2nd wipo seminar on intellectual property and creative small and medium- sized enterprises in the...
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2nd WIPO SEMINAR ON 2nd WIPO SEMINAR ON INTELLECTUAL PROPERTY AND INTELLECTUAL PROPERTY AND CREATIVE SMALL AND MEDIUM-CREATIVE SMALL AND MEDIUM-
SIZED ENTERPRISES IN THE DIGITAL SIZED ENTERPRISES IN THE DIGITAL ENVIRONMENTENVIRONMENT
Protecting Intellectual Property in Digital Multimedia Networks
Víctor Vázquez, Senior Legal Counselor, Copyright E-Commerce, Technology
and Management Divison
GenevaMay 18, 2009
OverviewOverview
* Copyright at WIPO* International copyright policy framework
– WIPO Copyright TreatiesWIPO Copyright Treaties– Exceptions & limitations to copyrightExceptions & limitations to copyright– Broadcast treaty and audiovisual performances Broadcast treaty and audiovisual performances – WIPO Development AgendaWIPO Development Agenda– World Summit on the Information SocietyWorld Summit on the Information Society
* Technology and copyright * Future directions
Introducing WIPOIntroducing 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 activitiesWIPO’s main activities* Norm-setting
– treaty-making processes treaty-making processes * Providing international IP services to private sector
– registration services for patents, trademarks & designsregistration services for patents, trademarks & designs
– dispute resolution (WIPO Arbitration & Mediation Center)dispute resolution (WIPO Arbitration & Mediation Center)* Enhancing access to the IP system
– assist developing country members, including its SMEs to assist developing country members, including its SMEs to use IP as a tool for economic, cultural & social developmentuse IP as a tool for economic, cultural & social development
– distance learning programs (WIPO Worldwide Academy)distance learning programs (WIPO Worldwide Academy)
– seminars, conferences, studies and documentsseminars, conferences, studies and documents
Updating international copyright law 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 frameworkInternational 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 Internet Treaties
• WIPO Copyright Treaty (WCT)
• in force March 6, 2002 (70 States party)in force March 6, 2002 (70 States party)
• WIPO Performances and Phonograms Treaty (WPPT) • in force May 20, 2002 (68 States party)in force May 20, 2002 (68 States party)
• membership mainly developing countries, plus Singapore, membership mainly developing countries, plus Singapore, USA, Belgium, JapanUSA, Belgium, Japan
• recent accessions: Australia (2007), China (2007); recent accessions: Australia (2007), China (2007); Switzerland (2008)Switzerland (2008)
WIPO Internet Treaties … 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 reproduction (temporary reproduction)• right of making availableright of making available• limitations and exceptions for the digital agelimitations and exceptions for the digital age• technological protection measurestechnological protection measures• rights management informationrights management information• generally updated:generally updated:
• protection of computer programs and databasesprotection of computer programs and databases
• distribution and rental rightsdistribution and rental rights
• enforcementenforcement
• economic and moral rights for performerseconomic and moral rights for performers
• economic rights for producers of phonogramseconomic rights for producers of phonograms
Balance in the WIPO copyright treaties 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 the need to “provide adequate solutions to the questions raised by the new economic, social, questions raised by the new economic, social, cultural and technological developments”cultural and technological developments”
• ““the profound impact of the development and the profound impact of the development and convergence of information and communication convergence of information and communication technologies on the creation and use of literary and technologies on the creation and use of literary and artistic works”artistic works”
Limitations & exceptions to copyrightLimitations & exceptions to copyrightCurrent legal status* 3 step test - Berne Convention, TRIPS Agreement, WCT
and WPPT
• certain special casescertain special cases
• do not conflict with normal exploitationdo not conflict with normal exploitation
• do not prejudice the legitimate interests of rightholdersdo 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 DRM tools used to manage rights when faced with increasing piracy of music, film, software, and increasing piracy of music, film, software, and emergence of P2P networksemergence of P2P networks
- use of contract to override exceptionsuse of contract to override exceptions
- role of private copying exceptions in P2P contextrole of private copying exceptions in P2P context
Limitations & exceptions to copyrightLimitations & exceptions to copyright
Chilean proposal in WIPO SCCR:Proposal by Chile on the Analysis of Exceptions and Proposal by Chile on the Analysis of Exceptions and
LimitationsLimitations (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 usesEducational uses
• Libraries and archivesLibraries and archives
• Handicapped personsHandicapped persons
Limitations & exceptions to copyright (WIPO)Limitations & exceptions to copyright (WIPO)
Study on Copyright Limitations and Exceptions for Libraries and ArchivesStudy on Copyright Limitations and Exceptions for Libraries and Archives prepared by Kenneth prepared by Kenneth Crews, Director, Copyright Advisory Office, Columbia UniversityCrews, Director, Copyright Advisory Office, Columbia University http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192
Study on Copyright Limitations and Exceptions for the Visually Impaired (Sullivan, 2007)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)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, Study on Current Developments in the Field of Digital Rights Management (Cunard, Hill, Barlas, 2004)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 Study on Limitations and Exceptions to Copyright and Related Rights in the Digital Environment (Ricketson, 2003)(Ricketson, 2003)http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=16805
2 Unresolved issues: Broadcasting 2 Unresolved issues: Broadcasting and Audiovisual performancesand Audiovisual performances
As regards broadcasting the stated objectives areAs regards broadcasting the stated objectives are– to provide a stable legal framework for the to provide a stable legal framework for the
activities of broadcasting organizationsactivities of broadcasting organizations– focus on focus on “anti-piracy” function “anti-piracy” function – protection against unfair exploitation by protection against unfair exploitation by
competitors and competitors and against free-ridingagainst free-riding
Criticism: protection may represent an obstacle Criticism: protection may represent an obstacle to free flow of information to free flow of information
Current status of broadcast treaty…Current status of broadcast treaty…
– The item continues in the agenda of the SCCR, but The item continues in the agenda of the SCCR, but further further discussions required before moving to a diplomatic conference. discussions required before moving to a diplomatic conference. Pending differences includePending differences include
Scope of the TreatyScope of the Treaty
– Which forms of transmissions to be protected ?– Which organizations should be protected? – Coverage of simulcasting /webcasting ?
