E sccr/34/7 prov. Original: english date: august 4, 2017 Standing Committee on Copyright and Related Rights Thirty-Fourth Session Geneva, May to 5, 2017

AGENDA ITEM 8: EXCEPTIONS AND LIMITATIONS FOR EDUCATIONAL AND RESEARCH INSTITUTIONS AND FOR PERSONS WITH OTHER DISABILITIES

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   The Chair opened Agenda Item 8, limitations and exceptions for educational and research institutions and for persons with other disabilities. The Chair stated that as with Agenda Item 7, there had been quite a lot of discussions, studies and work by different experts and different third parties on that issue. The Chair stated that concerning that topic of educational and research, the Committee had the chance to use and to shape the international corporate regime for the good of millions of people who needed to have better access to education and to research and to all of the other activities. The Chair stated that based on a presentation that he had heard from the International Publishers Association (IPA), the four very dynamic educators and publishers from the world that they had watched, were impacting the lives of their communities, and it would be remiss of the Committee to not take that opportunity to work towards supporting, not just them, but the many, many others in different countries who are trying to do similar things. A lot of work had already been done in that regard, and the Chair wished to highlight three documents that were on the table: document SCCR/26/4 Prov., Provisional Working Document Towards an Appropriate International Legal Instrument (in whatever form) on Limitations and Exceptions for Educational, Teaching, and Research Institutions and Persons with Other Disabilities Containing Comments and Textual Suggestions, which was prepared by the Secretariat but had not been adopted by the Committee; document SCCR/27/8, Objectives and Principles for Exceptions and Limitations for Educational, Teaching, and Research Institutions, which was submitted by the Delegation of the United States of America; and document SCCR/33/4, Proposal Concerning Limitations and Exceptions for Libraries and Archives and Limitations and Exceptions for Educational and Research Institutions and for Persons with Other Disabilities, which was submitted by the Delegation of Argentina. During the previous SCCR session, the Committee had involved and engaged a number of experts and academics, and the Committee had requested for the updating of information containing the very voluminous study on copy limitations and exceptions for educational activities from Professor Daniel Seng from the University of Singapore. Professor Seng was now working on that and would present his results at the thirty-fifth session. The Chair opened the floor to regional groups and delegations.
   

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   The Delegation of Colombia, speaking on behalf of GRULAC, referred to the proposal by the Chair and stated that upon consulting with members of GRULAC, it welcomed the proposals that were represented, particularly with regard to updating the study by Professor Seng. The Delegation also supported the proposal made by the Delegation of Canada to update the museum's exceptions and limitations study. The Delegation stated that the table presented by the previous Chair was a very useful tool, which had to be converted into a document on the basis of which the Committee could continue its work. The Delegation stated that it was very interested in the Chai’s reference to a guide document for benchmarking and principles purposes. The Delegation requested some more information about the content of that proposal, which it found to be very interesting. On exceptions and limitations for educational and research institutions and for persons with other disabilities, the Delegation welcomed the work done by Professor Seng and looked forward to that update in the following session. The Delegation stated that it was very interested in knowing the possible progress made on GRULAC's proposal on the effect of exceptions and limitations already established in national legislation with regard to cross-border use of works for educational and research purposes.
   

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   The Chair stated that in relation to the benchmarking and guidelines, the idea was to look at how the Committee could put together a DIY guide that worked well for the regulators, legislators, and policymakers, on what elements of a law, or other administrative or policy actions, could look like, for the different types of limitations and exceptions involving libraries and archives, but even extending to education institutions, research institutions. That did not call for a limited or a very narrow view of one type limitations and exceptions. The Chair stated that a DIY guide had to address what would be some of the basic elements in each country, what would be some of the intermediate elements, and what would be some of the more interesting or maybe a bit more current elements. The Chair stated that that is what principles was meant to reference. As to benchmarks, the Chair stated that the word "examples" or some other word might be more comfortable for everyone. Having looked at some of the principles and elements that could be considered, the Chair stated that examples should be given on how those actually work. For example, if there was a country or a territory that had a great way of framing its limitations and exceptions for certain types of institutions that could be included in there.
   

