The last WIPO-SCCR/42 discussions focused on the African Group Work Plan proposal, the revised draft broadcasting treaty, and limitations and exceptions (L&Es) in favor of libraries, archives, museums, educational institutions, research institutions, and people with disabilities. The primary SCCR outcomes on L&Es enclosed approval of two points of the African Group Work Plan proposal, including future presentations on cross-border copyright issues linked to online education and research practices, and developing toolkits supporting education, research, and preservation of cultural heritage.
At its Forty-Second Session, which took place from May 9 to May 13, 2022, the WIPO Standing Committee on Copyright and Related Rights (SCCR) met to continue discussions on broadcasting, limitations and exceptions, plus Member States proposals. Statements and discussions touched on many of the main agenda items for the meeting, including the African Group Work Plan Proposal to advance progress on limitations and exceptions, cross-border uses, education, research, and preservation of cultural heritage; presentations and discussions on how to expand from the results obtained from the three regional seminars and international conferences of 2019; and a revised draft text for the WIPO Broadcasting Organizations Treaty.
This post will report mainly on the discussions on limitations and exceptions, and the African Group Work Plan Proposal. At the end of the post, the reader will find the African Group Work Plan Proposal text approved during the SCCR/42 committee. Statements are presented in the order introduced during the SCCR meeting.
- Continued discussions on limitations and exceptions
Most of the statements focused on limitations and exceptions in favor of libraries, archives, museums, educational institutions, research institutions, and people with disabilities. Some countries proposed the creation of an international instrument, while others remained more inclined to exchange experiences, best practices, and capacity building, leaving this topic for discussion at a national level.
| Country/Group | Main position |
| Algeria, on behalf of African Group | – “Believes that the international copyright system should recognize a mutual benefit of those who generate and those who use creative works.¨ – “Copyright system should be geared towards promoting the public interest by granting exclusive rights to creative activity and to intellectual enterprise on a fair basis; in this regard, the important contribution that limitations and exceptions (L&Es) make to copyright should become the central part of the structure and operation of our international copyright system. (…) “[T]he adoption of an adequate level of L&Es is likely to help the dissemination of knowledge products and allow them to improve the well-being of society as a whole.” – “Stimulating creativity and promoting dissemination is in line with the commitments of the international community which aim to ensure that no one is deprived of his or her right to information education, science, cultural participation.” – In support of the development at WIPO “of one or more appropriate international legal instruments on limitations and exceptions in favor of libraries, archives, museums, educational institutions, research institutions, and people with disabilities.” |
| Dominican Republic, on behalf of GRULAC | – Supported the discussion on limitations and exceptions, as “many of our members pushed for having this agenda item in the SCCR (…). By identifying common cases or situations in order to make progress to achieve a copyright system that promotes a balance between rightsholders and collective development in accordance with principles of flexibility and progressiveness amongst human rights as recognized in various international treaties and conventions.” |
| Germany, on behalf of Group B | – Expressed their interest to welcome work on limitations and exceptions “which enables the exchange of experiences and best practices for libraries, archives, museums, and educational and research institutions as well as uses for persons with other disabilities.” – Acknowledged the importance of digital access to copyrighted content as a result of the pandemic: “COVID-19 pandemic has made digital very much normal in all aspects of our lives and has underscored the importance of the digital dissemination of copyright-protected creative content to all stakeholders in the copyright system (…). Effecting the livelihood and revenue streams of authors musicians and other creators as well as the needs of users to access copyright-protected works online the pandemic has also underscored the importance of a balanced copyright system.” |
| Slovakia, on behalf of CEBS | – Acknowledged the fundamental role played by the libraries, archives, and museums as well as the educational and research institutions in a social context. – Also noted as a special interest of the CEBS Group that “global copyright infrastructure will ensure access to works for the persons with disabilities in both analog and the digital frameworks.” – CEBS also recognized “that the amendments of national copyright systems in various Member States which introduced exceptions and limitations were made on the national level and we look forward to exchanging best practices and continue the discussions as we find the evidence-based approach very important.” |
| Iran | – “Persons with other disabilities are of great importance, therefore countries progressive work on L&Es should be priority for the Committee.” – “The SCCR should continue its work and activities towards a fair and balanced copyright system that supports creativity and advances the public interest, including by promoting digital access to education, research, as well as to the cultural heritage.” – “The committee is also fairly expected to continue to work towards an appropriate international legal instrument or instruments on limitations and exceptions for libraries, archives, museum, and Education and research.” |
