WIPO agrees to information session on COVID

Mr Aziz Dieng, who acted as chair during WIPO SCCR/41.

Posted by Teresa Hackett, Copyright and Libraries Programme Manager, July 15, 2021

Teresa Hackett, EIFL’s Copyright and Libraries Programme Manager, reports from the WIPO (World Intellectual Property Organization) copyright committee that met in hybrid mode in Geneva from 28 June to 1 July.

WIPO’s Standing Committee on Copyright and Related Rights (SCCR/41) has just held its first - and only - meeting in 2021. EIFL was represented by Teresa Hackett, EIFL Copyright and Libraries Programme Manager, Dick Kawooya, University of South Carolina, and EIFL Copyright Coordinator in Senegal, Awa Cissé, Universite Cheikh Anta Diop (UCAD), Dakar.

Because of travel restrictions due to COVID-19, member states had agreed to a general discussion around next steps on the agenda items rather than engaging in actual negotiations or decision-making on the issues.

EIFL called for action on two agenda items: fair access to broadcast content in the proposed treaty for the protection of broadcast organizations, and for work to begin on exceptions for preservation and other priority areas. We also urged extreme caution on starting any work on the controversial issue of public lending right.

In the main concrete outcome of the session, the Committee decided to hold an information session on the impact of the COVID pandemic on the cultural, creative and educational ecosystem during SCCR/42, which is due to take place in 2022.

Broadcast treaty: fair access and transparency

“The text of the broadcasting treaty should not negatively impact on access to information, culture and education.” - South Africa on behalf of the African Group

On broadcasting, EIFL raised two issues.

First, EIFL called for transparency in informal talks on the draft text taking place between a group of member states known as the ‘Friends of the Chair’ (consisting of Argentina, Colombia, the European Union, Finland, Germany, Japan, Kenya, Mexico, the Philippines, Republic of Korea, Russian Federation, and the United States of America). Delegates were briefed on two informal meetings that had taken place in April and June 2021, with the objective of reducing the number of alternative options among the outstanding issues in the draft text, then creating a new ‘Chair’s text’ for discussion at SCCR when normal business resumes.

EIFL supported member states, including South Africa (on behalf of the African Group), Indonesia, Pakistan, Chile and the UAE in calling for transparency in these informal discussions. In particular, EIFL highlighted two issues in which libraries have a vested interest and that remain outstanding in the draft text - term of protection and circumvention of technological protection measures. The outcome of any discussions on these issues will affect library use of broadcast content, such as the showing of broadcast films as primary research material for students in university libraries, or educational TV programmes to children in public libraries.

The Chair took on board the need to uphold principles of transparency and inclusivity, and promised to find ways of providing more information on the informal talks so that all delegates can be prepared for future meetings.

Second, EIFL called for an urgent review of exceptions and limitations in the draft text (document SCCR/39/7) to ensure fair access to broadcast content for public interest purposes, including long-term preservation. For example, the exceptions should be made mandatory (they are currently optional), exceptions that are mandatory in other treaties should be added (e.g. Berne quotation right, or Marrakesh disability provisions), and the specific exceptions that are part of the 1961 Rome Convention for the protection of broadcast organizations, such as teaching and research, should be included as well.

Unless these issues are addressed, the exceptions won’t be automatically taken up, if and when the treaty is implemented by countries. The burden of introducing provisions to protect public access will be shifted to civil society, including the library community, in each and every country that adopts the treaty.

Libraries need fair and guaranteed access to broadcast content for non-commercial, public interest purposes, and the rules need to be set at WIPO.

Limitations and exceptions: action on preservation

“It is our view that the agenda should continue with a focus on where there seems to be consensus, that is preservation and cross-border issues.” - Brazil

On limitations and exceptions, EIFL called for work to begin on priority areas highlighted in the Report on the 2019 Regional Seminars and International Conference on Limitations and Exceptions (document SCCR/40/2): online education, and cross-border uses, and preservation of cultural heritage. The report sets out a number of actions that WIPO could take, starting with model laws to guide countries.

The urgent need for action on preservation was highlighted in the recent fire at the University of Cape Town’s Jagger Library. The unique African Studies collection, used by scholars from all over Africa and the world, was devastated in the fire - most of the printed publications were lost (approx. 70,000 items), as well as the entire Film Collection (approx. 3,500 items). Due to copyright barriers, some items had no digital backup copies.

Yet the WIPO study on copyright exceptions for libraries and archives shows that only 53% of countries explicitly address preservation in their copyright laws, and others do not permit preservation at all, even for print formats.

This situation urgently needs to change, there is broad consensus among member states on preservation, and only WIPO can drive the change needed at a global level.

PLR - a holistic approach needed

On public lending right (PLR), EIFL and the international library community collectively opposed a proposal for a WIPO study on public lending right (document SCCR/40/3.REV.2) proposed by Sierra Leone, Malawi and Panama.

PLR is not a question of international copyright law, but rather of national cultural policy - it does not belong at WIPO. It is also complex and controversial - if done through copyright, most of the money collected could be sent abroad instead of benefiting local authors or publishers.

PLR is the requirement of ‘pay to lend. In developing countries in particular, PLR is a threat to free and equitable library lending services.

In Africa, PLR raises particular challenges. Libraries are a critical part of Africa’s commitment to free public education, and at the heart of book and reading strategies, but many countries struggle to fund libraries. In fact, in the 1990’s, WIPO rejected PLR because it would interfere with the goals of governments of developing countries to support literacy, and would strain already limited state support for public libraries.

While the proponents clarified that the proposed study would look at the disadvantages as well as advantages of PLR, libraries strongly believe that any study should take a holistic approach to the issue of remuneration for authors.- it must include other relevant issues such as transparency of publisher payments to authors, especially for digital works, unfair contracts, and rights reversion. It should also include all the ways that governments can support authors, such as direct grants and tax breaks.

Information session on the impact of COVID

“In the backdrop of COVID, the absence of an international instrument on limitations and exceptions has been widely felt.” - Bangladesh on behalf of the Asia-Pacific Group

For libraries and educational institutions, COVID-19 has tested national copyright laws for their ability to support online teaching and learning during the pandemic. In too many countries, they have fallen far short of what is needed. Libraries find themselves unable to provide access to much needed textbooks and other learning materials in locked down buildings, or they are left struggling in highly uncertain legal situations.

For this reason, EIFL and other civil society groups have been calling on WIPO to develop a Recommendation to clarify and promote flexibilities in international copyright law that permit online uses for education, and access to library collections during an emergency. It would provide immediate guidance for governments, and support libraries who still face problems providing materials to students and teachers for study and exams.

The Committee decided to hold a half-day information session on the impact of COVID on the cultural, creative and educational ecosystem during SCCR/42, which is due to take place in 2022.