On March 12, 2019, the Program on Information Justice and Intellectual Property at American University Washington College of Law jointly held an event with Knowledge Ecology International and the Library Copyright Alliance on “Copyright Limitations and Exceptions at the World Intellectual Property Organization.”
Regular observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR) gave a briefing on the current state of limitations and exceptions (L&E) agenda items and led a discussion on the coming work of the SCCR on L&Es for broadcasting, education, research, libraries, archives, and museums. [The next SCCR meetings will take place April 1-5 in Geneva. – eds.]
A major focus of the discussion was the status of negotiations concerning a potential broadcasting treaty that would require countries to grant broadcasting organizations exclusive rights over the content of program carrying signals. James Love (KEI) shared his insight on the evolution of the two-decade-old broadcasting treaty negotiation in the context of the Rome Convention and political considerations. He explained the recent changes in positions by various WIPO Member States and the conflicting views between proponents of the broadcasting treaty (i.e. European Union, Argentina) and countries that do not anticipate the treaty to go forward. Despite an indication of willingness to work toward a compromise position by the U.S. delegation at the last SCCR, it is uncertain whether a diplomatic conference will arise as countries have not reached a consensus.
Public interest groups have criticized the broadcasting treaty proposal for lacking L&E provisions that would privilege broadcast rights over copyright. The draft broadcasting treaty text is more restrictive on exceptions than the Rome Convention. James Love expressed deep concern that automatic post-fixation rights for broadcasting organizations with a term of protection of 50 years that restarts after every new transmission would essentially end the public domain. According to Love, whether post-fixation rights are required will be a determining factor of whether a diplomatic conference will be convened. The requirement of post-fixation rights would increase the need for L&Es. In his view, the finalized broadcasting treaty might result in a new type of IP right that covers anything that is streamed.
Sean Flynn (American University) urged that the broadcasting treaty is an appropriate space to incorporate top issues in the L&E agendas for education, research, and cultural institutions. He pointed out the possibility of introducing into the broadcasting treaty a technological research exception (that combines research with the InfoSoc Directive’s mandatory exception for temporary acts of reproduction to facilitate technological processes) to permit temporary copies for the non-consumptive use of materials to facilitate analysis of the broadcasting environment through technological tools.
Ongoing discussions at WIPO on L&Es for libraries, archives and museums are not as advanced as they are for broadcasting. The Association of Research Libraries stated that copyright can hinder the mission of cultural heritage institutions to preserve and provide access to educational, scientific, and cultural works if they do not have proper L&Es. Currently, there is a SCCR Working Document on proposed texts towards an appropriate international legal instrument on L&Es for libraries and archives, which applies to core activities of libraries and archives such as providing copies of materials to individual researchers, lending works to other libraries and archives, reproducing and making available orphan works, and providing translations for purposes of teaching, scholarship, or research.
In the area of L&Es for education and research activities, Sean Flynn called attention to The Civil Society Proposed Treaty on Copyright Exceptions for Educational and Research Activities (TERA), which requires that all copyright laws contain rights to use materials for educational or research purposes consistent with fair practice. He also encouraged the U.S. to revise its Objectives and Principles for Exceptions and Limitations for Educational, Teaching, and Research Institutions to provide more guidance for countries and to strengthen policy advocacy for L&Es for education and research.
Overall, although there is no prospect of a treaty in the immediate horizon with respect to L&Es for education, research, and cultural heritage institutions, Flynn noted that discussions within the WIPO L&E agenda are beneficial for informing WIPO Member States that are considering or currently undergoing copyright reform. Therefore, he highlighted the importance of being present at WIPO L&E discussions to help move thinking on these issues. There will be an uptick in the L&E agenda at WIPO over the next year, with the series of upcoming WIPO meetings for L&Es in 2019: regional seminars in Singapore (April 29-30), Kenya (June 12-13), Dominican Republic (July 4-5), and an International Conference on L&Es in Geneva (Oct 17-18) preceding SCCR/39.
