WIPO’s never-ending delay on copyright exceptions for education
COMMUNIA believes that a modern copyright policy needs to empower — and not thwart — the activities of teaching and learning. Exceptions and limitations to copyright for education are incredibly important, and these exceptions should support necessary reuse of copyrighted content of all types in a variety of education settings, and across borders. In the context of the reform of the European Union copyright rules, we prepared a policy paper with recommendations on how copyright exceptions for education should be implemented in the EU. In this post, we’ll explore how the topic is being discussed at the World Intellectual Property Organization (WIPO).
WIPO’s preoccupation with the broadcasting treaty
For years, the debate on supporting broader access to copyrighted materials for education has been on the docket at WIPO’s Standing Committee on Copyright and Related Rights (SCCR) . However, even though the issue continues to appear on the agenda, very little has been done to shore up protections for teaching and learning in the digital, networked environment of our contemporary educational system.
Why don’t WIPO member states support mechanisms to extend copyright exceptions and limitations for education? One reason is that the audiences that would be affected by changes — teachers, researchers, students — seem to hold very little sway at the negotiating table in Geneva. Over the last several years, the majority of time at the SCCR meetings have been dominated by discussions about the adoption of a new treaty to protect broadcasting organisations. This treaty would grant to broadcasters a separate, exclusive copyright-like right in the signals that they transmit, separate from any copyrights they or others may have in the content of the transmissions. It’s been a part of WIPO discussions dating back to 1996.
A collective shrug from many member nations
When limitations and exceptions for libraries and education get discussed, most of the interventions have been made by the bloc of Latin American and Caribbean nations, as well as a small yet impactful group of civil society organizations working to protect and expand user rights. It seems that many of the national delegations — as well as the group representing the European Union — think that existing national copyright laws are good enough to address the modernisation of limitations and exceptions for education. The EU doesn’t want a legally binding instrument — such as an international treaty — that would compel any modifications to EU or member state legislation to better support copyright exceptions for teaching and learning.
The latest SCCR meeting held in May 2016 was no different. As reported by civil society WIPO observer EFF: “Proposals for a broadcasting treaty continue to edge forward, while rich countries remain at loggerheads with users and poorer countries about copyright exceptions for education and libraries.”
Seng’s global study of exceptions for education
However, there was some notable developments at the meeting, including the presentation by Professor Daniel Seng of a draft study on copyright exceptions and limitations for educational activities. The study takes at look at how 136 WIPO member nations currently address limitations and exceptions for educational purposes. The report is supposed to be completed by the next meeting of the SCCR.
Sean Flynn, a professor at American University and copyright user rights advocate at WIPO, provided a response to Seng’s 500-page report. Flynn noted that Seng’s report does a good job in demonstrating the wide range and scope of educational exceptions and limitations from around the world. At the same time, he observed that Seng’s study shows the limitations of some of the national implementations. For example, 16 countries say that uses of content made under an educational exception is limited to a single copy. And only 23 countries address the ability of users to circumvent technological protection measures in order to be able to exercise their rights under an educational exception.
Seng’s report is the second comparative study on national educational exceptions and limitations commissioned by WIPO; an earlier report focusing on North America, Europe, Caucasus, Central Asia and Israel was completed by Professor Raquel Xalabarder in 2009. In addition, Teresa Nobre (Legal Lead of Creative Commons Portugal) prepared a study of copyright exceptions and limitations for education across 49 European countries.
The future work on education exceptions at WIPO
Flynn also gave a short interview on the proceedings at the SCCR meeting that had to do with limitations and exceptions for education. He hoped that future discussions at WIPO will lead to more openness and flexibility for education exceptions. This would provide better alignment of copyright law and modern technology in order to advance educational practice.
We’ve argued that Europe needs a flexible framework of copyright limitations and exceptions in support of teaching and learning. Access to education is a universal human right, and our international agreements should strike a better balance between the rights of authors and the public interest, especially within the context of education. The issue should receive the serious attention it deserves at WIPO.
