SCCR/42: COMMUNIA statement on limitations and exceptions for education and research

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We are attending the 42nd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) in Geneva. Today, the Committee is discussing the issue of limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 8) and the following statement was delivered on behalf of COMMUNIA:

Dear Delegates,

It will not be easy to convince your families, friends, neighbours that policymakers from across the world should spend time discussing how to improve copyright exceptions.

There is absolutely no doubt that the restrictions copyright laws pose on access to knowledge and information condition the right to education and the right to research, and that educational and research exceptions would benefit society as a whole. That is what will determine whether teachers can show a short news report during live-streamed online classes, whether researchers can conduct medical research or track desinformation online.

Yet, the fact that copyright laws are hard to understand will be an obstacle to reforming copyright laws at national level. Therefore, when Global North delegations claim that each one of you can go back to your countries and introduce exceptions that work for education and research in the 21st Century, we say: that is easier said than done.

Indeed, if you look at the national exceptions for education and research in the European Union, before the recent EU-wide copyright reform, you will see that not even the EU Member States were investing time in solving these issues if they had not been forced to do so through a binding regional instrument.

It should also be said that the fact that copyright exceptions are now outdated only in the Global South does not make this issue less problematic for the Global North. Institutions in Europe and North America engage in cross-border education and research activities outside of their regions on a regular basis. Think about EU distance education programmes attended by students located in Latin America or international research programmes involving North American and Asian researchers. It is clear that the lack of the same minimum set of rights across the world prevents these cross-border activities from taking place, affecting both the North and the South.

We understand that this Committee is not ready to make a decision on how to positively affect copyright frameworks to actually protect the right to education and research. At the same time, this Committee has been discussing this agenda item for nearly 15 years.

We believe that it is fair to say that the work undertaken by the Committee so far has not had much impact on the copyright provisions that frame how educators and researchers can have access to knowledge and information. The African Group proposal could change the course of action to make the work of the Committee more useful. We, thus, urge this Committee to use its best efforts to reach an agreement on how to move forward towards more positive and impactful outcomes.

Thank you.

SCCR/42: COMMUNIA statement on the protection of broadcasting organizations

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In our capacity as permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 42nd session of the Committee, which is taking place in a hybrid format of in-person and online participation from 9 to 13 May 2022, in Geneva. 

Today, the Committee is discussing the protection of broadcasting organizations and the following statement was delivered on behalf of COMMUNIA on this agenda item (Agenda Item 6):

Much of the content that broadcasters transmit plays an essential informational, cultural and educational role in our society. Radio and television programs and archives are fundamental to have access to knowledge and information. They are sources of scientific research and are also used as educational materials. We recall that radio and TV-based remote learning have re-emerged in the past years, in response to the pandemic.

Therefore it is essential that educators and researchers have broad and immediate access to broadcast content.

Although the scope of the draft treaty has been reduced, the need for robust limitations and exceptions remains, when legal protection of broadcasters is shaped in the form of exclusive rights.

The problem is that the draft text only says that countries “may” extend the same exceptions that exist for copyright, but, obviously, countries can choose not to do this.

This is more restrictive than the Berne Convention, which has mandatory exceptions for news of the day and quotations, and permissive exceptions for educational and other uses. This may lead to the surprising result that broadcasts are subjected to fewer exceptions than the underlying copyrighted works.

A treaty that creates an additional layer of rights needs to also mandate the corresponding exceptions. Otherwise it ignores the societal and cultural needs related with access and reuse of broadcasts, failing the society as whole.

How to promote research and education at the global level? Takeaways from our panel discussion

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COMMUNIA and Wikimedia Deutschland held a panel discussion on February 15th to discuss whether the new mandatory exceptions in the EU Copyright Directive could serve as a model to solve some of the most pressing international-level problems around education and research.

