this access and participation, SAA was able to have its logo appear on the ultimate piece after we were sure that it adequately reflected archival as well as library concerns.[6] Throughout the entire preparation period, as well as during the week of SCCR, there were multiple and frequent consultations with the SAA Intellectual Property Workding Group (IPWG) and the SAA Executive Director, especially in drafting the main statement for SAA to present as well as the text for the “Side Event” presentation.</p>
<p style="text-align: justify; "><b>SCCR 26, December 16-20, 2013:</b> The schedule for SCCR 26 allocated the first two days to a discussion of exclusive rights for broadcasting organizations, a question of limited interest to archivists. This was to be followed by two days devoted to exceptions and limitations for libraries and archives, and a final day discussing issues relating to whether exceptions could be created to support educational institutions and organizations. The session opened on December 16 with the election of Martin Moscoso of Peru as a new chair to lead the committee for the next two years. He had most recently served as facilitator over informal discussions between opposing sides at Marrakesh and had strong support from the Committee.</p>
<p style="text-align: justify; ">Moscoso proved adept at maintaining good order, identifying issues for potential consensus, and managing situations when positions of some national delegates conflicted sharply. The resultant draft text for the SCCR’s plan for future work suggests that the matter of the exceptions for libraries and archives being sought by the Africa Group (AG) and the Group of Latin American and Caribbean countries (GRULAC) will remain on the agenda. Overall, the SCCR session showed a much more positive spirit and productivity than that of November 2011.</p>
<p style="text-align: justify; "><b>Library and Archives Exceptions and Limitations:</b> Despite some efforts by global North countries to extend the broadcasting discussion beyond the scheduled two days, the Chair directed the Committee to follow the previously agreed-upon allocation of time. After calling upon regional groupings and national delegates offered for general comments on library and archives exceptions, the floor was opened the floor for presentations by approximately two dozen NGOs.</p>
<p style="text-align: justify; "><b>Interventions from Non-Governmental Organizations:</b> Unlike some other international bodies such as the telecommunications union where invited NGOs participate in floor debate, at SCCR NGOs’ formal involvement is limited to scheduled opportunities to offer statements or “interventions” on the policy issues before SCCR. By long convention, these interventions are limited to three minutes, with some prior chairs enforcing the time limit vigorously. The NGOs at SCCR contained representatives from both sides. Those speaking against the need for library and archives exceptions included Motion Picture Association, International Federation of Journalists, International Federation of Musicians, International Publishers Association, Group of Scientific, Technical and Medical Publishers, Federation of Reproductions Rights Organizations, etc. Those speaking in favor of L&A exceptions included the Canadian Library Association, Center for Internet and Society, German Library Federation, Karisma Fundaćion (Colombia human rights organization), IFLA, eIFL, ICA and the SAA. In his intervention, Jamie Love of Knowledge Ecology International pointed out that the needs of archives were particularly striking yet seemingly less complex than those of libraries.</p>
<p style="text-align: justify; ">A central part of my presence as SAA’s NGO representative at SCCR was this opportunity to provide a formal position statement to the Committee.[7] Within the allowed three minutes, I noted how the recent UNESCO “Universal Declaration on Archives” called for broad public access to archives. I also noted that because the public increasingly expected archival content be online, copyright represented a major barrier to the archival mission and to the public’s right to access. Noting the insufficiency of the U.S.’s Section 108 library and archives exceptions, I called the national delegates’ attention to the need to develop a treaty that would provide cross-border uniformity. I closed by suggesting that the viability of both archives and the copyright system required exceptions to support public access for heritage and accountability. The statement appears to have been well-received by treaty advocates based on several comments that received through the end of the week. Perhaps the best indication of this was the blog entry provided by Manon Ress of Knowledge Ecology International, who reproduced my statement in full, immediately preceded by her comment: “The room is clearly divided but the intellectual argument is being won by the libraries and archives. Here are some of the very strong statements.”[8]</p>
<p style="text-align: justify; "><b>Debate by National Delegates on Proposal for Library and Archives Treaty:</b> Following a previously developed work plan, the Committee adopted a text-based discussion of the awkwardly titled: “Working document containing comments on and textual suggestions towards an appropriate international legal instrument (in whatever form) on exceptions and limitations for libraries and archives.” The work plan had called for discussion of the draft text through its 11 topics which had been built from texts first by the Africa Group and Brazil/Ecuador.[9] Over the two allocated days, the delegates were able to complete work on the first two topics (copying for preservation and for users), touch briefly on legal deposit (topic 3), and begin discussion of library lending (topic 4). Those skeptical of the need for an international treaty kept trying to steer the discussion toward a review of current national practices and the need to protect the authors’ interests. Advocates for the treaty emphasized the need for a base level of exceptions and the need to establish uniformity across national borders. Insofar as multiple phrasings of the the proposed provisions were left in document, those proposals appear to have basically survived the discussion, but it became clear that there was overlap among some of the themes, such as copying for users and library lending/document delivery. Thus, some consolidation could be expected. For archives, issues about preservation, including the need to remove limits on the number of preservation copies, were well handled. However, one of our most important topics, orphan works copying and distribution, was deeper into the work plan and was not addressed.</p>
<p style="text-align: justify; ">Overall, there was little change in the delegates’ positions during the meeting. In short, the global North argued that an international instrument was not needed because many countries had addressed these concerns with national laws. They therefore tried to steer SCCR’s work towards merely studying the laws and practices of member states. In addition, a number called for an update of Kenneth Crews’ 2007/08 study, presumably on the assumption that legislation in some countries may have changed in the past 6 years.</p>
<p style="text-align: justify; ">Throughout, the SCCR Chair worked to find a consensus for the future work. On the down side, it appeared that the complexity of the copyright issues archivists face are quite foreign to these policy makers, no matter how much we restated the principles that we would like to see incorporated into an international instrument. The discussion at SCCR 26 clarified that our most important task is to have a rich roster of simple, practical examples of how the lack of a specific exception militates against the public’s need for information and records. We also need to counter the claim that national laws already provide locally tailored solutions by explaining the cross-border, international nature of the problem. Good, clear, and provocative examples in our prepared remarks and in briefing sheets, will advance the understanding of friendly delegates. on whom we have to rely. The IFLA and eIFL representatives began working on such a set of</p>
<p style="text-align: justify; "><b>“Side Event” Presentation:</b> SCCR meetings often include “side events” beyond the official proceedings of the Committee. These events include evening receptions as well as the more typical early afternoon panel sessions on some issue of relevance to the topics being considered. At SCCR 26, the Thursday December 19 side event, sponsored by IFLA, was titled “‘Digital Gridlock’” What Future for Libraries and Archives?” Its particular point was to clarify how access to library and archival material is impeded by copyright limits, and how the problem is fundamentally an international one that can only be solved by a treaty providing consistency across borders. The speakers were allocated five to ten minutes. I was asked to present on how copyright affected the future of archives. My remarks were titled, “It's My Heritage, Why Can't I Have It? The Unintended Consequences of the Digital Embargo.”</p>
<p style="text-align: justify; ">Realizing that neither the delegates nor all the other NGOs understood what archives contain and what archivists do, I drew on my own archives’ experience to describe the scope and use of institutional archives and manuscript collections. I focused on the increasing expectations to meet users needs via online holdings, and I emphasized how copyright in orphan works was a major impediment to meet these expectations. I cited an example of a NARA project where the use of its data files increased 335 times when the data were put online.[10] I made a special point of citing core statistics from Maggie Dickson’s University of North Carolina study to underscore the excessiveness of a strict authors’ rights and permissions regime for archival digital projects.[11] I closed with two specific examples drawn from collections and users at the University of Illinois Archives, in which key cultural heritage information was not readily available to individuals of those communities unless they could afford travel to see the originals. The presentation was well-received and generated some useful discussion during the question period. Overall, the “Side Event” was a successful opportunity to explain the archival concerns and clarify that they are not precisely the same as libraries’.</p>
<p style="text-align: justify; "><b>Education Exceptions:</b> Friday morning, December 20, was devoted to general statements from NGOs, and regional and national delegates about the set of exceptions that the Africa Group had proposed to support educational organizations and educational activities. These call for a broad array of exceptions to allow copying and digitization of works in support of education and research activities at all levels. Overall, the concept appears to face a tough road ahead. Because this issue was at a very early stage, only the morning of the last day was dedicated to discussing it.</p>
<p style="text-align: justify; "><b>Conclusions and Closure of SCCR 26:</b> One the defining elements of any SCCR meeting is the last day’s work to prepare a “Conclusions” document. It summarizes what work was completed during the session, including consensus statements on issues where possible. Most importantly it identifies the work plan and allocation of time in the coming SCCR meeting(s) for particular issues. Because the Conclusions define what it the SCCR has accomplished and where its priorities and policies are headed, each sentence in the relatively short document (generally 3-4 pages) is subjected to great scrutiny and sometimes nearly endless debate late into the night or wee hours of the morning.</p>
<p style="text-align: justify; ">Given the smoothness of the earlier days of the week, there was some hope that floor fights would be minimized and that the evening might end early. Unfortunately, that was not the case, even if the ultimate result was positive for those interested in library and archives exceptions. Those delegations advocating for a broadcast treaty and merely more study for the library and archives area launched an effort to allocate the majority of time in the next three SCCR meetings (i.e., three days in each) to broadcasting, with only two days in each for “exceptions.” Thanks to the some effective work by the librarians and archivists present in connecting with a few of the sympathetic to neutral country delegates, wording in the final version of Conclusion item 31 included the specific reference to libraries and archives as the lead topic for the latter two days of the April 2014 SCCR.</p>
<p style="text-align: justify; ">Nevertheless, the issue of relative allocation of time during the three 2014 SCCR meetings was contentious. Because of some persistent resistance by treaty-sympathetic countries, the Committee’s eventual consensus was that the allocation of days for the July and December SCCRs would need to be deferred pending outcomes of the April meeting. While this may seem a small accomplishment or even just a delaying action, in fact it reflects significant success by treaty advocates in not allowing the momentum from Marrakesh to be turned back.</p>
<p style="text-align: justify; "><b>Advocacy as Education of Multiple Publics:</b> SAA’s experience at the SCCR in 2011 and especially in 2013 demonstrates that a central part of successful policy advocacy is not simply communicating our position, but also the extent to which we use the interchange as an opportunity for education. Because the policy makers and stakeholders whom we want to reach are only minimally aware of the mission and professional practices of archivists, influencing policy cannot start until we are recognized as a distinct sector with a mission that matters to the public and communities we serve. Ironically, the low visibility of archives and archivists among the public can work to our advantage in that if we sharpen our message carefully, we can immediately create a positive foundation for future interactions. By providing concise statements that focus on the broad cultural and educational value of archives combined with the substantial professional and ethical standards we have developed over the past three-quarters of a century, we can obtain not just respect for our mission but also a sympathetic hearing for our policy needs.</p>
<p style="text-align: justify; ">In this regard, according to comments from more than one of the stakeholders at SCCR 26, SAA was extremely effective in its communications and advocacy for the archives sector. SCCR 26 also demonstrated that archivists can obtain a hearing and audience for our concerns that is clearly well out of proportion to our inescapably small size. Indeed, it is the power of the archival message that has made stakeholders much larger than ourselves seek us out as coalition partners. In the process, we have gained significant leverage to advance our positions.</p>
<p style="text-align: justify; ">To the extent that SAA wishes to build on the success at SCCR 26, an infrastructure is needed for this advocacy. First, there needs to be a physical presence at WIPO. Many of the occasions SAA had for influencing the text of coalition advocacy pieces would not have arisen if our planned presence at SCCR had not opened the door to our participation in the coalition’s communication channels through which positions were formulated collaboratively. Only through these were we able to make clear to library and other prospective allies those fundamentally different and compelling archival needs. We to be able to dedicate significant amounts of time to collaboration in the weeks leading up to the meeting. Significant preparation is needed to prepare concise, targeted position statements that can be effectively delivered in time that is measured in seconds rather than minutes. The statements need be supplemented by practical examples of archival needs and the benefits to the public from our holdings and professional work. The examples need to reflect the breadth of the publics whom archives serve as well as how these relate to international policy objectives being sought.</p>
<p style="text-align: justify; ">It goes without saying that SAA’s representative has been absolutely dependent upon and grateful for the strong support provided by the Intellectual Property Working Group, especially its chair, and for the confidence and support of the SAA Executive Director. Education is essential for effective advocacy, but it is preeminently a team effort.</p>
<hr style="text-align: justify; " />
<h3 style="text-align: justify; ">Endnotes</h3>
