1. SEMINAR ON INTELLECTUAL PROPERTY AND CREATIVE SMEs IN THE DIGITAL ENVIRONMENT Copyright in the Digital Age Richard Owens Director, Copyright E-Commerce, Technology and Management Divison Geneva May 20, 2008

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

3. 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, Tokyo)

4. WIPO’s main activities * Normsetting –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, as well as SMEs to use IP as a tool for economic, cultural & social development –distance learning programs (WIPO Worldwide Academy) –seminars, conferences, studies and documents

5. 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; most recent meeting, March 10-12, 2008)

6. International copyright framework Multilateral treaties:   Berne Convention (1971)   Rome Convention (1961)   TRIPS Agreement (1994)   WIPO Internet Treaties (1996) plus free-trade agreements

7. WIPO Internet Treaties WIPO Copyright Treaty (WCT) in force March 6, 2002 (65 States party)in force March 6, 2002 (65 States party) WIPO Performances and Phonograms Treaty (WPPT) in force May 20, 2002 (63 States party)in force May 20, 2002 (63 States party) membership mainly developing countries, plus Singapore, USA, Belgium, Japan membership mainly developing countries, plus Singapore, USA, Belgium, Japan accessions: Australia, China (2007); Switzerland (2008) accessions: Australia, China (2007); Switzerland (2008)

8. WIPO Internet Treaties … * ensure that rightsholders control dissemination of protected material over Internet, including right to make available ‘on demand’ right of reproduction (temporary reproduction) right of reproduction (temporary reproduction) right of making available right of making available limitations and exceptions for the digital age limitations and exceptions for the digital age technological protection measures technological protection measures rights management information rights 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

9. 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

10. 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 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” “the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works”

11. Limitations & exceptions to copyright Current 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 (eg fair dealing) 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

12. Limitations & exceptions to copyright Chilean proposal in WIPO SCCR: ÙProposal by Chile on the Analysis of Exceptions and Limitations ÙProposal by Chile on the Analysis of Exceptions and Limitations (SCCR/13/5, 2005) http://www.wipo.int/meetings/en/details.jsp?meeting_id =9289 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

13. Limitations & exceptions to copyright (WIPO) Ù Study on Copyright Limitations and Exceptions for the Visually Impaired (Sullivan, 2007) http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=75696 Ù Automated Rights Management Systems and Copyright Limitations and Exceptions (Garnett, 2006) http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=59952 Ù 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 Ù 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

14. Broadcast treaty negotiations –to provide a stable legal framework for the activities of broadcasting organizations –focus on “anti-piracy” function –protection against competitors and against unfair exploitation, and against free-riding

15. Current status of broadcast treaty… –Discussions in 15 consecutive sessions of the Standing Committee on Copyright & Related Rights (SCCR) –Two special sessions of the SCCR convened in 2007 –The Second Special Session (June 18-22, 2007); further discussions were required on various aspect before moving to a diplomatic conference –The 2007 WIPO General Assembly decided to keep the item in the SCCR Agenda –SCCR-16 (March 10-12, 2008): keep the item on agenda for SCCR-17 (November 2008)

16. Issues in broadcast treaty * 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?

17. 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)

18. 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

19. 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

20. 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/

21. Challenges of technology … New business models for digital content delivery, licensing * Distributed technologies & collaborative creativity Web 2.0, Web 3.0 Web 2.0, Web 3.0 * Evolution of peer-to-peer networks (P2P) - Napster to BitTorrent * User-generated content - YouTube, MySpace, Second Life –UGC Principles for managing infringing content * 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

22. 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)licensing terms (RAND, FRAND, RF) * role of patents in ICT technology and standards

23. Licensing & Enforcement Internet Service Provider (ISP) liability * ‘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; implementation of FTA notice-and- takedown procedures * Role of self- and co-regulatory mechanisms –Notice and takedown procedures –UGC Principles * WIPO Paper “Online Intermediaries and Liability for Copyright Infringement (Waelde, Edwards, 2005) * WIPO Paper “Online Intermediaries and Liability for Copyright Infringement (Waelde, Edwards, 2005) http://www.wipo.int/meetings/2005/wipo_iis/en

24. Possible future issues for WIPO copyright agenda Role 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

25. Thank you Thank you www.wipo.int richard.owens@wipo.int