Professor Flynn’s presentation to WIPO Standing Committee on Copyright and Related Rights on Limitations and Exceptions Agenda Item
Sean Flynn, Director of American University’s Program on Information Justice and Intellectual Property and Chair of the Global Expert Network on Copyright User Rights, gave his analysis of the limitations and exceptions agenda item of the WIPO SCCR 41 Agenda to the WIPO Standing Committee on Copyright and Related Rights (SCCR).
Professor Flynn argued that the next steps identified in the Secretariat’s Report on the Regional Seminars and International Conference “do not record all the ideas for next steps identified by Member States, experts, and beneficiaries.” More specifically, the report “does not reflect the support for work international instruments on topics such as preservation, online and cross border uses to serve important purposes such as education and research.”
Professor Flynn argued that the next steps proposed by the Secretariat in the last SCCR report that summarized the year of work on the Action Plans on Limitations and Exceptions are “minimalist” and that there are just two proposals for action by WIPO.
He argued that pages 72-73 (Paras 390-400), described as “next steps identified by the WIPO Secretariat,” in the Secretariat’s report from the last SCCR, are unclear. He argued that if the purpose of the section is to summarize the next steps “proposed by Member States, experts and stakeholders during the Action Plans,” then the section should be amended to “reflect the full range of those suggestions.”
He said that the Secretariat’s suggestions for WIPO only mention “the production of non-binding and purely informative “tools” and “models.” He then argued that “while these efforts were indeed called for during the action Plans and could be useful,” they don’t “exhaust the range of actions that the Action Plans suggested that the Committee could usefully pursue.”
He then moved on to his second point, arguing that “regional consultations in light of the impact of the Covid-19 pandemic should be designed to inform a possible Joint Recommendation on Emergency Uses of Copyrighted Works.”
Professor Flynn argued that the second part of the agenda on limitations and exceptions is the only place in the Agenda where the ongoing COVID-19 pandemic is mentioned.
“Access to copyright is needed to join critical research and development activities from tracking the virus to finding its cure. Copyrighted software is embedded in ventilators, testing equipment, and many other treatment devices – potentially blocking their repair. To make mRNA vaccines, one needs access to potentially copyrighted algorithms and other tools that identify vaccine targets. Permission to communicate copyrighted works is needed to promote distance education and access to libraries and other institutions of cultural heritage,” said Flynn.
He mentioned how civil society groups have been calling on WIPO to focus its work on addressing IP barriers to responding to the pandemic, including copyright issues. He added that in statements at SCCR 40 and in a recent public declaration, “these communities called for a joint recommendation or other document that would interpret and explain existing flexibilities that can and should be used by member states to respond to COVID.”
He mentioned how any regional meeting “could be designed to further these discussions” and that they could “follow the example of the Marrakesh Treaty preparation and explicitly invite reflections from beneficiaries on the potential need for and utility of international instruments (including non-binding instruments) that the SCCR could work on.” He mentioned the first among them is a Joint Recommendation on Emergency Uses of Copyrighted Works.
Professor Flynn them moved on to his final point, arguing for a work program for SCCR.
He mentioned that the “last in-person SCCR was deliberating on a work program on the limitations and exceptions agenda.” He then mentioned useful elements could include “prioritization of a process to produce a joint recommendation or other instrument clarifying and promoting use of flexibilities needed to respond to emergencies,” “creation of a process, such as through working groups of experts, to develop model provisions for instruments in whatever form around digital uses for education and research, for preservation and access to preserved content, and to cross border uses of works,” “the development of tool kits, model legal provisions, or other forms of guidance, in particular for issues such as technological protection measures, protection of exceptions from contract override, and safe harbour protections for libraries, archives, museums, and educational and research institutions (and their agents),” and “commissioning a study on research exceptions parallel to the other studies commissioned by the Secretariat.”
Click here for the full analysis by Prof. Sean Flynn.