Covid-19 has forced schools and universities around the world to abruptly move online, necessitating the reproduction and sharing of works in the digital environment. Yet many nations’ copyright exceptions for education fail to protect user rights online.

In his statement before the 40th World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR), Professor Sean Flynn proposed a “Doha Declaration for Covid” to “explain and promote the current flexibilities in the international system, and encourage their expansive interpretation to fulfil human rights.” His full statement is below.

Statement of Sean Flynn at the 40th Meeting of the WIPO Standing Committee on Copyright and Related Rights

I speak as Chair of the Global Expert Network on Copyright User Rights, an organization of copyright teachers and researchers from over 30 countries. I am also Director of the Program on Information Justice and Intellectual Property, American University Washington College of Law.

I cannot agree more with the sentiments of the Africa Group that “In light of the COVID-19 pandemic, never before has the subject of copyright limitations and exceptions been more pertinent for educational and research purposes.”

Broadcasting organizations

The discussion of the proposed instrument on Broadcast should update the Rome Convention on exceptions for education and research, including for digital, cross-border and online uses. The current draft is highly deficient in not even including the permissive exceptions of the Rome Convention or mandatory exceptions of the Berne Convention and Marrakesh Treaty.[1]

A modern exceptions provision could include the following elements:

  • Mandatory protection of exceptions offered in every country for copyright
  • Making the Rome convention exceptions mandatory
  • Mandatory exceptions for preservation, education and research rights that extend to the digital environment
  • Protections for cross-border uses, e.g. through an extension of the Marrakesh principle

Limitations and exceptions

Many exceptions for education, research and access to the collections of cultural heritage institutions contain narrow criteria that could impede online and distance activities during COVID. For example:

  • Laws commonly permit “reproduction,” but fail to authorize “communication” needed for sharing in controlled networks;
  • Uses are often restricted to “face to face” or “classroom” teaching; and research uses “on the premises” of libraries.
  • Some laws that specifically restrict uses to “paper.”

Strict interpretation of such laws during COVID violates fundamental rights – including the right to “seek, receive and impart information . . . through any media and regardless of frontiers,” recognized in Article 19 of the Universal Declaration of Human Rights.

This Committee could use the Doha Declaration on TRIPS and Public Health as a model and draft a resolution that explains and promotes the current flexibilities in the international system, and encourages their expansive interpretation to fulfil human rights.

Paragraph 400 of the Report on the Action Plans on Limitations and Exceptions records agreement on the need for solutions “at national, . . . and international levels,” with development of “instruments appropriate at these levels.” As discussed in the appendix below, there is a large amount of agreement that the priorities of this work should include:

  • work toward instrument(s) on preservation, digital, and cross border uses for education, research and libraries, archives and museums; and
  • model laws and other forms of guidance for other issues, such as for safeguards from liability, technological protection measures, and contractual override.

Appendix

REPORT ON REGIONAL SEMINARS AND INTERNATIONAL CONFERENCE ON LIMITATIONS AND EXCEPTIONS

The Report helpfully summarizes a large amount of agreement about the main problems that need to be addressed by the international system.[2] These include modernizing exceptions to be open to our digital world where cross border uses have become the new normal. The report contains useful information recording a large amount of agreement on the proper role for international instruments in whatever form to inform local law making with higher level principles and minimum baselines that can be implemented flexibly at the local level. 

A.     Prioritizing online and digital uses for education

The highest priority issue for education mentioned in the Report, seminars and conference is the need to adapt exceptions to permit teaching and learning through digital and online tools.[3] The specific changes in law needed to accommodate online teaching are to apply educational exceptions beyond mere reproduction to include communication and distribution-related rights,[4] of all types of protected works.[5]

B.      Prioritization of cross border uses

Cross border uses of lawfully created works from one jurisdiction the next was frequently identified as a cross-cutting issue that international action is uniquely situated to address.[6] Members identified the possibility of serving this need through action “to extend the provisions of the Marrakesh Treaty for cross-border” uses,[7] which could serve the interests of education and research, including through libraries, archives, museums and other institutions.[8]

C.      Other issues for guidance and norm setting

A number of other technical issues were discussed that would benefit from international guidance for states implementing policies at the local level. These include:

