IFLA has engaged for many years in the work of the World Intellectual Property Organisation’s (WIPO) Standing Committee on Copyright and Related Rights (SCCR). Through this, we have looked to realise the unique potential of WIPO to raise standards of protection for libraries and their users, as well as to provide clarity around cross-border collaboration.

The WIPO process is led by Member States, and so progress relies on their readiness to respond to the needs of their libraries and library users. In this respect, an important step forwards has come with a bold proposal from the African Group. Introduced on 7 October, this sets forth a draft instrument on copyright limitations and exceptions concerning priority areas for cultural heritage, research, and education.

The Draft Instrument is the African Group’s contribution to text-based negotiations in the SCCR on limitations and exceptions, consistent with the WIPO General Assembly’s 2012 mandate to the SCCR.

The nature of the Draft Instrument is not defined; the mandate indicates it could take the form of a model law, a joint recommendation, a treaty, or some other form. The Draft Instrument’s explanatory notes make clear that the Draft Instrument draws on existing treaties, regional agreements, EU directives, and proposals previously made in the SCCR.

IFLA appreciates the hard work of the African Group in developing and advancing this proposal. IFLA looks forward to working with the all SCCR members states in moving forward with the Draft Instrument.

The Draft Instrument’s key provisions are briefly discussed below.

Article 3—Adoption of National Exceptions

Article 3(2) of frames a general duty to promote balance in copyright law through the use of adequate limitations and exceptions. The explanatory note indicates that such a duty is included in plurilateral trade agreements such as in the Regional Comprehensive Economic Partnership (RCEP). Article 3(3) further provides that Member States shall extend into the digital environment limitations in their national laws which have been considered acceptable under the Berne Convention.

Article 3(4) clarifies that Member States may implement the norms of the Instrument through either general flexible exceptions, such as fair use and fair dealing provisions, or specific exceptions. The explanatory note for this paragraph states that its language is drawn from the Marrakesh Treaty, RCEP, and a document on objectives and principles for exceptions and limitations for libraries and archives proposed in the SCCR by the United States.

Article 4—Permitted Uses for Education and Research

This article of the Draft Instrument sets forth permitted uses for education and research “to the extent justified by the purpose and provided such utilization is compatible with fair practice.”  The uses identified include uses in the course of: teaching activities, learning activities, creating educational materials, and scientific research activities. This article’s provisions are of interest to libraries that support these activities, particularly libraries affiliated with research and educational institutions. The provisions of the article are informed by the Civil Society Proposed Treaty on Copyright Exceptions and Limitation for Educational and Research Activities (TERA).

Article 5—Cultural Heritage

Article 5 is the article probably of greatest interest to libraries and other cultural heritage institutions. Article 5(1) states that Member States must provide an exception or limitation from the reproduction right to allow cultural heritage institutions to make copies of works permanently in their collection for the purpose of preservation of such works.

Article 5(2) specifies exceptions that allow cultural heritage institutions to provide access to preserved works, including: on the institution’s premises; off premises for the purposes of private study, scholarship or research; and in the case of out-of-commerce works, off premises access to the general public.

Article 5(3) defines a cultural heritage institution as including a publicly accessible library or museum, an archive, or a film or audio heritage institution.

The explanatory notes to Article 5 indicate that it closely follows a Draft Preservation Treaty developed by IFLA, Electronic Information for Libraries, and the International Council on Archives; and the EU Directive on Copyright in the Digital Single Market.

Article 6—Persons with Disabilities

Article 6 obligates Member States to produce, distribute and make available accessible copies of works for the benefit of people with disabilities who require such formats to enjoy the work on an equitable basis with others. In effect, it broadens the Marrakesh Treaty to people with disabilities other than print disabilities, e.g., hearing disabilities.

Article 7—Cross-Border Uses

Article 7(1) provides that limitations adopted pursuant to this instrument shall permit cross-border uses. Article 7(2) further states that if a copy is lawfully made in one country under a limitation, that copy may be distributed in another country for the same purpose for which the copy was lawfully made. The explanatory notes states that this paragraph is based on the Marrakesh Treaty and a proposal made by Argentina.

Article 9—Protection from Contractual Interference

This article provides that contractual provisions that restrict the exercise of limitations provided by Member States consistent with this instrument shall be unenforceable. The explanatory note states that the protection of exceptions from derives from European Union regulations.

Article 10—Obligations Concerning Technological Protection Measures

Under this article, Member States shall ensure that legal remedies against the circumvention of technological measures do not prevent uses enabled by limitations provided by Member States consistent with this instrument. The Marrakesh Treaty contains a similar provision.

Article 11—Limitations on Liability

Article 11(1) protects the user of a work for a purpose promoted by the instrument from claims for damages and criminal liability when the user had a reasonable, good faith belief that the use was lawful. Article 11(2) provides that when a Member State provides for secondary liability regimes, educational, research and cultural heritage institutions shall be exempt from liability for the actions of their users.

Article 12—Interpretation of the Three Step Test

Article 12 provides that Member States may interpret “the three-step test in a manner that respects the legitimate interests, including of third parties, deriving from educational and research needs, and other human rights and fundamental freedoms; and other public interests, such as the need to achieve scientific progress and cultural, educational, social, or economic development, and the protection of competition and secondary markets.” The explanatory note states that this article is based on a proposal from Ecuador, Peru, and Uruguay.

We are looking forward to the discussion of this proposal at the next WIPO SCCR meeting in December.