At the 43rd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), which took place in March, we witnessed a major shift in the EU’s position on international lawmaking in the area of exceptions and limitations to copyright (L&Es). The discussions also brought to light the rationale of the demandeurs of a Broadcast Treaty, deepening the civil society’s concerns about the impact of a new copyright-like right on the public domain and public interest activities.

Exceptions and limitations: a departure from the EU’s stance on text-based negotiations

The last time the most important forum at the global level for copyright rulemaking engaged in text-based negotiations on L&Es was a decade ago, in the lead-up to the adoption in 2013 of the Marrakesh Treaty. After the treaty was adopted, many developed countries claimed that the international instrument for persons with print disabilities was meant to be an exception, and opposed the drafting of any other instrument on copyright exceptions, be it binding or non-binding (such as a joint recommendation or a model law).

This stance was repeated ad nauseam over the years, particularly by the EU. So much so that not even the COVID-19 pandemic, which demonstrated clearly how important it is for schools and cultural heritage institutions to be able to operate remotely and across borders, seemed to remove them from those crystallised positions. 

This status quo remained until the last SCCR, when developed countries finally showed a change of heart. While still opposing the drafting of a legally binding instrument, the EU stated that it was willing to discuss non-binding instruments:

In this context, as consistently expressed in the past, we would like to remind, however, that the EU and its member states cannot support work towards legally binding instruments at the international level or any preparations in this regard. However, we stand ready to continue to engage constructively under this Agenda Item to reflect further on the other possible non-binding instruments and ways how WIPO can best help to provide guidance to WIPO member states to address the problems faced by institutions and people with disabilities including through the introduction of meaningful exceptions and limitations in their respective national laws. (…)

However, as the week proceeded, it became apparent that France wanted to soften the EU statement delivered by the Commission. The only EU country to ask for the floor, France made the following intervention, repeating what had been the EU’s position until that point:

In this regard, France has reservations regarding the fact that the conversation on L&Es could touch upon normative instruments. The continuation of discussions in L&Es should be founded on the exchange of best practices at the national level (…).

Frustrated with these continued attempts to divert the conversation away from concrete language to address the problems and solutions faced by educators, researchers, and cultural heritage institutions, in our statement we threatened not to return to the Committee:

We come here, year after year, to defend the rights of teachers and researchers. We support your discussions. We bring evidence. We talk to you, the person that was here before you and the person that will come after you. It’s a massive effort. Yet, every year, we leave this room empty handed, with no binding instruments, no soft laws, nothing that could make a difference. Do know that we question if we should come back.

We further shared the story of Jonas, a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, who we interviewed for our publication “Nobody puts research in a cage”. We explained his struggles with accessing the data sources he uses in his research remotely and sharing his research results with colleagues for purposes of verification and validation of his research. And we read his words out loud, hoping they could make a difference in the discussions:

Perhaps they did. At the end of the last day of SCCR/43, the Committee finally agreed to approve the revised African Group proposal for a work program on L&Es, which includes drafting work towards “objectives and principles and options for implementation at national level”. The Chair was tasked with advancing information sharing and consensus building on L&Es between SCCR meetings and given the option to create working groups of member states supported by experts to produce outcomes for consideration by the Committee.

Broadcast Treaty: increasingly difficult to grasp!

The discussions on the protection of broadcasting organisations against unauthorised retransmission and related uses were centred around the Chair’s Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty, which continues to raise substantial issues of concern. 

While there seems to be a common understanding that any potential treaty should be narrowly focused on signal piracy and not extend to post-fixation activities, there are still many important issues to be agreed upon, including fixation rights, a perpetual term of protection, and limitations and exceptions.

The revised draft text contains important changes to the L&Es provision. Yet, none of the exceptions are mandatory, not even those that are already mandatory for copyrighted works (such as quotation, news of the day, and providing access for the visually impaired). Furthermore, unlike the Regional Comprehensive Economic Partnership Agreement and the Trans-Pacific Partnership Agreement, the text does not even mandate the contracting parties to achieve a fair balance between the rights and interests of authors and rightsholders, and those of  users. 

Equally concerning is the idea to give contracting parties the option to protect signals by means of a fixation right. This would grant broadcasters a new lawyer of exclusive rights over the programme-carrying signal on top of the rights they already have on the signal content, effectively extending the scope of protection beyond the mere signal. This is particularly concerning when the signal content is already in the public domain, as it would allow broadcasters to re-appropriate public domain broadcasts. Broadcasters are sitting on huge collections of public domain content and are the only ones that have complete, high-quality copies of those materials. Prohibiting the fixation of signal would mean preventing access to, and re-use of, the public domain material itself. 

