Decisions, Decisions: The Options Ahead at the Next WIPO SCCR

Next week, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet, virtually, for the first time in over a year.

This is an opportunity not only to take stock of work to date on the exceptions and limitations agenda, but also to consider the implications of the COVID-19 on the issues under discussion.

It is also a time of renewal, with a new Director General, and chair of the Committee, creating possibilities to think again about the role that the Committee can play.

The below sets out six roles that the Committee could take on. The choice of which – if any – will be down to Member States.

For further background about the work of SCCR, please see the pages on the IFLA website.

 

The First Responder: it is clearly arguably a little late to be talking about a first response to the pandemic, but it seems likely that the virus – and so measures to stop or slow its spread – will be with us for some time. With it comes the potential for SCCR to make clear that extraordinary times may require extraordinary measures, or at least that it is legitimate to interpret existing rules in a way that allows for education, research and access to culture continue at difficult times.

 

The Guiding Light: a permanent problem in the current copyright system is that under international law, exceptions and limitations other than a couple of very specific examples are optional. As such, governments  can face uncertainty when passing laws in order to support education, research and access to culture. WIPO can play a valuable role here by making clear what is allowed, and so excluding the risk of challenge by different actors. For example, model provisions on key issues can offer helpful guidance.

 

The Teacher: WIPO clearly also has an important role in supporting reflection about copyright and its interrelation with other policy areas around the world. While there are certainly a lot of strong opinions around copyright, we can gain a lot from looking past the hyperbole, and building up a stronger idea of the evidence on the ground. The evidence around COVID-19 is of course still coming in, but one way in which WIPO could provide a helpful service is by developing a clearer picture of how copyright frameworks – changed or unchanged – have fared during the pandemic.

 

The Leader: SCCR also has a unique position as a global forum for tackling questions around copyright. Through the Marrakesh Treaty, it has shown its potential to take concrete action at the global level, enabling cooperation across borders, and promoting national reforms in an area of clear public interest. Arguably, while SCCR can just be a discussion space, its potential to lead in changing laws in areas of market failure cannot now be denied. Recent work has underlined consensus around issues such as preservation, digital readiness, and work across borders. In particular with COP26 next year, work on preservation could make an important contribution to efforts to safeguard heritage threatened by extreme weather.

 

The Hedgehog: there are, however, also less positive paths that SCCR could choose to take. The first of these is to roll up, or even to hibernate, until the COVID-19 pandemic is over. While hibernation can be a safe way of passing a winter, it also risks meaning that the Committee is seen as missing in action at a time when there are calls to do something, or being seen as less relevant. While it is true that there is little point in taking action for the sake of taking action, there is sufficient evidence of challenges around copyright during the pandemic to mean that claiming that there is no need to do anything risks looking like denialism.

 

The Dodgy Car Salesman: worse, arguably, than doing nothing would be to move things backwards by trying to make activities of libraries which have previously taken place without barriers subject to new restrictions. Discussions about exceptions and limitations have, unfortunately, often seen efforts to present licensing as the solution, despite this having long been rejected for uses in the physical world. In effect, like the stereotypical dubious car salesman, there is a risk that the customer ends up with a product that they neither want nor need.

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