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DE RUEHGV #0977/01 3231459
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R 181459Z NOV 08 ZDK
FM USMISSION GENEVA
TO RUEHC/SECSTATE WASHDC 7479
INFO RUCPDOC/USDOC WASHDC
RUEHBS/USEU BRUSSELS
RUCNMEM/EU MEMBER STATES COLLECTIVE

UNCLAS SECTION 01 OF 03 GENEVA 000977 
 
SIPDIS 
 
STATE PASS PTO-Paul Salmon 
DEPT PASS TO USDOC-HILLEARY SMITH 
DEPT FOR IO; EB 
 
E.O. 12958: N/A 
TAGS: ECON KIPR
SUBJECT:  The Seventeenth Session of the WIPO Standing Committee on 
Copyright and Related Rights (SCCR), November 3-7, 2008 
 
¶1. SUMMARY:  The 17th meeting of the SCCR focused on establishing a 
future work plan for the committee.  The SCCR agreed to continue 
discussion on limitations and exceptions to copyright, including the 
question of format accessibility to copyright protected content by 
visually impaired persons.  The SCCR also agreed to continue 
discussing a treaty on the protection of broadcasted signals, and 
the protection of audiovisual performances.  END SUMMARY. 
 
¶2. The seventeenth session of WIPO's Standing Committee on 
Copyrights and Related Rights (SCCR) was held November 3-7, 2008 in 
Geneva, Switzerland.  The meeting was chaired by Jukka Liedes 
(Finland).  Several non-governmental organizations from industry 
groups and civil society attended and delivered interventions at the 
meeting. 
 
¶3.  The United States delegation was represented by Michael Shapiro 
and Jacqueline Morales of the United States Patent and Trademark 
Office (USPTO), David Carson of the U.S. Copyright Office, and 
Deborah Lashley-Johnson, IP Attache at the U.S. Mission to the UN. 
 
-------------------------- 
LIMITATIONS AND EXCEPTIONS 
-------------------------- 
¶4.  In March 2008, a Joint Proposal led by Chile, and supported by 
Brazil, Nicaragua, and Uruguay, recommended that the SCCR focus on 
national experiences concerning limitations and exceptions and 
develop a treaty, with the objective of achieving minimum mandatory 
limitations and exceptions to copyright protection for each Member 
State to adopt in national law.  The Joint Proposal also highlighted 
using limitations and exceptions to improve the accessibility of 
copyrighted content for visually impaired persons.  The need for 
visually disabled people to have access to copyright protected works 
in a readable format (e.g. Braille, large print and audiobooks) may 
involve copying and transforming a given work into a large-text or 
other format.  National law in many countries allow such copying and 
transformation without the rights-owners' permissions, in other 
countries, however, such acts could infringe copyright if undertaken 
without authorization. 
 
¶5.  At the 16th Session of the SCCR, the U.S., supported by 
Australia, Japan, the EC, Switzerland and Norway, advocated that the 
SCCR's work on limitations and exceptions should be limited at this 
time to exchanging information on national models and practices.  In 
furtherance of the SCCR's analysis on national experiences, the 17th 
session began with informal presentations commissioned by the SCCR 
on limitations and exceptions.  These presentations were on: 
Limitations and Exceptions of Copyright and Related Rights in the 
Digital Environment; Automated Rights Management Systems and 
Copyright Limitations and Exceptions; Copyright Limitations and 
Exceptions for the Visually Impaired; and Copyright Limitations and 
Exceptions for Libraries and Archives.  The Member States, including 
the U.S., found the presentations helpful in identifying the 
diversity of copyright limitations and exceptions in national law. 
The presentations pointed out:  the diversity and complexity of 
national experiences on limitations and exceptions; the Berne 
Convention framework for copyright limitations and exceptions, which 
has been incorporated in subsequent IP treaties, such as the WTO 
Agreement on Trade-Related Aspects of Intellectual Property Rights 
and the WIPO Internet Treaties (Copyright and Performances and 
Performers), do exist; and there are many tools, including 
technological and improved licensing options, to address  access to 
content issues, including those for the visually impaired.  However, 
several delegations from Africa and Latin America indicated support 
for norm setting activities to address concerns raised in a 
nongovernmental proposal by the World Blind Union (WBU) that seeks a 
treaty to allow the export of copyrighted material under limitation 
and exceptions rules.  The WBU argues that national copyright laws 
that specify exceptions to copyright for the visually impaired are 
only applicable to that country's market and that a new agreement 
allowing for the export of these materials are needed.   While the 
WBU's proposal was referred to throughout the meeting by delegations 
and other NGOs, no delegation tabled the text directly as their own 
proposal, and it does not have the status as a WIPO proposal. 
Nonetheless, several delegations have expressed interest in further 
analyzing the paper in the SCCR. 
 