When questioned why public domain materials were not being excluded from this new layer of rights, the facilitators made it clear that this was intentional. They claimed that broadcasters needed to be incentivised to promote public domain works to the public. We found this reasoning nonsensical and asked why corporations would need copyright-like incentives to use materials that are free for anyone to use and for which they would not need to pay any copyright licence fees. However, none of the facilitators were able to provide a response.

The next SCCR will take place in Geneva on November 6-8. This time, the Committee will meet for three days instead of five, and attendees will be asked to forego making oral opening statements and general declarations, in order to allow the Committee to focus on substantive discussions. Certainly something to look forward to!

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Similarly to what we did with the Dutch, the German and the Hungarian proposals, we will keep tracking how these countries are proposing to implement this mandatory exception to copyright for educational purposes. Today, we provide an overview of the Croatian proposal by Timotej Kotnik Jesih and Maja Bogataj Jančič. 

What changes are introduced to the current copyright framework for education in Croatia?

The current Croatian Copyright Act (Zakon o autorskim pravu i sorodnim pravima, hereinafter “ZAPSP”)  does not include an educational exception for digital uses.  It contains only an exception allowing for public and stage performances of protected works in direct teaching or at the teaching-related events (see current Article 88 ZASP), which does not apply to digital and online education since it does not cover the acts of reproduction and communication of works to the public. 

The First Draft bill for the implementation of the DSM Directive, published on 17 April 2020, proposed to change the legal framework for education in Croatia by amending the existing public performance exception (see first draft Article 189), by introducing a new exception for the creation and sharing of teaching collections (see first draft Article 188), and by introducing a new exception for digital and cross-border teaching activities as mandated by Article 5 of the CDSM Directive (see first draft Article 190).

The Croatian government opened public consultations on the First Draft bill, which also included a virtual public presentation of the Draft bill on 15 May 2020, and was eventually closed on 17 May 2020. While the report on comments of the First Draft bill was scheduled for the end of May, it was pushed forward due to the sheer volume of feedback received. On 7 October 2020, the Croatian State Intellectual Property Office finally published the Report on public consultation on the First Draft bill, including all 727 comments received by the interested stakeholders.

On 16 November 2020, a Second Draft bill was tabled in the parliamentary committee, and on 19 November 2020 it was accepted. The provisions regarding a new exception for the creation and sharing of teaching collections (see second draft Article 192), and a new exception for digital and cross-border teaching activities (see second draft Article 194) remained unchanged from the First Draft bill (Articles 188 and 190 of the First Draft bill). The Second Draft bill is in its first reading since 11 February 2021, and any amendments cannot be proposed until it is tabled for its second reading.

What is the scope of the proposed exception for digital and cross-border education?

Article 194 of the proposed version of ZAPSP regulates the free exception for digital use for educational purposes. It states that no approval from righstholders for such use of materials shall be necessary, as long as such use is of a non-commercial nature and as long as it takes place within the educational institution, in its premises or other facilities, or through a secure electronic environment. It clarifies that “illustration for teaching” includes digital uses of copyrighted works in parts or in excerpts, for the purpose of supporting, enriching or supplementing teaching and teaching activities. It requires that the uses allowed herein shall not replace the purchase of materials, primarily intended for educational markets. It also explicitly states that the exception can be relied upon in the lifelong educational activities carried out by state institutions, public institutions and any other institutions authorised to provide such activities. 

As to the rights covered, the exception follows the minimum standard imposed by the Directive and only applies to the rights of reproduction and communication to the public, including making available to the public.

With regards to the beneficiaries, the exception covers not only activities that take place under the responsibility of an educational institution, in its premises or other facilities, or through a secure electronic environment, as mandated by the Directive, but also – in the case of lifelong educational activities – those carried out by state institutions, public institutions and any other institutions authorised to provide such activities. 

Contrary to what is prescribed by the Directive, which covers uses to the extent required by the purpose to be achieved, the proposed Croatian exception limits the use to parts or excerpts of the materials. The proposed Article 194 ZAPSP further states that the uses allowed therein shall not replace the purchase of materials primarily intended for educational markets. This wording is inspired by recital 21 of the Directive, which states that “In most cases, the concept of illustration would, therefore, imply the use only of parts or extracts of works, which should not substitute for the purchase of materials primarily intended for the educational market.” 

