PIJIP Hosts WTO Public Forum Panel: Copyright, Trade, and a TRIPS Waiver for Covid-19

September 28, 2021

Image Caption
Map showing where copyright exceptions allow copyright and sharing works for text and data mining (PIJIP)

Yesterday, PIJIP hosted Copyright, Trade, and a TRIPS Wavier for Covid-19, a panel at the World Trade Organization's Public Forum, which this year is based on the theme “Trade Beyond Covid-19: Building Resilience.” 

PIJIP Director Sean Flynn moderated the panel, which included speakers from academia and civil society groups. Much of the discussion centered around the scope of the "TRIPS waiver" - a proposal to waive certain obligations to protect intellectual property under the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in situations where they are hampering the fight against Covid-19. The TRIPS waiver was originally proposed by South Africa and India. It now has the support of a majority of WTO Members, but Members have different opinions over how broad or narrow it should be.

Sean Flynn opened the panel, noting that much of the debate over the TRIPS waiver has focused on patents while overlooking important copyright issues: "Copyrighted algorithms are needed to create mRNA vaccines. Access to copyrighted software is needed to fix or create ventilators. Text and data mining - requiring reproductions of whole works for computational analysis - found the virus, and the vaccine candidates that are combating it." Some countries have copyright exceptions that allow researchers to make and share reproductions needed for text and data mining - but PIJIP research has demonstrated "highly unequal access to copyrighted materials permitted by the world’s copyright laws."

Flynn noted that very few countries have emergency use exceptions in their copyright laws. The WTO could promote interpretations of international agreements that support more emergency exceptions in domestic law - a point that would be expanded on later in the panel.

Patricia Diaz, Co-coordinator of the Data and Society Laboratory in Uruguay (Datysoc), presented results from a review of copyright exceptions in 10 Latin American countries - Argentina, Brazil, Chile, Colombia, Ecuador, Mexico, Panama, Paraguay, Peru and Uruguay. The review is online at https://flexibilidades.datysoc.org/, and it includes an interactive map where one can look up legal language by country or by type of exception.

Latin American countries don't have the types of flexible exceptions found in the U.S. or other commonwealth countries. Users of copyrighted works can only make the types of uses explicitly permitted in Latin American copyright laws. And many of these laws have not been adequately updated since digital technologies changed the way users interact with works. For instance, only one of the countries in the Datysoc study (Ecuador) has a copyright exception for sharing works for the purpose of online education, and none of the countries had sufficient copyright exceptions for reverse engineering. A TRIPS waiver that includes copyright would allow these countries to take steps such as online education and medical research needed to fight Covid.

Teresa Hackett,  Copyright and Libraries Programme Manager at Electronic Information for Libraries (EIFL), described three main barriers to Covid research that can be posed by copyright.

1. Researcher must be allowed to do their research. 

Libraries often manage databases needed for researchers to conduct text and data mining (TDM) operations. Since most countries lack robust exceptions for TDM, the library will usually need authorization from the rightholders (though this does not apply to open access databases, or situations where the library has a license with terms that allow TDM). 

2. Researchers  must be allowed to read others' research. 

Covid shutdowns have made controlled digital lending more important. In the U.S., fair use permits controlled digital lending , but most countries do not have fair use, and often do not have a specific digital lending right either.  

During the early part of the pandemic, many publishers lifted paywalls on materials that could be useful for Covid research. However, these paywalls have already started to come back. A recent survey of new publications related to Covid found that 43% of them were inaccessible without a publisher license. 

3. Libraries and archives must be allowed to save research

Content posted to websites tends to be taken down or changed within 100 days. Cultural institutions have the duty to preserve Covid collections for future generations of researchers. This involves making unauthorized copies of works, so they need to rely on copyright exceptions, but exceptions for preservation purposes vary greatly from one country to the next. Some only allow copies of paper books, some restrict who can make preservation copies, some restrict the number of times works can be copies. Libraries must be allowed to properly preserve all works for future scholarship.

Dick Kawooya, Associate Professor at the School of Information Science (iSchool), University of South Carolina, described the state of copyright exceptions needed to fight Covid in Africa. Surveys of copyright law in African countries found that it is only legal for libraries to make digital copies for research purposes in 16 out of 52 countries. 

Another study focused on copyright exceptions for education in a smaller set of 10 African countries. It concluded that it is legal for a teacher to share an article on their school's digital network in only 3 of the countries. It is legal to show and discuss an online video in class in only 2 of the countries.

Allan Rocha, Civil Law and Intellectual Property Law Professor at the UFRRJ Law School, Brazil, discussed how WTO could help promote emergency use copyright exceptions. He noted that the TRIPS Agreement addresses copyright exceptions differently patent exceptions. Specifically, the TRIPS Agreement does not have a compulsory licensing provision for copyrights similar to Art. 31 (which permits compulsory licenses for patents). 

However, Article 17 of the Berne Convention for the Protection of Literary and Artistic Works states that countries may permit or control the circulation of works if a competent authority finds it "necessary." This is a potential justification of emergency uses of copyrights for the fight against Covid-19, or for other national emergencies.  But to date no international body has taken a position on the meaning of Article 17. Some academics have argued it really is meant to protect censorship. It would be useful for the World Trade Organization to promote an interpretation that Berne Article 17 justifies copyright exceptions for emergency uses. This would be in line with the objectives in TRIPS Article 7 and the principles in TRIPS Article 8. 

Finally, Rocha said that cutting copyright from a TRIPS Waiver would negatively affect the fight against Covid-19 and future pandemics. If we don't unblock the roads for knowledge, we won't be prepared to face new emergencies.

Sean Flynn wrapped up the panel, reiterating that copyright affects access to vaccines, to treatments, to new research, and to online learning made necessary by Covid-19 lockdowns. He noted that South Africa, India and the United States have all promoted a waiver that would include all types of intellectual property, but some other parties have sought to limit the wavier to patents. Finally, he reiterated the need for international guidance on the interpretation of Berne Article 17 - noting that very few countries have emergency use provisions for copyright in their laws.