2nd WIPO SEMINAR ON INTELLECTUAL PROPERTY AND CREATIVE SMALL AND MEDIUM SIZED ENTERPRISES IN THE DIGITAL ENVIRONMENT Protecting Intellectual Property in Digital Multimedia Networks

Víctor Vázquez, Senior Legal Counselor , Copyright E-Commerce, Technology and Management Divison

Geneva

May 18, 2009

Overview

* * * * Copyright at WIPO – International copyright policy framework WIPO Copyright Treaties – – – – Exceptions & limitations to copyright Broadcast treaty and audiovisual performances WIPO Development Agenda World Summit on the Information Society Technology and copyright Future directions

Introducing WIPO

* * * * * United Nations specialized agency members - 184 Member States observers - 222 non-governmental organizations, 66 international organizations over 900 staff members based in Geneva (offices in Singapore, New York, Brussels, Rio de Janeiro, Tokyo)

WIPO’s main activities

* * *

Norm-setting

– treaty-making processes

Providing international IP services to private sector

– – registration services for patents, trademarks & designs dispute resolution (WIPO Arbitration & Mediation Center)

Enhancing access to the IP system

– assist developing country members, including its SMEs to use IP as a tool for economic, cultural & social development – – distance learning programs (WIPO Worldwide Academy) seminars, conferences, studies and documents

Updating international copyright law

Ongoing Process

updating copyright law to the digital environment through treaties, and soft-law approaches Regular meetings of Standing Committee on Copyright and Related Rights (SCCR; next meeting, May 25-29, 2009)

International copyright framework

Multilateral treaties:

 Berne Convention (1971)  Rome Convention (1961)  TRIPS Agreement (1994)  WIPO Internet Treaties (1996) Main driver: technological development •

plus free-trade agreements

WIPO Internet Treaties

• • • •

WIPO Copyright Treaty (WCT)

in force March 6, 2002 (70 States party)

WIPO Performances and Phonograms Treaty (WPPT)

in force May 20, 2002 (68 States party) • membership mainly developing countries, plus Singapore, USA, Belgium, Japan • recent accessions: Australia (2007), China (2007); Switzerland (2008)

WIPO Internet Treaties …

* ensure that copyright applies in the digital environment facilitating access to and use of creative content. • right of reproduction (temporary reproduction) • right of making available • limitations and exceptions for the digital age • technological protection measures • rights management information • generally updated: • • • • • protection of computer programs and databases distribution and rental rights enforcement economic and moral rights for performers economic rights for producers of phonograms

Balance in the WIPO copyright treaties

* WCT negotiators recognized “the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information as reflected in the Berne Convention” and • the need to “provide adequate solutions to the questions raised by the new economic, social, cultural and technological developments” • “the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works”

Limitations & exceptions to copyright

Current legal status

* * 3 step test - Berne Convention, TRIPS Agreement, WCT and WPPT • • • certain special cases do not conflict with normal exploitation do not prejudice the legitimate interests of rightholders

Issues

: challenge to maintain exceptions in digital environment with use of DRM/TPMs DRM tools used to manage rights when faced with increasing piracy of music, film, software, and emergence of P2P networks use of contract to override exceptions role of private copying exceptions in P2P context

Limitations & exceptions to copyright

Chilean proposal in WIPO SCCR:

 Proposal by Chile on the Analysis of Exceptions and Limitations (SCCR/13/5, 2005)

http://www.wipo.int/meetings/en/details.jsp?meeting_id

=9289

* Define minimum exceptions at international level in three areas: • • • Educational uses Libraries and archives Handicapped persons

Limitations & exceptions to copyright (WIPO)



Study on Copyright Limitations and Exceptions for Libraries and Archives

Crews, Director, Copyright Advisory Office, Columbia University http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192 prepared by Kenneth

 Study on Copyright Limitations and Exceptions for the Visually Impaired (Sullivan, 2007)

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=75696

 Automated Rights Management Systems and Copyright Limitations and Exceptions (Garnett, 2006)

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952

 Study on Current Developments in the Field of Digital Rights Management (Cunard, Hill, Barlas, 2004)

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=29478

 Study on Limitations and Exceptions to Copyright and Related Rights in the Digital Environment (Ricketson, 2003)

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=16805

2 Unresolved issues: Broadcasting and Audiovisual performances

As regards broadcasting the stated objectives are – to provide a stable legal framework for the activities of broadcasting organizations – focus on

“anti-piracy” function

– protection against unfair exploitation by competitors and

against free-riding

Criticism: protection may represent an obstacle to free flow of information

Current status of broadcast treaty…

– The item continues in the agenda of the SCCR, but

Pending differences include further discussions required before moving to a diplomatic conference.

Scope of the Treaty

– – – Which forms of transmissions to be protected ?

Which organizations should be protected? Coverage of simulcasting /webcasting ?

– – –

Rights

Rights to be granted? Right of retransmission by third parties over computer networks Exclusive (economic) rights or right to prohibit?

