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Africa: Copyright & Public Interest, Artificial Intelligence, Centre News, WIPO, WIPO-SCCR

A Season of Retreats: The Convening Power of the CKG

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One of the most important roles played by the Centre on Knowledge Governance is to create spaces for discussion and dialogue. With our base at the Geneva Graduate Institute, and our access to a network of expertise around the world, we are in a strong position to create spaces for analysis, creative thought and for achieving consensus, with expert facilitation and thematic experts from around the world. The first quarter of 2026 has been a busy season, with CKG helping to convene 4 retreats on 2 continents, involving policy makers, practitioners and experts. See the list below for more details. Also if you are interested in Artificial Intelligence, Access to Knowledge and Human Rights in the Knowledge Economy, don’t miss our upcoming events in Rio and Geneva. Join the conversation with CKG. Meetings we Supported in the First Quarter of 2026 (1) The African Group is made up of the 54 African member states who participate in negotiations at the World Intellectual Property Organization (WIPO). At WIPO the African Group is one of a small number of regional groupings who generally present common positions in negotiations. From time to time they hold consultative and research meetings to share views and obtain input from experts. In February 2026, the Centre on Knowledge Governance was invited to assist in convening a retreat, and specifically to provide expert historical analysis of discussions at WIPO committees on topics ranging from Access to Knowledge to protection of Traditional Knowledge to policies on Artificial Intelligence. The Centre worked with its partners, including the South Centre and the African Union to assist in convening an in-person retreat in Montreux, Switzerland and to provide the requested input. (2) The Group of Like Minded Countries (LMCs) is a more informal grouping of very diverse member state across the Global South who wish to consult and share views on work in the World Intellectual Property Organization. The Centre also received a request via Permanent Mission of Indonesia, who currently chair the Like-Minded Countries group, to support a retreat of Like Minded Country representatives, also in February 2026. This retreat included an Ambassadorial Round Table, followed by a day and a half of discussions between delegates. The Centre worked with a similar group of partners, including the South Centre and Knowledge Ecology International to assist in convening and making specialist inputs to this retreat. (3) The Access to Knowledge Coalition is a civil society grouping which represents educators, researchers, students, libraries, archives, museums, other knowledge users and creative communities around the globe. The coalition works on researching and analysing copyright policies, looking for opportunities to increase access to knowledge. CKG provided an opportunity for the coalition to meet in February 2026 and for its members to interact with government policy makers who represent their countries at WIPO. (4) The Just AI community in South Africa and Africa: We brought together 40 people, including policy makers from Geneva and from African capitals, together with stakeholders involved in the Artificial Intelligence ecosystem in Africa. The meetings included a public one-day conference at the University of Pretoria and a private retreat at the Cradle of Humankind, close to Johannesburg. You can read a full report of this meeting here. Copyright, the Right to Research and ‘Just AI’: Geneva, October 1st 2026 See below for information about our upcoming Conference in Geneva from 1-2 October. Join us for a discussion of Copyright, the Right to Research and ‘Just AI’. If you are a member of the User Rights Network and you would like to make a presentation at the meeting, please apply below: For general participation or attendance please register below:

