Over the next five years, we need to remove the barriers that prevent knowledge institutions from fulfilling their public mission in the digital environment. Specifically, we need a targeted legislative intervention – a Digital Knowledge Act –  that enables knowledge institutions to offer the same services online as offline.

Such a regulation would require a few surgical interventions in copyright law, such as the introduction of a unified research exception (see our Policy Recommendation #9) and an EU-wide e-lending right (see our Policy Recommendation #10). However, it would mostly involve measures that fall outside of the scope of recent copyright reform discussions.

Above all, we’re envisioning a number of safeguards that would protect knowledge institutions against the abuse of property rights. Due to the complex and fragmented state of European copyright law, many institutions shy away from fully exercising their usage rights. We believe that an exemption from liability for those who act in good faith and believe that their activities are legal would mitigate this chilling effect (see our Policy Recommendation #17).

Another limiting factor for knowledge institutions in the digital realm are unfair licensing conditions. We believe that rightsholders should be obliged to license works under reasonable conditions to libraries as well as educational and research institutions.

Finally, knowledge institutions should be allowed to circumvent technological protection measures where locks prevent legitimate access and use of works, such as uses covered by limitations and exceptions (see our Policy Recommendation #13).

These demands are far from new and even the idea of a Digital Knowledge Act has been floating around in Brussels policy circles for a long time. Now it is up to the incoming legislators to show that they have the political will to tackle these problems in a comprehensive manner to unlock the full potential of Europe’s knowledge institutions.

The post A Digital Knowledge Act for Europe appeared first on COMMUNIA Association.

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!

The post Finally, something to look forward to at WIPO appeared first on COMMUNIA Association.

We made the following statement regarding limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

Dear Delegates,

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. The only reason why we persist is because we cannot stand talking with those researchers and teachers about the challenges they face when researching newspapers or showing Youtube videos in Zoom classes, and turn our backs on them.

So today, I’ll use the 1 minute that I have to let you hear from one of them, in the hope that this will be it, that these will be the words that will also make you stand for them.

Jonas is a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, and we interviewed him for our publication “Nobody puts research in a cage”.

Jonas is struggling because he cannot have remote access to the data sources he uses in his research and also because he cannot share his research results and underlying resources with colleagues for purposes of verification and validation of his research. In his words:

We are studying book reviews in Swedish newspapers from 1906, 1956 and 2006. We want to train the computers to understand different expressions in their context. We also have a dream that feels more and more likely, insane at first but now maybe real? That is, to train a text corpus to identify what is a book review!
To access material from 1956, we have to go to the National Library Lab in Stockholm. It is a small glass cage with three data terminals. You sit in the lab, annotate. Access to it costs SEK 70,000 the first year, and 35,000 in the following years. You are not allowed to take data in or out, all labs must be done in the cage.
The transparency is non-existent. If someone wants to verify the results, they also have to buy the license for a lot of money. An incredible anxiety!

End of quote.

Thank you.

The post SCCR/43: COMMUNIA Statement on Limitations and Exceptions appeared first on COMMUNIA Association.

This blog post analyses the implementation of the copyright exceptions for Text and Data Mining, which is defined in the Italian law as any automated technique designed to analyse large amounts of text, sound, images, data or metadata in digital format to generate information, including patterns, trends, and correlations (Art. 70 ter (2) LdA). As we will see in more detail below, the Italian lawmaker decided to introduce some novelties when implementing Art. 3, while following more closely the text of the Directive when implementing Art. 4.

Text and data mining for scientific purposes

Art. 70 ter (1) LdA permits reproductions made by research organisations and cultural heritage institutions for scientific research purposes, for purposes of extraction of text and data from works or other materials available on networks or databases to which they lawfully have access to, as well as communication to the public of the results of research when expressed in new original works. It seems that the Italian lawmaker committed a lexical fallacy by adding that the purpose of the reproduction is to extract text and data from works and other materials available in networks or databases. This, as well as limiting the type of protected materials to those present on networks or databases, appear to be legislative inventions incompatible with the directive.