<p style="text-align: justify; "><sup>[1] </sup>. According to the Berne Convention and the World Trade Organization’s 1994 TRIPS agreement, any exemptions provided by national legislation are supposed to meet a “three-step-test.” “Members shall confine limitations and exceptions to exclusive rights to <i>certain special cases</i> which do not conflict with a <i>normal exploitation</i> of the work and do <i>not unreasonably prejudice</i> the legitimate interests of the rights holder.” See: Berne 9.2. at <a href="http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html" title="http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html">http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html</a></p>
<p style="text-align: justify; "><sup>[2]</sup>. For example, the 1996 WIPO Treaty required countries to create legal prohibitions against circumventing any electronic copy-protection mechanisms that copyright holders have used on their works, making archival migration and preservation of electronic records very difficult.</p>
<p style="text-align: justify; "><sup>[3]</sup>. Kenneth Crews, <i>Study of Copyright Limitations and Exceptions for Libraries and Archives</i>, <a href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_17/sccr_17_2.pdf">http://www.wipo.int/edocs/mdocs/copyright/en/sccr_17/sccr_17_2.pdf</a>.</p>
<p style="text-align: justify; "><sup>[4]</sup>. Available at: <a href="http://www.ifla.org/en/node/5856">http://www.ifla.org/en/node/5856</a> .</p>
<p style="text-align: justify; "><sup>[5]</sup>. The TLIB proposal calls for copyright exceptions and limitations that would enable libraries and archives to engage in: parallel importation; library lending; reproduction and supply of copies; preservation; making and distributing accessible copies for persons with disabilities; providing access to retracted, withdrawn, and orphan works; cross-border uses; translation of legally acquired works for specific users/user groups; freedom from contract provisions which would otherwise overwrite the exceptions; circumvent technological protection measures for lawful access; and enjoy limitations on liability for libraries and archives work.</p>
<p style="text-align: justify; "><sup>[6]</sup>. The resultant flyer can be seen at: <a href="http://www.ifla.org/files/assets/hq/topics/exceptions-limitations/ifla_wipo_message_overview_final.pdf">http://www.ifla.org/files/assets/hq/topics/exceptions-limitations/ifla_wipo_message_overview_final.pdf</a></p>
<p style="text-align: justify; "><sup>[7]</sup>. The full text of the intervention on behalf of the SAA can be found attached as <a href="http://www2.archivists.org/sites/all/files/AppendixA-SAA-statement-SCCR26.pdf" target="_blank">Appendix A</a>.</p>
<p style="text-align: justify; "><sup>[8]</sup>. <a href="http://keionline.org/node/1863">http://keionline.org/node/1863</a> Unfortunately, because the SAA’s acronym was mistranslated, WIPO interpreters muddled the translation of the SCCR Chair’s Spanish language introduction of my intervention. Thus, Ms. Ress misidentified the first text as being from the International Council on Archives. While the ICA intervention was quite good, the text Ms. Ress replicates on the KEI blog is a verbatim transcript of the SAA remarks. The video of the SAA presentation can be seen at: <a href="http://www.wipo.int/webcasting/en/index.jsp" title="http://www.wipo.int/webcasting/en/index.jsp">http://www.wipo.int/webcasting/en/index.jsp</a> – Scroll down to below the title "Video on Demand," and in the right-hand menu, select “SCCR/26-Wed 18-English, Afternoon Session.” SAA’s intervention begins at minute 34.</p>
<p style="text-align: justify; "><sup>[9]</sup>. Those themes/topics, with a brief summary of the provisions being sought, were:</p>
<p style="text-align: justify; ">1): Preservation : It shall be permitted for libraries and archives to reproduce works, or materials protected by related rights, for the purposes of preservation or replacement, in accordance with fair practice.</p>
<p style="text-align: justify; ">2) Right of reproduction: A library or archives may reproduce and distribute a copy of a copyright work to a library user, or to another library or archive, for purposes of: education, private study by a users, or interlibrary document supply.</p>
<p style="text-align: justify; ">3) Legal deposit: Treaty member countries may determine that specific libraries and archives or any other institution shall serve as designated repositories in which at least one copy of every work published in the country is to be deposited and retained.</p>
<p style="text-align: justify; ">4) Library Lending: It shall be permitted for a library to lend copyright works, or materials protected by related rights, to a user, or to another library.</p>
<p style="text-align: justify; ">5) Parallel Importation: Libraries and archives shall have the right to buy, import or otherwise acquire copies of any work published in any other Member State with the permission of the author of that work.</p>
<p style="text-align: justify; ">6) Cross border uses: To the extent that it is necessary for the exercise of a limitation or exception provided for in this Treaty, cross-border uses shall be permitted.</p>
<p style="text-align: justify; ">7) Orphan works, works out of commerce. Libraries and archives shall have the right to reproduce, preserve and make available in any format or retracted any withdrawn works from public access or orphaned works.</p>
<p style="text-align: justify; ">8) Limitations on Liability: A librarian or archivist acting in good faith within the scope of his or her duties, is protected from claims for damages, from criminal liability, and from copyright infringement.</p>
<p style="text-align: justify; ">9) Technological Protection Measures: Libraries and archives may circumvent technological protection measures to exercise any of the rights provided by this treaty. 10) Contracts: contractual provisions may not overwrite the limitations and exceptions.</p>
<p style="text-align: justify; ">10) Margaret O’Neill Adams, “Analyzing archives and finding facts: use and users of digital data records,” <i>Archival Science </i>7( 2007):21–36.</p>
<p style="text-align: justify; ">11) Maggie Dickson, “Due Diligence, Futile Effort: Copyright and the Digitization of the Thomas E. Watson Papers,” <i>American Archivist</i> 73 (2010): 626-36.</p>
<p>
For more details visit <a href='https://cis-india.org/news/society-of-american-archivists-july-2-2014-maher-reports-on-wipo-copyright-deliberations'>https://cis-india.org/news/society-of-american-archivists-july-2-2014-maher-reports-on-wipo-copyright-deliberations</a>
</p>
No publisherpraskrishnaAccess to KnowledgeWIPO2014-07-03T09:41:28ZNews ItemIs the WIPO Treaty for Broadcasters Moving Forward at SCCR 27?
https://cis-india.org/news/knowledge-ecology-international-manon-ress-april-29-2014-is-wipo-treaty-for-broadcasters-moving-forward-at-sccr-27
<b>The WIPO treaty for the Protection of Broadcasting Organization: The Way Forward? </b>
<p style="text-align: justify; ">CIS statement at WIPO is <a class="external-link" href="http://keionline.org/node/1994">quoted in this post submitted by Manon Ress</a> to Knowledge Ecology International on April 29, 2014.</p>
<hr />
<p style="text-align: justify; ">On day 2 of Standing Committee on Copyright and Related Rights (SCCR) 27, it looks as if the US delegation was showing the SCCR delegates a "way forward" for a new treaty for broadcasting organizations. It seemed as if US diplomacy was working efficiently and the US proposal was gathering support. However, while the US proposal was indeed gathering support, public interest groups and copyright owners also became more vocal in their opposition to the proposal on the table.</p>
<p style="text-align: justify; ">Let me highlight aspects of the first 2 days (Monday and Tuesday 28-29 April, 2014) of discussions on the treaty. Wednesday half day is in principle devoted to conclusions on the first topic of the SCCR 27 and will be dealt with in a separate blogpost.</p>
<p style="text-align: justify; ">On Monday, led by Martin Moscoso, a most efficient Chair, the delegates moved quickly through the text (with many alternatives) and discussed the various technological platforms as well as the various forms of transmission for broadcasting. They decided to come up (later) with a matrix to, if not clarify at least simplify the work on the proposal. Monday was about the object of protection (what is a signal?) and Tuesday was about Article 9. which is the Article about rights. The issues were: what are the rights that will be granted or not granted to the broadcasters in the treaty.<br />Until lunch time Tuesday, the mood was quite optimistic and it was no longer "if there is a treaty" ...but when there is a treaty. Delegates were chatting everywhere and one could almost feel a treaty fever coming to the SCCR again.</p>
<p style="text-align: justify; ">The discussions were quite diplomatic but also technical. The Delegates are, after all, copyright and related rights experts obviously enjoying arguing and debating, subject matter protection, scope and of course nature of rights. Here is the Secretariat comprehensive review of Article 9 which include the many Exclusive rights that are on the table.</p>
<p style="text-align: justify; ">SECRETARIAT: this very high level. We have for Article 9 on page 8 two alternatives, alternative A and Alternative B. Then we have Article 9 in the annex, a proposal from India and then we also, of course, have the new proposal on, in that document, annex 6, I believe this is covered in Article 6 of the cablecasting organizations.Starting with the working text,Ssccr/27/2rev. Both of these Articles, they deal with exclusive rights to authorize by broadcasting organizations, the first one lists fewer rights it covers retransmission, performance, the use of a pre-broadcast signal with them and then with the performance (?), it leaves it as a matter of domestic law to determine the conditions under which this may be exercised provided that the protection is adequate and effective.</p>
<p style="text-align: justify; ">Alternative B has a more extensive list of exclusive rights that broadcasting organizations may authorize.</p>
<p style="text-align: justify; ">Fixation, direct, indirect production, retransmission by any means, communication to the public, making available, transmission for the reception by the public following fixation and making available to the public of the original and copies of fixations of broadcasts with respect to this alternative, there are two subparagraphs, two and three, that address some flexibilities. Two says that the indirect reproduction and retransmission rights may be a matter for domestic law where the protection of the right is claimed to determine the conditions under which it may be exercised provided that the protection is adequate and effective.</p>
<p style="text-align: justify; ">It is possible under 3 to deposit a notification with the Director General saying that instead of the exclusive right of authorizing providing for in subparagraphs 2, 4, 5, 6 and 7 there could be a right to prohibit with a notification.</p>
<p style="text-align: justify; ">Then there's a general final subparagraph talking about adequate, effective legal protection to signals. With the means of the protection being governed by legislation of the country where the protection is claimed.</p>
<p style="text-align: justify; ">The Annex includes various proposals and the Chair asked each proponents to explain:<br />For example, here is the US Intervention:<br />quote</p>
<p style="text-align: justify; ">The U.S. proposal for discussion is found in the annex at page 4, we first suggested this concept a year ago at intercessional meeting and fleshed it out in actual language at the last SCCR session. As we described then, the goal of our suggested language for discussion is to try to cut through the same debate of the scope of rights for this treaty that's been going on for in the range of 15 years now. What we were attempting to do was to identify a single core right, that would be very narrowly focused to address the fundamental concerns of broadcasters, to do so within the scope of the General Assemblies mandate to deal with signal protection, signal-based protection. As you see from the language, I won't go in a lot of detail, we have described this before, we would suggest that no post-fixation rights would be required at the international level, just protection for the signal itself and that after fixation we would be relying on protection for the content rather than the signal so not through this treaty, but through other treaties and through national laws.</p>
<p style="text-align: justify; ">So the way we formulated it was to focus on simultaneous or near simultaneous retransmission to the public of both the signal and the pre-broadcast signal because the broadcasters had made a case for the need of protection for pre-broadcast signal as well. As you can see from our proposed definition for discussion purposes we would define near simultaneous retransmission to be a transmission that's delayed only to the extent necessary to accommodate time differences or to facilitate the technical transmission of the signal. So recognizing that -- well sometimes there's a delay but we would be talking about delays of something more like seconds and hours rather than years.</p>
<p style="text-align: justify; ">What we would also like to do at this point, rather than spend many hours having everyone discuss again what their original proposals were, perhaps there's a way forward that this committee could consider. We do have a number of complex alternatives with multiple rights for Article 9 before us at this point.</p>
<p style="text-align: justify; ">And in the interest of being able to make progress, we would like to put forth an idea for consideration. In the discussion of our proposal for discussion purposes of this new approach we have not yet in the meetings that we have held since we first put it forward, we have not yet heard opposition to the Treaty covering at least that much and the main area of this agreement seems to be whether there should also be additional rights particularly relating to post-fixation uses. So one suggestion we put forward for consideration on how to move forward in this meeting would be to see if we can as a committee try to narrow the range of choices before us and there are a number of ways that this can be done. One possibility would be to say that one choice is the U.S. suggested approach in our proposal for discussion, and the other main choice would be to start with that, but then also add some version of the various post-fixation rights that other Delegations have proposed as the alternative. Maybe there's a way that the proponents could combine some of their catalog of rights into a shorter catalog or a single more general right dealing with post fixation uses and then although certainly the United States isn't in a position to agree to such a broader catalog, we would have a clearer idea of what the two main fundamental approaches are, and that would help us all clarify the situation and present the alternatives to be negotiated as we move forward and make it easier to look for potential compromises.</p>
<p style="text-align: justify; ">I don't know if that's entirely clear, and I would be I don't know if that's entirely clear, and I would be glad to describe in more detail what we were thinking about, but we put this out for everyone's consideration as a possible way to move forward rather than just to continue to go in circles with everyone explaining their own position. And again, you know, as we keep saying, we want to stress that all we're talking about again is a international minimum and that doesn't prevent anyone from having the entire catalog of rights that they may have in their current national system to preserving those rights and urging others to adopt them as well. We're looking for something that we can all agree to at international level.</p>
<p style="text-align: justify; ">This US Proposal which is about a narrow right (a signal-based approach) and also a way to limit the proposals on the table by having only two fundamental approaches on the table. The signal-based narrow approach or the US proposal by contrast with the catalog of rights proposed by the EU (and its supporters).</p>
<p>One had to note that what was in December for SCCR 26, an informal US proposal in the annex, had gathered many supporters. For example, the US proposal was supported in some ways by India:</p>
<p>INDIA: Good morning, Mr. President.<br /> I think Belarus, the Distinguished Delegate from Belarus and the Distinguished Delegate from the U.S. started the day with good morning, with good initiatives. We're open to discuss those issues. Going back to the comments made by the Distinguished Delegate from belarus, we do agree that no additional protection to the content should be given because content, the content, it is either author or the performer, asper the convention or the WCPT or the sin graphic producer, the producer of the sin graphic or the sound performing. Already the protection, is that.</p>
