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[Teresa Nobre, Communia Association, Link (CC-0)] Communia has endorsed the Civil Society Proposed Treaty on Copyright Exceptions and Limitations on Education and Research Activities (TERA), and asks others to follow suit, ahead of the 37th session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR). SCCR/37 will take place from 26 – 30 November in Geneva, and civil society advocates will propose that the treaty’s provisions be considered as a model for future text-based work by the committee.

The proposed treaty is the result of an extensive consultation process with various stakeholders (including Communia), which culminated with its adoption at the 5th Global Congress on Intellectual Property and the Public Interest on September 27, 2018. Institutions and individuals are both welcome to endorse the treaty.

Minimum international standards

The proposed treaty aims to establish minimum standards for copyright exceptions for educational and research purposes, while at the same time affording countries significant flexibility in how to implement these obligations.

International standards in the field of copyright exceptions for education and research purposes are important for several reasons, including:

• Reducing inequalities in access to educational and research materials,
• Enabling cross-border education and research activities, and
• Introducing a balance between the private interests of copyright owners and public interests related to access to knowledge, science and education.

Copyright laws around the world treat educational works and practices differently, resulting in huge discrepancies in the way education can be provided, and oftentimes increasing the inequality in educational outcomes. Everyday activities, such as displaying a Powerpoint presentation or showing a Youtube video in class, are permitted in countries that have strong, well-drafted educational exceptions to copyright, but prohibited in countries with none or poorly designed education exceptions.

Depending on where they are located, educators may have the freedom to choose and use whichever materials they feel are most adequate for their instructional activities, or may need to be extremely careful when selecting those materials to avoid risking civil and criminal action for copyright infringement.

The fragmentation of copyright laws also creates an obstacle to the transmission of knowledge between two or more countries with different educational exceptions. A distance learning program or MOOC developed in one country but delivered in another may be subject to different educational exceptions—one exception might apply to the instructor while another to the participant. In addition, a simple email that is sent from a teacher in country A to a student in country B could be subject to different copyright rules.

As we have said in the past, the path to harmonising copyright laws across WIPO Member States has been remarkable from the perspective of authors and other beneficiaries of copyright. It is only fair that the Member States that benefit from sophisticated copyright exceptions and limitations allow the convergence of rules that protect and expand the interests of educators, learners and researches, through the adoption of baseline international standards for educational and research exceptions.

Building upon the WIPO SCCR work

The proposed treaty aims to advance the text-based work of the committee in the field of educational and research exceptions. Civil society advocates have built upon previous SCCR documents on copyright exceptions, and incorporated the concepts articulated in those documents into the treaty. A section-by-section analysis of TERA can be consulted here.

The greatest innovation of TERA is to focus on education and research purposes, and making the exceptions open to any uses by any would-be beneficiaries, provided that they are made for such purposes, instead of limiting the beneficiaries to formal educational and research institutions, as the previous texts suggested.

In June 2018, WIPO member states adopted the so-called Action Plans on Limitations and Exceptions Through SCCR/39 (2nd Meeting in 2019). An important element of the action plan is to conduct regional seminars to analyze the situation of libraries, archives and museums, as well as for education and research, and to identify “areas for action with respect to the limitations and exceptions regime”. We believe TERA could inform the discussions on exceptions and limitations that will take place in the regional seminars, especially those promoting future text-based work of the committee.

More voices are needed if we want to see substantial progress in this area. Member State delegations that support text-based work on the field of copyright exceptions and limitations, education stakeholders, and public interest advocates need to work together to make their voices heard, and push for productive action on these issues. Endorsing this treaty is a good first step for the members of civil society.