Discussions regarding an “International legal instrument in whatever form on limitations and exceptions for educational teaching and research institutions and persons with other disabilities” 12/20/13
Friday December 20, 2013 10am to 1pm
This last morning started with some rumors that education as a topic might be knocked off the agenda of the SCCR. Obviously three hours later no one thought it would really be the case. However, we’ll see this afternoon what the SCCR draft conclusions look like. In the meantime, here is a brief summary of the morning discussions followed by quotes from all who spoke.
First the Regional Coordinators took the floor. In brief, there was no consensus among the members of the Asia group. The European and Baltic States do not wish to continue work on the topic. For Group B (the rich countries): no treaty is needed but they support update of the studies. GRULAC members want to continue being constructive regarding discussion on L&E and so affirmed China. Algeria on behalf on the African group explained why the proposal is essential considering the need to update the L&E applicable to the digital environment for educational teaching and research institutions and persons with other disabilities.
The individual member states then were invited to take the floor. The EU expressed their opposition to any kind of international instrument regarding L & E and complained that the Secretariat document did not include all the views on the topic. India focused on distance education and ISPs liability. The US expressed its opposition to work on a treaty and mentioned the risk of including such issues as ISPs liabitlity or issues related to public health that would bring more problems and stakeholders than necessary. Senegal quoting Mandela explained the need for an update (in the ICT sense) for L&E in the digital environment but remains flexible. Ecuador explained the need for a clear instrument that would provide certainty for distance learning and teaching materials. The complete and expert explanation also included the ask of more studies and updates regarding L&E for people with other disabilities (who for this blogger were sadly excluded from the Marrakesh Treaty). Egypt came in support next and suggested an exchange of examples of national laws. Tunisia also expressed its support. Colombia asked about existing L&E that might not be well used. Sudan, the last member states before NGOs, supported Algeria and then delivered the most complete and interesting statement. The Delegate noted that the US and the EU had already updated their own legislation for the digital environment.
The NGOs took the floor. The Civil Society Coalition (CSC) focused on the 3 step test and the purpose of the copyright system. KEI statements included discussions on how the Marrakesh Treaty could apply to people with other disabilities as well as the relationship between the 3 step tests and exceptions followed by remunerative schemes. KEI suggested two parallel tracks one of stakeholders platform and one for a treaty. IFFRO was followed by IPA’s representative who express an interest for more studies (while discreetly expressing his dismissive disbelief in any possible progress). The CIS made a strong statement critical of the Berne Appendix and the need for an update.
In his conclusions, the Chair highlighted some specific themes expressed by the delegations: distance learning, cross-border exchange of teaching materials all to be done within the copyright system. The meeting adjourned at 1pm and delegates went to the “free lunch” about Museums.
QUOTES (as complete as possible)
BANGLADESH:
I’m taking the floor on behalf of the group. Limitations and exceptions for additional teaching and research institutions and persons with other disabilities are very important issues which deserve our attention. Educational teaching and research institutions play a vital role in the developing of the individual and national [?]. In addition, persons with disabilities deserve our respect and it is our morale obligation all of us do our best to facilitate access to their learning. We would like to stress that not everyone has this so the individual members of the group will make their individual statements based on contributions but we hope this will further talk about the understanding of the issues. I assure you that constructive engagement of the members of the group in the coming discussion of the topic.
POLAND:
Thank you, Chairman. Good morning to everyone. Let me deliver this statement on behalf of strength European and Baltic States.
Mr. Chairman, the Central European and Baltic States regional group recognizes that educational and teaching institutions supports societies aspirations by developing and offering access to knowledge. Their activities for modern economies by providing diversity of specialists for labor markets. Such institutions all over our region train students in specific vocational areas, prepare them to practice particular professions and supplement professional skills and specialist knowledge, all of those in the spirit of respect for democracy and responsibility for the well-being of society and one’s place of work.
The main objective of the government’s policies all over our region in terms of scientific research is important in the economies and competitive and die numberric ones based on knowledge, capable of ensuring constant growth, creating better workplaces as well as improving social cohesion. We recognize existence of so-called knowledge triangle composed of education, research and innovation and for this purpose our region tends to mobilize and reinforce the research and innovative potential in the area of providing for adequate protection of Intellectual Property. We notice that educational and research sectors contribute to social and economic development that depends on technology, organization initial and marketing innovations. We recognize that education courses are nowadays provided in the various areas of study including regular daily studies as well as those offered in the distance learning systems. The digitalization of educational materials as well as opportunities provided by new technologies have led to the development of new teaching tools and methods with special focus on I CT-based learning and in that framework such Member States continuously support an inner institutional cooperation in education. At the same time we underline that the educational and research institutions are enter related with the publishing and other creative sectors, that’s why the sectors are one of the crucial aspects of public policies supporting creative industries. Therefore copyright policies have to assess economical and social effects of any solution to the problems with failing to enable access to results of scientific research and educational research. Our regional group recognizes that research, educational and institutions have to be supported by modern and balanced copyright policies. Copyright systems that exist in many WIPO Member States provide for spectrum of limitations and exceptions crafted specifically for educational and scientific research sectors. We recognize the value of sharing the experiences and views among different Delegations that had been taking place since 24th session of this committee. On the basis of the discussions so far we take note of the cozies tans of different models of limitations and exceptions that reflect diversity of traditions and educational and other relevant states. Along the same lines we see the future of the merit of the WIPO studies providing for limitations and exceptions for educational, research and teaching institutions. Our group is convinced that modern copyright systems also have to provide for variety of licensing schemes that are useful, flexible and supportive for educational research and teaching institutions and their every day activities. We should be — it should be up to every WIPO Member State to decide what kind of mechanism whether based on licenses or on limitations and exceptions are more adapted to the traditions and realities of their societies and better reflect educational and research policy goals.
