[Guest Post] WIPO’s African Group hits the ground running with a Work Program on Copyright Limitations and Exceptions

WIPO is gearing up for the 42nd session of its Standing Committee on Copyright and Related Rights and the Africa Group at WIPO has submitted a proposal for a Work Program on Limitations and Exceptions (L&Es). Katfriends Desmond Oriakhogba and Dick Kawooya have provided a highlight of the key portions of the Work Program proposed by the Africa Group. Here’s what they say:

WIPO’s African Group hits the ground running with a Work Program on Copyright Limitations and Exceptions

by

Desmond Oriakhogba and Dick Kawooya

Background

The COVID-19 greatly impacted the workings and operations of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), and other organs of WIPO. At the wake of the pandemic, the mode of conducting the SCCR’s sessions changed drastically. The SCCR held its sessions in hybrid mode in 2020 and 2021 when only Geneva-based delegates could attend in person Major projects of the SCCR, especially its work on copyright exceptions and limitations (L&Es), was effectively halted as member states could not engage in negotiations and decision-making in 2020 and 2021 when the Covid-19 pandemic raged and international travel was limited. With travel restrictions now substantially eased, the 42nd session which is scheduled to take place on 9-13 May 2022, will be the first full meeting of the SCCR since the pandemic broke. Negotiations and decision-making on pending works of the SCCR, including on L&Es, will now commence as per the agenda. 

The COVID-19 pandemic reinforced the need for an equitably balanced copyright regime, especially from the Global South perspective. For instance, as teaching, learning and research are inevitably being conducted through the use of information communication technology (ICT) tools, including virtual learning platforms, teachers, learners, researchers, and libraries in Africa continue to grapple with the challenges of accessing materials owing largely to the protection of these resources under copyright law. Also, libraries and archives, whose mission is to facilitate access to these materials, can be constrained by the fact that the services they offer are often primarily physical and they may not be equipped to render digital services, as required by the reality thrown up by the pandemic. This is made worse by the difficulty in accessing funds to purchase licenses for online resources from publishers. This is further exacerbated by the absence of clearly defined legal rights for libraries and archives in many countries in Africa, especially in relation to digitization and making digital copies available to teachers and students. (see here). 

In the light of the foregoing, WIPO’s work on L&Es has gained a new significance as issues of access to physical and digital resources and services in libraries during lockdowns, and access to content for online education came to the fore. Indeed, WIPO is convening an information session on the impact of the pandemic on the copyright sector, including on educational, research and cultural heritage institutions and the people they serve. Thankfully, the African Group at WIPO has hit the ground running by submitting a proposal for a Work Program on L&Es that picks up on where the committee left off in 2019, and gives a focus to its future work on important issues of access to copyrighted works for education, research and other public interest purposes. As shown in the next part below, the proposed Work Program, if adopted, will set WIPO on the path of formulating norms that will position the global copyright system to withstand future pandemics.

Proposed Work Program of the WIPO African Group

The WIPO Regional Seminar on L&Es in Nairobi in 2019 concluded that there was a dire need for reform of the copyright system to bring about a balanced regime. This was based on the finding, at the Seminar, that existing L&Es in African copyright legal frameworks are substantially inadequate to support the research, education and the work of libraries and archives, especially in this digital era. Indeed, an authoritative study presented at the Seminar showed that out of "53 African countries surveyed, 13 have no exception for libraries, while libraries in 10 countries have to make do with a general exception, that is an exception that does not specifically set out specialized library activities. The most common specialized exceptions are for preservation (26 countries) and research and study (25 countries). Numbers of countries that have exceptions for other types of uses drop off dramatically – for example, inter-library loan (one country) and document delivery (one country). No countries permit cross-border exchange.” (EIFL, 2019).

The African Group's proposal for a Work Program on L&Es for consideration in the forthcoming meeting of the SCCR is important to help bring out the needed reform canvassed at the 2019 WIPO Seminar. The proposed Work Program outlines "concrete and practical steps'' which the SCCR can implement "to provide guidance and support to Member States in the short term", while working in line with the mandate of the committee "towards the adoption of an appropriate international legal" instrument(s) on L&Es. 

The proposed Work Program, which is linked to items 1, 7, 9, 14, 32, and 40 of the WIPO Development Agenda (DA) and the UN Sustainable Development Goals (SDGs) 1, 4, 5, 9, 10, 11, 16, and 17, urges the SCCR to, among other things – 

1) continue to work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms) on limitations and exceptions for libraries, archives, museums, education, research, and uses for persons with other disabilities. 

2) Work under point 1 should begin with the discussion of proposed provisions by Member States, including those considered in previous Sessions and in Chair’s Charts, on the priority issues identified in the Report on Regional Seminars and International Conference on Limitations and Exceptions (SCCR/40/2), including: 

a) to ensure that all laws enable the preservation activities of libraries, archives, and museums, including the use of preserved materials across borders; and

b) to promote the adaptation of exceptions to the online and cross border environment, such as by permitting teaching, learning and research through digital and online tools.

It also suggests the convening of information sessions and studies on new and emerging issues e.g. text and data mining, UNESCO Recommendation on Open Science (2021), and the development of toolkits to help craft laws and policies that support education, research and cultural participation.

Conclusion

As the SCCR sets to re-start its work, the African Group’s proposed Work Program is an exciting document that provides a strong foundation, clear pathway, and important actions for the SCCR to conclude its work on L&Es. If adopted, it will guide the SCCR through its activities on L&Es to help balance the global copyright regime, which will aid African, and other Global South, countries to face the challenges posed by the current COVID-19 and future pandemics. The African Group is to be commended for its leadership in championing the public interest in copyright at WIPO. We, therefore, strongly encourage African countries and others from the Global South to support the proposal for a Work Program on L&Es at SCCR/42.