The event started with Marco Giorello, the Head of the Copyright Unit at DG CONNECT of the European Commission, explaining the reasons for introducing mandatory exceptions for education and research purposes at the EU level (from min. 8:55 to min. 20:50). Marco pointed out that both research and education were at the forefront of the Commissions’ discussions on the modernization of the copyright system. The need for introducing mandatory exceptions for those activities became apparent after conducting a study of the national implementations of the optional EU-level education and research exceptions. Not all Member States had implemented the exceptions of the InfoSoc Directive. Those who had implemented them had done it in a very different way, and in a number of cases the national exceptions were clearly not applicable to digital and online uses.

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Save the Date: The New EU Copyright Exceptions – A Model for the World?

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Could the new mandatory exceptions in the EU Copyright Directive serve as a model to solve some of the most pressing international-level problems around education and research?

Join us on February 15th at 15:00 CET in an online panel discussion co-hosted by COMMUNIA, Wikimedia Deutschland, and the Right to Research in International Copyright Law project* to discuss this question.

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SCCR/41: COMMUNIA Statement on Limitations and Exceptions

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This week COMMUNIA is attending the 41st session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), in its observer capacity.

This is the second time the Committee meets since the beginning of the pandemic. In November last year, we urged the Committee to take appropriate action to respond to the massive disruption to education, research and other public interest activities caused by the COVID-19 pandemic. However, no Delegations put forward any proposal, and we left the SCCR disappointed at WIPO’s inaction in the face of this global crisis. 

Today, most Delegations expressed their agreement to a proposal to hold a number of regional consultations “to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them”. Furthermore, a proposal by the Asia-Pacific Group, to hold an informational session at the next SCCR on the impact of COVID-19 on all the beneficiaries of the copyright system, was also well received.

Global South countries insisted, nevertheless, that the next steps for the agenda items on limitations and exceptions to copyright should not be limited to those consultations and information sessions. Many Delegations recalled the 2012 mandate to work towards “an appropriate international legal instrument”, and urged the Committee to set a work plan to fulfill the mandate.

The following is the statement made on behalf of COMMUNIA on the agenda item on limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

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10 years of COMMUNIA, a decade of copyright reform: how far did we get?

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Last week, on June 15, COMMUNIA celebrated its first 10 years. To mark the event, we decided to revisit the 14 policy recommendations that were issued at the moment of our foundation, and that have been the guiding principles for our advocacy work in the last decade.

We launched a new website, dedicated to reviewing the implementation of these policy recommendations. 10 years on, it is possible to see that half of our recommendations have been implemented – fully or partially -, and the other half remains unfulfilled. Most importantly, almost all of the recommendations are still relevant.

Where victory can be claimed: freeing digital reproductions of public domain works and giving access to orphan works

One of COMMUNIA’s main objectives since its foundation has been to promote and protect the digital public domain. Therefore, when the EU Parliament decided to follow our Recommendation #5 and proposed the introduction of a provision in the new Copyright Directive, preventing Member States from protecting non original reproductions of works of visual arts in the public domain with copyright or related rights, we were exhilarated. Article 14 not only reconfirms the principle that no one should be able to claim exclusive control over works that are in the public domain; it’s also the first EU piece of legislation to expressly refer to the concept of “public domain”.

Getting the “public domain” to enter the EU acquis lexicon was a major victory for user rights, but for sure more measures are needed to effectively protect the Public Domain. Our Recommendation #6, which called for sanctioning false or misleading attempts to misappropriate or claim exclusive rights over public domain material, has not been implemented and is more relevant than ever, particularly on online content sharing platforms. Here, a false ownership claim can easily lead to the false blocking of public domain material, as a result of the use of automated content recognition systems combined with the lack of public databases of ownership rights (that’s why the German legislator has recently adopted measures against this type of abuse, setting a new standard for the protection of the Public Domain).

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The Croatian proposal to implement the new education exception: it could be better

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Make copyright truly fit for digital education
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In the last months, a few governments shared their proposals to adapt their national laws to the requirements of the Copyright in the Digital Single Market Directive, including to Article 5 of the Directive, which sets new minimum standards for the digital and cross-border use of copyright materials in education. 

Similarly to what we did with the Dutch, the German and the Hungarian proposals, we will keep tracking how these countries are proposing to implement this mandatory exception to copyright for educational purposes. Today, we provide an overview of the Croatian proposal by Timotej Kotnik Jesih and Maja Bogataj Jančič. 

