WIPO report of last week


Subject: WIPO report of last week
sandy@la-hq.org.uk
Date: ma 16 joulu  1996 - 15:03:06 EET


L..................................................T....................R..

IFLA Report on WIPO Diplomatic Conference (so far)

I arrived on Monday 9th in the afternoon and left on Friday 13th in the
morning. The main discussions on the treaties had only just started.
Most of the business had been taken up with administration and protocol,
so I had not missed anything of importance. I have included my raw notes
so forgive me if it is over long. I felt it would be useful to read
a summary of interventions. I have confined comments to the Copyright
Treaty only.

Monday 9th December

Article 7

The Chairman, Jukka Liedes, opened by saying that acts which are not
relevant in economic terms should be excluded from this new
interpretation of the Right of Reproduction. Many other delegations made
the same point also. If it has no economic value it should be excluded.

Singapore proposed a new wording to the Article and made a case for fair
use. Liedes made it clear that fair use was not under discussion at this
stage.The CEC suggested changing 7(1) by deleting "shall include" and
inserting "includes" instead. This followed the suggestion made in the
EBLIDA position paper.

The CEC declined to give a position on 7(2) saying it needed to be
clearer in scope and added value. This was interesting as they had been
very clear on their position before.

Denmark had "profound doubts" about 7(2) and said that, as the exceptions
would have no economic value or significance, it should be deleted.
Their delegation did not agree with 7(1) saying that it would cause
unnecessary difficulties.

Canada preferred to delete Article 7 altogether as they said it was not
flexible enough for legislators. They said that temporary or transient
copying was already covered by Article 9 of Berne.

The USA supported Article 7(1) as drafted and they said that they would
support clarifications to resolve ambiguities in 7(2). They would not be
supporting the Singapore amendment preferring to work with Liedes' text
as drafted.

Sweden preferred to delete 7(2).

The UK supported the CEC position and pointed out that what was proposed
in Article 7 was already enshrined in the CPDA 1988.

South Africa said that they had no problem with 7(1) but were concerned
about 7(2). They made the point (which was in the IFLA response) that to
leave the exceptions to national legislators would mean that there would
be conflicting international laws. They believed the exceptions should
be mandatory and expressed an interest in the views of the Singapore
delegation.

Australia wanted to know whether 7(1) was intending to clarify or extend
Article 9 of Berne, as there seemed to be differing interpretations by
the various national delegations. Users needed to be reassured about
exceptions and 7(2) did not give them this reassurance. 7(2) should be
mandatory if, as they believed, 71) extended Berne Article 9.

Norway supported 7(1) but said that 7(2) should be deleted and replaced
with a text indicating that temporary and transient copies are not
reproductions in the same way as 7(1).

Nigeria supported South Africa and the Singapore draft text.

India made the point that 7(2) could not be deleted without 7(1).

Many other delegations spoke either indicating support for the draft or
endorsing comments already made by other delegations. Liedes, in his
summing up said that 7(1) had been endorsed by "an overwhelming majority
of delegations" (which was not what was perceived by IFLA). No-one
challenged this either, so it will be minuted thus. On 7(2), he said
there were two options: improve the language to include flexibility on
reproduction which was of no economic value; or make limitations
mandatory. He then added a third option: to delete 7(2) altogether.

Article 10

Most delegations seemed to support this Article and there were,
surprisingly, very few comments. As this was seen as an extremely
important proposal, this appeared strange - almost a conspiracy. It may
be that few delegations realised its implications. The Chair summarised
by saying that there was broad acceptance but that the interpretion of
"the public" should be widely interpreted.

Tuesday 10th December

Many of the Articles from the Neighbouring Rights treaty were discussed
for the major part of the day. As these were of less importance than the
Copyright treaty, the library supporters (IFLA, EBLIDA etc) discussed
tactics.We were joined, and somewhat overwhelmed by, the Digital Futures
Coalition representatives.

