Tag Archives: copyright exceptions and limitations

Copyright and Sustainable Development – Part 2: Applying the logic of sustainability to copyright

As highlighted in the first part of this blog, the United Nations 2030 Agenda represents a new approach to overall development policy.

That set out how the Agenda focuses on the full range of policy areas and countries (rather than a subset of each), and the interconnections between them. This stands in contrast to the Millennium Development Goals that ran from 2000 to 2015, underlining how every part of government, in every part of the world, has a responsibility to act. This of course includes copyright policy-makers.

In addition to this broader policy and geographical focus, the 2030 Agenda also emphasises the importance of cross-cutting principles in policy-making. Two examples of these are the importance of sustainability itself, and on the right of everyone to be able to fulfil their potential.

This second part therefore focuses on how these principles can apply in the making of copyright policy.

Sustainability: acting now, without prejudicing the future

At the heart of the idea of sustainability is the notion that the way we live today should not compromise the way we live tomorrow. It is most readily applied to the environmental field, where excessive use of resources now risks meaning that future generations live in a poorer, more polluted world.

Similar ideas apply in the economic and social fields. Economic expansion can be unsustainable, while allowing inequalities to deepen causes rifts which threaten social cohesion, as well as being associated with lost capacity to produce overall.

How does this apply to copyright? One side of the argument is that it is the protection that copyright provides that enables future creativity to take place. Without it, investments cannot be recouped, and new projects cannot be launched. When a company produces (publishes) a wider range of materials, the greater success of one (a bestseller) may help compensate for the fact that others will do less well.

At the same time, there is also the fact that the future health of the creative industries depends on there being a literate population, interested and engaged in buying what they have to offer. This, comes from having a strong education system with teachers well placed to develop skills among students, as well as institutions such as libraries which can instil a love of books and reading.

Similarly, the possibility to produce innovation tomorrow depends on students and researchers being able to access knowledge and work together today. This is particularly the case in countries currently experiencing lower levels of development, often accompanied by low literacy and innovation outputs.

Copyright reforms can support this all, freeing up teachers to use materials more freely, and enabling libraries to support them, as well as researchers, effectively.

As such, it is important, when developing copyright policies – including at WIPO – to ensure that the generation of additional revenues in order to recoup financial investments in creative content does not reduce the investment in the future represented by education and research.

The capabilities approach: delivering on the right to access information

Another concept close to the heart of the 2030 Agenda is that of the right of every individual to the capabilities necessary for development. Based on the thinking of Amartya Sen and Martha Nussbaum, this looks at whether people have the means to realise their own well-being, rather than simply having rights but no means of acting on them.

Arguably, part of this is the possibility for everyone to access the information that they need to improve their own situation, be it to gain new knowledge or skills, for health, or in order to innovate.

Schools, research institutions, libraries, archives, and museums have a key role here, turning the broad right of access to information into something actionable. Libraries indeed often have a mandate to serve everyone, providing possibilities for all, regardless of wealth, social status or other characteristics.

For example, libraries and schools which are enabled under copyright to carry out their work will be better able to serve their communities, including at distance. In turn, members of communities are better placed to take decisions, on their own behalf and on behalf of those around them.

While this access may not always be as simple as making a direct purchase of a book or other resource, it does help to ensure that no-one need be excluded from learning or research for want of money.

Crucially, for policy-makers, the challenge is to ensure that decisions taken around copyright law do not lead to doors being closed for individuals to access the information that can help them achieve their own well-being.


These two blogs have looked, from two different angles, at how the UN 2030 Agenda can feed into the way discussions about copyright, and in particular exceptions and limitations, are approached at WIPO.

As the first underlined, the breadth of the Sustainable Development Goals, and the interconnections between them, mean that not only do copyright policy-makers have a duty to act, but in doing so, they need to consider consequences on progress across the Agenda.

The second explored how cross-cutting ideas behind the Goals – in particular of sustainability itself, and the capabilities approach – are also relevant to the way we design copyright policies.

Both, hopefully, offer a fresh perspective on why balance matters in copyright, and what we need to bear in mind when working out what this looks like.

Copyright and Sustainable Development – Part 1: How a balanced copyright framework supports delivery of the 2030 Agenda

The United Nations 2030 Agenda and its 17 the Sustainable Development Goals set out a comprehensive policy roadmap towards a new, more sustainable model of development. It is designed to steer not only the work of the United Nations and its agencies, but also those of governments, and of all other stakeholders.

