infoJustice

[See also: Presentation slides]

Jon Band and I were asked by the education and research beneficiary groups to work with them to draft model instruments that would reflect the work of the SCCR thus far and contribute to the development of an international instrument on education and research exceptions to copyright. The result of this project is the Civil Society Proposed Treaty on Educational and Research Activities (TERA). We release the Draft Treaty at the World Intellectual Property Organization Standing Committee on Copyright and Related Rights for the first time today. Here I describe briefly our methodology in creating the draft and the main provisions of it. Further information is available at http://infojustice.org/tera

Background

We began working over a year ago with education and research communities to craft a model treaty based on the work of the SCCR. The process to draft the treaty included several methodologies:

• We reviewed the education and research rights around the world as reflected in the Seng studies commissioned by SCCR, in the research of the Global Expert Network on Copyright User Rights available at infojustice.org, and the work by Communia mapping exceptions in Europe.
• We reviewed the history of norm setting in this area dating back to the Berne Convention’s Article 10(2) and including the last decade+ of work on the issue by this committee.
• We conducted a large number of workshops with beneficiary communities and government representatives to reflect their views in the text.

Goals

Our research concluded that there are two main goals of a treaty in this area:

• Harmonize exceptions. There is a great disparity in WIPO member states on the adequacy of exceptions for education and research activities in the digital age. Too many countries continue to have an activity-based instead of purpose-based exception system. Too many countries, for example, limit educational rights to “reprographic” copies in a physical “classroom.”
• Protect cross-border uses. Because of the lack of harmonization in exceptions, there are barriers to the cross border sharing of works that are essential for achieving globalized standards for educational outcomes. We know from a large amount of research that prices of texts is a key driver of lack of access to learning materials and that this lack of access directly affects educational outcomes. One way to overcome these barriers is to create and share open educational resources that can be used and adapted freely around the world. But most of these materials are being created in the North, where there are more open exceptions, and cannot clearly be used in other countries where exceptions are more closed. To enable universal access to FREE and OPEN content, we need a harmonized exceptions environment.

Means

The research also reveals four main means toward reaching the goals, namely:

• Protect limitations and exceptions from the three step test, particularly in the area of more open and general exceptions that operate like fair use in the US;
• Require specific exceptions such as was included in the Berne Convention for quotation;
• Promote balance in copyright systems more generally, through progressive realization duties such as was included in the Trans-Pacific Partnership agreement.
• Safeguard cross border uses of materials made in one country for use of another, such as was accomplished in Marrakesh.

Section-by-Section

The text reflects and incorporates our best version of all the proposals that been made in the committee thus far. These include the treaty proposals by the African Group and the subsequent textual proposals offered by Brazil, Chile, Nicaragua, Peru, Uruguay and the principles offered by the United States. The text also incorporates additional clauses that are based on other work of the Committee or concerns of civil society.

One key change of this proposal from past text. TERA addresses educational and research activities, not just educational and research institutions. This focus reflected the conclusions of the Seng studies, which describe the needs of students, educators, researchers and other individuals in need of education and research rights.

Preamble. The Preamble is based in part on the preamble contained in the 2011 draft treaty proposed by the African Group.[1] It shortens the preamble to focus on what the community saw as the most important point, which is that education and the ability to conduct research are protected by human rights and are necessary to achieve the United Nations’ Sustainable Development Goals as well as WIPO’s Development Agenda.

Article 1 adopts from the WCT agreed statements the important point that the Treaty should not be read to reduce the limitations and exceptions permitted by other international instruments, including the Berne Convention. Notably, Berne Articles 10(1) on quotation and 10(2) on education are not subject to the three step test.

Article 2 is to emphasize that he objects of the treaty are individuals, not institutions.

Article 3 sets out the positive duty to promote rights – based on the language incorporated into the TPP. It also contains the protection for fair use, modeled on language adopted in the Marrakesh treaty.

Article 4 includes the principles for education and research offered by the United States in this Committee, as well as principles from the Preamble to the WCT.[2]

Article 5 is the heart of the effort to promote harmonization of rights. It includes two main parts.

Paragraph 1 includes a general flexible mandate to adopt exceptions for education and research modeled on Berne Article 10(2) and extended to include research activities.

The model applies to all works – including digital works – by all users (teachers, students, researchers) and all activities, as long as the time tested protections of the author are respected. The provision is not a free for all. All uses under the treaty must be restrained to the extent justified by a lawful purpose and be compatible with fair practice. Those are of course the conditions already present in the Berne Convention.

Paragraph 2 provides more specificity and predictability. It defines specific activities that should be considered within the scope of paragraph one – as long as the quantitative and fair practice qualifications are met.

These activities include:

• Teaching,
• learning,
• materials creation and
• research

Paragraph 2(d) notably includes consideration of researcher needs to make use of so-called non-non-consumptive uses of content, such as for text and datamining.

Article 6 includes the very important authorization of cross border uses of lawfully made content, based on the Marrakesh treaty.

Article 7 makes clear that while there must be a core of free use, countries are free to define uses beyond fair practice as subject to a remuneration right.

Article 8 addresses the issue raised in the Seng study concerning protection from contractual provisions.

Article 9 includes protections of exceptions from technological protection measures, modeled on the Beijing Treaty.

Article 10 addresses the issue raised in the Seng study on protection of good faith uses from criminal liability and damages.

Article 11 includes the guidance on the interpretation of the three step test proposed in the committee by Ecuador, Peru and Uruguay.

Article 12 includes duty to carry forward exceptions into the digital environment, modeled on the WCL agreed statements.

At bottom, this is not a radical document. It is an achievable one.

It is not intended to be final, but rather is a starting point for the next phase. It could be used in the regional seminars to adopt declarations or statements or purpose and adapted into a model law or other form.

We offer our assistance to countries that want that move if further, including by tabling it in this committee for further consideration.

The text of the treaty and background documents can be found at http://infojustice.org/tera

——————————————–

FOOTNOTES

[1] Draft WIPO Treaty on Exceptions and Limitations for the Persons with Disabilities, Educational and Research Institutions, Libraries and Archives (Proposal by the African Group), WIPO Doc. SCCR/22/12 (Jun. 3, 2011).

[2] WCT, Preamble (“recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention”).