Susan Isiko Štrba - The Nineteenth Session of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) opened with an information meeting on limitations and exceptions (L&Es) to copyright and related rights for educational activities. Four experts presented their studies on: a) L&Es for education in Latin America and the Caribbean (Juan Carlos Monroy),  b) L&Es for teaching in Africa (Joseph Fometeu),  c) L&Es for educational purposes in the Arab countries (Victor Nabhan), and d) L&Es for educational activities in North America, Europe, Caucasus, Central Asia and Israel (Raquel Xalabarder). The study on L&Es for educational activities for Asia and Australia was not presented.

As the title of the meeting suggests, this was supposed to be an information meeting, but no doubt some interesting issues or rather points of concern could be identified.  In this post I only highlight the responses of the experts to what seemed a recurrent question on whether or not there is need for an international instrument on L&Es for education.

All the four experts expressed the view, either during their presentation or during Q&A session, that there is  no need for an international treaty on L&Es for teaching or education. Various reasons were advanced, including that:

• International instruments provide sufficient L&Es, but deficiencies exist at national level.
• Since developed countries provide strong L&Es, developing countries should do the same in their countries.
• Much as the Berne Appendix is difficult to use, it can be used as a bargaining tool for better terms of access to educational material. Alternatively, it should be revised to render it usable (but there is no need for a completely different international instrument).

These reasons are however not sufficient to justify the conclusion that there is no need for an international instrument. Let me briefly comment on each of these arguments.

International instruments provide sufficient L&Es for education

International instruments allow use of very small amounts of protected works. Otherwise, the right holder has to be remunerated to avoid a conflict with the normal exploitation of his work. As several studies (such as the African Copyright &Access to Knowledge (ACA2K) Project, and the Copy/South Research Group),  have demonstrated, developing countries need bulk access to copyrighted works, in particular, printed works.  This type of use is not provided for in international instruments.

Developing countries should copy developed countries and provide strong L&Es

Two questions come to mind: a) Why are there strong L&Es in developed countries and not in developing, and b) whether copying L&Es of developed countries will solve all the problems of access in developing countries. Concerning the first question, developed countries, have strong civil societies lobbying for interests of consumers/users of copyrighted works. But among these consumer organizations are tax payers. So for developed country, governments providing L&Es is a question of developed balancing different interests in the country. On the other hand, one cannot over look the fact that developing countries are basically importers of copyrighted materials, at least those works for which there is need for L&Es. Providing L&Es is a question of balancing interests of foreign copyright owners and national copyright users. This is why it makes sense that while the USA law has a provision for government use of copyrighted works for educational purposes, a developing country like Pakistan was threatened with section 301 procedures when it amended its legislation to provide a similar provision.

As to the second question, copying the developed countries’ practice on L&Es will not solve all the problems. Exceptions like fair use or fair dealing do not allow for bulk access to copyrighted material. So while it would be plausible for developing countries to copy practices of developed countries, this should be just one of the possible solutions.  But it does not remove the necessity for an international solution.

The Berne Appendix can be used as a bargaining tool for better access terms

This argument suffers from several shortcomings. I will give only three. First, the expert drew his conclusions from only one example of a situation where the threat of compulsory licensing has led to better licensing terms between editors and users. This isolated case cannot be used to make general conclusions. Second, the argument overlooks the weak bargaining position of many developing country users of copyrighted material vis-à-vis owners. Once in a weak bargaining position, it is unthinkable that the licensing system can be used to achieve better access terms. Third and most important, the copyright holders know that the stringent procedural requirements for the use of the Appendix render its use impossible. So they have no reason to feel threatened by possibility of such licences. The fact that most developing countries have not used the Appendix is further assurance to the copyright holders. (for further reasons as to why the Berne Appendix has not been used or cannot be a bargaining tool for access to educational material, see Isiko Štrba, Susan, International Copyright Regulation and Access to Education in Developing Countries, The Graduate Institute, Geneva, 2009, (forthcoming)).