Finally, the proposed article states that the educational exception cannot be overridden by contractual provisions, and includes a cross-border provision, according to which uses covered by the exception are deemed to take place in the Member State where the educational establishment is located.

What could be improved?

While the ZAPSP Draft bill represents a positive approach towards user rights protection and proposes the implementation of a broad copyright exception, there are some aspects on which it could be improved.

First of all, the exception should not prevent the use of works in their entirety. Although, as a rule, an educational exception only allows the use of parts of works, for certain materials (e.g. an image or a poem) the work must be used in its entirety for its meaning to be perceived. The Croatian legislator should follow the wording of the Directive, which states that the materials can be used to the extent necessary to the activities permitted under the exception.

Paragraph 1 of Article 190 ZAPSP Draft bill defines the secure electronic environment as one »which can be accessed only by pupils or students and teaching staff of that educational institution, provided that the source and name of the author or other right holder must be indicated, unless this proves impossible.«. The term »secure electronic environment« should be explicitly construed so as to include emails, messaging services, group chats or any other electronic communication networks and services used for teaching as well.

In addition, Paragraph 1 of Article 194 ZAPSP Draft bill relates to the acts of reproduction and communication to the public, including making available to the public, but it does not cover the act of distribution. While this is strictly consistent with the wording of Article 5 DSM Directive, national legislators have the option to go beyond what is expressly written in the DSM Directive. In this sense, the ZAPSP Draft bill could have included the distribution of physical copies of protected content as well, taking into account that analogue uses might be needed to complement digital uses or even make them possible and might be therefore crucial for fully achieving the purpose of the provision. It would also be important to extend the scope of the exception to a right that is not harmonized at the EU level, but that is essential in an education setting, which is the right to make translations and other adaptations of copyrighted materials.

The exception for digital learning activities in Article 194 ZAPSP Draft bill should also cover a broader spectrum of educational activities: joint educational activities provided by multiple education providers, as well as educational activities provided by informal education providers. The exception should also cover uses that take place on informal learning platforms, as there is no reason to differentiate these activities from formal ones.

Finally, the exception in Article 194 ZAPSP Draft bill should stipulate that it applies also to individuals that support or complement the teachers’ activities (e.g. social workers, professionals that provide special needs support, professionals that provide extracurricular activities and support, and parents). Inclusion of such individuals in educational processes is increasingly ubiquitous, which is why any legislation looking to provide useful and relevant copyright exceptions for education should include such situations as well.

Conclusion

The Croatian Draft bill and, specifically, its provision for the implementation of Article 5 of the DSM Directive into their legal framework, although it represents a step in the right direction, still has certain room for improvement and would benefit from clearer language in certain provisions and from broadening its scope. It is certainly commendable that its provisions provide for non-remunerated copyright exceptions for educational purposes, and as such could very well prove to be a reference point for other Central European countries which have not yet produced their own draft bills.

The post The Croatian proposal to implement the new education exception: it could be better appeared first on COMMUNIA Association.

This diverse group representing researchers, educators, students, information users, and the institutions that support them, urges all WTO Members to endorse the TRIPS waiver proposal presented by India and South Africa, including provisions that address “the copyright barriers to the prevention, containment and treatment of COVID-19”.

All over the world, educational institutions, research organizations and cultural heritage institutions have been forced into closure as a non-pharmaceutical measure to contain the COVID-19 pandemic. Yet, the majority of national copyright laws in all the continents have no elasticity to cover educational, research and public interest activities that need to take place remotely during the periods when the physical premises of those institutions are closed due to emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic.

Furthermore, as pointed out in the statement, “(i)n too many countries, researchers lack the rights they need to use the most advanced research methodologies, such as text and data mining, to help find and develop treatments to COVID-19.”

The fact that copyright laws are not able to support these activities constitutes a barrier to an equitable response to COVID-19, and it shows that these laws cannot be deemed to have properly internalized the fundamental rights to freedom of information, freedom of science and education. 

Therefore, the signatories call for urgent action to clarify that all copyright and related rights treaties, including the copyright provisions of the TRIPS Agreement:

• Can and should be interpreted and implemented to respect the primacy of human rights obligations during the pandemic and other emergencies, including the rights to seek, receive and impart information, to education, and to freely participate in cultural life and share in scientific advancement and its benefits, while protecting the moral and material interests of authors;
• Permit governments to protect and promote vital public interests during a health or other emergency; 
• Permit governments to carry forward and appropriately extend into the digital environment limitations and exceptions that are appropriate in the digital network environment, particularly during a health or other emergency. 

