Sean Flynn

The 43rd Meeting of the WIPO Standing Committee on Copyright and Related Rights made substantial progress on issues of concern to a newly formed Access to Knowledge Coalition. These include the adoption of a work programme on limitations and exceptions, progress on the limitations and exceptions provision in the draft broadcast treaty, and the reviving of a second meeting of the SCCR. These advances were promoted in part by changes in representation from Brazil, Chile, Colombia and Argentina and the continuing expertise and leadership within the African Group. 

WORK PROGRAMME ON L&E

The Committee adopted a new work programme on limitations and exceptions proposed by the African Group. The work programme calls for the Committee focus future work on “priority issues” including: 

a. 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; 

b. to promote the adaptation of exceptions to the online environment, such as by permitting teaching, learning and research through digital and online tools; and

c. to review 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 Programme usefully recommends several concrete activities that should take place. On the issue of cross-border uses, the plan instructs the Secretariat to organize “presentations by experts on the questions related to choice of law for cross-border uses of copyrighted works, … 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.” This is a topic that User Rights Network members have begun to research and discuss, including in a soon to be published paper by Naama Daniels. 

The Programme also proposes a process for generating language of instruments to be considered by the Committee. The African Group and other member states would prefer that instruments of the Committee be binding (a point Nigeria made strongly in its statement). The EU, US, and rest of Group B insist that work on instruments be of a non-binding nature. The work plan does not limit the work to one form or the other, stating that drafting should be “without prejudging the final outcome.” 

The Programme adopts a process to draft proposed language between sessions: 

“The Chair should advance information sharing and consensus building … between SCCR meetings through processes which are transparent and inclusive in conformance with WIPO Development Recommendation #44, such as working groups of member states, supported by experts as appropriate and agreed, preparing objectives and principles and options for consideration by the Committee.” 

This is perhaps the most important paragraph of the programme. It embraces a specific process for generating text between SCCR sessions and a type of instrument (“objectives and principles and options”). The US has tabled two models for objectives and principles that contain language of the type that could be adapted into a Joint Recommendation, framework for a treaty (not the US intent), or other form of WIPO instrument. The work plan adds the category of “options,” indicating that the working groups could propose text or other activities beyond the objectives and limitations model. A future meeting will need to form the work groups to begin the process. 

The work plan identifies additional issues that may be taken up by the committee in future work, “[o]nce the issues under points 1-3 have been discussed.” These issues include: 

  • 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; and
  • 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.

Finally, the work plan instructs the Secretariat to “develop tool kits to guide targeted technical assistance programs which help Member States exchange best practices and craft laws and policies which support education, research and preservation of cultural heritage.” This item ratifies the utility of the tool kit model following the presentation of the tool kit on preservation presented at the meeting. Representatives of libraries, archives and museums largely commended the preservation tool kit, which presents options for preservation exceptions, including more open and flexible models for domestic implementation. One benefit of the tool kit model is that it is drafted by outside experts and therefore can present a more objective analysis of options. Indeed, the preservation tool kits was strongly criticized by the International Publishers Association for its inclusion of more flexible and open models of exceptions, perhaps illustrating its utility. 

BROADCAST LIMITATIONS AND EXCEPTIONS 

A revised limitations and exceptions provision of the draft broadcast treaty was presented that begins to distance itself from the Beijing model. The Beijing model, which has been in the draft broadcast instrument for many years without substantive debate, only restricts limitations and exceptions. L&Es were required to be (1) of the “same kinds” as in copyright, and (2) subject to a 3-step test. The revision adds a Rome-like permissive list in addition. After criticism from member states and observers, the Chair agreed to redraft the provision to make clear that the list of Rome-like exceptions is illustrative, and countries would have freedom to adopt additional exceptions of any kind. A2K members suggested a stronger model, ensuring (through mandatory exceptions) that all uses permitted by copyright are permitted as well under any broadcast right granted under the treaty. (See Limitations And Exceptions in Second Revised Draft Text of the Broadcast Treaty.)

SECOND SCCR

The Committee agreed as well to insist on a second meeting of the Committee, after the Secretariat failed to schedule the meeting despite being agreed to in SCCR 42. That meeting, which will be truncated to 3 formal days rather than 5, will take place the week of November 6, 2023. This will be the next opportunity to form the L&E working groups and deliberate on the specific next steps of the L&E work plan. It will also likely feature a new L&E provision in the broadcast treaty.  

CONCLUSION

On the whole, it was the most productive SCCR on L&E issues in many years. James Love, a long time observer of the Committee, described the outcome and the strength of the public interest community as being the strongest since the conclusion of the Marrakesh Treaty.