1 Impact of New Technologies on Copyright and Related Rights: The WCT and WPPT WIPO Intermediate Interregional Seminar, Geneva, October 8 2008 Víctor Vázquez,

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Impact of New Technologies on Impact of New Technologies on Copyright and Related Rights: Copyright and Related Rights:

The WCT and WPPTThe WCT and WPPT

WIPO Intermediate Interregional Seminar, Geneva, October 8 WIPO Intermediate Interregional Seminar, Geneva, October 8 20082008

Víctor Vázquez, Senior Legal Counsellor Copyright E-Víctor Vázquez, Senior Legal Counsellor Copyright E-commerce, Technology and Management Division, WIPOcommerce, Technology and Management Division, WIPO

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The Berne ConventionThe Berne Convention

Adopted in 1886Adopted in 1886 Revised at regular intervals to respond to new Revised at regular intervals to respond to new

technological developments over the last century technological developments over the last century Sound recording technologySound recording technology PhotographyPhotography Radio Radio FilmFilm Television Television

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‘‘guided development’ in the 1970s-80sguided development’ in the 1970s-80s Based on interpretation of existing international normsBased on interpretation of existing international norms

To respond to new technologies such photocopying, video To respond to new technologies such photocopying, video technology, compact cassettes & home taping, satellite technology, compact cassettes & home taping, satellite broadcasting, cable transmissions, increasing importance of broadcasting, cable transmissions, increasing importance of computer programs, ‘multi media’ works, electronic databasescomputer programs, ‘multi media’ works, electronic databases

By the end of 1980s, it became clear that new By the end of 1980s, it became clear that new binding international standards had to be agreed binding international standards had to be agreed uponupon Uruguay Round GATT negotiations (TRIPS)Uruguay Round GATT negotiations (TRIPS) WIPO Committee of ExpertsWIPO Committee of Experts

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TRIPS (1994) incorporated some results of the TRIPS (1994) incorporated some results of the period of ‘guided development’ but did not period of ‘guided development’ but did not respond to all issues posed by the latest respond to all issues posed by the latest technological advancements that were occurring technological advancements that were occurring throughout the period of GATT negotiationsthroughout the period of GATT negotiations Digital technology and the InternetDigital technology and the Internet

WIPO Diplomatic Conference in December 1996 WIPO Diplomatic Conference in December 1996 adopted 2 new treaties – WCT & WPPTadopted 2 new treaties – WCT & WPPT

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Reasons for New WIPO Reasons for New WIPO TreatiesTreaties

Clarify existing standards / normsClarify existing standards / norms To provide some answers to technological To provide some answers to technological

developments which have fundamentally developments which have fundamentally affected ways in which works may be affected ways in which works may be created, disseminated & utilizedcreated, disseminated & utilized

WPPTWCT

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Subject Matter of the TreatiesSubject Matter of the Treaties

WCTWCT Same concept & extent of literary and artistic Same concept & extent of literary and artistic

works as is applicable under the Berne works as is applicable under the Berne ConventionConvention

WPPTWPPT PerformancesPerformances PhonogramsPhonograms

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WCT – link to Berne WCT – link to Berne

WCT is a special agreement under Article 20 of WCT is a special agreement under Article 20 of Berne Convention Berne Convention Art. 20 – “governments … reserve the right to enter Art. 20 – “governments … reserve the right to enter

into special agreements among themselves, in so far as into special agreements among themselves, in so far as such agreements grant to authors more extensive rights such agreements grant to authors more extensive rights than those granted by the Convention, or contain other than those granted by the Convention, or contain other provisions not contrary to this Convention”provisions not contrary to this Convention”

Crucial Link - interpretation of WCT cannot lead Crucial Link - interpretation of WCT cannot lead to lower level of protection given by Berne to lower level of protection given by Berne (WPPT - no such link)(WPPT - no such link)

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WCT – further link to Berne WCT – further link to Berne