<p>What we need to protect here, it is the signal as said by the Distinguished Delegate of the United States also. The signal-based approach, that's what it says, the signal has to be protected. If you look at the definition of signal which India has given in annex, Article 5, page 1, it clearly said that the signal means an electronically generated carrier consisting of a specific program whether encrypted or not and then encryption, it is the dpm, we all know that, you know that that's the business model, the technical model followed by most. Coming to the program carried by the signal, that's the broadcast content.</p>
<p style="text-align: justify; ">So we have to see what exactly the signal is carrying the broadcast. It contains, you know, various types of Intellectual Property that's a copyrighted material that we can divide into four main categories. One is, of course, the program content, whether it is in-house production, created by -- acquired from the content owner, and then the other content is the advertisement, and then the moment you will see these two things, each has its own look and appearance just like CNN or BBC, the moment that content is on the screen, you know this is CNN content, you know that this is BBC content, even the same if their live casting, this, you see, in the Standing Committee, you know how it is different, it is a CNN journalist, a B cc journal. Then becomes the way they arrange the content, that's the full thing. The way it is presented. So, these are the four things, the signal, broadcast content, content, so various licensing and arguments are there. The advertising appearing between the few seconds in the BBC journal is different than what advertisement of the CNN and apart from the look and feel of the journal, and then coming to the proposal I would like to briefly explain and make sure we're given the Article 9. It is totally based on the signal-based approach in what we have explained here that the broadcasting organization hall enjoy the right to prohibit if done without authorization the rebroadcast of the signal through traditional procedure casting means, so rebroadcast not only the broadcast, the rebroadcast has to be protected. Here the question of fixation comes, you know, the fixation to be allowed only for the purposes of the rebroadcasting are in the near simultaneous broadcast, which was our Distinguished Delegate from the U.S. was telling, maybe deferred on the delayed -- unless you fix it, you don't do that. Coming to the simultaneous broadcasting, the U.S. Delegate was talking about, here simultaneous in the traditional sense only, it is clear it is a signal-base aid approach in the traditional sense, not the webcasting or simulcasting, what we need to protect here, if any unscrupulous guy, unauthorized manner taking this program-carrying signal, putting it over the internet, the investment of that broadcaster has to be protected. So that's what our proposal talks about, not about the simulcasting, live screaming and other platforms. So there -- otherwise, we will be including the webcasting and simulcasting in the traditional approach. In the traditional platform doesn't carry the webcasting of the simulcasting in the traditional sense and also in the webcasting. That's the simulcasting, doing the same thing, in two different platforms.The simulcasting can be allowed here in the traditional sense, if the BBC wants to, at the same time, broadcasting the same problem, the reach of the B cc in that territory would be different and it is different, they're covering different parts of the world.</p>
<p style="text-align: justify; ">So, that's what I would approach here. Then with that, the Distinguished Delegate from U.S. raising the post mixation rights, one significant until appears on the screen, there is l. C or led, nowadays the technology, it is crazy. It is on the screen. So only the content, not the signal. So the fixation of signal, then post-fixation don't come in the signal-based approach. What we need to do is the Protection of Country the signal and if fixation is coming, that fixation is allowed only for the rebroadcast, deferred or delayed broadcast purposes. We'll come back in these issues as the further discussion continues.<br /> Thank you. <br />And by by Mexico.<br /> > MEXICO: Thank you, Chairman. It gives me great pleasure to see you Chairing and you have the full support of my Delegation in all your work and moving forward in the topics of this committee such valuable work from Mexico. I would like to thank the Secretariat for the document that they provided us with in such a punctual manner. Thank you for helping us with our work. I would like to recall all Delegations. That we need to be seeking the establishment of general standards to feel more comfortable within the legal framework of these particular topic. We shouldn't be looking for participation on any individual basis because we will move forward with our work.</p>
<p style="text-align: justify; ">I recall that any international Treaty has to be based on general principles and not on details and the details should be stipulated in the respective domestic legislation of each Member State. On that note I would like to support the proposals from the Distinguished Delegate from the United States that we should, yes, move forward in this way with the work of this committee <br />And by Japan:<br /> JAPAN: Good morning, Mr. Chair.<br /> Good morning, everyone. I'm speaking on behalf of the Japanese Delegation.<br /> We're in the position to support the suggestion by the Distinguished Delegates from the U.S. to put to option related to scope of protection. With respect to scope protection, some Member States seems to find great value in wide variety of rights including fixation rights, including the right of production and the right of making available after the fixation. For such members, post-fixation rights should be included in this Treaty. On the other hand, some Member States are of the view that the minimum fixation rights, simultaneous or near simultaneous retransmission and the right of pre-broadcast is enough under this Treaty.</p>
<p style="text-align: justify; ">Here we would like to point out that in order to find the way forward in our discussion more flexible approach may be necessary. From our perspective one possible way while setting the common denominator among all Member States of subject matters for minimum mandatory protection, other rights which not all the members must -- most members think is necessary and this is treated as the subject matter for optional protection. Of course, even if we take such an approach we have to further discuss which rights should be mandatory protection and which rights should be optional protection.</p>
<p style="text-align: justify; ">And by South Africa:<br /> SOUTH AFRICA: Thank you very much, Mr. Chairman.<br /> In fact, I would like to associate myself with the previous speaker, Mexico and the U.S. I think it would be better to have just a general and another scope of rights for the broadcasters sips we're dealing with the signal-based approach and so as always to avoid having to include issues and list of issues that are covered by other Treaties. It may cause a problem in the long run in the sense that some Member States may find themselves want to be a part of this Treaty having to do a balancing act as to whether they need to join into this Treaty to be parties to the other Treaties or to the other issues that are being included in this particular Treaty. It would favor a very narrow, general scope of rights as I think the U.S. has captured that very well. I think it will help us to move forward. Otherwise we'll never -- a long, protracted kind of discussion and we have a very good experience in this, we have been looking at this for a very long time and part of the problems lie in this -- having a very long list of rights and so on, so on. I think that domestic legislation can do justice into the catalog of rights that Member States will now want to prescribe.</p>
<p style="text-align: justify; ">But things were not that easy with the EU:<br /> EUROPEAN UNION: Thank you very much, Mr. Chairman. Good morning to everyone. We tried to look at all the possibilities and options on the table and tried to think of some matrix as you proposed yesterday for which we have to find for both the object of protection and for the rights. Looking at what was presented and discussed today, we tried to put this into some kind of order also in response to the proposal by the Delegation of The United States. What I will present now is our understanding of where we understand with these discussions on various rights and, of course, there may be rates where we have not understood properly.</p>
<p style="text-align: justify; ">To us, it seems that there is a consensus in the room as to simultaneous, as to the right to authorize a prohibited or prohibit simultaneous retransmission by any means. As long as we talk about simultaneous retransmission we think from the discussions that took place here, but everybody agrees with simultaneous transmission, that should be covered by the catalog of rights.<br /> Then the other category, the important category here, are any transmissions from fixation. In our view, we should in a way separate the discussion on transmission from fixation from other post fixation points. I think often we use here the term simultaneous retransmission versus post-fixation rights. I think there is a bit of a more nuance to the situation here because we have the post fixation rights because of the reproduction and distribution which we'll talk about later. We have the core right here, the core right which is a retransmission from fixation.<br /> In the U.S. proposal there is also an element of such transmission from fixation as far as we understand, but it is limited. It is limited by technical means and limited in time because it is only to take account of time zones.</p>
<p style="text-align: justify; ">In other alternatives that we have on the table as far as we understand in the working document, alternative A, Alternative B, the proposal which was presented today by Belarus on behalf of some members of the CACEEC group, and to the extent that we understand the proposal of the Delegation of India, all these proposals include the right to authorize and prohibit only the right to prohibit in case of the proposal from India transmissions from fixation. We have -- atlas the way we see it, on one side we have the U.S. proposal with transmissions from fixations limited in some way and specifically in time, and then we have a number of proposals where we have transmissions from fixations included. For us, that would be the second block after the simultaneous retransmission, the second block to look at is this block of transmission from fixation. Within this block there are a number of Delegations that in the very explicit way include the so-called making available right. This is the case of Alternative B in the working document, this is the case of the proposal -- proposal presented by Belarus today and this of course has been the position of the European Union as well.</p>
<p style="text-align: justify; ">So that's for us, the second thing to look at, maybe to put in this matrix.</p>
<p style="text-align: justify; ">We would like to somehow maybe separate this block of transmissions from fixation from what we usually call post-fixation rights. When we move to post-fixation rights you have -- this is always interesting, helpful to look at the table proposed by by the Japanese Delegation, there are a number of rights so that you have the right of fixation itself, of course, that's not exactly post-fixation rights but I think belongs to this group of rights, reproduction and distribution and the right of public performance in places without accessible, for repayment of the fee. All these rights, we think belong to this third block. To be looked at.<br /> Of course, there are certain overlaps, when you look at the various proposals, some extend to all the rights, some extend to only some of these rights. In our view, these three groups are -- it is something to be looked at.</p>
<p style="text-align: justify; ">Further, I think if we look at this, if we create in matrix in that sense, it will help us to move further. Then, of course, for us, the next step of the discussion is to then understand in more detail various proposals and I'll just give a couple of examples. I think it is clear for everybody in the room to understand the proposal of the United States on near simultaneous transmission T will have to be very clear what is near simultaneous means, and especially since it is limited in time, in the U.S. today, they indicated, that limited in time not in terms of years, but rather in terms of hours or let's say shorter periods of time, it is very important to know how this would be, how it would be understood and how it works in practice. I think as regards to proposal from India, one thing for us is still maybe not entirely clear is this reference that in all cases the protection has to be subject to the extent of rights acquired from the owners of copyright and related rights. That's, for example, in terms of transmissions of sport events, which are not covered by copyright, we don't understand how this would be covered or whether the proposal of India is, but these would not be covered at all by these Treaties but there is a number of issues that we can go into more depth with each of these proposals. I think that the final, final block is what kind of rights are we talking about in terms of exclusive rights, rights to prohibit. That's all other rights.</p>
<p style="text-align: justify; ">In a number of these proposals, we have the right to offer us and prohibit, why for example in the proposal from India we have clearly right to prohibit. That's the final element of the matrix with which we have to look at because maybe not necessarily for all of the rights we have to have the same right. In the sense the same category of right. Maybe we can have some rights that are exclusive rights and for some rights, rights to prohibit, of course, we should not finally forget the protection for the pre-broadcast signal because we have not mentioned it today, but I think on that element also there is quite a broad consensus to have this as a right to the protection for pre-broadcasting. Thank you very much. <br />After quite a few confused and confusing interventions, the US took the floor again urging the delegates to separate the two main issues, what are we trying to protect and with what rights:<br />United States.</p>
<p style="text-align: justify; ">A lot of issues have been raised in the last round of interventions. I do think it is important to keep our minds fixed on the idea that there is two separate issues and one is the scope or object of protection and the other is what the nature of the rights are. Sometimes I think we're conflating them in the discussions, if we look at the matrix, the object of protection, what that is, I just wanted to note one more time while we've got the broadcasters in the room that I do think there is still some open questions that would be good to get answers to if not -- if it is not possible to get the answers this week, then the next time that this committee meets, and those were my questions about to what extent the uses of new technology described by the BBC and summarized in Japan's little summary document, to what extent the uses of new technology have become standard and how widely adopted they are among broadcasters in different countries and of different types and sizes. I think that would be helpful to know.</p>
<p style="text-align: justify; ">Also where the piracy takes place, where it is that those who are Pirating, getting the signals from would be useful to know as well and I partly raise these questions because to the extent we're debating the inclusion of or consideration of simulcasting, deferred, on demand transmission signals, in addition to the question of what extent the piracy problems would be covered by copyright in the content and another question with could be could this be seen an an issue of infringe.</p>
<p style="text-align: justify; ">Rather than the issue of protection. If we're protecting over the air broadcast signals, is the problem that the piracy of those signals is taking place using the simulcast versus using the actual over the air broadcast. That's why I see the issues as related, and I think it would be helpful to get more answers to those questions as we look at whatever matrix is prepared.</p>
<p style="text-align: justify; ">In terms In terms of the rights, the Article 9 issues, the EU asked a number of questions, I think the Delegate from the EU is correct that there's -- it is not just that the rights are prefixation and post fixation, there is probably at least three different types of things we're talking about. In the language the U.S. has proposed for discussion we're not presuming that the existence of a fixation at any point along the way negates the right, not at all. In fact, you certainly could have a simultaneous, near simultaneous near transmission of the public even where the retransmission is made from a fixation and indeed some technologies may require the use of a fixation to enable the retransmission.</p>
