Europe – Centre on Knowledge Governance

Is the African Group Proposal on L&Es Consistent with EU Law?

Teresa Nobre / 9 April, 2026

At the 47th session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), the African Group tabled a proposal for an instrument on limitations and exceptions aimed at supporting education, research, cultural heritage, and access for persons with disabilities. For years, discussions at SCCR on limitations and exceptions have been marked by resistance from developed countries to advancing text-based work. This position has started to shift in recent SCCR sessions, with the EU signaling a willingness to engage in discussions on non-binding instruments. However, it remains unclear whether this shift implies a willingness to engage with the African Group proposal. Against this background, we have taken a closer look at how the African Group proposal compares with EU copyright law. Looking at the two frameworks side by side, the gap between them appears smaller than it is often presented. Shifting the focus to the common ground could therefore help make the ongoing discussions at SCCR more constructive. Below is a table with a presentation of the African Group Proposal side-by-side with EU law, organised by topic. A third column summarises the similarities and differences. Expand a topic to see the detailed text. Below the table is further analysis of the areas of convergence and divergence, and a PDF version to download and print. Uses for purposes of education and research Both the African Group proposal and EU copyright law allow Member States to provide for an open-ended exception covering uses for illustration for teaching or scientific research. In this respect, the two approaches are very similar, both recognising that a degree of flexibility is needed to accommodate a wide range of educational and research activities. Beyond this general provision, all key educational and research activities listed in the African Group proposal also find parallels in EU law. EU legislation includes optional exceptions for private copies and quotations, and a range of mandatory exceptions that address key aspects of research and education. These include the text and data mining exceptions, the exception for testing and interoperability of computer programs, the exception for digital teaching activities, and the framework for orphan works. Taken together, these provisions cover a broad spectrum of uses that support research and education, from data analysis and computational research to classroom activities and access to materials. The differences emerge primarily in the conditions attached to these more specific exceptions. EU law often limits them to particular beneficiaries, ties them to non-commercial purposes, or subjects them to additional requirements. The African Group proposal, by contrast, relies on more general standards such as fair practice and purpose-based use. Uses by cultural heritage institutions The comparison in the area of cultural heritage also reveals a strong degree of alignment between the African Group proposal and EU law. Both frameworks recognise the need to enable cultural heritage institutions to preserve works in their collections. The provision in the African Group proposal closely mirrors the corresponding rule in EU law, which allows cultural heritage institutions to make copies of works and other subject matter, in any format, to the extent necessary for preservation. Both frameworks also address access to works held in institutional collections. The African Group proposal allows institutions to provide access to preserved works on their premises, while also permitting the provision of copies for research and study purposes outside their premises. EU law allows cultural heritage institutions to make works available to the public for research and private study through dedicated terminals on their premises. While copies made under the preservation exception cannot as such be used to provide access, access to preserved works may nevertheless be permitted where it independently complies with the conditions of the dedicated terminals exception. In relation to out-of-commerce works, both approaches acknowledge that access should be enabled under certain conditions. The African Group proposal allows uses where suitable licences are not easily available, while the EU framework relies on licensing by collective management organisations, complemented by an exception that applies where such organisations are not sufficiently representative. In practice, the EU system has so far seen limited uptake, with relatively few out-of-commerce works being made available through this mechanism. Other permitted uses The provisions are relatively similar when it comes to access for persons with disabilities. Like the African Group proposal, EU law already allows Member States to provide for an open-ended exception covering uses for the benefit of people with any disability. In both frameworks, the beneficiaries are defined in broad terms and the permitted uses are not exhaustively listed. The main differences lie in the conditions attached to those uses. The African Group proposal requires that the person need the accessible format in order to enjoy the work on an equitable basis with others, while EU law requires that the use be directly related to the disability, non-commercial in nature, and limited to what is required by the specific disability. Cross-border uses are another area where both frameworks build on similar concerns. EU law addresses cross-border situations in three specific contexts: digital teaching activities, the use of out-of-commerce works, and the exchange of accessible format copies under the Marrakesh framework. The African Group proposal takes a broader approach, providing that limitations and exceptions should permit cross-border uses as a general rule, including the circulation of copies made under those exceptions. The picture is different when it comes to remunerated uses. The African Group proposal expressly allows for uses beyond those specifically covered, provided that they are subject to adequate remuneration. EU law, by contrast, only leaves room for additional exceptions in narrowly defined situations of minor importance and subject to strict conditions. Here, the difference between the two approaches is more pronounced, with the proposal offering a broader and more flexible framework than what is currently available under EU law. Additional protections The comparison also shows that both the African Group proposal and EU law recognise the need for safeguards to ensure that limitations and exceptions remain effective in practice, although they approach this issue with different levels of generality. On