Articles 1 to 21 & Appendix of Berne Articles 1 to 21 & Appendix of Berne Convention to be applied by members Convention to be applied by members (including Article 6bis, unlike TRIPS)(including Article 6bis, unlike TRIPS) The 1971 Paris Act of Berne ConventionThe 1971 Paris Act of Berne Convention Any member country of WIPO, irrespective of Any member country of WIPO, irrespective of

whether it is a party to Berne, can accede to whether it is a party to Berne, can accede to WCTWCT

No links to any other treatyNo links to any other treaty

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WCT - Storage/Reproduction in an Electronic Medium

““The reproduction right, as set out in Article 9 of The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions the Berne Convention, and the exceptions

permitted thereunder, fully apply in the digital permitted thereunder, fully apply in the digital environment, in particular to the use of works in environment, in particular to the use of works in

digital form. It is understood that the storage of a digital form. It is understood that the storage of a protected work in digital form in an electronic protected work in digital form in an electronic medium constitutes a reproduction within the medium constitutes a reproduction within the

meaning of Article 9 of the Berne Convention.”meaning of Article 9 of the Berne Convention.”

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WCT - Storage of works in digital WCT - Storage of works in digital form in electronic mediumform in electronic medium

Agreed Statement that Article 9 of Berne fully Agreed Statement that Article 9 of Berne fully applies in the digital environment. Hence:applies in the digital environment. Hence: Art. 9(1)-Reproduction in ‘any manner or form’ Art. 9(1)-Reproduction in ‘any manner or form’

irrespective of duration; and whether of a irrespective of duration; and whether of a temporary naturetemporary nature

Art. 9(2)-Justified exceptions, such as for transient Art. 9(2)-Justified exceptions, such as for transient and incidental copies, provided they comply with and incidental copies, provided they comply with the 3-step testthe 3-step test

(Reference : WCT [Article 1(4)] & WPPT [Articles 7 &11]

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WCT - Storage of works in digital WCT - Storage of works in digital form in electronic mediumform in electronic medium In consequence: storage of a protected In consequence: storage of a protected

work in digital form in an electronic work in digital form in an electronic medium is reproduction within Article 9, medium is reproduction within Article 9, Berne (Agreed statement concerning Berne (Agreed statement concerning article 1.4- reference to BC)article 1.4- reference to BC)

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WCT – Right of making available WCT – Right of making available (Transmissions in interactive digital networks)(Transmissions in interactive digital networks)

2 possible existing rights were identified2 possible existing rights were identified Communication to the publicCommunication to the public Distribution Distribution

These Berne Convention rights do not offer full coverage These Berne Convention rights do not offer full coverage – the former does not extend to certain category of works – the former does not extend to certain category of works while the latter expressly covers only cinematographic while the latter expressly covers only cinematographic worksworks

National laws also differed greatly in this respect; National laws also differed greatly in this respect; difficult to arrive at a consensusdifficult to arrive at a consensus

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‘‘Umbrella’ Solution Umbrella’ Solution Act of digital transmission should be described in a neutral Act of digital transmission should be described in a neutral

wayway Should convey the interactive nature of digital transmissionsShould convey the interactive nature of digital transmissions The gaps in Berne in the coverage of the relevant rights The gaps in Berne in the coverage of the relevant rights

should be eliminatedshould be eliminated In the actual choice of rights, countries should be left with In the actual choice of rights, countries should be left with

sufficient freedomsufficient freedom

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‘‘Umbrella’ Solution – because the number of countries Umbrella’ Solution – because the number of countries which preferred the option of using the right of which preferred the option of using the right of communication to the public were more:communication to the public were more: WCT extends applicability of right of communication to WCT extends applicability of right of communication to

public to public to allall categories of works categories of works Clarifies that the right also covers transmission in interactive Clarifies that the right also covers transmission in interactive

systemssystems However, Parties free to implement this obligation (of However, Parties free to implement this obligation (of

making available to the public) through a right other making available to the public) through a right other than the right of communication to the public, such as than the right of communication to the public, such as distribution right or a specific new rightdistribution right or a specific new right

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WCT – Right of making available WCT – Right of making available (communication to the public)(communication to the public)

Authors of literary and artistic works given exclusive Authors of literary and artistic works given exclusive right right of authorizing any communication to the public of authorizing any communication to the public of their works, by wire or wireless means, including of their works, by wire or wireless means, including the making available to the public of their works in the making available to the public of their works in such a way that members of the public may access such a way that members of the public may access from a place and time individually chosen by them.from a place and time individually chosen by them.

