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 for teaching and research purposes



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sccr 39 6
E&L for teaching and research purposes have been present in the Berne Convention since its adoption in 1886.11
Both the Berne Act of 1886 and the Brussels Act of 1948 referred to “educational or scientific” purposes. Although current Art.10(2) BC (as drafted at Stockholm, 1967) only refers to teaching, scientific research purposes may be served by two other exceptions also reformed in Stockholm: quotations (Art.10(1) BC) and the general exception to reproduction rights (Art.9(2) BC).

a) Teaching purposes


According to Art.10(2) BC:
It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
This is an open, flexible and technology-neutral exception, aimed at accommodating any acts of exploitation12 and new technology.13 Accordingly, digital means and online teaching (or any other means of distance learning) are clearly included under the exception.14 Its backbone is ‘by way of illustration... for teaching.’ This was never intended to restrict the scope of “educational purposes” envisioned in the original provision; rather, it responded to a concern about the amount of a work used and to make sure that reproductions used are indeed “illustrating” the teaching.15
Art.10(2) BC was meant “to include teaching at all levels”16 yet, there is some doctrinal debate as to whether it should only include “official” programs and degrees or also general teaching available to the general public.17 A restrictive interpretation excluding adult education courses and life-long learning may, to some extent, be compensated by the provisions of the Appendix to the Berne Convention which clearly include them.18
Art.10(2) BC applies to all kinds of works; rather than specific quantitative or qualitative restrictions, the exempted use is only limited on two grounds: “the extent justified by the purpose” and “[compatibility] with fair practice.” No remuneration is required but Member States are free to implement it; in fact, some compensation or remuneration may be necessary to comply with “fair practice.19
And last, but not least, Art.10(2) BC is not a mandatory exception: within its boundaries, the exempted use of works for teaching purposes remains a matter for national law.

b) Quotations


According to Art.10(1) BC:
It shall be permissible to make quotations from a work which has already been lawfully available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.”
As Prof. Ricketson explains,20 quotations for “scientific, critical, informatory or educational purposes” are clearly included within its scope.
Art.10(1) BC exempts any acts of exploitation: reproduction, distribution, communication to the public and making available, as well as translations.21
Art.10(1) BC applies to all kind of works (provided they have been “lawfully made available to the public”), without any specific limitation as to the amount that may be quoted. Of course, the term ‘quotation’ itself already suggests some restriction, but its length will be ultimately determined in casu, subject to the conditions of “extent justified by the purpose” and in a manner that is “compatible with fair practice.22
Similarly, since the quotation exception is neither restricted in terms of beneficiaries nor technology, it may exempt quotations for teaching and research purposes made by professors, students and researchers, as well as by any means of exploitation (i.e, digital formats and online contexts).
Again, despite remuneration is not formally required, nothing prevents Member States from subjecting exempted quotations to remuneration schemes –which, “should more readily justify the requirement of compatibility with fair practice than would a free use.”23
As happens with teaching uses, according to Art.10(3) BC, mention shall be made of the name of the author as it appears on the original, and the source (from where the work has been obtained).
Art.10(1) BC is mandatory and Member States must apply it in their national laws. As we will see, not all national laws do so – at least, not with the scope of exempted quotation uses mandated by Art.10(1) BC.

c) The Three-Step Test


As a general rule,24 international instruments (such as the Berne Convention) delegate on national legislators the responsibility to identify and define the E&L needed in their copyright laws. The Three-Step test is the primary instrument to secure that national E&L will comply with international standards.
According to Art.9(2) Berne Convention, Member States are allowed to maintain and introduce exceptions and limitations to reproduction right in national laws, provided that three cumulative conditions are met:
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
This is commonly called the “Three-Step test.” Subsequently, Art.13 TRIPs and Art.10 WCT extended the application of the test (with slightly different language) to all exclusive rights of authors -beyond reproduction- and with a clear intent to also apply in the digital environment. National laws must comply with the cumulative test when adapting and introducing E&L to exclusive rights.
According to it, E&L for teaching and research purposes must be carefully defined to avoid exempting uses in a manner (and scope) that conflict with the normal exploitation of a work.25 In addition, the requirement of remuneration may help clear the last step (“unreasonable prejudice to the legitimate interests of the author’s”) and help strike a “reasonable” balance between the public interest justifying the E&L (in our case, teaching and research purposes) and the prejudice caused to right holders.

2.2 E&L IN NATIONAL LAWS


In addition to the general exceptions for quotations and private copying that partially satisfy academic needs, all countries provide for specific E&L for teaching and research uses, Common Law countries tend to rely, instead, on fair use/fair dealing provisions to authorize these uses.
The scope and conditions of educational E&L vary, sometimes widely, among domestic laws; this is so even within “harmonized” markets such as the EU.26 The lack of normative consensus is far more acute when we consider digital formats and online teaching. As a general rule, E&L in national laws tend to be less generous than Art.10(1) and (2) Berne Convention.