WIPO-SCCR

Video and Summary of Webinar on the WIPO Limitations and Exceptions Agenda

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The Centre on Knowledge Governance recently hosted a webinar to prepare delegates and stakeholders for the upcoming World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) meeting. Attended by over 70 participants—primarily SCCR delegates—the event provided a forum to discuss the advancing global agenda surrounding copyright limitations and exceptions (L&Es). Following a 2012 General Assembly mandate to develop instruments for libraries & archives, museums, research and educational institutions, and people with disabilities, the committee now faces an important juncture. Member states must evaluate three distinct sets of proposals—put forth by the United States, the African Group, and the SCCR Chair—to determine the foundation for future text-based negotiations. Our expert panel provided insights into the content of the various proposals, exploring the historical evolution of international copyright exceptions, evaluating the practical impact of the specific provisions within the current drafts, and examining how these frameworks align with human rights principles, technological advancements like AI, and existing domestic laws. The panel featured: Below is the video of the event followed by a summary of the inputs. A PDF transcript will be provided shortly. Summary of Main Points (with linked headings) Sean Flynn: Contextualizing the Agenda Sean Flynn, Director of the Centre on Knowledge Governance, opened the session by outlining the historical trajectory of the L&E agenda. He noted that the push for minimum standards is not a new phenomenon, with proposals dating back to 2004 and evolving through milestones like the 2013 Marrakesh Treaty. Flynn also highlighted our ongoing preparatory work to inform these negotiations, pointing attendees to newly published empirical studies that demonstrate the positive or neutral market impacts of well-crafted L&Es. Furthermore, he directed participants to our blog for historical timelines, side-by-side document comparisons, and analyses of WIPO’s recent guides on open exceptions and the three-step test. Jonathan Band: Comparative Document Analysis Jonathan Band, Counsel for the Centre on Knowledge Governance, provided a structural comparison of the active proposals currently before the committee, clarifying that the US submitted two formally separate but conceptually overlapping documents covering education and libraries. He explained that all current texts draw upon earlier member submissions and SCCR consolidation charts developed between 2013 and 2017. Band distinguished the practical utility of each framework, noting that the Chair’s text serves primarily as a structural outline, while the US texts offer high-level guiding principles. In contrast, he emphasized that the African Group’s proposal is the most mature text available, offering treaty-like language alongside specific provisions addressing contractual interference and the three-step test. James Love: The Evolution of the Berne Convention James Love of Knowledge Ecology International traced the historical evolution of exceptions within the Berne Convention, which underwent regular revisions up until its final major update in 1971. He detailed how these early iterations adapted to technological changes, progressively expanding access rights for quotation, public affairs, and teaching. Love explained that the three-step test was only introduced in 1967 as a counterbalance to the newly recognized reproduction right, and was not originally intended to restrict the specific exceptions already codified in the agreement. He argued that WTO jurisprudence supports the view that specific Berne exceptions stand on their own merits and are not subjected to the overarching shadow of the three-step test. Faith Majekolagbe: Evaluating the African Group Proposal Professor Faith Majekolagbe of the University of Alberta Faculty of Law offered a review of the African Group’s draft instrument, noting its strategic alignment with the UN Sustainable Development Goals and human rights frameworks. She highlighted that while the proposal seeks binding international obligations, it grants states the flexibility to fulfill these mandates through either general frameworks (like fair use) or specific statutory exceptions. Majekolagbe commended the instrument’s measures to shield lawful L&Es from contractual and technological overreach—an advancement beyond the scope of the Marrakesh Treaty. However, she also identified structural areas requiring improvement, suggesting that the scope of mandatory exceptions for cultural heritage institutions currently omits modern activities, such as e-lending. Christophe Geiger: Human Rights and Authorship Professor Christophe Geiger of Luiss University, Rome, discussed the African Group proposal’s approach to distinguishing between the interests of authors and those of derivative rightsholders—a nuance that is often lost in international copyright lawmaking. He emphasized that researchers and creators primarily seek attribution and broad readership rather than direct economic exploitation of their scientific works. Geiger also recognized the proposal’s grounding in human rights principles and its openness to statutory remuneration models that directly benefit creators. He urged policymakers to utilize existing academic literature, reminding delegates that research has debunked restrictive, step-by-step interpretations of the three-step test. Margaret Chon: AI and Scientific Translation Professor Margaret Chon of Seattle University School of Law presented her ongoing research into how generative AI could be leveraged to overcome language barriers that restrict equitable access to global scientific knowledge. She pointed out a clear disparity: while over 90% of current scientific literature is published in English, fewer than 25% of the global population is proficient in the language, creating a knowledge bottleneck for innovation. Chon argued that existing copyright frameworks, which strictly treat translations as controlled derivative works, fail to incentivize scientific publishers to translate materials for lower-income or minority-language markets. She suggested that modern AI translation tools provide an opportunity to bypass older mechanisms like the 1971 Berne Appendix, provided that international L&Es are updated to legally permit such public-interest uses. Luis Villaroel: Navigating the Three-Step Test Luis Villaroel of Innovarte, Chile, shared his perspective as a former government official, describing the three-step test as a source of complexity that deters developing nations from adopting public interest exceptions due to the fear of trade sanctions. He stressed the difficulty in achieving legal certainty when interpreting the test’s ambiguous standards. Building on the legislative history of the 1967 Berne revisions, Villaroel advocated for the “specialty principle,” asserting that specific exceptions with their own agreed-upon standards must prevail over the general constraints of the three-step test. He recommended amending the African Group proposal to explicitly reject narrow interpretations of exceptions and