You can read the full statement here. 

The post COMMUNIA supports the WTO TRIPS Waiver for COVID-19 appeared first on COMMUNIA Association.

The event was kicked off by Marco Giorello (Head of Copyright Unit, European Commission), who started by recalling that the main objective of Article 17 is to foster the conclusion of licensing agreements between rightholders and online platforms, and not to provide an enforcement tool to rightholders against illegal content. He then summarized the Commission’s views on the practical application of Article 17(7), clarifying that this provision requires online platforms to consider legitimate uses ex-ante and that it is not enough for Member States to give flesh to user rights by simply relying on ex-post redress and complaint mechanisms. He further acknowledged the struggles in finding a solution to implement Article 17 in a balanced way, pointing out that this is probably the first time that the EU lawmakers are trying to find a way to respect fundamental rights in a machine-to-machine environment.

In the following presentation, former MEP Felix Reda took us through the history of the discussions of Article 17 in the Parliament, highlighting that, although the Parliament had not put much thought into how Article 17(7) would be implemented in practice, definitely the intention of those who voted in favour of the Directive was to have ex-ante protections. He reminded the participants that a former version of the text, according to which the obligation to protect legal content was satisfied as long as there was a complaint and redress mechanism in place, was rejected by the Parliament. He stressed that it was this combination of Article 17(4) and (7) that was able to get an approval from the Parliament, and that there was no doubt that there was an expectation from MEPs that legitimate uses would not be blocked at upload.

Viveca Still (Senior Copyright Advisor, Ministry of Culture, Finland) presented the current government proposal to implement Article 17 in Finland. She pointed out that the Finish model, as it currently stands, mainly relies on ex-post corrective measures for wrongful blocking (such as compensation for the harm caused in case of unjustified blocking) to have an ex-ante (deterring) effect. Nevertheless, the proposal does foresee a solution to give some consideration to user rights at upload: it requires rightholders to assess whether the use of their content is covered by a copyright exception or limitation or whether the use is allowed under contract, before they can issue a blocking request.

In the final presentation, Tobias Holzmüller (General Counsel, GEMA), emphasized that licenses are the best way to protect user rights and that he expects that the issue of blocking will become less relevant in the next few years, as more licenses start emerging in the market. He also drew attention to the fact that the issue of potential overblocking only affects certain types of content (press publications and audiovisual content), where the business model of the producers of that content conflicts with the wide availability of such content on online platforms. He then presented the latest proposal that is being discussed in Germany, which importantly tries to be specific about what best efforts mean in an environment dominated by freedom of expression on one side and proprietary rights on the other. He explained that the proposal contains ex-ante protections for content that respects certain criteria, while exempting both the platforms and the users from liability until a human review takes place. He further stated that, according to the rumors, the government is also trying to find a mechanism to give owners of time-critical content (such as sports and news content) some type of control to bring their content down immediately, when they have proven not to abuse this mechanism in the past.

We would like to thank everyone who participated in our event and we are looking forward to organising another edition of the COMMUNIA salon in the near future.

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For the next three years, Communia will be working on a project to study and promote changes in international copyright law to ensure equity in the production of and access to research. Our aim is to promote effective change in the political discourse towards the adoption of an international legal framework that protects legitimate access to knowledge.

We will work with a broad range of partners representing researchers and the institutions that serve them, including our Communia members Creative Commons and Wikimedia Deutschland. Our activities will include producing research, provide training to a global network of change makers, and connect a global expert network to a global community of researchers, libraries, museums, archives, and digital rights activists active in international copyright policy making.

The project will be run by the American University Washington College of Law (AUWCL), through its Program on Information Justice and Intellectual Property (PIJIP), and will benefit from a grant from Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin.

Read more about the project here.

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Fast implementation of the new exception to permit remote teaching during COVID-19

Just as in several other EU Member States, in Hungary as well the stakeholder consultations regarding the implementation of the DSM Directive are still ongoing. Yet, the provisions set out in Article 5, namely those concerning the use of works in digital and cross-border teaching activities, have already been implemented and the relevant amendments to the Hungarian Copyright Act (No. LXXVI of 1999) came into effect on 18th July 2020. The reason? Urgent need for modern copyright rules enabling schools to swiftly transition into distance education during the COVID-19 pandemic and distribute learning material digitally.