Notably, the new Italian exception also allows the communication to the public of the research outcome when such outcomes are expressed through new original works. In other words, the communication of protected materials resulting from computational research processes is permitted, provided that such results are included in an original publication, data collection or other original work.

The right of communication to the public was not contemplated in the original government draft; it was introduced in the last version of the article to accommodate the comments of the Joint Committees of the Senate and the Joint Committees of the Chamber, both highlighting the need to specify that the right of communication to the public concerns only the results of research, where expressed in new original works.

The beneficiaries of the TDM exception for scientific purposes are research organisations and cultural heritage institutions. Research organisations essentially reflect the definition offered by the directive. These are universities, including their libraries, research institutes or any other entity whose primary objective is to conduct scientific research activities or to conduct educational activities that include scientific research, which alternatively:

• operate on a non-profit basis or whose bylaws provide for the reinvestment of profits in scientific research activities, including in the form of public-private partnerships;
• or pursue a public interest purpose recognised by a European Union member state (Art. 70 ter, (4)LdA).

If commercial enterprises exercise a decisive influence, such as allowing access on a preferential basis to the results generated by scientific research activities (Art. 70 ter, (5) LdA), an organisation will not be considered a research organisation under this law. Cultural heritage institutions are defined broadly, including libraries, museums, and archives, as long as they are open to the public or accessible to the public, also those belonging to educational institutions, research organisations and public broadcasting bodies, as well as the institutes for the protection of film and sound heritage and the public broadcasting bodies (Art. 70 ter, (3)LdA).

The copies of works or other subject matter created need to be stored with an adequate level of protection and can be kept and used only for scientific research purposes, including the verification of research results (Art. 70 ter, (6)). Rightsholders are authorised to apply measures to ensure the safety and integrity of the networks and databases where the works or other subject materials are hosted (Art. 70 ter, (7) LdA). Such measures shall not go beyond what is necessary to achieve and can also be defined based on agreements between right holder’s associations, cultural heritage institutes and research organisations (Art. 70 ter (8) LdA). Such negotiations have not taken place so far.

The Italian lawmaker did not expressly contemplate any specific and fast procedure for cases where technical protection measures prevent a beneficiary from carrying out the permitted acts under both TDM exceptions. However, the law now recognises to the beneficiaries the right to extract a copy of the material protected by technological  measures in certain cases. Under Art. 70-sexies, LdA, beneficiaries of the TDM exception for scientific purposes (as well as the beneficiaries of the exception for digital and cross-border teaching activities exception) shall have the right to extract a copy of the protected material, when technological measures are applied based on agreements or on administrative procedures or judicial decisions. In order to benefit from this right, the person shall have lawful possession of copies of the protected material (or have had legal access to them), shall respect the conditions and the purposes provided for in the exception, and such extraction shall not conflict with the normal exploitation of the work or the other materials or cause an unjustified prejudice to the rights holders.

While the Italian lawmaker should be praised for introducing such a right, the Italian implementation still missed an opportunity to update the controversial and rarely applied negotiation and mediation procedures set forth in Art. 71 quinquies, (2) LdA (which transposed Art. 6(4) of the Infosoc Directive) to the actual needs of all beneficiaries of copyright exceptions. Furthermore, it should be noted that the law continues to reserve the application of the three-step test only to  the exceptions and limitations related to the use of protected materials available through on-demand services only, including under the new copyright exceptions, contrary to what is mandated by Art. 7(2) of the CDSM Directive.

Regarding contractual override protection, as stated by Art. 7(1) of the CDMS Directive, conflicting agreements with the TDM exception for scientific purposes are void.

