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Cablegate: The Seventeenth Session of the Wipo Standing Committee On

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FM USMISSION GENEVA
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UNCLAS SECTION 01 OF 03 GENEVA 000977

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STATE PASS PTO-Paul Salmon
DEPT PASS TO USDOC-HILLEARY SMITH
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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.

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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#

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