[A2k] IP-Watch: Civil Society Issues Call For Action On Draft WIPO Copyright Exceptions

Thiru Balasubramaniam thiru at keionline.org
Thu May 31 21:44:01 PDT 2018


Civil Society Issues Call For Action On Draft WIPO Copyright Exceptions


This week the World Intellectual Property Organization copyright committee
is looking at exceptions and limitations to copyright. A range of
stakeholders with opposing views delivered long statements explaining their
positions. Some proponents of mandatory international limitations and
exceptions for certain actors cited the United Nations Sustainable
Development Goals inscribing equitable quality education as a right.
Others, like publishers’ associations, said the current international
system provides ample possibilities to devise national exceptions and

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is
meeting from 28 May to 1 June.

Libraries, Archives, New Technologies Accentuate Issues

Electronic Information for Libraries remarked that the development of
national copyright laws sometime does not provide for new technologies
widely used by libraries and users at large. There is a growing inequality
in the means to legally access knowledge, which will drive people towards
unauthorised sources, the representative said.

The International Federation of Library Associations and Institutions
underlined the role of WIPO with regards to limitations and exceptions to
copyright. Technology and user expectations have changed, the
representative said, globalization has accelerated “and the uniqueness and
importance of WIPO’s role has grown.” Progress on limitations and
exceptions or libraries, archives, and museum should not be controversial,
they said.

The Society of American Archivists said the limits of copyright law create
significant challenges for them and their researchers. Limitations and
exceptions are necessary for archivists to serve a global audience and to
do the preservation that makes access possible, the representative said. He
added that archives need to be able to share items legally, both locally
and across borders, and to utilize new means and technologies without legal

The International Council on Archives said limitations and exceptions are a
fundamental component of an appropriately balanced copyright systems.
Archives “desperately” need a truly international solution, the
representative said. Citing Canada’s Supreme Court, he said limitations and
exceptions are not just loopholes, they are in fact users’ rights which
along with owners’ rights are a fundamental part of the copyright system.

The international Council of Museums said libraries, archives, and museums
share subject matter and practices. It is, therefore, incumbent upon WIPO,
the SCCR and the secretariat to acknowledge this convergence when studying
the cultural heritage sector, the representative said.

Civil Society: Normative Work Key

The Electronic Frontier Foundation said the draft action plan is a good
short-term plan to work on limitations and exceptions. However, from an
historical perspective, the representative said, the EFF is sceptical about
whether non-normative work can lead to meaningful reforms to international
laws and practices. The Marrakesh Treaty to Facilitate Access to Published
Works for Persons Who Are Blind, Visually Impaired or Otherwise Print
Disabled, showed that WIPO can engage in normative limitations and
exceptions without the sky falling on rights-holders, the representative

The World Blind Union said technology is a big support for blind people and
they dream of a time when works in libraries, archives, and museums will be
fully accessible, as well as scientific and artistic works.

According to the representative of Education International, it is essential
that national and international copyright legislation facilitates the
provision of quality education for all. The representative noted that a
number of delegates this week commented on the UN Sustainable Development
Goal 4 (Ensure inclusive and equitable quality education and promote
lifelong learning opportunities for all). There is a need to make sure that
the work of teachers, whether they work in the digital or non-digital
environment, is not impeded by copyright legislation, the representative

Communia said the European Union will soon adopt mandatory exceptions for
various uses which will harmonise the laws of 28 European countries, this
despite their different traditions. This means that agreeing on minimum
standards is possible, the representative said. The reason EU countries are
harmonizing national laws is that “EU countries have such narrow
exceptions” that everyday practices such as showing a YouTube video in
class can be illegal, the representative explained. The industry, said
Communia, is calling for licensing but licences are expensive, and
one-third of teachers in Europe say they or their schools could not afford
to buy licences.

According to Communia, which said it conducted a study on licences in
Europe, current practices are not commendable, as licences restrict the
scope of protection of exceptions, and they grant “questionable rights to
right holders and impose burdensome obligations on users.”

Knowledge Ecology International (KEI) remarked that the 1971 Annex to the
Berne Convention for the Protection of Literary and Artistic Works, which
deals with access for developing countries, “is widely considered a
failure” and could be reformed and made relevant to the digital age. The
representative also called for a “serious discussion” about the so-called
three-step test, which describes conditions for limitations and exceptions
in particular in the Berne Convention.

The Third World Network also underlined SDG4, and said the absorption
capacity in developing countries can be built only by enhancing the quality
of the technical workforce. Copyright is thus key in facilitating
technology transfer, the representative said. A 2013 study revealed that
five multinational publishing houses account for 50 percent of all papers
published, he said. Lack of access to copyrighted material at an affordable
price not only compromises the right to education but also the right to
take part in the cultural life, he said.

The Civil Society Coalition said “certain interest groups and some experts”
are attempting to push back on limitations and exceptions and to use the
SCCR “to achieve that goal internationally.” Canada, the representative
said, is now the focus of much of this debate. Some allegations were made,
he said, that Canadian law contradicts the three-step test, as photocopies
were made of textbooks in classrooms. However, he said, section 107 of the
US Copyright Act allows for such copying, under fair use, without being

According to the Program on Information Justice and Intellectual Property
of the American University, Washington College of Law, the issue is not so
much the lack of ample flexibility in the current copyright system, but
rather the lack of adequate guidance in the international system. Many
countries lack adequate education exceptions for the modern digital
environment, and they need guidance which WIPO can provide to harmonise
exceptions toward best practice, the representative said. The
representative also underlined the price of publications. Often hundreds of
dollars are needed for textbooks, and thousands for journal subscriptions
in countries where average salaries are just a few dollars a day.

Industry Opposed to Mandatory Exceptions

Meanwhile, the International Association of Scientific, Technical and
Medical Publishers said they are opposed to mandatory copyright limitations
and exceptions at the international level. The representative said the
association believes that the international framework provides sufficient
necessary flexibility to develop national solutions and does not believe
that this prejudices cross-border exchanges.

This view was shared by the International Publishers Association, which
said strong exclusive rights, contractual freedom and copyright exceptions
are crucial to any balanced national copyright framework.

The International Federation of Film Producers Associations also said the
international copyright framework provides the requisite flexibilities to
enable member states to introduce limitations and exceptions addressing
specific public interest issues.

The International Confederation of Music Publishers further shared the view
that the current international framework provides sufficient flexibility to
allow individual countries to determine their own policies, adapt to
technological development, and provide access solutions in the digital

Journalism is fragile and under threat worldwide, said the representative
of the International Federation of Journalists, calling for support in
particular in the global South. It would be unfortunate to subsidise
libraries or archives or schools at the expense of authors or performers,
the representative said.

However, the Authors’ Alliance said authors around the world are likely to
benefit from limitations and exceptions at every stage of the creative

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International
41 22 791 6727
thiru at keionline.org

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