WIPO Members Favour Library Exceptions, But By Different MeansPublished on 2 May 2014 @ 11:22 am
By Catherine Saez, Intellectual Property Watch
The World Intellectual Property Organization copyright committee this week has sunk its teeth into the issue of exceptions and limitations to copyright for libraries and archives. Some countries are pushing for a treaty to establish such exceptions while others find that the existing copyright system provides for it.
The 27th session of the Standing Committee on Copyright and Related Rights (SCCR) is taking place from 28 April to 2 May.
The weeklong meeting is split into two main subjects. First was a proposed treaty to protect broadcasters’ rights, which was discussed during the first two-and-a-half days. SCCR delegates then turned their attention to exceptions and limitations for libraries and archives.
There is not yet agreement on how exceptions should be granted. Some countries are seeking a treaty, some others, mainly developed countries, are of the opinion that the current copyright system provides for such exceptions and this issue should be dealt with at national level.
Delegates are working on a document [pdf] with a long-winded title echoing the divergent views on its status: “Working Document Containing Comments on and Textual Suggestions Towards an Appropriate International Legal Instrument (in whatever form) on Exceptions and Limitations for Libraries and Archives.”
The document contains 11 topics displaying textual proposals from countries, as well as a number of comments on those topics by delegations. This format has been criticised by some countries, mainly developing countries, which would like to group all the comments in a separate annex to the text so that it starts to resemble a treaty text.
This option does not have the favour of developed countries, which prefer keeping the text in its current form, such as the United States, Group B of developed countries, and the European Union. The US said they cannot agree to limit the document to only text in the form of treaty language, and the EU said all views expressed during the previous standing committees “should be duly reflected in the document.”
Beyond the form of the text, positions diverge on the use of this text. Developing countries are generally in favour of a treaty, such as the African Group, the Latin American and Caribbean Group (GRULAC), Bangladesh, India, Iran, and Mexico.
Some developed countries confirmed this week that they were not prepared to consider a legally binding instrument. Group B said that they understand that the goal of the SCCR’s work should be the promotion of the exchange of national experiences.
The African Group, a strong proponent of an international treaty, said the exceptions and limitations as they currently stand are not sufficient to enable libraries and archives to perform their services efficiently. This fact is emphasised by the move toward a digital environment, said the Kenyan delegate, on behalf of the African Group.
“This new development was not foreseen in the current copyright regime,” and existing provisions on exceptions and limitations need to be revisited to provide for the change in technology,” the delegate said. This would allow facilitated access to knowledge and avoid a “book famine where the authors would be discouraged from further creativity.”
Librarians and archivists in carrying out their mandates to provide access to information to their users, “normally do so in good faith,” explained the delegate. “In most cases, these persons may not possess adequate legal background and may be limited in knowledge with regards to copyright and IP laws in general” and might inadvertently use copyrighted works beyond the provision as currently provided under copyright laws.
The European Union said the existing international framework provides for a wide variety of possibilities for all member states of WIPO to insure “meaningful limitations and exceptions.”
“WIPO member states that have not yet introduced such exceptions in their national legislation, can currently do so, and if necessary, request the assistance of WIPO or help of other WIPO states and stakeholders,” the EU delegate said.
The EU believes “that it is important to reiterate that we are not willing to consider a legally binding instrument in this area,” he said, for two main reasons. The first is that “the EU and its member states do not believe that possible issues related to activities of library and archives require the same type of action that was deemed necessary to address the unique case of access to books for the benefit of people who are blind, visually impaired and print disabled,” he detailed.
He was referring to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The EU signed the treaty on 30 April, as well as France, Greece, and India (IPW, WIPO, 30 April 2014).
The second reason, he went on, is that the SCCR “did not provide an answer to the question as to the rationale, the need to harmonise exceptions for libraries and archives at an international level.” “The EU and its member states are of the view that this committee did not provide substantial evidence that would justify such an international harmonisation,” he added.
The United States stated that exceptions and limitations must be consistent with member states’ existing international obligations, including the so-called “three step test”. The three-step test refers to language in Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works. It provides exceptions to the right of reproduction, stating that, “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 three-step test was a thorny issue in the negotiations leading to the adoption of the Marrakesh Treaty (IPW, WIPO, 14 June 2013). Japan also underlined the importance of the thee-step test yesterday.
The US said libraries and archives need “adequate and appropriate exceptions and limitations in national laws” to be able to carry out their public service roles. The delegate said the US does not support “binding norm setting at the international level.” At WIPO level, the US delegate said it would be “extremely valuable to find consensus on the general objectives and principles that should inform and guide the development of such exceptions and limitations at national level.”
Moving on Topics
The first four of the 11 topics of the working document were addressed during the last session of the SCCR, from 16-20 December (IPW, WIPO, 22 December 2013). The four topics were: Preservation, Right of reproduction and safeguarding copies, Legal deposit, and Library lending). The SCCR this week is addressing the next topics of the document.
The WIPO secretariat said on 30 April that the SCCR asked the secretariat to make arrangements for the update of a study [pdf], originally carried out by Prof. Kenneth Crews on copyright limitations and exceptions for libraries and archives in 2008. Crews has been asked to undertake that update, the secretariat said, and some specific information on that study might be available at the next session of the SCCR.
The SCCR started on topic 5 (Parallel importations) on the same day. The topic includes proposals from the African Group, a proposal from Ecuador to the proposal from the African Group, and then a proposal from India.
The African Group proposal relates to the purchase and importation of works by libraries and archives, the Ecuadorian proposal is about the right to parallel importation for libraries and archives, and the Indian proposal also deals with the right to buy, import or otherwise acquire copies of works by libraries and archives, but includes the permission from the author of the works.
Kenya proposed to combine the three proposals on the table for the next session of the SCCR, to which India readily agreed, so did Ecuador.
The US delegate said the issue of parallel importations is a contentious issue internationally and should be looked at carefully. The European Union said they have difficulties to see a relation between parallel importations and the traditional library exceptions.
Catherine Saez may be reached at email@example.com.