Jonathan Band and Sean Flynn[1]

39 education and research organizations, including the 30 million members of Education International, are calling upon the World Intellectual Property Organization to adopt a Treaty on Copyright Exceptions and Limitations for Educational and Research Activities (TERA). TERA is open for endorsement by organizations and individuals.

The Treaty was adopted at the Global Congress on Intellectual Property and the Public Interest on September 27, 2018, and released in revised form this week. The Treaty is the result of extensive consultation with numerous Member States and stakeholders in the education and research field, including at multiple workshops around the world.[2]

Objectives – Promoting Harmonization of User Rights in the Public Interest

A core goal of the treaty is to promote harmonization in the provision of copyright exceptions to promote research and education.  In too many countries, and especially in developing countries, copyright exceptions have not been updated to apply to the full scope of works and activities that are needed for education and research in the digital age.[3] For example, in many countries, restrictions within education or research exceptions on the types of work, user, activity or purpose of the use fail to enable common educational and research activities like streaming a video off the Internet to a class or research group, or sharing reading material over a digital network.[4] The lack of digital exceptions locks learners and researchers in many countries in an analog world.[5]

The Treaty also seeks to lower barriers to cross-border sharing of educational and research materials. A compilation of reading or research materials that is lawfully produced in one country may not be lawfully consumed in another because of the different exceptions environments.[6]

What is in TERA?

The core of the treaty is a duty to permit the use of a copyrighted work for educational or research purposes to the extent justified by the purpose, provided that such utilization is compatible with fair practice. This formulation is derived from Article 10(2) of the Berne Convention, which permits – but does not require – “utilization, to the extent justified by the purpose of literary works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.”[7] The Treaty would convert the Berne Convention permission to a duty.

Paragraph 2 of Article 5 then provides a non-exhaustive list of uses that fall within the scope of paragraph 1. It is understood that these uses are subject to the requirements of Paragraph 1; that is, a use is permitted only to the extent justified by the educational or research purpose, and only provided that the use is compatible with fair practice.

Paragraph 2 identifies four categories of uses: uses in the course of teaching activities; uses in the course of learning activities; use in the course of creating educational materials; and uses in the course of research activities. Within each category, TERA further identifies examples of permitted uses.

Another core provision in the Act would require that if an educational or research material is made under a limitation or exception or otherwise pursuant to operation of law in one country, that material may be distributed or made available in other Contracting Parties. This provision is based on Article 5(1) of the Marrakesh Treaty.[8]

More information on the Treaty, including the link to endorse the Treaty, is available at http://infojustice.org/tera

FOOTNOTES

[1] Jonathan Band and Sean Flynn serve as counsel for the Education and Research Coalition – the coalition of organizations that have endorsed the Treaty on Education and Research Activities.

[2] Consultations on TERA included: Research Workshop on Creation and User Rights in the Digital Economy, Rio de Janiero, Brazil (April 4, 2017); WIPO Delegate Workshop on Copyright and Access to Education, South Centre, Geneva (May 1, 2017); CopyCamp Research Workshop, Poland (September 29, 2017); Copyright & Education in the Digital Environment: Challenges & Opportunities, WIPO SCCR, Geneva (November 13, 2017); Education Treaty workshop, KEI, Washington DC (February 23, 2018); Education Treaty Workshop, South Centre, Geneva (April 14, 2018); Friends of Education and Research Delegate Workshop, South Centre, Geneva (July 6, 2018); User Rights Network Pre-Congress Workshop – International Copyright Law, American University, Washington DC (September 25, 2018).

[3] See Sean Flynn and Mike Palmedo, The User Rights Database: Measuring the Impact of Copyright Balance (December 4, 2017) http://dx.doi.org/10.2139/ssrn.3082371 (describing developing countries as approximately 30 years behind wealthy countries in the adopting copyright exceptions that are open to digital works and activities).

[4] See Teresa Nobre, Copyright and Education in Europe: 15 everyday cases in 15 countries (April 2017) (mapping disparities in EU exceptions).

[5] Cf. Sean Flynn and Mike Palmedo, The User Rights Database: Measuring the Impact of Copyright Balance (December 4, 2017) http://dx.doi.org/10.2139/ssrn.3082371 (finding that countries with exceptions that are open to more digital uses produce more works of cited scholarship).

[6] See Teresa Nobre, Educational Resources Development: Mapping Copyright Exceptions and Limitations in Europe – Working Paper (July 2014).

[7] See WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971), WIPO Publication No. 615(E) (1978) at 58-59 (explaining that the concept of fair practice “implies an objective appreciation of what is normally considered admissible. The fairness or otherwise of what is done is ultimately a matter for the courts, who will no doubt consider such questions as the size of the extract in proportion both to the work from which it was taken and that in which it is used, and, particularly the extent to which, if any, the new work, by competing with the old, cuts in upon its sales and circulation, etc”).

[8] Marrakesh VIP Treaty, supra note 16, Art. 5(1) (“if an accessible format copy is made under a limitation or exception or pursuant to operation of law, that accessible format copy may be distributed or made available by an authorized entity to a beneficiary person or an authorized entity in another Contracting Party”) and Art. 9(1) (“Contracting Parties shall endeavor to foster the cross-border exchange of accessible format copies…”).