New Proposals At WIPO Show Global Debate On Limitations And Exceptions To Copyright

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New proposals for a text put forward today at the World Intellectual Property Organization copyright committee show the state of the global debate over limitations and exceptions to copyright for education and research.

As indicated at yesterday’s opening of the eight-day meeting (IPW, WIPO, 16 July 2012), several proposals came forward today intended to provide the basis for a text that eventually would end up as treaty language on limitations and exceptions for educational and research institutions.

The 24th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting from 16-25 July.

The WIPO secretariat this morning circulated a draft compilation of proposals to date [pdf] on limitations and exceptions for educational and research institutions. This includes an existing proposal by the African Group, SCCR/22/12, and other proposals tabled today.

A proposal by Ecuador, Peru and Uruguay was circulated this morning as document SCCR/24/6, and is available here [pdf].

A separate but complementary proposal by Brazil was also circulated, as document SCCR/24/7, available here [pdf].

Key issues being addressed in the proposals and at the meeting are the application of the internationally recognised “three-step test” for copyright, and technological protection measures used to control use of copyrighted works.

“[C]onsidering the importance of ensuring that the international system of copyright and related rights is developed in balance with fundamental human rights such as access to education, it should be pointed out that the international framework does not prevent that relationship from being considered when interpreting the rights and flexibilities contained in the system, in particular, with regard to the so-called “three-step test,” the Ecuadoran proposal says.

The European Union yesterday said that it is the norm in international instruments for the three-step test to apply to all limitations and exceptions. It appears in Art. 13 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Art. 10 of the WIPO Copyright Treaty, Art. 16 of the WIPO Performances and Phonograms Treaty (WPPT), and Art. 9.2 of the Berne Convention for the Protection of Literary and Artistic Works. The EU makes all limitations and exceptions subject to the three-step test under its Information Society Directive, 2001/29/EC, the delegate said. Others, such as the African Group and non-governmental groups focussed on access to knowledge, argue this point.

On technological protection measures, a developing country official told Intellectual Property Watch: “TPMs can prevent people who are beneficiaries of limitations and exceptions from accessing the content. They have to ask permission to circumvent” the measures.

Changes have already been suggested to the secretariat draft compilation by member states.

Ecuador asked in plenary that the proposal title on page 17 of the compilation be changed from “Interpretation of the three-step text [sic]” to: “Scope of three-step rule.”

For instance, Egypt on behalf of the African Group asked to add two clusters. One on computer programmes based on Article 16 of its existing proposal SCCR/22/12, and the other a new one on limitations on remedies for infringement.

The text of the African remedies proposal is available here [pdf].

The European Union suggested to include national experiences in the document as well. It also asked for more clarification on the meaning of the cluster titles, and said some topics go beyond the scope of work on this topic, such as contracts, withdrawn works, and translations.

Pakistan offered more new clusters. One would say: “Strengthening of existing flexibilities and introduction of new flexibilities in the copyright system to ensure access to textbooks and educational materials at affordable prices.”

The other would be “Access to publicly funded scientific research.”

The African Group supported this and asked that the title of the entire compilation document be changed to include reference to “people with disabilities,” and the deletion of libraries and archives from the definition, as they are addressed in a separate text before the committee. The United States suggested a discussion on the document title should be held in a regional coordinators meeting to avoid long plenary discussions over wording.

The African Group also proposed a new chapter for the draft compilation document on limitations and exceptions for persons with disabilities, to include Arts. 5 through 9 of their proposal SCCR/22/12.

Nigeria also asked for additions to the compilation text.

William New may be reached at wnew@ip-watch.ch.

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Comments

  1. says

    Article from the above Proposal by Ecuador et al:

    INTERPRETATION OF THE THREE-STEP TEXT
    ARTICLE 2
    When applying either Article 9.2 Berne, 13 TRIPS, 10 WCT, or similar provision in any
    other multilateral treaty, nothing prevent contracting parties to interpret the three-step test in a manner that respects the legitimate interests, induding of third parties,
    denying from educational and research needs, and other human rights and fundamental freedoms; and other public interests, such as the need to achieve scientific progress and cultural, educational, social, or economic development,
    protection of competition and secondary markets.

    From Paragraph 6 of the 2008 Max Planck Inbst. / Munich Declaration:

    The Three-Step Test should be interpreted in a manner that respects the legitimate interests of third parties, including

    - interests deriving from human rights and fundamental freedoms;

    - interests in competition, notably on secondary markets; and

    - other public interests, notably in scientific progress and cultural, social, or economic development.

  2. says

    From the above mentioned document SCCR 24/6 (e):

    “Likewise, considering the importance of ensuring that the international system of copyright and related rights is developed in balance with fundamental human rights such as access to education, it should be pointed out that the international framework does not prevent that relationship from being considered when interpreting the rights and flexibilities contained in the system, in particular, with regard to the so-called ‘three-step test’.”

    From the WTO document Overview: the TRIPS Agreement —

    “Article 13 requires Members to confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a
    normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. This is a horizontal provision that applies to all limitations and exceptions permitted under the provisions
    of the Berne Convention and the Appendix thereto as incorporated into the TRIPS Agreement.

    The application of these limitations is permitted
    also under the TRIPS Agreement, but the provision makes it clear that they must be applied in a manner that does not prejudice the legitimate
    interests of the right holder.”

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