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By André Myburgh*. Ostensible reassurances about the benefits of the introduction of ‘fair use’ in South African copyright law (Why fears about ‘fair use’ copyright law are unfoundedneed deeper scrutiny.

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This week I was in San José, Costa Rica, for a WIPO workshop on the Marrakesh Treaty (…to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities), and the Accessible Books Consortium (ABC), on 13-15 June. 

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Delegates at the World Intellectual Property Organization (WIPO) in Geneva spent this week discussing (for the 34th time) how to provide adequate intellectual property protection for the ‘traditional knowledge’ that is typically part of the cultural heritage of indigenous peoples.

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Fridays at the SCCR are always unpredictable, and Friday 5 May was no exception. Yet whereas the usual drill is the final plenary dragging on late into the evening to enable time for a satisfactory closure, today was a little more mysterious.

For starters, there was more backroom huddling than open plenary debate at times when the sessions were theoretically meant to be live. The chamber stood eerily quiet for much of the day.

This was largely driven by the chairman, Daren Tang, who was anxious that his first SCCR should conclude with a substantive recommendation to the budget-setting WIPO General Assemblies, in October.

In his own words, the goal was to produce something more meaningful than the usual safe recommendation that the SCCR should merely keep strumming away at the incumbent agenda.

However, having resumed the final plenary at around 4pm, Tang then quickly adjourned it again to allow the national groupings to hold decisive in camera talks, and draw a confident line under the week’s work.

It was after 7pm when the Chair’s Summary finally made its way into the hands of the clutch of never-say-die participants who were still in the room (our own Secretary General José Borghino among them), but its contents were someway short of the chair’s hopes.

Basically, every agenda item will continue to be discussed at the next SCCR, in November, when a raft of further studies and documents will also play a part in the discussions.

These include:

1. A draft WIPO action plan on limitations and exceptions for libraries and archives so the committee ‘may consider and discuss its adoption for their future work’;

2. The next iteration of the enormous study by Professor Seng on limitations and exceptions in educational activities, and the completed version of Professor Blake Reid’s scoping study on Ls and Es for persons with disabilities other than print disabilities;

3. A draft WIPO action plan on limitations and exceptions for educational and research institutions, and for persons with disabilities other than print disabilities so the committee ‘may consider and discuss its adoption for their future work’;

4. A scoping study on the impact of digital developments on the evolution of national legal frameworks over the last 10 years, led by Guilda Rostama and Professor Pierre Sirinelli;

5. A complete study on the implications of the resale right, led by Professor Kathryn Graddy.

So there’s plenty for the delegates to chew over before and during SCCR 35. Though, truth be told, each SCCR sitting somehow seems to push the possibility of a concrete outcome ever further out of reach.

But that’s the nature of multilateral negotiations on this epic scale – it’s like herding cats. No one ever said it would be easy to carve out consensus from the divergent viewpoints of 189 countries over a subject as complex as copyright law.

The fact that WIPO and its member states are making the attempt anyway attests to the fundamental importance of copyright to the world’s social, cultural and economic ecosystems, and human development itself.

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Today the SCCR talks ticked onwards to the ‘and persons of other disabilities’ part of the agenda item ‘limitations and exceptions for educational and research institutions and for persons with other disabilities’ (referring to non-visual impairments).

Professor Blake Reid, of the University of Colorado, an IP and disability law maven, presented the skeleton of a new scoping study that will map the potential needs of people with ‘other disabilities’ and to determine the extent to which copyright law is affecting them.

The lunchtime lobbying event was staged by a group of organizations, including the Program on Information Justice and Intellectual Property (the PIJIP, which made an appearance in yesterday’s post) whose stated common goal is ‘fixing copyright for modern education’.

Among the speakers was Delia Browne, ‘education lead’ for Creative Commons Australia and Director of Australia’s National Copyright Unit (Schools and TAFEs). One of her roles is to consult on copyright law reviews in Australia, which means she’s never idle.

Delia began by noting that Australia is often held up as a benchmark in providing educational access, due to a system of statutory licensing which has been around since the 1980s and a whole series of exceptions.

However, she added that ‘one of the biggest problems’ in Australian copyright law is that ‘Part 5b’ covers ‘absolutely everything’, with insufficient exceptions for educational use.

Acknowledging the publishing industry’s concerns about expansion of exceptions, she said: ‘Some publishers do understand what our issues are about the bluntness of the statutory licence being applied to these types of uses,’ adding that what was needed was more dialogue between those pushing for copyright reform and the publishers. ‘We shouldn’t be at each other’s throats,’ she said.

Moderator Sean Flynn, from PIJIP, then asked her about the ‘horror story’ of Canada’s educational exceptions within its Copyright Modernisation Act, noting that her comments suggested she anticipated a similar movement in Australia.

Delia said the 2012 reforms were not the sole reason why Canadian educational publishers were ‘suffering from some disruption’, and to say that they were was ‘misleading’. Instead, she blamed increasing use of open access resources by Canadian schools and institutions, students’ increasing reliance on second-hand books, and the ‘huge transition from print to digital products’, as well as new media players like Apple and Google.

Among the audience members was independent Canadian educational publisher Glenn Rollans (Brush Education), who also happens to be vice-president of IPA member the Association of Canadian Publishers.

The side-event organizers didn’t invite questions from the floor, but afterwards Glenn told me his response would have been the following:

From a Canadian independent publisher’s perspective, today’s side session on fixing copyright for education underrepresented the potential problems with extending the education sector’s “free zone” for using copyright protected materials.

I heard during the session that broad exceptions for education don't interrupt the purchasing of educational resources, don't harm rightsholders, and are generally positive for the creative sector as well as for educators.

The Canadian experience, during the lead-up to our 2012 copyright act revision, was that schools and universities promised they would continue spending on copyright-protected resources as they always had, and wouldn’t take unfair advantage of a new education exception for fair dealing. Australia’s Delia Browne made more or less this same prediction for Australia if it makes similar changes in its copyright act.

But in Canada, hard on the heels of the new Act, school and college administrators circulated policies nation-wide advising teachers and instructors to go on copying what they had been copying under collective licenses, with the glad news that all of that copying was now free, including digital copying. They abandoned the collective licenses that used to provide some compensation to the people who created the resources, the resources educators still value enough to copy for their students.

It’s hard to make common sense of the suggestion that this doesn’t harm copyright holders by at least the value of the lost licensing revenue. Instead of acknowledging this, the education community in Canada continues to argue that there are several causes of rightsholders’ lost revenue, as if this means that no harm has been done. I heard the same theme in today’s session.

The new educational exception for fair dealing broke the marketplace in Canada. In a balanced system, compensated copying and distribution of partial works provides a good option to purchasing full resources. But free copying outcompetes purchasing. Even if the copying is limited to 10%, or one chapter, or one poem, or one image. As a small publisher, I can’t compete with free, and other independent publishers, authors, and artists are in the same predicament.

I believe fair dealing in Canada, as a concept and a practice, used to make good sense in Canada for purposes such as private study, criticism, and satire, but when the exception was extended to “education”, it crashed the system.

All rightsholders took a hit, but because of the crucial importance of licensing revenues in their livelihoods, Canadian independent authors, illustrators and publishers suffered more than bigger rightsholders. As a result, we are losing their distinctive contributions to education in Canada.

Fixing copyright for education shouldn’t mean breaking copyright for dedicated, effective contributors to education. With that in mind, I look forward to fixing copyright in Canada, and not breaking it elsewhere.

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