Unfair Licensing Practices in the Library Sector

Teresa Nobre outlines a chilling range of practices by publishers to try to restrict the ability of researchers to conduct computational research. From ‘choice of law’ clauses which seek to circumvent EU law, to increased liability and penalties on libraries which fail to police their users. Nobre suggests a series of urgent measures to tip the balance back in favour of libraries and their users, and ultimately in favour of the right to research. This presentation was delivered at the User Rights meeting in Geneva on 17 June 2025. The full text is available below. The transition to licensing We have transitioned from a sales-based model in printed publications to a licence-based model in digital publications. What happens is that even if you have a fit-for-purpose framework that allows libraries to make certain uses of copyrighted works, they still need to rely on licences to have a first access to the material, and that gives publishers a lot of power in determining what libraries can and cannot do with the licensed materials, even if you have exceptions that allow them to make certain uses. Communia’s research We know that these licences tend to be subject to confidentiality agreements, which means that we don’t know what are the terms of these licences. Communia is a non-profit based in Brussels, we have been involved in copyright reform for many years, we have been coming to the SCCR for many years, and we decided in February this year, we invited licensing managers, so people that are from the library sector, public library and academic library sector in Europe, we invited them to come to Brussels and we held a Chatham House rules meeting. We also invited the European Commission to attend this meeting and observe this meeting. And this environment where people could not attribute each other was the right environment for licensing managers to come and talk about the issues that they are facing with the licences, so the unfair licensing practices, the unfair terms that they are being subject to. So I will be mentioning some of those practices, and I will start with a very hot topic right now, which is the topic of AI, but also text and data mining for scientific research. Maybe I should also tell you that in addition to inviting librarians to come and talk to us in private, in front of the Commission, we also invited them to share with us in confidence clauses that they considered unfair, clauses that are part of those licensing agreements or licensing offers. Efforts to Circumvent the European TDM Directive Maybe here for those that are not European, I should give you a bit of a legal context of Europe. In Europe, six years ago we passed a new directive that guarantees that researchers in Europe can make text and data mining uses of copyrighted materials for scientific research. So we have a mandatory exception for these research uses. And this mandatory exception is protected against contractual overrides. And what does that mean? It means that if a licence says that you cannot make those uses, you don’t need to follow the licence because the law, the European law, protects you. And what we realised, and we were very surprised, that publishers were actually concerned about prohibiting these uses in Europe when we have a law that allows these uses and prohibits contractual overrides. But that was indeed the case. So we noticed, and they told us, that since 2023, so place it at the same time where generative AI is raising, suddenly all the contracts are saying library users cannot conduct text and data mining on e-books and e-journals that are available in the libraries. They cannot conduct any related AI uses with those materials. ‘Choice of Law’ clauses And surprisingly, what was interesting to see was that, well, they were actually concerned about putting those prohibitions in those contracts, although the law would not allow for those prohibitions, because they could circumvent the EU policy, the EU law, and our contractual overrides prohibition by selecting a law that’s outside of Europe. So we know that ‘choice of law’ is typically a clause that the parties need to negotiate and takes time to negotiate. Everyone wants to choose their own law. But in this case, by choosing a law that’s not the national law where the library is located, meaning that’s not the EU law which would protect these uses against contractual overrides, they are able to circumvent basically the EU law and the prohibition of contractual overrides. And that’s enough. So imagine all of the work that we have done throughout the years to have exceptions in place, exceptions that are protected against contractual overrides, is simply circumvented by a choice of law clause. I’m going to give you an example of what prohibition of AI uses in these licences means. And, you know, there’s different ones. And you can see in our report, we gave some examples of it. Prohibition of AI-enabled browsers But publishers go as far as prohibiting the use of browsers with connected AI functionality. People, nowadays, there’s no browsers that do not use AI. And publishers are prohibiting the library users from using browsers with AI functionality. This is how far it goes. We saw different variations of this. For instance, you see one that’s very simple, straightforward. You cannot conduct text and data mining, which is exactly what the EU law allows you to do. And when it comes to the choice of law, I think typically what we are seeing is that they are choosing U.S. law, maybe because the U.S. law right now, it’s not very clear if it allows these sort of uses or not. If it’s a UK publisher, they will select the U.K. law, which also doesn’t permit as many text and data mining uses as the EU law. So this is the first, let me say, the first category of obstacles and really