The 39th Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) concluded with measured progress on the agenda to discuss international instruments on limitations and exceptions amid increasing controversy over the management of the Committee.

The Committee resolved to request a report from the SCCR Secretariat on the results of a year of regional seminars and an international conference on limitations and exceptions called for by the 37th meeting of the Committee. The Committee also resolved to complete a work plan on the topic at the 40th SCCR. But there were continued expressions of discontent from many limitations and exceptions beneficiaries about a process described as flawed.

A Brief History

The limitations and exceptions agenda in the SCCR dates to the 12th SCCR in 2004 in response to a proposal by Chile for a standing agenda item on “the subject of exceptions and limitations to copyright and related rights for the purposes of education, libraries and disabled persons.”

Chile originally proposed three strands of work (1) “identification . . .  of national models and practices concerning exceptions and limitations”; (2) “analysis of the exceptions and limitations needed to promote creation and innovation”; and (3) “establishment of agreement on exceptions and limitations for purposes of public interest that must be envisaged as a minimum in all national legislations.” (Proposal By Chile on the Analysis of Exceptions and Limitations, SCCR 13/5)

In the intervening years, outputs of the agenda have included instruments and reports in each of the categories of Chile’s original proposal. Several studies, and most recently a set of “typologies” have analyzed models and practices of limitations and exceptions. The SCCR also produced one binding international instrument – the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

Following the passage of the Marrakesh Treaty, the work of the SCCR on limitations and exceptions continued in accordance with the 2012 WIPO General Assembly mandate to consider “instruments (whether model law, joint recommendation, treaty and/or other forms)” to promote the needs of libraries, archives, museums, education and research. (UN Doc. WO/GA/41/14, Aug. 13, 2012) 

Work of the SCCR under the General Assembly’s 2012 mandate has been subject to considerable division. The Group B countries, including the EU and US, have been opposed to work toward binding international instruments. Often times, that resistance has impeded progress on the Committee toward anything other than sharing national experiences. See Libraries Face Off Against Publishers and the European Union at WIPO, https://www.eff.org/deeplinks/2014/12/libraries-face-against-publishers-and-european-union-wipo (reporting that the EU opposed even work on US proposed non-binding “objectives and principles”).  In part to break the deadlock, the 37th SCCR adopted the Action Plans on Limitations and Exceptions Through SCCR /39.

SCCR 37 Action Plans

The Action Plans on Limitations and Exceptions agreed to a year of intersessional activities “based upon and built upon the prior work of the Committee and existing SCCR documents and [  ] intended, without prejudging the final outcome, to provide the Committee with suggestions and possible areas for international cooperation to be discussed at SCCR/39.”

The Action Plans called for a series of regional seminars “to analyze the situation of libraries, archives and museums as well as educational and research institutions, and areas for action, with respect to the limitations and exceptions regime and the specificities of the region.” Following the seminars was to be an international conference “to consider the opportunities and challenges provided by various international solutions including soft law, contractual/licensing and normative approaches, as appropriate.”

The seminars were conducted in Singapore, Nairobi, Kenya, and Santo Domingo, Dominican Republic, between May and July 2019. While the seminars helped focus where there is most need and will for international instruments on limitations and exceptions,they also encountered what were perceived as obstruction in their organization.

A Solid Start in Singapore

All three seminars heard from a wide range of stakeholders and beneficiaries that identified particular problems with copyright restrictions that can impede the preservation and public access work of cultural institutions as well as the cross border sharing and digital use of works in libraries, archives and museums, as well as for education and research purposes. 

The first seminar in Singapore was unique in concluding that international instruments were needed to address the problems identified.  According to a report of the meeting by the International Federation of Library Associations and Institutions (IFLA), three of the four breakout groups of member state representatives in Singapore recommended “that an international legal instrument should be part of the package of work to be undertaken by WIPO,” and the “fourth, while not mentioning international work, nonetheless welcomed greater support to national policy making.” (A Solid Start: Asia-Pacific Government Representatives Stress Need for International Action for Libraries at Singapore Workshop, May 1, 2019)

Restricted Progress in Nairobi and Santo Domingo

The conclusions of the Singapore Seminar led to a backlash. According to knowledgeable sources, the Singapore Government received complaints about the Seminar and its endorsement of further international instruments. The next seminar, held in Nairobi, showed signs that the organizers were acting to restrict the ability of the future seminars to emerge with similar endorsements of international action. 