  • “overridability of limitations and exceptions by contracts,”
  • “safe harbor protections for educational and research institutions (and their agents),”
  • “provisions regarding exceptions and technical measures of protection and rights management information”[9]
  • the need for libraries to make and share reproductions for individuals for research or education purposes.[10]

D.     Coexistence of exceptions and licensing

There was a broad view throughout the activities that licensing and exceptions are not exclusive but rather are part of the same enabling environment. Exceptions are user rights – they set the mandatory baseline for what users can do at a minimum, often to serve fundamental rights and core values of society. Licensing give parties certainty and extend to acts beyond the minimum protected by user rights. As such, the two are part of the same system and one need not be preferred to the other.[11]

E.      The role of WIPO and international instruments

The Report notes a large amount of agreement on the proper role of WIPO and international instruments of whatever form to help address the substantive needs identified. The role of binding international instruments should be to establish the minimum baseline that all countries should have. There was wide agreement that such baseline should address as a priority digital and cross-border issues, as noted above.[12] International instruments should permit “flexibility in the implementation” and not be “highly specific and highly tied to today’s technology.”[13]

Avenue for addressing the “uneven” state of laws permitting educational and research uses could be assisted by numerous international mechanisms, including:

  • the “reformulation of Article 10(2) of the Berne Convention or a proposed treaty on educational and research activities.”[14]
  • interpretations, declarations, resolutions or other instruments interpreting flexibilities in the current international instruments. [15]
  • “manuals, guidelines or … practices” to help countries fit “international principles and conventions” to their specific countries.[16]

One benefit of using a binding instrument for the most important baseline commitments is the positive effect that they may have on local reform, as evidenced by the experience with the Marrakesh Treaty.[17]

[1] See Draft Broadcast Treaty Takes Restrictive Approach To Limitations And Exceptions, IP Watch (May 31, 2018) https://www.ip-watch.org/2018/05/31/draft-broadcast-treaty-takes-restrictive-approach-limitations-exceptions/ (explaining changes to the draft Treaty that added the 3-step test to confine exceptions while “the language clarifying specific exceptions that could be maintained without 3-step challenge was eliminated,” resulting in “a draft broadcast treaty text that is significantly more restrictive on exceptions than is either the Rome Convention or international copyright law”).

[2] See, e.g., Para 366 (reporting view of Delegate from Colombia that the last 12 years of WIPO discussion “enabled countries to realize and identify what the problems were”).

[3] See Para 311 (reporting view of Delegate from Burkina Faso that “national copyright legislations needed to be strengthened to cover online teaching and research activities”); Para 321 (reporting views of expert from University of Cape Town that exceptions “for face to face teaching” leave it “not clear that you can take the materials online nationally”); Para 357 (reporting view of Delegate from Burkina Faso that countries need to “adapt the exceptions to the digital domain,” including “specifically to cover teaching in the digital sector”); Para 375 (reporting view of WIPO expert Dr. Crews that “digital should be normal” and countries “should take the steps that are necessary to review and change their laws” immediately); Para 377 (reporting view of WIPO expert Dr. Xalabarder that “digital should be normal” and “[c]ountries would go backwards if they did not expand exceptions and limitations into the digital uses, particularly regarding education and research”); Para 384 (reporting view of Delegate from Malawi on “the need to reform national copyright laws by taking into account the digital elements and online uses”); Para 134 (reporting Dr. Xalabarder’s view that “National laws needed to integrate limitations and exceptions so that they could respond to the needs of online teaching”).

[4] See para 133 (reporting Daniel Seng’s finding that many exceptions are “limited … to the sole act of reproduction of copies, provided qualitative and quantitative limits, restricted multiple copies, limited reprographic copies so they did not extend to digital uses, did not include translations or adaptation, or failed to take into account new technologies or online classroom activities”).

[5] See Para 108 (recording that some provisions only cover “access to physical / analogue works or for access only to text-based works”). The Report usefully summarized these issues as follows:

“For instance, an exception that permits the making of copies for educational uses …  might not permit the transmission of these copies (i.e., by email to students) and their making available online (i.e., posting on an intranet), because the exception is only meant to cover acts of reproduction.” Para 105.