Audiovisual performances

– – – – Lack of an effective international protection for actors- Rome Convention/WPPT Failure of the 2000 WIPO Dipcom WIPO activities to promote protection at national and regional level Since the 2006 GA the WIPO Secretariat is organizing national and regional seminars in order to promote developments in this area, both at the levels of national legislation and international consensus building (focus is placed on CM, contracts, national legislation).

Summary of the Outcome of the National and Regional Seminars on the Protection of Audiovisual Performances and Stocktaking of Positions

http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=110712

Free-trade agreements

• • •

More than 300 FTAs worldwide concluded, or under negotiation

involve trilaterals, bilaterals and harmonization talks most include chapters on intellectual property rights • • •

Example: US-Singapore Free Trade Agreement

resulted in Copyright (Amendment) Act 2005, in force in Singapore on August 15, 2005 FTA requires: • • • legal protection against circumvention of technological protection measures notice-and-takedown procedures for illegal online content certain provisions regarding limitations and exceptions

WIPO Development Agenda

* * Development Agenda process commenced WIPO General Assembly 2004 – proposal submitted by Brazil and Argentina and supported by a number of other countries – to mainstream the “development dimension” into all of WIPO’s substantive and technical assistance activities and debates “Friends of Development” – 14 countries + other developing and least developed countries – various agendas (patents, trademarks, copyright, WIPO governance)

WIPO Development Agenda…

* Recommendations adopted by WIPO General Assembly (10/07) ( 4 clusters): – – – – Technical Assistance and Capacity Building Norm-Setting, Flexibilities, Public Policy and Public Domain Technology Transfer, Information and Communication Technologies and Access to Knowledge Assessment, Evaluation and Impact Studies  Recommendations available at

http://www.wipo.int/ip-development/en/agenda.html

WIPO Development Agenda …

*

Copyright issues mainly in Cluster B - Norm Setting, Flexibilities, Public Policy and Public Domain

: Principle of neutrality, balance between costs and benefits to all stakeholders Flexibility, consideration of different level of development in international IPR agreements Preservation and accessibility of the public domain Access to knowledge and new licensing schemes

WIPO Development Agenda. Thematic Project on IP and the Public Domain.

* * One of the Thematic Projects approved in the last CDIP. Implementation through a series of activities:

Scoping Study on Copyright and Related Rights and the Public Domain Second Survey on Voluntary Registration Systems

Follows the Survey of National Legislation on voluntary Registration Systems for Copyright and RR (SCCR/12) 2005

Survey of Private Copyright Documentation Systems and Practices

Online consultation open to the public (i.e. multi stakeholder platform) Seminar on Rights Management Information and Recordation

WIPO & Information Society

*

World Summit on the Information Society

– – Two phases: Geneva 2003, Tunis 2005 Declaration of Principles, Plan of Action, Agenda for the Information Society – Follow up: Internet governance & IP (Athens, 2005; Rio 2007, Hyderabad 2008) 

WIPO Online Forum on Intellectual Property in the Information Society

– Report at http://www.wipo.int/ipisforum/en/

Challenges of technology

…

New business models for digital content delivery, licensing

* * * * * * * Distributed technologies & collaborative creativity Web 2.0, Web 3.0

Evolution of peer-to-peer networks (P2P) - Napster to BitTorrent User-generated content - YouTube, MySpace, Second Life Online audiovisual distribution - podcasting and vlogging Online publishing - Google Book Search Project Choice in licensing (Creative Commons, open source software, GPL v.3) Evolving role of technological protection measures and RMI, particularly identifiers

Licensing & Enforcement

Standards and Interoperability * * * * * Standard setting bodies, consortia (MPEG, ISO..) Policy/legislation promoting interoperability (France, iTunes; EU Creative Content Online process) growing use of identifiers (RMI) to track content (eg fingerprinting technologies) – WIPO Seminar on Rights Management Information (Sept. 2007, http://www.wipo.int/meetings/en/2007/sem_cr_ge/) “open standards” - IPR policies of SSOs • licensing terms (RAND, FRAND, RF) role of patents in ICT technology and standards

Licensing & Enforcement

Internet Service Provider (ISP) liability * * * * expanding notion of ‘Internet intermediary’ may include peer-to-peer (P2P) file sharing services, portals and auction sites, search engines effect of differing legislative approaches to third-party liability regimes WIPO Paper “Online Intermediaries and Liability for Copyright Infringement (Waelde, Edwards, 2005)

http://www.wipo.int/meetings/2005/wipo_iis/en WIPO Asia Pacific Regional Symposium on Copyright and Internet Intermediaries, July 2009

Possible future issues for WIPO copyright agenda

• • • • • • • Liability of Internet intermediaries Interoperability and standards for DRM and RMI Further work to improve protection of audiovisual performers Expanding choice of licensing models, business models and tools to support them Enhanced access to public domain material, orphan works Copyright guidance for museums Continued work on exceptions and limitations in the digital environment

Thank you

www.wipo.int

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