WIPO’s copyright committee held its first full meeting in two years with record participation and a boost for library and research rights
Teresa Hackett, Electronic Information for Libraries, Link (CC-BY)
The 42nd session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), the global forum that sets international copyright law and policy, took place in Geneva from 9 – 13 May 2022 – the first full meeting since the start of the COVID-19 pandemic. EIFL was there to promote strong rights for libraries in support of access to knowledge for education, research and development.
I was representing EIFL with Dick Kawooya, University of South Carolina, USA; Anthony Kakooza, Makerere University, Uganda; Desmond Oriakhogba, University of Venda, South Africa, and Awa Cissé Diouf, Universite Cheikh Anta Diop (UCAD), Senegal.
RECORD PARTICIPATION IN SCCR, BUT NO WIKIMEDIA
Mid-way through the week, the Secretariat announced that 590 participants were registered for SCCR, with the number expected to reach a record 600 by the end of the meeting. No doubt delegates were keen to get back to face-to-face negotiations for the first time in two years, and the new opportunities for remote participation, such as the ability to deliver statements online, helped to drive increased participation.
Participants at SCCR include government officials from member states, and registered observer organizations, including industry representatives and civil society organizations (such as EIFL). It was very regrettable, therefore, that the application for ad hoc observer status from six Wikimedia chapters (France, Germany, Italy, Mexico, Sweden, and Switzerland) was denied due to opposition from China. EIFL strongly objects to efforts by any country to block the participation of organizations, such as the Wikimedia Foundation, that work to promote free access to knowledge around the world, and we call on governments to stand up for free speech at WIPO and other global forums.
A BOOST FOR LIBRARY AND RESEARCH RIGHTS, THANKS TO THE AFRICAN GROUP
The rights of users of the copyright system, in particular libraries and researchers, got a boost with the adoption of three specific lines of action to be presented at the next SCCR.
Preservation – a practical step in the right direction
First, the Secretariat will present a toolkit on preservation by cultural heritage institutions to guide countries that are amending their copyright laws. The toolkit will be developed by the authors of the WIPO studies on limitations and exceptions (L&Es) for libraries, archives and museums. The studies showed that the copyright laws of many countries are simply not equipped for modern preservation needs.
Preservation was identified as a priority topic at the 2019 WIPO Regional Seminars and International Conference on L&Es, and we are glad that it is moving forward. The issue is urgent. For example, in 2021, Africa lost a part of its history in a devastating fire at the University of Cape Town: due to copyright barriers, some items had no digital backups. The toolkit on preservation is a practical step in the right direction.
Cross-border uses – only WIPO can help
Second, the thorny topic of cross-border uses of copyrighted works, that involve the sending and receiving of copyright protected material across multiple jurisdictions, will be analyzed by experts and member states who will discuss problems and possible solutions. At previous SCCRs, libraries and archives presented extensive evidence of information denied when copyright exceptions stop at the border. We are firmly of the view that only WIPO, as an international organization, can solve these international problems. Therefore, we are pleased that SCCR will finally dedicate time to addressing this important and complex topic.
Adapting research exceptions for the digital world
Third, the Secretariat will commission a scoping study on the issue of exceptions for research in national copyright laws, including modern research methods, such as text and data mining (TDM).
During SCCR, the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law hosted a lunchtime event on ‘Copyright Exceptions and Text and Data Mining Research’ with leading academics, and a representative of the IP Office of Singapore that recently adopted a new TDM provision. Professor Sean Flynn presented a new version of PIJIP’s working paper on research exceptions that colour codes countries (green, yellow, red) according to whether reproduction and communication of copyrighted works needed for text and data mining research are permitted. Significantly not all recent exceptions designed specifically to enable TDM receive top marks from the authors, while the paper also finds that a significant number of countries do not provide a research exception at all or limit uses only to quotation.
Work at WIPO will advance discussion on this topic so that researchers in every part of the world can be active contributors in global research projects, and can make discoveries to benefit local communities in a wide range of sectors such as health, education, agriculture and financial technology.
PROPOSAL BY THE AFRICAN GROUP FOR A WORK PROGRAM ON L&ES – TO BE CONTINUED
These three concrete actions were part of a new proposal by the African Group for a Work Program on Exceptions and Limitations (SCCR/42/4). The proposal includes additional topics such as safe harbour protections for educational, research and cultural heritage institutions, circumvention of technological protection measures, and protection of exceptions from terms in contracts.
Members of the Right to Research Coalition at WIPO SCCR/42.
The proposal as a whole was broadly welcomed by individual countries and by the regional group of Latin American and Caribbean countries (GRULAC). It was viewed by the United States as an opportunity to re-emphasize the idea of working towards high-level objectives and principles. However, the response from other industrialized countries (Group B, the European Union and the Group of Central European and Baltic States) was muted and they asked for more information on the proposal (even though the document has been available for more than two months).
For this reason, the work program as a whole will be discussed again at the next SCCR (SCCR/42/4 REV). In the meantime, we welcome the fact that three specific activities (the toolkit on preservation, the expert session on cross-border, and the scoping study on research exceptions) got the go ahead.
EIFL sincerely thanks the African Group for taking the initiative on L&Es at SCCR/42. After a two-year hiatus due to the pandemic, the proposal provided a welcome boost to discussions on user rights at SCCR, especially for libraries and research.
OTHER ISSUES: THE BROADCAST TREATY, PLR AND THE COVID INFORMATION SESSION
Other important topics got an airing at SCCR/42.
In the proposed treaty for the protection of broadcast organizations, EIFL joined other civil society organizations in calling for proper exceptions in the draft text to ensure fair access to broadcast content by libraries for social, educational and public interest purposes. In response to many questions and comments on the text (including L&Es) from member states and observers, delegates are invited to submit comments, suggestions and questions to document SCCR/42/3 by 13 July 2022.
On the proposal for a study on Public Lending Right (PLR), EIFL reiterated its position that another forum with a broad cultural policy remit, such as UNESCO, is better suited to examine this topic in the holistic way that it deserves, rather than trying to shoehorn it into the copyright system at WIPO. In addition, the delegation of Chile expressed concern about the proposal and further discussion was held over to the next SCCR.
An Information Session on the Impact of the COVID-19 Pandemic on the Copyright Ecosystem also took place, with the aim of exploring the impact on the cultural, creative and educational ecosystem, including copyright limitations and exceptions. However L&Es did not feature in any meaningful way either in the report prepared for the information session, nor in the panel discussion at WIPO. Civil society groups (such as Communia) expressed frustration at this omission, even though some countries (such as Hungary) fast tracked a new exception to support online education during the pandemic. EIFL also noted that two out of the three issues identified by the panelist from South Africa as challenges during the pandemic (availability of material in home languages, access to material behind paywalls, and broadband access) concerned copyright. So copyright, and thus the role of copyright exceptions, was clearly an important issue that should have received attention.
SCCR IN 2023
Two sessions of SCCR (SCCR/43 and 44) will be held in 2023 (dates will be announced in the WIPO calendar towards the end of 2022).
The Committee elected three officers. Mr Aziz Dieng (Senegal) was elected as Chair and Mr Owen Ripley (Canada) and Mr Peter Labody (Hungary) are Vice-Chairs. From SCCR/43, Mr Dieng and Mr Ripley will swap roles so that Mr Ripley becomes Chair and Mr Dieng will be Vice-Chair with Mr Labody.
EIFL was grateful to be back in Geneva meeting friends and colleagues. Thanks to the EIFL team for their hard work. It was a busy, productive week and we are looking forward to positive results in 2023.
