At the 43rd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), which took place in March, we witnessed a major shift in the EU’s position on international lawmaking in the area of exceptions and limitations to copyright (L&Es). The discussions also brought to light the rationale of the demandeurs of a Broadcast Treaty, deepening the civil society’s concerns about the impact of a new copyright-like right on the public domain and public interest activities.

Exceptions and limitations: a departure from the EU’s stance on text-based negotiations

The last time the most important forum at the global level for copyright rulemaking engaged in text-based negotiations on L&Es was a decade ago, in the lead-up to the adoption in 2013 of the Marrakesh Treaty. After the treaty was adopted, many developed countries claimed that the international instrument for persons with print disabilities was meant to be an exception, and opposed the drafting of any other instrument on copyright exceptions, be it binding or non-binding (such as a joint recommendation or a model law).

This stance was repeated ad nauseam over the years, particularly by the EU. So much so that not even the COVID-19 pandemic, which demonstrated clearly how important it is for schools and cultural heritage institutions to be able to operate remotely and across borders, seemed to remove them from those crystallised positions. 

This status quo remained until the last SCCR, when developed countries finally showed a change of heart. While still opposing the drafting of a legally binding instrument, the EU stated that it was willing to discuss non-binding instruments:

In this context, as consistently expressed in the past, we would like to remind, however, that the EU and its member states cannot support work towards legally binding instruments at the international level or any preparations in this regard. However, we stand ready to continue to engage constructively under this Agenda Item to reflect further on the other possible non-binding instruments and ways how WIPO can best help to provide guidance to WIPO member states to address the problems faced by institutions and people with disabilities including through the introduction of meaningful exceptions and limitations in their respective national laws. (…)

However, as the week proceeded, it became apparent that France wanted to soften the EU statement delivered by the Commission. The only EU country to ask for the floor, France made the following intervention, repeating what had been the EU’s position until that point:

In this regard, France has reservations regarding the fact that the conversation on L&Es could touch upon normative instruments. The continuation of discussions in L&Es should be founded on the exchange of best practices at the national level (…).

Frustrated with these continued attempts to divert the conversation away from concrete language to address the problems and solutions faced by educators, researchers, and cultural heritage institutions, in our statement we threatened not to return to the Committee:

We come here, year after year, to defend the rights of teachers and researchers. We support your discussions. We bring evidence. We talk to you, the person that was here before you and the person that will come after you. It’s a massive effort. Yet, every year, we leave this room empty handed, with no binding instruments, no soft laws, nothing that could make a difference. Do know that we question if we should come back.

We further shared the story of Jonas, a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, who we interviewed for our publication “Nobody puts research in a cage”. We explained his struggles with accessing the data sources he uses in his research remotely and sharing his research results with colleagues for purposes of verification and validation of his research. And we read his words out loud, hoping they could make a difference in the discussions:

Perhaps they did. At the end of the last day of SCCR/43, the Committee finally agreed to approve the revised African Group proposal for a work program on L&Es, which includes drafting work towards “objectives and principles and options for implementation at national level”. The Chair was tasked with advancing information sharing and consensus building on L&Es between SCCR meetings and given the option to create working groups of member states supported by experts to produce outcomes for consideration by the Committee.

Broadcast Treaty: increasingly difficult to grasp!

The discussions on the protection of broadcasting organisations against unauthorised retransmission and related uses were centred around the Chair’s Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty, which continues to raise substantial issues of concern. 

While there seems to be a common understanding that any potential treaty should be narrowly focused on signal piracy and not extend to post-fixation activities, there are still many important issues to be agreed upon, including fixation rights, a perpetual term of protection, and limitations and exceptions.

The revised draft text contains important changes to the L&Es provision. Yet, none of the exceptions are mandatory, not even those that are already mandatory for copyrighted works (such as quotation, news of the day, and providing access for the visually impaired). Furthermore, unlike the Regional Comprehensive Economic Partnership Agreement and the Trans-Pacific Partnership Agreement, the text does not even mandate the contracting parties to achieve a fair balance between the rights and interests of authors and rightsholders, and those of  users. 

Equally concerning is the idea to give contracting parties the option to protect signals by means of a fixation right. This would grant broadcasters a new lawyer of exclusive rights over the programme-carrying signal on top of the rights they already have on the signal content, effectively extending the scope of protection beyond the mere signal. This is particularly concerning when the signal content is already in the public domain, as it would allow broadcasters to re-appropriate public domain broadcasts. Broadcasters are sitting on huge collections of public domain content and are the only ones that have complete, high-quality copies of those materials. Prohibiting the fixation of signal would mean preventing access to, and re-use of, the public domain material itself. 

When questioned why public domain materials were not being excluded from this new layer of rights, the facilitators made it clear that this was intentional. They claimed that broadcasters needed to be incentivised to promote public domain works to the public. We found this reasoning nonsensical and asked why corporations would need copyright-like incentives to use materials that are free for anyone to use and for which they would not need to pay any copyright licence fees. However, none of the facilitators were able to provide a response.