Text and data mining for other purposes

The implementation of the exception for text and data mining for purposes beyond scientific research by any individual or organisation follows for the most part the text of Art. 4 of the CDSM Directive. Reproductions and extractions are allowed from works or other subject-matters available online or databases to which users have lawful access for TDM. The exception is subject to the possibility of rightsholders reserving their rights, but there is no clarification on how this reservation should be made. In this regard, the Italian law doesn’t mention the need​​ to express such reserves appropriately, such as through machine-readable standards when contents are made publicly available online.

No additional conditions or precisions are established on the retention and storing of copies of materials made to conduct text and data mining, nor on the measures that rights holders may take to ensure the safety and integrity of the networks and databases where the materials mined are hosted. Reproductions and extractions may be retained only for the time necessary for text and data mining as stated in  Art. 4 of the CDSM Directive.

Conclusion

In conclusion, the Italian legislator should be praised for going beyond what is required by art. 3 of the CDSM Directive. The Italian implementation allows the application of the TDM exception for scientific purposes to the reproduction for the extraction of texts and data or other subject matters (to which the beneficiaries have lawful access) and to the communication to the public of the research outcome when it is expressed through new original work. Therefore, in this respect, the Italian legislator exercised the option allowed by Art. 25 of the CDSM Directive to adopt a broader provision, compatible with the exceptions and limitations provided for in the InfoSoc and Database Directives.

For TDM for other purposes, the lawmaker reproduced the text of Art. 4 of the directive, not adding any extra elements to regulate, as written before, the exercise of the faculty to opt out by rights holders in a suitable and machine-readable by the computers. The Italian implementation also missed an opportunity to introduce provisions to allow the reproduction of material protected by technical measures that prevent beneficiaries from carrying out the permitted acts under the both TDM  exceptions. In sum, a total organic revision of the Italian copyright law would be desirable, which would allow for a better understanding and knowledge by not only the interpreter of the law, but also by rightsholders and users.

The post The Italian Implementation of the New EU Text and Data Mining Exceptions appeared first on COMMUNIA Association.

Today, the A2K Coalition is launching its website with demands for education, research and cultural heritage.

Access to knowledge is not enjoyed equally across the world. Crises, including the COVID-19 pandemic and the climate emergency, highlight the barriers that the current copyright system poses for those who learn, teach, research, create, preserve or seek to enjoy the world’s cultural heritage.

The international copyright system has failed to keep pace with advancing technology and practices, including for digital and cross-border activities. Consequently, we have been unable to seize the possibilities that exist to promote access to, and use of, knowledge to fulfill human rights and achieve more equitable, inclusive and sustainable societies.

The members of the A2K Coalition represent educators, researchers, students, libraries, archives, museums, other knowledge users and creative communities around the globe. Our individual missions are varied but we all share a vision of a fair and balanced copyright system.

In addition to our mission statement and demands, the A2K Coalition website features evidence to substantiate our claims. Three maps track the state of copyright limitations and exceptions for online education, text and data mining, and preservation across most countries in the world. Currently, only the text and data mining map is fully implemented, but the maps for online education and preservation will follow soon. The website is available in English, French and Spanish language versions.

We invite you to explore the A2K website and spread the word about the A2K Coalition.

The post Global Civil Society Coalition Promotes Access to Knowledge appeared first on COMMUNIA Association.

We are attending the 42nd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) in Geneva. Today, the Committee is discussing the issue of limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 8) and the following statement was delivered on behalf of COMMUNIA:

Dear Delegates,

It will not be easy to convince your families, friends, neighbours that policymakers from across the world should spend time discussing how to improve copyright exceptions.

There is absolutely no doubt that the restrictions copyright laws pose on access to knowledge and information condition the right to education and the right to research, and that educational and research exceptions would benefit society as a whole. That is what will determine whether teachers can show a short news report during live-streamed online classes, whether researchers can conduct medical research or track desinformation online.

Yet, the fact that copyright laws are hard to understand will be an obstacle to reforming copyright laws at national level. Therefore, when Global North delegations claim that each one of you can go back to your countries and introduce exceptions that work for education and research in the 21st Century, we say: that is easier said than done.