Mr. Chair than, having said that, our regional at, our regional group and Member States believe it is crucial to preserve the flexibility of WIPO Member States to shape their educational, research and other related policies. We are of the view that legally binding instrument in this domain may question effectiveness of educational research and other related policies based on the copyright mechanisms and guarantee equal lib rim and support of the industries. We believe it is not undispensable to enter into treaty limitations and exceptions to support the values brought by educational research and teaching institutions in societies they respectively work for. We share the opinion that the Marrakesh Treaty, the result of tremendous work done by this committee address an issue which needed unique legislative action done in the international forum.
Mr. Chairman, the regional group of Central European and Baltic States declares its participation in the exchange of views of national experiences that relates to the limitations and exceptions for educational research and teaching institutions. Thank you.
GROUP B
JAPAN:
I would like to take the floor on behalf of Group B. Mr. Chair, on the outset, Group B would like to thank the Secretariat for the hard work carried out to prepare this working document SCCR/26/4. Group B would like to thank all Member States for their dedication to this important issue as we had meaningful discussion at the 24th Session of this committee. As with the limitations and exceptions for libraries and archives, we have already discussed, Group B, fully recognizing the importance of the ex change of our experience with limitations and exceptions for educational and research institutions. In this regard this document contains in each section valuable comments from Member States which will help us understand various legal systems and practices. On top of that, Group B would like to propose that this document should be always open to any input or suggestion from Member States so that it can keep us updated on the situation of Member States. On the other hand, Group B is concerned about son topics covered by this document as they seem to be beyond the scope of the limitation and exceptions for educational and research institutions. For instance, this committee is not given the mandate to work on the security which is found in section 7.5 of this document. And the security in section 7.7. Group B believes we should focus on topics that are specific to education and not get side tracked into multiple controversial issues that are not relevant. Group B is convinced this approach will bring us to a meaningful, informative discussion of this committee. As we have said during our convention on libraries and archives Group B believes that constructive work on principles and updating of studies by the Secretariat would be beneficial for all Member States rather than pursuing the work truce a treaty approach. Mr. Chair, Group B will continue to participate in the discussions on the limitations and exception for educational and research institutions in a positive spirit.
TRINIDAD and TOBAGO:
Thank you very much, Mr. Chairman.
Good morning to all colleagues. I wish to on behalf of the GRULAC thank the Secretariat for the preparation of all the document this week and especially the document before us today that is SCCR/26/4/PROV.
As expressed, the Diplomatic discussions surrounding limitations and exceptions be if for library and archives or for educational and teaching research institutions, SCCR in the framework on these topics have been founded with a genesis within the proposals made within countries in the GRULAC region. As a result of this, and quite naturally, our debate under SCCR/26/4/PROV just as our discussions yesterday on limitations, exceptions to library and archives of paramount importance for my group. The GRULAC is of the view that this can enhance the development and socioeconomic abilities of millionings of people across the GRULAC. It is for these circumstances that the GRULAC supports this proposal and will continue to work constructively during the course of this week for the further advancement of this particular issue on limitations and exceptions. Mr. Chairman, this is the statement on behalf of the GRULAC and is, of course, subject to any other statement which Member States within the region would like to make. I thank you, Mr. Chair.
CHINA:
Thank you, Mr. Chair. I thank the Secretariat for the work carried out in this area. China has always been of the view that we have attached a great importance to the protection of persons with disabilities and the development of education, teaching and research institutions. We have put forward laws and policies to protect the rights in these areas. Therefore the Chinese Delegation will always engage constructively and actively in the discussion of this topic. We have facilitated in the discussion of this topic. Thank you very much.
ALGERIA: […]
I should like to make a statement on behalf of the African Group taking up those elements which were presented at the African Group by African experts concerning the acceptance and limitations for education and research. I think this presentation by the expert exactly summarizes what the African Group awaits and hopes from this exercise and I quote the right for each country to have access to knowledge is no longer contested today. This is a fundamental right, this right states that there should be freedom to have available all educational material or material upon scientific research can be informed. This requirement make it is imperative to find a balance with rights which are exercised in intellectual creations constituting the main raw material for the embodiment of this freedom. We know that the balance between Intellectual Property rights and public interest are generally translated by exceptions and limitations. Unfortunately in the area of education and scientific research, national legislation does not seek this balance in a uniform and comprehensive manner. This means that the traditional paradigm of international instruments based on the principle that every country will duelly take into account of public interest within the legislation is inappropriate in the universe we have today with the digital invasion, the breakdown of borders especially between communities which share the same language. Therefore it is necessary to create universal legal instrument which lays the basis for a common approach to the creation of exceptions and limitations for education and scientific usage. The Berne convention has placed concerns on this but these provisions do not today enable us to face the challenges of the balance between copyright and related rights on one hand and the right to access to knowledge in its many die mentions on the other hand. Certain persons continue to assert that the Berne convention does not apply to distance learning or that even if this type of learning does come with its scope it cannot cover distance learning using digital methods. In this context it is necessary to create regulations to cover all types of learning and all the interests of all right holders. The Berne convention has not provided elements for the institution covered by the exception for the benefits of education and, therefore, we had to resort to conditions where the benefit for this exception is subject to the types of institutions covered. Now, this measure could not lead to satisfactory solution and finally it should be pointed out that while recognizing the needs to establish the satisfactory balance between protection of right holders and interests of the public at alarming the two 1997 WIPO and — 1996 WIPO treaties haven’t totally covered the digital dimension of exceptions and limitations therefore up until today the debate on reconciling technical measures which are usually legally protected and exceptions and limitations on the other hand is far from being exhausted. Therefore it is important to create in an international instrument provisions which without challenging these technical measures or their legal protection would offer to the states the possibility of having a better approach to the question of reconciling these with an exception or limitation for the benefit of education or research.