<p style="text-align: justify; ">I think what we're focusing on is the idea that there is no right to control the fixation itself or what is otherwise done with subsequent copies, including consumer copying, that would not fall within the right.</p>
<p style="text-align: justify; ">Then, just to say that we appreciated the comments from the Delegate of Brazil and also wanted to clarify our proposal was really a matter of process, not substance. We agree with Russia that we're looking to move this forward and so even though our view is that a single right rather than a combination is the most likely way to be able to make progress and move the debate forward, and achieve an outcome, we also think we could make progress here this week if we could simplify the full range of rights that are on the table and figure out a way to present two options for consideration and further negotiation.</p>
<p style="text-align: justify; ">That would only be for purposes of the negotiation rather than an agreement on substance at this point, that that's the right approach so then each of us could still be able to convince other Member States of our own view or to find some way to accommodate the concerns once we see what the two approaches clearly are.</p>
<p style="text-align: justify; ">It is a matter of process to be able to move forward from the complex text that we currently have before us.</p>
<p style="text-align: justify; ">Then just finally, we also agree that we still have open the exact wording of what the right would be in Article 9, is it a right to authorize, exclusive right to authorize, a right to prohibit, prevent, maybe at this point in time we need to keep those things in brackets also for further consideration, negotiation, including the issue razed by the E.U. Delegate that possibly the exact wording may be different depending on what the right is that we're talking about.</p>
<p style="text-align: justify; ">Following the US intervention, India discussed the very many different kind of piracy. Then, the Chair gave the floor to the NGOs and before lunch, the NAB (the demandeur for the treaty) made some clarifications related to the Monday presentation by the BBC (the red button or on demand webcast of BBC programs). Which was followed by KEI which stated:<br />quote.</p>
<p style="text-align: justify; ">This is not a treaty about copyright piracy but a special ride for broadcasters. I think it is not a good idea to sort of refer to cases where there is already a right, the copyright owners have (kei) unless you make it relevant to what's discussed here this week. IP rights are a form of regulation, and they create monopolies, rights to exclude, new layers of rights to clear, a shrinking of the public domain, and more obligations for consumers, libraries, businesses to pay more money not to copyright holders,but to the distributors of content. Don't go overboard. Don't approach this like you're a rich relative giving gifts to nephews and nieces, interventions should be narrow and only where they're actually needed to solve a problem like signal piracy to the extent that it is understood and can be remedied through an instrument, or to achieve a predictable, a desired redistribution of income to broadcasters. You're in this case extending rights to entirely new beneficiaries, it is not just people that broadcast in radio and television which was what the Rome convention addressed and make the service available that no one could charge for. Now you're talking about pay services protected by under legal protections such as regulatory provisions, contracts, theft of service laws, you're talking about cable tv service shut off if you didn't pay, cable -- satellite services that are shut off if you don't pay, you're talking about a wide-range of internet delivery issues and people are talking about post fixation rights.</p>
<p style="text-align: justify; ">You have what the BBC has described, you have people talking about services now provided under services in the United States such as hulu using platforms like these decidings, tablet computers, the explosion of services, and most of the people doing most of the innovative services outside of BBC are not here demanding a WIPO treaty but doing things, it is working, exploding and it is happening without this new form of regulation. So, I would say conclude by saying that the Rome convention or the WPPT or the Beijing treaty should not be the basis of the rights. Those rights already exist, they address different issues. You're talking about something new today and this new thing should be justified by some coherent explanation of a problem you are trying to solve and should be comfortable because of the cost of the regulation you're introducing to the information society is somehow justified by the benefit.</p>
<p style="text-align: justify; ">The Chair called then on the American Society of Archivists:</p>
<p style="text-align: justify; ">Thank you, Mr. Chair. On behalf of the society of American Archivists, the largest organization of archivists, we want to commend you for the continued wise chairmanship of the srcr and thank you to the Secretariat for the excellent support of the Committee's work. For decades archives included not just paper records but also important sound and video recordings, many of which have come from broadcasters. These are invaluable documents for connecting society to its past. Think of a major event in the past 15 years, the fall of the Berlin wall or the collapse of the twin towers on September 11th, without the video images that were created, these are the documents that will provide the stuff of history that connects future users to the archives. Thus, regardless of whatever measures are put into place to provide the signal protection that broadcasters need, the new rights should not add any further layers on the already existing copyright protection that exists in the content. Over the long passage of time the archives have to span, and given the vigories of institutions that disappear with regularly, adding a new right on broadcast content would add imher rationally for the orphan work in providing abscess to the dock ministry sector that is such an important part of society's historical record. After the lunch break, eIFL took the floor. The giddy mood of "moving forward" that we had witnessed in the morning was slowly changing (the momentum keep changing said a broadcaster sitting behind me).<br />[...]<br /> eIFL: As stated at previous sessions of this Committee we see no compelling public policy reason for a new international treatment on the protection of broadcast organisations because piracy of broadcast signals is adequately dealt with under existing laws and treaties as outlined in the earlier statement by KEI. And the creation of a new layer of rights that affects access to content is of great concern to librarians because it imposes an additional barrier on access to knowledge especially to content in the public domain.</p>
<p style="text-align: justify; ">As stated which the Delegation of Ecuador, a new layer of rights will in addition to creating problems for users create froshes rights holders of content that will impact on their ability to freely licensed their works. Libraries have practical experience of such over protection caused by multiple layers of rights. For example, a library in northern Europe wanted to publish a sound recording from their archive that was originally broadcast in the 1950s. The recording was taken from a rebroadcast in the 1980s. And all of the performers'rights had expired and the authors waived their fees due to the importance of the work, the library had to pay $10,000 for the permission to use the recording because the signal protection applied also to the the retransmission.</p>
<p style="text-align: justify; ">So for many libraries, as you can imagine, such costs are out of the question. As a result, socially valuable works remain inaccessible in libraries and archives, depriving the public of the enjoyment of their work. So Distinguished Delegates, please consider the costs to taxpayers and society as well as the perceived benefits of this proposed treaty. Thank you.</p>
<p style="text-align: justify; ">After the Libraries, --except for the European Broadcasters under ACT which came to support the NAB and the proposed treaty--, other consumer/public interest groups such as TACD and CIS (India) followed by many many right holders (copyright holders or as they say at WIPO content owners) such as IFPI, FILA, BCC and FIAPS (representing authors, performers, music producers) took the floor one after the other to express their strong opposition to the proposed treaty. The main point for the Music industry representative was that before the broadcasters get a new exclusive rights, they should first recognize the rights of the music producers and pay for music that they broadcast. While this is actually happening in many countries already, the US broadcasters do not pay and that should change first according to the IFPI. Finally (and that was a surprise for many), a representative from Direct TV attending the SCCR for the first time expressed its strong concerns for a treaty that would give broadcasters exclusive rights and thus more power to control the media market.</p>
<p style="text-align: justify; ">Here is the Indian NGO CIS statement:<br /> We have some concerns regarding the intended scope and language of Article 9 in Working Document SCCR/27/2 Rev. We believe that this expands the scope of this proposed treaty and is likely to have the effect of granting broadcasters rights over the content being carried and not just the signal. On this issue, we have two brief observations to make:</p>
<p style="text-align: justify; ">First- Article 9 envisages fixation and post fixation rights for broadcasting organizations- for instance among others, those of reproduction, distribution and public performance This, we believe is not within the mandate of this Committee, being as it is, inconsistent with a signal based approach.</p>
<p style="text-align: justify; ">Second- we express our reservations on the inclusion of “communication to the public” reflected in Article 9 Alternative B, which also relates to the definition of communication to the public under alternative to d of Article 5 of this document. Communication to the public is an element of copyright and governs the content layer, as distinct from the “broadcast” or “transmission” of a signal.</p>
<p style="text-align: justify; ">Therefore, attempts to regulate “communication to the public” would not be consistent with a signal based approach.Notes during the excellent IFPI statement as well as statements by the other copyright owners will be in my next blog for your enjoyment.</p>
<p>
For more details visit <a href='https://cis-india.org/news/knowledge-ecology-international-manon-ress-april-29-2014-is-wipo-treaty-for-broadcasters-moving-forward-at-sccr-27'>https://cis-india.org/news/knowledge-ecology-international-manon-ress-april-29-2014-is-wipo-treaty-for-broadcasters-moving-forward-at-sccr-27</a>
</p>
No publisherpraskrishnaAccess to KnowledgeWIPO2014-05-02T11:58:15ZNews ItemInternational treaty to make books accessible to the blind
https://cis-india.org/news/the-hindu-ramya-kannan-december-20-2012-international-treaty-to-make-books-accessible-to-the-blind
<b>It would make it legal to send accessible books across borders.</b>
<hr />
<p style="text-align: justify; ">The article by Ramya Kannan was <a class="external-link" href="http://www.thehindu.com/news/national/international-treaty-to-make-books-accessible-to-the-blind/article4218770.ece">published</a> in the Hindu on December 20, 2012. Rahul Cherian is quoted.</p>
<hr />
<p style="text-align: justify; ">In a move that is likely to take more books closer to some 285 million people in the world, the Extraordinary General Assembly of the World Intellectual Property Organisation (WIPO) has referred the Treaty for Visually Impaired Persons to a diplomatic conference in June of 2013.</p>
<p style="text-align: justify; ">The treaty would allow specialist organisations to make accessible copies of books in all signatory countries; make it legal to send accessible books across national borders and make more books available for the blind.</p>
<p style="text-align: justify; ">There are an estimated 285 million blind and partially-sighted people in the world, of which the largest percentage lives in India. Like everyone else, blind people need books for education, pleasure and inclusion in society, but unlike others, these books are not accessible to them.</p>
<p style="text-align: justify; ">Books have to be converted into ‘accessible formats’ — audio, Braille, or large print — for the visually impaired. However, the fact is that about only 1 to 7 per cent of all books published are available in these formats.</p>
<p style="text-align: justify; ">“In many countries, the copyright laws prevent making accessible copies of the books, or importing them from nations where it is available,” said Rahul Cherian Jacob, who heads the Inclusive Planet Centre for Disability Law and Policy. He helped in drafting the Treaty and is the legal adviser to the World Blind Union on the Treaty.</p>
<p style="text-align: justify; ">Some developed nations have huge budgets that would allow them to make books in accessible formats. For instance, the U.S. had about $400 million a year to spend on making such books, while countries like India have very little funds available for the purpose, he said. Even if these books were available in the U.S., they were not accessible in India, because of import restrictions.</p>
<p style="text-align: justify; ">Sam Taraporevala, Director of the Xavier’s Resource Centre for the Visually Challenged and vice president and chairman policy formulation, Daisy Forum of India, said this could not have come at a better time for India. It was in last June that the amendment to the Copyright Act was passed, making a special exception to make accessible books.</p>
<p style="text-align: justify; ">G.R. Raghavender, Registrar, Copyrights, told <i>The Hindu</i>, “While the WIPO treaty looks at the blind and print-disabled, in June, Parliament introduced wider exceptions for physically disabled. Authorised entities will be allowed to produce accessible versions of books on a not-for-profit-basis without seeking for special permissions.”</p>
<p style="text-align: justify; ">However, even with this, owing to import restrictions, books already available in accessible formats in other countries could not be brought into India. They would have to be reprinted, Mr. Jacob noted.</p>
<p style="text-align: justify; ">"This is the real benefit of the treaty if it kicks in," Dr. Taraporevala said. Books could be sent across nations without restrictions, and this would mean a significant increase in the number of books available.</p>
<p style="text-align: justify; ">"However, what we do need to move towards a scenario where publishers will attempt to move towards equal opportunity publishing. The ideal scenario will be to make available every book that is published in accessible formats. Hopefully if all goes well, there will be something on the ground by the end of next year," he said.</p>
<p style="text-align: justify; ">The Cabinet should give the nod for India signing and ratifying the international treaty for it to come into force. However, given the overwhelming positive reception to the recent amendment to the Copyright Act, getting approval would not be an issue, rights activists said.</p>
<p>
For more details visit <a href='https://cis-india.org/news/the-hindu-ramya-kannan-december-20-2012-international-treaty-to-make-books-accessible-to-the-blind'>https://cis-india.org/news/the-hindu-ramya-kannan-december-20-2012-international-treaty-to-make-books-accessible-to-the-blind</a>
</p>
No publisherpraskrishnaAccess to MedicineAccess to KnowledgeWIPO2012-12-21T11:36:11ZNews ItemFrance, Greece, India and the European Union Sign the Marrakesh Treaty
https://cis-india.org/a2k/blogs/france-greece-india-eu-sign-marrakesh-treaty
<b>On April 30, 2014, on Day 3 of the 27th Session of the WIPO Standing Committee on Copyright and Related Rights, a Signing Ceremony was conducted for member states wishing to sign the Marrakesh Treaty to facilitate access to books and other reading material for the print disabled.</b>
<p style="text-align: justify; ">Read the <a href="https://cis-india.org/a2k/blogs/wipo-sccr-marakkesh-treaty" class="external-link">WIPO Signing Ceremony for Marrakesh Treaty</a></p>
<hr />