What was the copyright framework for education in Hungary?

Before the DSM directive has been adopted, the Copyright Act already regulated the exception for education as a ‘free use’ in its Section 34:

(2) Part of a published literary or musical work or of a film, or small entire works of such nature as well as pictures of works of fine art, architecture, applied art and industrial design creations, and photographic works may be borrowed for the purposes of illustration for school education and scientific research, while indicating the source and the author named in such work, to the extent justified by the purpose and on the condition that the recipient work is not used for commercial purposes. Borrowing shall mean the use of a work in another work to an extent exceeding quotation.
(3) The non-commercial reproduction and distribution of the recipient work mentioned in paragraph (2) shall not require the author’s authorization if the recipient work, pursuant to the relevant laws, is published as a textbook or reference book and the school educational purpose is indicated on its front page.
(4) The work may be adapted for the purposes of school education in the course of educational activity. The authorization of the author of the original work shall also be necessary for the use of the work thus adapted.

The condition of non-commercial use has been adopted following the implementation of the InfoSoc directive. Paragraph 2 regulates ‘borrowing’ for a defined catalogue of works. Importantly, unless it is a ‘small work’, only a certain part of the published work can be borrowed. Importantly, as opposed to paragraph 1, which regulates quotation, paragraph 2 allows for free use of even pictures of works of fine art, architecture, applied art and industrial design creations, and photographic works. Furthermore, borrowing for educational purposes is limited to use in another work (to an extent exceeding quotation). Paragraph 3 allows for the ‘reproduction’ and ‘distribution’ of the recipient works included to the above referenced catalogue, provided that the recipient work is published as a textbook or reference book and the school’s educational purpose is indicated on its front page.

Definitions of educational purpose has been provided in Section 33 (4):

(…) the use shall be regarded to serve the purposes of school education if it is implemented in accordance with the curriculum and educational requirements in kindergarten, primary school, secondary school, vocational training and technical school education, in institutions of primary education of arts, as well as in higher education falling under the scope of the Act on higher education.

Lastly, Section 35(5) on private copying also included relevant, education-related rules: “Parts of a work published as a book, as well as newspaper and periodical articles may be reproduced for the purposes of school education in a number corresponding to the number of students in a respective class, or for the purposes of exams in public and higher education in a number necessary for that purpose.”

The main takeaways are that the previous system did not include a licensing scheme as seen in other European jurisdictions, especially in Scandinavia. Furthermore, it was applicable for only certain types of works, which had to be published, and the relevant exceptions meant a free use, without financial compensation to the author. These rules were complemented by those on quoting in Section 34 (1).

What changes were introduced to the existing education exceptions?

These fundamental features of the Hungarian Copyright Act are not affected by the implementation of the DSM directive. For easier review, all amendments are briefly listed below:

1. The definition of educational purpose has not been changed, although following the final implementation of the remaining articles in the DSM directive, it may be renumbered.
2. Section 33/A is adopted in line with the DSM directive, codifying the definition of ‘secure electronic environments’ in a technology neutral manner. In accordance with this definition, Section 34 (4) is amended to clarify that the listed works may be adopted for the purposes of school education in the course of educational activity, even via secure electronic environments. Importantly, authorization of the author is still required for use under Section 34 (4).
3. The wording of Section 34 (3) is replaced with the following wording: “The authorization of the author is not required for the recipient work under paragraph (2) (a) for reproduction and distribution, if the recipient work, pursuant to the relevant laws, is published as a textbook or reference book and the school educational purpose is indicated on its front page, or b) for school education [33. § (4)] for use in digital form at the place education, on an electronic device, or for transmission to the public via a secure electronic environment, provided that such uses are not made on a commercial basis.” The novum here is of course Section 34 (3) (b), where ‘use in digital form at the place of education’ and ‘transmission to the public via secure electronic environment’ are added as cases of free use under the already existing framework for exceptions related to education. This means use without authorization of, and financial compensation to, the author.
4. Section 34 (3a) provides that use within the meaning Section 34 (3) (b), shall be deemed to occur solely in the Member State where the educational establishment is established. This amendment again, does not divert from the wording of the DSM directive.
5. Section 35 (5) is amended by allowing for distribution of parts of a work published as a book, as well as newspaper and periodical articles to the pupils and students concerned, as well as for making those works available to them on request through the secure electronic network of the educational institution.

