12. Implementing WIPO’s Development Agenda: Treaty Provisions on Minimum Exceptions and Limitations for Education
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INTRODUCTION As its name suggests, the Development Agenda adopted by WIPO is designed to focus WIPO’s efforts and resources on achieving a better balance between intellectual property (IP) rights and development.1 Education has been identified by the United Nations as essential to development. And while many domestic IP regimes create exceptions and limitations on IP used in the educational sector, these exceptions vary from state to state. This variation presents serious challenges to the use of educational materials across borders. This chapter argues in favour of the creation of minimum treaty standards with respect to the use of IP in education. Such provisions would facilitate the cross-border sharing of educational resources, thus facilitating a key aspect of development. Existing rules with respect to exceptions and limitations are insufficient. What has emerged is a patchwork of varying exceptions that invariably creates more obstacles than it removes. A harmonizing approach of establishing minimum exceptions for education is required to adequately foster education vis-à-vis the Development Agenda. EDUCATION IN THE DEVELOPMENT AGENDA Issues and themes related to education were at the heart of proposals leading to the adoption of the Development Agenda. The proposal submitted to WIPO by Argentina and Brazil (the Friends of Development) in August 2004 raised a number of concerns, including obstructions to the free flow of information and “the ongoing controversy surrounding 158 12 Implementing WIPO’s Development Agenda: Treaty Provisions on Minimum Exceptions and Limitations for Education ANDREW RENS the use of technological protection measures in the digital environment” (WIPO 2004, 3). Of particular relevance to the education sector, the proposal submitted by the Friends of Development proposes “an international regime that would promote access by the developing countries to the results of publicly funded research in the developed countries” (ibid.); imposing obligations as well as awarding rights to rights holders (ibid., 4); that “the social costs of IP protection are kept at a minimum” (ibid., 4); and that “a proper balance is struck between the producers and users of technological knowledge, in a manner that fully services the public interest ” (ibid., 5). Building on these proposals, the recommendations for a Agenda adopted in 2007 contain a number of education-related mandates. These include: • preservation and access to the public domain (WIPO 2007, Annex, No. 16); • norm setting that takes account of development flexibilities, the Millennium Declaration,2 and includes exceptions and limitations (ibid., Annex, Nos. 17 and 22); and • a balance of rights and obligations. (ibid., Annex, No. 45) Different countries are at different stages of development and require different IP schemes, with different mixes of exclusivity and access to appropriate incentives. This insight is critical to understanding the Development Agenda. Yet how does a simple plan to set minimum exceptions and limitations for all WIPO members fit within this understanding? The Development Agenda explicitly relies on the Millennium Declaration to set policy direction. The declaration states in paragraph 6: “Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most.” The declaration and related Millennium Development Goals point to the centrality of education to development in setting the Goal of universal primary education. Furthermore, the declaration affirms a commitment to ensuring that “the benefits of new technologies, especially information and communication technologies” are available to all.3 Other UN documents have recognized the centrality of education to development (United Nations 1992, 442). According to the Johannesburg Plan of Implementation, which was adopted by the World Summit on Sustainable Development, “[e]ducation is critical for promoting sustainable development” (United Nations 2002, 61).4 Leaders at the summit agreed Treaty Provisions on Minimum Exceptions and Limitations for Education 159 that it was essential to consider the resource constraints on educators and to mitigate the serious financial constraints faced by many institutions of higher learning (ibid.). The Millennium Declaration and its implementing processes can and must inform the implementation of WIPO’s Development Agenda. As a UN agency, WIPO is bound to observe the principles of the Millennium Declaration. If education is essential to development, then the international IP regime must be guided by concerns respecting education. MINIMUM EXCEPTIONS AND LIMITATIONS IP law serves a public interest objective. By rewarding creative activity by granting limited exclusive rights, IP law attempts to enable society to benefit from creative activity. Possible financial rewards create an incentive to create new...



Subject Headings

  • Law and economic development.
  • World Intellectual Property Organization.
  • Intellectual property.
  • Intellectual property (International law).
  • World Intellectual Property Organization.
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