<p style="text-align: justify; ">Opening the proceedings, the Director General of WIPO, Francis Gurry called the Marrakesh Treaty “one of the greatest achievements of this Committee in the past year.” The Hon’ble Ambassador of France in his speech following that of the Director General emphasised the importance that his government placed on this treaty. Mrs. Veena Ish, Joint Secretary, Ministry of Human Resource Development signed the Marrakesh Treaty for the Government of India. In her address at the Signing Ceremony, Mrs. Ish placed emphasis on India’s 2012 amendments to the Copyright Act, 1957, stating that these provisions were “in complete harmony” with the Marrakesh Treaty and that India was “well poised” to implement the same. Mrs.Ish also stated that India would be ratifying the treaty “very soon.” Most importantly perhaps, Mrs. Ish reminded the Committee that appropriate mechanisms to implement this treaty would have to be put in place; and that implementing it in its true spirit would require cooperation from all member states. The Ambassador of Greece, speaking on behalf of Greece and the European Union said that they wanted the Marrakesh Treaty to serve its original purpose of benefitting persons with print disabilities.</p>
<p style="text-align: justify; ">The European Blind Union (EBU) and the Secretary General of (and speaking on behalf of) the International Publishers’ Association (IPA) also made statements at the Signing Ceremony. EBU was of the opinion that while the signature was a “major, symbolic leap forward”, the next crucial step was to ensure its speedy ratification so that it might become effective. IPA echoed previous speakers on the point that ratification and implementation were but first steps, and that access would only be achieved as a result of “collaboration between rights organizations and rights holders.”</p>
<p style="text-align: justify; ">It will be interesting to see how these member states follow up on their signatures to the Marrakesh Treaty. The treaty will only be effective 3 months after at least 20 nations have ratified it.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/france-greece-india-eu-sign-marrakesh-treaty'>https://cis-india.org/a2k/blogs/france-greece-india-eu-sign-marrakesh-treaty</a>
</p>
No publishernehaaAccessibilityAccess to KnowledgeWIPO2014-05-02T23:23:25ZBlog EntryEU stalls treaty talks to allow copyright waiver for print disabilities
https://cis-india.org/news/eu-stalls-treaty-talks-to-allow-copyright-waiver-for-print-disabilities
<b>India and other developing countries support such a legally binding treaty, writes Priscilla Jebaraj in an article published in the Hindu on July 25, 2012. Pranesh Prakash is quoted.</b>
<p style="text-align: justify; ">The European Union is holding up a treaty to allow books and other printed works to be converted into a format accessible to the visually impaired and other print disabled people without seeking the permission of the copyright holder.</p>
<p style="text-align: justify; ">India, and most other developing countries, strongly support such a legally binding treaty currently being negotiated at a World Intellectual Property Organisation (WIPO) meeting in Geneva. However, non-governmental organisation sources at that summit say that the EU is stalling the treaty by placing unreasonable restrictions on how copyrighted works are to be converted, and by whom. The EU office in Delhi and Brussels did not respond to a request for comment on their position.</p>
<p style="text-align: justify; ">"[The treaty] would allow organisations working for the blind to import and export accessible works without seeking the copyright holder's permission, since very little money is spent in developing countries on converting books into accessible formats, while they are much more readily available elsewhere," according to Pranesh Prakash of the Bangalore-based Centre for Internet and Society who is attending the summit as an NGO member. If the treaty is not finalised by Wednesday, when the meeting ends, disabled people could be forced to wait till 2014 for their next chance.</p>
<p style="text-align: justify; ">Last week, Indian delegate G.R. Raghavender pleaded with negotiators to finalise the treaty without further delay "so that we won't go back, especially the Indian delegation won't go back empty-handed, facing the 15 million blind people in India, which is almost 50 percent of the world blind population, that is 37 million."</p>
<p style="text-align: justify; ">In fact, the treaty will benefit a much larger group of print-disabled, including those who suffer from motor disabilities which prevent them from holding a book, or learning disabilities such as dyslexia, or autism, which make it hard to read. There are approximately 70 million print-disabled people in India.</p>
<p style="text-align: justify; ">Accessible formats would include Braille, electronic text and audio versions of books, making Western publishers' jittery about piracy fears. Hence, some countries are demanding stringent tracking mechanisms and legal requirements that activists say will effectively block access to disabled people in developing countries — where more than 85 per cent of them live.</p>
<p style="text-align: justify; ">"An instrument that subjects the enjoyment of fundamental freedoms by persons with visual impairments to market forces and bureaucratic practices will not work," Mr. Prakash said, in his statement to WIPO delegates. "In India, our Parliament recently passed an amendment to our copyright law that grants persons with disabilities, and those who are working for them, a strong yet simply-worded right to have equal access to copyrighted works as sighted persons."</p>
<p style="text-align: justify; ">In fact, the EU Parliament had given its unanimous approval to the treaty in February 2012. "It would be a democratic travesty if the EU’s representatives here today posed any problems to a clear road map for a binding international treaty, especially by posing unrealistic proposals with regards to authorised entities and other issues very far from consensus positions in the WIPO and in clear contradiction with the aims of the World Blind Union," said David Hammerstein, a representative of American and European consumer organisations, making a statement at the Geneva meeting.</p>
<p style="text-align: justify; ">Read the original published in the <a class="external-link" href="http://www.thehindu.com/news/national/article3679662.ece">Hindu</a></p>
<p>
For more details visit <a href='https://cis-india.org/news/eu-stalls-treaty-talks-to-allow-copyright-waiver-for-print-disabilities'>https://cis-india.org/news/eu-stalls-treaty-talks-to-allow-copyright-waiver-for-print-disabilities</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to KnowledgeWIPO2012-07-25T09:37:25ZNews ItemDisability groups in India welcome progress on treaty for blind persons
https://cis-india.org/news/times-of-india-city-mumbai-madhavi-rajadhyaksha-december-20-2012-disability-groups-in-india-welcome-progress-on-treaty-for-blind-persons
<b>Four years of struggle for a global treaty for the benefit of blind persons is finally bearing fruit. Member states of the World Intellectual Property Organisation have agreed to conclude a treaty for visually-impaired and print disabled persons by June 2013. </b>
<hr />
<p style="text-align: justify; ">Madhavi Rajadhyaksha's article <a class="external-link" href="http://timesofindia.indiatimes.com/city/mumbai/Disability-groups-in-India-welcome-progress-on-treaty-for-blind-persons/articleshow/17697105.cms">published</a> in the Times of India on December 20, 2012 quotes Nirmita Narasimhan and Rahul Cherian.</p>
<hr />
<p style="text-align: justify; ">Print disabled persons are a group which includes those who are blind, visually-impaired, orthopaedically challenged or those living with hearing problems or learning disability. They have traditionally lacked access to an array of books , films and research material simply because they aren't available in formats which are accessible to them. For instance, blind persons have been denied access to books and films which aren't available in Braille.</p>
<p style="text-align: justify; ">The international treaty that is underway would ensure free exchange of work suitable to print impaired persons across borders. In other words, a book in Braille available in the United <a href="http://timesofindia.indiatimes.com/topic/Kingdom">Kingdom</a> could be freely imported by India for the benefit of visually-impaired persons here.</p>
<p style="text-align: justify; ">The treaty is particularly a huge boon for developing countries like India, many of which cannot afford the huge costs of translating works into print-friendly formats or importing them from more developed nations. There are roughly 285 million blind and partially sighted people in the world with the largest pool in India.</p>
<p style="text-align: justify; ">The desperate need for such a treaty is evident from the fact that only seven per cent of published books are made accessible to persons with disabilities. This estimate of the World Blind Union is largely for richer countries, with less than one per cent of work available to those in poorer countries.</p>
<p style="text-align: justify; ">Organizations like the Indian Right to Read Alliance which has been pushing for the treaty welcomed the June deadline. "This is an incredible development, and after a four year struggle we are looking forward to the treaty being concluded next year. This Treaty will revolutionize access to reading materials for persons with print disabilities around the world and we in India will hugely benefit from being able to import books in accessible formats from countries with large libraries such as the United Kingdom and the United States," said Rahul Cherian Jacob of the Inclusive Planet Centre for Disability Law and Policy, who is the legal advisor to the World Blind Union.</p>
<p style="text-align: justify; ">Sam Taraporevala, Director of the Xavier's Resource Centre for the Visually Challenged was elated by this development. "There is a library in the United States which has 10 million books in accessible digital formats which will be accessible to us once this treaty is passed. This is huge boost to our blind and visually impaired students who want to get into the field of research."</p>
<p style="text-align: justify; ">The treaty could transform the lives of million of people around the world, believes Nirmita Narasimhan, policy director, Centre for Internet and Society, a Bangalore based NGO which has played a crucial role in WIPO negotiations. She pointed out that breaking the barriers would make the Internet and accessible information and communications technologies more meaningful by expanding their potential for use.</p>
<p>
For more details visit <a href='https://cis-india.org/news/times-of-india-city-mumbai-madhavi-rajadhyaksha-december-20-2012-disability-groups-in-india-welcome-progress-on-treaty-for-blind-persons'>https://cis-india.org/news/times-of-india-city-mumbai-madhavi-rajadhyaksha-december-20-2012-disability-groups-in-india-welcome-progress-on-treaty-for-blind-persons</a>
</p>
No publisherpraskrishnaAccessibilityWIPO2012-12-31T01:40:07ZNews ItemComments to the MHRD on WIPO Broadcast Treaty (March 2013)
https://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty
<b>The Centre for Internet and Society would like to make the following comments on the draft legal text of SCCR/24/10 (Working Document for a Treaty on the Protection of Broadcasting Organizations) at the stakeholders meeting to be held on March 21, 2013.</b>
<ol> </ol><ol>
<li style="text-align: justify; "><b>Article 1 – Preamble:</b> The draft legal text of SCCR/24/10 (“Treaty”) in the Preamble should in clear terms capture the intent of the WIPO General Assembly as to the object of the Treaty. The SCCR reiterated the General Assembly’s mandate for a signal based approach treaty for the protection of broadcasting and cablecasting organizations. In this regard, the SCCR in its report to the 50th Session of the WIPO General Assembly (Oct. 1-9, 2012) noted:<br /><br />“The Committee reaffirmed its commitment to continue work on a <i>signal based approach</i>, consistent with the 2007 General Assembly mandate, towards developing an international treaty to update <i>the protection of broadcasting and cablecasting organizations in the traditional sense</i>. The Committee also agreed to recommend to the WIPO General Assembly that the Committee continue its work toward a text that will enable a decision on whether to convene a diplomatic conference in 2014.” [<i>emphasis added</i>]<br /><br />Therefore it is submitted that the Preamble should at the very outset establish that the Treaty aims at<br />
<ul>
<li>protection of a related right and a signal based approach is adopted to protect such a related right </li>
</ul>
<ul>
<li>protection of the broadcasting and cablecasting organizations in the traditional sense.</li>
</ul>
</li>
<li style="text-align: justify; "><b>Article 2 – General Principles</b>: It is submitted that the Development Agenda under TRIPS should be declared as general principle under the Treaty where as a balance must be struck between the rights of the broadcasting organizations and the larger public interest.</li>
<li style="text-align: justify; "><b>Article 5 – Definitions</b>: The Treaty in its current form proposes alternatives to the definitions. On a general observation, it is submitted that the alternatives are unsatisfactory and waivers from the WIPO General Assembly mandate to adopt a signal based approach.<br /><br />In precise terms, the definition section attributes a broad definition to the “broadcast” and fails to define the means of broadcast. The alternative to 5(b) does reintroduce the phrase, “general public” instead of “public”, as anything lesser would not constitute a broadcast as it was in the Article 5 of the March, 2007 draft non-paper, but fails to adopt a signal based approach by adding the words, “and specific program”.<br /><br />Similarly definition of “retransmission” under the Alternative A for Article 5 clause (d) uses the words, “transmission by any means” which is again in conflict with the signal based approach.<br /><br />Apart from the instances mentions above there are many other inconsistencies in the definition section and therefore it is submitted that none of the alternatives to the definition section can be implements within the mandate of the General Assembly.</li>
<li style="text-align: justify; "><b>Article 6 – Scope of Application</b>: We agree with the Alternative A of Article 6, insofar as the alternative to clause 1 is adopted.</li>
<li style="text-align: justify; "><b>Article 9 – Protection for Broadcasting Organizations:</b> In reference to Alternative A for Article 9 it is submitted that<i> </i>the public performance of broadcast signals should not be covered. In many countries, especially lower-income countries, shared viewing of televisions and shared listening to radio are culturally established and it should not be equated with signal theft, which should be the primary focus of this Treaty. Further, free-to-air TV and radio channels and state-sponsored TV and radio channels depend on advertisements and other forms of income, not subscriber payments. Given this, there is no reason why public performance, the wrongfulness of which is very business-model dependent, should be included in this treaty.<br /><br />We strongly suggest that Alternative B to Article 9 should struck down as it is in contravention of the mandate of the WIPO General Assembly to adopt a signal based approach for the development of the text of the Treaty. There cannot be any fixation or post fixation rights be given to the broadcasting organization if a signal based approach is adopted for the Treaty.</li>
<li style="text-align: justify; "><b>Article 10 – Limitations and Exception</b>: The limitations and exceptions should be mandatory as well, as not balancing limitations and exceptions with the rights granted to the broadcasters would be violating the spirit of the WIPO Development Agenda.<br /><br />Further, it will also in contravention of Article 3 of the Treaty in its current form. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression recognizes the principles of equitable access and openness and balance. It also mandates implementation of “measures aimed at enhancing diversity of the media, including through public service broadcasting.<br /><br />It is also reiterated that, reasons for providing exceptions for over broadcast rights are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act. This might well afoul of the three-step test proposed in Article 7(2), especially as it says “provide for the same or further limitations or exceptions...”.<br /><br />Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 7(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.</li>
<li style="text-align: justify; "><b>Article 11 – Term of Protection</b>: As submitted earlier by CIS, it is reiterated that no term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 [of the previous draft treaty] should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.</li>