All in all, it seems the Hungarian legislature has succeeded with a DSM directive conform implementation of Article 5, that fits in with the previous Hungarian system of educational exceptions, provides additional, digital ways in which the free use of borrowing for education purposes can be exercised, without creating additional barriers for places of education.

The post How Hungary has quick-fix implemented Article 5 of the DSM directive appeared first on COMMUNIA Association.

Our expectations for this meeting were high. The COVID-19 pandemic has shown, more clearly than ever, that copyright can stand in the way of schools, libraries and cultural heritage institutions properly operating. Copyright exceptions that permit these public interest activities still do not exist everywhere. Moreover, exceptions do not always apply regardless of whether activities are conducted on site or at a distance (digitally).

Communia and other civil society observers were expecting the Committee to consider the impact that the COVID-19 pandemic has had on these public interest activities, and take appropriate action. However, WIPO member states had previously decided that, due to the format of the meeting, they would not engage in negotiations on any of the items on their agenda. Therefore, despite references to the problems caused by the pandemic in several Delegations’ statements, none put forward any proposal to deal with these issues.

Exceptions and limitations: shouldn’t we be there yet?

As explained in Communia’s statement to the Committee and highlighted by numerous WIPO-commissioned studies, WIPO member states are well aware that exceptions (notably the education and research exceptions) that exist today do not always have the elasticity to cover activities that take place remotely. More importantly, WIPO member states know that only an international instrument can solve the cross border aspects of distance activities, when the application of multiple national laws is triggered.

Progress on the topic of copyright exceptions has been limited for a number of years now. The only notable exception has been the Marrakesh Treaty, which establishes a mandatory exception for the benefit of persons who are blind, visually or otherwise print-disabled. Discussions on an international legal framework to cover a minimum set of legitimate uses made by persons with other disabilities, by educators, learners and researchers, and by libraries, archives and museums, have been diverted time and time again. 

With the pandemic, this state of affairs is even less acceptable than it was before. Before we were already seeing a trend towards digital and cross-border access and use of copyrighted materials for educational, research and other public interest purposes. Yet, WIPO member states could justify their inaction by telling themselves that these uses were not significant. 

However, in a few months, distance activities became the new normal. Now, institutions all over the world are opting for remote formats or hybrid models of in-person and online education, research and access to the collections of cultural heritage institutions. And we may never go back to the way things were before.

In other words, our calls to support, at the international level, a convergence of the national copyright exceptions, namely for education and research, can no longer be dismissed. More importantly, delegations, particularly the European Union, can no longer pretend that they can provide a national or regional solution for activities that involve people located in other countries and regions, which are crossing international borders, virtually, to conduct such activities. 

An health emergency: the right moment for the Committee to give guidance and justify its existence?

We sincerely hope that, once the Committee resumes its work on the normative agenda, it’ll finally acknowledge these needs and social demands, as the alternative course of action will only weaken the defense of copyright as a system. It is an embarrassment, to say the least, to see the Global North, particularly the European Union, insisting in using the publishers’ “narrative” that education, research and other public interest activities are local and that there is no need to address these uses of protected content at an international level, at this point of our history.

This being said, the Committee should use this opportunity to take urgent measures to support WIPO member states in addressing, at a local level, the legal constraints currently faced by their public interest institutions due to the lack of copyright exceptions that work in the digital environment. 

COVID-19 has caused massive disruptions to our modes of living, forcing the closure of the premises of schools, libraries, museums and other public interest institutions. When conducting their activities in the online environment, many institutions realize that their countries’ copyright laws are not ready to support their remote activities. And this happens across the globe, including in the European Union, where in many countries, due to the current lack of adequate exceptions, the only legal solution available is to rely on courts to justify those activities on the basis of fundamental rights. 

The SCCR should use this critical moment to work on a declaration or other instrument, asserting the flexibilities available to WIPO member states under international law to allow for education, research and cultural access and use of protected materials in a digital and online context. 

The Committee could follow the example of the Doha Declaration on TRIPS and Public Health, which clarified that the TRIPS Agreement could and should be interpreted and implemented in a manner supportive of the right to protect public health. The SCCR should work towards a declaration to clarify how international copyright law should be interpreted and implemented. It needs to be emphasized that exclusive rights should be interpreted and implemented in a balanced manner that promotes fundamental rights related to access to education, research and culture. Furthermore, a declaration should affirm the applicability of exceptions in a digital and online environment.