Indeed, if you look at the national exceptions for education and research in the European Union, before the recent EU-wide copyright reform, you will see that not even the EU Member States were investing time in solving these issues if they had not been forced to do so through a binding regional instrument.

It should also be said that the fact that copyright exceptions are now outdated only in the Global South does not make this issue less problematic for the Global North. Institutions in Europe and North America engage in cross-border education and research activities outside of their regions on a regular basis. Think about EU distance education programmes attended by students located in Latin America or international research programmes involving North American and Asian researchers. It is clear that the lack of the same minimum set of rights across the world prevents these cross-border activities from taking place, affecting both the North and the South.

We understand that this Committee is not ready to make a decision on how to positively affect copyright frameworks to actually protect the right to education and research. At the same time, this Committee has been discussing this agenda item for nearly 15 years.

We believe that it is fair to say that the work undertaken by the Committee so far has not had much impact on the copyright provisions that frame how educators and researchers can have access to knowledge and information. The African Group proposal could change the course of action to make the work of the Committee more useful. We, thus, urge this Committee to use its best efforts to reach an agreement on how to move forward towards more positive and impactful outcomes.

Thank you.

The post SCCR/42: COMMUNIA statement on limitations and exceptions for education and research appeared first on COMMUNIA Association.

Today, the Committee is discussing the protection of broadcasting organizations and the following statement was delivered on behalf of COMMUNIA on this agenda item (Agenda Item 6):

Much of the content that broadcasters transmit plays an essential informational, cultural and educational role in our society. Radio and television programs and archives are fundamental to have access to knowledge and information. They are sources of scientific research and are also used as educational materials. We recall that radio and TV-based remote learning have re-emerged in the past years, in response to the pandemic.

Therefore it is essential that educators and researchers have broad and immediate access to broadcast content.

Although the scope of the draft treaty has been reduced, the need for robust limitations and exceptions remains, when legal protection of broadcasters is shaped in the form of exclusive rights.

The problem is that the draft text only says that countries “may” extend the same exceptions that exist for copyright, but, obviously, countries can choose not to do this.

This is more restrictive than the Berne Convention, which has mandatory exceptions for news of the day and quotations, and permissive exceptions for educational and other uses. This may lead to the surprising result that broadcasts are subjected to fewer exceptions than the underlying copyrighted works.

A treaty that creates an additional layer of rights needs to also mandate the corresponding exceptions. Otherwise it ignores the societal and cultural needs related with access and reuse of broadcasts, failing the society as a whole.

The post SCCR/42: COMMUNIA statement on the protection of broadcasting organizations appeared first on COMMUNIA Association.

The event started with Marco Giorello, the Head of the Copyright Unit at DG CONNECT of the European Commission, explaining the reasons for introducing mandatory exceptions for education and research purposes at the EU level (from min. 8:55 to min. 20:50). Marco pointed out that both research and education were at the forefront of the Commissions’ discussions on the modernization of the copyright system. The need for introducing mandatory exceptions for those activities became apparent after conducting a study of the national implementations of the optional EU-level education and research exceptions. Not all Member States had implemented the exceptions of the InfoSoc Directive. Those who had implemented them had done it in a very different way, and in a number of cases the national exceptions were clearly not applicable to digital and online uses.

Giorello presented some of the mandatory and optional features of the new education and text and data mining exceptions, including:

1. the prohibition on contractual overrides, which is mandatory for EU Member States and applies to those exceptions;
2. the complementary mechanism between the education exception and licenses, which gives Member States the option to implement the exception in a way that allows “suitable licenses” to take precedence over the exception, when they cover the same uses; and 
3. a mechanism that makes sure that education at distance works the same way in practice across the entire EU: a sort of legal fiction that applies to online educational uses that makes sure that the copyright-relevant acts carried out under the responsibility of educational establishments are always deemed to be carried out in the country of the educational institution. This mechanism aims at solving territoriality issues within the EU internal market and, as Marco recalled, it is not the first time that the EU has done it in the context of exceptions in EU law. Marco said that the precedent that inspired the EU to introduce this cross-border mechanism is to be found, first, in the EU Orphan Works Directive (which has a very similar mechanism) but also to some extent in Directive implementing the Marrakesh Treaty in the EU (which also has a mechanism to make sure that cross-border access works in practice).