The text proposed by the African Group for these various reasons has three main characteristics, first obviously a text-oriented tool to finding satisfactory balance between the needs to gain access to works for education and research and the need satisfactorily to protect copyright and related rights. Secondly, the text with a certain flexibility which should enable it to aadapt itself to the various developments of states that would ratify it, various families of copyright rights and related rights and various treaties in literary and artistic property. Finally, the proposed draft is a text which should be consensual because it tries to recognize the variety of viewpoints from studies and WIPO experts and research. Now, as coordinator I think this presentation summarizes what we have from an international instrument on limitations and exceptions for educational teaching and research institutions and why we think it is useful. We work with the convention, the ’96 conventions exist, and I think as I have sufficiently explained and the African experts have sufficiently explained why the three treaties are no longer sufficient and why an international instrument on this area is obviously required.
Individual countries took the floor:
The Delegation of Kenya would like to associate itself with a statement made by the Delegation of Algeria on behalf of the Africa group. Our Delegation takes awareness of the importance of this and as explained in the document by the Africa group the Delegation is also grateful to the research as well as to the national experiences that have been provided as they provide an insight into the existing goal regimes in various countries which provide for the exceptions and limitations for the above institutions. As we’re in the process of amending the law to include the exceptions and limitations which in the current law are quite restrictive and do not offer much balance for purposes of research and education we welcome the discussion on substantive issues as they relate to these exceptions and limitations towards an international instrument.
Islamic Republic of Iran has the floor.
IRAN: Thank you, Mr. Chairman.
As several Delegations acknowledge this week, limitations exception could ensure fair and sustainable balance between copyright protection and public interest. The WIPO Copyright Treaties outlines exceptions in this regard, however in order to take into account the certainty on limitation and exceptions for education, teaching and research institutions and persons with other disabilities it would be imperative to establish international binding treaty which specifies the minimum and common standards especially given the situation in which the development of new technologies have changed education and research institutions and have modified teaching methods. It is important to establish a robust framework enabling research and educational institutions and have access to knowledge fulfill their goal in the digital age while preserving the legitimate interest of right holders. Mr. Chairman, the digitalization has had a profound impact on the public access which has introduced new challenges for research and education institutions in developing countries. Therefore we need updated, compatible instrument on limitation, exception for research and education institution to exploit existing limitation exception and sustainable balance of rights and public interest. In other words we should provide abdominal cablety and compatibility of the existing limitations in the digital world for education and research institutions. We welcome the discussion on best practices and comments of Member States on each topic. These could — these discussions could gradually bring maturity to issues and identify important elements and requirements that should be incorporated in the text of the treaty in the course of text-based negotiation.
EUROPEAN UNION:
Allow me to read out the statements by the European Union and Member States regarding agenda item 8.
During the SCCR/24 session, the European Union and Member States have debated and have actively engaged in an exchange of views regarding exceptions and limitations in the area of education and research. The committee was provided with information regarding the new legal framework and several Member States intervened in order to explain their national exceptions. The European Union and Member States find it important that the copyright framework enables these institutions to fulfill their role both in the analog and in the digital world. The existing international copyright framework properly provides for meaningful limitations and exceptions for the benefit of the institutions. The EU and Member States are willing to continue an exchange of views regarding the national experiences in this area. However, Mr. Chairman, the European Union and Member States believe that it is important to reiterate we’re in the willing to consider a legally binding instrument in this area. The EU and Member States do not believe that possible issues related to the activities of educational and research institutions require the same type of action as was deemed necessary to address the needs of people who are blind, vision wally impaired and print disabled.
In our view the unique case of access to books for the benefit of these people needed intervention at an international level, the Marrakech Treaty facilitated the access to the published works for people that are blind, visually impaired or otherwise print disabled, this addresses this specific issue. Even though our goal in the European Union is to ensure the functioning of an internal market without borders European and international legislation gives Member States a certain degree of flexibility which is particularly important in view of different legal systems and traditions of the 28 Member States. This is even more important on the enter natural scene where so many countries have taken different approaches in line with their cultural, legal traditions. In many Member States licensing also plays an important role either alongside the application of exceptions or instead of the application of exceptions.
In this context, the European Union and Member States would like to express their concern as regards to the status of document SCCR/26/4 prepared by the WIPO Secretariat and which is called provisional working document towards an appropriate international legal instrument in brackets in whatever form, all imitations and exceptions for educational teaching and research institutions and persons with other disabilities containing comments and textual suggestions.
In our view the structure of this document gives the impression that the document does not reflect in an inclusive manner the views of all involved in this discussion. European Union and Member States believe that the best way to make progress in our work is to identify those issues which are most important and useful for our exchange of national experiences and to update relevant WIPO studies. I thank you, Mr. Chairman.
India focused on distance education and ISPs liability.
INDIA:
As pointed by many Delegates, the importance of this is in scope, it is allowing the expansion of what we discussed about libraries and archives yesterday. Of course the libraries, it is at a larger level, and the classroom. Of importance, which I want to point out for knowledge, especially the developing and lease-developed countries in the area of distance learning, distance learning, again today is visible by expanding into the online mode. Obviously the question of material in form and transmission of this and how distanced learning is enabled in this important thing. Obvious lip when I do my personal observation given the limitations and exceptions I felt that there should be exceptions and limitations if tall anything on the exceptions because exceptions itself is something of a special concentration which you’re looking attic already settings. So, in that case another issue is about ISP liabilities, about the — not in other countries, but in India, under the information technology act we’re given certain operations for ISP relating to internet related issues obviously this is crucial since copyright is a concept which is applicable without registration so ISPs, you know, could be major issues because there is no way to check whether something is copyrighted or not or accepted, so ISP liability is one of the crucial things which we have to expand. Apart from this third point which I want to really discuss of getting some convergence is about stressing on licenses with the educational settings, it is complex in terms of expertise as we find that many institutions in the third world do not have any experience in terms of such offices. Obviously we’ll really look at exceptions as something which is non-compensation type of model which is crucial and further discussions about how it will be addressed in international space, the licenses, we feel universities could be chained very early on in this and the expertise and meanwhile, the very purpose of access to knowledge will get effected.