| Brazil | – A bill that updates Brazil’s copyright law in aspects related to the Marrakech Treaty is under consideration by the national Congress. – “Brazil expands the array of beneficiaries served by the treaty, considering the diversity and specificities of different modalities of access to printed text by people with other disabilities.” |
| European Union | – Supports an approach that focuses on a ¨way in which limitations and exceptions can function efficiently within the framework of existing international treaties, while being mindful of the important role that licensing plays in many WIPO Member States.¨ – The EU considers libraries and archives and museums ¨to play a crucial role in the dissemination of knowledge, information and culture, along with the preservation of history.¨ – They also attach importance to the ¨support of educational and research institutions and for people with disabilities both in the analog and digital worlds within the existing copyright framework.¨ – The EU invited to make use of the report prepared by the Secretariat (Document SCCR/40/2) with regard to the three regional meetings on copyright limitations and exceptions for libraries, archives, museums, and educational and research institutions. – The EU also agreed with the Secretariat’s report on the importance of focusing further work ¨on capacity building and improving legislation of WIPO members at the national and regional level, combined with guidance and support from WIPO.¨ |
| Russia | – Agreed on the importance of libraries, archives, and museums. ¨With a view towards formulating common principles, this will serve as a basis to harmonize our approaches and create a single international instrument, this will serve as a guidepost and help us resolve common challenges. – “It is important to address cross-border issues and to look at legal inconsistencies across various bodies of legislation special attention should be given to cultural heritage in digital format we should focus on establishing international principles and systems which could be applied to libraries, archives, museums, and educational research organizations.” – “The absence of recognized international guidelines as well as the presence of significant differences between copyright and related rights regimes make cross-border access and exchange more difficult and slow, cultural development and progress.¨ |
| India | – “The onset of COVID-19 pandemic and its debilitating impact has even further emphasized the distribution of educational content, political means and highlighted the need to establish a comprehensive limitation and exceptions framework, both nationally internationally.” – “Education and research enabled to libraries, museums and archives, a crucial limb for supporting economic and social growth, scientific advancement and preservation of cultural heritage.” – “[T]his Delegation continues to welcome this Committee’s work and remains committed to having constructive discussions on developing such an international framework which address the humanitarian agenda of preservation, reproduction, access and cross-border exchange of works for education and research, for libraries and archives, and people with dishabilities.” |
| Pakistan | – Proposed a “very flexible kind of an umbrella agreement, which is mutually flexible, leaves a lot of room for the Member States to decide upon and enact, but at the same time it covers some of the modern users.” – Pakistan expressed the need to find a fine line between a binding international legal instrument, and capacity building and national laws: “My delegation for the past few years has been calling for an umbrella instrument, an umbrella binding instrument which is probably not too prescriptive, which is flexible which leads a lot to the national governments to enact relevant laws accordingly, but it goes a little bit beyond what already exists in the existing framework and framework of the exceptions and limitations”. |
- The SCCR African Group Work Plan Proposal and Negotiation
A. African Group Work Plan Proposal by Algeria
Algeria, speaking on behalf of the African Group, presented a draft work plan proposal on L&Es contained in document SCCR/42/4. Building on the results of the three regional seminars and international conferences of 2019, the African Group “identified specific areas that require further reflection”, and focused on two major points: First, “[e]nsure that reproductions and other use of works for preservation purposes might be permitted under national exceptions and copyright laws” and second,” [a]dapt exceptions to enable teaching, learning, and research, through digital tools and across borders”.
As stated by Algeria, the proposed work program “emphasizes the opportunity to organize informational sessions and exchanges to discuss new digital tools and emerging technologies in some of the following areas: The first has to do with Text and Data mining via a computerized analysis of large amounts of data(…). The second is UNESCO’s recommendation on open science which goes back to 2021 and the implications for international copyright law and policy.”; and the third, is “models for the protection of L&Es against contractual circumvention, to provide a safe harbor for education and research, the establishment of cultural heritage institutions, and so forth.”
The draft work proposal, also “invites the WIPO Secretariat to enhance the work that it is already conducted and to come up with development of toolkits guides intended for Member States on issues under item 5 of the work program. This work should be conducted in consultation with experts and stakeholders, a community of beneficiaries, through a transparent consultation process.” The AG also proposed to undertake intersessional work that includes, but should not be limited to “discussions amongst the friends of the Chair, expert groups, and they should develop objectives and principles as well as a model for L&Es for consideration by the Committee.”