  1. E&L for teaching purposes

National E&L for teaching purposes are far from homogeneous. Differences relate to the specific purposes exempted,27 the exempted acts of exploitation28 (including translations or not),29 beneficiary institutions30 and/or individual users,31 as well as the kind and amount of works that may be used.32
Another distinguishing factor is the requirement of remuneration (or compensation) for authors, publishers and producers. While most E&L for teaching and research purposes do not require any compensation (this is so in most African, Asian and Latin American countries), a few (especially in developed countries) require remuneration, and they do so by different means.33
Of course, specific legislative choices ultimately help define the scope of uses exempted under teaching E&L and shape the licensing system developed in each country. As a rule of thumb, the following statements may be made: E&L allowing uses for free tend to be narrower in scope than remunerated ones; E&L requiring remuneration are more common in countries where CMOs are deployed to manage it while, at the same time, remunerated E&L are a powerful tool to foster the development of CMOs;34 In general terms, Common Law provisions that exempt educational uses are far more detailed than Civil law ones – albeit more detail often does not mean a broader scope of exempted uses.
Beyond these general comments, let’s now focus on online teaching uses.
Contrary to the flexibility shown by Art.10(2) BC, most national E&L for teaching purposes fail to properly envision digital and online uses. Specific language tends to restrict exempted teaching uses to face-to-face and “analogue” scenarios (e.g. classrooms, performance, photocopying). This is particularly the case in Asia, Africa, Latin America, Middle East and Eastern Europe. Most national E&L laws only benefit face-to-face teaching scenarios. This was the general finding of the comparative law Studies commissioned by WIPO in 2009;35 the scenario has not changed much in 10 years.
Recent amendments in a few countries (most notably, in the EU,36 USA, Canada, Australia, China, Japan, South Korea and Singapore) have introduced specific E&L for digital and online teaching. Often these E&L tend to combine a cluster of exempted free instructional online uses with further uses of specific works (i.e., publications for readings and compilations) subject to remuneration, managed by CMOs. Often, E&L contain restrictive terms (as to works and extent uses permitted)37 and eventually they include specific language that may render the E&L technologically obsolete.38
Interestingly, a few African countries39 have recently amended their laws to formally include “uses on computer networks … provided that access to the works is only available to enrolled pupils or students and their teachers,” but this language is meant to refer to digital storage “on site” (such as university computer networks) rather than “online distance learning“.40
Failing a specific E&L, online teaching uses may also be deemed permitted where national laws retain the flexible language of Art.10(2) BC (illustration for teaching in publications, broadcasts and recordings)41 or when E&L authorize “any use” or “anything done” for educational purposes.42 In both cases, these general provisions entail legal uncertainty that will ultimately deter the development of online teaching projects. In Common law countries, fair use/dealing provisions may be more prone to deem online teaching uses exempted;43 despite also sharing some degree of legal uncertainty, fair use/dealing is constantly built up with new caselaw and guidelines adjusting to technological and market evolution.
For the rest, E&L for teaching purposes only cover face to face and analogue formats, and online educational activities fail to benefit from them.
Among the challenges that current E&L present for digital and online teaching, the need for a uniform treatment of the several acts of exploitation involved should be mentioned first. Online teaching uses involve acts of reproduction and making available (when uploading the contents on a website), communication to the public or transmission (which at the same time includes multiple transient copies) and subsequent copying (when content is downloaded by recipients).44 In order to fully exempt online teaching uses, all these acts of exploitation should be uniformly addressed by the E&L.
Another issue that is poorly addressed by national laws – and highly controversial – is digitization of works to be used for teaching purposes. To the extent that scanning amounts to a reproduction, digitization might be exempted as a reproduction (where E&L exempts it). However, digital formats bring a higher risk of downstream infringing uses than analogue ones. This factor, together with the impact that digitization may have on the primary markets of the works are factors that deserve to be carefully considered in order to find more nuanced E&L solutions for online teaching uses.
Similarly, allowing translations for teaching purposes is especially important in some countries (with minority languages) which are net importers of academic materials published elsewhere. Following the Berne Convention Appendix (1971),45 some developing countries envision the possibility to obtain (from a “competent authority”) authorization to translate and/or reproduce for purposes of instruction (not research) works which are not available in that country (under certain circumstances). Under the current Appendix, it is unlikely that online uses (which involve not only digital reproduction, but also making available and communication to the public rights) might also benefit from this possibility.
Another challenge that needs to be duly addressed by E&L for teaching and research, is the need for flexibility in terms of kind of works (e.g., not only textual) and amount of use (e.g., to allow uses “to the extent necessary” as under Art.10 BC). Sufficient coverage of any works and protected subject matter, and some degree of flexibility, are critical for the development of teaching and research online. Yet, this is not the reality under most national E&L, which tend to cover only the use of specific works (mostly, published works) and be restricted by number of pages or percentages.
In short, there is room for national copyright laws to further explore the scope of permitted uses under Art.10(2) BC and formally exempt online teaching uses under the guidance of the Three-Step test.
b) E&L for research purposes
As a general rule, in most national copyright laws, research purposes tend to benefit from the same E&L envisioned for teaching purposes. In addition, uses exempted as quotations and private copying are fundamental for research purposes.
Research activities conducted online face the same obstacles and challenges analyzed under the teaching E&L: restrictive terms that only exempt face-to-face or analogue research activities and failure to cover all kind of works in a flexible manner. Once again, researchers and academics located in different countries who want to “exchange” copyrighted contents and make their research available to researchers globally (i.e., in VLEs), and are uncertain about the scope of exempted uses under applicable E&L; uncertainty as to the applicable law and the extent of E&L covering specific uses; contents obtained from licensed databases subject to territorial restrictions or to contractual conditions prevail over E&L; TPM-protected works that prevent specific uses or uses in foreign countries; and, of course, interpretation challenges of what qualifies as research. For all these reasons, open licensing and open access initiatives have been developing across academic communities.46
Furthermore, beyond copyright, the use of raw data and information (often resulting from research projects, or originated within the Public Sector) that is not per se protected under copyright, is also a very valuable asset for research. Challenges here include the difficulty to distinguish between copyright protected works and data which is not protected by copyright.47

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