E sccr/39/6 original: English date: October 15, 2019 Standing Committee on Copyright and Related Rights Thirty-Ninth Session Geneva, October 21 to 25, 2019

E&L are meant to secure specific public interests

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sccr 39 6
E&L are meant to secure specific public interests, and they are only justified to the extent they do so. Teaching and research activities are one of these public interests that copyright laws must safeguard.6 And it is precisely the “public interest” that must help define the scope of teaching and research uses that are permitted under E&L: fundamental teaching and research needs must be authorized under E&L (subject to terms and conditions that satisfy the three-step-test). Further teaching and research uses must remain in the hands of right holders to authorize or prohibit.
The statutory design of E&L and licensing existing in each country are inherently linked: the scope of activities permitted under a statutory E&L will define the scope of acts of exploitation that require licensing and, vice versa, licensing availability in one country will shape the kind of E&L best suited for it.
Licensing availability and licensing formats for teaching and research activities varies widely across different countries. Collective licensing and CMOs are not yet operational everywhere, and not equally so for all kind of works. Collective licensing may be available in one country for some type of works (e.g. publications), but hardly available for others (e.g. movies and phonograms). Furthermore, different licensing models may co-exist within the same legal framework; for example, the same teaching uses may be licensed under different conditions (scope of permitted uses, pricing, etc.) or even licensing models (non-voluntary or voluntary licenses) depending on the academic institution’s public or for-profit nature.7
None of these licensing models (collective licensing, voluntary licensing by right holders, or compulsory or statutory licensing often, deriving from an E&L) may be seen as better than another to facilitate online academic activities: their needs and success will depend on the legal, cultural and market circumstances existing in each country. Certainly, some countries are introducing changes in their legal framework8, to adapt E&L to online contexts and to foster a more efficient licensing for academic uses, but at the end, their success and efficiency very much depend, not only on its legal drafting, but upon the market and economic context of that country.9
Together with E&L, licensing is undoubtedly called to play an important role in the development of online and cross-border education, meeting the needs and demands of educational institutions for online teaching and research activities, while respecting the primary markets of the licensed works. Of course, this requires new and better statutory provisions, as well as a fluid dialogue between copyright owners and educational institutions that permits an approach of interests and a joint work to find solutions to improve the offer and availability of contents for universities, teachers, researchers and students for their online teaching and research activities.
Last, but not least, online teaching and research activities happen in ubiquitous markets: students and researchers may be located in different countries (other than the country where the university is located) making it more difficult to assess the scope of exempted uses under different national E&L; materials used for teaching and research purposes may have been obtained from sources “located abroad,” further complicating the task of locating and contacting copyright owners and obtaining an authorization from them; academic uses may have been licensed for specific territories only, thus failing to provide a complete answer to cross-border online uses.
We will now examine both issues separately, E&L and Licensing, despite knowing that they are inherently linked and that the development of online teaching and research activities depends on a balanced combination of both, adjusted to the specific cultural, economic and market circumstances of each country.
Licensing schemes resulting from E&L – usually managed by CMOs – to remunerate for the statutory exempted uses will be considered in the following chapter. Voluntary licensing, as well as statutory-supported licensing, will be dealt with in the third chapter.

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