Our full background paper has been updated from the October 8 Version. It now includes a section-by-section description of the treaty text.
[With Jonathan Band and Zhao Zhao] The World Intellectual Property Organization (“WIPO”) has long recognized the importance of copyright exceptions to education and research. Article 10(1) of the Berne Convention contains a mandatory exception for quotations; quotations are essential for meaningful research, commentary and criticism. Article 10(2) permits the adoption of exceptions allowing the utilization of works by way of illustration for teaching purposes. However, there is great disparity in WIPO member states concerning the adequacy of exceptions for education and research. In particular, the exceptions in many developing countries are insufficient to meet their pressing needs, in accordance with the United Nation’s sustainable development goal of quality education. Accordingly, a treaty on copyright exceptions and limitations for educational and research activities is necessary to establish global norms in this critical area.
Background
Limitations and exceptions related to education and research have been long been on the agenda of the WIPO Standing Committee on Copyright and Related Rights (“SCCR”):
- The 1971 Paris Act of the Berne Convention contains in Article 10(1) a mandatory exception for quotations. Furthermore, the Paris Act provides that it shall be a matter for legislation in the countries of the Union, and for special agreements between them, to permit the utilization of artistic and literary works by way of illustration for teaching in publications, broadcasts, or sound or visual recordings.
- The Tunis Model Law on Copyright for Developing Countries, released by WIPO in 1976, permitted “the utilization of the work by way of illustration in publications, broadcasts or sound or visual recordings for teaching…or the communication for teaching purposes of the work broadcast for use in schools, education, universities and professional training.”
- In November 2005, Chile proposed that SCCR undertake work in the area of copyright exceptions and limitations (SCCR/13/5). This work would lead to “agreement on exceptions and limitations for purposes of public interest that must be envisaged as a minimum in all national legislations for the benefit of the community; especially to give access to the most vulnerable or socially prioritized sectors.”
- In March 2008, Brazil, Chile, Nicaragua, and Uruguay proposed a work plan for SCCR on exceptions and limitations, including for educational activities (SCCR/16/2). The work plan called for “formal recognition of, and commitment to creating mandatory minimum exceptions and limitations….”
- In June 2011, the African Group proposed a WIPO Treaty on Exceptions and Limitations for the Persons with Disabilities, Educational and Research Institutions, Libraries and Archives (SCCR/22/12).
- In December 2013, the SCCR Secretariat prepared a Provisional Working Document Towards an Appropriate International Legal Instrument (in Whatever Form) On Limitations and Exceptions for Educational, Teaching, and Research Institutions and Persons with Other Disabilities Containing Comments and Textual Suggestions (SCCR/26/4 Prov.).
- In 2014, the United States proposed Objectives and Principles for Exceptions and Limitations for Educational, Teaching, and Research Institutions (SCCR/27/8).
- In November 2016, Professor Daniel Seng presented to SCCR/33 his Study on Copyright Limitations and Exceptions for Educational Activities (SCCR/33/6). This study updated and consolidated five regional studies on educational activities prepared for WIPO in 2009. The Seng Study referred to the “axiomatic importance of education in any society.” It notes that the UN Universal Declaration of Human Rights asserts that “everyone has the right to education.” It observed that the first modern copyright legislation, the Statute of Anne of 1709, was entitled “An Act for the Encouragement of Learning.” The Seng Study also noted that Article 10(2) of the Berne Convention enables Berne Union members to permit the utilization of works by way of illustration for teaching.” He concluded that his study “shows quite a variegated collection of limitations and exceptions provisions for educational activities.”
- In November 2017, Professor Seng presented to SCCR/35 an Updated Study and Additional Analysis of Study on Copyright Limitations and Exceptions for Educational Activities (SCCR/35/5 Rev.).
The Treaty on Copyright Exceptions and Limitations for Educational and Research Activities (“TERA”) takes the next step in this progression. It incorporates the concepts articulated in these previous SCCR documents into a treaty that would establish minimum standards for exceptions for educational and research purposes, while at the same time affording Contracting Parties significant flexibility in how to implement their obligations.
