This was presented in the morning in the debate on education copyright exceptions.
Thank you, Mr. Chair.
KEI would like to comment on the proposals submitted by the African Group in relation to limitation on remedies for infringement contained in paragraph 22 on page 18 of the document. SCCR/26/4 PROV. DATE: APRIL 15, 2013
http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_4_prov.pdf
titled “Access to Educational Materials: Limitation on remedies for infringement.”
This is an exception that is “In addition to other copyright limitations and exceptions, such as those included in Article 10, 10bis, the Appendix and other Articles in the Berne Convention.”
What is proposed in this article is an approach that would give educators the broad right to use works, in 4 specific areas of education, subject to the “reasonable and fair compensation” to the “owner of the exclusive right.”
Basically, this proposal by the African Group would complement other exceptions available in education, including those under Article 10 of the Berne Convention, for “Certain Free Uses of Works.”
The advantage of having the option of remunerative exceptions is both to expand access to more works than can be justified under a “free use’ exception, and to provide, in some cases, authors with compensation for the use.
We would like to make three observations about this provision put forward by the Africa Group. First, and proposal to provide compensation for non-voluntary use of some uses of some works (the context is important) is consistent with the practices and recommendations put forward by many countries, including the submissions from the European Union, and I would enjoy hearing the views of the European Union on this specific proposal.
Second, the proposal for limiting remedies for education is quite similar to a recent proposal by the US library of Congress, in the context of Orphan Copyrighted works (http://copyright.gov/orphan/), and I would also enjoy hearing the views of the US delegation on this specific proposal.
Third, I note that the proposal by the African Group current proposes that “this article shall only apply to Members who are regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations.”
In this regard, it can be considered as an alternative or complement to the APPENDIX the Berne on SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES.
It seems to offer an opportunity to address the very same access to knowledge issues that the Appendix in the Berne sought but failed to remedy.
The text from the Africa Group proposal is:
SCCR/26/4 PROV.
ORIGINAL: ENGLISH
DATE: APRIL 15, 2013Page 18
4.2. In-classroom
Text proposal(s):
from the African Group22. Access to Educational Materials: Limitation on remedies for infringement.
(a) In addition to other copyright limitations and exceptions, such as those included in Article 10, 10bis, the Appendix and other Articles in the Berne Convention, and consistent with Article 44.2 of the TRIPS Agreement, Members agree to establish appropriate limitations on the remedies for infringement of works in the following circumstances:
1. To copy articles for purposes of use by students in performing class work,
2. To make copies of books and other works used by students and teachers, when the prices charged for the works are unaffordable by the education institution or by the students.
3. To make a translation of a work, for the purposes of education.
4. To make copies of works no longer available from publishers, and/or for which the owner of the work cannot be found, if a good faith effort fails to identify and locate the owner of the work.
(b) In implementing (1-4), the following limitations on remedies should apply.
(1) So long as the use and distribution of the works is limited to educational purposes, no award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may be made other than an order requiring the infringer to pay reasonable and fair compensation to the owner of the exclusive right under the infringed copyright for the use of the infringed work.
(2) The reasonable and fair compensation shall be determined by the Member State where the use of the work takes place. Member States should be free to determine the circumstances under which the payment of such compensation may be organized, including the point in time in which the payment is due. When determining the possible level of reasonable and fair compensation, due account should be taken, inter alia, of Member States’ cultural promotion objectives, of the non-commercial nature of the use made by the organisations in question in order to achieve aims related to their public interest missions, such as promoting learning and disseminating culture, and the need to promote access to knowledge for all.
(c) This article shall only apply to Members who are regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations.