Sean Flynn, April 27, 2022
| Work plan proposed text | Comment, Sean Flynn |
| 1. The Committee will continue discussion to work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms) on limitations and exceptions for libraries, archives, museums, education, research, and uses for persons with other disabilities. | The proposal appears to be a good faith and rigorous effort to find a way forward for the next steps of the Agenda that can take advantage of emerging consensus positions and define a process that once could imagine progress arriving from. The documents on education and research — not just institutions — is consistent with the studies and work of the SCCR. Daniel Seng’s study and the Africa Group’s 2011 proposal addressed exceptions for private study — not only through institutions. |
| 2. Work under point 1 should reflect the priorities identified in the Report on Regional Seminars and International Conference on Limitations and Exceptions (SCCR/40/2), including: to ensure that all laws enable the preservation activities of libraries, archives, and museums, including the use of preserved materials across borders; to promote the adaptation of exceptions to the online and cross border environment, such as by permitting teaching, learning and research through digital and online tools. | One of the key innovations of the work plan is that it explicitly follows the priorities set by the 2019 action plans. Some commenters have suggested to add to 2.b.: [cultural heritage activities]. |
| 3. At the next SCCR (to take place in 2023), the Secretariat should sponsor presentations by experts on the problems of choice of law for cross border uses of copyrighted works, such as in a class with students in multiple countries or where researchers are located in different countries or the subjects of their research are created or located in different countries. The session should consider international models for dealing with this problem, including the cross border use rule proposed by Argentina (SCCR/33/4); legal fiction model adopted in Article 5 of the recent EU DSM directive, and other models. | Since the Action Plans, the EU adopted the Directive on Copyright in the Digital Single Market (2019) which includes a unique provision enabling cross border educational instruction. An information session at the next SCCR could review the EU and other models for enabling critical cross border uses of works for education and other purposes. |
| 4. The Chair should advance information sharing and consensus building on points 1-3 between SCCR meetings, which may include a Friends of the Chair group that is transparent and inclusive (see WIPO Development Recommendation #44), committees of experts preparing objectives and principles or other model provisions for consideration by the Committee, and other processes. | Other Committees, most prominently the Intergovernmental Committee (IGC) on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, have adopted innovative methods to advance conversations between official meetings. It is notable that the proposal references the transparency and inclusiveness provisions of the Development Agenda # 44. |
| 5. The Secretariat should convene information sessions and exchanges with Member States, experts, copyright offices and other agencies, and beneficiary organizations, drawing on new or existing research studies where appropriate, including on:limitations and exceptions for text and data mining, and experts; the UNESCO Recommendation on Open Science (2021) and its implications for international copyright laws and policies;models for 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. | The convening of information sessions falls within the area of consensus that all SCCR members have supported. PIJIP will present a study on research exceptions for TDM at a SCCR 42 side event. |
| 6. Drawing on the work completed to date, and without prejudice to the outcome of items 1-5, the Secretariat, should develop tool kits to guide targeted technical assistance programs which help Member States craft laws and policies which support education, research and cultural participation, developed in consultation with experts and stakeholders from beneficiary communities and through transparent consultation processes. | Member states have expressed support for work of the Secretariat on tool kits or other guidance to member states. This paragraph notes that guidance should be based on “the work completed to date,” such as the existing studies on Limitations and Exceptions. Tool Kits and guidance could also be developed in response to new studies conducted under Paragraph 5. |