In contrast to the Millennium Development Goals that preceded it, the 2030 Agenda does not just focus on a sub-set of policy areas – the tasks of any one single ministry or agency – but on all of them.

Moreover, it highlights how essential it is to consider interlinkages – how actions taken in any one area may affect the achievement of policy goals elsewhere, for better or for worse.

This implies a responsibility. When taking decisions, broader consequences need to be taken into account.

The Agenda is also global, rather than concentrated only on the developing world, recognising the fact that the fates of countries are just as interlinked as different policy areas. This is not only clear in areas such as climate change or pandemic health, but also in wider questions of trade or tax policies.

As such, decisions about copyright, such as those discussed at the World Intellectual Property Organisation, should be based on consideration of the potential impacts on policy outcomes across the board, not just in any one single area.

Moreover, they should also reflect the interconnected nature of the world, avoiding the costs of misalignment and realising the potential of stronger coordination.

This blog – the first part of two – therefore looks at the different goals on which copyright policy decisions may have an impact, and in particular where balance between rights and exceptions (or even setting elements of copyright aside through open licensing) is important. The second part then considers how some of the cross-cutting themes present in the 2030 Agenda as a whole could apply in the way that we think about copyright in general.

Innovation (SDG9): perhaps the most obvious area where copyright – and intellectual property – is seen as having an effect is around the promotion of innovation. Clearly, innovation has a vital role. At its best, it offers new ways of doing things, requiring fewer resources. It is also essential to come up with solutions to new challenges (not least COVID).

The argument for intellectual property rights is that they enable investment in innovation by creating a means of ensuring a return. In other words, if someone cannot make money from inventing or creating things, they may not be able to do it in the first place.

However, as the global shift towards open science underlines, downstream innovation – in terms of new products or ways of doing things – can in fact benefit from greater openness upstream. When the sharing of research findings and data is restricted or slowed, so too is the pace of new discovery, be it for products, or for responding to grand challenges such as climate change or pandemics.

Education and Skills (SDG4, 8): another area where there is already focus on the role of copyright is in access to education. There are strong efforts to argue that easier possibilities to licence content, as well as the development of local copyright industries, will overcome inequities faced.

At the same time, teachers, both in the formal and informal/non-formal education systems often rely not on specifically created educational outputs, but rather materials from everyday life that are freely available online in order to help students learn. The rise of the open educational resources movement is creating new possibilities for teachers themselves to create and share tools among peers.

Such uses do not imply any loss of sales, while educators are better able to focus on instruction when they benefit from rules that do not add complexity or cost. Crucially, they do contribute to improved educational outcomes, in turn supporting wider economic development and so the market for copyrighted products.

Sustainable Consumption (SDG12): an area less frequently talked about, but where copyright law could contribute, is around reducing waste. In particular, there has been the  rise of calls for a ‘right to repair’, focussing on the value of making it easier to fix products, without needing to risk infringing copyright, for example through correcting software, or even accessing repair manuals. In short, making it easier to repair goods is likely to give them a longer life, reducing the demand for new production.

Open Government (SDG16): the SDGs emphasise the importance of openness and transparency in government as a means of enabling citizen participation and improving outcomes. A central pillar of this is the open publishing of public sector information, from legal texts to budgets and beyond.

This is also an area for copyright, given that unless exempted, government texts too are covered. When such texts or databases are be kept behind paywalls, citizens face barriers – insurmountable for some – to exercise their right to democratic participation.

Research Cooperation (SDG17): in addition to the emphasis on innovation in SDG9, SDG17 focuses on partnerships for the goals, and in particular the possibility for research and knowledge cooperation across borders.

While specific agreements to transfer IP, or to give access to copyrighted materials to institutions in developing countries may help, they are necessarily narrow, and risk leaving many left out, also then limiting scope for cooperation. Broader possibilities to share materials in the context of cross-border research, without the uncertainty that unaligned copyright laws create, would expand the scope for new collaborations.

Digital Inclusion (SDG5, 9, 17): the 2030 Agenda recognises the importance of technology as an enabler of development, not just in dedicated targets concerning connectivity, but also when looking at data around usage. Clearly, an important determinant of how useful being online is to someone is whether they are able to access digital content and services.