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   The Delegation of Senegal, speaking on behalf of the African Group, stated that study and research were great challenges in developing countries, and that enabling libraries, educational and research institutions to give public access to that educational heritage was an important action. The Delegation expressed that the African Group would like to have an international legal instrument which would enable its countries to insure access to knowledge and know-how, and which supported educational and research institutions in that area and also persons with other disabilities.
   

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   The Delegation of Georgia, speaking on behalf of CEBS, reiterated its strong recognition that education and research institutions played a great role in the development of the society, and that they supported discussions on the limitations and exceptions for educational and research institutions and for persons with other disabilities. The Delegation expressed its gratitude to Professor Seng for his research on education and research. The Delegation was looking forward to the study on limitations and exceptions for persons with disabilities other than print disabilities undertaken by Professor Blake Reid and Professor Caroline Ncube. The Delegation expected to hear a more evidence-based approach to having the national and legal framework in that regard. The Delegation believed that those useful discussions on the licensing might be of interest for all Member States. The Delegation stated that a legally abiding instrument would not be an appropriate work of that Committee, on that topic, and that under that agenda item and based on the proposed chart by the Chair during the previous session, Member States could exchange experiences to find solutions to any specific issues under the international and national legal instrument.
   
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   The Delegation of Turkey, speaking on behalf of Group B, recognized the importance of the exchange of experiences with limitations and exceptions for educational and research institutions. As the studies presented during the previous sessions indicated, many countries had already established their own exceptions and limitations for educational and research institutions, which worked well and respected their respective domestic legal system within the current international legal framework. The work of that Committee should be shaped in a manner reflecting that reality and complementing the well-functioning framework. The Delegation observed a similar lack of consensus on that item, as is the case on the previous item on the agenda, namely the limitations and exceptions for libraries and archives. The Delegation appreciated that the aim of the Committee’s discussions was to reach a better understanding of that topic. The Delegation highlighted the objectives and principles proposed in document SCCR/27/8. The Delegation believed that the objects and principles laid out in the document could complement work on the limitations and exceptions for educational and research institutions.
   

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   The Delegation of the European Union and its Member States continued to welcome and support discussions on the existing international copyright framework that could properly support educational and research institutions and people with disabilities, both in the analog and digital worlds. The Delegation welcomed the work carried out by Professor Seng on exceptions and limitations for educational, teaching and research institutions, and it looked forward to hearing about the finalized scoping study on limitations and section s for persons with disabilities, other than print disabilities, undertaken by Professor Reid and Professor Ncube. The Delegation stated that it was important that WIPO Member States maintain a certain degree of flexibility which was particularly relevant across WIPO's membership. In many Member States, licensing also played an important role, either alongside the application of exceptions or instead of the application of exceptions. For those reasons, the Delegation did not think that working towards legally binding instruments would be necessary or, indeed, appropriate. Corresponding to what had said in the context of the preceding agenda item in the past, the Delegation believed that discussions on the basis of the chart that the Chair proposed at the previous session of the SCCR would be most useful if that focused on exchanging best practices with a view to finding efficient and effective solutions that addressed any specific issues, the limitations and exceptions or licensing under the current international treaties and at the national level. The Delegation emphasized its view that the work undertaken by that Committee on the subject could have a meaningful outcome only if the Committee shared the same understanding of the starting point and of the objective of the exercise. Clarity on that aspect was important, and in the same way, other subjects discussed by the SCCR should be pursued with having the need for an efficient use of time and resources in mind.
   

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   The Delegation of China stated that limitations and exceptions for educational and research institutions and persons with other disabilities deserved thorough research. The Delegation welcomed the updated study by Professor Seng and that of Professor Crews, and stated that it was ready to provide information from China to those two studies.
   

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   The Delegation of Iran (Islamic Republic of) attached great importance to the fair use of the system, and having that meant fair regulations and exceptions and limitations for educational and research institutions and persons with disabilities other than print. In that regard, the Delegation appreciated Professor Seng for his effort in finalizing his study and looked forward to seeing the updated version of the study and also the scoping study of the exceptions and limitations for persons with disabilities other than print by Professor Reid and his team. Bearing in mind the mandate by the General Assembly, the Delegation supported current initiatives to draft an appropriate legal instrument on limitations and exemptions for educational and research institutions and persons with disabilities at international level. Such a legally binding instrument would make it possible to meet the needs of all Member States in terms of the legitimization of the work.
   