WIPO-SCCR

Analysis of Agenda Items for WIPO SCCR 48

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This note provides background information, links to recently published research and analysis, and descriptions of the issues in the agenda for the 48th meeting of the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights, May 18-22, 2026. To view this document as a PDF for downloading and printing, click here. The Standing Committee on Copyright and Related Rights (SCCR) has long focused on two long-standing agenda items: the Treaty for the Protection of Broadcast Organizations (since 1998) and Limitations and Exceptions for libraries, archives, museums, education, research, and persons with disabilities (since 2004, SCCR/12/3). The SCCR has also been considering various initiatives around copyright in the digital environment since its inception in 1998. Several other matters have been introduced to the agenda over time, including consideration of resale royalty rights for artwork, the rights of theatre directors, and “public lending rights” — which refer to charging libraries for lending public copies of copyrighted works. I. Protection of Broadcast Organizations A. Background B. Current Issues II. Limitations and Exceptions A. Background B. Current issues III. Other matters A. Copyright in the Digital Environment B. Resale Royalty Right C. Rights of Theatre Directors 10 D. Other Studies 10 I.Protection of Broadcast Organizations A. Background The negotiation of the rights of broadcasters was included on the SCCR’s agenda at its founding in 1998. It follows and extends a history of WIPO treaties on broadcasting dating to the Berne Convention’s protection of the rights of authors to their broadcasts in 1928 (Art 11bis), recognition of the rights of broadcast organizations to control uses of wireless broadcasts in the Rome Convention of 1961, and recognition of duties of countries to control unlawful interception of satellite signals by any means in the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974). The Broadcast Treaty is being drafted according to the GA Mandates of 2006 and 2007. The central question for the Broadcasting Treaty, in line with the 2007 General Assembly Mandate, is whether there is sufficient “agreement on objectives, specific scope and object of protection” to warrant a recommendation for a diplomatic conference. (WO/GA/34/16). The 2006 GA mandated that the Broadcasting Treaty be “confined to the protection of broadcasting and cablecasting organizations in the traditional sense” and “based on a signal-based approach” (WO/GA/33/10, para 107, 2006). B. Current Issues The changes in the latest draft are minimal. The SCCR 45 Chair’s Summary described the general zone of consensus on the committee on its objectives, scope, and object of protection: “[w]ith respect to objectives, there is common understanding … that the treaty should be narrowly focused on signal piracy, should not extend to any post-fixation activities and that it should provide member states with flexibility to implement obligations through adequate and effective legal means” and “that the object of protection (subject-matter) of the treaty is related to programme-carrying signals linked to linear transmission”. Some of the provisions in the Chair’s draft appear to extend beyond the bounds of the consensus described in SCCR 45 and in the GA mandates from 2006 and 2007. Some of the major issues include: Are fixation and stored programs rights “signal-based”? The GA mandates require that the Broadcast Treaty follow a “signal based approach.” The Rome Convention uses a “rights-based” approach — i.e., giving broadcasters exclusive rights such as transmission and fixation. The Brussels Convention follows a “signal-based” approach, requiring prevention of signal theft by any regulatory means, without requiring or promoting exclusive rights. There appears to be a consensus on the Committee that, at least in principle, the inclusion of article 10’s flexibility to use other regulatory means combined with some optional exclusive rights (arts. 6-9), in what has been called a “hybrid” approach, can meet the GA requirement that it be “signal-based.” But some countries have opposed articles 7 (fixation) and 8 (stored programs) as being beyond the GA’s mandates.            a. Fixation (Art. 7) Extending the treaty to a right of fixation (Art. 7) essentially means that a user would have to get permission from a broadcaster to make a copy of broadcast content, even if that content was lawfully received (e.g. by a subscriber). That could enable broadcasters to charge subscribers extra for the right to record content, even for uses that copyright law normally permits. For example, a broadcaster may be enabled to demand additional license fees to use private recording devices to enjoy content at a different time or on a different device. Or broadcasters could require licenses to make recordings for any use not included in limitations and exceptions, such as recordings for educational, research, or preservation uses by cultural institutions.           b. Stored Programs (Art. 8) Extending protections to uses of stored programs could enable broadcasters to exclude uses of third-party recording devices and thereby obtain market power for such services. The right to record broadcast material for personal time or device shifting dates to the introduction of video cassette recorders in the 1970s. There are often markets for third party digital recording devices for broadcast material, such as the TIVO device that was popular in the US for many years. Some countries may want to authorize more sophisticated third-party recording, such as the system that was held in the US to violate broadcaster rights in American Broadcasting Cos., Inc. v. Aereo, Inc., 573 U.S. 431 (2014), which ruled that Aereo’s service—which allowed subscribers to view live, over-the-air television broadcasts over the internet—violated copyright laws.      2. Should limitations and exceptions apply to all uses permitted by copyright? Public interest groups have frequently opined that the limitations and exceptions to any broadcasting organization’s right should extend at least to all uses permitted by copyright, for example, by changing the use of “may” to “shall” throughout Article 11. Otherwise, a public interest user may have to clear broadcast rights even for a use permitted by copyright.      3. Are internet streaming companies “traditional” broadcasting? The GA mandates require