[6] See para 33 (“in some countries cross-border exchanges take place for both digital and physical works”); Para 373 (reporting view of Delegate from Finland that “cross border uses should become the new normal”); Para 35 (“international lending would require international standards when there are disparate legal regimes.”); Para 377 (reporting view of Dr. Xalabarder that issues “better addressed at an international level” include “the cross-border issue”); Para 380 (reporting on view of Delegate from Finland that “there were many kinds of cross border uses … capable of being readily resolved through legal measures including the ones applied in Europe such as legal fictions, mutual recognition, reciprocity rules, etc.”). 

[7] Para 117 (“While some Member States recommended that it would be good to legislate in this field to cover these issues, a few Member States thought that it would be relevant to extend the provisions of the Marrakesh Treaty for cross-border teaching purposes: a copy made and made available (or sent) lawfully for teaching purposes in the country where the institution is located may be accessed from another country where students are located. a copy made and made available (or sent) lawfully for teaching purposes in the country where the institution is located may be accessed from another country where students are located.”).

[8] See, e.g., Para 322 (reporting views of phd candidate and LIBER official Ben White, describing research activities as increasingly involving international collaborations across borders).

[9] Para 133 (reporting views of Professor Seng); para 361 (referring to study by the British Library that “98 per cent of exceptions were undermined” by contractual provisions).

[10] Para 18 (reporting that only 105, or 55% of WIPO members, allow a library to make a copy for a patron).

[11] See Para 365 (reporting view of Delegate that “stressed that exceptions and limitations together with licensing were not mutually exclusive”); Para 366 (reporting view of Delegate from Colombia that “collective management … was an area that was not exempted of challenges[;] for example, there was no collective association for visual artists” in Colombia).

[12] See Para 377 (reporting view of Dr. Xalabarder that “[d]espite believing that solutions would be better found at national level, she agreed that a few issues would be better addressed at an international level: such as the cross-border issue and the national legislators’ guidance and assistance”).

[13] Para 328 (reporting on view of expert). See also Para 365 (reporting on view of Delegate from Antigua and Barbuda that there are “problems and challenges that were similar to other nations but not identical” and “one shoe size did not fit all, but all needed shoes”; “There was a need to have a sort of foundation or baseline similar in each of the Member States so that they could build their own framework”); Para 371 (reporting view of the United States that SCCR should “develop high-level principles and objectives for national policy makers” and that US is “very open for different formats and approaches”).

One issue on which there is a great deal of variety between countries is on the extent to which exceptions are remunerated. See Para 21 (noting that some library exceptions are remunerated); Para 373 (reporting view of Delegate from Finland that “[t]here was place for full uncompensated limitations, because there were uses that did not have economic significance for rightsholders and did not present a risk of negative market interference”; “there was a place for limitations that were compensated depending on their market effects and economic relevance for rightsholders”).

[14] Para 133 (view of Dr. Seng).

[15] See Para 374 (reporting view of WIPO expert Dr. Benhamou that SCCR could “to develop guidelines of interpretation of norms, such as the Berne Convention” and “adopt to consider joint recommendations or other instruments, in particular in areas where there is a common foundation on which Governments could start concrete action”); Para 388 (reporting view of Delegate from Indonesia that “high-level principles on limitations and exceptions” could be effective if all Member States are made aware of them, “while also mainstreaming it with the work of WIPO,” like the sustainable development goals”).

[16] Para 366 (reporting view of Delegate from Colombia; Para 371 (reporting view of UK Delegate that “[t]here was a need for some countries in particular to take on board the scope of flexibilities already allowed in the current treaties” and calling for “some kind of toolbox or toolkit” to see “the various options that were on the table”).

[17] See Para 391 (reporting view of Representative from the Library of the National University of Science and Technology of Zimbabwe that “Zimbabwe looked at implementing the Marrakesh Treaty, despite the prevailing social conditions in the country, only because it came from an external environment”); Para 388 (reporting that Delegate from Indonesia “gave the example of the Marrakesh Treaty to suggest that there could have been a difference in its implementation at the national level if it was a declaration and not a treaty,” but that “it is not the form of the instrument … that would make a difference,” but rather “the need for a widespread acceptance of the solutions that may be agreed upon”).