What changes are introduced to the current copyright framework for education in Croatia?

The current Croatian Copyright Act (Zakon o autorskim pravu i sorodnim pravima, hereinafter “ZAPSP”)  does not include an educational exception for digital uses.  It contains only an exception allowing for public and stage performances of protected works in direct teaching or at the teaching-related events (see current Article 88 ZASP), which does not apply to digital and online education since it does not cover the acts of reproduction and communication of works to the public. 

The First Draft bill for the implementation of the DSM Directive, published on 17 April 2020, proposed to change the legal framework for education in Croatia by amending the existing public performance exception (see first draft Article 189), by introducing a new exception for the creation and sharing of teaching collections (see first draft Article 188), and by introducing a new exception for digital and cross-border teaching activities as mandated by Article 5 of the CDSM Directive (see first draft Article 190).

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COMMUNIA supports the WTO TRIPS Waiver for COVID-19

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Supporting an equitable response to emergencies
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Today, Communia and a group of over 100 organisations and more than 150 academics and experts issued a statement calling for the World Trade Organization (WTO) to temporarily suspend its rules on intellectual property where needed to support the prevention, containment and treatment of COVID-19.

This diverse group representing researchers, educators, students, information users, and the institutions that support them, urges all WTO Members to endorse the TRIPS waiver proposal presented by India and South Africa, including provisions that address “the copyright barriers to the prevention, containment and treatment of COVID-19”.

All over the world, educational institutions, research organizations and cultural heritage institutions have been forced into closure as a non-pharmaceutical measure to contain the COVID-19 pandemic. Yet, the majority of national copyright laws in all the continents have no elasticity to cover educational, research and public interest activities that need to take place remotely during the periods when the physical premises of those institutions are closed due to emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic.

Furthermore, as pointed out in the statement, “(i)n too many countries, researchers lack the rights they need to use the most advanced research methodologies, such as text and data mining, to help find and develop treatments to COVID-19.”

The fact that copyright laws are not able to support these activities constitutes a barrier to an equitable response to COVID-19, and it shows that these laws cannot be deemed to have properly internalized the fundamental rights to freedom of information, freedom of science and education. 

Therefore, the signatories call for urgent action to clarify that all copyright and related rights treaties, including the copyright provisions of the TRIPS Agreement:

  • Can and should be interpreted and implemented to respect the primacy of human rights obligations during the pandemic and other emergencies, including the rights to seek, receive and impart information, to education, and to freely participate in cultural life and share in scientific advancement and its benefits, while protecting the moral and material interests of authors;
  • Permit governments to protect and promote vital public interests during a health or other emergency; 
  • Permit governments to carry forward and appropriately extend into the digital environment limitations and exceptions that are appropriate in the digital network environment, particularly during a health or other emergency. 

You can read the full statement here

How Hungary has quick-fix implemented Article 5 of the DSM directive

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This blogpost is part of a series of blogposts where we track how EU Member States are adapting their national laws to the requirements of Article 5 of the Copyright in the Digital Single Market Directive (DSM directive), which sets new minimum standards for the digital and cross-border use of copyright materials in education. So far we have published analysis of the Dutch and the German proposals. Today, we provide an overview of the Hungarian new education exception by Mónika Trombitás Andersson. This overview focusses on the substance of the new exception; for critical perspective on the legislative procedure see here.

Fast implementation of the new exception to permit remote teaching during COVID-19

Just as in several other EU Member States, in Hungary as well the stakeholder consultations regarding the implementation of the DSM Directive are still ongoing. Yet, the provisions set out in Article 5, namely those concerning the use of works in digital and cross-border teaching activities, have already been implemented and the relevant amendments to the Hungarian Copyright Act (No. LXXVI of 1999) came into effect on 18th July 2020. The reason? Urgent need for modern copyright rules enabling schools to swiftly transition into distance education during the COVID-19 pandemic and distribute learning material digitally.Continue reading

Copyright and COVID-19: Has WIPO learned nothing from the pandemic?

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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.Continue reading