WIPO-SCCR

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

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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

WIPO-SCCR

Comparison of Limitations and Exceptions texts for SCCR/48 (Update)

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At the most recent meeting of the Standing Committee on Copyright and Related Rights of the World Intellectual Property Organization (SCCR/47),  four documents were presented that could serve as a starting point for text-based work at the next meeting in May 2026 (SCCR/48) in accordance with the Work Program on Exceptions and Limitations (SCCR/43/8 Rev.) adopted by the Committee in 2023: Below is a table that compares these proposals. The two proposals from the United States are combined in a single column; and the African Group Proposal and the Chair’s text each have their own columns. The table demonstrates that there are significant areas of commonality among all four documents; and even more between the Chair’s text and the African Group Proposal. This suggests that further text-based work in the Committee towards an international legal instrument or instruments concerning exceptions and limitations can start with these documents. You can also view, download and print this document as a PDF below:

Libraries, WIPO

How Access Provisions Grow Readers and Book Sales

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Digitization projects, public libraries, and broader access to literary materials help create copyright markets. Together, these access infrastructures build the literate public and long‑run demand that copyright ultimately depends on. In 2016, the Delhi High Court was asked whether photocopied course packs for university students unlawfully undercut the market for academic books. The Court’s decision ruled in favor of the course packs, in part by finding that “by producing more citizens with greater literacy skills and earning potential, in the long run, improved education expands the market for copyrighted materials.”[1] This note surveys the evidence that supports the court’s finding.[2] First, studies show that digitization projects, such as Google Books, which make works easily searchable and partially readable online, can increase, rather than depress, print sales. Second, scholarship shows that access through public libraries and free lending only modestly displaces the bestseller margin with little measurable impact for the long tail of titles. Third, by examining scholarly culture in households along with policy syntheses on school libraries, studies explain how early and repeated access to books during formative years builds durable reading habits, longer educational trajectories, and the kinds of literate text‑using adults on whom creative and academic markets ultimately depend. Taken together, these strands do not prove the Delhi High Court’s dictum in a single econometric stroke, but they offer a coherent anecdotal scaffolding for its core intuition that investments in access and education can expand, rather than extinguish, the market for copyrighted works. Google Books Digitization and Print Book Sales The Google Books case offers a natural experiment on whether free digital access necessarily cannibalizes print sales. When the project was launched, publishers argued that searchable, partially readable copies online would undermine the market for physical books.[3] They litigated this claim to the U.S. Supreme Court, which ultimately held that Google’s secondary use was protected by fair use.[4] In 2023, two economists revisited the publishers’ anxieties by exploiting the way Harvard’s Widener Library contributed its pre‑1923, out‑of‑copyright holdings to Google Books. Volumes were scanned in shelf order between 2005 and 2009, rather than by demand or popularity, so the timing of digitization for any particular title was effectively arbitrary. The authors track 37,743 of these titles and compare their print sales in the two years before the main scanning period (2003–04) with sales in the two years after (2010–11), asking whether books that happened to be digitized followed a different path from otherwise similar books that were not. Because digitized titles are fully text‑searchable and viewable online, they function as discovery tools. Readers can find them via keyword search, skim a few pages, and then decide whether to purchase a physical copy.