Finally, the AG stated that “[t]he program is based on lessons learned by Member States and also the results of regional workshops and international conferences, it is also in line with many recommendations of the Development Agenda and should also contribute to WIPO’s role in achieving the sustainable development objectives, particularly those related to education, innovation, the protection of heritage, combating poverty, and integration and access to information.”
| African Group work plan proposed text |
| 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. |
| 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. |
| 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. |
| 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. |
| 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. |
| 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. |
B. Member States comments and responses to the African Group Work Plan Proposal
The following are the comments presented by groups, countries, and regions during SCCR/42 to the African Group Work Plan Proposal.
| Country/Group | Main position |
| Dominican Republic, on behalf of GRULAC | – Considered relevant to focus on cross border uses, and persons with other disabilities not covered by the Marrakech Treaty: “[A]s to the proposal by the African Group, we feel it’s appropriate to focus attention on questions related to cross-border uses and to hold briefing sessions on that topic.” – “GRULAC considers that the theme of limitations and exceptions relating to persons with other disabilities is not covered by the Marrakech Treaty. Is a relevant issue and should be included in the list of topics on the proposed work program (…) in particular a focus on new technologies and accessibility from a very humane viewpoint” |
| Germany, on behalf of group B | – Expressed their concerns with the African proposal: “[I]t is very broad and we would welcome additional information about the specific scope of the items proposed to ensure that we can enter a discussion based on a neutral understanding…” – “In so far as the proposal calls for an international legal instrument or instruments in its first sentence, Group B observes that there is currently no consensus for such an instrument within the Committee, in particular in so far as norm-setting is intended, having reviewed the proceedings and outcome of the conference group B continues to be of the opinion that work to support national policymakers would have the most impact to help them setting up domestic copyright ecosystem meeting the specific national needs, for example, the by organizing an exchange of best practices.” – Group B also opposed the call of the proposal upon the Chair to mandate committees of experts with the drafting of objectives and principles and model provisions for consideration by the Committee. As such, “Group B is of the opinion that any such mandate should be subject to prior approval by the Committee itself and any form of substantial work that goes beyond consolidating work carried out so far as it has been done on the other agenda items should be carried out within the Committee.” |
| Slovakia, on behalf of CEBS | – Expressed their interest in having an evidence-based approach as a complement to the proposed points by the African Group. – CEBS reminded the member States of the “report from three regional seminars and the international conference on exceptions and limitations contained in document SCCR/40/2 as could serve as valuable guidance for our future discussions. This report, especially its conclusions named as takeaway considerations, could also help us to pave a way forward on these agenda items.” – The CEBS group also expressed that the work should still concentrate “on exploring the already existing solutions within the framework of the existing international treaties supported by their well-balanced implementation and by exchange of best practice. This is without the need for an internationally binding instrument.” |
| Iran | – Expressed their support with the African Group Work Plan proposal. “[W]e hope that the Committee would have productive and constructive deliberation on the proposal by the African Group for the draft work programme on exceptions and limitations contained in document SCCR/42/4 which is based on the best lessons learned from regional and international conferences on limitations and exceptions.” |
| Brazil | – Aligned with the statement of the Dominican Republic on behalf of GRULAC. ¨Brazil supports the work program proposed and favors its adoption by the Committee. We are in agreement with the array of issues (…) proposed in the document but would suggest members consider the incorporation of the issue of limitations and exceptions regarding people with other disabilities not covered by the Marrakech Treaty, which could be added in our opinion if members agree in the list of issues presented in paragraph 5 of the document.¨ |
| European Union | – Open to discussing the proposition but expressed that ¨the EU and its Member States cannot support work towards legally binding instruments at the international level or any preparations in this regard.¨ – EU stands ready ¨to continue to engage constructively under this agenda item to reflect further on how WIPO can best help to provide guidance and assistance to WIPO Member States to address the problems faced by cultural heritage, education and research institutions and people with disabilities, including through the introduction of Meaningful exceptions and limitations in the respective national laws.¨ |
