WIPO’s SCCR 30 in review: Rights without Ownership, and Diplomatic Blockades

The 30^th session of the Standing Committee on Copyright and Related Rights of the WIPO took place in Geneva, from June 29^th to July 3^rd. The multi-stakeholder event had a very widespread and fascinating agenda, including discussions on the Broadcasting Treaty, Limitations and Exceptions (‘L&E’) for libraries and archives, and L&E for educational and research institutions and for persons with other disabilities. This post notes and comments on the same.

Broadcasting Treaty: Biased Panels and Rights without Ownership

One of the biggest issues on the agenda was the negotiations regarding the ‘zombie’ Broadcasting Treaty, which has been in progress on-and-off for sixteen years now. The ‘Broadcasters’ here were arguing that that they needed to be given ‘special IPR rights’ with regard to content that they ‘broadcast’, in order to protect their revenue streams. The session was supposed to be a discussion on the technical ‘non-paper’ on broadcasting organisation, but the document itself was not really discussed.

The contentions of the broadcasters included widening or whittling down of definitions of ‘TV channels’, making broadly stated ‘anti-piracy’ provisions part of the Broadcasting treaty,. And not only that – the definitions of the very terms ‘broadcaster’ and ‘broadcast’ under the Broadcasting Treaty still remain contested, with arguments being made that these ‘extra’ rights be limited to ‘traditional’ broadcasters and cable channel owners! The Chair finally stated that the term ‘broadcasting’ needs to be defined, especially with regards to whether this covers ‘broadcast’ ‘over any technological platform’, an issue which came up in the final stages of the event. This also included an extensive debate on whether web- and simul-casting should be included under the Broadcasting Treaty, something India was against. Daniel Knapp, of IHS Technologies, contrarily, argued that the definition of a ‘TV channel’ should be changed to include new services such as Netflix and Amazon AOL which don’t have a history of television services.

The arguments of the broadcasters seem to have broadly centred around the fact that they were suffering losses due to piracy, including piracy by local cable operators, and competition from OTT service providers, not necessarily in that order. Dropbox, Google Drive, and VPNs were here listed as tools for privacy and file-sharing. Curiously, the locus for these claims is not that the broadcasters actually hold the copyright to their content, but simply that they somehow deserve a protection of their revenue streams, entirely independent of questions of copyright.

At this stage, it becomes important to note, as James Love of KEI does here, that an event dealt mostly with issues of the rights of broadcasters was chaired, at various stages, by John Simpson, currently employed by the BBC, and Anne Leer, a former employee of BBC. Furthermore, WIPO’s entire informational panel of experts consisted entirely of lobbyists for the broadcast industry, and seemed to be heavily favoured towards broadcasters. WIPO had also apparently not given a forum for copyright holders, consumers, and technology companies to present their concerns at the SCCR 30.

Furthermore, as I mentioned above, he also points out that while the broadcasters do ask for special IPR rights, they did not explain why they deserve or need these rights – clearly, it is not sourced from the ownership of actual rights to the content! As a tweet from the Creative Commons profile summarised very aptly, “broadcasters continue to lobby for a treaty that would grant them rights they do not deserve to content they do not own”. The opposition and critique to the Broadcast Treaty is wide and multifaceted. For instance, you can see a Guest Post we carried earlier this year on the Treaty here, CIS’s comments on the technical background paper here, and on the broadening of definitions here, EFF’s comments here, ARSTechnica’s much older comments from 2006 here, and detailed critique from multiple NGOs from 2007 is available here.

Speaking for all Indian broadcasters, Zee Networks argued along lines similar to that of the other broadcasters, stating that cable TV should be treated similar to broadcasting and be able to avail the benefits of its anti-piracy provisions, as it was worried about its content being ‘stolen’. Zee Network and other broadcasters also argued for a ‘post fixation’ protection of signals to be included within the broadcasting treaty, including digital works delivered on demand! This was excluded by 2007 mandate, where the Treaty was limited specifically to the protection of a signals based approach, and post-fixation rights are quite clearly not signals based. It must be noted here, again, that while broadcasters are asking for these rights under the guise of countering ‘piracy’, they are yet to explain how post-fixation rights would help them in this regard.

These demands seem to have received varying amounts of support, most notably from the EU in Group ‘B’, with the USA taking something of a middle path.           While countries from the Asia-Pacific and Latin American and Caribbean Groups kept their usual stand of not supporting a strong broadcast treaty, Iran made a detailed statement critiquing the stands of the broadcasters, and making a strong statement in support of Access to Knowledge. Among the broadcasters, the African Broadcasting Network notably stood apart, calling post-fixation rights a murky area.

India’s Statement

Crucially, it must be noted here that India (find the full statement here) was also against giving broadcasters an extra ‘layer’ of rights where they only have a licence to broadcast, and noted that broadcaster “should not be given rights in other platforms without a contract from the right owner.”  India was also against post-fixation rights being allowed under the proposed treaty, with the stated reason being that the scope of protection covers only signals protection. It made an exception in this regard for rebroadcasting and time-shifting purposes. India has stated that the treaty should be limited to live broadcasting, when the broadcaster has license to content, with the caveat that this should include protection “against unauthorised ‘retransmission of live signal over computer networks’ or ‘retransmission over any other digital or online digital platforms’”. Finally, India also noted the Treaty ‘should’ make exceptions in case of private use, with the usual fair-use exceptions.

Limitations and Exceptions

The next topics up for discussion were Limitations and Exceptions, for a) libraries and archives, and b) for education, teaching, and so on. Up for discussion on the former topic were a multitude of crucial (non-paper) topics, including Preservation, right of reproduction, safeguarding copies, legal deposits, library lending, parallel importations, cross-border uses, orphan works, limitations on liability of library and archives, contracts, the right to translate and voluntary and forced relinquishment of copyright. The discussion here was similarly contested, with varied support and opposition. Developing countries cited Article 7 of the TRIPS agreement to argue for the importance of libraries and the exceptions made for them. This includes India, which actually stated that it was the ‘duty of industrialised countries’ to step forward here.

This discussion seems to have had more by way of substance, if less by way of outcome, with various sides raising some excellent points. India, notably, supported forced relinquishment of copyright in the public interest. The debate seems to have focused substantially on preservation exceptions, with excellent interventions by KEI and IFLA, and minimum standard exceptions on nations. Substantial actions were blocked, though, with the EU being dead-set against any normative work on this issue, even though it was increasingly isolated in its position. (For more details on this issue, you can refer to Kenneth Crews’ much cited and appreciated updated Study on Copyright Limitations and Exceptions for Libraries and Archives.)

Finally, of the full week allocated to SCCR 30, the issue of L&E for Education was accorded a half a day of discussion. This is particularly problematic considering the increasing prices of academic material the world over, and the importance of the copyright exceptions for education in developing countries.

Outcomes, or rather the lack thereof

Finally, the most important recommendation out of SCCR 30 would have been a proposal to ask WIPO General Assembly 2016 to decide if there will be a diplomatic committee for a broadcasting treaty in 2017, depending on the maturity of the text, but this was rejected as no consensus was reached. The second most important outcome of the event would seem to be the fact that any reasonable and useful work on future library and archive work was blocked by the EU. The event also seems to have the potential to lead to detailed discussions on resale rights for graphic and plastic arts, with a strong argument being made for the same by Sam Ricketson at a side event. The same issue was later raised by the Republic of Congo, and supported by Senegal and Sudan, EU, Kenya and multiple other states.

The Chair’s Summary of the week-long event is available here.

My thanks to Nehaa Chaudhari of CIS for her inputs on this post.