Norway had put forward a written proposal to delete Article 7(2) and
suggested some additional wording to Article 7(1). As it was a good
working solution, our team agreed that we should support this proposal.
Adam still believed that there was a good chance that Article 7 could be
deleted altogether. IFLA discussed and put forward an expanded position
on Article 12 which made a strong case for the deletion of 12(2). The
library team believed it to be an excellent paper and it was duplicated
and distributed to all delegations. Many delegations were then targetted
to persuade them to support this proposal.

The important items for IFLA were discussed late in the afternoon and
evening: Article 12 on Limitations and Exceptions, and Articles 13 and
14 on the technological solutions.

Article 12

Liedes introduced this proposal by saying that all Berne limitations
would continue to apply as long as they conformed to Article 9(2) of
Berne. He drew attention to his Note 12.09 about important values in
society.

The USA opened the discussion by proposing that the word "only in 12(1)
should be deleted and that "the nomal exploitation" should be changed to
"a normal exploitation". The delegation then stressed the importance of
fair use continuing into the digital environment. This statement had
been agreed largely because of pressure from the American library
community.

Denmark, although supporting 12(1) said they had doubts about 12(2)
because it lacked clarity. They supported the US proposed changes in
wording to 12(1). They stressed that any new rules should not be a
straitjacket for areas which are essential for the functioning of
society, and that the three-step test had been introduced to counter the
problems with photocopying and may not be suitable for situations in the
digital environment. They said that the Conference should make it clear
that if the rules were strengthened, the limitations and exceptions
should be strengthened too (IFLA's point). Education, scientific
research, library activities and the needs of the handicapped were
mentioned.

India supported the US proposed changes in wording to 12(1). In 12(2)
they pointed out that the language had to be modified to reflect the
existing exceptions. There should be scope for national legislations to
make exceptions. There are more exceptions in Berne than 9(2) (IFLA's
point).

Korea followed the IFLA position and suggested deleting 12(2).

Singapore supported the US proposed changes in wording to 12(1) and said
that 12(2) should be deleted. They read out many of the points in the
IFLA paper.

Hungary said that they had serious concerns about 12(2) which, as
drafted, appeared to restrict existing rights. They suggested deleting
12(2) also or otherwise interpreting it in some way so that the sense did
not negate the existing rights of Berne.

New Zealand supported the US proposed changes in wording to 12(1) and
said that they shared the concerns already expressed on 12(2).

Tanzania was broadly in favour of 12 as drafted.

Sweden supported the US proposed changes in wording to 12(1) and said
that they were not sure whether 12(2) would cover all the existing
exceptions.

Cameroon made the point about a global approach to exceptions being
necessary. They had no objections to the wording.

China supported the points made by the USA, Sweden, India and Korea and
agreed 12(2) should be deleted.

Norway supported the US proposed changes in wording to 12(1) and agreed
with the views of Denmark and Hungary about not negating the existing
exceptions of Berne.

Chile said there should be a review of Article 12. They supported Korea
that 12(2) should be deleted.

The Netherlands supported the existing exceptions. They said that it was
too early to determine further exemptions and supported more discussion.

Thailand supported the US proposed changes in wording to 12(1) and agreed
with Korea about the deleteion of 12(2).

The UK delegation said they supported the principle of Berne and TRIPS
and would be willing to assist with drafting. They wished to align
themselves with those who wanted to keep exceptions in the digital age.
They felt the present text provided an appropriate balance between rights
owners and users but they would be willing to consider minor drafting
amendments.

Finland supported the US proposed changes in wording to 12(1). They were
inclined to think that 12(2) should be deleted.

Australia was happy to adopt the approach regarding support for 12(1).
They wished to underscore the Note 12.09 about the important values in
society not being forgotten.

Several others spoke but said nothing new. The Chair summed up by saying
that there were doubts expressed on 12(2). He asked those willing to
produce revised texts to put them in writing.

Articles 13 and 14 - Technological and Rights Management Issues

Ghana indicated that these measures were vague and would lead to
confusion. They would be unable to implement Article 13. The asian
group were protesting against this. They suggested changing "primary
purpose" to "sole purpose" in 13(3).