Among the varieties of content available, online learning is a clear example, as is the possibility to access the collections of libraries and museums. During the pandemic, indeed, digital access has been the only means of doing this for many who cannot afford to buy content directly. Copyright laws can have a determining impact on the possibilities that providers and users have to benefit from these possibilities.

Safeguarding Cultural Heritage (SDG11): finally, the SDGs highlight the importance of safeguarding cultural heritage. This is of course a core function of libraries, archives and museums, which increasingly use digital technologies in order to preserve materials for the future.

However, digital preservation involves copying, and so copyright itself. Unless there are possibilities in law to make copies, the preservation decisions of these institutions are likely to be guided more by what implies least risk or least cost, rather than what is most important.


These represent just some areas where the way in which governments strike a balance in copyright, at the national and international levels, can make a difference to development outcomes. Indeed, the SDGs arguably provide a structure, a checklist even, for thinking through the merits of the decisions that are taken.

In part 2, we turn away from individual SDGs, and to a couple of the principles that underpin the entire 2030 Agenda, notably sustainability and the right to development.

The costs of non-access (part 2): why it matters when uses of works are prevented or complicated

In a post last week, we looked at the importance of being able to explain why non-investment in libraries matters.

As highlighted, in difficult budgetary times, governments are faced with the challenge of how to make cuts while causing least pain.

Being able to explain the harm that reducing or freezing library spending can create is therefore an important part of advocacy.

But as set out in another blog, decisions about funding are often just one side of the same coin as decisions about what libraries can do with their funding, notably as regards copyright.

A generous budget with highly restrictive rules on how resources are used can lead to a library having the same impact as one with a much smaller budget, but one where there are much broader possibilities to use works.

So just as we need to be able to talk about the cost of not investing financially in libraries, we should also learn to set out the harm done when library users are not able to use works.

There is a particular need for such arguments when it comes to copyright, given that the argument will often be made that the sorts of exceptions and limitations that allow library users and libraries to carry out such activities come at the cost of sales, or at least licensing revenues.

Such arguments are even used in the case of books that are no longer on sale at all, on the premiss that they may at some time in the future come back into commerce.

Of course, the evidence of such library activities actually causing harm is limited. The European Commission’s impact assessment on the draft Directive on Copyright in the Digital Single Market made clear that allowing libraries to preserve works, or library users to carry out text and data mining would not cause any significant damage.

This does not mean that there is no cost to rightholders from such acts. It isn’t possible to prevent a reader from borrowing a book or copying a couple of pages just because she or he could also buy it – this would be to turn against the universalist mission of libraries.

Similarly, there will often be a collective management organisation ready to invent a licensing offer for a new type of use, and so claim that copyright exceptions cost revenue.

To convince decision-makers to legislate in favour of copyright exceptions and limitations, we therefore need to be show that the cost of denying or complicating access is higher. So what arguments can be used?

Lending: when libraries are not able to lend books, this effectively condemns those who are not able to buy them to exclusion from access to culture. It can also choke off a means for new authors to be discovered by readers. Preventing digital lending will tend to exclude readers who are not able to get to a library, for reasons of disability, health, distance, or – obviously enough – COVID-19 restrictions.

Research (TDM): allowing uses of works for text and data mining improves the quality of the results of mining activities, thereby advancing science. Preventing such uses will have the inverse effect. In particular in the case of machine learning, there is growing awareness that limiting the range of works that can be used for learning can lead to biases and problems.

Education: teachers and learners benefit from being able to use the best suited materials for the context and situation, in order to achieve the best results. When teachers are obliged to take time to find works they can use – or rely on a limited offer – then they are less able to do their jobs. Similarly, a lack of adequate exceptions can restrict the production of open educational resources.

Preservation: this is a core function of libraries, ensuring that the works of yesterday and today are available into the future, recognised in international law. Where it is made more difficult, fewer works can be preserved. Ironically, the imposition of restrictions on preservation copying, motivated by a desire to sustain revenues, can risk reducing the chances of the work itself surviving into the future.

Document Supply: while a traditional activity of libraries using physical works, not all copyright laws allow for digital document supply. This has an obvious impact on those whose research is facilitated by being able to access often unique books held far away. Without this, the scope of research is unnecessarily limited to the works that are available on site, defeating the object of research in the first place.