• (Article 8, WCT)(Article 8, WCT)

(Similar provision for performers and phonogram producers in Articles 10 & 14, WPPT)

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WCT – Right of making availableWCT – Right of making available

• Agreed Statement - the mere provision of physicalfacilities for enabling or making a communication does not in itself amount to a communication within the meaning of the treaty

• But liability can arise from other acts than mere transmission

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Technological measures of protectionTechnological measures of protectionRights management informationRights management information ““The answer to the machine lies in the The answer to the machine lies in the

machine”machine” (Charles Clark)(Charles Clark)

Legal measures needed to protect the Legal measures needed to protect the technological protection measures and rights technological protection measures and rights management informationmanagement information

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Technological measures of protectionTechnological measures of protectionRights management informationRights management information

Obligation to provide adequate legal protection Obligation to provide adequate legal protection and remedies against and remedies against circumvention of technological measures that circumvention of technological measures that restrict unauthorized acts, restrict unauthorized acts, removal/alteration of electronic rights removal/alteration of electronic rights management information.management information.

(Ref : WCT Articles 11 & 12, WPPT Articles 18 & 19)

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Technological measures of protectionTechnological measures of protectionRights management informationRights management information ‘‘Rights Management Information’ defined as Rights Management Information’ defined as

“information which identifies the work, the “information which identifies the work, the author of the work, the owner of any right in author of the work, the owner of any right in the work, or information about the terms and the work, or information about the terms and conditions of use of the work, and any numbers conditions of use of the work, and any numbers or codes that represent such information …”or codes that represent such information …”

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WCT - The Right of DistributionWCT - The Right of Distribution

Q: Q: Can a distribution right be deduced as Can a distribution right be deduced as an indispensable part to the right of an indispensable part to the right of reproduction reproduction (concept of implicit recognition (concept of implicit recognition of the right of distribution),of the right of distribution), or should a or should a separate right be clearly specified?separate right be clearly specified?

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WCT-The Right of DistributionWCT-The Right of Distribution

Article 6(1), WCT – “Article 6(1), WCT – “Authors of literary and Authors of literary and artistic works shall enjoy the exclusive right artistic works shall enjoy the exclusive right of authorizing the making available to the of authorizing the making available to the public of the original and copies of their public of the original and copies of their works through sale or other transfer of works through sale or other transfer of ownershipownership”” Clarification of obligations under Berne Clarification of obligations under Berne

Convention (and also under TRIPS); orConvention (and also under TRIPS); or Berne + TRIPS +Berne + TRIPS +

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WCT - Rental RightsWCT - Rental Rights

Authors of :Authors of :

- computer programs;- computer programs;

- cinematographic works; and- cinematographic works; and

- works embodied in phonograms,- works embodied in phonograms,

shall have exclusive right of commercial rental shall have exclusive right of commercial rental to public of originals or copies of their works to public of originals or copies of their works

(WCT, Article 7)(WCT, Article 7)

Identical to Articles 11 & 14.4 of TRIPSIdentical to Articles 11 & 14.4 of TRIPS

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WCT - Limitations on Rental WCT - Limitations on Rental RightsRights

If computer program not essential object of If computer program not essential object of the rentalthe rental

Films – unless rental has led to widespread Films – unless rental has led to widespread copying materially impairing the copying materially impairing the reproduction rightreproduction right

State can maintain existing equitable State can maintain existing equitable remuneration for rental, provided this does remuneration for rental, provided this does not materially impair reproduction rightsnot materially impair reproduction rights

[Rental Rights in WPPT - Articles 9 & 13]

