Narrative Report: WIPO Standing Committee on Copyright and Related Rights (SCCR), 26th session

DAY J -1

Tomorrow I will be attending at WIPO the 26th session of the Standing Committee on Copyright and related Matters (SCCR), as a member of the IFLA Delegation. Following the 2012 infoclio.ch conference on Access and Use Rights for Historical Sources on the Web, I've been asked to act as local resource person for the delegation of the International Federation of Libraries Association (IFLA) during the WIPO sessions on copyright in Geneva. And tomorrow is my first time.

According to what I got from my first briefing on Skype with Stuart Hamilton, head of advocacy at IFLA and my contact person within the organization, here is the situation: IFLA leads a long-term lobbying activity inside WIPO to promote an international Treaty on Limitations and Exceptions for Library and Archives. Without going into much details, the scope of the treaty is to guarantee that library and archive get their rights to copy, lend and archive documents - to do their job, basically - recognized worldwide, including within the digital world of information.

Therefore, IFLA is lobbying in favor of copyright exceptions and limitations for archive and libraries, and against a set of practices that prevent materials to be lent or copied, like Technical Protection Measures or contracts based on the principle of licensing.

For the 23d session, our objective is to maintain the topic of copyright exceptions in the Agenda. This year was adopted in Marrakech a treaty granting exemptions to copyright for people visually impaired. This significant achievement created a "progressive atmosphere" on the Standing Committee, an atmosphere that some member States want to build upon, notably South American and African Countries, and that some members States want to cast out as soon as possible, notably Europe, USA, and Switzerland.

The IFLA delegation faces a complex situation. On the one hand a treaty on copyright limitations would decisively benefit dozens of countries, securing rights for their libraries and archive to collect, preserve and spread knowledge. And indeed countries like Brazil, India and Egypt are supporting the project. On the other hand the "Group B" countries - i.e. US, Europe, Canada, Australia and a few others including Switzerland - have for most of them already laws for libraries and archive in their legislation, some of them being more generous in the scope of exceptions to copyright than any international treaty could realistically be.

DAY 1

Contrary to what I had heard, the discussions about the agenda didn't last for so long after all. A new President of the Assembly was elected, from Peru, as well as two new Vice-presidents, one of them from Switzerland. Then they decided to set the agenda: the two first days shall be spent to discuss the idea of a Treaty on broadcasting, the two following days shall be dedicated to copyrights exceptions and limitations for libraries and archive, and the last day to copyright exceptions for education.

In the preliminary discussions on the agenda, what Stuart Hamilton had told me seemed to fulfill. So-called "Group B" countries didn't want a new international instrument because they didn't think that - and I quote from the EU delegation "an international instrument was necessary to address any possible issues related to the activities of libraries, archives, educational and research institutions and persons with other disabilities." So long.

During the pause, I went to the Swiss delegation, represented by two ladies from the Swiss intellectual property office, and asked them what was their position towards copyright limitations for libraries and archives. They answered that they usually aligned their position with the "Group B", and therefore were not particularly interested in an international instrument helping libraries and archive to secure their rights. At the domestic national level, a new report on the updating of copyright legislation had just been released, they told me, that contained revised provisions on copyright exceptions for libraries and archives.

The report in question is AGUR12, and contains a series of recommendations for the Federal Council about copyright reform in Switzerland. I dived into it, in search of exceptions and limitations for libraries and archives. I didn't find much. Ironically, the section about copyright restrictions starts with the example of someone posting on Facebook a photo he doesn't own, and the report states that the traditional right to share materials with your friends and family shouldn't be granted in this case.

Then there is an interesting proposal for a new copyright exception for online catalogs (art. 24d), that would grant libraries archives and museums the right to include low definition pictures, book covers, table of content and sample pages, and other excerpts of multimedia materials to their catalogs.

This is helpful, but only for Switzerland ! "Group B" countries who have for most of them an efficient legal framework for their education institutions are at the same time reluctant to widen those guarantees worldwide through international law. Why ? One explanation I heard is that some countries - in particular the United States - are usually reluctant to adopt treaties that would require to revise their national legislation. Another explanation I heard is that countries that have strong creative industries (cinema, publishing, broadcasting, music) tend to defend the economic interests of those groups, even if that happens at the expenses of public knowledge institutions.

DAY 2

The second day seemed like it was already the third or the fourth one. Some proposals by member States about broadcasting were discussed by the Assembly. Ultimately, the question was whether or not to include web-casting in the scope of the treaty. Member States had different opinions on the subject, ranging from a proposal to extend copyright to all forms of webcasting to another one indulging copyright only to webcasts produced by traditional broadcasters.

Anyway, those were only the first steps of a legislative process that will last for years before giving concrete results if any at all. This project treaty on broadcasting isn't much interesting for itself, and delays the discussions about exceptions and limitations for libraries and archives. Furthermore, it stands in contradiction with the idea of copyright itself, because the object of copyright would be the broadcasting signal in itself, not the works it contains. What's interesting, is that this treaty gives a pretty clear idea of the everyday business of the World Intellectual Property Organization.

