[A2k] What did the 2005 draft A2K treaty say about education?

Jamie Love james.love at keionline.org
Thu May 31 07:27:31 PDT 2012

In July, the WIPO SCCR will take up the issue of copyright limitations
and exceptions for education.  In 2005, a draft A2K treaty was
produced, out of a multi-stakeholder consultation involving member
states, businesses, academic experts and NGOS.

The following are parts specifically dealing with education from the
2005 version of the A2K treaty.


10 May 2005 Draft


   The whole preable is good and mostly relevant for education, but I
won't copy it here.

Members agree

Article 1-3 - Relationship to other agreements

(b) In order to limit tariffs on importation of educational,
scientific and cultural materials, members agree to comply with the
Florence Agreement (1950) and its Protocol known as the ‘Protocol of
Nairobi’ (1976).

(d) The public policy goals set out in this Agreement should not be
overridden by private contract.

Part 3 - Provisions Regarding Limitations and Exceptions to Copyright
and Related Rights

Article 3-1 - General Limitations and Exceptions to Copyrights

(a). Members agree that the exclusive economic rights of copyright
holders (including but not limited to reproduction, distribution,
display, performance, adaptation and communication to the public),
shall not apply to:

1. The use of relevant excerpts, selections, and quotations for
purposes of explanation and illustration in connection with
not-for-profit teaching and scholarship;

2. The use of relevant excerpts, selections and quotations for
purposes of criticism and comment, including but not limited to

3.  The use of works, by educational institutions, as secondary
readings by enrolled students;

4.  The use of works, by educations institutions, as primary
instructional materials, if those materials are not made readily
available by right holders at a reasonable price; provided that in
case of such use the right holder shall be entitled to equitable

5.  The use of works for purposes of library or archival preservation,
or to migrate content to a new format;

6.  The use of works in connection with legitimate reverse engineering;

7.  The use of works specifically to promote access by persons of with
impaired sight or hearing, learning disabilities, or other special

8. The use by libraries, archivists or educational institutions, to
make copies of works that are protected by copyright but which are not
currently the subject of commercial exploitation, for purposes of
preservation, education or research.


(b) It shall be presumed that these uses constitute special cases that
do not conflict with a normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the right holder.

(c) In determining whether applying any limitation or exception to
exclusive rights to a particular use of a work would conflict with its
normal exploitation or unreasonably prejudices the legitimate
interests of the right holder, the extent to which the use benefits
the larger public interest shall be taken into account.

(d) In addition to implementing specific exceptions for the cases
listed in subparagraph (a), parties to this treaty also shall
implement a general exception to copyright law, applicable in special
cases where the social, cultural, educational or other developmental
benefit of a use outweigh the costs imposed by it on private parties,
[and providing for equitable remuneration to the copyright owner in
appropriate circumstances.]"

Article 3-2 - Provisions regarding Distance Education

(a) Members agree that the convergence of telecommunications,
publishing, broadcasting and computing, is creating a media
environment with enormous implications for flexible learning, and mass
higher education and training, including through programs of distance
education. The cross border nature of information flows provides
compelling justification for harmonization of minimum limitations and
exceptions for distance education. In order to take full advantage of
new technologies in the delivery of education and flexible learning,
it is necessary to ensure that educators have sufficient rights to use

(b) The exclusive economic rights of copyright owners shall not extend
to the following uses in connection with distance education projects:

1. Performances of non-dramatic literary works;

2. Performances of any other work, including dramatic works and
audiovisual works, but only in ”reasonable and limited portions” and

3. Displays of any work in an amount comparable to that which is
typically displayed in the course of a live classroom session.

(c)The works described in (b) do not include works that are marketed
primarily for performance or display as part of mediated instructional
activities transmitted via digital networks; and performances or
displays given by means of copies not lawfully made and acquired, if
the educational institution knew or had reason to believe that they
were not lawfully made and acquired.

(d) Non-voluntary authorizations for education institutions and
programs to use works in distance education should not involve overly
restrictive or burdensome procedures.

