World Intellectual Property Organisation

Under Article 3 of the convention establishing WIPO, the United Nation agency seeks to "promote the protection of intellectual property throughout the world through cooperation among states..."[1]

With the proliferation of the internet, issues related to copyright have become more and more prominent. Internet has made sharing of content easy and efficient. It has also opened up avenues for e-commerce, sale and purchase of music, movies, e-books and other related content. In India, special music services and video services are made available to mobile users by the telecom service providers as value added services through internet technologies such as wireless access protocol (WAP) and general packet radio service (GPRS). Moreover, business models such as iTunes and Flyte allow consumers to download MP3 music for a fee. In this context, digital copyright has become an important topic of discussion.

Copyright law has faced difficulties coping up with digital technologies, especially the Internet. Enforcing copyright has been a tough task, given that protected works can be easily shared and transferred through the internet. In order to adjust the legal system to be in consonance with the latest technological developments the WIPO has laid down two treaties which are known as internet treaties. They are the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). These two treaties are considered to be the updates and supplements to the Berne Convention for the protection of the literary and artistic material.

"The WIPO Internet Treaties are designed to update and supplement the existing international treaties on copyright and related rights, namely, the Berne Convention and the Rome Convention. They respond to the challenges posed by the digital technologies and, in particular, the dissemination of protected material over the global networks that make up the Internet.  The contents of the Internet Treaties can be divided into three parts: (1) incorporation of certain provisions of the Trade Related Intellectual Property Rights Agreement (TRIPS) not previously included explicitly in WIPO treaties (e.g., protection of computer programs and original databases as literary works under copyright law); (2) updates not specific to digital technologies (e.g., the generalized right of communication to the public); and (3) provisions that specifically address the impact of digital technologies." [2]

Treaties

Berne Convention

The Berne Convention [3] was first accepted in 1986. It was an international agreement that sought to govern copyrights. Its basic purpose was to make the signatories recognize the copyrights of the works of authors of other signatory countries at the same level as copyrights in their own countries. The Three Step Test is a test contained in different forms in a few international treaties on copyright law. It provides a limit on the exceptions and limitations that a treaty member can provide under its domestic law. However, the Three Step Test was first laid down in Article 9 of the Berne Convention and it states:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

There are two divergent views on the limitations to copyright. Civil law sees copyright as a natural law right, meaning that an author already has the right to his work, and the law merely recognises it. Hence, civil law limitations to rights tend to be narrow. Common law adopts a utilitarian approach and advocates use of common law principles to spur creation of socially valuable works. In pursuance of such socially beneficial measures, Common law limitations are open ended.

When the Three Step Test was first conceived, it was to reconcile these divergent views of copyright limitations. So, at its core was the aim to allow national legislations sufficient latitude with regard to limitations. The effects of this treaty are enormous in that it affects the accessibility of almost every book or movie online for the average internet user.

The Standing Committee on Copyright and Related Rights (SCCR) was set up in 1998-1999 in order to examine issues of substantive law or harmonization in the field of copyright and rights related to copyright. The committee is comprised of all the member states of WIPO. However, intergovernmental and non-governmental organizations only have observer status.[4]

WIPO Performances and Phonograms Treaty (WPPT), 1996

The WPPT [5] benefits primarily two different kinds of people:

1. Performers (actors, singers, musicians, etc.), and
2. Producers of phonograms (the persons or legal entities who or which take the initiative and have the responsibility for the fixation of the sounds).

The purpose of the Treaty was to protect the rights of performers and producers of phonograms in the most effective and uniform manner possible without making void contractual obligations that pre-date the treaty. The Treaty grants performers four different kinds of economic rights in their performances fixed in phonograms:

1. The right of reproduction,
2. The right of distribution,
3. The right of rental, and
4. The right of making available.

The term of protection has been agreed for at least 50 years. The Treaty also constituted an Assembly that has the power to decide whether intergovernmental organizations can become party to the treaty.

WIPO Copyright Treaty

The WCT was adopted in 1996 by 89 countries.[6] After many advances were made in information technology since the formation of previous copyright treaties, this treaty attempted to add protections for copyrights. Mainly it ensures that computer programs were protected as literary works (Article 4) and also that the arrangement and selection of material in databases is protected (Article 5). It bolsters the protection further by providing authors with control over the rental and distribution of their work according to Article 6 to 8 which wasn’t directly prevalent in the Berne Convention. Many theorists feel that it is far too broad and offers too much protection to the copyright holder. For example, the circumvention of technical protection measures in pursuit of legal and fair use rights can be prevented because it is prohibited in this treaty. It also applies a uniform standard to all the signatory countries even though they are all at different stages of economic development and knowledge industry.

