Deborah De Angelis
Creative Commons Italy
Exceptions and limitations (E&L) to copyright have been discussed by the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) for several years. As known, the negotiations aim to strike a balance between the rights of copyright holders and promoting access to knowledge, education, and culture for the public, especially in the online and cross-border environment. The goal is to work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms) providing exceptions and limitations in favour of libraries, archives, educational institutions, research institutions, and persons with disabilities.
From March 13th to 17th, 2023, the 43rd meeting of the WIPO SCCR was held in Geneva, where significant advancements have been achieved by the Committee with the adoption of a work program on exceptions and limitations based on the Proposal by the African Group for a Draft Work Program on Exceptions and Limitations (SCCR/43/8). The program is supported by the Access to Knowledge Coalition (A2K), to which Communia Association and Creative Commons Italy Chapter are members together with numerous other associations representing educators, researchers, students, libraries, archives, museums, other knowledge users and creative communities in the world. The AG Proposal received a broad consensus from national delegations recognising the need to move towards a fair and balanced copyright system that supports creativity and advances the public interest by promoting digital access to education and research, as well as to cultural heritage. Thanks to the Communia Association’s publication “Nobody puts research in a cage”, shared during the SCCR 43 session, the pressure and constriction felt by the scientific researchers during digital and cross-border research activities showed the need for an international measure.
The adopted AG program now calls on the Committee to discuss “priority issues” regarding the following three steps:
- to promote the adaptation of exceptions to ensure that laws at the national level enable the preservation activities of libraries, archives, and museums, including the use of preserved materials;
- to promote the adaptation of exceptions to the online environment, such as by permitting teaching, learning and research through digital and online tools;
- to review the implementation of the Marrakesh Treaty and how to ensure that people with other disabilities (also covered by the Convention on the Rights of Persons with Disabilities) can benefit from similar protections, in particular in order to benefit from new technologies.
The Secretariat should invite further presentations by experts on the questions related to choice of law for cross-border uses of copyrighted works, with a focus on a case-study approach, such as cross-border implications of an online educational class with students in multiple countries or where collaborating researchers or the subjects of their research are located in different countries.
Furthermore, the work plan identifies additional issues that may be taken up by the committee in future work once the previous above-mentioned issues under points 1-3 have been discussed. The Committee may consider facilitating future discussion and exchanges of views and information pertaining to other issues relevant to this agenda item, such as
● limitations and exceptions for text and data mining research, taking into account new developments in this area;
● cross border implications in relation to limitations and exceptions on preservation, teaching and research;
● the UNESCO Recommendation on Open Science (2021) and its implications for international copyright laws and policies; and
● models for the protection of limitations and exceptions from override by terms in contracts, safe harbor protections for educational, research and cultural heritage institutions (and their agents), and exceptions to technical measures of protection and rights management information to protect uses permitted by limitations and exceptions.
Some progress on the limitations and exceptions provisions has also been achieved concerning the Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty (SCCR/43/3). Although the scope and breadth of the draft treaty have been reduced, it is still essential to have solid exceptions and limitations. Unfortunately, the draft leaves it up to the contracting parties to decide whether to replicate existing exceptions in the field of copyright and related rights. It does not provide mandatory limitations and exceptions. Mandatory exceptions and limitations are vital to allow immediate and broad accessibility of broadcast content to educators, journalists, scientists and researchers, especially regarding the role of state-funded public service broadcasters. The Member States have yet to complete agreement on this second draft text, as noted by the Italian Delegate. He pointed out that several definitions already foreseen by the Rome Convention could raise interpretation issues if not harmonised in the text under discussion.
Finally, the Committee agreed to organise a second meeting during 2023, which will take place for three days only during the week of November 6, 2023. It will be the next opportunity to form the exceptions and limitations working groups and deliberate on the specific next steps of the E&L work plan. It will also likely feature a new E&L provision in the broadcast treaty. In conclusion, the results of this SCCR meeting are very successful for the A2K Coalition’s position. They represent steps forward for adopting an international instrument providing exceptions and limitations in favour of libraries, archives, educational institutions, research institutions, and persons with disabilities.