UNITED STATES:
Thank you, Mr. Chair. Before my intervention I would like to address just one logistical issue, as mentioned earlier this week, the United States has an updated document on objectives and principles for exceptions and limitations for libraries and archives. This document updates document SCCR/23/4 from 2011. If it is appropriate we would like to submit that to the Secretariat in soft copy at this time. Thank you. The United States recognizes that exceptions and limitations for educational purposes were considered as part of the international copyright regime as early as the Berne Convention in 1886 and that appropriate exceptions and limitations to copyright for certain educational uses are an integral part of any copyright system. The WIPO Copyright Treaty of 1996 also specifically refers to education in its preamble noting the powers of maintaining a balance between the rights of authors and the needs of the public with respect to education, research and access to information. The 1996 WIPO performances treaty includes this language on maintaining that balance. As we stated in our introductory remarks on limitations and exceptions on Wednesday morning the United States believes that further work on limitations and exceptions for educational purposes should be focused on finding common ground on high-level objectives and principles and explore the range of different treatments of educational exceptions by nations around the world. In our view this approach is most luckily to lead to positive, constructive results in this committee. It will permit progress by promoting steps forward on shared goals and principles while enhancing international understanding and maintaining flexibility at the national level. We do not support work towards a treaty. We would like to address one important point relating to the scope of this exercise. At the last session of the SCCR the United States and a number of other Delegations noted that the current working document on educational exceptions contains a number of general topics that go beyond the exceptions that are specific to education and research. These topics relate to education only in so far as educators may be somewhat effected by their application which could be true of almost any Intellectual Property related topic. Examples include ISP liability and public health. In the view of the United States the inclusion of such broad topics is troublesome for two main reasons, first the issue of copyright exceptions for the purpose of education is itself a rich, complex area for discussion which should be the subject of our sustained attention. Complicating the discussion with topics that bare only a transitional relationship to education will impede rather than advance these discussions. Second, this is amplified when the proposed germain topics are among themselves the most complicated copyright issues. The discussion of such topics will not just slow progress but risks bringing the conversation to a standstill as other stakeholders not otherwise effected by education exception also find it necessary to become engaged. To assist in moving our discussion forward the United States is preparing an objective and principles document on limitations and exceptions for educational activities along the lines of our updated document on limitations and exceptions for libraries and archives. We plan to circulate an objective, principle document on this topic prior to the next meeting of the SCCR. These objectives and principles will include the following elements, first Member States Member States should provide certain exceptions and limitations for educational and research purposes. The premise that education and research should be given special treatment under Copyright Law has long been enshrined in international agreements providing a framework for exceptions and limitations in this area. Both exceptions and limitations that promote access for educational purposes including exceptions for distance learning and strong protections for authors is vital to achieving the copyright system goals. Such exceptions and limitations must be consistent with relevant international obligations including the three-step test. At the same time Member States should foster a dynamic commercial market for educational and research materials, a vibrant commercial market for these materials is vital for educational and research purposes, cost effective licensing models can allow for educational uses that are not covered by limitations and exceptions and national law. The United States also believes that the four WIPO geographic studies from 2009 on this topic should be updated for the benefit of these discussions. We would urge adding a component on distance education and any updated studies and may have further discussions for sub topics arising from our objectives and principles document as it is developed.
SENEGAL:
Thank you, Chairman. On behalf of my Delegation, the Delegation of Senegal, directly on the presentation from the African Group we reaffirm the need for such an instrument at the international level. This question has been raised, what is the best, this is a question asked in ancient@thens and the question was for the society and for its era it is true that the Berne Convention is from 1961, the WPPT and W CT are from 1966 and the world of 2013 is too far removed from 1961 and 1996. And the movementS on the international treaties for archives and library services will not effectively resolve because they’re unable to at the time, the issue of the digital world, which we have today. Now, our world today is developing very quickly and it is thirsty for knowledge. It wants to have knowledge about its past, knowledge about what is to become of it. Thus, it is important to have education and research establishments which are increasingly turning to distance learning. Now this treaty which is greatly desired by Senegal is an instrument which promotes a balance between public access to knowledge and safeguard of copyrights. Therefore, Senegal will remain flexible, it will always remain flexible. This treaty really is only an update in the I CT sense of that term to facilitate the traditional vocation of libraries and archives thanks to digitalization, it is a good framework for cross-border exchanging in this area. It is interesting that some of the provisions appear to be broad, vague and complex, however Senegal in agreement with the African Group will work very hard to have a very clearly defined and targeted text, very clearly delineate sod that we do not move away from the heart of the matter and that opened pandora’s box, we endorse the beautiful idea of Nelson Mandela, education is the most powerful weapon for changing the world and this change is required because of digital imperialism and achanges the law of life. Only the past and the present, they’re certain to miss the future.
Chairman, the future, it is already here in the presentIn other words, when the Berne Convention was drawn up there was stress laid on the work that were only just — that we’re only just starting on here in this house today to provide compulsory instruments that would allow the positive approach that we have already mentioned and I would conclude on the issue of education.
Moving to the other subject for this morning which refers to the exceptions for people with other disabilities we believe that this is also an essential point, the Marrakech Treaty has allowed us to establish a precedent which might be used in current light in the case of persons with other disabilities. We have discussed the issues of the Marrakech Treaty and persons with other disabilities have asked when we’re going to solve the situation for them. We do have to work on this and at least start off with studies that the Secretariat perhaps could have and we propose that the Secretariat do a study on the exceptions and limitations with regard to persons with other disabilities. The deaf, the deaf — persons with speech difficulties.