<li style="text-align: justify; "><b>Article 12 – Protection of Encryption and Rights Management Information</b>: From our previous submission on this issue we reiterate that, No separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.<br /><br />As stated by the Brazilian government with respect to the April 2007 non-paper:<br />“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”<br /><br />If even the provision is to be retained, it should not grant the broadcasters any rights over and above that which is otherwise granted by the law, thus the following line is over-broad: “that are not authorized by the broadcasting organizations concerned or are not permitted by law.”</li>
</ol><ol> </ol>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty'>https://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty</a>
</p>
No publisherpraneshAccess to KnowledgeWIPO2013-04-23T06:39:36ZPageComments on the Protection of Broadcasting Organizations: Technical Background Paper Prepared by the WIPO Secretariat
https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper
<b>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. </b>
<p style="text-align: justify; ">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 <a href="https://cis-india.org/a2k/blogs/comments-on-protection-of-broadcasting-organizations.pdf" class="external-link">PDF</a>.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>I. </b> <b>Preliminary</b></p>
<p style="text-align: justify; ">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").</p>
<p style="text-align: justify; ">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.<a href="#_ftn1" name="_ftnref1">[1]</a></p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; "><b>II. </b> <b>Overview</b></p>
<p style="text-align: justify; "><b>Governing Principles</b></p>
<p style="text-align: justify; ">4. CIS is a non-governmental organization engaged in research and policy work in the areas of, inter alia, access to knowledge and openness. <a href="#_ftn2" name="_ftnref2">[2]</a> 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.</p>
<p style="text-align: justify; "><b>Adoption of a Signals-Based Approach</b></p>
<p style="text-align: justify; ">5. CIS has consistently recommended the adoption of a Broadcast Treaty consistent with the signals based approach, <a href="#_ftn3" name="_ftnref3">[3]</a> 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.</p>
<p style="text-align: justify; "><b>III. </b> <b>Detailed Comments</b></p>
<p style="text-align: justify; "><b>On the 'Introduction'</b></p>
<p style="text-align: justify; ">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.<a href="#_ftn4" name="_ftnref4">[4]</a> 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 <i>inter alia, </i>some of the safeguards discussed later in this submission might address this imbalance.</p>
<p style="text-align: justify; ">7. The Technical Background Paper excludes from its scope the rationale for protection as well as the scope of protection for broadcasters. <a href="#_ftn5" name="_ftnref5">[5]</a> 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.</p>
<p style="text-align: justify; ">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,<a href="#_ftn6" name="_ftnref6">[6]</a> 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 <a href="#_ftn7" name="_ftnref7">[7]</a> in the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961.<a href="#_ftn8" name="_ftnref8">[8]</a> A detailed discussion on the existing legal framework is available in the next section of this submission.</p>
<p style="text-align: justify; "><b>On 'Broadcasting Organizations and the Rome Convention'</b></p>
<p style="text-align: justify; "><span>The Legal Framework Applicable to Broadcasting</span></p>
<p style="text-align: justify; ">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.<a href="#_ftn9" name="_ftnref9">[9]</a></p>
<p style="text-align: justify; ">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.<a href="#_ftn10" name="_ftnref10">[10]</a> In this regard CIS believes that the Technical Background Paper is inadequate and must be revised and updated to include other legal developments<a href="#_ftn11" name="_ftnref11">[11]</a> 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").</p>
<p style="text-align: justify; ">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. <a href="#_ftn12" name="_ftnref12">[12]</a> 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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; "><span>Signal, Content and Program</span></p>
<p style="text-align: justify; ">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.<a href="#_ftn13" name="_ftnref13">[13]</a> 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.<a href="#_ftn14" name="_ftnref14">[14]</a> 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. <a href="#_ftn15" name="_ftnref15">[15]</a> 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. <a href="#_ftn16" name="_ftnref16">[16]</a></p>
<p style="text-align: justify; ">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." <a href="#_ftn17" name="_ftnref17">[17]</a> 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.<a href="#_ftn18" name="_ftnref18">[18]</a></p>
<p style="text-align: justify; "><b>On 'Legal Issues to be Considered'</b></p>
<p style="text-align: justify; ">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.<a href="#_ftn19" name="_ftnref19">[19]</a></p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; "><span>Broadcasting and Piracy</span></p>
<p style="text-align: justify; ">17. This part of the document discusses the signal piracy and its effect on markets in developing and developed countries. <a href="#_ftn20" name="_ftnref20">[20]</a></p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; "><span>Program-Carrying Signals</span></p>
<p style="text-align: justify; ">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.<a href="#_ftn21" name="_ftnref21">[21]</a></p>
<p style="text-align: justify; ">20. CIS believes that the claim that pre-broadcast signals have been stolen before<a href="#_ftn22" name="_ftnref22">[22]</a> 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<a href="#_ftn23" name="_ftnref23">[23]</a> and ensure that the underlying content is not subject to an additional layer of protection.<a href="#_ftn24" name="_ftnref24">[24]</a></p>
<p style="text-align: justify; "><span>The Object of Protection</span></p>
<p style="text-align: justify; ">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.<a href="#_ftn25" name="_ftnref25">[25]</a></p>
<p style="text-align: justify; ">22. CIS believes that a more in-depth study of definitions of broadcast under all international instruments <a href="#_ftn26" name="_ftnref26">[26]</a>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.</p>
<p style="text-align: justify; "><span>The Subject of Protection</span></p>
<p style="text-align: justify; ">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.<a href="#_ftn27" name="_ftnref27">[27]</a></p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; "><b>IV. </b> <b>Concluding Observations</b></p>
<p style="text-align: justify; ">25. In conclusion, CIS submits the following recommendations on the Technical Background Paper.</p>
<p style="text-align: justify; ">a) Updating the Technical Background Paper to include legal and technological developments to better inform the discussion on the Broadcast Treaty.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">d) Updating the Technical Background Paper to include widely prevalent industry practices that could affect the discussion around the Broadcast Treaty.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">f) Updating the Technical Background Paper to include a discussion on limitations and exceptions under the proposed treaty.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; "><b>V. </b> <b>Other Resources </b></p>
<p style="text-align: justify; "><b>Statements made by CIS to the SCCR on Broadcast Treaty</b></p>
<p style="text-align: justify; ">1. 29<sup>th</sup> Session of the WIPO SCCR :CIS 2<sup>nd</sup> (brief) Intervention on the Broadcast Treaty, <a href="http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty"> http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">2. CIS Intervention on Proposed Treaty of Broadcasting Organizations, SCCR 29: <a href="http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations"> http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">3. CIS Statement at SCCR 28 on the Proposed Treaty for Protection of Broadcasting Organisations, Available at: <a href="http://lists.keionline.org/pipermail/a2k_lists.keionline.org/2014-July/002720.html"> http://lists.keionline.org/pipermail/a2k_lists.keionline.org/2014-July/002720.html </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">4. CIS Statement at 27<sup>th</sup> SCCR on the WIPO Proposed Treaty for the Protection of Broadcasting Organisations, Available at: <a href="http://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations"> http://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">5. CIS' Statement at SCCR 24 on WIPO Broadcast Treaty, Available at: <a href="http://cis-india.org/a2k/blogs/cis-statement-sccr24-broadcast-treaty">http://cis-india.org/a2k/blogs/cis-statement-sccr24-broadcast-treaty</a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">6. Statement of CIS on the WIPO Broadcast Treaty at the 23<sup>rd</sup> SCCR, Available at: <a href="http://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement">http://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement</a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">7. Statement of CIS, India on the WIPO Broadcast Treaty at the 22<sup>nd</sup> SCCR, Available at: <a href="http://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement">http://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement</a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">8. CIS Statement on the WIPO Broadcast Treaty at SCCR 19, Available at: <a href="http://cis-india.org/a2k/blogs/sccr19-broadcast-treaty">http://cis-india.org/a2k/blogs/sccr19-broadcast-treaty</a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; "><b>Submissions made by CIS on the Broadcast Treaty</b></p>
<p style="text-align: justify; ">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: <a href="http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty"> http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">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: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">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: <a href="http://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations"> http://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">4. Comments to MHRD on WIPO Broadcast Treaty, March 2013, Available at: <a href="http://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty">http://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty</a></p>
<p style="text-align: justify; ">5. Comments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives, 29 November 2012, Available at: <a href="http://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives"> http://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives </a> (last accessed 25 June, 2015)</p>
<p style="text-align: justify; ">6. Comments to the Ministry on WIPO Broadcast Treaty, March 2011, Available at: <a href="http://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011"> http://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011 </a> (last accessed 25 June, 2015)</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; "><b>On behalf of the Centre for Internet and Society,</b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>Nehaa Chaudhari Amulya Purushothama</b></p>
<p style="text-align: justify; "><b>Lawyer/Programme Officer Lawyer/Research Assistant</b></p>
<p style="text-align: justify; "><a href="mailto:nehaa@cis-india.org"><b>nehaa@cis-india.org</b></a> <b> </b> <a href="mailto:amulyaindavar@gmail.com"><b>amulyaindavar@gmail.com</b></a> <b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> Hereafter "Technical Background Paper"</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> See <a href="http://www.cis-india.org">www.cis-india.org</a> (last accessed 25 June, 2015) for details about CIS' work.</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.3.</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> Id at p.2.</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> See for Instance CIS' Statement at SCCR 24 on the WIPO Broadcast Treaty, Available at: <a href="http://cis-india.org/a2k/blog/cis-statement-sccr24-broadcast-treaty"> http://cis-india.org/a2k/blog/cis-statement-sccr24-broadcast-treaty </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> Id.</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> Hereafter, the Rome Convention.</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.4-5</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> See 'Overview' of this submission.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> 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: <a href="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 </a> (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: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> See for example, Study on Copyright Limitations and Exceptions for Libraries and Archives, Available at: <a href="http://www.wpio.int/copyright/en/limitations/libraries_and_archives.html"> www.wpio.int/copyright/en/limitations/libraries_and_archives.html </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> 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: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at <a href="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 </a> : 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: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 </a> (last accessed 25 June, 2015)</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> 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: <a href="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 </a> (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: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> See comments under Introduction in this submission.</p>
</div>
<div id="ftn20">
<p><a href="#_ftnref20" name="_ftn20">[20]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15</p>
</div>
<div id="ftn21">
<p><a href="#_ftnref21" name="_ftn21">[21]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15-16</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15</p>
</div>
<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;</p>
</div>
<div id="ftn24">
<p><a href="#_ftnref24" name="_ftn24">[24]</a> CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: <a href="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 </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn25">
<p><a href="#_ftnref25" name="_ftn25">[25]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.16-17</p>
</div>
<div id="ftn26">
<p><a href="#_ftnref26" name="_ftn26">[26]</a> 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: <a href="http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn"> http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn </a> (last accessed 25 June, 2015).</p>
</div>
<div id="ftn27">
<p><a href="#_ftnref27" name="_ftn27">[27]</a> Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.17-18</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper'>https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper</a>
</p>
No publisherNehaa Chaudhari and Amulya PurushothamaIntellectual Property RightsAccess to KnowledgeWIPO2015-09-03T01:47:59ZBlog EntryComments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives
https://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives
<b>This November at WIPO the Standing Committee on Copyright and Related Rights was witness to a tough negotiation on the proposed Treaty providing access to copyrighted materials to visually impaired persons. In between these discussions, the SCCR also found time to have two short plenary sessions on the proposed broadcast treaty as well as working documents on exceptions for libraries and archives.</b>
<p style="text-align: justify; ">Although we were unable to make a statement at the SCCR due to logistical constraints, CIS had the following comments prepared on both these issues:</p>
<h3>Treaty for the Protection of Broadcasting Organizations:</h3>
<p style="text-align: justify; ">The Centre for Internet and Society would like to reiterate the statement on principles provided in the 22nd SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcast Treaty. While we are encouraged by the inclusion of more suitable alternatives in many of the areas that civil society organizations had expressed concern, it is important that these alternatives be considered carefully. Some of the alternatives in the working document are not in keeping with the mandate of this Committee and we need to ensure that any new treaty provides a balanced protection to broadcast organizations.</p>