The next SCCR will take place in Geneva on November 6-8. This time, the Committee will meet for three days instead of five, and attendees will be asked to forego making oral opening statements and general declarations, in order to allow the Committee to focus on substantive discussions. Certainly something to look forward to!

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We made the following statement regarding the protection of broadcasting organisations (Agenda Item 5):

COMMUNIA works to defend the public domain and in our opinion the proposed broadcast treaty is a threat to the public domain and usage rights.

The current version of the draft treaty allows countries to protect broadcasters with exclusive rights without sufficient balance or consideration for the societal needs related with access to knowledge and information.

Broadcast signals carry content that plays an essential informational, cultural and educational role in our society. It is therefore crucial to ensure that the rights-based model currently under discussion does not create an additional obstacle to education, research and the activities of cultural heritage institutions.

Let us give you an example. We recently interviewed EU researchers to better understand the needs and challenges faced by them. A Swedish researcher told us that they use broadcasts as sources of scientific research. They research public discourse and they analyse mainly radio broadcasts and daily newspapers. With the current legal framework they already face considerable copyright-related obstacles. In their words “We really get into copyright issues and there it has been very messy.”

So why make things harder for them? This treaty needs to get rid of fixation rights. It needs to mandate that the parties achieve a fair balance by means of exceptions, and it needs to have the same mandatory exceptions that we have in Berne and in the Marrakesh Treaty. And this is just a start. We count on you to make it right.

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Today, the Committee is discussing the protection of broadcasting organizations and the following statement was delivered on behalf of COMMUNIA on this agenda item (Agenda Item 6):

Much of the content that broadcasters transmit plays an essential informational, cultural and educational role in our society. Radio and television programs and archives are fundamental to have access to knowledge and information. They are sources of scientific research and are also used as educational materials. We recall that radio and TV-based remote learning have re-emerged in the past years, in response to the pandemic.

Therefore it is essential that educators and researchers have broad and immediate access to broadcast content.

Although the scope of the draft treaty has been reduced, the need for robust limitations and exceptions remains, when legal protection of broadcasters is shaped in the form of exclusive rights.

The problem is that the draft text only says that countries “may” extend the same exceptions that exist for copyright, but, obviously, countries can choose not to do this.

This is more restrictive than the Berne Convention, which has mandatory exceptions for news of the day and quotations, and permissive exceptions for educational and other uses. This may lead to the surprising result that broadcasts are subjected to fewer exceptions than the underlying copyrighted works.

A treaty that creates an additional layer of rights needs to also mandate the corresponding exceptions. Otherwise it ignores the societal and cultural needs related with access and reuse of broadcasts, failing the society as a whole.

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The first day of the event was dedicated to discuss the protection of broadcasting organizations, and several delegations shared their dissatisfaction with the fact that informal discussions on the text of the draft broadcast treaty had taken place without ensuring the participation of a diversity of delegations. The SCCR Chair invited to these meetings only to the so-called “Friends of the Chair”, which include Argentina, Colombia, the European Union, Finland, Germany, Japan, Kenya, Mexico, the Philippines, Republic of Korea, Russian Federation, and the United States of America. Civil society observers joined Indonesia, Pakistan, Iran, South Africa and Chile in their ask for greater transparency and inclusivity.

The following is the statement made on behalf of COMMUNIA on this agenda item (Agenda Item 5):

I’m speaking on behalf of COMMUNIA, an international association that works to protect and defend the public domain. Communia includes among its members Creative Commons, Wikimedia and the Internet Archive.

First of all, we would like to support PIJIP’s call for greater transparency.

We understand that illegal streaming of broadcast signals is a serious issue, but the type of protection that is being discussed by this Committee poses serious obstacles to access to culture, knowledge and information.

We recall that broadcasters in most countries already enjoy solid legal protection against signal piracy and other unauthorized uses. Broadcasters may invoke protection under copyright laws, unfair competition laws and criminal laws.

We also recall that much of the content that broadcasters transmit is of cultural importance. In addition, radio and TV-based remote learning have re-emerged in the past year, in response to the pandemic.

A treaty that creates an additional layer of rights and ignores the societal and cultural needs related with access and reuse of broadcasts fails the society as whole.

No new rights should be mandated without the corresponding exceptions, and no perpetual rights should be given over public domain and freely licensed content.

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The following is the statement made on behalf of Communia on the protection of broadcasting organizations (Agenda Item 5):

We understand that the draft of the Broadcasting Treaty gives broadcasters perpetual rights over public domain and freely licensed content, which is extremely problematic for users. 

Without this extra layer of rights, these works can be used without restriction, and this freedom should be maintained. 

