infoJustice

Sean Flynn, Director, Program on Information Justice and Intellectual Property
American University Washington College of Law | June 29, 2021

This note provides analysis of the Limitations and Exceptions agenda item of the WIPO SCCR 41 Agenda, currently slated to be discussed on June 29-30. The Agenda calls for Members, IGOs and NGOs “to make general comments, with a focus on the Report on Regional Seminars and International Conference (SCCR/40/2), especially the sections on The Way Forward and Take-Away Considerations (pages 63-72).” It also invites “inputs on possible next steps, including the possibility of holding a number of regional consultations before the next session 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.” This note analyzes these two issues separately, and concludes with suggestions of elements that be included in a work plan for SCCR going forward.

1.  The Next Steps identified in the Secretariat’s Report on the Regional Seminars and International Conference do not record all the ideas for next steps identified by Member States, experts, and beneficiaries. In particular, the Report does not reflect the support for work international instruments on topics such as preservation, online and cross border uses to serve important purposes such as education and research.

In the last SCCR, the Secretariat released a Report (SCCR/40/2) summarizing the year of work on the Action Plans on Limitations and Exceptions. The Report contains much useful discussion of priorities of member states, experts, and beneficiary organizations on priorities for SCCR, including for work on preservation, online uses, and cross-border uses for the purposes of promoting education, research and access for people with disabilities.^[1] The Agenda requests inputs especially on the Way Forward and Take Away Considerations, pages 63-73.

Pages 63-72 are summaries of a panel discussion and appear to be accurate reflections of that discussion. Pages 72-73 (Paras 390-400) appear different. They are described as “next steps identified by the WIPO Secretariat.” The Next Steps proposed in by Secretariat are minimalist. There are just two proposals for action by WIPO:

405. WIPO should ensure the provision of legislative and technical assistance and enhance the legislative capacity of Member States, in particular for cross-border uses and the establishment of balanced copyright laws.

406. WIPO should develop a range of tools such as models, recommendations, guidance, handbooks, and toolkits, among others, containing information on licensing options and limitations and exceptions.

The nature of this section is unclear. Is it to reflect the Secretariat’s views on what the next steps of the member states should be? If this is the purpose, the section could be deleted since it is for the Member States to decide for themselves what the next steps of the agenda should be. The last in-person SCCR was deliberating on a draft Work Programme for the SCCR. If completed, that document will define the next steps for SCCR on this topic.

If the purpose is to summarize the next steps proposed by Member States, experts and stakeholders during the Action Plans, then the section should be amended to reflect the full range of those suggestions. The Report on the L&E Action Plans records numerous suggestions for WIPO action on the way forward, including work toward:

• binding international instruments with “flexibility in the implementation” and not “highly specific and highly tied to today’s technology,” such as a “reformulation of Article 10(2) of the Berne Convention,” “a proposed treaty on educational and research activities,” and an extension of “the provisions of the Marrakesh Treaty” on cross border uses;
• interpretations, declarations, resolutions or other instruments interpreting flexibilities in the current international instruments;
• “manuals, guidelines or … practices”, “objectives and principles,” “tool kits,” and other forms of guidance to help countries fit “international principles and conventions” to their specific countries.^[2]

The Secretariat’s suggestions for WIPO mention only the third item – the production of non-binding and purely informative “tools” and “models.” While these efforts were indeed called for during the action Plans and could be useful, they do not exhaust the range of actions that the Action Plans suggested that the Committee could usefully pursue.

2. Regional consultations in light of the impact of the Covid-19 pandemic should be designed to inform a possible Joint Recommendation on Emergency Uses of Copyrighted Works.

The second part of the agenda on limitations and exceptions is the only place in the Agenda where the COVID Pandemic is mentioned. Civil Society groups have been calling for WIPO to focus its work on addressing intellectual property barriers to responding to COVID, including copyright issues.

Access to copyright is needed to join critical research and development activities from tracking the virus to finding its cure. Copyrighted software is embedded in ventilators, testing equipment, and many other treatment devices – potentially blocking their repair. To make mRNA vaccines, one needs access to potentially copyrighted algorithms and other tools that identify vaccine targets. Permission to communicate copyrighted works is needed to promote distance education and access to libraries and other institutions of cultural heritage.

Civil society and beneficiary communities are calling for a top priority of the SCCR to be to take urgent action on copyright and COVID. In statements at SCCR 40 and in a recent public declaration, these communities called for a joint recommendation or other document that would interpret and explain existing flexibilities that can and should be used by member states to respond to COVID:

“Specifically, we call for urgent action to clarify that all copyright and related rights treaties …:

• 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.”^[3]

Any regional meetings could be designed to further these discussions. The meetings could follow the example of the Marrakesh Treaty preparation and explicitly invite reflections from beneficiaries on the potential need for and utility of international instruments (including non-binding instruments) that the SCCR could work on. First among those, from the position of civil society observers, is a Joint Recommendation on Emergency Uses of Copyrighted Works.

3. Toward a work programme for SCCR.

As noted above, the last in-person SCCR was deliberating on a work programme on the limitations and exceptions agenda. Useful elements of such a work programme could include:

• prioritization of a process to produce a joint recommendation or other instrument clarifying and promoting use of flexibilities needed to respond to emergencies;
• creation of a process, such as through working groups of experts, to develop model provisions for instruments in whatever form around digital uses for education and research, for preservation and access to preserved content, and to cross border uses of works;
• the development of tool kits, model legal provisions, or other forms of guidance, in particular for issues such as technological protection measures, protection of exceptions from contract override, and safe harbour protections for libraries, archives, museums, and educational and research institutions (and their agents);
• commissioning a study on research exceptions parallel to the other studies commissioned by the Secretariat.

^[1] For an extended discussion with citations to the Report, see Sean Flynn, Analysis of Wipo SCCR Draft Report on Regional Seminars and International Conference on Limitations and Exceptions (SCCR/40/2) (2021)  http://infojustice.org/archives/43234

^[2] Id.

^[3] Statement on Copyright and Proposal of a Waiver from Certain Provisions of the TradeRelated Aspects of Intellectual Property Rights (TRIPS) Agreement for the Prevention, Containment and Treatment of COVID-19 (IP/C/W/669) (March 22, 2021).