<p>We wish to enumerate a few key areas that need to be emphasized once again in this regard –</p>
<p style="text-align: justify; ">To begin with, the definition of ‘broadcast’ itself should not be too broad. The treaty needs a clear and precise definition that limits the protection to signals and does not extend to retransmissions or transmissions over computer networks.</p>
<p style="text-align: justify; ">Similarly, it is essential that the protection granted to a broadcasting organization should be limited to broadcast signals. The current working document extends this protection to public accessibility/performance of the broadcast signal and such restrictions might not be feasible in developing and least developed countries. One alternative even extends the protection available to fixations of the broadcasts and this is entirely unacceptable in a signals based treaty. The obligations with regard to technological protection measures, if any, should also be limited to protect only those broadcasts that are lawful.</p>
<p>Limitations and exceptions to the protections granted by this treaty are also of great importance, especially so in light of the Development Agenda. These exceptions and limitations should be made mandatory and be expanded to include issues of national interest and for free-to-air broadcast signals (such as the laws governing broadcast of cricket games in India).</p>
<p style="text-align: justify; ">Lastly, as pointed out many times already, we are of the opinion that a fixed term of protection, whether 20 or 50 years, is inconsistent with the idea of a signals based approach to the treaty.</p>
<h3 style="text-align: justify; ">Proposed Legal Instruments on Exceptions and Limitations for Libraries and Archives and Educational, Teaching and Research Institutions and Persons with Other Disabilities:</h3>
<p style="text-align: justify; ">The Centre for Internet and Society would like to thank the Secretariat and the entire Committee for the hard work being put in this week at the SCCR.</p>
<p style="text-align: justify; ">International instruments that govern exceptions and limitations for libraries and archives as well as educational, teaching and research instruments and persons with other disabilities is key to ensure a balanced global copyright system that protects both right holders and users. Such instruments will not only allow the preservation of copyrighted works, but also provide greater access to these materials, especially in developing countries.</p>
<p style="text-align: justify; ">The working documents before us cover a number of issues and we would like to address a few of them today.</p>
<p style="text-align: justify; ">First, the three-step test. This has been a contentious issue with regard to all three instruments that are being discussed here this week. We would like to reiterate that a narrow interpretation of the three-step test should not be adopted, it is important that any and all flexibilities that can be made available to libraries and archives.</p>
<p style="text-align: justify; ">Second, libraries, archives, educational, research and teaching institutions should definitely be allowed to import and export copyrighted works and parallel trade in these works should be allowed. The language used in the current working document (SCCR/24/8) needs to be improved upon (Article 14, under 4.1 on page 12). This provision should indicate that as long as the copy of the work is lawfully produced, an educational institution, library, research organization or student is free to acquire, sell, import, export or otherwise dispose of that copy.</p>
<p style="text-align: justify; ">Thirdly, we wish to emphasize once again, the importance of protecting works that are in a digital format, as well as online libraries and archives. Additionally, the transmission of these works in a digital form as well as any internet service providers engaged in facilitating access to materials under this treaty should also be granted protection.</p>
<p>Thank you.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives'>https://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives</a>
</p>
No publishersmitaIntellectual Property RightsCopyrightAccess to KnowledgeWIPO2012-12-04T23:11:34ZBlog EntryComment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting
https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment
<b>The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.</b>
<p> </p>
<p>Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.<br /><br />And I would like to congratulate Prof. Sirenelli on his excellent presentation.<br /><br />I would like to flag a few points, though:</p>
<ol><li>One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.</li><li>The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights</li><li>The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.<br /></li></ol>
<p>I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment'>https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightPrivacyFreedom of Speech and ExpressionIntellectual Property RightsPiracyCensorshipWIPO2011-12-01T11:59:45ZBlog EntryCIS-TWN Analysis of WIPO Treaty for the Print Disabled (SCCR/22/15)
https://cis-india.org/a2k/blogs/cis-analysis-july2011-treaty-print-disabilities
<b>CIS and the Third World Network (TWN) conducted a quick analysis of the "Consensus document on an international instrument on limitations and exceptions for persons with print disabilities presented by Argentina, Australia, Brazil, Chile, Ecuador, Mexico, Paraguay, and the United States of America" presented as WIPO document numbered SCCR/22/15.</b>
<h1>SCCR/22/15</h1>
<p>ORIGINAL: English</p>
<p>DATE: June 20, 2011</p>
<p>Standing Committee on Copyright and Related Rights</p>
<p>Twenty-Second Session Geneva, June 15 to 24, 2011</p>
<p>Consensus document on an international instrument on limitations and exceptions for persons with print disabilities <i>presented by Argentina, Australia, Brazil, Chile, Ecuador, Mexico, Paraguay, and the United States of America</i></p>
<h2 id="preamble">PREAMBLE</h2>
<p>Recalling the principles of non-discrimination, equal opportunity and access, proclaimed in the United Nations Convention on the Rights of Persons with Disabilities,</p>
<p>Mindful of the obstacles that are prejudicial to human development and the fulfillment of disabled persons with regard to education, research, access to information and communication,</p>
<p>Emphasizing the importance of copyright protection as an incentive for literary and artistic creation and enhancing opportunities for everyone to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits,</p>
<p>Recognizing the importance of both accessibility to the achievement of equal opportunities in all spheres of society and of the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,</p>
<p>Aware of the many barriers to access to information and communication experienced by persons who are blind or have limited vision, or have other disabilities regarding access to published works,</p>
<p>Aware that the majority of visually impaired persons/persons with a print disability live in countries of low or moderate incomes,</p>
<p>Desiring to provide full and equal access to information, culture and communication for the visually impaired persons/persons with a print disability and, towards that end, considering the need both to expand the number of works in accessible formats and to improve access to those works,</p>
<p>Recognizing the opportunities and challenges for the visually impaired/persons with a print disability presented by the development of new information and communication technologies, including technological publishing and communication platforms that are transnational in nature,</p>
<p>Recognizing the need to seek, receive and impart information and ideas through any media and regardless of frontiers,</p>
<p>Aware that national copyright legislation is territorial in nature, and where activity is undertaken across jurisdictions, uncertainty regarding the legality of activity undermines the development and use of new technologies and services that can potentially improve the lives of the visually impaired/persons with print disabilities,</p>
<p>Recognizing the large number of Members who, to that end, have established exceptions and limitations in their national copyright laws for visually impaired persons/persons with a print disability, yet the continuing shortage of works in <s>special</s><span style="text-decoration: underline;">accessible</span> formats for such persons,</p>
<p>Recognizing that the preference is for works to be made accessible by rightholders to people with disabilities at publication and that, to the extent that the market is unable to provide appropriate access to works for visually impaired persons/persons with a print disability, it is recognized that alternative measures are needed to improve such access,</p>
<p>Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, and that such a balance must facilitate effective and timely access to works for the benefit of visually impaired persons/persons with a print disability,</p>
<p>Emphasizing the importance and flexibility of the three-step test for limitations and exceptions established in Article 9(2) of the Berne Convention and other international instruments,</p>
<p>Considering the discussions within the WIPO Standing Committee on Copyright and Related Rights on the issue of exceptions and limitations for the benefit of visually impaired persons/persons with a print disability and the various proposals tabled by Member States,</p>
<p>Prompted by a desire to contribute to the implementation of the relevant recommendations of the Development Agenda of the World Intellectual Property Organization,</p>
<p>Taking into account the importance of an international legal instrument/joint recommendation/treaty both to increase the number and range of accessible format works available to visually impaired persons/persons with a print disability in the world and to provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired/have a print disability in order to support their full and effective participation in society on an equal basis with others and to ensure the opportunity to develop and utilize their creative, artistic and intellectual potential, for their own benefit and for the enrichment of society,</p>
<p>Have agreed as follows:</p>
<h2 id="article-a">ARTICLE A</h2>
<h2 id="definitions">DEFINITIONS</h2>
<p>For purposes of these provisions</p>
<p>"work" means a work in which copyright subsists, whether published or otherwise made publicly available in any media.</p>
<p>"accessible format copy" means a copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without a print disability. The accessible format copy must respect the integrity of the original work and be used exclusively by <span style="text-decoration: underline;">beneficiary persons</span><s>persons with print disabilities</s>.<sup><a class="footnoteRef" href="#fn1" id="fnref1">1</a></sup></p>
<p>[Possible enumeration of different formats.]<sup><a class="footnoteRef" href="#fn2" id="fnref2">2</a></sup></p>
<p>"authorized entity" means a governmental agency, a non-profit entity or <span style="text-decoration: underline;">an</span><s>non-profit</s> organization<sup><a class="footnoteRef" href="#fn3" id="fnref3">3</a></sup> that has as one of its <s>primary missions</s><span style="text-decoration: underline;">activities</span> to assist persons with print disabilities by providing them with services relating to education, training, adaptive reading, or information access.</p>
<p>An authorized entity maintains policies and procedures to establish the bona fide nature of persons with print disabilities that they serve.</p>
<p><s>An authorized entity has the trust of both persons with print disabilities and copyright rights holders. It is understood that to obtain the trust of rightholders and beneficiary persons, it is not necessary to require the prior permission of said rightholders or beneficiary persons.</s><sup><a class="footnoteRef" href="#fn4" id="fnref4">4</a></sup></p>
<p><s>If an authorized entity is a nation-wide network of organizations, then all organizations, institutions, and entities that participate in the network must adhere to these characteristics.</s></p>
<p>"reasonable price for developed countries" means that the accessible format copy of the work is available at a similar or lower price than the price of the work available to persons without print disabilities in that market.</p>
<p>"reasonable price for developing countries" means that the accessible format copy of the work is available at prices that are affordable in that market, taking into account the humanitarian needs of persons with print disabilities.</p>
<p>References to 'copyright' include copyright and any relevant rights related to copyright that are provided by a Contracting Party in compliance with <s>the Rome Convention, the TRIPS Agreement, the WPPT or otherwise</s>any applicable international treaties or otherwise.<sup><a class="footnoteRef" href="#fn5" id="fnref5">5</a></sup></p>
<h2 id="article-b">ARTICLE B</h2>
<h2 id="beneficiary-persons">BENEFICIARY PERSONS</h2>
<p>A beneficiary person is a person who</p>
<ol style="list-style-type: lower-alpha; ">
<li>is blind;</li>
<li>has a visual impairment or a perceptual or reading disability, such as dyslexia, which cannot be improved by the use of corrective lenses to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or</li>
<li>is unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading.</li>
</ol>
<h2 id="article-c">ARTICLE C</h2>
<h2 id="national-law-exceptions-on-accessible-format-copies">NATIONAL LAW EXCEPTIONS ON ACCESSIBLE FORMAT COPIES</h2>
<ol style="list-style-type: decimal; ">
<li>
<p>Member State/Contracting Party should/shall provide in their national copyright law for an exception or limitation to the right of reproduction, the right of distribution and the right of making available to the public, as defined in article 8 of the WCT, for beneficiary persons as defined herein.</p>
</li>
<li>
<p>A Member State/Contracting Party may fulfill Article C (1) by providing an exception or limitation in its national copyright law such that</p>
<ol style="list-style-type: upper-alpha; ">
<li>
<p>Authorized entities shall be permitted without the authorization of the owner of copyright to make an accessible format copy of a work, supply that accessible format copy or an accessible format copy obtained from another authorized entity to a beneficiary person by any means, including by non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve these objectives, when all of the following conditions are met:</p>
<ol style="list-style-type: decimal; ">
<li>the authorized entity wishing to undertake said activity has lawful access to that work or a copy of that work;</li>
<li>the work is converted to an accessible format copy, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to the beneficiary person;</li>
<li>copies of the work in the accessible format are supplied exclusively to be used by beneficiary persons; and </li>
<li><s>4. the activity is undertaken on a non-profit basis. </s><sup><a class="footnoteRef" href="#fn6" id="fnref6">6</a></sup></li>
<li>
<p>A beneficiary person or someone acting on his or her behalf may make an accessible format copy of a work for the personal use of the beneficiary person where the beneficiary person has lawful access to that work or a copy of that work.</p>
</li>
</ol> </li>
<li>
<p>A Member State/Contracting Party may fulfill Article C (1) by providing any other exception or limitation in its national copyright law that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.</p>
</li>
<li>
<p>The Member State/Contracting Party may limit said exceptions or limitations to published works which, in the applicable <s>special</s><span style="text-decoration: underline;">accessible</span> format, cannot be otherwise obtained within a reasonable time and at a reasonable price.</p>
</li>
<li>
<p>It shall be a matter for national law to determine whether exceptions or limitations referred to in this Article are subject to remuneration.</p>
</li>
</ol>
<h2 id="article-d">ARTICLE D</h2>
<h2 id="cross-border-exchange-of-accessible-format-copies">CROSS-BORDER EXCHANGE OF ACCESSIBLE FORMAT COPIES</h2>
<ol style="list-style-type: decimal; ">
<li>
<p>Member States/Contracting Parties should/shall provide that if an accessible format copy of a work is made under an exception or limitation or export license in their national law, that accessible format copy may be distributed or made available to a beneficiary person in another Member State/Contracting Party by an authorized entity<s> where that other Member State/Contracting Party would permit that beneficiary person to make or import that accessible copy</s>.<sup><a class="footnoteRef" href="#fn7" id="fnref7">7</a></sup></p>