EGYPT:
Thank you, Chairman, firstly I should like to congratulate you on your election to the Chair of this committee. It was a great pleasure for us to know that we would have your experience and brilliance because we already saw your work in Marrakech, your role as facilitator greatly contributed to the success of that conference. We congratulate you and we believe that thanks to your abilities we will achieve the objectives before us, the Delegation of Egypt associates itself with the statement of the African Group made by Algeria and the proposal submitted by the African Group in — proposal in document 26/4 this proposal and our view contribute tots role of copyright in promoting the knowledge and creating the necessary balance so it is a balance between copyright and related rights and the needs of the public. We believe that these proposals are intended to promote the level of education and increase the level of education and access to knowledge through the copyright system.
Thirdly, this makes it possible to promote access to all the educational materials which are available. We thank all the Member States for all their contribution for all of the ideas which have been put forward and opinions that have been shared and which make this a very enriching discussion. It is very important for us to compare with the mandate handed down by the General Assembly which states that the committee should continue in its role in the development of international treaties through — through international legal instruments in any form. An appropriate international legal instrument in whatever form, so as to submit a recommendation to the assemblies on the work which the committee has done on exceptions and limitations for educational teaching and research institutions and persons with other disabilities. Coming now to this working document there is a mixture
here of proposals, comments, which are very detailed, there are many national examples of exceptions and limitations from various countries. What we would propose, if the Secretariat agrees on this document, if the Secretariat could add the legal text which were applied in the various countries which have referred to their experience on exceptions and limitations, this would make it easier for experts because they would be able to learn about these systems which already exist and which are the reasons for the opinions expressed in this document.
I think this would be a good way to make progress in our work so that we can achieve the objectives in our mandate. In conclusion, we’re very flexible and would like to cooperate fully to make headway in the work of this committee.
TUNISIA:
Thank you, Chairman. We would like to associate ourselves with the statement made by Algeria speaking on behalf of the African Group with regards to the importance of setting up an appropriate international legal instrument on limitations and exceptions for libraries, archive services, educational, teaching and research institutions. In order to give the important to the role of establishments working in this area especially those in developing countries to help them to disseminate knowledge and provide access to culture in general. An instrument of this type could contribute to the harmonization of the international legal system in this area and give greater legal security and clarity and fill that in in this system facilitate access of establishments in culture, education and teaching and programs and projects in this area and also to guarantee the requisite balance between literary and artistic right and the right to access to culture and education.
COLUMBIA:
Thank you, sir. I will like to come in and reflect on the subject we’re dealing with on the basis of a premise that nobody I think can deny, that is how important education is. I’m sure as happens in our country all countries and all constitutions of the states present here, education is a higher goal, a higher objective that we must all strive for. We’re also aware of the role being played by Intellectual Property systems in terms of policies, educational and social policies and these need to be suborrdinated to the higher objective, goals, as in the case of education. For the case that we’re discussing this morning, copyright can be a very effective tool to assist in meeting that objective ensuring quality education and more specifically, the issue of exceptions and limitations clearly complies with that role, the role of copyright together with the exceptions and limitations they can be significant cooperation in achieving the goals and objectives of all of our states in ensuring that education, the quality of education increases.
Copyright is not only of use in providing an incentive to creation, not just creation itself, but also other creativity, the document that we are examining clearly states that there are many limitations and exceptions with regard to education so what we ask ourselves and wonder and following your methodology, sir, we want to see what is the real problem. Is there a lack of exceptions and limitations or are we just not familiar with this and therefore do not use the exceptions and limitations that already exist. It may be that the answer to this question is a bit of both. In that case we need to find mechanisms to solve on the one hand the lack of some exceptions and limitations as well as as the use of those that already exist but are not familiar to those with the responsibility in the educational field which, of course, is a problem which is probably greater than the fact that there is a lack of exceptions and limitations. I don’t know if it’s an international agreement, a treaty, but what I do know is that there should be mechanisms that should allow the present exceptions and limitations existing exceptions and limitations to be used, to be practiced so in a way I’m calling on us to not only look at where it is necessary or not to continue to look at and implement new limitations and exceptions but this is also a call for us to establish mechanisms to use existing limitations and exceptions.
That’s what I want to say.
CHAIR:
I thank the Distinguished Delegate of the Republic of Columbia of that clear presentation, not just of your view of the problem but also the way you propose we develop the issue and I think CHAIR: I thank the Distinguished Delegate of the Republic of Columbia of that clear presentation, not just of your view of the problem but also the way you propose we develop the issue and I think it is very useful for our further work and could guide our discussions later on. I would like to point to the fact that Columbia has said that Intellectual Property has a role in establishing public policies so that the IP system has an impact on a country’s development and among other things also has an impact on the educational field or ensuring greater quality in education and in looking at the scope of the problem there is not only potentially a lack of limitations and exceptions but there is the other problem which is the possible exceptions that could be used that already exist are not being used. And so definition of one part of the problem doesn’t mean that we’re forgetting or setting aside the other side and so the Delegate of Columbia is proposing how we can take on what both aspects of the problem and I hope there can be other opinions. If we only concentrate on one or the other we think everything is solved and in fact the problem is more complex than that. I do thank the Delegation of Columbia for that statement.
SUDAN:
Thank you, Mr. Chairman. We wish to express our support for the statement made by the African Group by Algeria. We fully respect the three-step test. We find that there is another situation I have been confronted with as a result of technological development to discuss and examine the real foundation of Intellectual Property as the basis for understanding in this organization, it calls on us to establish new measures and a new binding legal instrument which would serve the interests of scientific research, institutions and educational institutions. The document before us indicates that seven countries have, in fact, anticipated this problem especially the U.S. as we have heard from the statement made by its Delegation.
