The 40th meeting of the Standing Committee on Copyright and Related Rights was far from what was expected when IFLA and others last left Geneva in October 2019, at the end of the 39th meeting.
The dates had changed (the meeting had been planned for July), the WIPO Director General had changed (Daren Tang took over on 1 October), and of course the format had changed, with all but a handful of those involved doing so via an online platform.
Despite all that was different, the meeting nonetheless brought clarity around the long-standing challenges that the SCCR will need to overcome if it is to prove its relevance as a forum for delivering on fundamental rights and the Sustainable Development Goals.
With a new Director General and Chair in place – as well as the shock that COVID-19 has certainly brought – there is a great opportunity to act.
Challenge 1: tackling confusion as to the goals of the committee
With progress almost inevitably being slow in any such intergovernmental negotiation, it is perhaps normal that we all need to be reminded, from time to time, of why we are there.
In the case of the exceptions and limitations agenda, it is because WIPO’s General Assembly agreed, in 2012, to work towards a legal instrument, in whatever form, on provisions allowing for libraries, archives, education and research institutions, and subsequently museums, to carry out their core missions.
Crucially, this is not a discussion about the foundations of copyright, or of the business models that have grown up around the commercial uses of copyrighted works. No-one is suggesting that libraries or any other institution should be able to do more online than they can already do in person. The future of the copyright industry is not at stake, just one part of the structure.
In taking its discussion forwards, it will therefore be important for SCCR to set aside the dramatic rhetoric, dismiss suggestions that the future of the creative industries depends on limiting the ability of libraries to fulfil their missions, and focus on this one area where it can make a difference.
Challenge 2: reducing, not increasing, complexity
A further risk is that the Committee dilutes its focus by adding to its agenda in an unplanned, unsystematic fashion. This brings risks both for libraries, and to the credibility of SCCR’s overall work.
Crucially, it is not sure that creating new rights (and so licensing opportunities) will do much good. This is because, especially in current circumstances, even freezing the budgets that libraries have available for acquisitions and rights clearance is likely to be optimistic. Similarly, with governments looking for opportunities to make cuts, overall cultural budgets are likely to struggle to maintain themselves at current levels.
In this situation, adding new rights – for broadcasters, or public lending rights – will effectively mean that libraries (or their funders) will need to divert resources away from acquisitions towards rights clearance. Rather than this money going directly to creators, it will pass through a middleman, and only get to the original publishers or authors once overheads and other management costs have been subtracted.
Before embarking on any focused work on new rights, WIPO therefore should complete its exploration of what is really going on in markets and consider carefully where non-rights-based solutions could prove more effective as means of supporting authors.
Challenge 3: rejecting a ‘can’t do’ attitude
Finally, there is a broader question of how ready the Committee is to realise its own potential. It is important to remember that only 7 years have passed since the same Committee’s work led to the Treaty of Marrakesh.
The scope for action today, too, is clear, with serious challenges encountered by libraries, archives, museums, educators and researchers in going about their work (legally) with the doors of institutions closed. While some countries have laws which have allowed a relatively seamless passage to online provision, this has not been the case everywhere, and none provide certainty for cross-border uses.
The SCCR does have the potential to show leadership by preparing a declaration or other instrument which makes clear the flexibilities available to governments under international law to allow for education, research and cultural participation during COVID-19.
Similarly, looking ahead to COP26, it has it in its power to drive progress towards meaningful preservation provisions in copyright laws worldwide, including certainty for libraries and others looking to work across borders to safeguard heritage.
All the Committee needs to do is accept that, just as has been the case with Marrakesh, opposition to change from governments and stakeholders will likely be replaced with celebration as action has been taken.
Read IFLA’s news story about the meeting.