(e) Educational institutions shall be permitted to record and retain
copies of the distance-education transmission, even if it included
copyrighted content owned by others, for (1) retention of the content
for student access for a period of time that is necessary to achieve
the learning objectives, and (2) copying and storage that is
incidental or necessary to the technical aspects of digital
transmission, including transient or temporary storage of material,
provided that the copyrighted content on a system or network is not
available for a longer period than is reasonably necessary to
facilitate the transmissions for which it was made, and to the extent
technologically feasible, the material is not accessed by anyone other
than the anticipated recipients.

Article 3-3 - The rights of persons with disabilities

(a) Members recognize the importance of accessibility in the process
of the equalization of opportunities in all spheres of society, and
the right of equitable access to knowledge irrespective of disability.
This requires:

a right to access knowledge through a diversity of formats to meet the
individual’s specific needs,

a right to transcend national frontiers,

a functional defintiion of accessibility, and

a functional definition of disability.

(b) Libraries, education institutions, or other institutions or
organizations duly designed shall have the authority to convert
material from one format to another to make it accessible to persons
with disabilities.

(c) The dissemination of works in formats that enable access by
disabled persons shall be permitted to any country that duly
authorizes the non-voluntary use of such works.

(d) Inclusive design principles to promote accessibility shall apply
to government web pages and other public documents.

(e) National legislation to protect copyrighted or non-copyrighted
works using digital rights management or technological protection
measures shall provide for appropriate exceptions that are necessary
to ensure access by persons with disabilities.

Article 3-4 - First Sale Doctrine for Library Use

A work that has been lawfully acquired by a library may be lent to
others without further transaction fees to be paid by the library.


Article 3-6 - Digital Rights Management and Measures Regarding
Circumvention of Technological Protection Measures

    This whole article is important. I'll just copy (c-e) here:

(c) Unless the use of DRM/TPM measures do not substantially interfere
with uses that are authorized by the right holders or permitted by
law, circumvention is permitted for the following works:
1. Works consisting predominantly of public-domain material;
2.  Works of medical and scientific literature;
3. Works substantially financed by national governments or
international organizations;
4. Works consisting predominantly of factual information available
from a single source, if equivalent information cannot readily be
gathered or compiled by others;
5. Works currently protected under extended terms of copyright that
exceed those required by the Berne Convention or TRIPS.

(d) In providing legal protection and remedies against the
circumvention of technological measures, contracting parties shall not
prohibit circumvention undertaken in connection with uses of works
that are authorized by rightholders or permitted by law.
(e) In providing legal protection and remedies against the
circumvention of technological measures, contracting parties shall not
prohibit the making available of any technology or service that is
intended primarily to facilitate uses of works that are authorized by
the right holders or permitted by law.

Article 3-7 - Non-original or creative works

Facts and works lacking in creativity, should not be subject to
copyright or copyright-like protections.

Article 3-8 - Orphan Works

(a) Members agree to implement measures that ensure access to works
that are unidentifiable, un-locatable or unresponsive, referred to as
orphan works.

(b) Use by reproduction in copies or phonorecords or by any other
means of use within the rights of the copyright owner, is not an
infringement of copyright when the user has conducted a reasonable
investigation and can conclude that the work is an orphan work.


Article 3-12 - Compulsory Licensing of Copyrighted Works in Developing Countries

(a) Members agree that:

1.  In the past quarter of a century, technical progress has changed
the ways and means of transmitting information and knowledge;

2.  Developments that have taken place in the field of international
trade during this period reflect in greater freedom of exchanges;

3.  The needs and concerns of the developing countries should be taken
into consideration, with a view to giving them easier and less costly
access to education, science, technology and culture;

4.  The Appendix to the Berne Convention has been of limited benefit
to developing countries, due to complex procedures, high transaction
costs, limitations on exports and the limited scope of works and uses;

5.  The Appendix to the Berne Convention is not a viable mechanism to
promote access to works that are distributed on the Internet.

(b) A new protocol for access to copyrighted works in developing
countries will be developed for compulsory licenses for copyrighted
works that will feature:

1.  Simpler procedures,

2.  Lower transaction costs,

3.  Faster decision making,

4.  Appropriate scope of works and uses, including for translations in
major languages,

5.  Permission to export to other developing countries that have
issued compulsory licenses for the same works,

6.  Feasible implementation for works distributed in electronic
formats, including over the Internet, or in distance education.