RightsRights
– Rights to be granted? – Right of retransmission by third parties over computer networks– Exclusive (economic) rights or right to prohibit?
Audiovisual performancesAudiovisual 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 Free-trade agreements • More than 300 FTAs worldwide concluded, or under
negotiation
• involve trilaterals, bilaterals and harmonization talksinvolve trilaterals, bilaterals and harmonization talks
• most include chapters on intellectual property rightsmost 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 AgendaWIPO 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 to mainstream the “development dimension” into all of
WIPO’s substantive and technical assistance activities and WIPO’s substantive and technical assistance activities and debatesdebates
* “Friends of Development”– 14 countries + other developing and least developed 14 countries + other developing and least developed
countriescountries– various agendas (patents, trademarks, copyright, WIPO various agendas (patents, trademarks, copyright, WIPO
governance)governance)
WIPO Development Agenda…WIPO Development Agenda…
* Recommendations adopted by WIPO General Assembly (10/07) (4 clusters):
– Technical Assistance and Capacity BuildingTechnical Assistance and Capacity Building– Norm-Setting, Flexibilities, Public Policy and Public Norm-Setting, Flexibilities, Public Policy and Public
DomainDomain– Technology Transfer, Information and Communication Technology Transfer, Information and Communication
Technologies and Access to KnowledgeTechnologies and Access to Knowledge– Assessment, Evaluation and Impact StudiesAssessment, Evaluation and Impact Studies
Recommendations available at http://www.wipo.int/ip-development/en/agenda.html
WIPO Development AgendaWIPO Development Agenda……
* Copyright issues mainly in Cluster B - Norm-Setting, Flexibilities, Public Policy and Public Domain:
- Principle of neutrality, balance between costs and Principle of neutrality, balance between costs and benefits to all stakeholdersbenefits to all stakeholders
- Flexibility, consideration of different level of Flexibility, consideration of different level of development in international IPR agreementsdevelopment in international IPR agreements
- Preservation and accessibility of the public domainPreservation and accessibility of the public domain- Access to knowledge and new licensing schemesAccess to knowledge and new licensing schemes
WIPO Development Agenda. Thematic WIPO Development Agenda. Thematic Project on IP and the Public Domain. 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 SystemsFollows 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-Online consultation open to the public (i.e. multi-
stakeholder platform)stakeholder platform)- Seminar on Rights Management Information and Seminar on Rights Management Information and
RecordationRecordation
WIPO & Information SocietyWIPO & Information Society
* World Summit on the Information Society
– Two phases: Geneva 2003, Tunis 2005Two phases: Geneva 2003, Tunis 2005
– Declaration of Principles, Plan of Action, Agenda for Declaration of Principles, Plan of Action, Agenda for the Information Societythe Information Society
– Follow up: Internet governance & IP (Athens, 2005; Follow up: Internet governance & IP (Athens, 2005; Rio 2007, Hyderabad 2008)Rio 2007, Hyderabad 2008)
WIPO Online Forum on Intellectual Property in the Information Society
– Report at http://www.wipo.int/ipisforum/en/Report at http://www.wipo.int/ipisforum/en/
Challenges of technologyChallenges of technology……
New business models for digital content delivery, licensing
* Distributed technologies & collaborative creativity Web 2.0, Web 3.0Web 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 & EnforcementLicensing & 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, WIPO Seminar on Rights Management Information (Sept. 2007,
http://www.wipo.int/meetings/en/2007/sem_cr_ge/)http://www.wipo.int/meetings/en/2007/sem_cr_ge/)
* “open standards” - IPR policies of SSOs• licensing terms (RAND, FRAND, RF)licensing terms (RAND, FRAND, RF)
* role of patents in ICT technology and standards
Licensing & EnforcementLicensing & 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 WIPO Paper “Online Intermediaries and Liability for Copyright Infringement (Waelde, Edwards, 2005)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 Possible future issues for WIPO copyright agendacopyright 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