According to a letter of complaint sent to WIPO Director General Francis Gurry by a coalition of beneficiary organizations, the Nairobi seminar’s organization “interfered with the ability of member states to discuss the shape of an international legal instrument (in whatever form) as a response to the challenges, as mandated by the General Assembly in 2012 (WO/GA/41/14).” 

The beneficiary organizations complained that the Regional Seminar in Nairobi was preceded by a WIPO-sponsored regional meeting for the heads of African copyright offices (WIPO/HCR/NBO/19). Eighteen representatives of rightsholder organisations were invited to attend the pre-meeting and many spoke on organized panels; only one representative of limitations and exceptions beneficiaries was present, and in a non-speaking role. 

The organizations also complained of additional efforts to prevent discussions of international instruments as solutions to the problems identified. The letter to Gurry complained:

At least one working group chairperson did not permit discussion of an international solution, despite the objective of the regional seminars to explore ‘areas for action’, agreed by Member States in the Action Plans, and the 2012 mandate. 

A similar process of obstruction was described at the July seminar in Santo Domingo. According to beneficiary organizations, the Santo Domingo Seminar was also preceded by a meeting of copyright officials at which there was insufficient participation of limitations and exceptions beneficiaries. And also in Santo Domingo, the views of countries and observers on international solutions were either silenced or not recorded. See William New, Final WIPO Exceptions Seminar Endorses Exceptions, But Leaves Stakeholders Complaining. (Aug 19, 2019),  

Despite the process objections, all three seminars provided strong support for a common set of findings about problems facing libraries, archives, museums, education and research throughout the three regions. On the one hand, the seminars all discussed an acute lack of rights to accomplish preservation aims at a time when many analogue sources — such as tape files – are nearing the end of their life, punctuated by prominent examples, such as the Brazil museum fire, that have consumed entire national collections. On the other hand, the seminars all identified general problems with a lack of cross-border and digital rights, with the result that many online and distance learning and cross border research projects are legally impossible.

International Conference

The experiences with control of seminar outcomes stoked concern by beneficiary groups that the international conference may be impeded in its objective “to consider the opportunities and challenges provided by various international solutions including soft law, contractual/licensing and normative approaches, as appropriate.” This fear was compounded when the initial panels for the conference were released. 

The panels for several of the subjects were dominated by rights holders and collective management organizations. On the Education and Research panel, for example, the initial panel proposed five publishers, one licensing consultant, and only one educator and one academic. Another letter of complaint to the Director General of WIPO led to more beneficiaries — but also more publishers — being added to panels. 

Many of the panels appeared design to prioritize licensing over exceptions solutions. The final panel on libraries, for example, featured three panelists from Nordic countries, which have strong traditions of extended collective licensing. There was only one panelist from Africa, none from Asia or Latin America, and the only panelist from the Caribbean region works for a collective management organization.

During the conference, there was very little discussion of the pros and cons of different international instruments. None of the panel participants were asked to opine on international solutions. A final panel to discuss the way forward included two contributions of international lawyers who outlined different kinds of international instruments that WIPO could use to promote harmonization of exceptions. But these interventions were not summarized or otherwise discussed beyond their individual presentations. 

When DDG Forbin reported back on the results of the conference to SCCR, she mentioned the promotion of licensing solutions and the work of collective management organizations four times. Her only mention of possible international instruments was to opine: “the search for solutions could be at national, sub-regional, regional, and international levels and consideration could be given to developing instruments appropriate at those levels.” 

When describing possible future work of WIPO, she summarized the results of the conference as being that:

WIPO should ensure the provision of legislative and technical assistance and enhance the legislative capacity of Member States, in particular, for cross-border uses and the establishment of balanced copyright laws.

