This is a guest post by Susan Isiko Štrba of International Lawyers and Economists for Development:
COVID-19 caused a number of learning institutions, especially in the developing world, to come to a stand still. On the other hand, developing countries faithfully domesticated international Intellectual Property (IP) standards in an effort to become compliant with the international law they agreed to. The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), similar to the international IP instruments governed by the World Intellectual Property Organization (WIPO), offers limitations and exceptions (L&Es) as a lawful way to use IP protected works. Thus most national laws in developing countries provide for limitations and exceptions (L&E) for teaching. A WIPO Study on Limitations and Exceptions for Copyright and Related Rights for Teaching in Africa, shows that legislation does provide for face-to-face and to some extent long distance teaching, but not online teaching.
At the commemoration of 25 years of the TRIPS Agreement on 24 November 2020, H.E. Xolelwa Mlumbi-Peter, South Africa's Ambassador to the WTO and current Chair of the TRIPS Council, called for the preservation of the objectives and principles of the TRIPS Agreement, particularly in relation with the protection of public health and nutrition, public interest and international technology transfer. She highlighted that “We must ensure that the discussions on WTO reform preserve the objectives set out in the TRIPS Agreement and explore how IP can facilitate inclusive growth and development. This includes how IP can contribute to the sustainable development goals.”
Education, regardless of the means of delivery – face-to-face or online – remains a key sustainable development goal as stipulated under goal four. As we explain below, capacity building and technology transfer, in the field of intellectual property, would go a long way in contributing to the realization of this goal.
As Prof Carys Craig has stressed, copyright law is both the root of the problem and source of potential solutions. For example, the Supreme Court of Canada has stated that copyright is supposed to achieve “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” Indeed, in some developed countries like Canada, many educational activities are already protected within the scope of users’ rights. Canada’s Copyright Act contains exceptions for reading in public, for education and training (including for lessons communicated online), and a fair dealing defence for the purposes of education or private study. These provisions are to be interpreted with a view to the copyright balance, which “should be preserved in the digital environment.” If reading aloud to a class or showing an illustrative image on a PowerPoint slide was lawful in a classroom, it should be lawful in the online classroom.
In my book, International Copyright Law and Access to Education in Developing Countries, I provide a “models of practice relating to limitations and exceptions to copyright for educational purposes”, which involves, but is not limited to, taking examples from developed country practices and adjusting them to national circumstances. It makes sense to copy Canada’s practice related to fair dealing, for example. This works well in face-to-face teaching. However, there are limitations for several countries in the developing world of Africa when it comes to online teaching. Indeed many countries in Africa did not have a seamless transition to online teaching for a number of reasons, including copyright and technological limitations.
What happens if the copyright law does not provide for online teaching or if it does, copyrighted works are locked by technological protection measures (TPM)? Many jurisdictions in Africa depend on foreign material for teaching. A lot of access to educational materials has depended on poor or non-enforcement of copyright. However, online teaching makes cross-border exchange of works easier, much as these works are not free from copyright. In terms of enforcement, owners of copyrighted works can legally protect their works by applying TPM locks, granted by the WIPO Copyright Treaty. In addition, software applications, which are really pertinent in online teaching are protected by patents in some jurisdictions like the USA, providing double protection in some works – by both copyright and patents.
Prioritizing online and digital uses for education
One possible solution would be to adapt exceptions to permit teaching and learning through digital and online tools, by changing the law to accommodate online teaching and to apply educational exceptions beyond mere reproduction to include communication and distribution-related rights, of all types of protected works. It has been suggested that international instruments should permit “flexibility in the implementation” and not be “highly specific and highly tied to today’s technology.” But legislative reform takes time. At the international level, the outcomes are uncertain so there is no guarantee that the outcome will reflect what is needed to allow access to online teaching. In the short run, we suggest a solution that is not tied on limitations and exceptions, as explained below.
