Sean Flynn, Director, Program on Information Justice and Intellectual Property

July 16, 2024

A technical legal dispute has arisen in WIPO in relation to the number of meetings that should be held of the Standing Committee on Copyright and Related Rights (SCCR) and who has the power to make this decision. The Secretariat and its legal counsel have implied that it is for the Director General to decide the number of meetings convened by each committee. WIPO’s legal instruments and past practice of the Standing Committee on Copyright and Related Rights support the view that it is for the Members of WIPO, not the Secretariat, to decide on the number and substance of the meetings of all subsidiary bodies of the General Assembly, such as the SCCR.  

Rejection of Member Decisions on SCCR Meetings 

The dispute has its genesis in the meetings held after the resumption of normative work after COVID. At SCCR 42, May 9-13, 2022, the Chair’s Summary reflects: “Committee agreed to hold two regular sessions of the SCCR in 2023.”¹ But the Secretariat did not schedule two meetings, suggesting that it believed that it was its decision, rather than the Committee’s, as to how many meetings to have. The issue was debated in SCCR 43, and the Committee again decided to have two meetings, but that “[o]n an exceptional and non-precedential basis, the Committee should meet for three days instead of five and the time should be allocated as follows.”²

At this year’s General Assembly, the Group of Latin American and Caribbean Countries proposed a decision to “recommend the reestablishment of two sessions of the SCCR from 2025.” GRULAC described its proposal only to “recommend,” not decide, on the number of meetings in deference to an interpretation that “under the [WIPO] rule of procedures, … the Director General decides the calendar for sessions.” 

The GRULAC proposal was supported by the African Group and Asia Pacific Group, representing a majority of WIPO members. But in response to a question by Botswana about why the decision was a recommendation rather than a mandate, the Secretariat’s legal counsel stated: 

“I would just recall for Delegations that the WIPO general rules of procedure do indeed provide and vest the authority in establishing the date of sessions, their duration and their place by the Director General who does so in full consideration of the full WIPO calendar of meetings for any given year and sends out the convocation letters of invitation accordingly subject to the timeline provided in the rules of procedure.”

The implication of the Secretariat’s refusal to schedule a meeting called for by the Committee and the legal counsel’s resistance to a GA decision on the number of the SCCR meetings is that the Director General, rather than the members, has the power to decide how meetings a Committee has. This interpretation does not comport with the plain language of the applicable WIPO Rules or past practice.

WIPO Rules

WIPO Convention

The rules of WIPO are ultimately traced to the WIPO Convention, which defines the General Assembly of member states as its core decision making body with broad authority to exercise “appropriate” functions, and to create its own rules of procedure. 

Article 6, General Assembly

(2) The General Assembly shall:

…

(x) exercise such other functions as are appropriate under this Convention. 

…

(6) The General Assembly shall adopt its own rules of procedure.

General Rules of Procedure

The Rules of Procedure adopted by the General Assembly contain the language cited by the legal counsel delegating to the Director General the power to set the “dates and place” of meetings. But this language does not mention the frequency of meetings. Indeed, language not cited by the legal counsel implies that the Director General must respond to a “request”: 

Part II: Bodies of WIPO and of the Unions

Chapter I: Preparation of Sessions. Agenda

Rule 3: Dates and Place of Sessions

(1) The opening date of each session, its duration and place shall be fixed by the Director General.

(2) The opening date fixed for an extraordinary session must not be more than four months after the day on which the Director General has received the request to convene that session, except where the author or authors of the said request express their willingness to accept a later date.

While it is clear that the Director General has the authority to schedule the specific dates and places of meetings, how many meetings a committee has is not within their exclusive competence. Indeed, Rule 3(2) makes clear that the Director General “must” schedule dates for an extraordinary session (any meeting other than the once a bi-anum required by the Convention) upon “request” of the “author or authors of the said request.” 

The Rules of Procedure also make clear that committees of the General Assembly have the power to set their own rules of procedure:

Rule 45: Entry into Force and Amendment of Special Rules of Procedure

(1) The special rules of procedure of each body shall enter into force on being adopted by that body.

(2) Each body may amend its own rules of procedure.

And finally that the GA or any subsidiary body may amend its rules:

Part IV: Final Provisions

Rule 56: Amendment of General Rules of Procedure

(1) These General Rules of Procedure may be amended, as far as each body which has adopted them is concerned, by a decision of that body, provided that the said decision is taken as far as possible in joint meeting and that the said body accepts the amendment according to the procedure laid down for amendment of its own rules of procedure.

(2) Any amendment to these General Rules of Procedure shall enter into force for each body which has adopted these General Rules of Procedure when that body has accepted the amendment.