[5] Their results show that digitization can expand, rather than erode, the market for many books. Roughly 40% of digitized titles see an increase in print sales over the study period, compared with fewer than 20% of titles that were never scanned, and on average being searchable and readable on Google Books is associated with an increase in physical sales of up to about 8%. The effect is most pronounced for relatively obscure works in the long tail, not for the handful of titles that already sell well. The authors also find a spillover. Once readers discover a digitized work by a given author, they become more likely to buy that author’s other, non‑digitized titles. Taken together, the findings suggest that large‑scale digitization and free online discovery can serve as an access infrastructure that helps surface neglected works and stimulates demand across an author’s catalogue, complicating simple claims that free digital access must be bad for print markets. Effect of free access through libraries on print sales In 2022, a study of the Japanese public library systems showed that free access through public libraries modestly displaces sales only for bestsellers and has a minimal detectable effect for most other books. Kanazawa and Kawaguchi analyze Japan’s dense public library network by building a title‑municipality‑month panel that links, for each book, how many copies local libraries hold to how many copies nearby bookstores sell over time. Their empirical strategy controls for fixed differences across titles and municipalities, for the typical life‑cycle of sales after publication, and for municipality‑month shocks, so that the remaining effect can be interpreted as the impact of additional library copies on local retail demand. Within this framework, they find that library holdings substitute for purchases at the very top of the demand distribution, but not elsewhere.[6] For the most popular sixth of titles, each additional library copy reduces monthly bookstore sales in the municipality by about 0.24 copies, and for bestsellers the estimated displacement rises to roughly 0.52 copies per month. By contrast, for the majority of less popular titles, the estimated effects are statistically indistinguishable from zero. Adding library copies does not measurably change local sales. Across robustness checks, this pattern holds, suggesting that in a highly literate, library‑rich country like Japan, public libraries have a small amount of demand for already successful books but do not “destroy” the long tail of the market. As an access infrastructure, then, they provide broad reading opportunities while leaving most of the book market intact. How Early Access to Books Builds Lasting Reading Habits Household scholarly culture and school‑library studies show that early, repeated access to books helps build the readers on whom later creative and academic markets depend. In their cross‑national work on 27 countries and later across 31 societies, Evans, Kelley, Sikora, and Treiman find that growing up in a book‑rich home is strongly associated with more years of schooling and higher occupational status, even after controlling for parents’ education, class, and occupation.[7] On average, children from homes with a substantial number of books complete about three more years of education than those from bookless homes, and the size of this effect is comparable to having university‑educated rather than unschooled parents. A follow‑up study shows that home library size also predicts entry into higher‑status, more knowledge‑intensive jobs, mostly because it channels children into longer