This afternoon I had to meet friend who appears to work at WIPO, one among 1500 or more people. While I was waiting for him in the hall of the new building, I stumbled upon a reception that was taking place there. The center of the crowd seemed to gravitate around five piles of colored tea mugs placed against the glass wall of the elevator. They were giving them away. Some people were rushing toward them, and others coming out from the crowd holding countless mugs like huge rings on their fingers. When I reached the piles all mugs were already gone except a couple of black ones. I took one and read on it "WIPO. Making IP work."

At that point came my friend, dressed very casually compared to the other attendees. We went together to the new cafeteria and chose a table to sit down. He made a comment about some beautiful women who were so carrier-oriented that they wouldn't even let you try to seduce them. Then he told me he worked in the engine room of WIPO, where the majority of the employees were kept busy. The core business of WIPO, he explained to me, was to release international patents, that much facilitated to their beneficiaries the recognition of their IP rights internationally. And his job was to revise patent applications from Germany, mostly in technology.

So that's the business of WIPO, I thought. Securing property rights for inventions and creations internationally, so that their owner can generate cross-border income out of them. In this sense protecting a broadcasting signal against a possible piracy made perfect sense. It was in line with the engine room of the organization. What made apparently much less sense was to give away some precious rights in favor of libraries and archive. "In this place we are supplicants", whispered in my ears Margaret Ann Wilkinson, a senior expert from the IFLA delegation, with a compassionate look in her eyes.

DAY 3

The day began with a satisfaction. The discussions about copyright exceptions were beginning at last, and a dozen of NGO went to deliver their statements. In the lapse of an hour one could get a glimpse at the variety of interested parties to this debate. Several were library and archive associations, both at the national and international level. Associations in defence of a fair digital knowledge ecosystem were also present. Aside of them stood the International Publishers Association, the STM Association and a few other representatives of the copyright beneficiaries. The President of the assembly had arranged the speech order in such a way that pro and anti copyright speakers spoke alternately. At some point the representative of the powerful Motion Picture Association theatrically concluded his speech reciting "Peace, love, and copyright".

The last statement in line was awarded to Winston Tabb speaking on behalf of IFLA, which was per se a sign of recognition to IFLA's important contribution to the subject being discussed. Many were the arguments delivered by both parties. Most interesting to me was the point made by Amalia Toledo, a young lawyer from the Karisma Fundacion in Columbia to reject EU claim that the actual international legal framework was already good enough. Copyright provisions were more and more included in trade agreements - she explained, as in the Trans-Pacific Partnership Agreement, for instance, and those provisions were limiting the legal possibilities of many countries in matter of copyright exceptions.

Later on I went to compliment her for her speech and we had a chance to start a conversation. She confessed me that in her talk she cautiously avoided to speak about copyright exceptions and limitations, and she used instead the word guarantees, because to her view it was copyright in itself that was an exception to the human rights. This human right approach to copyright turned somehow the terms of the debate upside down - I thought to myself - and seemed very promising indeed.

Other NGOs who made statements in favor of libraries and archives: Center for Internet and Society; Knowledge Ecology International; Canadian Library Association; International Council of Archives; Knowledge without boundaries; Society of American Archivists.

DAY 4-5

Many commentators would say that the debates weren't very conclusive this week, and I wouldn't blame them. As a newcomer to the field, I learned a lot. I found interesting that the few times the discussion took off on a subject, it was always related to diffusion on the internet. The central point of the discussion about broadcasting was whether or not to include webcasting in the scope of the treaty. And in relation to libraries the only in-depth debate took place on the topic of libraries lending digital files.

It' pretty clear to everyone that the internet is changing a whole lot in the way we access and share content and information, but it's interesting to see how it transforms national and international regimes of Intellectual Property. Member States, especially in the Western world, are revising nowadays their IP and copyright laws to make them cope with the reality of information exchange in the digital networks. And in the process takes place a very real struggle between contrasting interests. On the one side copyright holders are pushing all they can for the extension of copyright to digital content. On the other side the civil society defends the right for to freely access and share information.

I can hardly believe this is still going on. It's 11.30 pm, and the NCCR assembly is still deliberating over the conclusions of its 26th session. I heard that sometimes it can go on over midnight. I left at the point where they were discussing the agenda for next year. The broadcasting treaty project and the copyright exemptions for libraries and archive are in competition, with Europe and America pushing for more broadcasting, as Africa and South America preferring the library and archive discussion. They settled up in the end for a 2.5 vs 2 days agenda in favour of broadcasting, plus 0.5 day for conclusions. Tight. As always.

There is a very strong contrast between the very busy figures of the delegates, and the extreme slowness of the legislative work going on, one that will need years to produce concrete results, if any at all. But this is probably a necessary condition for these international organizations to function. I approached earlier today the Italian delegate when he was about to leave the building. I presented myself as he was putting on his coat, and asked him why he had endorsed such a conservative point of view about the renting of digital files by libraries. He answered me that although he had been sent by the Italian foreign ministry he was in reality a judge of the constitutional court, he had to hurry back to Rome, and eventually it was the idea of a binding treaty for libraries and archive he was opposing, not the renting of digital files in itself, on which he had no clue.

People gather two times a year in Geneva for five days to try to find concrete solutions for the global copyright governance. If something happens, it has to be during this lapse of time. After that the representatives of the member States will return to their national context and will hardly have much time to think about it. Welcome in multilateral diplomacy.