Access for People with Print Disabilities: the challenge tackled by the Marrakesh Treaty was the book famine – the tiny share of books worldwide which are available in accessible formats. A failure to allow exceptions left the choice (and responsibility) for making such copies available in the hands of rightholders, often themselves unable to make the switch. The failures caused by a lack of reform led to violation of the right of people with print disabilities to education, and to participation in scientific and cultural life.


As in our first blog on the costs of non-access, such arguments should be used relatively sparingly. It is important to be positive as well, focusing on how reforms could lead to better services to – and support for – communities. Yet being able to underline costs can be helpful in making it clear that there is a problem that needs to be addressed.

As part of your advocacy, you are therefore encouraged to gather stories of problems – of the costs of non-access.

Celebrating flexibilities provided by fair-use and fair-dealing

This week is Fair use and Fair dealing week, organised by the Association of Research Libraries! It is a week to celebrate these doctrines implemented in many countries all around the world and the copyright provisions that allow libraries to benefit from flexibility to continue their missions.

Although libraries have similar missions around the world, trying to serve the best interests of users, they operate under very different laws.

As libraries have seen their doors closed and physical services interrupted or adapted due to the COVID-19 pandemic, the qualities and flaws of the varying legal provisions of each country concerning access to and use of content have been thrown into relief. The results are concrete: disparities result in significant divisions between the capacities of access to library resources by citizens around the world.

These varied laws reveal areas for improvement which in the midst of a global pandemic are only becoming more glaring.

Why and how have fair-use and fair-dealing been able and continue to support the needs of libraries during the pandemic? 

While many countries are subject to very detailed, prescriptive rules, tied to specific interpretations and technological supports, and even sometimes forgetting the spirit of the initial law, fair use and fair dealing have undoubtedly enabled libraries to obtain greater flexibility, thereby supporting the delivery of their missions.

To determine what is fair use, there are typically several criteria which are explored. These include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. These criteria are applied with reference to the objectives of the uses and not by the materiality of the medium on which the contents will be delivered, avoiding limiting library uses to specific formats of works.

Libraries that operate in countries with fair use and fair dealing benefit from an important advantage – the ability to continue their missions online to a greater extent, in order to meet the needs and expectations of users.

This is because fair use and fair dealing offer a more flexible framework, allowing for the taking into account of societal technological evolutions and therefore, consequently, the evolution of library practices. When a copyright law uses the term “analogous” in its legal vocabulary, this provision will, if not already, become obsolete as we move to other forms of media.

Fair use and fair dealing, an international doctrine

When we talk about fair use and fair dealing, it can seem that this is a doctrine whose scope is only applicable to North America. Certainly, opponents of more flexible laws try to claim that they can’t work elsewhere.

However, the reality of copyright implementations is much more complex than this, demonstrating the possibilities and compatibilities of fair use and fair dealing under current global regulations.

For example, other countries such as Israel, Malaysia, Singapore and South Korea have fair use provisions.

In 2007, the Israeli government updated its copyright regulations to include a fair use exception. It did this by creating an open-ended list of permitted purposes of use, with fairness being determined using a set of four factors similar to the US criteria for determining whether the use is fair.

In 2012, South Korea decided to add a fair use exception to its copyright regulations. Once again, the four determining factors are included as in the US. The same applies to Malaysia (2012) and Singapore (2004).

As far as fair dealing is concerned, in addition to the countries traditionally identified as fair dealing countries such as Canada, Australia and the United Kingdom, there are many other countries that still use these principles today. A list of 40 countries using fair dealing provisions has been compiled, including India, Antigua and Barbuda, Bangladesh, Barbados, Canada, Cyprus, Gambia, Namibia, Nigeria, Saint Lucia, Guyana, Jamaica, Vanuatu, Sierra Leone and Zimbabwe.

The fact that legal provisions on fair-dealing are implemented on all continents, in industrialized countries and countries in transition, is of considerable importance in demonstrating that there is no reason to limit these doctrines geographically. Moreover, given how long-established they are, without challenge, they are arguably also compatible with trade agreements and international copyright law.

We look forward to sharing further posts this week both about the benefits of fair use and fair dealing, and the practical implications for libraries.


Libraries as Consumers: Potential for Protection?