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   The Delegation of Brazil reaffirmed its belief that a well-balanced copyright system was an unparalleled tool for promoting, rewarding, and disseminating knowledge. Those were three necessary aspects of the system. The Delegation stated that it had made suggestions in the past, which were incorporated in document SCCR/26/4 Prov. and believed that those suggestions remained entirely valid.
   

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   The Chair requested that the Secretariat briefly present the progress report on behalf of Professor Seng.
   

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   On behalf of Professor Daniel Seng, the Secretariat reported the progress status of the updated and revised version of his study. The Secretariat stated that the original study was available on the WIPO website as document SCCR/33/6. As a short background, during the previous session of SCCR, Professor Seng had presented a study, and then the Committee had a question-and-answer session with him. During that session, some of the Committee members requested that Professor Seng update and revise the study in order to correct some points or to add several new topics in the study. It was also during that previous session that the former Chair, Mr. Martin Moscoso, introduced an informal chart with those topics. Many of the topics were identified in the same study, but Mr. Moscoso also selected a few of the topics in the chart from documents already submitted to the Committee during previous sessions. In that regard, the Committee had requested that Professor Seng add some of those new topics into the study. The Secretariat presented a list of topics that Professor Seng had agreed to include in the updated version of his study. The Secretariat stated that some of those topics had already been reflected in the updated version, and the others were still in progress. According to Professor Seng, he had already corrected three requests in the updated version of his study. First, he updated the study to include regional agreements, such as the Cartagena Agreement and the Bangui Agreement. Second, he adjusted the study to reflect all the course corrections requested from some Member States, including requests from Germany and Nigeria. And third, Professor Seng updated the study to identify Member States that were members of Internet treaties in order to distinguish them from nonmember countries. There were now four topics that Professor Seng was undertaking in progress. The first one was the analysis on provisions specifically addressing the issues of digital copying and digital dissemination in the Berne Appendix context. The existing study used the original Berne Appendix classification of “reproduction” and “translation”, and Article II.2 stated that license was to make translation of the work in the said language and published the translation in printed or analogous forms of reproduction. Article III.2 of Berne Appendix stated the license was to reproduce and publish an edition with the digital copying considered one of the analogous forms of reproduction, and digital dissemination as one form of publication in the Berne Appendix. Professor Seng also noted that some Berne Appendix provisions permitted organizations to secure licenses to transform published works for use in educational broadcast or for the dissemination of the result of certain types of research, including broadcast, made through a digital medium. So the digital dissemination could also occur through such licenses in the context of the Berne appendix. The existing study reviewed simply if Member States adopted the Berne Appendix in their national copyright laws. For the revised version of study, Professor Seng was undertaking a new review of domestic copyright laws on the definitions of reproduction, publication, and communications so as to evaluate the scope of those definitions in relation to digital copying and digital dissemination. Professor Seng noted that he would go through this exercise only in the context of legislative definitions and not in the context of case law, where he was aware that some Member States may expand, remit, or hold those definitions, legislative definitions by “interpretations.” The Secretariat would provide the necessary support to Professor Seng to go through this exercise, which may require some legislation to be translated. Professor Seng was also undertaking the analysis on provisions which disallowed contracts from overriding copyright limitations and exceptions for educational activities. That was a complete renewed review, which meant that the existing study did not cover the topic as such, and that it did not capture all of those provisions. So far, Professor Seng had discovered that Member States adopted different formulations on those types of provisions. Some Member States adopted the positive formulation, like corrective license granted in place of limitations and exceptions, which could not be more restrictive than such limitations and exceptions, while others adopted a formulation like limitation or exceptions that operated in absence or awareness of contract. Professor Seng was also working on a new chapter in the updated version of the study for the analysis on limitations and exceptions restricting liability of educational institutions. It was still in progress, but Professor Seng had already noted a myriad of formulations among Member States. For example, some countries exempted educational institutions from criminal liability from copyright production whilst others remitted damages payable by educational institutions. Professor Seng also thought that his review may end up incomplete because those types of provisions may be found in non-IP registrations, such as panel statutes, which were out of scope for his review at that time. That work may require further translations of some legislations and the Secretariat would be ready to support him in that regard. Professor Seng also tried to expand the search for provisions enabling translation for educational activities beyond the Berne Appendix. Just to be clearer, the existing study had already analyzed the provisions on adaptation and translation in the context of Berne Appendix. Professor Seng was reviewing the national provisions again in order to see if there are any general limitations or exceptions on adaptation and translation outside or beyond the scope of Berne Appendix. Like the case of previous liability exceptions, Professor Seng noted the myriad of formulations among Member States, for instance, some countries formulated that the context of private use whilst other countries employed a broader term, like "use," which could easily encompass translations whilst others extended limitations and exceptions for translations or adaptations for educational activities. As conclusion, the updated and revised version would first encompass some regional agreements and reflect Member State correction feedback such as the Internet Treaty membership status. It would also expand the Berne Appendix analysis in order to encompass the digital copying and digital dissemination concept. And finally, it would review Member State legislations for three additional classes of provisions, and those three categories included contractual overrides, restrictions against civil and criminal liability for educational institutions, and finally, extension of limitations and exceptions to general adaptations and translations beyond the Berne Appendix. The updated and revised version of the study was planned to be presented directly by Professor Seng in the following session of SCCR.
   