| South Africa | – “The importance of the Africa Group’s proposed plan cannot be overemphasized as it seeks to guide the Committee towards a constructive path on the issue of access to exceptions and limitations for libraries, archives, museums, educational and research institutions and for persons with other disabilities”. – South Africa also emphazised on the role played by the above institutions in the dissemination, preservation and promotion of cultural heritage and economic development, and made a call to the member states to ensure that these institutions are not unduly disadvantaged in performing their functions as a result of copyright barriers. – Also noted that “challenges still remain in areas such as cross-border and online users (…) Therefore, international action is necessary to do with those challenges that transcend national borders.” – For South Africa, the regional seminars as well as the international conference on exceptions and limitations – whose objective was to consider opportunities and challenges provided by various international solutions, “have pointed us to the right direction by identifying priority areas that could benefit from a coordinated international approach including on preservation of works, cross-border uses and online uses”. |
| United States of America | – The African Group proposal “as an opportunity to re-emphasize the idea of working towards high level objectives and principles; this approach takes into account harmonization of goals while preserving Member States’ ability to tailor exceptions and limitations to their own economic and cultural circumstances. – Expressed that point 3 of the proposal ”is a particularly fruitful way forward and a good way to use expert assistance, this sort of case study approach is an area where experts can be a real assistance to the committee and to the Member States.” – Regarding point 4 of the proposal, the USA requested that the “drafting of the text of objectives and principles and model provisions for committee consideration have been done by Member States and not by a committee of experts.” – On point 5 of the proposal, issues such as Text and Data Mining and contract override “have not been thoroughly discussed at committee level yet.”And with respect to point 6 of the proposal, “we would request that the African Group consider broadening its group of experts after consultation to rightsholders as well”. |
| Indonesia | – Indonesia “believes that this proposal is essential to formulate more practical work plans and advance the discussion relating to exceptions and limitations.” – “The proposed work program will contribute to the continued work of the SCCR on the L&Es agendas in accordance with the GA mandate in 2012 for SCCR to work towards an appropriate international legal instrument or instruments on the topic of L&Es for libraries, archives, educational and research institutions and for persons with other disabilities.” |
| Uganda | – “This Committee has a unique role in responding to the need for guidance and robust exceptions and limitations to support education research and access to archives in the online environment including all the situations experienced by users of copyright systems during the COVID pandemic. The pandemic has related the role of exceptions needed to support online education and learning during lockdowns when there was no time for the child students or libraries to prepare.” – Uganda also welcomed the introduction of the two priority areas identified in the conference report: “Preservation of libraries and archives and online education including cross border borders by Internet. The work plan also links with the WIPO Development Agenda recommendations to facilitate access to knowledge and contributes to WIPO’s wider efforts towards achievement of the Sustainable Development Goals in particular SDG 4 on education and SDG 11 on safeguarding heritage.” |
| Nigeria | – “The subject of copyright limitations and exceptions is essential to promotion of information law for public interest purposes, cultural exchanges, as well as education and research institutions.” – Nigeria referred to the recent experience of the COVID pandemic which produced a debilitating effect on educational systems, including schools and libraries: “This lack of access to online educational resources was principally concentrated by the restrictive implementation of copyright laws as they presently stand in many jurisdictions.” – Nigeria also stated that the AG proposal “is in line with the resolutions and recommendations of the Naorobi regional seminar and would provide an effective guide to further deliberations on the L&Es agenda”. – Nigeria also remains committed towards finalizing the work of the SCCR ”with a view to adoption of a suitable instrument on limitations and exceptions for libraries, archives, museums and research institutions, and most importantly for Persons with Disabilities.” |
| India | – India welcomed the proposal presented by the African Group and “looked forward to explore the opportunity of having information sessions and exchanges with Member States, experts, copyright offices, agencies, and beneficiary organizations on the relevant issues.” |
C. Draft Text Approved
After a week of negotiations, Member States at the Committee agreed on the following text:
a. At the next SCCR session, the Secretariat should invite presentations during the Limitations and Exceptions agenda items by experts and Members on the possible coss-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.
b. Drawing on the work completed to date and further discussions by Members at the Committee as appropriate, the Secretariat should develop toolkits to guide targeted technical assistance programs which help Members craft laws and policies that support education, research and preservation of cultural heritage, developed in consultation with experts, stakeholders from beneficiary communities, and rightsholders, through transparent consultation processes.
c. At SCCR/43, with respect to paragraph (b), the Secretariat would present (1) a scoping study on limitations and exceptions on research and (2) a toolkit on preservation.
D. Next steps
While the Member States approved during the past SCCR42 only two points of the six proposed by the African Group, there are already tangible results from the approved work plan. A preservation toolkit was developed post-SCCR42, which will be presented during the SCCR/43. This toolkit would fulfill a long-standing aim of the Standing Committee on Copyright and Related Rights to make progress on limitations and exceptions for preservation copying, especially in the area of cultural heritage. Presentations also will be made on the ongoing research scoping study, and cross-border issues in education and research.