Special Rules of Procedure of WIPO Standing Committees

There are also published Rules of Procedure for each Standing Committee, including the SCCR. The Introduction to the Rules define all Standing Committees as subsidiary bodies and make clear that the General Rules of Procedure adopted by the GA apply unless there are specific rules of the Committee on the issue:

As a default rule, The General Rules of Procedure of WIPO apply, as far as possible, to the subsidiary bodies of WIPO which include the WIPO Committees.[1]  However, the subsidiary bodies may create their own Special Rules of Procedure, as provided by Rules 1.1 and 45.2 of the General Rules of Procedure of WIPO.

The Special Rules of Procedure for the Standing Committee on Copyright and Related Rights do not contain rules on the number or scheduling of meetings, and make clear that “Subject to the following Special Rules of Procedure, the General Rules of Procedure of WIPO shall apply to the Standing Committee on Copyright and Related Rights.”

Past Practice

The most logical interpretation of the Rules of WIPO cited above is that the GA or the Standing Committee, both of whom have power to set and amend the procedures for the Committee, may decide how many meetings to have. It is for the DG to then set the time and place of those meetings within a 4 month window of the request. This interpretation is consistent with the practice of WIPO and the SCCR. 

Establishment of SCCR 

When the GA established the SCCR, it decided the number of meetings on various topics that the Committee should have. The first report of the SCCR notes that “[t]he Assemblies of the Member States of WIPO and the Unions administered by WIPO … approved the Program and Budget for the 1998-99 biennium … in which a proposal for the establishment of ‘Standing Committees,’” including the SCCR, was contained. Activities of the SCCR that were envisaged in the proposal approved by the GA included specific numbers of meetings on various topics, including: 

10.2–Protection of Audiovisual Performances: Two or three meetings

…

10.3–Protection of Databases: Two or three meetings

…

10.4–Protection of the Rights of Broadcasting Organizations: Two or three meetings

…

10.5–Copyright, Related Rights and Digital Technology: One or two sessions of the Standing Committee on Copyright and Related Rights over the biennium³

Authorization of Diplomatic Conference on Broadcast Treaty

The 2006 GA authorization of a Diplomatic Conference on the Broadcast Treaty called for “[t]wo special sessions of the Standing Committee on Copyright and Related Rights to clarify the outstanding issues will be convened, the first one in January 2007, and the second one in June 2007 in conjunction with the meeting of the preparatory committee.”⁴

Conclusion

The Secretariat and its legal counsel’s implied argument that the Director General and Secretariat may disregard mandates of the Member States on the number of meetings held by a standing committee appears flawed. WIPO’s legal instruments and past practice of the Standing Committee on Copyright and Related Rights support the view that it is for the Members of WIPO, not the Secretariat, to decide on the number and substance of the meetings of all subsidiary bodies of the General Assembly, such as the SCCR.

1. Standing Committee on Copyright and Related Rights Forty-second Session Geneva, May 9-13, 2022, Para 9.
   www.wipo.int/edocs/mdocs/copyright/en/sccr_42/sccr_42_summary_by_the_chair.pdf ↩︎
2. Standing Committee on Copyright and Related Rights Forty-Third Session Geneva, March 13 to 17, 2023, para 25
   www.wipo.int/edocs/mdocs/copyright/en/sccr_43/sccr_43_summary_by_the_chair.pdf (“At SCCR/42, the Committee agreed that there should be two regular SCCR sessions during 2023, and this was reported in the Chair’s Summary (SCCR/42/Summary by the Chair).  However, for a variety of reasons, only one session was scheduled in the WIPO calendar.  At SCCR/43, some member states expressed concern with only having one SCCR session in 2023 and requested that a second session be scheduled in the latter half of the year to respect the outcome of SCCR/42.  The Committee agreed that there should be a second session of the SCCR (SCCR/44) during the week of November 6, 2023.  The Secretariat has indicated that the Committee could be accommodated during that week.  On an exceptional and non-precedential basis, the Committee should meet for three days instead of five and the time should be allocated as follows: The time on the first two days should be divided equally between broadcasting and limitations and exceptions after the handling of preliminary, administrative agenda items.  The third day should be devoted to other matters, specifically copyright in the digital environment.”). ↩︎
3. Standing Committee on Copyright and Related Rights First Session Geneva, November 2 To 10, 1998 https://www.wipo.int/edocs/mdocs/copyright/en/sccr_1/sccr_1_2.pdf ↩︎
4. WO/GA/33/10, Para. 107 https://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_33/wo_ga_33_10.pdf  ↩︎