[A2k] IP-Watch: WIPO Delegates Hear Concerns Of NGOs On Exceptions For Libraries

Thiru Balasubramaniam thiru at keionline.org
Thu Dec 19 06:40:23 PST 2013



WIPO Delegates Hear Concerns Of NGOs On Exceptions For LibrariesPublished
on 19 December 2013 @ 3:13 pm

By Catherine Saez <http://www.ip-watch.org/author/catherine/>, Intellectual
Property Watch

As World Intellectual Property Organization member states launched into
discussions on exceptions and limitations to copyright for the benefit of
libraries and archives this week, non-governmental organisations were given
the opportunity to present their views on the issue. They delivered
vibrant, sometimes contradictory, statements on the opportunity for a
treaty to preserve exceptions in the international copyright system.

The 26th session of the WIPO Committee on Copyright and Related Rights
(SCCR) is taking place from 16-20 December. After two days devoted to the
protection of broadcasting organisations, the focus of the next two days
has been on a potential international instrument providing exceptions and
limitations for libraries and archives.

In their general statements, countries remained faithful to their known
positions. Developing countries generally underlined the necessity of
achieving a balanced international copyright system and their wish to
establish a legally binding instrument, and developed countries were of the
view that the existing international copyright system already provides
exceptions which could be used by libraries and archives.

The African Group said the countries in the group: find it difficult to set
up and understand the existing limitations and exceptions; believe an
international legally binding instrument would enable them to understand
better how they can provide exceptions and limitations for libraries and
archives; and consider that it would provide a mechanism for cross-border
exchange for such entities.

The European Union clearly stated that its member countries were not
willing to consider a legally binding instrument, and said that exceptions
and limitations for libraries and archives did not require the same kind of
action that was taken in favour of visually impaired people, referring to
the recently adopted Marrakesh Treaty to Facilitate Access to Published
Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print

Developed countries, in particular those in the European Union, did not
always stand in favour of a treaty providing exceptions and limitations to
copyright for visually impaired people. In the discussion on libraries and
archives, developed countries are in favour of sharing national experiences
rather than establishing binding new norms.

The United States said it was not in support of norm-setting through treaty
provisions. The delegate also said exceptions and limitations should be
consistent with other member state obligations, including the so-called
three step test.

The notion of three-step test haunted the discussions leading to the
Marrakesh Treaty. It stems originally from Article 9(2) of the Berne
Convention for the Protection of Literary and Artistic Works (*IPW*, WIPO,
14 June 2013) and provides conditions for reproduction.

A large number of non-governmental organisations took the floor on 18
December, with stark differences in the approach of the issue of exceptions
and limitations to copyright for libraries and archives.

Industry, Creators: International Instrument Superfluous

The industry, such as the International Federation of Film Producers, the
Motion Picture Association (MPA), The International Association of Editors
(IPA), the International Video Federation (IVF), the Ibero-Latin-American
Federation of Performers (FILAIE), and the International Association of
Scientific, Technical and Medical Publishers (STM), said that the existing
international copyright framework already provides exceptions and
limitations, and national legislations can be develop to address issues met
by libraries and archives.

FILAIE said that it was in support of the Marrakesh Treaty but that a
balance between society and the rights holders should be maintained. The
IPA said there is no need for change in the international law, and
suggested active legislative assistance to WIPO member states by the

IVF concurred and said effective technical assistance in implementing the
existing international copyright framework should be a focus of the SCCR.

The International Federation of Reproduction Rights Organisation (IFRRO),
in its statement, also said the current international conventions
adequately provide for the establishment of relevant library exceptions in
national legislation, such as reproduction for preservation proposals. The
sharing of experiences ” both in the wording of library and archive
exceptions and practical solutions seems to IFRRO to be the most
appropriate way to enhance the performance of library and archive
services,” the representative said.

“Exceptions and limitations are already part of the toolkit of existing
treaties,” the representative for the International Federation of Actors
and the International Federations of Musicians said. The international
normative framework is providing “a coherent and flexible structure with
just recognition of the contribution of creators to the information society
and knowledge society, and the establishment of exceptions and other
mechanisms providing access for the public to creative content,” he said.

The International Authors Forum concurred with the idea that existing
provisions contain sufficient flexibility and asked that WIPO member states
“will take advantage of the opportunity provided by the WIPO texts for
adequate remuneration for the authors in accordance with the three-step

Libraries, Archive Underline Inadequacies, Support Treaty

Libraries and archivists have a different view of the issue and reported on
problems as they experience them on the ground.

The German Library Association cited a new study published by the European
Commission (Study on the application of Directive 2001/29/EC on copyright
and related rights in the information society [pdf]), and said it “paints a
dire picture of the adequacy of the Directive for exceptions for libraries
in the European Union in the digital environment.”

In particular, the representative said, it “identifies a lack of
cross-border application of exceptions for libraries and a patchwork of
national laws as preventing libraries from fulfilling their functions,” in
particular presenting cross-border issues, he said.

“There is a high level of international copyright protection,” he said, but
“there is no such uniformity of limitations.” To act legally, he said,
“library staff has to know about the limitations and exception, not only in
their own country, the country of origin, but also in the country of
destination of its service.”

The Canadian Library Association said it came to WIPO “to ensure a basic
copyright framework is made available to libraries everywhere, and not just
in Canada to deliver essential information services, and so that other
communities can benefit from the same societal and economic impacts as we
have in Canada.”

Even in Canada, the representative said, libraries’ activities are under
threat, “as increased restrictions such as technology group protection
measures and licensing terms and conditions degrade the environment in
which we work, leaving libraries changing our role to simple market access
intermediaries for publishers.”

For Electronic Information for Libraries, an international framework
establishing basic standards is necessary to avoid increasing inequalities
in public knowledge. “We recognise the theory that the international
copyright framework provides legal space to ensure meaningful limitations
and exceptions,” the representative said, “But when the reality is
different, and the gap between countries is widening, intervention is
required to ensure the integration of key public interest concepts into the
international framework.”

The International Federation of Library Associations and Institutions also
underlined the disparity in national exceptions and limitations making it
impossible for libraries to “competently fulfil our role as intermediaries
between rights holders and users.”


The International Council of Archives (CIA) said a legally binding
instrument will enable cross-border for non-commercial research purposes.
The Societies of American Archivists said “current law prevents us from
using the barrier-breaking technology to reach the shared goals of archives
and copyright law, that is, expanding knowledge and creating new works.”

“The United States, for instance, has some library and archives exceptions,
but they are inadequate and woefully out of date,” the representative said,
listing a number of actions that are not permitted, such as preserving
backup copies of digitised materials. “As for fair use, it is often subject
to costly litigation leaving too many archives hesitant to put material
online,” he said.

Civil Society

Knowledge Ecology International underlined the increasing role of contracts
in eroding exceptions in countries which have statutory exceptions. “We
notice,” the representative said, “that the groups that oppose the library
treaty are strong supporters of treaties for broadcast organisations.”

The Center for Internet and Society (India) supported an international
instrument, in particular from the perspective of developing and
least-developed countries. It would serve two main purposes, the
representative said. On the one hand, it would protect copyrighted works,
and on the other, it would provide greater access to these materials, and
allow the dissemination of knowledge, culture and information, in
accordance with the WIPO Development Agenda.

The SCCR Chair, Martin Moscoso, director of the Peru Copyright Office,
encouraged member states to take the NGOs statements into account.

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