2nd WIPO SEMINAR ON
INTELLECTUAL PROPERTY AND
CREATIVE SMALL AND MEDIUMSIZED 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
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Copyright at WIPO
International copyright policy framework
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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
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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
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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
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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)
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membership mainly developing countries, plus Singapore,
USA, Belgium, Japan
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recent accessions: Australia (2007), China (2007);
Switzerland (2008)
WIPO Internet Treaties …
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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:
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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
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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
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Define minimum exceptions at international level in three
areas:
• Educational uses
• Libraries and archives
• Handicapped persons
Limitations & exceptions to copyright (WIPO)
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Study on Copyright Limitations and Exceptions for Libraries and Archives prepared by Kenneth
Crews, Director, Copyright Advisory Office, Columbia University
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192
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Study on Copyright Limitations and Exceptions for the Visually Impaired (Sullivan, 2007)
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=75696
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Automated Rights Management Systems and Copyright Limitations and Exceptions (Garnett, 2006)
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952
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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
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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 further
discussions required before moving to a diplomatic conference.
Pending differences include
Scope of the Treaty
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Which forms of transmissions to be protected ?
Which organizations should be protected?
Coverage of simulcasting /webcasting ?
Rights
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Rights to be granted?
Right of retransmission by third parties over computer networks
Exclusive (economic) rights or right to prohibit?
Audiovisual performances
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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 consensusbuilding (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:
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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
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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…
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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
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Recommendations available at
http://www.wipo.int/ip-development/en/agenda.html
WIPO Development Agenda…
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Copyright issues mainly in Cluster B - NormSetting, Flexibilities, Public Policy and Public
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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
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WIPO Development Agenda. Thematic
Project on IP and the Public Domain.
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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
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Survey of Private Copyright Documentation
Systems and Practices
- Online consultation open to the public (i.e. multistakeholder platform)
- Seminar on Rights Management Information and
Recordation
WIPO & Information Society
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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
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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
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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/)
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“open standards” - IPR policies of SSOs
• licensing terms (RAND, FRAND, RF)
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role of patents in ICT technology and standards
Licensing & Enforcement
Internet Service Provider (ISP) liability
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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
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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
richard.owens@wipo.int