Protection of Broadcasts and Broadcasting Organizations Treaty

In 2006, the WIPO Standing Committee on Copyright and Related Rights (SCCR) made a basic proposal to develop protection rights for all broadcasting organizations. This treaty would allow broadcasting organizations like media broadcasters to protect the content of their transmissions. They basically will have the right to protect their transmissions from reproduction, retransmission and even from public communication and will retain the copyright protection for 50 years. The problem with this treaty is that it adds a layer protection to the copyright that already exists on the material that is being broadcasted. This would allow broadcasters to restrict access to works that are currently available in the creative commons just because they happened to transmit it. This means that the citizens were unable to access works that they could previously access. The easier and fair way of solving the problem that broadcasters face, which the piracy of broadcast signals would have been to criminalize the piracy at an international level, many NGO’s are currently arguing.

Treaty Proposal on Copyright Limitations and Exceptions for Libraries and Archives

The International Federation of Library Association (IFLA) is currently working closely with the member states of WIPO in order to draft a binding international instrument for copyright limitations and exceptions. These exceptions and limitations are necessary for the libraries to preserve their collection, lend materials and facilitate/ support education and research. This treaty proposal is mainly being drafted by NGO’s and civil society actors in partnership with librarians and intellectual property experts. IFLA has collaborated with the International Council on Archives (ICA), Electronic Information for Libraries (EIFL) and Corporación Innovarte to produce the Treaty Proposal on Copyright Limitations and Exceptions for Libraries and Archives.[7]

Some of the things that the treaty proposes are:

• Parallel importation (i.e. buying books from abroad)
• Cross-border uses of works and materials reproduced under a limitation and exception
• Library lending
• Library document supply
• Preservation of library and archival materials
• Use of works and other material under related rights for the benefit of persons with disabilities
• Use of works for education, research and private study
• Use of works for personal and private purposes
• Access to retracted and withdrawn works
• Orphan works[8]

Education

There is another treaty being discussed currently on copyright exceptions for education and research. The main issue is deciding the order in which these treaties will be negotiated and which matter is most pressing or urgent to address presently. Developing countries are in favour of both exceptions for libraries and archives as well as for education while developed countries are of the mind that exceptions for these things already exist in the current framework of international treaties and conventions. The US is expressly opposed to more discussions on more copyright exceptions and wants to move forward on the broadcast treaty discussions.[9]

Electronic Frontier Foundation, Knowledge Ecology International, Public Knowledge along with other civil society groups formed a joint statement for the copyright exceptions for education in the digital age:

"(...) Education should be accessible for all without barriers of space, time, or cost. Digital technologies, from the portable computer to mobile phones to tablets, are being introduced as crucial educational tools in countries ranging from South Korea to Nigeria, from Brazil to the USA. Educational materials and, therefore, its market, is increasingly becoming digital and policymakers must consider this trend when drafting copyright exceptions and limitations in a way that is appropriate for future generations and the digital age.

The increasing adoption of Information and Communication Technologies (ICTs) in the classroom and in libraries and archives has proven that teachers, learners, researchers, librarians and archivists need rights to access, use, remix, text-mine, exchange, and collaborate on educational materials. Similar rights must be ensured beyond the classroom and library or archive, taking into account the growing importance of e-learning, online communication, and the increasing practice of exchanging educational and other information content across geographical and institutional borders.

The international copyright system has recognized the need for exceptions and limitations from its earliest days. Without these, the copyright system would not be able to achieve its fundamental purpose of encouraging creation and innovation for the benefit of all humankind. (...)"[10]

WIPO Case Study

In June 2013, 186 member states of the WIPO adopted a landmark treaty known as the Treaty for the Visually Impaired (Formally known as: “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.”) [11] The purpose of the treaty was to increase the access to books for blind, visually impaired and print disabled people across the globe.

Aspects of the Treaty:

• It required an exception in domestic copyright law for people with print disabilities and the visually impaired.
• It allowed for the import and export of accessible versions of books without the permission of the copyright holder.
• However, only “authorised entities” such as blind people’s organizations can avail this provision under the treaty’s terms.
• Article 2 of the Treaty states that accessible books changing hands under its provisions should be solely for the use of “beneficiary persons”. It also states that “authorised entities” take “due care” when handling these books, and that they discourage the reproduction and distribution of copies that are unauthorized.

This treaty has the potential to change the way in which access to information is experienced by the visually impaired. This shows that civil society actors can take an active part in the drafting of important legislation as such a landmark treaty was originally proposed by the World Blind Union and Knowledge Ecology International after a meeting that was convened in 2008.[12] There was input sought from NGO’s throughout the process as well.

