Towards WIPO Regional Seminars On Copyright Exceptions: Looking Out For Users

Twelve years after the first proposal on the topic, it’s time to speed up the discussion about the global copyright limitations and exceptions regime, advocates and officials said alongside negotiations at the World Intellectual Property Organization last week. And a key focus will be on regional meetings being planned by WIPO on the issue.

In the words Teresa Hackett of Electronic Information for Libraries (EIFL) used to introduce the civil society workshop which took place on 28 November:

“The documents we will shortly present build on proposals by member states, draw on evidence from the WIPO  commissioned studies as well as recent, relevant developments in national copyright laws. We hope that they can provide a useful starting point for regional discussions. We are at a key moment, with an opportunity to discuss the products of this work, and to test the proposals with regional stakeholders. The library, archive and museum, and education and research communities are looking forward to the regionals. We look forward to working together, with your support, towards an outcome that enables fair and equal access to knowledge and education for all.”

The side event took place in the context of the WIPO Standing Committee on Copyright and Related Rights (SCCR), which met from 26-30 November, and included substantive agenda items on limitations and exceptions. The side event entitled, “Advancing Text-Based Deliberations on Limitations and Exceptions: The Treaties on Education and Research Activities (TERA) and Libraries, Archives and Museums (TLAM),” was organised by the American University Washington College of Law, and was moderated by Luis Villaroel of Innovarte, Chile.

Prof. Sean Flynn of the American University Program on Information Justice and Intellectual Property presented the Civil Society Proposed Treaty on Copyright Exceptions and Limitations for Educational and Research Activities (TERA), underlining the purpose of providing a model instrument able to reflect the work that has been done and the existent proposals all in one.

“One main goal of a treaty in this area is the harmonisation of the exceptions because there is a great disparity in WIPO member states on the adequacy of exceptions for education and research activities in the digital age,” Flynn said. “Because of this, there are barriers to the cross-border sharing of works that are essential for achieving globalized standards for educational outcomes.”

“One way to overcome these barriers is to create and share open educational resources that can be used and adapted freely around the world,” he said. “But most of these materials are being created in the North, where there are more open exceptions, and cannot clearly be used in other countries where exceptions are more closed. To enable universal access to free and open content, we need a harmonised exceptions environment.”

According to Flynn, these aims can be reached in four ways: protecting limitations and exceptions from the three-step test, requiring specific exceptions, promoting balance in copyright systems and safeguarding cross border uses.

The first twelve of the nineteen articles of the so-called TERA are conceived to be operative provisions: Article 2 highlights that beneficiaries should not be institutions, but individuals. Article 3 shows clearly the duty to promote rights. Article 5 is a key point for the harmonisation purpose. Article 6 includes the important authorisation of cross-border uses of lawfully made content, based on the Marrakesh treaty [referring to the 2013 WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.]

“This is not a radical document; it is an achievable one. It is not intended to be final, but rather is a starting point for the next phase. It could be used in the regional seminars to adopt declarations or statements or purpose and adapted into a model law or other form. We offer our assistance to countries that want that move if further, including by tabling it in this committee for further consideration,” Flynn told the audience.

Jonathan Band of the Policy Bandwidth and Georgetown University in Washington, DC discussed principles for a treaty on Copyright Exceptions and Limitation for Libraries, Archives and Museums (or LAMs, as he called them).

“LAMs also have issues that cannot be resolved only at the national level and that’s why we are here, that’s why we are interested in working at the international level,” he said. “We welcome the [WIPO] General Assembly mandate to work towards a proper legal instrument concerning exceptions and limitations for LAMs. The committee also has begun drafting an instrument and we welcome the opportunity provided by the regional meetings to ensure that it is responsive to need of practitioners so the results are actually useful; it’s based on the proposals of many countries and groups and, in all of these different documents, there is a different level of generality.”

“We are shooting at something in the middle, in many ways we were inspired by the Marrakesh Treaty. The aim is to come up with an instrument which countries can adopt to facilitate the mission of LAMs,” Band explained.

The operative provisions are reflected in some principles which were handed out to meeting participants. In particular, there is a specific list of activities which need to be protected, such as preserving, advancing research by providing copies to researchers, lending works to users, translating, and making accessible copies for people with disabilities.

Batho Molapo of the Embassy of South Africa welcomed the information which came up from the studies and underlined the fact that most of the three objectives important for the African perspective – inquiry of the reasons, identification of the gaps and harmonisation – have already been done.

Priscilla Ann Yap from the Mission of Malaysia closed her statement on the importance of keeping the conversation going at all levels. “We are fully supportive of the idea of using the regionals to advance work on the SCCR because we would have a regional perspective and we could build more awareness among the regional stakeholders” she said.

Nikola Wachter of Education International focused her intervention on the cross-border issue. “Not enough has yet been done,” she said. “I, as a teacher, did collaborations across borders, but it wasn’t always clear what was possible and what not.”

“Bringing governments and teachers and IP experts together to discuss how we can actually make a contribution on the global level is important for us and we are happy to hear that governments are open to a concertation of all stakeholders,” Wachter said. “We look forward to engaging in discussions to identify what are the barriers and what are the success stories as well, to develop something to bring back here to contribute to achieving the goal of education.”

Stephen Wyber stressed the point of view of International Federation of Library Associations (IFLA). “Libraries have no interest in publishers and authors disappearing and vice versa,” he said. “We can coexist very happily working together to support literacy, the love for reading, the readers of the future.”

“There needs to be a solution for cross border use and it’s a fantastic opportunity that these meetings are coming up to show us what’s on the ground and what is holding us back, because let’s not kid ourselves, not everything is great today.” He also projected a view to the wider level, saying: “We know that cross-border research and collaboration produce high impact, we think this should be on the agenda of these meetings.”

Rina Pantalony of the International Council of Museums used the example of the disastrous recent burning of 90 percent of the collection of National Museum in Rio de Janeiro to highlight the importance of conservation of information.

“If they have been destroyed, there is no mean of preservation at this point, the real issue is in bringing together the body of research and information that exists … throughout the world with curators and other institutions on what the collection was about to let it continue existing in name, at least, in spirit,” she said. “We have to be in a position where we can start to aggregate and amass this without the impediment of copyright.”

“The matter of fact is that we can’t assume global good will,” Pantalony said. “We need to have a foundation that allows us to be able to undertake a preservation operation of this sort and so, from that perspective, I am really hoping that these regionals give us the opportunity to hear from people who do this work on the ground and to understand from their experience what it means to be working with cultural heritage.”

Jean Dryden of International Council of Archives (ICA) gave some tricks to a better understanding of the work of archives.

“The nature of archival material results in some particular copyright challenges for archivists,” she said. “Without exceptions, archivists cannot make copies for preservation or for our users’ personal research and private study.”

“We also need an exception to make the millions of orphan works in our holdings available for research and cross-border issues demand an international solution,” said Dryden. “Licensing is not the answer. Archives need exceptions, exceptions that pose very little risk to rights holders due to the nature of archival material,” she stated.

She also added three points that the ICA wants to see a year from now: “Measureable output, such as the adoption of the statement of principles on which to base further textual work; a draft text setting out the terms of a binding international instrument, and a clear process for achieving a global mandatory set of exceptions that will enable archives, libraries, and museums to fulfil their missions.”

 

Image Credits: Beatrice Marone