WIPO Secretariat Report on Limitations and Exceptions at SCCR 40

Discussions, or rather statements on limitations and exceptions started with the WIPO Secretariat’s report on regional seminars and an international conference that took place in 2019.

See Documents: Report on Regional Seminars and International Conference (SCCR/40/2) (available in six languages); prior related documents are available on the meeting page at https://www.wipo.int/meetings/en/details.jsp?meeting_id=56053

The Report encompasses four main areas:

    educational and research institutions

My notes on the Report summary presented by the Secretariat:

In May, 2018, members of the SCCR agreed on two action plans that could guide the work on limitations and exceptions for the rest of the 2018/2019 biennium. The plans included the organization of up to three regional seminars and an international conference on copyright limitations and exceptions for libraries, archives, museums, and educational and research institutions.

The regional seminars were organized in 2019 as follows:
The Regional Seminar for Asia and Pacific Group held in April last year in Singapore
The seminar for the African Group held in June in Nairobi, Kenya
The seminar for the Latin American and Caribbean Group held in Santo Domingo in July in Dominican Republic

The common methodology for these three regional seminars consisted in:

1. the work was carried out in working groups divided by subregions or by language;
2. a report in plenaries where Member States reported on observations and proposals;
3. the participation of 4 to 6 experts in the areas of libraries, archives, museums and educational research;
4. the use of certain tools and questionnaire and matrix to combine the findings in four main areas, libraries, archives, museum, and educational and research combined with areas of use such as preservation, access, reproduction or prepared use, and cross border.

Information was compiled in 16 clusters coming from the 4 categories of beneficiaries of limitations and exceptions and the four areas of consideration, preservation, reproduction, access, and cross-border uses.

From Paragraph 9 to 119 of the Report, there are summaries and remarks from Chairs and reporters. For the international conference see Paragraph 126, 127, and 128.

For example, regarding discussions on libraries and cross-border matters. In Paragraph 38 of the Report, during the discussions, a reference was made to the current regime of exchange of books in accessible format through the Marrakesh Treaty, and there was no consensus among Member States whether exceptions were necessary for general exchange of works in digital format. Some Member States suggested that further guidance that could be useful on the scope and application of exceptions in this context for education purposes.

Another example in regards to discussions on archives and access. In Paragraph 54 of the report, some Member States highlighted that the provisions regarding archives mostly exist for access to physical or analog copies but not digital copies. Some Member States thought this could be addressed through revision of copyright laws or other laws different from copyright law but in the field of intellectual property.

A third example is in regards to museums and preservations. In Paragraph 68 of the Report, most Member States emphasize that the justification for preservation of museum collections was mainly to mitigate the risk of irretrievable losing works in a collection due to climate change hazards, robbery, fires, and other catastrophes.

Finally, on education and reproduction in Paragraph 104, some Member States mentioned that there was a growing move from analog to digital content for classroom teaching purpose, and some Member States also noted the use of digital devices to transmit material beyond classroom; for example, through e-learning. They wonder whether and how this specific exception existing in the analog world would apply to these new uses. In connection with the following paragraph, 105, there were suggestions that there should be different conditions and even remuneration for differnt kind of teaching uses.

The international conference was organized on October 18 and 19 just preceding the Session 39 of the SCCR. According to the Secretariat:

“It provided an opportunity to address on a global scale some of the issues identified during the three regional seminars. It covered the four thematic areas that we just mentioned, the four categories of beneficiaries and exceptions and attended by more than 230 participants. We had 18 chairs and reporters from regional seminars attending the conference together with 44 panelists and 5 experts. And web page and documents as well as detailed presentations and even interviews of some of the participants are available on the WIPO website.

Regarding the ideas on archives,see Paragraph 174 to Paragraph 181, with list of 7 main ideas.

Regarding ideas on museums emerging from the conference see Paragraph 252 to 258.

Regarding ideas on libraries emerging from the conference see Paragraph 294 to 303

Regarding ideas on education and research, see Paragraph 355 to 359

At the end of the conference, the WIPO Secretariat identified three groups: the general principles and ideas, the Member State’s role, and the WIPO role.

Regarding general principles and ideas:

one of the most important principles was to recall the essential role of copyright to support and reward creativity. Creators have indispensable role and provide what becomes a cultural heritage and are at the core of education or research.

2. The question of cultural heritage as well is an invaluable and wonderful common good and multi-layer approach including technical and legal solutions for its preservation must be put in place.

3. facilitating access to knowledge is fundamental to achieve the goals of quality education and research.

4. the topic of limitations and exceptions to copyright is an issue shared by all countries as limitations and exceptions are a natural part of any balanced copyright system.

5. in addition to the ongoing work on limitations and exceptions, other solutions, including contractual arrangements and licensing-based solutions could be considered as part of a holistic approach.

6. digital, including remote access to content and cross-border uses should become normal.

7. the capacity building should be available to support countries that do not have a prepared limitations and exceptions in amending their national legal framework.

8. the importance of the three-step test.

9. the concerns about the liability of different stakeholders among the cultural and educational institutions, as well as the creation of safe harbors should be considered.

10. the search for solutions could be at national, sub-regional, regional, and international levels and considerations could be given to developing instruments appropriate at these levels.

Regarding the Member States’ role:

they have a major part to play in developing a national copyright system. Member States are encouraged to take full advantage of the scope of limitations and exceptions under the Berne Convention to fulfill their policy objective. Member States should also address the need to strengthen technical and institutional infrastructure when necessary.

Regarding WIPO’s role:

WIPO should ensure the provision of logistical and technical assistance and enhance the legislative capacity of Member States, and in particular for cross-border uses and the establishment of balanced copyright laws. WIPO should develop a range of tools such as model, recommendation, guidance, handbooks, and toolkits among others containing information on licensing options and limitations and exceptions.