Earlier this year, we published a blog looking at the degree to which competition law and policy could provide a useful lens for analysing the current state of markets for electronic content for libraries.

As highlighted in the blog, the prices and terms that libraries face for electronic content raise serious concerns about the sustainability of current levels of service to library users.

The blog suggested that further analysis from a competition perspective could be helpful, not so much at the level of individual companies, but rather to address wider practices that can see libraries limited in their ability to provide services.

This is the task of broader market investigations or studies, such as those carried out by the UK’s Competition and Markets Authority. Indeed, the American Library Association has made a submission to an ongoing review on digital content markets, highlighting concerns about the behaviour of platforms and publishers alike

A parallel approach can be to look at libraries as consumers, and what consumer law can offer us in terms of arguments or angles to explore.


Normally, we think about consumer law as referring to the protections in place to ensure that individuals are not mistreated by companies that sell products or services to them, benefitting from a situation of grater market power or information.

It covers issues such as rights when such products are defective, or when a consumer has been misled about what they are buying. We benefit from consumer law when we have the possibility to change our minds, or when we receive compensation when something goes wrong. This is particularly powerful when contacts for services are effectively non-negotiable.

Yet, to the extent that consumer law tries to respond to situations where the seller has the upper hand in terms of information or power, there are ideas in consumer law which can certainly seem applicable to the situation of libraries.

This imbalance, combined with the extensive copyright protections offered to rightholders, mean that libraries often face a hard choice between unfavourable terms and no access at all.

For example, a number of common law countries introduce the concept of ‘unconscionable’ contract terms (for example, Australia), referring to provisions which are not just unfair, but against the norms of society.

It could be argued, here, that if norms of society are set out in limitations and exceptions to copyright (for example, the importance of educational uses, of preservation and of criticism or quotation), then contract terms that override these, building on an imbalance in negotiating power between rightholders and consumers, are indeed questionable.

Outside of the common law world, in the European Union, there have also been efforts to address the question of unfair terms, with a 1993 Directive already setting out that a contract cannot be considered fair when the supplier is allowed unilaterally to change the content of the product or service offered.

In this case, we can perhaps point to the evidence of eBooks and other materials disappearing from bundles to which libraries subscribe. This was studied in depth in 2015, but stories continue to circulate underlining that it may continue to be a problem.


Clearly, as mentioned above, consumer law is primarily focused on individuals. As such, it can appear to be a bit of a jump to consider a library – as an institution – as a consumer.

Libraries themselves are in an odd position – they are not reselling anything, although clearly are giving users access, placing them somewhere between the situation of a business and that of an individual consumer.

The law in some countries does make clear that only individual people can count as consumers, given that anyone operating in a professional capacity can be seen as better able to defend their rights.

However, not all countries operate such an approach, with some extending consumer protections to cover small businesses, for example the Netherlands and Belgium. The same has also happened in Australia and New Zealand (for businesses with a turnover of up to $250 000).

These countries have recognised that an imbalance in negotiating power or information can affect an organisation just as much as individuals. The specific nature of libraries as neither businesses nor individuals makes this approach particularly interesting.

For example, the Belgian law makes it clear that small businesses can also raise doubts about contracts which allow sellers to change the characteristics of what they are selling unilaterally (recalling the situation of missing eBooks and journals).

The Australian law, also, allows for such unilateral changes to be counted as unfair, at least when the buyer is locked into the contract (a situation which may, de facto, be the case for a library acquiring content in order to serve students and faculty).


This blog, in looking at themes that emerge in consumer law, complements previous posts exploring the insights that competition law offers into the way markets for libraires do – or do not – function.

The previous post highlighted the issue that refusals to sell or licence (in particular where these seem designed to encourage the buying of big deal packages) create. It also noted concerns that libraries’ limited margin for manoeuvre faced with expectations from users and faculty put them in a weaker position, and left them susceptible to needing to pay more.

This post adds to this the risks around contract terms which prevent the fulfilment of recognised public interest goals (especially in the case of non-negotiable contracts), and around unilateral changes in packages offered.

There is certainly scope for looking further, from both the competition and consumer policy angles, in order to understand better the challenge facing libraries in a digital marketplace. Comments and links to further materials on the subject are welcome in the comments box below.

A Path to Progress at WIPO: Tackling Confusion, Complexity, and a Can’t-Do Attitude

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.

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.