[A2k] KEI intervention on Library Access to Orphan works, at SCCR 27

Jamie Love james.love at keionline.org
Thu May 1 07:33:28 PDT 2014

Source URL: http://keionline.org/node/2001

KEI intervention on Library Access to Orphan works, at SCCR 27

KEI and other NGOs attending SCCR 27 have been able to make interventions
on various articles in the proposed library treaty. On the issue of library
access to orphaned works, KEI's intervention covered the following points,
and made a proposal for text.

1. There is ample evidence that national approaches to providing access to
orphan works is quite diverse.

2. The diversity of approaches have been used by some to express pessimism
that this issue can be addressed in a treaty.

3. In 1996, WIPO addressed the issue of technical protection measures and
rights management information, before there was much state practice. The
1996 WCT and WPPT did not spell out every detail of a solution, but
provided a framework. The USA enacted the DMCA in October 1998, nearly two
years after the text of the WCT existed. Other countries adopted different
methods of implementing the 1996 treaties.

4. In this case, the treaty language would address an obligation to address
access, but not necessarily micro-manage the method of doing so.

5. KEI proposes consideration of the following language:

Members shall provide adequate and effective legal remedies to overcoming
barriers to orphaned works, for libraries.

6. Such an obligation, in a treaty, could be met by a variety of
approaches, but it would require that members act, and do something, to
provide "adequate and effective remedies to overcoming barriers" to access.
The obligation to address the library need for access would be a useful
outcome, and quite feasible to enact.

7. KEI would also like to call attention to one specific measure in the
United States that is specifically focused on library access to orphaned
works. This is:

17 U.S.C. § 108(h) Limitations on exclusive rights: Reproduction by
libraries and archives [2]

There is also a related regulation

§201.39 Notice to Libraries and Archives of Normal Commercial Exploitation
or Availability at Reasonable Price. [3]

8. The Statute and the regulation implementing the legislation provide a
system whereby right holders can avoid the exception if they file a form
with the copyright office that documents the availability of the work at an
affordable price.

9. KEI notes that the US law, 17 USC 108(h), provides libraries a right to
use works in cases where the work is not commercially exploited, and not
available at a reasonable price, during the last 20 years of copyright
protection for that work. KEI does not endorse every feature of this act,
but find it an interesting example of how a government can introduce
measures that improve library access to orphaned works.

10. In closing, the fact that national implementations of orphan work
exceptions are diverse is not a barrier to created a global obligation to
have solutions for library access to orphan works.

Source URL: http://keionline.org/node/2001
[1] http://keionline.org/user/4
[2] http://keionline.org/node/1525

James Love.  Knowledge Ecology International
http://www.keionline.org, KEI DC tel: +1.202.332.2670, US Mobile:
+1.202.361.3040, Geneva Mobile: +41.76.413.6584,   twitter.com/jamie_love

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