[A2k] IP-Watch: At WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With Author

Thiru Balasubramaniam thiru at keionline.org
Thu Dec 18 23:44:05 PST 2014


At WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With

18/12/2014 BY CATHERINE SAEZ <http://www.ip-watch.org/author/catherine/>,

During the recent meeting of the World Intellectual Property Organization
copyright committee, a study was presented on exceptions and limitations to
copyright for libraries and archives at the national level. The
presentation spurred a full day of discussion about how to ensure libraries
can continue to provide an indispensable service, and a substantive
exchange with the author.

The 29th session
<http://www.wipo.int/meetings/en/details.jsp?meeting_id=32094> of the
Standing Committee on Copyright and Related Rights (SCCR) took place from
8-12 December.

On 10 December, Kenneth Crews, former director of the copyright advisory
office at Columbia University and now in the private sector, presented an
update <http://www.wipo.int/edocs/mdocs/copyright/en/sccr_29/sccr_29_3.pdf>
of his 2008 WIPO-commissioned study on Copyright Limitations and Exceptions
for Libraries and Archives (*IPW*, WIPO, 12 December 2014

The study provided safe ground for broad discussions on the sensitive issue
of exceptions and limitations, and the role of WIPO in the issue, with a
large number of countries taking the floor to offer comments on the study
and its findings, providing specific details on their own legislation
and/or asking questions.


Mexico, for example, asked whether there was a general movement leading to
a harmonisation exercise in international copyright law.

Crews answered there was no movement toward an era of harmonisation, but
harmonisation could be an answer in the field of limitations and exceptions
if it left sufficient policy space to countries.

On the one hand, he said, “there is virtue in harmonisation, in allowing
for the predictability of the law … as your business activities move from
one country to another.” It makes the law easier to understand, and easier
to address some of the issues of cross-border exchange..,” he said.

But the major disadvantage of harmonisation would be the loss of
opportunity for countries to “experiment, test new ideas in lawmaking, and
to move in some new directions,” he added.

Maybe the answer lies in the middle, said Crews: harmonise the law to a
certain extent, “and then leave some of the details to individual

The European Union delegate remarked that even in an integrated legal
system such as the EU, very few exceptions to copyright are mandatory for
EU members. Member states “remain free to implement most of the exceptions
in the EU legislation in their national systems,” he said.

Implementation Issues

Tunisia stressed the issue of the implementation of copyright exceptions
and limitations in developing countries, particularly for libraries.
Libraries often are “fearful of the complications,” referring to the
exceptions and limitations legislation, and simply do not use it,
preferring “what is possible and available,” he said

Crews said it is important to find “the right formula” for drafting a
statute that is detailed enough that users are law-abiding citizens, “and
at the same time not be so complicated in the structure of the law that it
is difficult or impractical for most – even trained professionals – to

Cross-Border Exchange, TPMs

Brazil said the study sheds light on certain areas where further
cooperation would be welcome. The Brazilian delegate said this cooperation
could take into account the dynamic evolution of digital technologies and
the “growing cross-border cooperation among libraries and archives.”

The delegate said some factors pose concrete problems for cross-border
cooperation, such as the fact that some 33 WIPO members do not provide
exceptions for libraries, and a higher number of countries do not provide
exceptions and limitations that “could be deemed adequate” to address the
new challenges created by the digital environment, and limitations and
exceptions provided by national legislation vary deeply from country to

Now that the research has started with the 2008 report has been updated, we
can see that from the universe of the WIPO membership 33 countries still do
not provide limitations and exceptions for libraries and archives in their
national legislation. A even greater number of WIPO members do not seem to
provide limitations and exceptions that could be deemed adequate in order
to address the new challenges libraries and archives increasingly face with
the emergence of the digital environment

He also said the study states that technological protection measures (TPM)
can have a negative impact on countries’ ability to “legitimately implement
exceptions and limitations,” which is a “growing concern as countries seek
to better regulate and avoid abuses in the use of TPMs.”

Crews said the issue of cross-border activity and the difficulty in
cooperation between countries induced by the difference in laws is perhaps
one of the most important that WIPO could address. Part of the solution to
that problem might be a trusted third party facilitating the transfer of
copyrighted works, he said. A sharing of resources should be allowed while
protecting the interest of right-holders, he said, “so that they can
participate in this and encourage this activity as well.”

Many developing countries keep insisting that the major issue for libraries
and archives is the digital era. The digital revolution “has barely begun,”
Crews said. “The transformation of technology and the way we communicate
and the way we share information is only beginning, so it is important not
to prescribe exact details, but … to take some steps to open up the issue,”
he said.

Chile also underlined the fact that the study showed a low number of
countries providing exceptions for interlibrary loans.

According to Crews, using licences for cross-border activities is limited
to the countries which the licence covers. The risks of having licences as
a solution to cross-border exchange is that “it leaves the terms to private
negotiations,” and many countries might not have laws on licensing.

Licensing Agreements

Sweden said the country has a dual system: “traditional limitations” in the
law or preservation and replacement, for example, and a licensing agreement
system. The two systems run side-by-side smoothly, he said.

