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    WIPO Members Favour Library Exceptions, But By Different Means

    Published on 2 May 2014 @ 11:22 am

    By , 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 info@ip-watch.ch.

     

    Comments

    1. WIPO Members Favour Library Exceptions, But By Different Means (SCCR/27) | LJ INFOdocket says:

      […] From Intellectual Property Watch: […]

    2. Hopes Dampened For Copyright Exceptions For Libraries/Archives At WIPO | Intellectual Property Watch says:

      […] This issue has divided the SCCR delegations from the start of the discussions some years back. It only grew during the past week. Developing countries are pushing for a treaty, while developed countries have maintained that they oppose an international legal binding instrument to address the issue, as the current international copyright framework gives ample room to provide solutions, which should be applied at national level (IPW, WIPO, 2 May 2014). […]

    3. WIPO Members Favour Library Exceptions, But By Different Means | Import and Export Business Talk says:

      […] WIPO Members Favour Library Exceptions, But By Different Means 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 … Read more on Intellectual Property Watch […]


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    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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