Beyond exceptions to capacity building and technology transfer
At the said celebration of the 25 years of TRIPS, Mr Antony Taubman, Director of the WTO Intellectual Property, Government Procurement and Competition Division, reminded that the technological, economic, cultural and social contexts of the intellectual property system have been utterly transformed. The TRIPS negotiations were convened under the heading of trade in goods, at a time when trade negotiators basically conceived IP as part of the value added embedded in physical goods. “Today … IPRs are traded internationally in their own right, if you like as tradable goods in themselves.”[1] This transformation to trading in IP has greatly impacted both face-to-face and online education in both negative and positive ways. Further, more and more important, this transformation may point to the need for an evolutive working methodology for organs like the TRIPS Council and the TRIPS Secretariat that oversee the implementation of TRIPS, to reflect the developments in the 25 years of the TRIPS implementation.
Can the TRIPS Agreement, which was negotiated with a view to the analogue environment, address technological issues? Yes, but it may need to adjust to the “new normal” created by technology, including online teaching and learning. Two responses to interviews conducted with professors from LDCs in Africa provide insights of what can be considered useful capacity building provided for under article 67 and/or technology innovation and technology transfer stipulated under articles 8 and 66.2 of TRIPS.
There is need to encourage creativity among teachers or instructors to create learning content that can be accessed among communities where students and even non-school going individuals who want to enhance their skills can have access. During a telephone interview on 2 November 2020, Professor Michael Kaluya, originally from an LDC but currently teaching at Tarrant County College in the USA, opined that a community library could be such a facility, where learners could access the material through Internet.
The TRIPS Secretariat acknowledges that “[t]he early days of TRIPS TA [technical assistance] focused more on institution building and bringing IP laws into compliance with international obligations ... but now increasingly, TRIPS TA focuses on cross-cutting IP-related policy issues.” One policy issue that has been clearly highlighted by COVID-19 is the ability to provide access to educational materials online while protecting IP.
Africa hosts 33 out of the 47 least Developed Countries (LDCs) on the UN List of LDCs. TRIPS mechanisms on capacity building and technology transfer could be adapted to possibly help the 33 African LDCs build their capacities for online education. Capacity-building could be aimed at improving the ability of LDCs (and other countries) to generate intellectual assets and thus become contributors and not remain only users.
It is arguable that the TRIPS Agreement aims at achieving the transfer and dissemination of technology as part of its objectives, as stipulated in article 7. Furthermore, under its art article 66.2, the Agreement obliges developed country Members to encourage their companies to promote the transfer of technology to least-developed countries. Arrangements by a developed country to encourage its company to carry out technology transfer (TT) are subject to review every three years by the TRIPS Council, as required under Decision IP/C/28. But since technology changes fast, an additional avenue of providing TT outside the lengthy process of the TRIPS Council might be necessary. Indeed, David M. Fox has argued that developed countries are not meeting their obligations under article 66.2 of TRIPS.
On technology transfer, in an email exchange on 22 November 2020, Professor Antony Kakooza, from the Uganda Christian University expressed the view that technology transfer could be effected in assisting innovative Ugandans in the country instead of encouraging brain drain.
In addition, TT could be provided for each country at the time, when it is needed and requested by an individual country, instead of waiting for a group of LDCs to indicate their needs. This would require a transformation in the way the TRIPS Council and the TRIPS secretariat operate. It will require that the WTO Member States grant permission to the TRIPS Secretariat to provide needs-driven capacity building and technology transfer to each country individually. Technology changes so fast that its effective use or transfer should not depend on the slow pace of negotiations in a TRIPS Council.
[1]For a meticulous elaboration of this point, see the recent article, Taubman Antony, 2020, “The Shifting Contours of Trade in Knowledge: the New ‘Trade-Related Aspects’ of Intellectual Property”, World Trade Organization, Staff Working Paper ERSD-2020-14, Economic Research and Statistics Division.
