At the 47th session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), the African Group tabled a proposal for an instrument on limitations and exceptions aimed at supporting education, research, cultural heritage, and access for persons with disabilities.
For years, discussions at SCCR on limitations and exceptions have been marked by resistance from developed countries to advancing text-based work. This position has started to shift in recent SCCR sessions, with the EU signalling a willingness to engage in discussions on non-binding instruments. However, it remains unclear whether this shift implies a willingness to engage with the African Group proposal.
Against this background, we have taken a closer look at how the African Group proposal compares with EU copyright law (download our comparison table). Looking at the two frameworks side by side, the gap between them appears smaller than most SCCR delegates might think.
Uses for purposes of education and research
Both the African Group proposal and EU copyright law allow Member States to provide for an open-ended exception covering uses for illustration for teaching or scientific research. In this respect, the two approaches are very similar, both recognising that a degree of flexibility is needed to accommodate a wide range of educational and research activities.
Beyond this general provision, all key educational and research activities listed in the African Group proposal also find parallels in EU law. EU legislation includes optional exceptions for private copies and quotations, and a range of mandatory exceptions that address key aspects of research and education. These include the text and data mining exceptions, the exception for testing and interoperability of computer programs, the exception for digital teaching activities, and the framework for orphan works. Taken together, these provisions cover a broad spectrum of uses that support research and education, from data analysis and computational research to classroom activities and access to materials.
The differences emerge primarily in the conditions attached to these more specific exceptions. EU law often limits them to particular beneficiaries, ties them to non-commercial purposes, or subjects them to additional requirements. The African Group proposal, by contrast, relies on more general standards such as fair practice and purpose-based use.
Uses by cultural heritage institutions
The comparison in the area of cultural heritage also reveals a strong degree of alignment between the African Group proposal and EU law. Both frameworks recognise the need to enable cultural heritage institutions to preserve works in their collections. The provision in the African Group proposal closely mirrors the corresponding rule in EU law, which allows cultural heritage institutions to make copies of works and other subject matter, in any format, to the extent necessary for preservation.
Both frameworks also address access to works held in institutional collections. The African Group proposal allows institutions to provide access to preserved works on their premises, while also permitting the provision of copies for research and study purposes outside their premises. EU law allows cultural heritage institutions to make works available to the public for research and private study through dedicated terminals on their premises. While copies made under the preservation exception cannot as such be used to provide access, access to preserved works may nevertheless be permitted where it independently complies with the conditions of the dedicated terminals exception.
In relation to out-of-commerce works, both approaches acknowledge that access should be enabled under certain conditions. The African Group proposal allows uses where suitable licences are not easily available, while the EU framework relies on licensing by collective management organisations, complemented by an exception that applies where such organisations are not sufficiently representative. In practice, the EU system has so far seen limited uptake, with relatively few out-of-commerce works being made available through this mechanism.
Other permitted uses
The provisions are relatively similar when it comes to access for persons with disabilities. Like the African Group proposal, EU law already allows Member States to provide for an open-ended exception covering uses for the benefit of people with any disability. In both frameworks, the beneficiaries are defined in broad terms and the permitted uses are not exhaustively listed. The main differences lie in the conditions attached to those uses. The African Group proposal requires that the person need the accessible format in order to enjoy the work on an equitable basis with others, while EU law requires that the use be directly related to the disability, non-commercial in nature, and limited to what is required by the specific disability.
Cross-border uses are another area where both frameworks build on similar concerns. EU law addresses cross-border situations in three specific contexts: digital teaching activities, the use of out-of-commerce works, and the exchange of accessible format copies under the Marrakesh framework. The African Group proposal takes a broader approach, providing that limitations and exceptions should permit cross-border uses as a general rule, including the circulation of copies made under those exceptions.
The picture is different when it comes to remunerated uses. The African Group proposal expressly allows for uses beyond those specifically covered, provided that they are subject to adequate remuneration. EU law, by contrast, only leaves room for additional exceptions in narrowly defined situations of minor importance and subject to strict conditions. Here, the difference between the two approaches is more pronounced, with the proposal offering a broader and more flexible framework than what is currently available under EU law.
Additional protections
The comparison also shows that both the African Group proposal and EU law recognise the need for safeguards to ensure that limitations and exceptions remain effective in practice, although they approach this issue with different levels of generality.
On contractual interference, there is a clear point of convergence. EU law already provides that certain exceptions cannot be overridden by contract, most notably in the CDSM Directive and in the Marrakesh framework. The African Group proposal builds on the same idea, but formulates it as a general rule applicable to all limitations and exceptions, and reinforces it by clarifying that these protections apply irrespective of the law governing the contract.
A clearer divergence appears in relation to technological protection measures. The African Group proposal establishes that the protection of technological measures must not prevent the exercise of the uses permitted by the proposed instrument. Under EU law, access is ensured only through corrective mechanisms, and typically only in the absence of voluntary measures taken by rightholders. While both frameworks recognise the need to preserve the effectiveness of exceptions, they differ significantly in scope and in the balance they strike between user rights and the protection of technological measures.
The approaches also diverge when it comes to limitation of liability. The African Group proposal introduces a general safeguard for users acting in good faith, protecting them from damages and criminal liability when they reasonably believe that their use is lawful, and shielding certain public interest institutions from secondary liability. EU law does not provide an equivalent rule. While it allows Member States to take into account the lack of knowledge or reasonable grounds to know when determining damages in infringement cases, it does not establish a general exemption from liability for users relying on exceptions.
Why this matters
Looking across these areas, the comparison suggests that the African Group proposal is not so much a departure from existing approaches, but an attempt to adhere to principles that are already present in EU law (and elsewhere). In many cases, EU law relies on more detailed and conditional mechanisms, while the African Group proposal sets out more general permissions, but the underlying goals remain closely aligned.
While the differences are not insignificant, they should not obscure the underlying convergence. Shifting the focus to the common ground could help make the ongoing discussions at SCCR more constructive.