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WCT- Clarifications & OthersWCT- Clarifications & Others Computer programs protected as literary works Computer programs protected as literary works

(Art 4)(Art 4) Compilations of data or other material, in any Compilations of data or other material, in any

form, which by reason of the selection or form, which by reason of the selection or arrangement of their contents constitute arrangement of their contents constitute intellectual creations, are protected as such intellectual creations, are protected as such (Art (Art 5)5)

Photographs - duration extended to 50 yearsPhotographs - duration extended to 50 years

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WPPT - Linkage to other TreatiesWPPT - Linkage to other Treaties

No link with the Rome Convention, unlike the No link with the Rome Convention, unlike the link between WCT and Bernelink between WCT and Berne Application of substantive provisions of Rome is Application of substantive provisions of Rome is

not an obligation not an obligation Only a few provisions of Rome are included by Only a few provisions of Rome are included by

reference reference (relating to criteria for eligibility)(relating to criteria for eligibility)

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WPPT - Rights of PerformersWPPT - Rights of Performers

The coverage of rights of performers under the The coverage of rights of performers under the WPPT goes beyond the Rome Convention and WPPT goes beyond the Rome Convention and TRIPS AgreementTRIPS Agreement

Key difference in the nature of rights – exclusive Key difference in the nature of rights – exclusive right versus ‘possibility of preventing’right versus ‘possibility of preventing’

Economic rights:Economic rights: Right of broadcasting & communication to the public Right of broadcasting & communication to the public

of unfixed performancesof unfixed performances Reproduction rightReproduction right Rental rightRental right

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WPPT - Performers’ Moral RightsWPPT - Performers’ Moral Rights Moral right for live aural performances Moral right for live aural performances

or performances fixed in phonogramsor performances fixed in phonograms Right to object to distortion, mutilation or Right to object to distortion, mutilation or

modification of performances prejudicial to a modification of performances prejudicial to a reputationreputation

Right to claim to be identified as performerRight to claim to be identified as performer Exception - where omission dictated by manner Exception - where omission dictated by manner

of useof use No performers’ rights in audio-visual No performers’ rights in audio-visual

performancesperformances

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WPPT - Rights of phonogram WPPT - Rights of phonogram producersproducers Same rights as those granted under TRIPS Same rights as those granted under TRIPS

AgreementAgreement Reproduction rightReproduction right Rental rightRental right

Direct or indirect reproduction in any Direct or indirect reproduction in any

manner or form (article 7) manner or form (article 7)

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WPPT - Storage of works in digital WPPT - Storage of works in digital form in an electronic mediumform in an electronic medium Agreed Statement that “the reproduction right, as set Agreed Statement that “the reproduction right, as set

out in Articles 7 & 11, and the exceptions permitted out in Articles 7 & 11, and the exceptions permitted under Article 16, fully apply in the digital under Article 16, fully apply in the digital environment, in particular to the use of performances environment, in particular to the use of performances and phonograms in digital form. It is understood that and phonograms in digital form. It is understood that the storage of a protected performance or phonogram the storage of a protected performance or phonogram in digital form in an electronic medium constitutes a in digital form in an electronic medium constitutes a reproduction within the meaning of these Articles”reproduction within the meaning of these Articles”

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WPPT -WPPT - Transmission of works inTransmission of works in digital networks digital networks (On-line transmissions)(On-line transmissions) The ‘Umbrella’ SolutionThe ‘Umbrella’ Solution

Articles 10 & 14 accord ‘the exclusive right of Articles 10 & 14 accord ‘the exclusive right of authorizing the making available to the public of authorizing the making available to the public of performances fixed in phonograms, and of the performances fixed in phonograms, and of the phonograms respectively, by wire or wireless means phonograms respectively, by wire or wireless means in such a way that members of the public may in such a way that members of the public may access them from a place and at a time individually access them from a place and at a time individually chosen by them’chosen by them’

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WPPT -WPPT - Transmission of works inTransmission of works in digital networks digital networks (On-line transmissions)(On-line transmissions) The ‘Umbrella’ SolutionThe ‘Umbrella’ Solution