In addition, we are concerned that the current proposal for exceptions only gives countries the option to extend already existing exceptions to broadcasting signals. Obviously, countries can choose not to exercise that option, and if they opt not to, the Treaty will be creating new obstacles to access to culture and information. 

Exceptions are essential to achieve a balance between the interests of the broadcasting organizations and the public interest. The vision that supra-national instruments should only mandate the introduction of new rights, without imposing adequate exceptions, is outdated and turns a blind eye to the fact that copyright can prevent the exercise of fundamental freedoms. 

It is about time for this Committee to align itself with the knowledge produced by its academics and by its courts, which have over and over again referred to the need for a balanced view of copyright.

The Treaty should include a broad provision like the one contained in the Regional Comprehensive Economic Partnership Agreement, which makes it mandatory for each Party to provide an appropriate balance in its copyright system, including by means of exceptions for legitimate purposes. In addition, it should have a minimum set of mandatory exceptions, namely for the uses already required by other copyright treaties.

Thank you.

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The following is the statement made on behalf of COMMUNIA on the agenda item on the protection of broadcasting organizations (Agenda Item 7):

I’m speaking on behalf of COMMUNIA, an association that works to protect and defend the public domain and users’ rights.

We understand that the current proposal of the Broadcasting Treaty gives broadcasters perpetual rights over content that is not subject to copyright and content that is subject to non-exclusive free licenses, such as Creative Commons licenses. We find this extremely problematic for users.

In addition, the proposal for exceptions in the Chair’s text provides narrower exceptions to protect users than exist for copyrighted works. The draft text says countries “may” extend the same exceptions that exist for copyright, but, obviously, countries can choose not to do this.

This adds new international law restrictions on the adoption of limitations and exceptions for parties to the Rome Convention. This is also more restrictive than the Berne Convention, which has mandatory exceptions for news of the day and quotations, and permissive exceptions for educational and other uses.

The exceptions provisions in the Broadcasting Treaty are particularly important, and different from the issues covered in the WIPO Performances and Phonograms Treaty and Beijing Treaty, because they could add a layer of rights clearance upon copyrighted content.

In order to avoid creating new obstacles to access to culture, knowledge and information, mandatory exceptions and limitations should be adopted. In addition, no rights should be placed on works that are in the public domain or that are openly licensed.

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The following is the statement made by Teresa Nobre on our behalf on agenda item 5: Protection of Broadcasting Organizations.

I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.

We understand that illegal streaming of broadcast signals is a serious issue, but as Prof. Bernt Hugenholtz recently reminded us broadcasters in most countries already enjoy solid legal protection against signal piracy and other unauthorized uses. Copyright protection is available to them, since broadcast content will qualify as audiovisual or cinematographic works, and broadcasters may invoke protection for these works under a variety of doctrines (such as “work made for hire” rules, or transfer of rights under film production agreements). In addition, unfair competition and criminal law also offer protection against signal pirates.

We realize that the existing protection may not be perfect, but if a treaty is to be concluded at the present time, extreme caution is needed, because the changes in this industry are occurring so fast that it seems extremely difficult to overcome certain definitional problems around the subject matter of protection and the delimitation of the group of right holders. We share the view that there’s a risk of either having an outdated treaty soon after being adopted or – if the definitions are broader – of having a treaty providing unintended rights to intermediaries other than the traditional broadcasters.

With this in mind, we would also like to recall that much of the content that broadcasters transmit is of cultural importance. In order to avoid creating new obstacles to the access to culture, knowledge and information, mandatory exceptions and limitations, that are not less enabling for users than the exceptions that apply to copyright, should be adopted. In addition, no rights should be given in works that are in the public domain or that are openly licensed.

Thank you.

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The following is the statement made by Teresa Nobre on our behalf on agenda item 5: Protection of Broadcasting Organizations.

I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.

We would like to urge this Committee to consider the interests of all relevant stakeholders, when working on agenda item 5.

The discussions on the protection of broadcasting organization have been revolving mainly around the private interests of such organizations and other beneficiaries of copyright.

We consider that the Committee should also engage in discussions aimed at ensuring the protection of the interests of users, namely the global community of educators, learners, researchers and librarians, and also the general Internet users that create user generated content.

Taking these public interests into account includes developing mandatory exceptions and limitations that protect legitimate practices, such as criticism, parody, uses for the purposes of teaching or scientific research, and uses by libraries and other culture heritage institutions. It also requires making clear that the exceptions for broadcasting rights are not less enabling for users than the exceptions that apply to copyright.

Furthermore, protecting users rights implies that the broadcasters are not given rights in works that are in the public domain, or that are openly licensed.

Finally, any treaty granting post fixation rights should foresee that the term of protection of those rights does not in any case extend beyond the term of copyright, in order to give legal certainty to users and to avoid deepening the already complex issue of accessing and using orphan works.  

We look forward to participating in further debates on these issues.

Thank you.

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