The defense of education at the World Intellectual Property Organization

As we reported last month, Communia attended the 35th session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), which took place from 13 – 17 November in Geneva. The SCCR has a mandate to discuss limitations and exceptions to copyright, including for educational purposes. While Communia supports efforts to reach minimum international standards of exceptions and limitations to copyright in all the different areas that are currently under discussion (libraries, museums, archives, persons with disabilities, and education), our role there is specifically to support the dialogue on educational exceptions.

Why is it important to have baseline international standards?  

First, it’s a question of educational equity. The different treatments of education by copyright laws all over the world result in huge discrepancies in the way education is provided, thus increasing the inequality in educational outcomes. Educators in countries with none or poorly designed education exceptions have to be extremely careful when selecting the teaching materials they will use in educational activities or they can risk civil and criminal action for copyright infringement. Meanwhile, in countries that have strong, well-drafted copyright exceptions, teachers have the freedom to choose and use whichever materials they feel are most adequate for their instructional activities.

Second, it’s a question of making cross-border education possible. The fragmentation of copyright laws creates an obstacle to the transmission of knowledge between two or more countries with different educational exceptions. A distance learning program or MOOCs developed in one country but delivered in another may be subject to different educational exceptions—both on behalf of the instructor and also 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.

Finally, it’s a question of fairness within the copyright system. As we pointed out in our general statement on limitations and exceptions for education:

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.

What is going on at WIPO SCCR?  

Several countries interested in educational exceptions, lead by Brazil, Indonesia, and Nigeria, have been trying to push forward the discussions toward a normative agenda. However, other members of WIPO, most notably the European Union, do not want to proceed with any such a debate at the international level. The stance of the European Union is especially appalling considering the EU is currently engaged in discussions around developing a mandatory educational exception within the region. It’s a shame that the EU cannot even support the idea of an international model (non-mandatory) law in this field.

Due to these opposing views, during the last meeting of the SCCR delegates were not able to approve a mere draft action plan on limitations and exceptions for the 2018-19 biennium. This means that at the next SCCR meeting—which will take place in late May 2018—there will be again no substantial discussions on the topic. The Chair will present a revised draft before the May session, and hopefully Member States will then agree on what is to be done next.

On the bright side, at SCCR/35 professor Daniel Seng presented an updated study on limitations and exceptions for educational activities (2017) that shows, once again, the inadequacies of national copyright laws across the globe in the field of education. The highlights of Prof. Seng’s findings include the following facts:

  • About 60% of WIPO Member States do not provide for flexibilities, limitations and exceptions to the protection of technological protection measures, namely in the context of educational exceptions (read here our questions to Prof. Seng on this topic);
  • Only four countries currently restrict or limit the copyright liability of educational institutions;
  • Only 15 countries have provisions to protect exceptions and limitations to copyright from contractual overrides.

What are public interest advocates doing?  

For many years, the discussions around educational exceptions at the SCCR were not the focus of most public interest organization working at WIPO. Geneva is expensive (especially considering the required commitment of at least bi-annual week-long meetings), and processes move slowly at WIPO, so it is not easy to engage advocates in this battle.

Fortunately, with the help of friendly organizations working in the field of libraries, such as the Electronic Information for Libraries (EIFL) and the International Federation of Library Associations and Institutions (IFLA), advocates for educational exceptions are starting to mobilize themselves to attend the two SCCR meetings that take place every year, and to bring visibility to the issue.

In May, at the SCCR/34, Communia co-organized a lunch-time event for delegates, entitled ‘Fixing Copyright for Modern Education’, together with Creative Commons, the American University Washington College of Law Program in Information Justice and Intellectual Property (PIJIP), and EIFL. This was the first side event on education organized by civil society at SCCR, against a full hand of events organized by publishers and other rights holders. At the event, we presented an overview of legal trends and developments concerning education, and discussed the reality of education today. Presentations and background material are available here.

At the SCCR/35, a lunch-time event entitled ‘Copyright & Education in the Digital Environment: Challenges and Opportunities’ was hosted by the government of Brazil and PIJIP. The event attracted almost 100 participants, and discussed how the evolution of digital technologies has affected the distribution of educational materials, and what role WIPO might play in resolving some of the challenges. Presentations are available here.

More voices are needed if we want to see substantial progress in this area. We should not forget that the traditional publishers—who oppose international efforts toward minimum standards for educational exceptions—are very well organized, and according to their reports, conduct meetings all week with delegates of Members States, and with the Genevan Ambassadors from key countries. If we want to fight back in 2018, Member State delegations, education stakeholders, and public interest advocates need to work together to make our voices heard, and push for productive action on these issues.

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