Next, Catherine Stilher, the CEO of Creative Commons, recalled that education and research were two areas where civil society interests were difficult to be heard (from min. 24:39 to min. 35:01). Stihler, who was a Member of the European Parliament during the negotiations that led to the adoption of the DSM Directive, argued that the compromise represented an improvement on what had gone on before. She recalled that the different national rules were often contradictory, leading to legal uncertainty, and that those rules often conflicted with other national and EU priorities, namely the objectives of the EU in removing barriers to cross-border cooperation. 

Stihler went on to describe the challenges with reaching consensus on the text and data mining exceptions, namely on the rights reservation regime (which led Creative Commons to recently issue a statement). The former MEP also called attention to one of the biggest flaws of the education exception: the fact that it does not cover education provided in informal settings, which are an important site for lifelong learning. She shared the view that, despite all of this, what was achieved at the EU level and what the EU can teach us is particularly helpful “when we are thinking about cross-border barriers globally” and a fit for purpose copyright regime globally to help educators and researchers alike. 

As a third speaker, Erry Prasetyo, Intellectual Property and Trade Disputes Officer at the Ministry of Foreign Affairs of the Republic of Indonesia, shared his personal views on the subject (from min. 38:00 to min. 52:50). Unfortunately, due to technical difficulties, it was not possible to obtain a clear recording of Prasetyo’s entire intervention. However, Prasetyo made a number of highly important remarks regarding the current state of international negotiations, particularly in the context of the World Intellectual Property Organization (WIPO) and in bilateral trade negotiations. The Indonesian diplomat began his intervention by describing what he considers an imbalance in the international copyright system that needs to be corrected. Prasetyo drew attention to the fact that the regime for exclusive rights had been overhauled extensively over the last 25 years to account for the impact of digitization and the internet on uses of copyrighted works. At the same time, nothing similar to the WIPO Internet Treaties (i.e. WCT and WPPT) has happened for limitations and exceptions, which are still stuck in the 1970s but also in need of an update. He noted that when countries from the Global South tried to modernize their copyright laws, this often provoked backlash from developed countries. An international instrument could provide a remedy to this solution.

The final presentation came from Professor Ruth Okediji, Jeremiah Smith. Jr. Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center (from min. 54:10 to min 01:10:30 in the recording). Professor Okediji praised the new EU exceptions for “restructuring the importance of copyright law for education” and for taking us back in alignment with what copyright law was first envisioned to do. Education, according to Okediji, had been the initial focus and objective of the copyright system, as highlighted by the first formal copyright act, the Statute of Anne. She suggested that the new EU model can be seen as “an investment in a global copyright law of the future, responsible and dynamic enough to the needs of the Global South and the Global North”, one that will advance the discourse and prepare us for what education will look like in the future. 

In her presentation, Professor Okediji reflected on the kinds of designs and mechanisms “that will be required for us to begin to see a more nurturing copyright system globally”. She recalled that access to protected materials for educational purposes, contrary to simple access to information, requires the capacity to use materials in ways that are dynamic, unprecedented and that try to keep up with the pedagogic needs that keep evolving. This, she said, suggests that educational L&Es that are discrete, simple and explicit, while providing certainty, might not be dynamic enough to adjust to the reality of the modern classroom and an increasingly digitized learning environment. Okediji also called attention to the fact that educational institutions are increasingly diverse and educational uses are not singularly occurring within the confines of educational institutions, which means that tying education exceptions to specific education institutions (as in the EU model) is a fairly conservative approach.

