While exceptions and limitations for librarians and archives are under negotiation at the World Intellectual Property Organization this week, librarians and archivists called on WIPO delegates to address an issue of contract licences for digital content, which they say often override such exceptions and limitations.

The 28th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) is taking place from 30 June to 4 July.

A side event was held on 30 June by the International Federation of Library Associations and Institutions (IFLA) entitled, “Keeping Copyright Relevant in the digital environment: libraries, archives and licences.” It questioned the impact of digital content licence terms and conditions on the mission of libraries and archives.

“We are moving from owning physical content to licensing digital ones,” said Simonetta Vezzoso, copyright consultant at the Associazione Italiana Biblioteche (Italy). This is an ongoing and increasingly important transition, she said.

Libraries are spending billions of dollars each year on licensed digital content, but amounts spent on content differ dramatically, said Ellen Broad, manager of digital projects at IFLA. There is little transparency in costs across suppliers, Vezzoso added.

The core mission of libraries include: long-term preservation, archival availability, lending, collection development, digital resources availability for research, education, teaching and library sharing. These are hampered by some licence terms and conditions, said Vezzoso. She gave an example of a licence that does not permit long-term preservation, lending, archive availability, collection development and research.

Cristiana Gonzalez, a researcher and adviser on IP at Faderação Brasileira de Associações de Bibliotecários Cientistas da Informação e Instituiçoes (FEBAB) in Brazil, compared two contracts involving the same publisher and same database but two different contractors.

The first is Portal Capes, which comprises about 400 institutions in Brazil, and the second is the University of Sao Paolo. On one side, there are a lot of use restrictions applying to 400 institutions, and on the other side, one institution can have more use, Gonzalez said. She wondered how to solve problem of uncertainty and so many different contracts regarding copyright law.

Freedom of contract is an important principle, but the real situation is that librarians do not have enough resources for detailed individual negotiations and have no flexibility at all, Vezzoso said. The European Union directive on information society is silent on that question and let member states decide whether exceptions should not be overridden by contracts, she said. She welcomed the United Kingdom’s 2014 copyright reforms, which set such rules.

Furthermore, numerous libraries rely on donations to build their collections, which will not be possible any longer in the digital world, Broad said, with e-books under licence rather than ownership.

Concerning cross-border activities, libraries answer to requests for collection from all over the world, Broad said. But only one institution indicated that “under the term of their licence they were allowed to provide extracts of information for research and study across country borders.” So in the digital environment we are regressing back to national silos, as those types of cross-border flows will no longer be possible with licences, Broad said.

Challenges of Licences for Archivists’ Work

Archives acquire collections to preserve them so that the present and future will benefit from lessons of the past, said William J. Maher, university archivist at the University of Illinois at Urbana-Champaign, and a representative of the Society of American Archivists (SAA).

Archivists’ work is affected by licences, as materials collected from institutions and individuals may contain licences. As digital archives may comprise several thousand files, it is impossible to go to all content and see if there are any licences on it, as it could take years, he said.

To fulfil their mission, archivists must be capturing digital content, this is especially true as the world is becoming more digital, interconnected and more international, Maher said. But archivists are facing a dilemma: should they follow the law or the best professional practice.

“There is a key reason why we are here to engage with WIPO, to bring reason and sense to a system that makes less and less sense” when moving the archival sector to the digital age, he said.

They expect clarifications through WIPO that exceptions and limitations should not be overridden by contract, Broad said.

If nothing of this nature exists currently within WIPO, there are instances in international law where the power of contracts has been moderated if they interfere with other types of rights, Broad said. For instance, Article 40 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) related to anti-competitive licensing practices.

“We would love to see something of that nature for these contracts that restrict the exceptions and limitations that we have,” she said.