Communia is a permanent observer of the Committee, and the following questions were made by me on its behalf:

Good morning, ladies and gentleman.

I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.

We would like to thank the Secretariat for arranging for the update and expansion of the study on educational exceptions, and Professor Seng for conducting such study.

We have a few questions for Professor Seng regarding flexibilities, limitations and exceptions to TPM protection in the context of education.

According to your study, about 60% of WIPO Member States do not provide for flexibilities, limitations and exceptions to the protection of technological protection measures. Those findings are very concerning because, according to an impact assessment study conducted by the European Commission in 2016, technological restrictions are the most frequently encountered copyright-related obstacle by users of digital works in education: 31,2% of educators and 36,9% of learners stated that they “are not able to access, download, use or modify a digital work because of technological protection”.

When anti-circumvention laws were drafted at the international level, they were expected to protect TPMs insofar as they restricted acts not authorized by rightsholders. My first question to is if you think that this international legal framework permits users from circumventing technological measures when their aim is to exert their legal rights under the copyright exceptions, and if you believe that it would be appropriate for national laws to allow users to circumvent technological measures in order to exert their rights under educational exceptions?

My second question concerns Member States that do not allow circumvention. In the impact assessment study that I mentioned, mechanisms available to end-users to enforce their rights to use TPM-protected works, without circumventing the TPMs, were only identified in 8 EU countries, which means that 20 EU countries are doing nothing to ensure that their teachers and students can enjoy their rights under national copyright exceptions. Furthermore, even where such mechanisms exist, they can be very burdensome. In Germany, Spain and Sweden it is necessary to go to court to get access to the TPM-protected work. In France, Italy, and the United Kingdom, it is necessary to file a complaint with the relevant authorities or open a mediation procedure.

So, my second question to you is: what are the mechanisms available to teachers and students to enforce their rights to use TPM-protected works in those Member States that do not permit the circumvention of the TPMs?

Finally, I would like to know which country do you think has the most adequate provisions to ensure that beneficiaries of exceptions and limitations for educational purposes can legitimately access and use TPM-protected works?

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The following is the statement made by Teresa Nobre on our behalf on agenda item 7: Limitations and exceptions for educational and research institutions and for persons with other disabilities.

Good afternoon, ladies and gentlemen.

I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.

Prof. Allan Rocha de Souza reminded us yesterday that a strong solid copyright system needs social legitimacy, and that social demands will not wait for legislation.

In the past several years we have seen the civil society organizing itself against trade agreements that are perceived as unfair, because they do not balance the private interests with the public interests in relation to copyright. On the other hand, all over the world, students, teachers, researchers and citizens in general commit daily infringements of copyright in order to get access to knowledge and education.

Not acknowledging these social demands and everyday practices will only weaken the defense of copyright as a system.

The path to harmonising copyright laws across WIPO Member States has been remarkable from the perspective of authors and other beneficiaries of copyright. This forum has not deferred to national laws when deciding to provide these parties with a reasonable high level of protection of their interests. It seems to us deeply unfair that, when it comes to users’ rights, those Member States that benefit from sophisticated copyright exceptions and limitations refuse to make a convergence of laws, suggesting that Member States should been given the freedom to decide whether to implement provisions that protect public interests such as access to knowledge and education.

Several studies made in the past several years have demonstrated the impact exerted by narrow educational exceptions in everyday educational practices. Unless the copyright laws of Member States are substantially amended, the global educational community will be stuck with laws that will continue to curtail educational practices at various levels.

We know that educational policies are local and that the markets for educational materials have local characteristics. However, we also know that the needs of educators and learners in terms of having access and using copyrighted works for educational purposes are the same everywhere in the world. We have to stop using the narrative that education is local and properly address this issue at an international level.

As we speak, the European Union is considering adopting a mandatory exception for educational uses that will harmonize the laws of 28 European countries, despite their different traditions and local specificities. They are showing to the world that agreeing on a minimum standard is possible, while still taking into account local specificities.

Therefore, we urge this Committee to fulfil its mandate and address the limitations copyright law places on education, by agreeing on an action plan that is focused on reviewing existing and future international legal provisions that could serve as a model for a minimum harmonization in this field.

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