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   The Chair stated that it was very useful for the Committee to get a sense of what Professor Seng was focusing on and what his progress was so far. The Chair noticed the number of requests from Professor Seng to have feedback from Member States, in relation to translations of legislation and other types of instruments, and urged those who wished to be of help to reach out to Professor Seng.
   

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   The Representative of Communia wished to address the Committee on the subject of the limitations and exceptions for educational purposes. The Represented stated that Professor Seng's study found that some Member States had narrow exceptions in the copyright works for educational activities. Those narrow exceptions prevented certain educational practices, such as the quotation of an entire image in a school presentation. When it came to modern educational practices, namely those that occurred in digital and online teaching environments, the legal standing was even more problematic. Indeed, certain acts which teachers were allowed to perform in face-to-face teaching may not be permitted in digital and online contexts. For instance, in the Netherlands, the law was clear that a teacher could show a movie from a DVD in class, but if the same teacher wanted to show a video from a free publicly accessible website, that teacher would not be able to do it. That was due either to inappropriate legislative techniques or to domestic policy decisions. In any case, what was certain was that cross-border educational uses were compromised at the onset due to the current national copyright laws, including within regions that enjoyed a high level of harmonization, such as the European Union. Therefore, continuing to discuss those issues in a forum that would lead toward an internationally binding instrument as mandated by the General Assembly 2007, seemed essential.
   
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   The Representative of the International Federation of Journalists (IFJ) stated that all those works remained one of the key raw materials for education. IFJ deeply regretted that educational and research institutions were underfunded. The Representative stated that no one was proposing that schools and colleges should get free electricity or free phone calls. The solution there was collective licensing through collective management organizations that were democratically controlled by the rights holders they represented. There was a wealth of misunderstanding of the issues. According to a statement addressed to the European Union by a pro-education site, it reads on the site, “We want you to have the freedom to teach without breaking the law. Before teaching their students about how representations of Shakespeare's "Romeo and Juliet" have changed through the ages, a teacher may have to ask permission from the rights holders of every movie she wants to screen in class.” The Representative stated that educators had to be relieved from this impossible task, but that even in the European Union that was an impossible task, and schools had to pay for a license from a collecting society and had no further administration. The Representative stated that in the United Kingdom, the collecting societies were working successfully on streamlining the system of licensing and making it more efficient in time and cash.
   

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   The Representative of the International Authors Forum (IAF) congratulated Chair and vice-Chairs and thanked the Secretariat for its work. The Representative stated that in an increasingly homogenized world, cultural diversity was important, and that it was the authors who maintained that in digital arts, literatures, language, and music, whose works were being considered in the proposals being discussed at WIPO. There were individual authors whose rights were involved in all countries and those rights had to be given primary consideration. They needed fair remuneration if they were to continue the work everybody wanted access to. Without payment, they would not be able to continue to create and the diversity and quality of content would suffer and the quantity of works produced would be limited. The Representative believed that there were already international copyright provisions in place that worked well and that would be able to enable the development of licensing frameworks, which enabled access, including a cross-border access provision through educational institutions, and ensured fair payment. Authors believed that those existing provisions contained sufficient flexibility for countries represented at WIPO to continue to work towards national solutions, such as licensing frameworks, which could be developed according to local needs.