WIPO

New WIPO Guide Casts Doubt on Open General Exceptions

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WIPO’s new Guide to the Copyright and Related Rights Treaties Administered by WIPO (2nd ed.) contains some complicated messages on the use of open general exceptions, like fair use and fair dealing. Open General Exceptions in Copyright Others and I have described open general (OG) exceptions as open in the sense of applying to potentially any use of any work by any user for any purpose, subject to a proportionality test (such as “fair practice,” “dealing” or “use”) that balances the interests of the rights holder with those of the user and the public (see User Rights Database). The U.S. fair use provision is frequently cited as the primary model of an open general exception. But many “fair dealing” exceptions are also open (e.g., Malaysia), as are many specific exceptions such as for “research” that exist in many civil law countries and can be applied quite flexibly. OG Exceptions and the Three-Step Test There is a long-running debate in international copyright law and policy about whether fair use and other open general exceptions violate the so-called three-step test in the Berne Convention, and replicated in subtly different forms in other copyright treaties. The Berne version of the three-step test provides: It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. The US Copyright Act provides an exception “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” provided the use is “fair” considering the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of use, and the effect of the use upon the potential market for or value of the copyrighted work. The debate about whether fair use complies with the three-step test revolves around the inclusion of the opening term “such as” before the listed permissive purposes for a use. The legal question in the three-step analysis is whether that opening clause renders the exception applicable to uses beyond “certain special cases.” The New Guide’s Approach The new WIPO Guide begins with a refutation of the old idea, perhaps first published in a WIPO document by a report authored by Sam Ricketson early in the SCCR’s work on limitations and exceptions, that the US fair use exception is in violation of the Berne three-step test because its application to purposes “such as” the listed purposes is not adequately confined to “certain special cases.” Ricketson (2003, p.67) had concluded that “it is unlikely that the indeterminate ‘other purposes’ that are covered by Section 107 meet the requirements of the first step of the three-step test”. The report concludes differently, explaining: BC-9.25. With this interpretation of the adjective “certain”, it is easier to reject the assertion that the US “fair use” doctrine and practice may not be in accordance with the three-step test. The basis of this assertion is that the U.S. Copyright Act does not fulfill the condition of “certainty”, since it does not contain a sufficiently clear definition as required by the above-mentioned interpretation of the WTO panel. Such doubts about the US law, however, are not justified even on the basis of the interpretation adopted by the WTO copyright panel, because they would be based on an overemphasis of an isolated element of the panel’s finding: the requirement of “certainty”. As quoted above, even the panel has clarified that “there is no need to identify explicitly each and every possible situation to which the exception could apply But the report then goes on to suggest that US law only became sufficiently “certain” at some point during its development in case law: BC-9.65. It is to be recognized, however, that these open forms of limitations or exceptions rather than specific targeted provisions in the statutory law may only be an appropriate option if they are based on well-established court practice. For example, in the United States, the “fair use” system is the result of two centuries of development of case law. Simply copying the statutory codification of the voluminous case law on fair use in section 107 of the U.S. Copyright Act into the legislation of another country where such a system has not existed before and trying to settle the questions of limitations and exceptions on that basis might lead to conflicts with the Berne Convention. The idea that open general exceptions may violate the three-step test has been rigorously contested by international copyright scholars. For example, Geiger et al (2013, pp.1-2) conclude, in a rich historical and doctrinal examination, “that the three-step test in international copyright law does not preclude flexible national legislation allowing the courts to identify individual use privileges case-by-case and that the three-step test can serve as a source of inspiration for national law makers seeking to institute flexible exceptions and limitations at the domestic level.” The compliance of general exceptions with the three-step test was strongly supported by the Marrakesh Treaty’s Article 10(3), which permits countries to implement it “through limitations or exceptions specifically for the benefit of beneficiary persons, other limitations or exceptions, or a combination thereof,” which “may include judicial, administrative or regulatory determinations for the benefit of beneficiary persons as to fair practices, dealings or uses”. But the Report concludes that such general exceptions “might only be an appropriate option if there is well-established court practice based on adequately developed criteria.” For example, in the United States, the fair use system is the result of two centuries’ development of case law. A simple copying of the statutory codification of that voluminous and still developing case law of fair use in section 107 of the U.S. Copyright Act – and then trying to settle the questions of limitations and exceptions on that basis in a country without similar