We are disappointed at WIPO’s inaction in the face of this global crisis. Yet we remain committed to working towards solutions that promote the public interest under these conditions and we call on WIPO member states to work with us.

The post Copyright and COVID-19: Has WIPO learned nothing from the pandemic? appeared first on COMMUNIA Association.

So far not a single EU Member State has fully implemented the provisions of the Directive and only two Member States have implemented parts of it (In 2019 France implemented the new press publishers’ right and in June of this year Hungary implemented the exception for online educational use). In most of the EU Member States implementing legislation still needs to be introduced into parliament. In the meantime, the European Commission is still working on the implementation guidance for Article 17 that it is required to publish, and the Polish government’s request to annul parts of Article 17 is still under deliberation in the Court of Justice of the European Union (the Advocate General will publish its opinion on the 22nd of April 2021 less than two months before the end of the implementation deadline). All in all it looks increasingly unlikely that most Member States will implement the Directive in time. So let’s take a more detailed look at where the implementation process stands in key Member States. 

Commission’s Guidance

The European Commission closed its targeted consultation on the implementation guidance in September and is currently working on a final version of its guidance that is not expected to be adopted before early next year. The Commission has made it clear that it does not expect key elements of the guidance to substantially change from its earlier draft, which is designed to limit the use of automated filters and requires that user uploads remain available while they are under dispute It seems that the Commission is unwilling to bow to the considerable pressure from some Member States and from rightholders to change key elements of the draft guidance.

During the recent CJEU hearing of the Polish case to annul key parts of Article 17, the Commission argued that Article 17 does not infringe users’ fundamental rights precisely because it requires Member States to adopt strong safeguards that limit the use of automated filters and protect user uploads while they are under dispute. The fact that the Commission is building its legal arguments in the CJEU case on the principles expressed in the guidance will make it very difficult to abandon these principles even in the face of enormous pressure from rightholders and some of the Member States. 

For now, the increasing delay of the Commission guidelines has already led some Member States to halt their work on the implementation of the Directive. Both Hungary and Sweden have recently communicated to stakeholders that they will wait for the Commission guidance before they will formally introduce their implementation laws and it is likely that a number of other Member States are taking the same approach. As a result there are only three Member States (France, the Netherlands and Croatia) who have implementation legislation in various stages of adoption.

France

As one of the main supporters of the Directive France has shown an interest in a quick implementation of the Directive. This has already resulted in the implementation of Article 15 (the new press publisher right) in October of last year. 

In order to speed up the transposition of the remaining provisions, the French government has chosen to include them in an authorisation law that allows the government to implement them by administrative decree. This “Law on various provisions adapting to European Union law in economic and financial matters” (DDADUE law) has been adopted by both houses of the French Parliament on the 18th of November and has been published in the official Journal on the 4th of DecemberM
(See article 34 for the part authorising the implementation of the DSM Directive). 

The DDADUE law gives the French government board leeway in implementing the provisions of the Directive. It specifies that the decree implementing Article 17 must be issued within six months after publication of the law in the official journal. For all other provisions of the Directive, the government has 12 months to implement (or six months and 4 days if the government wants to meet the implementation deadline of the Directive). 

While this theoretically allows the French government to wait for the Commission’s implementation guidance for Article 17 before issuing its implementation decree, this seems relatively unlikely as the government has repeatedly stressed the need to quickly implement Article 17 (and expressed its opposition to key elements of the Commission’s proposed implementation guidance).

The Netherlands

In the Netherlands the proposed implementation law implementing all provisions of the directive is steadily moving through the legislative process. After the government introduced the law into parliament in June, the legal affairs committee raised a number of concerns related to the implementation of Article 17 which was missing key user rights safeguards. In reaction, the Ministry of Justice proposed amendments that add the missing safeguards. On the 17th of November the second chamber of the Dutch parliament approved the implementation law with a broad majority. The proposed law is now before the 1st chamber (Senate) for a final yes-or-no vote which will likely happen early next year.

While this opens the possibility that the Dutch legislator will adopt the implementation law before the Commission issues its guidance, it is worth noting that the Dutch implementation contains a clause that allows the government to issue further rules on the application of the provisions contained in Article 17. The Ministry of Justice has made it clear that it intends to use this clause to implement the Commission guidance as long as it serves the purpose of protecting users’ rights. The Ministry of Justice has also indicated that it supports the Commission’s proposal to limit the use of automated filtering to situations where a match can be considered to be “likely infringing”.

