Background Resources Commentary
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1. The Information Society is characterized by an abundance of readily available information, covering billions of pages hosted on more than 52 million active domains.¹ A simple Google search for “intellectual property” delivers more than 75 million websites of potential relevance. Wikipedia, the collaborative open source online encyclopedia compiled by the site’s users, contains 536,246 ongoing articles covering 1,540,695 pages, making it the second-most visited reference site online.² Information in digital form is now available on demand more quickly, at lower cost, in more locations and to more consumers and users of educational material than ever before. Intellectual property (IP) rights are used by the authors of such information to control the ways that it is used, and this control raises the concern that IP rights should be exercised responsibly, so as not to overly restrict access to sources of knowledge for educational and research purposes, particularly in developing countries.

Internet dissemination affords access to material such as music, newspapers, computer programs, photos, graphic art and films. Where supported by an adequate system of copyright protection, creators of these materials are able to exploit and market them safely to consumers in countries around the world, sometimes even without foreign intermediaries, transportation facilities or physical manufacturing infrastructure which add to delivery costs. A vast amount of information is also available free of charge, contributing to a culture of expectation among some consumers that all information on the Internet should be freely accessible without restriction. However, it is a truism that not all information on the Internet is or should be free of charge. Production of quality information products requires an investment of resources, and the livelihood of authors may depend upon payment for its use. Copyright law gives authors the choice of how to structure their relationships with consumers – whether to reserve their rights against all uses, charge for some or all uses of content, or make their works available free of charge with or without restrictions upon future use.

In the educational field, the relatively lower entry thresholds and start-up costs involved in copyright-based business models for digital distribution can result in lower costs being passed on to users. In the 1980s, the Encyclopaedia Britannica cost between US$1500 and $2200. Today, it is published in paper form (32 volumes containing 65,000 articles, at a price of US$ 1400), or online (120,000 articles, brief summaries of articles can be viewed for free, and the full text is available for US$11.95 per month or US$69.95 per year for individual subscribers).³ Emerging business models for distribution of digital content have found ways to generate revenue other than charging consumers, such as through advertising and value-added services. Open access publishing⁴, and the proliferation of free online academic journals, are examples of these trends in the context of education and research.⁵

2. Copyright-protected content can also be made available under certain exceptions and limitations to rights in national laws and, in limited circumstances under the Appendix to the Berne Convention, under compulsory licensing of certain rights. Since its inception, copyright law has recognized that exceptions to or limitations on the scope of rights granted to authors and beneficiaries of related rights are justified in particular cases. The Berne Convention contains provisions granting flexibility to Member States to limit the rights of authors in certain circumstances, including use of protected content for teaching purposes (article 10(2)). Likewise, the WIPO “Internet Treaties”- the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) - provide countries with flexibility to establish exceptions or limitations to rights in the digital environment. Countries may, in appropriate circumstances and subject to the three-step test contained in Berne, TRIPS and the WCT/WPPT,⁶ grant exceptions for uses deemed to be in the public interest, such as for libraries or non-profit educational and research purposes.

3. The WIPO Internet Treaties also provide remedies for misuse of technological measures of protection and rights management information, aimed at ensuring (but not requiring) that rightholders can effectively use technology to protect their rights and to license their works online to users. The first obligation requires countries to provide adequate legal protection and effective remedies against the circumvention of technological measures, such as digital rights management (DRM) systems and encryption used by rightholders to protect their rights. The second obligation requires remedies against the deliberate alteration or deletion of electronic information which accompanies any protected material, and which identifies the work, right owners, and the terms and conditions for its use, among other things.

The set of rights and obligations contained in the WIPO Internet Treaties have added complexity to the traditional balancing of the interests of rightholders and users, including in the field of education. Striking the right balance between the legitimate interests of right owners and users of educational materials is not a straightforward process in the digital environment. Use of DRM is a good example: while the Internet Treaties do not mandate (require) that DRMs be used, beneficiaries of limitations and exceptions have raised concerns that application of DRMs might thwart certain legitimate uses of works. In their view, DRMs may hinder legitimate access to content in electronic form or hamper the conversion process of works into alternative formats or, in general, weaken the exercise of limitations and exceptions to copyright, for example fair use. These concerns have been addressed in the WIPO studies and meetings that are listed below.

4. The Appendix⁷ to the Paris Act of the Berne Convention contains a special regime with respect to the translation, reproduction and broadcasting of works protected under the Convention that may be invoked by developing countries, notably for educational and research purposes. The Appendix allows developing countries, under certain conditions and circumstances, to limit the rights of translation, reproduction and broadcasting by submitting them to a system of special provisions on non-voluntary licenses. This possibility is subject to an obligation of notification, which means that the developing country that wishes to benefit from the provisions of the Appendix must notify it to the Director General of WIPO. Such notification automatically lapses on expiry of 10-year periods but can be renewed according to paragraph 2 of Article I of the Appendix.

Despite the advantage to developing countries in utilizing the system provided by the Berne Appendix, the number of countries under the current 10-year regime still remains modest. WIPO is actively engaged in raising awareness about the adherence to such special provisions as well as in its implementation in national legislation.



Questions to consider

• Are copyright-based business models for making educational and research materials available in digital form meeting the needs of the Information Society?
• Are existing exceptions and limitations to copyright law being used in a way that sustains education and research?
• What role could the Appendix to the Paris Act of the Berne Convention play in ensuring access to educational texts?
• What differences exist among national laws implementing the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) with respect to technological protection measures and copyright protection and uses for education and research?
• On balance, is there predominantly a “lock-up”, or rather an increased availability, of information in the digital environment?

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1 Source - Whois Source Detailed Domain Counts and Internet Statistics.

2 Enid Burns, “Wikipedia’s Popularity and Traffic Soar” ClickZ Network, May 10, 2005.

3 Wikipedia “Encyclopedia Britannica”.

4 The Wellcome Trust defines open access publication as follows:

“An open access publication is one that meets the following two conditions:

1. The author(s) and copyright holder(s) grant(s) to all users a free, irrevocable, worldwide, perpetual (for the lifetime of the applicable copyright) right of access to, and a licence to copy, use, distribute, perform and display the work publicly and to make and distribute derivative works in any digital medium for any reasonable purpose, subject to proper attribution of authorship², as well as the right to make small numbers of printed copies for their personal use.

2. A complete version of the work and all supplemental materials, including a copy of the permission as stated above, in a suitable standard electronic format is deposited immediately upon initial publication in at least one online repository that is supported by an academic institution, scholarly society, government agency, or other well-established organisation that seeks to enable open access, unrestricted distribution, interoperability, and long-term archiving (for the biomedical sciences, PubMed Central is such a repository).” Wellcome Trust Position Statement in Support of Open Access Publishing.

5 See, for example, the University of Houston Libraries list of free Scholarly Journals Distributed Via the World Wide Web.

6 Exceptions must be confined to special cases that do not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightsholder.

7 Appendix to the Berne Convention – Special Provisions Regarding Developing Countries.