[A2k] EFF statement at WIPO SCCR 17 on Exceptions & Limitations

[Eddan Katz]

as just delivered.

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I speak on behalf of the Electronic Frontier Foundation and its 13,000
members worldwide. We endorse the joint statement of civil society
groups on exceptions and limitations available outside. In accordance
with the recently adopted Development Agenda and its vision for WIPO=92s
leadership in the global knowledge economy, we respectfully urge the
Standing Committee to discuss the World Blind Union=92s proposed Treaty
for the Visually Impaired as the first part of establishing a step by
step work plan on copyright exceptions and limitations, as proposed by
the honorable delegates of Chile, Brazil, Uruguay and Nicaragua at the
16th session of the SCCR.

EFF believes that now is the time for the Standing Committee to show
leadership on mandatory minimum copyright exceptions and limitations.
Firstly, while minimum rights have been harmonized trans-nationally,
there is wide disparity in the exceptions and limitations in Member
States national laws. There is   great uncertainty about what type of
new exceptions can be created under the international copyright
framework, as demonstrated by several of the studies commissioned by
WIPO. Copyright has expanded dramatically in scope, duration, and
breadth, and the legal fortification of technological protection
measures has increased the asymmetry between exclusive rights
incentives for creativity, and the public access to knowledge and
innovation. This fundamental balance at the heart of copyright=92s
fundamental rationale is now lopsided and threatens to undermine the
framework of knowledge production.
Second, the international copyright regime has lagged behind current
technological realities. Copyright law is territorial, but the
digitally networked environment is global, facilitating information
flow in goods and services across national borders.

Trans-border education and internationally accessible digital
libraries are currently frustrated by the divergence of exceptions and
limitations in different countries and the unclear application of
private international law to the Internet: Students and teachers who
want to use digital copyrighted information obtained from outside of
their country cannot be sure that they can do so legally. Educators,
libraries, and other knowledge providers face uncertainty about what
information they can digitize, and make available without fear of
legal liability. Yet, to date, there has been almost no discussion of
how copyright law should be updated in light of these trans-border
activities.

EFF commends WIPO for commissioning a study on exceptions and
limitations for educational purposes in Member States=92 national laws.
We believe that WIPO should also commission an empirical survey from
the point of view of educators, of the impact of current copyright
laws on their ability to provide quality education and the impact of
digital technology on participatory learning. This survey would allow
Member States to understand the particular needs of educators and
students that are not met by the current copyright regime, and
underline the urgency of finding solutions to ensure the future of
cross-border and digital education.


As the World Blind Union has demonstrated so compellingly, these are
real and pressing humanitarian problems that can no longer be ignored
without calling into question the legitimacy of the entire copyright
regime. While the international copyright regime allows countries some
flexibility in creating exceptions and limitations to their national
copyright law, it is not sufficient to address the opportunities and
challenges facing those who seek to provide or access information
services across borders.

Providing greater certainty to students, educators, information
service providers and technology developers, requires minimum
exceptions and limitations for education, libraries and archives and
the visually impaired in all countries=92 national copyright law  and
international reciprocal recognition of works produced under national
exceptions.


The Standing Committee has reached an institutional fork in the road.
It can seize the opportunity uniquely before it to stimulate the
complementary goals of innovation, creativity, and development. Or it
can resurrect discussions that only benefit incumbents and have not
resulted in agreement after 10 years. Meaningful exceptions and
limitations are key to the Development Agenda and the future relevance
of WIPO. To pass over this opportunity is to ignore the winds of
change and hope now before us. We call upon the SCCR to begin its
urgent work guiding the construction of exceptions and limitations
that would revive balance in the international copyright regime and
make it more effective for the 21st century.

Thank you for your consideration.