Desmond Oriakhogba and Dick Kawooya
Guest Post in IP-KAT, Link (CC-BY-NC)
The African Group’s (AG) proposal on a Work Program for Copyright Exceptions and Limitations (L&Es) was item 7 on the Agenda at the 42nd Session of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (WIPO-SCCR) held from 9 to 13 May 2022.
In preparation for the 42nd Session, we noted that the African Group proposal for a Work Program on L&Es “picks up on where the [WIPO-SCCR] left off in 2019, and gives a focus to its future work on important issues of access to copyrighted works for education, research and other public interest purposes”; and, if adopted, the Work Program “will set WIPO on the path of formulating norms that will position the global copyright system to withstand future pandemics”. This is so because the Work Program outlines “concrete and practical steps” which the SCCR can implement “to provide guidance and support to Member States in the short term”, while working in line with the mandate of the committee “towards the adoption of an appropriate international legal” instrument(s) on L&Es”.
Thankfully, the AG’s Work Program gained great support from the Group of Latin America and Caribbean Countries (GRULAC), as well as the United States, and the majority of the Civil Society Organisations (CSOs) present. There were, however, notable discordant tunes from the camp of so-called ‘Group B’ countries, led by Germany, and countries from the Central Europe and Baltic States (CEBS) Group.
The information session on the impact of COVID-19 and discussion of the draft broadcasting treaty highlighted the importance of a Work Program on L&Es
Two other items on the agenda, the information session on the impact of COVID-19 on the copyright ecosystem and the draft broadcasting treaty were dealt with before discussion on the Work Program on L&Es started. The conversations in the information session and concerns raised on the draft broadcasting treaty underscored the importance of the Work Program on L&Es.
The proposed treaty for the protection of broadcast organizations was strongly supported by Global North Countries, especially those from Group B and CEBS. The push to hasten work on the treaty was evident by a recommendation from the Chair for a special technical session on the draft treaty in October 2022 to conclude work on the draft text. This proposal failed for lack of consensus. Moreover, the concerns raised by countries from the Global South (AG and GRULAC), supported by the majority of the CSOs, about the absence of an adequate L&E regime in the draft broadcasting treaty need to be addressed in the draft, and these require time. The draft broadcasting treaty will be further discussed in two regular sessions of the SCCR to be held in 2023. To this end, the SCCR agreed that the Chair, Vice-Chair and Facilitators would revise the draft treaty based on questions, comments and recommendations made by member states. Delegates are required to send further comments by 13 July 2022.
On the impact of COVID-19, the expert report and the panel discussions constituting the Information session highlighted the impact of COVID-19 on the copyright sector as indicated above, including on the rights of creators, among others. Interestingly, both the expert report and the panel discussion largely failed to address the relevance of an international regime on L&Es in tackling the negative impact of COVID-19, on education, research, libraries, archives, museums, and galleries. But L&Es are important to help position the global copyright system to face the challenges of future pandemics. WIPO’s excuse was that the experts and panellists were not copyright experts. However, for a session specifically set up to address the impact of COVID-19 on the copyright sectors, you would expect that WIPO would have sought out copyright specialists. While the experts were of course well versed in their own fields and important issues, such as the digital divide were addressed, SCCR’s mandate is in the area of copyright and the session was specifically tasked with examining the impact of COVID on copyright, related rights, and limitations and exceptions. Thankfully, the expert reports are still open for comments and suggestions (see para.34 here).
Nonetheless, it is important to note that the presentation of Nonpumelelo Mohohlwane, Department of Basic Education in South Africa, identified the difficulty faced by learners, who are forced to learn from home as a result of COVID-19, in accessing learning materials. According to Ms Mohohlwane, the difficulty is caused by the limited access to internet broadband, unavailability of the learning materials in the learners’ home language, and availability of the learning materials behind pay-walls. The EIFL noted that the two last causes of the difficulty to access learning materials are copyright-related issues, and are a strong basis for the consideration of an international L&E treaty to tackle such challenges now and in the future. Responding to this concern, Mohohlwane canvassed that the provision of a guarantee for L&Es would be a powerful means of allowing teachers and schools to plan ahead and invest for future pandemics.
Discussion of the Work Program on L&E
Discussion on the Work Program on L&Es was preceded by a recap, by the SCCR secretariat, of the key take-aways on next steps drawn from its report on the previous regional seminars and international conference in L&Es (see pgs 72-74 here). In particular, it was concluded that the “search for solutions [on L&Es] could be at national, sub-regional, regional and international levels, and consideration could be given to developing instruments appropriate at these levels”. Also, “expert groups might be set up to address different issues [and] specific challenges […]”. To these ends, “an incremental methodology could be put in place, with a precise time line and a result-oriented approach”. The proposed work program on L&Es, which was presented by Algeria, on behalf of the African Group, made strong reference to the report, WIPO’s Development Agenda and the SDGs.
GRULAC’s strong support for the work program was conveyed by the Dominican Republic. In addition, GRULAC called for the inclusion of L&Es for persons with disability not covered by Marrakesh treaty in the work program. Echoing GRULAC, Brazil further canvassed for the inclusion of L&Es to cater for new technologies. A consideration of the GRULAC’s recommendation could draw from the work of Ncube, Blake and Oriakhogba on typologies of access enabling L&Es for persons with disabilities beyond Marrakesh. In addition, other Global South countries, such as Nigeria, South Africa, Uganda, India, and Indonesia, and majority of CSO’s voiced their strong support for the work program. The US also voiced some support for the work program, calling for expert case studies, information sharing and consensus building on the issue of L&Es among others.
Strong opposition to the work program came from Group B. The EU and CEBS echoed Group B. Specifically, Group B asked for additional information about the specific items proposed and the expected outcome of the program. Speaking through Germany, Group B particularly opposed the proposal for the development of an international instrument(s) on L&Es, among others. They are, however, comfortable with an approach of developing L&Es at the national level. The position taken by Group B, as voiced by Germany, is shocking, especially if viewed from the perspective of Germany being a champion for L&Es in the early stages of global copyright treaty development. Historical record shows that the German delegates made a very strong case for the inclusion L&Es, which they referred to as “reciprocal rights for using copyright works for research and scientific purposes” in the Berne Convention.
The proposal for the work program on L&Es was revised during SCCR to accommodate the concerns raised by member states and to allow for further discussion in the sessions that will be held in 2023. For the time being, however, the SCCR agreed to commence work on items 3 and 6 of the work program, and has directed the secretariat to:
- “At the next SCCR, […] invite presentations during the Limitations and Exceptions Agenda by experts and Member States on the possible cross border problems linked to specific uses of copyrighted works in the online cross-border environment, such as in an online educational class with students in multiple countries, or where collaborating researchers or the subjects of their research are located in different countries.”
- Draw “on the work completed to date and further discussions by Member States at the Committee as appropriate” and “develop tool kits to guide targeted technical assistance programs which help Member States craft laws and policies which support education, research and preservation of cultural heritage, developed in consultation with experts, and stakeholders from beneficiary communities, and rights holders and through transparent consultation processes”.
- Present a scoping study on research L&Es and a toolkit on preservation (with respect to paragraph (2) at the next SCCR.
Overall, we feel this was a positive outcome on which to build in 2023 and beyond. As the delegate from Pakistan noted, the call for functional L&Es in the international copyright system is not going away. WIPO needs to take action sooner rather than later.