Differs from WCT in that WPPT grants a specific Differs from WCT in that WPPT grants a specific right but, in identical manner with WCT, gives right but, in identical manner with WCT, gives freedom to C/Parties to implement it through freedom to C/Parties to implement it through introduction of this specific right or via other rightsintroduction of this specific right or via other rights

WCT includes this as a part of the right of WCT includes this as a part of the right of communication to the public but gives freedom to communication to the public but gives freedom to C/Parties to implement it via other rightsC/Parties to implement it via other rights

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WPPT - WPPT - Liability of Service and Liability of Service and Access ProvidersAccess Providers Although not expressly stated, it is clear Although not expressly stated, it is clear

that the principle contained in the Agreed that the principle contained in the Agreed Statement adopted with Article 8, WCT – Statement adopted with Article 8, WCT – the mere provision of physical facilities for enabling or making a communication does not in itself amount to a communication - applies - applies mutatis mutandismutatis mutandis to Articles 10 & 14 of to Articles 10 & 14 of WPPTWPPT

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WPPT - the Distribution RightWPPT - the Distribution Right

Identical to Article 6 of WCT for both Identical to Article 6 of WCT for both performances and phonogram producersperformances and phonogram producers

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WPPT - Remuneration for broadcasting WPPT - Remuneration for broadcasting and communication to the publicand communication to the public

““Performers and producers of phonograms shall enjoy Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the the right to a single equitable remuneration for the direct or indirect use of phonograms published for direct or indirect use of phonograms published for commercial purposes for broadcasting or for any commercial purposes for broadcasting or for any communication to the public” communication to the public” (Article 15, WPPT)(Article 15, WPPT)

Largely similar to Article 12, Rome ConventionLargely similar to Article 12, Rome Convention Difference – while Rome leaves it to national legislation to Difference – while Rome leaves it to national legislation to

grant right to performer, producer or both, WPPT requires grant right to performer, producer or both, WPPT requires that right must be granted to both, in the form of a single that right must be granted to both, in the form of a single remunerationremuneration

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WPPT - Technological measures of WPPT - Technological measures of protectionprotectionRights management informationRights management information

Similar to WCT provisionsSimilar to WCT provisions

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Effective Dates/AccessionsEffective Dates/Accessions

WCT (67 members as of 2008) WCT (67 members as of 2008) Came into force on 6 March 2002Came into force on 6 March 2002

WPPT (66 members as of 2008)WPPT (66 members as of 2008) Came into force on 20 May 2002Came into force on 20 May 2002

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Exceptions and LimitationsExceptions and Limitations

WCTWCT Article 1 to 21 Berne Convention. Article 1(4) and agreed statement Article 1 to 21 Berne Convention. Article 1(4) and agreed statement

(reproduction in the digital environment)(reproduction in the digital environment)

General exception: 3-step test. Article 10(1) and agreed statement: General exception: 3-step test. Article 10(1) and agreed statement: Existing exceptions can be kept or extended to the digital Existing exceptions can be kept or extended to the digital environment. New exceptions can be devisedenvironment. New exceptions can be devised

WPPTWPPT Exceptions to the rights granted under WPPT must follow 3-step test. Exceptions to the rights granted under WPPT must follow 3-step test.

ArticleArticle 16(2) 16(2)

Any other copyright exception that exists for copyright. Article 16(1)Any other copyright exception that exists for copyright. Article 16(1)

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Environments: Environments: Analog different from digital?Analog different from digital?