Especially the first session and in the present one we find that the U.S. has drafted legislation in 2002 which helps coordinate the technology, education and copyright and what’s known as a teach law. The European Union and its directive has The European Union and its directive has sought to facilitate exemptions and limitations to provide with assistance to certain areas in the European Union. However I need to point out that these countries have, in fact, outlined or anticipated the problem and in so doing they have taken four steps which have been further supported and backed by experience.
The African Group in these discussions and debates has sought to enable scientific eternal institutions to access information and knowledge all while respecting the three-step test. They have sought to do so by ensuring that the defined recipients will be the real recipients. So they’re reaching to breach that gap of the developing, under developed countries and the African countries are seeking to establish their justice and use of educational facilities and the international organization such as UNESCO and other organizations have also endeavoured along this. All this, in fact, directs us to our collective responsibility to use and consider education as a key to knowledge and democracy.
We are all, in fact, in these efforts attempting to break the current situation faced by certain countries in communication or in building the infrastructure and bridging the digital gap. As we all know, the digital gap has indeed helped bridge distances and has helped to achieve what may be agreed or convened as bringing time and space to one location. Since our last meeting we have developed legislation which is 113 on copyrights and neighboring rights, this new legislation has allowed the use of works published ones or visual ones for educational purposes. These works may be used in a manner that there’s not harm or impinge on copyright and commercial rights and the legislation has sought to defend the author’s rights. Article 37 of this legislation authorizes, in fact, compulsory licensing, compulsory licensing is as per this legislation is authorized for education and research. It is limited in time and provides adequate compensation for the author and his heirs. Conditions and regulations are set out to implement this legislation as set out in the annex to the Berne Convention regarding the developing country. However, the point is, have developing countries indeed in fact benefited from joint or general conventions even the Berne Convention in the field of coordination, have international organizations helped to facilitate the steps set out in them to overcome this and to enable education which is one of the pillars of this organization?
We have also been witness to such developments in other aspects from the activities of this organization
These are the achievements we hope to be realized through this legislation and at our next session we should be able to receive comparative studies of national legislation as this will help to bring closer the various views and opinions and so we will be able to outline the specific exceptions and limitations. This comparison will also enable us to identify the type of bilateral agreements which have helped the various countries to in fact coordinate action at the various levels so as to implement the exceptions and limitations without any due harm to copyright.
I finally wish to express my support to the request made by a number of countries calling on the organization to provide copies of those studies undertaken in which highlight the regions benefiting from technology in addition to those problems and complications which could arise out of the implementation of such technology as pointed out by a number of countries because
certain countries have pointed out that even the encryption in certain cases does impinge on those rights that have fallen to the public domain. The smart technologies, it may indeed in fact create barriers to which the general is benefiting from the modern technologies. I would like to draw your attention that amazon, other institutions have created a market which would help benefit the user.
Another aspect that could be considered and could be of use in the implementation of this convention are — is for — rather for us to consider those possibilities created by the Marrakech convention and this should be undertaken without, in fact, in any manner harming the legitimate rights of authors or all other right holders because in a number of side events we have attended during this week we have noted that authors and right holders have been effected by the inappropriate use of their works and creations.
CSC
Thank you, Chair. Since this is the first time that the Civil Society organization takes the floor, I would like to congratulate you on your election as Chair.
I’ll focus my point on three elements, specific exceptions, the three-step test and the corporate system. Indeed, the Berne Convention contained some exceptions for education and scientific research. There were exceptions for extracting portions from works for use in publication for education or scientific purposes. In civil sections of the convention the exact wording relevant to education, they have evolved. In 1948, for example, direct included permits of the artistic works and scientific or educational publications was a matter of legislation in the countries of the union and for special arrangements existing or to be concluded between them. The standard for exception was for the use of excerpts justified for each purpose.
In 1967 there was a major revision of the convention which included for the first time a new exception for teaching and education and a mandatory exception for the rights of quotation.
The recourse of the revision of 1967, which conference was attended by many represented here, especially under the umbrella of Group B, show that exceptions for certain specific purposes included in Article 10 of the Berne Convention as well as other particular exceptions would have their own standards, separate from the three-step test and Article 9, paragraph 2, Article 13 of the agreement. The three-step test was designated to test other types of exceptions that did not have special mention in the Berne Convention. Under Article 10, paragraph 2 of the Berne Convention artistic works may be used by way of illustration in publications, broadcasts or sound or visual for teaching provided that it is compatible with fair practice and to the extent justified by the purpose. The determination of fair practice, it depends on the context and it is defined by the realities of each country. In other words, this concept is taking into account current development and new needs. The exceptions are not and should not and must not be restricted by the three-step test subject to the whole copyright system to the whims and wishes of the right holders and not authors such as publishing and others whom the three-step test currently protects under the agreement. Doing this is losing sight of the principal objective of the copyright system which is to promote education, science and useful arts for the public interest. Mr. Chair, the social cost and development cost of a non-educated citizen who in the majority of countries represented here, they’re higher than the economic loss for the few individuals or companies whose rights have been integrated as to allow the majority of the populations to enjoy the fruits of scientific progress.
I thank you.
KEI.
Thank you, Mr. Chairman. My first comment would be on the issue of other disabilities. We have expressed regret in the past that deaf persons were excluded from the Marrakech Treaty. I believe this is the time when they’re supposed to talk about the status of deaf persons or persons with disabilities. I also will mention that my mother is deaf, has been deaf for several decades. One possible approach is to say that the contracting parties to the Marrakech Treaty shall or may — depending how you want to do it, extend the provisions of the treaty to persons who are deaf, hearing impaired or have other disabilities who due to that disability need excessable format of a work in order to access a copyrighted work to substantially the same degree as a person without the disability, period.