Crews said that the licensing agreement system is not adaptable to all
countries. “There are many reasons why it has not been adopted” in some
countries, he said, adding, “I would express some concern about requiring
it as an international matter.”

The European Union said exceptions and limitations and licences often
coexist well. Those licences are often collectively negotiated, said the EU
delegate, and sometimes cover broader uses than the exceptions themselves.

Crews said conceptually in the law-making process, countries need to reckon
with the relationship not only of the rights of owners and the public
rights of use or the copyright exceptions, but also the role of licences,
and should they be allowed to override an exception that is in the law.

“That is a tough question,” he said. “It not only goes to the balance of
rights,” he added, but lawmakers should decide to what extent an agreement
can impede the statute they have worked hard to develop.

Countries Provide Clarifications, New Legislations

Some countries provided clarifications or additions to the study. For
example, Saudi Arabia, which was mentioned in the study as one of the
countries with no exceptions and limitations, said the 1984 copyright law
provides an exception in paragraph 3.

Ecuador said it is working on a substantial reform of its current
intellectual property legislation, including exceptions and limitations for
people with disabilities, teaching and educational institutions, and
libraries and archives.

China said it is undergoing the third revision of its copyright law, and
Thailand said in November it passed an amendment to its copyright law, on
TPMs, and this amendment includes an exemption for the circumvention of TPM
for libraries and archives, educational institutes, and public broadcasting

Crews said many countries, including the United States and those in the
European Union, have exceptions for TPMs, with two basic procedures: an
exception that allows the user to “do the act of circumventing the measures
to access the content,” and a legal system that calls on the rights holder
to provide the means to users to access the content.

The United States said the US Congress is currently reviewing elements of
its domestic copyright law, including library-related exceptions and

In November, the Czech Republic introduced a new amendment to its copyright
system, the delegate said, “and the amendment brought a new exception for
libraries and archives and for other cultural and educational institutions
and for public broadcasters,” enabling them to use orphan works existing in
their collection, under specific terms and for certain specific uses.

NGO Questions and Comments

The representative of the Electronic Information for Libraries (eIFL) asked
Crews how WIPO, as a United Nations agency with a commitment to enhance
developing countries’ participation in the global innovation economy, could
support countries to be at the forefront of digital developments. The
representative also asked how libraries can accommodate their increasing
need to send and receive information across border, within the realm of
copyright law.

Many countries have either no exceptions, or have exceptions but very
limited applications, which do not cover digital technology, Crews said,
adding that WIPO is in a position to shape the next model.

The International Publishers Association said that legislation is one thing
but to know whether they are implemented and how they work is another. The
representative advised looking at what kind of practice, and also practical
initiatives between stakeholders can solve issues at stake.

In many cases, the representative said, issues are solved by alternative
means, citing collective licensing, but also solutions bringing together
stakeholders, he said, which provide space and flexibility for adaptation
and further change. On cross-border document delivery, he said, “It is not
true that documents are not crossing continents or crossing borders.” He
explained that there are many alternative ways of receiving content across

Crews said he is supportive of alternatives outside of the law, however,
they might not be optimal solutions, he said. In particular, it often takes
no less time to develop those alternatives than writing law, he said. He
added that those alternatives, such as licences, are available only with
respect to certain types of works, whereas statues apply to all types of

“The private extra-legal systems are not going to solve all of the issues,”
said Crews.

The International Federation of Library Associations and Institutions said
the United Kingdom reform of its copyright law includes for the first time
provisions that prevent contracts and licences from overriding the
exceptions and limitations enjoyed by libraries and archives for
non-commercial uses.

The Center for Internet and Society (India) asked about the
interoperability of limitations and exceptions to allow for easier
trans-boundary movement of works. Crews said the trans-border concept
seldom appears in library exceptions. Trans-border sometimes is governed by
copyright law and sometimes by some other part of national law, such as
import and export, he said. Some degree of harmonisation can help with
interoperability, he said.

In general terms, and following an intervention by the TransAtlantic
Consumer Dialogue mentioning public involvement in the discussions, Crews
said, “We are all copyright owners and we are all users of other people’s
copyrights to some extent.”

The public does not realise that they are all owners and users of
copyrighted works on a daily basis, he said, and they need to become
participants in the process.


Knowledge Ecology International asked if the periodical revision of the
Berne Convention’s standards for copyright exceptions, which ended in 1971,
should be resumed. The KEI representative also asked whether the copyright
three-step test contained in the World Trade Organization Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) applies to
specific limitations and exceptions to remedies for infringement, in part
III of TRIPS (Enforcement of Intellectual Property Rights).

Crews answered that the three-step test does not apply to the remedies, or
other matters. The test is on “its own terms applicable to the limitations
and exceptions,” he said.

On the revision on the Berne Convention, Crews said “the answer is yes” but
it is a “bigger subject than we are convened here today to discuss.”

KEI also mentioned a Spanish tax which “apparently” is taken on snippets
from news organisations and asked if this tax does not violate the two
mandatory exceptions in the Berne Convention, which are news of the day,
and quotations.

Crews said the issue might be about the interrelationship of copyright with
other areas of the law. The Spanish tax mentioned might be relative to a
tax law, he said.

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