After the adoption of the treaty, however, the function of NGOs just increases. There are many steps required in order to ensure the effective implementation of the provisions of the treaty on the ground. Saksham Trust is one such NGO that works towards empowering marginalized sections of society by working on things like this. The following is an interview with Dipendra Manocha of Saksham Trust.

What kind of work in accessibility does your organization do?
Daisy Forum of India is a network of organisations that produce and distribute books in accessible formats to persons with print disabilities. These organisations produce digital e-text and digital talking books. The organisation works in the area of policy, capacity building, awareness, technology and mainstreaming accessibility in the area of books for persons with print disabilities.

What are the main impediments to ensuring accessibility on the ground?

• Our policies and laws do not make it mandatory to use standards for digital content. Standards such as Unicode, accessible digital formats, etc., are not followed in production of digital content. Due to this we are forced to re-publish everything that gets published in India.
• Books that are available as accessible content in other countries cannot be brought in India. We also cannot send books in accessible formats to other countries with common languages.
• Enough resources are not allocated to produce accessible books for persons with print disabilities.
• There are several technology gaps such as non-availability of text-to-speech (TTS) or OCR in Indian languages due to which production and reading options of accessible books is very expensive. The only option of reading in many languages is hard copy Braille or human voice recorded talking books. Both these are much more expensive than reading of digital e-text with the help of TTS technology.
• Organisations and individuals in large parts of the country are not aware of the latest developments and methods of getting accessible content from common catalogue or online libraries, etc.
• Reading technology has not reached the end users of the country in a large scale.
• Main stream publishing industry is producing digital books but these are produced in a way that they are not usable by persons with print disabilities.

How important do you think treaties are?
These are extremely important as it takes best practice model of accessible books all over the world. Various stakeholders came together thinking and working together to find the best possible solution that takes care of the interests of all stakeholders.

Not even 2% of the blind individuals worldwide have sufficient access now. Countries like Namibia don’t even have a basic infrastructure to implement what the Treaty for the Visually Impaired offers. Therefore, in these places, what are the subsequent steps that an organization like yours has to do after the treaty enables?

• Allocate resources to establish infrastructure for distribution providing sufficient protection to content to enable developing countries to participate in international exchange programme.
• Develop mechanisms for international exchange of content.
• Address technology gaps so that local language content can be produced and read by persons with print disabilities.

The developed world will act according to its commercial interests. Most of the knowledge is produced in the developed countries and most of the disabled are in developing countries. What are ways to make this equation seem more lucrative?

• South-south cooperation
• Even relatively smaller subscriptions and remunerations for already developed content will be additional resource of funds even for companies or organisations of developed countries if they begin distribution of their content in developing countries.

Technological Protection Measures and Rights Management Information (TPMs/RMI)

In order to ensure that unauthorized copying of a protected material can be prevented or detected, the WIPO Copyright Treaty (WCT) included new provisions dealing with TPMs and RMI.

TPMs are technological safeguards which are put in place which prevents the copying of a protected work in digital format to be copied multiple times. This includes limiting the number of devices on which a song can be copied, using software which does not allow the consumer to copy the protected works from an optical disc.

RMI are generally put on the protected work to ensure that the label of the owner of the work is always embedded in the work. For example, in case of a movie, the film studio may use an RMI which would be positioned as the logo in the movie. It can be also stored as metadata along the video or the protected work.

Article 11 of the WCT and Article 18 of the Wipo Performances and Phonograms Treaty, 1996, (WPPT) states that the states must provide legal protection for TPMs and RMI apart from making provisions for legal remedy in case of circumvention of the technological protection measures. It is interesting to note that India is not a signatory to both the treaties that is WPPT and WCT. This could be because of the strict copyright provisions in the treaties which undermine many goals of accessibility currently being pursued by India.

[1]. Article 3 – Objectives of the Organization, Convention Establishing the World Intellectual Property Organization available at http://www.wipo.int/treaties/en/convention/trtdocs_wo029.html

[2]. www.wipo.int/copyright/en/ecommerce/ip_survey/chap3.html#3a

[3]. See more at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

[4]. See more at http://www.wipo.int/policy/en/sccr/

[5]. See more at http://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html

[6]. See more at http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html

[7]. See more at http://www.ifla.org/files/assets/hq/topics/exceptions-limitations/documents/TLIB_v4.3_050712.pdf

[8]. See more at http://www.ifla.org/node/5856

[9]. See more at https://www.eff.org/deeplinks/2012/07/wipo-possible-international-treaty-copyright-exceptions-limitations

[10]. See full document at https://www.eff.org/file/35218#page/1/mode/1up

[11]. See more at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=245323

[12]. See more at http://keionline.org/content/view/210/1