WIPO should develop a range of tools such as models, recommendations, guidance, handbooks, and toolkits, among others, containing information on licensing options as well as on limitations and exceptions.

An unofficial transcript of DDG Forbin’s comments is here.

SCCR 39

SCCR 39 began with opening statements of many countries promoting international action to address the widespread acknowledgment of lack of sufficient exceptions for public interest activities throughout the world. Many countries proposed various forms of international action that could be taken other than a binding international instrument, which Group B countries oppose. 

Indonesia and some other countries spoke especially forcefully in favor of a robust “resolution” of the SCCR that could be something less than a binding treaty but still express a broad will to act by the Committee. The Indonesian delegate described the potential for a process similar to the sustainable development goals (SDGs) — a non-binding (soft-law) process that created significant international awareness. 

Other countries proposed an agenda to begin work on international instruments without a decision on what ultimate form — binding or non-binding – the instrument might take. The African Group, for example, promoted an agenda to “discuss the elements of an international instrument in whatever form. . . . . It could be a joint recommendation, it could be model law, it could be a treaty.”

Notably, there appeared to be some slight movement in the positions of the EU and other Group B countries that had been blocking work on the committee. The EU focused their statements on their resistance to “binding” international instruments, but there appeared be a lowering of any objection to discussing other forms of guidance. They no longer appear to be opposed, for example, to discussing the US “objectives and principles” and expressed openness to supporting a WIPO “tool kit” and other forms of “guidance.”

Restricted Ambition in Chair’s Proposal for Next Steps

The guarded optimism in the limitations and exceptions beneficiary community broke the afternoon of the first day when a leaked document titled “Proposal on Next Steps for Agenda Items 5 and 6” began circulating among observers. 

The Next Steps proposed to “Amend agenda items on Limitations and Exceptions to ‘Copyright Issues Relating to Libraries and Archives’ and ‘Copyright Issues Relating to Educational and Research Institutes and Persons with other Disabilities’” with the purpose to “broaden the scope to allow for a more holistic treatment of the topic e.g. to discuss role of licensing, contractual-based solutions, etc.”

The document further proposed “a Work Programme” with only two specific items listed. It first proposed “Capacity Building to be undertaken by the Secretariat.” Second, it proposed the creation of “Toolkits” on “CMOs and CMO related work,” “L&E relating to preservation,” and “Cross-border exchange of copyright works.”

The final paragraph of the document proposed “concurrent discussions on various int’l solutions, including soft, law, contractual licensing and normative approaches, as appropriate. It may be useful to have a document articulating elements of these solutions, perhaps in the form of Chair’s non-paper.” 

Beneficiary organizations reacted to the proposal as a threat to the progress of the limitations and exceptions agenda. An open letter circulated to delegates later the same evening expressed shock at the altering of the focus of the agenda to prioritize licensing and criticized the focus the work programme on capacity building and tool kits. http://infojustice.org/archives/41673 

The Chair’s proposal was subject to significant debate in two informal sessions of the Committee. Those sessions were held off the record. But delegates confirmed in their closing remarks and in interviews for this report that a large number of countries objected to the renaming of the committee and to the limitation of WIPO work on limitations and exceptions to capacity building and tool kits. A final work programme did not emerge from this SCCR and will be taken up at the 40th SCCR in 2020.

New Leadership for the 40th SCCR 

After failing to reach consensus on the proposed next steps, the SCCR concluded with minimalist recommendations that the Secretariat report on the outcomes of the regional seminars and conference. The Committee also resolved that the work programme on limitations and exceptions would be addressed anew. 

A specific date for the next SCCR was not announced. The goal is to convene the Committee in the “first half” of 2020, likely after the elections for a new Director General of WIPO in March. It is customary for all DDGs to be replaced by an incoming Director General. And there are rumors that the current SCCR chair — Darren Tang — may run for Director General. Accordingly, it is possible that there will be completely new leadership of the SCCR to guide its 40th meeting.