Open Access News

Access to knowledge is critical for developing countries that seek to educate their masses. Educational materials therefore need to be made accessible to the public. Unfortunately, the international copyright regime has developed in a manner to increasingly curtail access. A variety of efforts have been mounted to safeguard the public right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. They include the efforts of developing countries for a review of the TRIPS Agreement, the push for a development agenda in the WIPO, the civil society campaign for an Access to Knowledge Treaty and the various initiatives to promote access to copyrighted materials. This report by CI seeks to contribute to these efforts. It examines the existing international instruments on copyright to identify the provisions that may be relied on by national lawmakers to improve access to educational materials in their respective countries. The international copyright instruments examined are the Berne Convention, the TRIPS Agreement and the WCT. The report also examines the copyright laws of 11 developing countries in the Asia Pacific region to ascertain the extent to which the national lawmakers have availed themselves of the flexibilities presented in these instruments. The 11 countries are Bhutan, Cambodia, China, India, Indonesia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea, the Philippines and Thailand. The flexibilities that exist in the three instruments appear in three forms: - [A] The scope of copyright protection, [B] The duration of copyright protection, [C] The limitations and exceptions....The international copyright instruments have, over the years, progressively expanded the scope of copyright protection, namely the works that are protected by copyright and the rights that are granted to copyright owners. The scope of copyright protection specified in the international instruments is however only the “minimum standard” and countries are therefore free to widen the scope beyond their obligations under the international instruments which they are parties to. Developing countries are net importers of copyright materials and it is in their interest to maintain the scope of copyright protection at its minimum. In addition, the international copyright instruments specify the “bundle of rights” that should be granted to copyright owners. Unfortunately, all 11 countries studied have either expanded the scope beyond what they are required to do or given copyright owners more rights than necessary under the relevant international instruments.

The report then details 14 ways in which the 11 countries could make better use of limitations and exceptions in the international copyright agreements they have signed. It also urges these countries to consider strategies such as supporting the Access to Knowledge Treaty, open-access journals, open-source software, and Creative Commons licenses.

Also see Consumer International's accompanying Statement to WIPO to coincide with the meeting of WIPO's Provisional Committee on Proposals Related to a WIPO Development Agenda (Geneva, February 20-24, 2006). Excerpt:

CI contends that the copyright law of developing countries should provide for public access to educational materials where this is already permitted and that all available flexibilities in the international copyright instruments should be relied on to achieve this purpose.. The study found that this has not happened. For example: [1] The Berne Convention does not prohibit the utilisation of the whole of a work for the purpose of teaching. However, only three of the 11 countries allow such a possibility. [2] The Berne Convention does not restrict the number of copies of publications or sound or visual recordings that can be made for the purpose of illustrations for teaching. However, five out of the 11 countries studied, expressly restrict the number of copies of these materials for teaching purposes. [3] The Berne Convention does not place any limitation on the purpose for which quotations can be made. Despite this, five of the 11 countries permit quotations to be made for only certain purposes. In addition, the study reveals that the draft laws used by WIPO to provide technical assistance are failing the interests of developing countries. It is inconceivable for a United Nations body like WIPO to not act in the best interests of its member states. WIPO’s actions are a disservice to developing countries. The flexibilities available under the various international copyright instruments are critical to enable better access to knowledge and ensure that such knowledge is in the public domain. In view of the above findings, CI calls on the PCDA to do the following: [1] Implement the proposal of Chile, in particular Proposal 3 to commission a study to examine to what extent the intellectual property laws of developing countries provides for access to knowledge in the public domain; and [2] Implement a review of the WIPO draft laws on copyright to ensure that WIPO’s legislative advise to developing countries contain all the available flexibilities for access to knowledge in the public domain permitted by the international treaties.

Update. See Frances Williams, Bad copyright advice ‘stunts learning’, Financial Times, February 20, 2006. A news story on the CI recommendations. Excerpt:

Poor countries are being wrongly advised to enact tougher copyright laws than required by international treaties, making access to copyright publications prohibitively expensive, Consumers International charged on Monday....“As a result, copyrighted educational materials in these countries are expensive and consumers are being priced out of access to knowledge,” said a CI report. A book costing $27 in Indonesia was equivalent to a US student paying more than $1,000 in GDP per capita terms. The London-based group, which links more than 230 consumer organisations in 113 countries, said the United Nations’ World Intellectual Property Organisation was giving “thoroughly inadequate” advice to poor nations. Such countries were already under pressure from the US and other industrialised countries to provide ever stronger copyright protection. WIPO’s “misleading” draft laws were reinforcing this pressure by including rights not required by international treaties and by failing to point out flexibilities, especially those relating to use of copyright work for educational purposes.