Germany

In Germany the proposed implementation law has not reached Parliament yet and is still subject to intense public discussion. The most recent proposal by the Ministry of Justice (which still needs to be coordinated with the other Ministries) differs starkly from the legislative proposals we have seen in other Member States. This is most pronounced with regards to the implementation of Article 17. 

Seen from abroad, the German implementation proposal represents an ambitious approach to protect users’ rights while at the same time ensuring that creators are remunerated for the use of their works on online platforms. And while the most recent proposal is far from perfect and it clearly does not meet the fulfil the promises that the German government made in its 2019 Council statement it is remarkably similar in structure to the guidance proposed by the Commission. 

Seen from the perspective of other Member States who still have to decide on their implementation approach, the German proposal does provide a template for implementing Article 17 in a way that minimises harm for users’ rights while at the same time ensuring that creators are remunerated for uses of their works on online platforms. 

What next?

With half a year to go before the implementation deadline there is still a lot of uncertainty about the implementation and impact of the DSM directive. While some of the uncertainties will not be resolved until after the implementation deadline (the CJEU ruling on the legality of Article 17 will arrive after the implementation deadlines has passed) the next two months should bring some more clarity: 

The much delayed implementation guidance of the Commission should arrive early in the next year and it seems reasonable that the German government will introduce its implementation law into parliament by the beginning of next year as well (hopefully showing that a user rights respecting implementation of Article 17 is possible). 

From the perspective of the Member States that have not yet put forward their own proposals it seems prudent to wait for the Commission guidance (which will likely contain minimum criteria for the protection users rights against automated filtering)  instead of coming out with legislative proposals that may need to be rewritten in the light of it. But real clarity about how to properly implement will likely only emerge once the Advocate General opinion in the Polish CJEU challenge is available. Unfortunately that would require Member States to wait until late April of next year making implementation within the deadline all but impossible.

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This decision came as a shock to many observers of WIPO, since there has only been one case in recent memory where an observer status application to WIPO has not been accepted. In 2014, the Pirate Party International was rejected due to being a federation of political parties. As highlighted by the United States in its statement in support of Wikimedia Foundation’s application, “allowing the Wikimedia foundation to participate as an observer would be entirely consistent with the established precedent at WIPO of supporting other existing observers and Member States that also have some affiliation with Taiwan.”

According to Amanda Keton, General Counsel of the Wikimedia Foundation,

“(t)he objection by the Chinese delegation limits Wikimedia’s ability to engage with WIPO and interferes with the Foundation’s mission to strengthen access to free knowledge everywhere.”

Indeed, observer status is a necessary condition for Wikimedia to participate in WIPO discussions, including discussions where norm setting in copyright is concerned. Ongoing discussions on exceptions and limitations to copyright (in the Standing Committee on Copyright and Related Rights), on the impact of artificial intelligence on intellectual property (in the context of the WIPO Conversation on Intellectual Property and Artificial Intelligence), and on the use of copyrighted content on online sharing platforms (a topic that WIPO has recently revived through an International Conference on The Global Digital Content Market) are of utmost important to access to knowledge organizations. 

It was particularly disappointing that the European Union and its Member States remained silent in the discussion. Apart from a statement from Group B (which includes Western European countries, Norway, the United States, Switzerland, Japan, Canada, New Zealand, Australia, Turkey, Israel and the Holy See), urging the approval of all requests for observer status and alluding to the principles of “transparency and inclusiveness” at WIPO, the EU was nowhere to be heard in the discussion.

Considering that the European Union promotes the participation of civil society organizations in its legislative processes, we would have expected a statement of support in the vein of the one delivered by the United States. The EU’s silence is even more disappointing considering that Wikimedia has participated actively in EU legal processes, particularly in discussions surrounding the recent EU copyright reform. In addition, many of the European chapters of the Wikimedia movement are currently involved in the implementation of the new EU Copyright Directive.

The Wikimedia Foundation is a legitimate civil society stakeholder in the area of access to knowledge. Not admitting its application to the status of observer of a UN organisation that shapes the legal framework for access to knowledge and information would be unacceptable. Therefore, we hope (and strongly urge) that the WIPO General Assembly will accept Wikimedia Foundation’s application at the next meeting without any further delays. 

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