KEI: WIPO should update 1976 Tunis Model Law on Copyright for Developing Countries

The twelfth session of the WIPO’s Committee on Development and Intellectual Property (CDIP) is taking place from 18 November 2013 to 21 November 2013. This Committee, squeezed into just four days of discussions, has a heavy workload. Some of the projects and proposals being discussed include: 1) Study on Patents and the Public Domain, 2) Scoping Study on Strengthening and Development of the Audiovisual Sector in Burkina Faso and Certain African Countries, 3) Study on Intellectual Property and Brain Drain – A Mapping Exercise, 4) Study on the Use of Utility Models in Thailand and 5) Implementation Proposal on Possible New Wipo Activities Related to Using Copyright to Promote Access to Information and Creative Content.

On Wednesday, 20 November 2013, the Copyright Law Division of the WIPO secretariat presented on an Implementation Proposal on Possible New Wipo Activities Related to Using Copyright to Promote Access to Information.

This is the intervention delivered by Knowledge Ecology International on this project.

Intervention of Knowledge Ecology International to CDIP 12

Thank you your Excellency,

As this is the first time Knowledge Ecology International is taking the floor, we congratulate you on your re-election as chair.

As this Committee considers project CDIP/12/9 on an Implementation Proposal on Possible New WIPO Activities Related to Using Copyright to Promote Access to Information and Creative Content, we would draw the Committee’s attention to an initiative jointly convened in 1976 by UNESCO and WIPO – the Tunis Model Law on Copyright for Developing Countries.[1]

We take note of the core objectives of this project (CDIP/12/9) namely, to

Gather information and explore the potential of the copyright system, its flexibilities and different models for managing copyright for enhancing access to knowledge

Conduct an interdisciplinary evaluation of opportunities for WIPO, within its mandate, to engage in new activities that help Member States achieve their development goals through enhancing access to knowledge.

KEI proposes that as part of its future implementation of this project, WIPO undertake a scoping study to ascertain the feasibility of producing an update of the Tunis Model Law adapted for the digital environment. This 1976 model law, drafted by experts at the behest of member states of WIPO and UNESCO, sought to provide a Berne-consistent template for developing countries that could accommodate both the common law and civil law traditions.

The 1976 Tunis Model Law addressed a number of the most important issues in copyright, including issues such as the protection of folklore, and limitations and exceptions to rights, such as those in Section 7, entitled “Fair use,” Section 3 on “Works not protected,” or Section 10 on the limitation of the right of translation. The Model Law provided a foundation for the protection of author’s rights, including extensive provisions on licensing of works and enforcement of rights, and proposed language on the treatment of domaine public payant in Section 17.

While the 1976 Tunis Model Law was useful, much has happened in the last 37 years, and it seems appropriate to consider an update of this soft law instrument.

In considering possible revisions of the 1976 Model Law, we would recommend WIPO examine the areas where a model act would be particularly useful, including, for example, as regards the implementation of copyright limitations and exceptions that address the special concerns of developing countries, and which take into account new developments of international law, including the norms contained in the WTO TRIPS Agreement, the 1996 WIPO Internet treaties, and the Beijing and Marrakesh treaties.

Among other topics, there would be an opportunity to draft model provisions that would address copyright limitations and exceptions for education and research, including those institutions like libraries and archives that support education and research, distance education delivered cross border, access to orphaned copyrighted works, more timely exceptions for translation, and systems of liability rules to address a variety of concerns regard access to cultural works, consistent with addressing the legitimate interests of suppliers of knowledge and cultural works.

In this regard, we note that Article 44.2 of the TRIPS and the WTO TRIPS exception for least developed countries provide possibilities for new ways of implementing copyright exceptions, including some of the approaches explored in the proposals for exceptions put forth by the Africa Group in the SCCR.

[1] Tunis Model Law on Copyright for Developing Countries (1976) Arabic, English, French, Portuguese and Spanish Other languages available upon request at (11/01/13)