Africa Group Members Call for Action on Limitations and Exceptions

Sean Flynn

July 24, 2024

GENEVA. The Africa Group of countries at the World Intellectual Property Organization criticised the slow pace of action on copyright limitations and exceptions in the Standing Committee on Copyright and Related Rights (SCCR). Their comments were made at the review of the SCCR at this year’s meeting of the General Assembly, which is the highest decision making body of WIPO.

THE STALLING OF AN AGENDA

The SCCR has had a standing agenda item on copyright limitations and exceptions since 2006, which resulted in the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled in 2013. The SCCR continues to operate under a 2012 General Assembly decision for the SCCR “to work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms),” on the other issues, namely limitations and exceptions for libraries, archives, museums, educational and research institutions and persons with other disabilities. 

Progress toward terms of an international instrument halted between 2018-2022 when there was no consensus to do any “normative” work on limitations and exceptions, in large part due to a position by the EU.  The EU has since shifted to oppose work only toward “binding” instruments, opening the way to drafting at least soft law documents such as a Joint Recommendation. In SCCR 43, the African Group successfully proposed that the SCCR return to norm drafting through a “work program” on “priority issues” producing “objectives, principles and options” of an international instrument in whatever form. But the work plan has not been implemented. 

Call for Action

At this year’s General Assembly, members of the Africa Group strongly criticised the lack of investment in progress on the L&E agenda while work on the Broadcast Treaty is intensifying. Kenya, for the Africa Group, stated:

“Chair, the group notes with concern the slow progress in advancing the issues on limitations and exceptions since the introduction of this topic in 2004. The group reiterates the need for more efforts towards implementing the work program on limitations and exceptions adopted at the 43 rd session of the SCCR. In this regard, the group looks forward to further refining of the draft implementation plan on the work program on limitations and exceptions contained in document SCCR/45/10 Prov. It is our hope that the planned series of consultations with group coordinators and interested members will result in an improved version of the draft implementation plan for discussion at the 46th session. To this end, the group stands ready to work constructively with other Delegations and the Secretariat.”

Other members of the Group spoke out in similar terms in their individual capacities. Nigeria, which has long been a leader on work on limitations and exceptions in WIPO, stated:

“Chairperson, to consolidate efforts towards the implementation of the work program on limitations and exceptions adopted at the third session of the SCCR, my Delegation wishes to encourage the Secretariat to focus on principles and objectives of the work program. We believe this approach will strengthen the Secretariat’s efforts as they prepare for consultations with group coordinators and interested Member States to revise the existing draft implementation plan for discussion at the 46th session of the SCCR.”

South Africa stated:

¨Limitations and exceptions play an important role of balancing the rights of creators of works and the rights of the public to access those works. The WIPO General Assembly acknowledged in 2012 the desirability for norm setting work on limitations and exceptions with special focus on limitations and exceptions for educational, teaching and research institutions and persons with other disabilities. However, except for the successful agreement of the Marrakech Treaty in 2013, now WIPO’s fastest growing legal instrument, discussions at the SCCR have not yet yielded satisfactory results on key issues such as exceptions for libraries, archives and museums, as well as for education and research institutions and people with other disabilities.¨

Namibia, who took a lead role in the negotiations of the recently concluded treaty on genetic resources and associated traditional knowledge, stated:

¨Our Delegation, therefore, note with concern the slow progress made by the Committee with issues of limitations and exceptions to copyright which have been == with the Committee for 20 years and limitations and exceptions to copyright for libraries and archives, educational and research institutions and persons with other disabilities at every session for the past eight years. Therefore, we support the call of Member States to revert to holding two sessions in order to expedite the finalization of the deliberations of the Committee which will facilitate the balanced framework for copyright which protects the private rights for public good objectives.¨

Support by other countries

Other countries also voiced support for quicker movement on the limitations and exception agenda. Pakistan stated:

¨Mr. Chair, Pakistan has consistently advocated for a sufficient broadening of limitations and exceptions agenda as pivotal to the achievement of developmental goals. We reiterate our call for norm setting work on a binding international instrument to resolve the systemic issue of exceptions and limitations which captures technological advances including digital use of copyrighted material. We also remain supportive of the implementation of the work program on exceptions and limitations presented by the Africa Group as a vital modality for continuing our work in this area.

Brazil reiterated “its support for the African Group’s proposals on the implementation of the work program on limitations and exceptions.” India also “supports the work plan of the Committee on limitation and exceptions.”

The Way Ahead

The big question for the limitations and exceptions agenda is whether progress toward an instrument will be demanded as part of any agreement to move the Broadcast Treaty toward a diplomatic conference. See WHITHER A SIGNAL-BASED BROADCAST TREATY? A decision on this issue is predicted to be a focus of next year’s meeting of the SCCR in the Spring and at the next GA in July.