Traditional Knowledge, WIPO

WIPO IGC seeks progress on Traditional Knowledge, Cultural Expressions

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“The oceans that sustain our islands, the stars that guide our ancestors across the Pacific, the songs, the weaving, the navigational charts etched into memories across generations, all of these are more than heritage. They are the living expressions of who we are as a people. We negotiate here on their behalf, and we remain committed that they are protected,” the representative of the Marshall Islands on behalf of all Pacific Island States stated at the closing session of the World Intellectual Property Organization’s (WIPO) Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (the “IGC”), which took place from from 4 to 13 March 2026, in Geneva, Switzerland. This neatly summed up what is at stake for many negotiators at this meeting. In May of 2024, WIPO succeeded in finalising a treaty on intellectual property, genetic resources and associated traditional knowledge after nearly 25 years of negotiation. The treaty, however, will only go into force once 15 Member States have ratified it; to-date only 3 have done so. In the meantime, the IGC is tasked with continuing to progress its work on “the protection of genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs), with the objective of finalizing an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property, which will ensure the balanced and effective protection of TK and TCEs.” This is a significant task at WIPO, as it mandates member states to engage with text on another legal instrument: one that China expressed hope at the opening plenary would not take another 25 years to negotiate. Whether that hope will translate into concrete results is difficult to say; the committee spent much of the week in informal discussions with few major decisions other than to continue text-based discussions on the working documentsWIPO/GRTKF/IC/51/4 (The Protection of Traditional Knowledge: Draft Articles) and WIPO/GRTKF/IC/51/5 (The Protection of Traditional Cultural Expressions: Draft Articles), as well as any other contributions of Member States. One Member State contribution that sparked some discussion was a proposal from the United States and Japan that WIPO disseminate a questionnaire surveying national legislation in WIPO Member States for the sui generis protection of TK and TCEs (see WIPO/GRTKF/IC/52/6), arguing that this would support evidence-based negotiations. Others were concerned such a survey could act to delay meaningful progress towards a workable legal instrument text, which is the IGC’s primary mandate. Some, such as the Africa Group, raised concerns about how such surveys would be financed, what methodology would be used, and on what timeline work could be completed, and reminded delegates that the Committee is tasked “narrow existing gaps instead of adding more work.” The Committee decided that this item would remain on its agenda for further discussion. Also a topic of discussion was the full and meaningful participation of Indigenous peoples in the WIPO meeting, with Tulalip Tribes on behalf of the Indigenous Caucus noting that the voluntary fund which supports their participation was depleted and calling on WIPO to use its core budget to support Indigenous participation. At the launch of the Geneva Knowledge Center law professor Valmaine Toki noted that WIPO has a “flawed process” for Indigenous participation, as these communities who are the owners and stewards of TK and TCEs are not member states and cannot therefore make direct text suggestions. The March 2026 meeting of the IGC also marks the first time the committee has been chaired by an Indigenous person: Laine Fisher of New Zealand, a member of the Māori people. The IGC is taking place in the context of several other multilateral discussions on access and benefit-sharing regimes, including down the street at the World Health Organization (which is discussing pathogen access and benefit-sharing in the context of pandemic preparedness); within the Convention on Biological Diversity Cali Fund, meant to protect biodiversity through an exchange of financing for access to digital sequence information on genetic resources; and the Biodiversity Beyond National Jurisdiction (BBNJ) treaty which is seeking access and benefit sharing for sustainable use of deep sea resources. Final observations The program for IGC 52 was not finalized in time to be circulated in advance of the session. As a result, Member States were not in a position to prepare adequately prior to the meeting. Several delegations therefore requested that, for the next session of the Committee in September, the program be circulated well in advance to facilitate proper preparation. The mandate for the 2026–2027 budgetary biennium provides that activities should not replace the time allocated for substantive negotiations on Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs), as well as discussions on Genetic Resources (GRs). During IGC 52, in addition to the Indigenous panel, two days were devoted to information-sharing sessions, which were not considered part of the substantive or text-based negotiations. Some delegations therefore noted the importance of ensuring that such activities do not reduce the time available for substantive negotiations, in line with the mandate. Decisions of the committee are here.

Design Law Treaty, WIPO

Should WIPO Harmonize Design Protection for Graphical User Interfaces?

