Panellists Outline Strategies On Exceptions And Limitations To Copyright

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By Kaitlin Mara
An event at the World Intellectual Property Organisation (WIPO) last week brought some key actors in copyright and related rights to discuss the value of limitations and exceptions and to present a recently released study describing an international instrument on limitations and exceptions.

At the outset, Carolina Sepulveda from Chile’s Ministry of Foreign Affairs suggested that exceptions and limitations should be seen as “part of the intellectual property system and not a parallel system to circumvent IP rights.” A balanced legal framework, she said, must account for “the conciliation of different interests that exist in a society.”

Chile, along with Brazil, Nicaragua and Uruguay, submitted a proposal for the WIPO Standing Committee on Copyright and Related Rights (SCCR) to undertake work in finding and analysing national practices in exceptions and limitations and in establishing an agreement on minimum standards for access (IPW, WIPO, 14 March 2008).

The 11 March side event to the weeklong SCCR meeting was organised by the Electronic Information for Libraries, the International Federation of Library Associations and Institutions, Knowledge Ecology International, and the Library Copyright Alliance.

Benjamin White of the British Library, the United Kingdom’s national library, spoke of a quantitative evaluation method undertaken by the library to discover its direct economic benefit to UK society. They found that the library gave 4.4 times the monetary value back to society as was originally invested. Access to the information held in libraries is vital for education, for creativity, for culture, and for industry, said White, adding that limitations and exceptions to copyright laws are key to ensuring this access.

Copyright law as developed to keep pace with the digital age also contains provisions that do not make sense in a library environment, White said. Specifically, preventing the copying of licensed material is problematic for libraries that need to archive their material. It is impractical to imagine a library waiting five years to archive a book, he said, let alone life plus 70 years, the typical length for copyright. White said that “over 90 percent” of contracts offered to the British Library undermine copyright law.

Digital rights management, which also limits the number of copies one can make of a proprietary work, might present a problem for libraries that will need to be able to store data far into the future when current software may no longer be supported and technical barriers to copying or altering the format of a work might lead to its being inaccessible for future generations.

White ended by arguing that copyright must strike a balance between private and public interests and that laws must be aligned with realities in a way that makes sense to and will thus foster respect for copyright.

Hugenholtz-Okediji Report

A new report by Bernt Hugenholtz of the University of Amsterdam’s Institute for Information Law and Ruth Okediji of the University of Minnesota’s Law School, and presented by Sisule Musungu of IQ Sensato and Yale Law School, called the task of creating an international protocol for limitations and exceptions “one of the major challenges facing the international copyright system today.”

Citing the continued need of many individuals worldwide for access to education and to books and the increasingly vital role of information access in a knowledge-based economy, the report [pdf] called for a global instrument that can both protect the rights of authors and creators and simultaneously ensure that information is accessible for the public good.

Musungu quoted the report in describing the key features of such an instrument, that it: eliminate barriers to trade, especially on information service providers; facilitate and promote tangible information products; provide a framework for the promotion of freedoms and provide for consistency and stability within the international copyright system (rather than having fragmented rules based on bilateral agreements).

The authors suggest a system in which limitations and exceptions are clustered into their groups based on their particular function in society, for example, if the exception would promote innovation or protect vulnerable groups. Within each such cluster, limitations and exceptions would be subdivided into “mandatory” and “permissive” based on importance. Those falling into mandatory category would be considered global public goods and their protection backed by international law, whereas states might choose individually on permissive limitations. A mandatory exception might cover reverse engineering or incidental copying under “innovation promotion,” says the report, where a permissive exception might cover “format shifting of works.”

The report says that initially a global instrument should be “cast… in soft law” as it would be easier and speedier to negotiate and also to alter. Its authors state that a “joint initiative between WIPO and the WTO could be an ideal and appropriate expression” of this instrument.

James Love of Knowledge Ecology International, in a presentation entitled, “The Overlooked TRIPS Flexibility,” argued that there is a “little known provision” for exceptions and limitations under international law, specifically in Article 44 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Article 44 deals with injunctions for intellectual property rights infringement. Love said that its first paragraph, 44.1, makes it “clear that injunctions for infringement can be optional” and that Article 44.2 allows for “injunctions [to be] be eliminated entirely, in cases where right owners receive remuneration or compensation.” The specific statement to which Love referred reads: “where these remedies [i.e., injunctions] are inconsistent with a member’s law, declaratory judgments and adequate compensation shall be available.”

Love cited a 2006 legal case involving eBay [pdf] in which the US federal court of appeals found that the online auction site was infringing on a legitimate patent held by company MercExchange, but invalidated MercExchange’s request for a permanent injunction in part because the district courts had failed to prove “the public interest would not be disserved by a permanent injunction.” Love said the court used the flexibility in Article 44.1, to “effectively issue compulsory licences,” instead of enforcing an exclusive right.

Love argued that more flexibility exists in TRIPS Article 44.2, where “use by governments, or by third parties authorised by a government,” are involved, or even more generally, where injunctions “are inconsistent with a member’s law.” In those cases, laws can provide that governments or courts provide only for “adequate” remuneration or compensation for use.

Kaitlin Mara may be reached at kmara@ip-watch.ch.

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