Finally, Professor Okediji drew some considerations on the option given by EU lawmakers to EU Member States to give precedence to licenses over the education exception. She highlighted some of the problems that come with licensing (determining the necessity for a license, locating the copyright owner, identifying what license intermediaries might also impose, negotiating a license) and cautioned that L&Es should not become “a lever for creating inequality amongst educational institutions”. After all, she added, “not every country has well-funded education institutions, not every institution will be able to compete in the network of licenses that are made available, and copyright owners of non-educational content that we want to use for educational purposes have little to no incentive to create (licenses)”. She concluded that, while the EU model takes a step in the right structural decision (i.e. “mandatory exceptions to ensure that there’s access to the public provision of education for all people across the globe”), it introduces new dynamics that will “require us to maintain vigilance around the structure and around the mechanisms of navigating access for educational and research purposes.” (Note: Professor Okediji’s rich intervention can hardly be summarized in a blog post and to those would like to dive deeper into the topic we recommend a couple of her papers – here and here – on the subject).

The interventions were followed by a discussion with the panelists (from min. 01:10:33 onwards). Some highlights of the discussion include the answer of Professor Okediji to the question of whether there are merits in having a mandatory exceptions regime on a global scale. She said that “certainly on the provision of public goods, such as education or scientific research, a mandatory exception immediately puts some stakes in the ground about what is a non-negotiable public interest and so as a signaling mechanism I think it is important”. For her, the challenge in constructing a regime that would make more sense for the provision of a public good would be to formulate the rules around what countries can and cannot do in that implementation process. It would be important, for instance, to prohibit contractual and technological overrides and also to specify the conditions under which a use is compensated or not compensated “because a mandatory compensation that requires compensation may be just as bad as a no-mandatory or no exception at all”. 

Giorello underlined that the challenge, from his perspective, in having an international regime for exceptions is not so much the mandatory aspect of it (i.e. requiring WIPO member states to introduce exceptions in their national laws), but the application of the national treatment principle to exceptions. In his words, “the ‘raison d’être’ of lawmaking on copyright at the international level is to have a national treatment mechanism.” He recognized that it is not impossible to apply the national treatment principle in the area of exceptions. This has been done already in the context of the Marrakesh Treaty. However, the Head of the Copyright Unit noted that discussions at WIPO on mandatory exceptions at the international level are so difficult, at the technical and practical levels, because of such principle. The mutual recognition of national exceptions and the impact on the market of cross-border exchanges of content that is protected by national exceptions is apparently what has been holding the EU from moving forward with these discussions at the international level. Yet Giorello recognized that the Commission has not explored this issue from the perspective of the EU institutions and their need to engage in cross-border activities outside of the EU region, and added that it would be interesting to explore the issue further.

For Professor Okedij, education is a global cross-border endeavor and therefore we need to make sure that the capacity for that is not hindered by copyright law. This means that the “mandatoriness” is a start, but it is not enough; we need to think about the cross-border implications of such activities. Mechanisms such as safe harbors for education, in her opinion, have a role to play in permitting cross-border sharing and dissemination activities that might trigger infringement lawsuits. She further suggested that, as we go forward with the discussions at WIPO, an incisive instrument that would combine an upgrade of the Berne Appendix, an update of some of the norms from the Tunis Model Law and some of the converging norms around cross-border uses of copyrighted materials, would further advance the vision of the Berne Convention that copyright is an important tool to build our democracies and to build the possibility for human growth and development. 

The post How to Promote Research and Education at the Global Level? Takeaways from our Panel Discussion appeared first on COMMUNIA Association.

Join us on February 15th at 15:00 CET in an online panel discussion co-hosted by COMMUNIA, Wikimedia Deutschland, and the Right to Research in International Copyright Law project* to discuss this question.

The Directive on Copyright in the Digital Single Market greatly facilitates important activities, such as text and data mining or online teaching in cross-border settings. The value of these provisions is clearer than ever. During the Covid-19 pandemic, we have all witnessed a shift to the digital environment and it is clear that online learning and research are here to stay.

