In November, Communia participated in the World Intellectual Property Organization’s (WIPO) 40th session of the Standing Committee on Copyright and Related Rights (SCCR), the most important forum at the global level for copyright rulemaking. Due to the pandemic, this was the first time the Committee met this year, and the meeting took place in a hybrid format, with most of the delegations participating through online means.
Our expectations for this meeting were high. The COVID-19 pandemic has shown, more clearly than ever, that copyright can stand in the way of schools, libraries and cultural heritage institutions properly operating. Copyright exceptions that permit these public interest activities still do not exist everywhere. Moreover, exceptions do not always apply regardless of whether activities are conducted on site or at a distance (digitally).
Communia and other civil society observers were expecting the Committee to consider the impact that the COVID-19 pandemic has had on these public interest activities, and take appropriate action. However, WIPO member states had previously decided that, due to the format of the meeting, they would not engage in negotiations on any of the items on their agenda. Therefore, despite references to the problems caused by the pandemic in several Delegations’ statements, none put forward any proposal to deal with these issues.
Exceptions and limitations: shouldn’t we be there yet?
As explained in Communia’s statement to the Committee and highlighted by numerous WIPO-commissioned studies, WIPO member states are well aware that exceptions (notably the education and research exceptions) that exist today do not always have the elasticity to cover activities that take place remotely. More importantly, WIPO member states know that only an international instrument can solve the cross border aspects of distance activities, when the application of multiple national laws is triggered.
Progress on the topic of copyright exceptions has been limited for a number of years now. The only notable exception has been the Marrakesh Treaty, which establishes a mandatory exception for the benefit of persons who are blind, visually or otherwise print-disabled. Discussions on an international legal framework to cover a minimum set of legitimate uses made by persons with other disabilities, by educators, learners and researchers, and by libraries, archives and museums, have been diverted time and time again.
With the pandemic, this state of affairs is even less acceptable than it was before. Before we were already seeing a trend towards digital and cross-border access and use of copyrighted materials for educational, research and other public interest purposes. Yet, WIPO member states could justify their inaction by telling themselves that these uses were not significant.
However, in a few months, distance activities became the new normal. Now, institutions all over the world are opting for remote formats or hybrid models of in-person and online education, research and access to the collections of cultural heritage institutions. And we may never go back to the way things were before.
In other words, our calls to support, at the international level, a convergence of the national copyright exceptions, namely for education and research, can no longer be dismissed. More importantly, delegations, particularly the European Union, can no longer pretend that they can provide a national or regional solution for activities that involve people located in other countries and regions, which are crossing international borders, virtually, to conduct such activities.
An health emergency: the right moment for the Committee to give guidance and justify its existence?
We sincerely hope that, once the Committee resumes its work on the normative agenda, it’ll finally acknowledge these needs and social demands, as the alternative course of action will only weaken the defense of copyright as a system. It is an embarrassment, to say the least, to see the Global North, particularly the European Union, insisting in using the publishers’ “narrative” that education, research and other public interest activities are local and that there is no need to address these uses of protected content at an international level, at this point of our history.
This being said, the Committee should use this opportunity to take urgent measures to support WIPO member states in addressing, at a local level, the legal constraints currently faced by their public interest institutions due to the lack of copyright exceptions that work in the digital environment.
COVID-19 has caused massive disruptions to our modes of living, forcing the closure of the premises of schools, libraries, museums and other public interest institutions. When conducting their activities in the online environment, many institutions realize that their countries’ copyright laws are not ready to support their remote activities. And this happens across the globe, including in the European Union, where in many countries, due to the current lack of adequate exceptions, the only legal solution available is to rely on courts to justify those activities on the basis of fundamental rights.
The SCCR should use this critical moment to work on a declaration or other instrument, asserting the flexibilities available to WIPO member states under international law to allow for education, research and cultural access and use of protected materials in a digital and online context.
The Committee could follow the example of the Doha Declaration on TRIPS and Public Health, which clarified that the TRIPS Agreement could and should be interpreted and implemented in a manner supportive of the right to protect public health. The SCCR should work towards a declaration to clarify how international copyright law should be interpreted and implemented. It needs to be emphasized that exclusive rights should be interpreted and implemented in a balanced manner that promotes fundamental rights related to access to education, research and culture. Furthermore, a declaration should affirm the applicability of exceptions in a digital and online environment.
We are disappointed at WIPO’s inaction in the face of this global crisis. Yet we remain committed to working towards solutions that promote the public interest under these conditions and we call on WIPO member states to work with us.