WIPO SCCR 41: Notes from Day 2

There was a strong consensus on the fact that COVID had adversely affected actors and beneficiaries involved with the copyright system, but there was less consensus on which stakeholders and beneficiaries to focus on as a priority, and which next steps and remedies should be considered. The gamut of stakeholders under the limitations and exceptions agenda item includes authors, publishers, creative cultural industries, educational and research institutions, persons with disabilities, libraries, museums, and archives, licensing societies, and users’ rights advocates.

Agenda Item: Limitations and Exceptions

1. Conducting an Information Session on impact of COVID 

Bangladesh (on behalf of Asia-Pacific group) proposed an information session on the copyright framework in the format of presentations from experts and relevant stakeholders as well as exchange of views among them at the next SCCR (SCCR42) to understand the impact on COVID-19, especially as developing countries, with a view of rights, related rights and exceptions and limitations. It noted the lack of international settings that could have enabled a collaborative approach during COVID-19 to handling the impact on education, research, culture and knowledge.

Pakistan, Indonesia, and Iran supported the proposal. South Africa backed both the proposal and the regional consultations along with a preference for completing them in a time bound manner by the next SCCR. Belarus was in support as well.

Georgia (on behalf of the CEBS group) was in favour of an information session for evaluating an all-round impact of the pandemic which was not only from a limitations and exceptions viewpoint. In a similar vein, USA suggested that the information session be holistic in its framing – all parts of the copyright system should be taken into consideration. UK (on behalf of Group B) stated that it would prefer to examine a formal proposal document on such a session first, that should adopt a ‘holistic approach’.

Towards the end, Indonesia questioned whether the idea of a ‘holistic’ information session equally focused on rights and related rights could even be counted or considered as a next step in the limitations and exceptions (“L&E”) agenda item.

2. Working towards a binding international L&E instrument

Georgia (on behalf of the CEBS group) stuck to its position of 1) taking an evidence-based approach on the way forward for the L&E agenda and preference to 2) exchanging national best practices instead of creating a binding treaty. Ecuador was also in favour of exchanging best practices. UK (on behalf of group B) was in favour of providing technical assistance to countries, and the EU and USA maintained their position against an international instrument.

Bangladesh (on behalf of Asia-Pacific group) stated that COVID had forced a rethink of role of copyright in ensuring access to educational and resource materials as well as protecting the rights of the creators of the copyrighted works, in situations such as the pandemic. The absence of an international instrument on limitations and exceptions has been widely felt in this context.

Pakistan stated that a baseline international instrument was necessary and would be useful for looking at one’s own national law. South Africa (on behalf of Asia-Pacific group) Indonesia reminded everyone that work under this agenda item should proceed under the 2012 mandate of developing a legal instrument on limitations and exceptions. Iran also expressed its support for a norm-setting instrument.

3. Work Plan under the L&E agenda

South Africa said that a clear way forward for limitations and exceptions was necessary, and that way forward should not be limited to the views and steps mentioned in the report on the regional seminars and international conference on limitations and exceptions ("report"). It also supported the 2012 mandate on developing an international instrument on limitations and exceptions.

UK (on behalf of group B) stated that access to knowledge should not inhibit the remunerative rights to authors and performers. Ecuador said that it supported narrow limitations and exceptions that comply with the Berne three-step test.

Russia suggested the creation of a set of “general principles” underpinning this agenda item, to set a base standard agreed by everyone and begin work from that point. It noted that it was crucial to resolve the issues of cross-border sharing, legal uncertainty between countries, and digital preservation. It added that the principles could become the guiding principles for national legislation as well.
Pakistan, noting the COVID impact, stated that cross-border cooperation or international norm-setting could be useful. Brazil stated that there was a consensus on preservation and cross-border issues, and room for further discussions on limitations and exceptions for ‘persons with other disabilities’ under this agenda item. Chile added that international guidelines were desirable at least in the area of education, libraries, and archives.

In the end, Indonesia in its statement reminded everyone that there was still no concrete work plan (under this agenda) on the table. This despite the draft report indicating issues such as preservation, online uses, cross-border uses, and safe harbour as feasible for discussion on next steps. The report had also recommended formation of expert groups to study these issues further (para 400 of the report (SCCR42/2)) It added that while it was aligned to the 2012 mandate (of producing a legal instrument), the work plan could include a joint recommendation.

4. Regional Consultations (as per report's recommendation)

China endorsed the regional consultation. EU supported regional consultations, noting that COVID had impacted creative cultural industries as well. Pakistan stated that it was important for the consultations to include beneficiaries of this agenda item.

UK (on behalf of Group B) questioned whether holding regional consultations were necessary during a pandemic, and later added that the regional consultations and information session exercises should not be executed together.