My next point I want to raise, which is on the areas of education and research exceptions, we would say that generally speaking in some countries there is a fairly wide divergence between what people do and what the law says. When you have that kind of divergence one response may be to ramp up the enforcement mechanisms to deal with widespread infringement and another possible response is enforcement efforts, is to change the laws so that some practices are actually recognized as legitimate and non-infringing, other cases, compromises are reached such as exceptions. I think bringing the countries in has a lot of pen fits, you can have strong laws in the books and if no one follows them, they don’t think they’re fair and they’re not benefiting them for designed for somebody else, it is a hollow victory. You want something where people operate lawfully and you try to address the legitimacy of different parties. In this committee I would focus my opinion on distance education and training which is a cross-border issue, it is difficult to imagine a fully developed — the potential of online distance education and training programs without dealing with cross-border issues and when there is uncertainty about the status of exceptions of cross-borders. In that area I think it is important to look both at non-commercial Abe commercial services because they’re both important. One of our staff members used to work in the research and development section of berlitz and we have followed nor some time the raise of certain kind of commercial — not just degree programs but training programs related to the professions and other things and I think that the answers may be different for the non-commercial and commercial in terms of how you handle some issues. For example, enumeration, things like that.
I also — a second thing I think would be an important focus, the issue raised in the 1971 appendix to the Berne Convention as it relates to legislation. Some have looked at that which is a huge part of the text of the Berne Convention as one of the most embarrassing parts of the copyright system, it was a failure.
It was something that was done to respond to the desire of countries for development and access to knowledge but it has not been very effective and since WIPO has tried to update every other aspect of the copyright system from the broadcasting system to performances, copyright, everything else, they never really have gone back to the 1971 appendix and asked why it didn’t work and what needs to be fixed. There are many things in the African Group proposal which have tried to respond to the failures of the ’71 appendix and tried to improve t I think that we should really pay a lot of attention to that. I think it is notable that the main demanders for this education program today is the African Group. The very same group that was the — that was used for the negotiation that ended poorly in 1971. Finally I want to say that I thinks would like to focus on the — with right owners to bargain with. But many of the proposals are not — many are exceptions like United States took for exceptions and other countries do, but this third area, where you have — you get rid of exclusive rights but you have the enumeration is an important area in education. In northern Europe it has been in many European countries they have — not just European countries but they have had extensive work in this area, great authors have asked that people consider the exceptions in some areas and I think it is surely appropriate to be part of the agenda, on page 18 of the African Group proposal, paragraph 22 there is a proposal for exceptions that follows the contours of the limitations on remedies, a subject that professor ricenstin says does not fall in the three-step test test in a presentation on his study on copyright on exceptions. I also mention that in the United States the federal government uses this approach of limitations on remedies on compulsory licenses for copyrighted things in the United States and that separately the United States has implemented a compulsory licensing program for works that are not reasonably priced with libraries in the extended term of copyright in connection with the Copyright Act. There may be areas where some approaches would be preferable in some countries and some approaches may be preferable in hour countries. I think that the challenge of this group is to sort of struggle between how you move forward with such a complicated area where legal traditions are different in different countries and people have pointed out and it is completely accurate. It is kind of hard to imagine how you can get consensus in some areas. I think finding a way to move forward, searching for areas where you can do this may be good. I think it may be good to think of in peril with the work on a binding — in parallel with work on a binding treaty way of how technical assistance in soft form is improved so you have early deliverable in the area that’s not as threatening to the participants here. I note in the Marrakech Treaty WIPO started the stakeholder platform in combination with the discussion on the treaty and neither one was supposed to be a substitute for the other and it may be that there are some role of discussion for working on model provisions and things like that not as a substitute for the work on the treaty but perhaps as a compliment building confidence toward reaching consensus on binding norms.
Thank you very much.
IFFRO
The activities were began in response to requests from educational institutions for the facilitating of large-scale reproduction of chapters and other fragments of the world’s scientific and cultural Heritage for teaching and research proposals. Educational institutions continue to be among the main benefits of the services. Also we must not forget obligations that we have towards the creator of the work that he or she be given the opportunity to reap the benefits from his or her creative efforts. The universal declaration of Human Rights gives everyone, quotation marks, the rights of the protection of the morale and material interests resulting from any scientific, literary or artistic protection of which he is the author, quotation marks. Independent studies have shown that authors and publishers rely heavily on income channeled to them for secondary users of the work. In a fast-changing world where technologies move with an unfrees dented speed, regulations do not — unprecedented speed regulations do not have the flexibility required. Copyright licensing and similar mechanisms based on agreements with copyright holders, current framework provides sufficient space for the establishment of relevant educational exceptions in national legislations. There is no need for further international rule making. Access to copyright material from newspaper articles, novels, sheet music to photos, illustrations through agreements with right holders and articles is what best needs and the needs of educational institutions to legally access high-quality teaching material and constantly changing environments. In our view illustration for teaching does not comprise the making of multiple coping for classroom use or other teaching material. The reproduction organizations contribute to seamless access to education material in educational institutions through offering comprehensive collective management of access to scientific and lit area works in a number of different ways to meet the needs of educational institutions according to right holder mandates and the lawings and circumstances the country.
A UK study show that had a reduction of this income would result in a reduction of showed the income to publishers from secondary users is approximately equitable for the investment in the new works, loss of that income would have a direct impact on investment in the new innovative including digital ways of providing access to teaching material. Ifrro has a long experience with working with WIPO states and local stakeholders, we would readily offer our collaboration and expertise in collective management to develop solid infrastructures to enable the strengthening of national educational publishing and appropriate the success of the copyright works in education.[…]
IPA
Research and education are important policy issues that all WIPO members are dedicated to as we have heard so often today. The academic and educational publishing industries serve this purpose and where government policies allowed them to develop they serve the services extremely well, society needs more educational publishes both paper and digital in particular in developing countries.