International Treaties do not extend or reduce the scope of International Treaties do not extend or reduce the scope of applicability of L&E permitted in the analog environmentapplicability of L&E permitted in the analog environment

Whether new exceptions are needed in the digital Whether new exceptions are needed in the digital environmentenvironment

Whether existing exceptions from the analog environment Whether existing exceptions from the analog environment remain appropriate in the digital environment, or need to be remain appropriate in the digital environment, or need to be restricted in some way in that environment restricted in some way in that environment

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Are existing exceptions still appropriate?Are existing exceptions still appropriate? News reporting, quotationsNews reporting, quotations Libraries and teaching purposes: Libraries and teaching purposes:

reproduction of material and communication reproduction of material and communication to the public and making available under to the public and making available under certain circumstancescertain circumstances

Private copying: quality of copies and Private copying: quality of copies and possibility of disseminationpossibility of dissemination

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3-Step Test as a common rule3-Step Test as a common rule

Article 9(2) Berne Convention, Article 13 TRIPS Article 9(2) Berne Convention, Article 13 TRIPS Agreement, Articles 10(2) WCT and 16(2) WPPTAgreement, Articles 10(2) WCT and 16(2) WPPT certain special casescertain special cases do not conflict with normal exploitationdo not conflict with normal exploitation do not prejudice the legitimate interests of right holdersdo not prejudice the legitimate interests of right holders

WTO Panel Decision, June 2000 (EU v. US)WTO Panel Decision, June 2000 (EU v. US)home- style exception regarding playing of radio or television home- style exception regarding playing of radio or television broadcasts of musical works in certain bars, restaurants and other broadcasts of musical works in certain bars, restaurants and other retail establishmentsretail establishments

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New Exceptions:New Exceptions:

Temporary electronic copies which occur as part of Temporary electronic copies which occur as part of the technical process of making Internet transmission.the technical process of making Internet transmission.

Caching and browsing: temporary reproduction Caching and browsing: temporary reproduction which occurs at the point of reception to enable the which occurs at the point of reception to enable the view of the accessed materialview of the accessed material

Making available of content in the premises of a Making available of content in the premises of a cultural institutioncultural institution

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SCCR 16 Brasil, Chile, Nicaragua and SCCR 16 Brasil, Chile, Nicaragua and Uruguay ProposalUruguay Proposal

Three areas of work:Three areas of work:

1.1. Identification, from the national intellectual property systems Identification, from the national intellectual property systems of Member States, of national models and practices concerning of Member States, of national models and practices concerning exceptions and limitations.exceptions and limitations.

2.2. Analysis of the exceptions and limitations needed to promote Analysis of the exceptions and limitations needed to promote creation and innovation and the dissemination of developments creation and innovation and the dissemination of developments stemming therefrom. stemming therefrom.

3.3. Establishment of agreement on exceptions and limitations for Establishment of agreement on exceptions and limitations for purposes of public interest that must be envisaged as a minimum in all purposes of public interest that must be envisaged as a minimum in all national legislations for the benefit of the community; especially to national legislations for the benefit of the community; especially to give access to the most vulnerable or socially prioritized sectors give access to the most vulnerable or socially prioritized sectors

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WIPO activitiesWIPO activities

Studies and meetingsStudies and meetings Studies on limitations and exceptions in the digital environment Studies on limitations and exceptions in the digital environment Information meetings on digital content for the visually impaired, Information meetings on digital content for the visually impaired,

libraries and educational useslibraries and educational uses DRM study on distance education and visually impairedDRM study on distance education and visually impaired

Technical legal assistance to developing countries Technical legal assistance to developing countries needs of countries / implementation of treaties needs of countries / implementation of treaties model law on copyright and related rightsmodel law on copyright and related rights

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Possible Future WorksPossible Future Works

Use and abuse of technological measures of protection, digital Use and abuse of technological measures of protection, digital rights management, and contract law rights management, and contract law

Privacy Privacy concerns: ISPs are often requested by right owners to concerns: ISPs are often requested by right owners to disclose information about users disclose information about users

Inadequate information for users: copy protection, Inadequate information for users: copy protection, interoperabilityinteroperability

Access to knowledge and public domain (orphan works)Access to knowledge and public domain (orphan works) Preservation of cultural heritage. Preservation of cultural heritage.

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Thank you!

Documents

1 Impact of New Technologies on Copyright and Related Rights: The WCT and WPPT WIPO Intermediate Interregional Seminar, Geneva, October 8 2008 Víctor Vázquez,