The last in a series of World Intellectual Property Organization regional seminars on copyright limitations and exceptions concluded with broad agreement that exceptions in Latin America are inadequate to cater to the needs of education and research in the digital world, including through the work of libraries, archives and museums, according to participants. But complaints continued from beneficiary communities that the discussion in the seminars was steered away from the topic of how international law could help remedy the problems identified.
The final WIPO seminar on Libraries, Archives, Museums, and Educational and Research Institutions in the Field of Copyright, this one for the Latin American and Caribbean Group, was held 4-5 July in Santo Domingo, Dominican Republic.
Like the two regional meetings (Asia, Africa) that preceded it in recent weeks, the general conclusion of the seminar was that copyright law in much of the world has failed to keep up with the needs of the digital age, according to participants.
Copyright holders have generally taken the position that national laws, collecting societies and licensing practices are sufficient to address concerns in countries. Education and research advocates, including libraries, archives, teachers and others argue that there is sufficient evidence to show that action is needed at the international level, and that it should be led by WIPO.
“We have underlined the unique potential of WIPO not only in setting an example for governments worldwide, but also in making it possible for libraries to work across borders,” the International Federation of Library Associations and Institutions (IFLA) said in a report on the Santo Domingo event.
IFLA highlighted a study discussed at the event that showed that “six out of 33 countries in the region have no exceptions at all for libraries.” Even when exceptions exist, they reported, “they are often not adapted to the digital world.”
In Santo Domingo, library representatives highlighted “many examples of where neither licensing nor current laws could offer a solution to their needs,” IFLA said.
Several participating countries, including Ecuador, Paraguay, Uruguay and Cuba, mentioned the need for international action on limitations and exceptions to copyright at WIPO, according to sources. A number of other countries stressed the need for action to support libraries and other institutions, IFLA said.
“From the view of civil society, the outcome [of the Dominican Republic meeting] is supportive for an international instrument,” one participant said. “But how the event was organized was not clear, and the terms of reference did not help countries determine if an international instrument was a good solution.”
It will likely be reported that member states shared the current status of their copyright laws, and most of them presented gaps with regard to copyright exceptions for educational institutions, libraries, museums and other institution, the participant said. Some member states expressly stated that an international instrument is needed as the most effective way to address these needs, the source said. Several member states also expressed their understanding of the importance of licensing solutions. But if the intent of the seminars was to kill the discussion of international instruments, said the participant, “it did not happen.”
Participants in the seminar included copyright office officials, copyright industry representatives, librarians, university representatives, NGOs and others. The seminar was preceded by a private meeting of copyright office heads with rightsholders and collecting societies, according to sources, who said it gave them unique one-on-one time with officials and may have contributed to a significantly higher representation of rights holders at the seminar that followed.
“It was hard to believe it was a coincidence” that the two meetings were held back-to-back, an NGO source said. One library representative was allowed to participate in portions of the heads of copyright offices event, the source added.
Concerns were raised by libraries and others on the user side of copyright after the first two seminars in Singapore and Nairobi earlier this summer, about an over-emphasis on copyright holders’ interests in the meetings. This concern continued in the Dominican Republic.
Some of the seminar groups spent most of the time asking questions of the experts, but not to member states about their need for an international instrument or other solutions, the participant said.
There was discussion of the current status of the national laws, but not about the implications or about solutions, the participant added.
“It appeared the design of the meeting was not whether an international instrument is good or not, but to highlight national law and the use of licensing,” the source said. “It was not clear how it would match the objectives” of the WIPO copyright committee that approved the seminars.
In addition, questions were raised about the correlation of what was discussed in the meeting and what was reported by the rapporteur.
“At least four countries made specific reference to the need for an international instrument and in the end there was no mention of this,” the source said.
According to sources, chairs were instructed that the purpose of the meeting was not to discuss international instruments. This could not be confirmed with WIPO.
Discussions suggested that countries do not fully know their own laws regarding limitations and exceptions, but a common refrain at the event was the sense of a need to “strengthen” national copyright laws, a source said.
The WIPO press office confirmed receipt of a request for comment for this article but declined to respond further, providing no experts to talk about the seminars by press time.
The Brussels-based International Federation of Reproduction Rights Organizations (IFRRO) was among the groups participating in the seminar and has agreed to speak with Infojustice.org about the event, but the expert had not responded by press time. The International Publishers Association said it was unable to respond in time due to holidays.
Background
According to sources, nearly 20 countries were present at the Dominican Republic seminar, which was the third of three seminars agreed to by the WIPO Standing Committee on Copyright and Related Rights (SCCR) at their 38th session from April 1-5, 2019. (Note: the report from the 38th session still is not available on the WIPO website.)
The results of the seminars are expected to feed into a conference on “Libraries, Archives, Museums and Educational & Research Institutions in the Field of Copyright” on October 18-19, though the WIPO conference webpage does not appear to list it on the agenda.
The conference will be followed immediately by the next session of the SCCR, from October 21-25. The WIPO webpage for the October SCCR 39th session did not yet contain any documents as of press time.
A description of the seminars was set out in an SCCR action plan from the 36th SCCR session in June 2018 (SCCR36/7) for the period through the 39th SCCR session to take place in October. It stated:
“Conduct up to three regional seminars where possible associated with other planned regional activities, upon request, with SCCR Members and stakeholders. The objective would be to analyze the situation of libraries, archives and museums as well as educational and research institutions[1], and areas for action, with respect to the limitations and exceptions regime and the specificities of the region.”
The Santo Domingo seminar began with a “scene-setting” panel, led by WIPO Deputy Director General for Copyright and Creative Industries Sylvie Forbin. The panel featured four speakers from Europe and the US: Kenneth Crews, a copyright lawyer and scholar (US); David Sutton, director of research projects at the University of Reading Library (UK); Yaniv Benhamou, an intellectual property lawyer and lecturer (Switzerland); and Raquel Xalabarder, an intellectual property professor at Universitat Oberta de Catalunya (Spain).
The meeting then split into four parallel working groups with the instruction to “hold discussions and identify challenges and opportunities in their region regarding the various limitations and exceptions at stake.” Representatives from observer groups from other regions, international organizations, and nongovernmental organizations were allowed to take part.
Chairs were pre-selected for each working group. Argentina was chosen to chair the Central America and Caribbean group despite not being from the region, a move seen by some NGOs as related to Argentina’s resistance to an international instrument.
The working groups concluded with participants preparing reports through their chairs and rapporteurs, who presented the reports and proposals on their behalf, moderated by WIPO’s Forbin. Views and advice were then given by the four presenters from the opening panel.
In the discussion among chairs, licensing was mentioned despite not having been discussed in the groups, a participant said.
The closing ceremony included final remarks by WIPO’s Forbin and Trajano Santana of the Dominican Republic Copyright Office.