(c) The protocol described in (b) will be set out in the Regulations
to this agreement.

Part 4 - Patents

    Since this is the SCCR, I am not copying the patents section, even
though it is relevant to education.

Part 5 - Expanding and Enhancing the Knowledge Commons

Article 5-1 - Knowledge Commons Committee

A knowledge commons committee (KCC) is established to promote
cooperation and investment in databases, open access journals and
other open knowledge projects that expand the knowledge commons.

Article 5-2 - Access to Public Funded Research

(a) Members agree that works resulting from government-funded research
shall be publicly available at no charge within a reasonable time
frame, subject to reasonable exceptions, for example, for classified
military research, for patentable discoveries, and for works that
generate revenue for the author such as books.

(b) The KCC shall publish and periodically update best practices for
providing public access to government funded research.


Article 5-3 - No Copyright of Government Works

Works created by government employees and by contractors conducting
essential public functions shall enter the public domain.

Article 5-4 - Archives of Public Broadcasting

Members that provide free access to archives of public broadcasting
works to their own residents agree to extend such access on a
reciprocal basis to residents of other members who offer similar

Article 5-5 - Access to Government Information

(a) Members shall facilitate public access to information held by
public bodies and private bodies that are conducting public business.
This shall include laws and regulations to provide for legal
procedures for access to information based on the principles of
openness and transparency.

(b) The right to information shall be guaranteed by law in accordance
with the following principles:

1.  everyone has the right to access information held by public bodies;

2.  any exemptions to this right shall be set down in law, limited in
scope, and proportional to the interest to be protected, and subject
to a review of the public interest.

3.  any refusal to disclose information shall be subject to review by
an independent body such as an ombudsman and/or a court;

4.  public bodies shall be required, even in the absence of a request,
actively to publish important information of significant public

5.  secrecy laws and other legislation shall be amended as necessary
to comply with freedom of information principles.

Article 5-6 - Knowledge Commons Databases

(a) The KCC shall adopt procedures whereby persons, organizations or
communities that seek to establish certain qualifying open databases
apply for a time limited period during which no patent applications
can be submitted that rely upon the data from the database. To
quality, the databases must address an important public interest, and
be freely available to all.

(b) Members agree that during the time period determined in (a), no
patents will be granted for patent applications that contain claims to
particular uses of the data obtained from such a qualifying database,
unless such claims do not restrict, or are licensed on such terms that
that they do not restrict, the ability of others to use the data at no


Article 8-2 - Unfair Contracts

(a) Members agree to protect authors and performers from unfair
contracts with publishers.

(b) ..........

PART 9 - Transfer Of Technology To Developing Countries

Article 9-1 Committee on Transfer of Technology

A Committee on Technology Transfer (CTT) is created. The CTT shall
survey members on the mechanism that are most useful in the transfer
of knowledge and technology to developing countries.


Part 10 – Misc Issues

Article 10-1 Free Movement of Researchers


Members agree to facilitate and encourage the participation of
students and researchers in university programmes of another Member as
well as the ability of scientists, engineers and researchers, in
general, to participate in conferences or gain experience at firms in
another Member. This facilitation and encouragement should be extended
to visa and other administrative requirements.


Members agree to eliminate visa restrictions that limit the ability of
students to study at universities in another nation, or restrict the
ability of scientists or engineers to participate in conferences or
gain experience at firms in another nation.

Article 10-2 - Most Favored Access to Publicly Supported Research

Members agree that with regard to access to publicly funded research,
participation in research consortium, benefits of tax credits, or
other areas of support for research or the licensing of intellectual
property derived from public funding, any advantage, favour, or
privilege granted by a Member to the nationals of any other country
shall be accorded immediately and unconditionally to the nationals of
all other Members.


Part 11 - Obligation to finance free and open knowledge goods

a. Amount of obligation to vary by GDP and level of development

b. Tradable Credits for priority projects

PART 12 - Enforcement of rights and obligations

James Love.  Knowledge Ecology International
http://www.keionline.org, +1.202.332.2670, US Mobile: +1.202.361.3040,
Geneva Mobile: +41.76.413.6584, efax: +1.888.245.3140.

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