There are two reasons that have not been aired enough in this debate and that make a meaningful discussion of textual proposals at WIPO SCCR so challenging. Firstly, education, in particular distance education and digital learning are the most dynamic areas of growth and change in the knowledge economy today around the world. Despite Research and education are important policy issues that all WIPO members are dedicated to as we have heard so often today. The academic and educational publishing industries serve this purpose and where government policies allowed them to develop they serve the services extremely well, society needs more educational publishes both paper and digital in particular in developing countries.
There are two reasons that have not been aired enough in this debate and that make a meaningful discussion of textual proposals at WIPO SCCR so challenging. Firstly, education, in particular distance education and digital learning are the most dynamic areas of growth and change in the knowledge economy today around the world. Despite the different copyright regimes the internet is awash with offers for education, publishers and online start ups in developed and developing countries are launching new products and ideas at breathtaking speed. Many are philanthropic, commercial, some are for wealthy students and some are to target the poorest students in developing countries, many use licenses and others rely on firm copyright protection. Publishers and collecting societies are learning to adapt and provide their content to such services. Libraries and universities are adapting to the changes as well. But many struggle and see copyright exceptions as a shortcut to avoid further necessary change. Copyright policies and individual and collective licenses are not yet as seamless as we would all like.
The change is there and improvements are happening rapidly. In short, with this discussion, the WIPO SCCR is not stepping into a stream, it is stepping into a toe rent, a toe rent of change that is dynamically serving the public interest in education and improving education irrespective of the debate at WIPO SCCR. Secondly educational policy is an important and we will established area of national policy making.
Marrakech was almost Virgin territory, as I said before, the sun was bright, the air was clear, it was a large open space, now we’re back Geneva have a, it is cold, it is foggy, it is messy and the policy areas are well established because different countries have very different educational policies that follow different objectives. Any consensual text that encompasses all practices that are lawful under international Copyright Law must be so broad as to be effectively meaningless, worse vague wording and international instruments will encourage equally broad and vague legislation. Fighting legal ballettals over words like fair use and fair practice in national courts feeds lawyers well but is costly and distracting for everybody else. We all need clarity, not further uncertainty and another ambiguous text.
IPA welcomes the proposals to study and share experiences with the national education copyright policies, this should be an ongoing process as things change so quickly. IPA would be happy to showcase how the knowledge economy is changing the world of education.
The center for internet society, you have the floor.
The Centre for Internet and Society believes in the universal access to knowledge/education for all, without the barriers of time, distance and costs. We believe that information and communication technologies provide us with the opportunities to achieve this universality for ALL learners, both, through formal and informal institutions and learning environments, in both, digital and non digital formats.
The adoption of limitations and exceptions for education and research is particularly significant from the perspective of developing and least developed nations, where prices of books and other learning material are high not just in absolute terms, but where consumers often have to commit higher proportions of their income to have access to these materials.
We are in agreement with some of the delegations before us, among others with Ecuador, Kenya and the African Group in our belief that the present international legal framework, does not sufficiently address the opportunities presented by these information and communication technologies. The compulsory licensing provisions in the Berne Appendix are complex, narrow, unworkable and of little value to developing nations.
We believe, therefore, Mr. Chair, that there is a need to adopt open ended exceptions for education, teaching and research compatible with the digital environment. In our opinion, Mister Chair, a narrow construction and application of the three step test to these limitations and exceptions would not be the ideal way forward especially for developing and least developed countries. We believe Mr. Chair, that these limitations and exceptions should be those that harmonize national practices; prescribe an international standard, facilitate a cross border exchange of books and other learning material.
CHAIR:
Very good. Thank you, civil society, for those statements. They’re very helpful and we have taken note of the comments made by NGOs and we hope those offers, that they have made, will come through because they will be guidance for our future discussions.
I also wanted to say that we have heard different requests for studies, updating studies, new studies, and that they be additional instruments for our discussion we are taking note of this and are asking regional coordinators to allow us to go over these in the original groups so we can take decisions on how these instruments should be generated. As you understand, some of these instruments are not necessarily going to be ready for an upcoming session but they won’t have to be distributed soon enough to profit discussions on these issues. In addition we have heard different views on how to proceed and we have a complex document. We have had offers to signal specific problems as we did with the previous subject to see what other priority issues we need to cover and once we have clearly identified the problem it will be much easier as a result to examine the specific proposed solutions for the issues that are being raised on education. One of the problems that’s arisen in many of the statements by different Delegations is the distance learning problem Aaron another has been the transborder exchange of works for the educational sector. We believe this is a cross cutting element in the views of most Delegations so I would invite those of you that are going to provide us with written documents, NGOs, countries, and, of course, the Secretariat especially will ask that you assist us in being able to specifically state what you believe we need to achieve in order to consolidate these new services and meet the challenges at the same time and here I’m referring to what was said by the Delegation of Sudan, copyright being respected and will not change the copyright system, which is certainly not our intention. So with those two elements to guide us, I think we’ll be able to find a more effective method of work recognizing, of course, that there are at least two other dozen issues included in our basket of issues, our challenge is going to be to concentrate on the most relevant ones and you yourself, Delegates, will have to decide on the most relevant ones. Of course we can always add to those to have a complete freight work that will allow us to facilitate common views between copyright and the needs of education, teaching and research institutions.
I would add this should be compatible with new business models that are coming up and also seeking to provide solutions and covering these needs and there by lays our challenge. This is a difficult subject to approach but we need to concentrate on the definition of the most relative points so I draw this to the attention of Delegations.
We have taken note of all opinions and I think we can comment on this when we put forward some general conclusions on our morning’s debate.