Unfortunately, these new limitations and exceptions to copyright only apply in Europe. The vast majority of educators and researchers in other parts of the world, particularly in the Global South, lack such provisions and, as a result, are not always able to undertake these activities. The current state of legal fragmentation also severely limits cross-border collaboration, demonstrating the need for a global solution. Important fora, including the UN World Intellectual Property Organization, have discussed many of these topics for over 15 years but so far have failed to deliver a solution.

We invite you to participate in this online event and follow the discussion of a distinguished panel of experts on whether and how the provisions of the EU Copyright Directive should serve as a model for multilateral instruments or trade agreements.

Panel:

• Marco Giorello (Head of the Copyright Unit at the European Commission, DG CNECT)
• Ruth L. Okediji (Jeremiah Smith. Jr. Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center)
• Erry Prasetyo (Intellectual Property and Trade Disputes Officer at the Ministry of Foreign Affairs of the Republic of Indonesia) 
• Catherine Stihler (Chief Executive Officer at Creative Commons) 
• Moderated by Teresa Nobre (Vice-President of COMMUNIA)

Please register here in advance. Registered participants will receive detailed information on how to join ahead of the event.

Update: Those who weren’t among the first 100 registrations will be able to follow the synced live stream on YouTube.

*The Project on the Right to Research in International Copyright is supported by Arcadia – a charitable fund by Lisbet Rausing and Peter Baldwin

The post Save the Date: The New EU Copyright Exceptions – A Model for the World? appeared first on COMMUNIA Association.

This is the second time the Committee meets since the beginning of the pandemic. In November last year, we urged the Committee to take appropriate action to respond to the massive disruption to education, research and other public interest activities caused by the COVID-19 pandemic. However, no Delegations put forward any proposal, and we left the SCCR disappointed at WIPO’s inaction in the face of this global crisis. 

Today, most Delegations expressed their agreement to a proposal to hold a number of regional consultations “to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them”. Furthermore, a proposal by the Asia-Pacific Group, to hold an informational session at the next SCCR on the impact of COVID-19 on all the beneficiaries of the copyright system, was also well received.

Global South countries insisted, nevertheless, that the next steps for the agenda items on limitations and exceptions to copyright should not be limited to those consultations and information sessions. Many Delegations recalled the 2012 mandate to work towards “an appropriate international legal instrument”, and urged the Committee to set a work plan to fulfill the mandate.

The following is the statement made on behalf of COMMUNIA on the agenda item on limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

During the peak of the pandemic, 90 percent of all countries worldwide offered online learning. Yet, many of these remote uses made by your educational communities, made by your family, your friends, are not protected by law. By the vast majority of laws.

The lack of fundamental exceptions to copyright that are fit for our current digital lives is a problem across the world. Yet many here claim this is a local issue, for each member state alone to solve.

When a meeting (such as this one) takes place and the participants, joining from all over the world, cite others in their statements, they trigger the application of multiple laws. When universities in your countries invite students located in other countries to online programmes, and the teachers show copyrighted images in their live streamed classes, they also trigger the application of multiple laws. Yet many here claim that there is no cross-border dimension to these issues, and each member state alone can solve them.

We honestly do not know how your country or any other country is supposed to solve these issues alone, when the works shown and shared in one country are seen and heard across multiple countries at the same time. 

So we urge you, work together to find a supranational solution to these pressing needs that affect education, research, and access to information.

As a first measure, we ask you to pass a resolution now to assert the flexibilities that exist in the Treaties to conduct public interest activities online. Further, we ask you to develop a work programme for the Limitations and Exceptions agenda item to fix this issue and protect fundamental uses across borders.

Finally, while we welcome the proposal for consultations and informational sessions, we ask that this time our constituencies are properly involved and represented.

The post SCCR/41: COMMUNIA Statement on Limitations and Exceptions appeared first on COMMUNIA Association.