Korea said that they had already put forward written proposals. There
were using the argument (also in the IFLA paper) that there should be no
measures which prevented lawful use - library archiving etc should be
considered lawful, for example. They stressed that it was important to
make sure that the general public were not kept out of the information
society.

South Africa associated itself with Ghana. They had difficulties with
the current wording and were proposing an amended version of Article 13.
(Many of the other African states stood up to support Ghana).

Canada said that some of the wording was unacceptable. Lawful acts
should be considered. Works in the public domain do not need protection
for example.

Singapore supported Ghana in changing "primary" to "sole". They said
that Article 13 catches bpth legitimate and illegitimate uses. They also
questioned whether the proble was a real or potential one and said that
laws should not be based on conjectures. Regarding article 14, they said
they were concerned with the scope. Limitations and exceptions were
needed here too.

CEC said that the wording of Article 13 would have to be improved. They
were aware of the need to achieve the right balance to allow for
legitimate use. They said that the element of knowledge was important
and showed an interest in S. Africa's proposals. They felt that Article
14 may be too wide in scope and not particularly defined.

Jamaica suggested some minor amendments to Article 13 emphasising that
knowledge is a prerequisite.

New Zealand generally supported Article 13 but subject to changes. They
said that it was a civil issue not a criminal one. The knowledge element
should be emphasised.

The UK made it clear that the UK had already adopted these protections.
However, they said that thee drafting should be looked at to cater for
legitimate acts. They supported the EC proposals.

Australia said that the language restricted access to material not in
copyright or subject to copyright. Its use should be confined to those
with a clear intention to break copyright.

Norway agreed that a narrower scope was needed and that lawful use must
not be prevented.

Many more spoke more or less on the same lines. The Chair summed up by
saying that some delegations do want these measures; some support; and
some offer drafting advice. He agreed that lawful acts should be
considered.

Wednesday 11th December

As most of the substantial issues on the agenda had been discussed, IFLA,
EBLIDA and other user groups were not required to attend further meetings
of the main committee. There was still plenty to do behind the scenes to
ensure that our points of view were heard and considered. So far, many
of IFLA's viewpoints had been aired but it was essential that our
concerns were reflected in the treat language. It had been generally
felt that Article 12(2) would now be dropped. However, Article 12(1) was
not enough as it stood and we needed to put forward suggestions for
additional clarification in order for Contracting Parties to be able to
provide for exceptions and limitations to the existing rights of Berne
and also the new rights under the treaties. Several delegations were
approached, among them Singapore and Denmark, to consider some further
wording by IFLA. Also, we were concerned that Article 10, as drafted,
was not good for the library world. If every communication to the public
had to be authorised, this might affect internal library communication as
well as remote communication. We were also worried about browsing and
the liability of Information Service Providers. A further text was
drafted (without attribution) intended to draw attention to the problems.

Thursday 12th December

The main committee convened late in the aftrenoon to receive a copy of
the Partly Consolidated Text of Treaty Number 1. It was only "partly
consolidated" because Liedes said he had not had time to incorporate all
proposals. They was much criticism from the floor (mainly from Cote
d'Ivoire and Nigeria) on the way the work had been handled and there were
questions about the lack of openness.~

Article 7 had not changed much and the Chair admitted that this was still
"totally open". The Norwegian proposal to delete 7(2) had not been taken
up. However, our proposal to delete 12(2) had, although the Chair said
that he hesitated on this! Articles 10, 13 and 14 were the same as the
originals.~

Update~

I had to leave on Friday 13th but nothing much has happened - at
least as far as adopting the treaty language is concerned - since then.
A lot has been happening behind the scenes of course. Israel has
proposed changes to 12(1) using our revised text. It is likely that
others will support it. There is a lot of discussion on revised wording
for Article 10 so it is likely that a revised text will be proposed soon.
Also revised texts of 13 and 14 have been put forward by Israel.~

At the session on Sunday 15th, it was agreed to put to bed the
non-controversial items. As it happened only parts of Article 1 and 2
were adopted! The conference closes on Friday so they will have to get a
move on.~

Sandy Norman~
IFLA Copyright Adviser~
16th November 1996~



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