¶6.  Aside from the process concerns associated with the WBU paper, a 
substantive key concern is the possible leakage of works transmitted 
for nonprofit purposes to developing countries, which could end up 
in commercial markets.   Moreover, the U.S. maintains that 
collaboration among the stakeholders to address access issues would 
be a better and immediate approach rather than a new normative 
approach, and at the very least would be a prerequisite before 
taking any further action.  In the end, the SCCR agreed to the 
possible establishment of a stakeholders' platform that will focus 
on contractual and other arrangements, while the SCCR also 
 
GENEVA 00000977  002 OF 003 
 
 
acknowledged some Members' request for further discussion on the WBU 
paper.   The U.S. was also successful in narrowing the focus to 
"reading-disabled" persons rather than all disabled. The chair urged 
acceptance of the notion, noting that opening the talks to all 
disabled would considerably slow down the process, and he saw 
potential for a "quick start" for visually impaired persons. 
 
¶7.  It was also agreed that the secretariat will prepare a draft 
questionnaire for governments to clarify their limitations and 
exceptions including for educational, library and archive purposes 
as well as for disabled persons, and to obtain information about 
digital technology related to copyright. 
 
------------------------ 
AUDIOVISUAL PERFORMANCES 
------------------------ 
¶8.  Delegates also discussed the status of negotiations on the 
protection of audiovisual performances.  A diplomatic conference 
convened in 2000 which sought to update the rights of audiovisual 
performers at the international level concluded with no agreement. 
Differences still remain on the key issue of the transfer of 
exclusive rights from performers to producers.  The United States 
(supported by India) favors an approach under which one national law 
(preferably the law of the country of production) would govern the 
transfer of rights from performer to producer.  Such an approach 
could provide international validation for the U.S. 
"work-made-for-hire" doctrine (under which all creative inputs to a 
film can be efficiently transferred to the producer).  By contrast, 
the EC countries firmly oppose the U.S. approach to the transfer of 
rights and, therefore, have taken the position that the rights 
transfer provision should be excluded from the proposed WIPO AV 
treaty.  Moreover, incorporation of such a provision in the treaty, 
combined with the national treatment principle, could undermine 
arguments used by EC countries to refuse to repatriate royalties to 
U.S. performers and producers collected under European audiovisual 
levies. 
 
¶9.  Member states attending last week's SCCR expressed their 
commitment to develop the international protection of performers in 
their audiovisual performances.  Many delegations underlined the 
importance of information exchange as a means of building consensus 
on this issue.  The SCCR supported the continued organization of 
regional and national seminars as a means of facilitating 
information exchange and promoting national systems of protection in 
this area. 
 
-------------------------- 
BROADCASTING ORGANIZATIONS 
-------------------------- 
¶10.  The SCCR decided to continue discussions on the protection of 
broadcasting organizations with a view to concluding an 
international instrument, despite failure to agree on a draft treaty 
text in 2007.  In particular, the EC countries, Japan, and Mexico 
favored an approach that would grant broadcasters a broad range of 
new exclusive rights, while the final U.S. position called for a 
narrower treaty focused exclusively on preventing signal piracy (an 
approach generally shared by Brazil, Egypt, and India, although the 
positions of those countries and the U.S. diverge in several 
important respects relating to other issues).  There were also wide 
differences among the delegations on the kinds of broadcasts and 
broadcasting organizations that should be protected under the 
treaty. 
 
¶11. The United States favored a modern regime that would go beyond 
protection for traditional broadcasting, cablecasting and 
satellitecasting entities to include "netcasters" (entities that 
conduct broadcast-like activities over a computer network such as 
webcasters).  However, the U.S. proposal failed to attract support. 
The committee had previously agreed to set aside talks on protection 
for webcasters while it tried to move to a diplomatic conference on 
a treaty to protect against piracy of signals of broadcasters and 
cablecasters.  The understanding was that the committee would return 
to webcasting and simulcasting later.   After extensive 
deliberations at two special sessions of the SCCR in 2007, that 
consensus proved illusive.  In particular, from the viewpoint of the 
U.S., failure of the SCCR to reach such a consensus dissolved the 
"two-track" approach, leaving only the single track of continuing 
discussions.  The United States observed that although it had 
agreed, in 2006, to take the webcasting issue off the table 
temporarily in the hope that it would assist in reaching sufficient 
consensus to proceed to a diplomatic conference in 2007, the failure 
to reach such consensus meant that the agreement to defer discussion 
of webcasting has expired. 
 
¶12.  Member States restated their established positions during the 
meeting, agreeing only that further work is required to achieve 
 
GENEVA 00000977  003 OF 003 
 
 
agreement on the objectives, specific scope and object of protection 
of such an instrument, before convening a diplomatic conference to 
conclude a treaty.  All delegations said that this process should 
proceed according to the WIPO General Assembly's decision in 2007, 
which had stated that the approach to protection must be 
signal-based, and that a diplomatic conference could be convened 
only after agreement on objectives, specific scope and objective of 
protection had been achieved.  The SCCR agreed to continue its 
analysis of the matter and requested that an information meeting be 
organized during the SCCR's next session in May 2009.  This 
information session would focus on the current conditions within the 
broadcasting environment. 
 
¶13. The next meeting of the SCCR will be held from May 25-29, 2009. 
 
 
¶14. Further information--All of the documents prepared for the 17th 
Session of the SCCR are available on the website of WIPO at 
www.wipo.int. 
 
TICHENOR#