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The United States and others have proposed that the World Intellectual Property Organization’s Standing Committee on the Law of Trademarks adopt a Joint Recommendation on Industrial Design Protection for Designs for Graphical User Interfaces. The core of the instrument would recommend “that Member States provide industrial design protection in relation to new or original designs for a graphical user interface (GUI),” and “that the acts considered by a Member State to infringe industrial design rights for a design for a GUI are the same as those considered to infringe industrial design rights for other products.” In considering this proposal, it is important for countries to consider the criticisms of using design law to protect GUIs. The core criticisms of using design law to project GUIs include that GUIs are functional, not merely aesthetic; that using design protection rather than copyright evades the limitations of copyright law that favors competition; that design protection favors larger companies and could reduce innovation by raising barriers to entry.  As the proposal notes, GUIs, such as the icon designs on screens of various kinds, are increasingly ubiquitous in many mobile technologies from smartphones to the navigation screens in cars. Where GUIs contain sufficient originality, they may be subject to copyright protection. But some countries, including the US, also make GUIs eligible for design protection, with important ramifications.  Flexibility in the RDLT The recently adopted Riyadh Design Law Treaty permits, but does not require, countries to extend design law protection to graphical user interfaces. Article 2(1) of the DLT establishes that “[n]othing in this Treaty or the Regulations is intended to be construed as prescribing anything that would limit the freedom of a Contracting Party to prescribe such requirements of the applicable substantive law relating to industrial designs as it desires”. It does not define what constitutes an “industrial design,” nor does it limit the categories of designs that a Contracting Party may choose to protect. Consequently, a national decision to extend protection to virtual, animated, or non-physically embodied designs falls within the substantive autonomy expressly preserved by Article 2(1). Functional Designs? There is a threshold conceptual problem with applying design law to GUIs. Design law is intended to protect ornamental or aesthetic features, not functionality. Critics point out that in GUI design, aesthetics and function are often inseparable. If a layout is the most efficient way to achieve a task, granting protection could stifle innovation by preventing others from using effective user experience patterns. While design patents are intended to protect only “ornamental” (non-functional) appearances, user interfaces inherently incorporate significant functional elements, leading to a system where designers may gain a “functional equivalent” of a utility patent through the design patent system. Evading Copyright Limitations  Expanding design protection to GUIs may allow applicants to evade the inherent limits of copyright law. These include the requirement for originality (not mere functionality) in the expression to gain protection, the requirement to prove copying to establish infringement, and the ability of an accused infringer to assert limitations and exceptions as a defense. In the US, scholars have criticized the granting of design patents that fail to meet the minimal originality required for copyright.  Competitive Effects Applying design law to GUIs may dampen competition in technology markets. Shared conventions – like using similar icons for similar functions — increase interoperability and the ability to compete. Creators of competing products using GUIs often need to use similar icons to ensure usability for consumers. Examples include the gear symbol for settings, or the trash can icon for deletion. Some GUI designs are so constrained by usability, convention, technical architecture, and user expectations that they leave competitors with no meaningful alternative designs that are equally usable. Granting design protection for such elements — requiring their licensing by potential competitors — can lead to a reduced ability to create competing products in local markets.  Distributional Effects The distributional effects of GUI design protection are highly asymmetric: under current systems, design rights are used predominantly by large corporations from industrialized economies rather than by local designers in most countries. Leading filers such as Samsung Electronics, Philips, and LG Corporation illustrate how firms with substantial internal legal capacity and global market strategies are best positioned to deploy GUI design protection aggressively, reinforcing existing technological and economic concentration rather than fostering local innovation.

Artificial Intelligence, WIPO

WIPO Launches Artificial Intelligence Infrastructure Interchange

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WIPO launched its Artificial Intelligence Infrastructure Interchange (AIII) on March 17, which was described as having the goal of supporting the development of AI technology that supports the livelihoods of creators and innovators. The goal has two aspects – making AI tools available to creators to help their work, while at the same time assuring that the works used to create such tools support the moral and material rights of authors.  The key focus is on “infrastructure” that can technically identify AI creations and promote models for creators to use AI as a tool. Assistant Director General Ken Natsume explained that “the answer lies in various tools: Watermarks, metadata, digital ID, authentication tools, digital distribution frameworks.” The AIII’s launch page similarly defines the “IP infrastructure” of its focus as composed of “watermarks, authentication tools, standards, metadata, digital identifiers, rights management and content recognition systems, and digital distribution frameworks … developed by rightsholders and creators to build new business models that safeguard their rights.”  This definition of AI infrastructure is quite different than the broader sense embraced by Public AI advocates. That approach proposes “treating AI as public infrastructure, emphasising democratic governance, broad accessibility, and accountability to the communities that AI systems serve.” The concept of “Just AI” used by the Centre on Knowledge Governance and others is largely congruent with the goals of Public AI, but also raises additional human rights concerns, including the moral and material interests of creators. In this sense, the WIPO AIII focus on tools to enable remuneration and creator opt outs in AI Tools can be seen as promoting some but not all aspects of a Just AI vision.  At the launch event, participants described the goal of AIII as providing a neutral forum for creators, rights holders, developers, and experts to share information on the development and use of such tools, including tools that can be used in the creation process. Music and voice or actor simulation models are a core focus of the project. These are areas where AI tools have the potential to create content that competes with the works used to train them. In such areas, the justification for using highly licensed tools and giving creators maximum ability to opt out of their content being used in training is at its apex.    The WIPO project has created a “Technical exchange network (TEN)” where technical experts from the private sector, including academics and civil society, will share information on the development and use of content identification tools. There will also be an annual public meeting of the project and a government expert group that will share information with policy makers about such infrastructure and exchange on national developments.

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