</li>
<li>
<p>A Member State/Contracting Party may fulfill Article D(1) by providing an exception or limitation in its national copyright law such that:</p>
<ol style="list-style-type: upper-alpha; ">
<li>
<p>Authorized entities shall be permitted without the authorization of the owner of copyright to distribute or make available accessible format copies to authorized entities in other Member States/Contracting Parties for the exclusive use of persons with print disabilities, where such activity is undertaken on a non-profit basis.<sup><a class="footnoteRef" href="#fn8" id="fnref8">8</a></sup></p>
</li>
<li>
<p>Authorized entities shall be permitted without the authorization of the owner of copyright to distribute or make available accessible format copies to persons with print disabilities in other Member States/Contracting Parties where the authorized entity has verified the individual is properly entitled to receive such accessible format copies under that other Member State/Contracting Party's national law.<sup><a class="footnoteRef" href="#fn9" id="fnref9">9</a></sup></p>
</li>
</ol> </li>
</ol>
<p>The Member State/Contracting Party may limit said distribution or making available to published works which, in the applicable <s>special</s><span style="text-decoration: underline;">accessible</span> format, cannot be otherwise obtained within a reasonable time and at a reasonable price, in the country of importation.</p>
<ol style="list-style-type: decimal; ">
<li><span style="text-decoration: underline;">Without prejudice to other exceptions to the exclusive rights of authors that are otherwise permitted by the Berne Convention or the TRIPS Agreement,</span> a Member State/Contracting Party may fulfill Article D(1) by providing any other exception or limitation in its national copyright law that is limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.</li>
</ol>
<h2 id="article-e">ARTICLE E</h2>
<h2 id="importation-of-accessible-format-copies">IMPORTATION OF ACCESSIBLE FORMAT COPIES</h2>
<p>To the extent that national law would permit a beneficiary person or an authorized entity acting on the beneficiary person’s behalf to make an accessible format copy of a work, the national law should/shall permit a beneficiary person or an authorized entity acting on that person's behalf to import an accessible format copy.<sup><a class="footnoteRef" href="#fn10" id="fnref10">10</a></sup></p>
<h2 id="article-f">ARTICLE F</h2>
<h2 id="circumvention-of-technological-protection-measures"><span style="text-decoration: underline;">CIRCUMVENTION OF </span>TECHNOLOGICAL PROTECTION MEASURES</h2>
<p>Member States/Contracting Parties should/shall ensure that beneficiaries of the exception provided by Article C have the means to enjoy the exception where technological protection measures have been applied to a work.</p>
<p><s>In the absence of voluntary measures by rightholders and to the extent that copies of the work in the accessible format are not available commercially at a reasonable price or via authorized entities, Member States/Contracting Parties should/shall take appropriate measures to ensure that beneficiaries of the exception provided by Article C have the means of benefiting from that exception when technical protection measures have been applied to a work, to the extent necessary to benefit from that exception.</s><sup><a class="footnoteRef" href="#fn11" id="fnref11">11</a></sup></p>
<h2 id="article-g"><s>ARTICLE G</s></h2>
<h2 id="relationship-with-contracts"><s>RELATIONSHIP WITH CONTRACTS</s></h2>
<p><s>Nothing herein shall prevent Member States/Contracting Parties from addressing the relationship of contract law and statutory exceptions and limitations for beneficiary persons.</s></p>
<h2 id="article-h">ARTICLE H</h2>
<h2 id="respect-for-privacy">RESPECT FOR PRIVACY</h2>
<p>In the implementation of these exceptions and limitations, Member States/Contracting Parties should/shall endeavour to protect the privacy of beneficiary persons on an equal basis with others.</p>
<p>[End of document]</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1">
<p>This change must be replicated everywhere where appropriate. <a class="footnoteBackLink" href="#fnref1" title="Jump back to footnote 1">↩</a></p>
</li>
<li id="fn2">
<p>Formats should not be enumerated, since even the disabilities are not enumerated. <a class="footnoteBackLink" href="#fnref2" title="Jump back to footnote 2">↩</a></p>
</li>
<li id="fn3">
<p>Non-profit organizations alone cannot cope with the needs of visually impaired people in the developing world. Thus, while it may sound like the ideal, it is impractical given the realities of the situation in the developing world. <a class="footnoteBackLink" href="#fnref3" title="Jump back to footnote 3">↩</a></p>
</li>
<li id="fn4">
<p>A "trust" system would make it impossible for developing countries to actualize these provisions. If despite this, copyright infringement happens, then national remedies exist for such infringement. <a class="footnoteBackLink" href="#fnref4" title="Jump back to footnote 4">↩</a></p>
</li>
<li id="fn5">
<p>To clarify: what is the purpose of these and not mentioning WCT, Berne, etc.? <a class="footnoteBackLink" href="#fnref5" title="Jump back to footnote 5">↩</a></p>
</li>
<li id="fn6">
<p>To be deleted for the same reasons as above. Non-profit basis, if insisted upon, can be retained in Article D(2)(A), but not here. <a class="footnoteBackLink" href="#fnref6" title="Jump back to footnote 6">↩</a></p>
</li>
<li id="fn7">
<p>Import law provisions are already there in Article E, and should remain there. In Art. E, it states, “shall permit” import, and here, “would permit”. <a class="footnoteBackLink" href="#fnref7" title="Jump back to footnote 7">↩</a></p>
</li>
<li id="fn8">
<p>This instance of "non-profit basis" may be retained if necessary. <a class="footnoteBackLink" href="#fnref8" title="Jump back to footnote 8">↩</a></p>
</li>
<li id="fn9">
<p>To clarify: what would such verification require? Would self-certification suffice? <a class="footnoteBackLink" href="#fnref9" title="Jump back to footnote 9">↩</a></p>
</li>
<li id="fn10">
<p>It should be clarified, possibly through an agreed statement, that nothing in this article shall derogate from the flexibility provided in Art. 6 of the TRIPS Agreement, which allows for countries to provide international exhaustion.</p>
<p>Thus, if the principle of international exhaustion is in place (i.e., parallel importation is allowed), then importation can be carried out by anyone, and not just by a beneficiary person or an authorized entity. <a class="footnoteBackLink" href="#fnref10" title="Jump back to footnote 10">↩</a></p>
</li>
<li id="fn11">
<p>This second paragraph weakens the principle established in the first by adding more conditions. They are almost phrased as alternatives, and the first alternative (paragraph) is the better one. <a class="footnoteBackLink" href="#fnref11" title="Jump back to footnote 11">↩</a></p>
</li>
</ol></div>
</li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-analysis-july2011-treaty-print-disabilities'>https://cis-india.org/a2k/blogs/cis-analysis-july2011-treaty-print-disabilities</a>
</p>
No publisherpraneshIntellectual Property RightsAccessibilityAccess to KnowledgeWIPO2011-10-12T08:29:01ZBlog EntryCIS's Statement at SCCR 24 on Exceptions & Limitations for Libraries and Archives
https://cis-india.org/a2k/blogs/cis-statement-sccr24-libraries-archives
<b>This was the statement delivered by Pranesh Prakash on Wednesday, July 25, 2012, at the 24th session of the WIPO Standing Committee on Copyrights and Related Rights on the issue of exceptions and limitations for libraries and archives.</b>
<p>Thank you, Mr. Chair.</p>
<p>We would like to associate ourselves with the statements made by International Federation of Library Associations, Electronic Information for Libraries, Knowledge Ecology International, Conseil International des Archives, Library Copyright Alliance, Computer and Communications Industry Association, and the Canadian Library Association.</p>
<p>The Centre for Internet and Society would like to commend this house for adopting SCCR/23/8 as a working document on the issue of exceptions and limitations on libraries and archives. This issue is of paramount interest the world over, and particularly in developing countries. I would like to limit my oral intervention to three quick points, and will send a longer statement in via e-mail.</p>
<p>First, we feel that this committee should pay special attention to ensuring that digital works and online libraries and archives such as the Internet Archive, also receive the same protection as brick-and-mortar libraries.</p>
<p>Second, we are concerned that we have been seeing some delegations advancing a very narrow interpretation of the three-step test. Such a narrow interpretation is not supported by leading academics, nor by practices of member states. A narrow interpretation of the three-step test must be squarely rejected. In particular, I would like to associate CIS with the strong statements by IFLA and KEI to maintain flexibilities within exceptions and limitations, instead of overly prescriptive provisions encumbered by weighty procedures and specifications.</p>
<p>We have comments about parallel trade as well, drawing from our experience and research in India, and will send those in writing.</p>
<p>Libraries and archive enhance the value of the copyrighted works that they preserve and provide to the general public. They do not erode it. Exceptions and limitations that help them actually help copyright holders. The sooner copyright holders try not to muzzle libraries, especially when it comes to out-of-commerce works, electronic copies of works, and in developing countries, the better it will be for them, their commercial interests, as well as the global public interest.</p>
<p>Thank you.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-statement-sccr24-libraries-archives'>https://cis-india.org/a2k/blogs/cis-statement-sccr24-libraries-archives</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightFair DealingsIntellectual Property RightsArchivesWIPO2012-07-25T10:54:38ZBlog EntryCIS's Closing Statement at Marrakesh on the Treaty for the Blind
https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind
<b>Pranesh Prakash read out an abridged version of this statement as his closing remarks in Marrakesh, where the WIPO Treaty for the Blind (the "Marrakesh Treaty") has been successfully concluded. The Marrakesh Treaty aims to facilitate access to published works by blind persons, persons with visual impairment, and other print disabled persons, by requiring mandatory exceptions in copyright law to enable conversions of books into accessible formats, and by enabling cross-border transfer of accessible format books.</b>
<p>Thank you, Mr. President.</p>
<p>I am truly humbled to be here today representing the Centre for Internet and Society, an Indian civil society organization. If I may assume the privilege of speaking on behalf of my blind colleagues at CIS who led much of our work on this treaty, and the many blindness organizations we have been working with over the past five years who haven't the means of being here today, I would like to thank you and all the delegates here for this important achievement. And especially, I would like to thank the World Blind Union and Knowledge Ecology International who renewed focus on this issue more than 2 decades after WIPO and UNESCO first called attention to this problem and created a "Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright".</p>
<p>While doing so, I would like to remember my friend Rahul Cherian — a young, physically impaired lawyer from India — who co-founded Inclusive Planet, was a fellow with the Centre for Internet and Society, and was a legal adviser to the World Blind Union. He worked hard on this treaty for many years, but very unfortunately did not live long enough to see it becoming a reality. His presence here is missed, but I would like to think that by concluding this treaty, all the distinguished delegations here managed to honour his memory and work.</p>
<p>I am grateful to all the distinguished delegations here for successfully concluding a reasonably workable treaty, but especially those — such as Brazil, India, Ecuador, Nigeria, Uruguay, Egypt, South Africa, Switzerland, and numerous others — who realized they were negotiating with blind people's lives, and regarded this treaty as a means of ensuring basic human rights and dignity of the visually impaired and the print disabled, instead of regarding it merely as "copyright flexibility" to be first denied and then grudgingly conceded. The current imbalance in terms of global royalty flows and in terms of the bargaining strength of richer countries within WIPO — many of who strongly opposed the access this treaty seeks to facilitate right till the very end — is for me a stark reminder of colonialism, and I see the conclusion of this treaty as a tiny victory against it.</p>
<p>It is historic that today WIPO and its members have collectively recognized in a treaty that copyright isn't just an "engine of free expression" but can pose a significant barrier to access to knowledge. Today we recognize that blind writers are currently curtailed more by copyright law than protected by it. Today we recognize that copyright not only <em>may</em> be curtailed in some circumstances, but that it <em>must</em> be curtailed in some circumstances, even beyond the few that have been listed in the Berne Convention. One of the original framers of the Berne Convention, Swiss jurist and president, Numa Droz, recognized this in 1884 when he emphasized that "limits to absolute protection are rightly set by the public interest". And as Debabrata Saha, India's delegate to WIPO during the adoption of the WIPO Development Agenda noted, "intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare."</p>
<p>When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing. Marrakesh was the city in which, as Debabrata Saha noted, "the damage [of] TRIPS [was] wrought on developing countries". Now it has redeemed itself through this treaty.</p>
<p>This treaty is an important step in recognizing that exceptions and limitations are as important a part of the international copyright acquis as the granting of rights to copyright holders. This is an important step towards fulfilling the WIPO Development Agenda. This is an important step towards fulfilling the UN Convention on the Rights of Persons with Disabilities. This is an important step towards fulfilling Article 27 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Economic Social and Cultural Rights and Article 30 of the UN Convention on Persons with Disabilities, all of which affirm the right of everyone — including the differently-abled — to take part in cultural life of the community.</p>
<p>While this treaty is an important part of overcoming the book famine that the blind have faced, the fact remains that there is far more that needs to be done to bridge the access gap faced by persons with disabilities, including the print disabled.</p>
<p>We need to ensure that globally we tackle societal and economic discrimination against the print disabled, as does the important issue of their education. This treaty is a small but important cog in a much larger wheel through which we hope to achieve justice and equity. And finally, blind people can stop being forced to wear an eye-patch and being pirates to get access to the right to read.</p>
<p>I also thank the WIPO Secretariat, Director General Francis Gurry, Ambassador Trevor Clark, Michelle Woods, and the WIPO staff for pushing transparency and inclusiveness of civil society organizations in these deliberations, in stark contrast to the way many bilateral and plurilateral treaties such as Anti-Counterfeiting Trade Agreement, the India-EU Free Trade Agreement, and the Trans-Pacific Partnership Agreement have been, and are being, conducted. I hope we see even more transparency, and especially non-governmental participation in this area in the future.</p>
<p>I call upon all countries, and especially book-exporting countries like the USA, UK, France, Portugal, and Spain to ratify this treaty immediately, and would encourage various rightholders organizations, and the MPAA who have in the past campaigned against this treaty and now welcome this treaty, to show their support for it by publicly working to get all countries to ratify this treaty and letting us all know about it.</p>
<p>I congratulate you all for the "Miracle of Marrakesh", which shows, as my late colleague Rahul Cherian said, "when people are demanding their basic rights, no power in the world is strong enough to stop them getting what they want".</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind'>https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind</a>
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No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsFeaturedWIPO2013-07-03T12:01:25ZBlog Entry