Copyright Exceptions For Libraries: WIPO Should Step Up Before Someone Else Does, Researcher Says

The author of a World Intellectual Property Organization-commissioned study said this week that WIPO should take the lead on the issue of limitations and exceptions to copyright for libraries, before the debate and the solution are left to other actors.

On the third day of the 29th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), Prof. Kenneth Crews, former director of the copyright advisory office of Columbia University, presented the update of his study first published in 2008 on Copyright Limitations and Exceptions for Libraries and Archives.

Limitations and exceptions to copyright at WIPO have always been a contentious issue. Developing countries are pushing to get an international legal instrument providing exceptions and limitations to copyright for the benefit of libraries and archives. Most developed countries argue that the international copyright framework already provides sufficient flexibilities to allow for these exceptions at the national level.

The new study [pdf], presented on 10 December, builds on a study [pdf] Crews did in 2008. The 2014 study looks at statutory exceptions that apply to libraries in a general sense, Crews explained. He also specified that the two studies should be considered together as the first report left out some countries for which statutes could not be found at the time. WIPO member states not finding their country in the 2014 study should look into the 2008 version, he said. That indicates that no change in the copyright law of those countries were found since 2008, he said.

In 2008, there were 184 member countries in WIPO and he was able to identify the statutes from 149 of those 184 countries, he said. In 2014, there are 187 WIPO members and the 2014 study covers 186 countries.

Back in 2008, 21 countries had no library exception, compared to 33 now, and 27 countries had a general exception not specifying a particular exception for libraries, compared to 34 in 2014, he explained.

Crews underlined WIPO Lex as “enormously valuable asset,” which helped him in his research. WIPO Lex, according to the WIPO website, is a search facility for national laws and treaties on intellectual property of WIPO, the World Trade Organization, and United Nations members. An IP-Watch story on WIPO Lex is here (IPW, WIPO, 14 August 2014).

Variety of Laws

Statutory exceptions serve to find some kind of equation of putting together the rights of creators and the interest of the public, he said. A number of international agreements have influenced national copyright laws, he said, in particular the Berne Convention for the Protection of Literary and Artistic Works, the WIPO Copyright Treaty, and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), he said. He also underlined the importance of regional agreements on the drafting of national laws.

The three international instruments mentioned include the so-called “three-step test,” he said. The three-step test was first used in the Berne Convention, and is a set of three restrictions on the exception provided by the treaty. It requires that the exception: be used in certain special cases, not conflict with a normal exploitation of the work, and not unreasonably prejudice the legitimate interests of the author. TRIPS includes similar language.

Because the language of the three-step test is prone to interpretation, this leads to a diversity of exceptions in countries, he said. Exceptions might provide for libraries to make copies under certain circumstances, like for research purposes, or carry out preservation or replacement activities. Some exceptions only apply when the economic rights have expired, he said, some might also apply to museum, or only to published works.

In some cases, the newly enacted statutes are limited to graphic reproduction, which raises issues about the fact that libraries activities are increasingly digitally based.

Geographical Patterns, Importance of Models

However, despite a wide diversity, Crews said, there are some patterns to be found in national laws. He remarked that if combined, the 33 countries with no exceptions and the 27 countries with a general exception are mainly located in Latin America and Africa, with some in the Middle East.

Crews stressed the importance of models in law-making. In Africa, he said, a number of countries (17) are members of the Bangui Agreement, which includes provisions that have been incorporated into the members’ domestic laws. One of those provisions relates to exceptions for the benefit of libraries.

The British Copyright Act of 1956 has provided a model, he said, in particular in the former British colonies, including countries such as the United States.

Taking the example of Sierra Leone, he said that after its independence in 1961, the country adopted a copyright act in 1965, inspired by the British model. However, in 2011, Sierra Leone revised its copyright act and went from the British model to the Bangui Agreement model, even though the country is not a member of the Bangui Agreement, he said.

Countries seeking to write their laws look to models, he said, noting, “It is the nature of the law-making process.”

A number of other countries have changed their laws recently, he said, such as Mali, Moldova, Oman, Rwanda, Tunisia, and Sri Lanka. Those countries, most of which are not members of the Bangui Agreement, have adopted relatively brief language about preservation, and copies for researchers, akin to the Bangui Agreement, he said.

He also cited the WIPO/UNESCO Tunis Model Law on Copyright for developing countries as a model. UNESCO is the UN Educational, Scientific and Cultural Organization.

A few countries have drafted “innovative” law, he said, citing Russia, Canada, and those of the European Union, with its 2001 Directive on the harmonisation of certain aspects of copyright and related rights in the information society, which most of the 28 EU members have adopted. Others who not members of the EU have modelled their law on it, he added.

One of the conclusions of those different legislations is that “libraries and archives are evidently a priority among lawmakers in the countries of the world, because indeed most countries have exceptions,” he said.

However, there is an uneven application of digital technologies, which needs to be addressed, he said.

WIPO Role

The role for WIPO might be “to shape the conversation about where the law may go,” said Crews, “because the challenge ahead in law-making for library exceptions is not only to integrate the digital technology, but it’s also to reckon with the expanding range of activities that are part of our libraries, archives, museums, educational institutions.”

Interlibrary loans, mass digitization of works for preservation, the role of licences, orphan works, the cross-border transfer of works, are areas that need to be addressed, he said. Cross-border exchange involve not only the copyright laws, but the import and exports laws of both countries. He also insisted on copyright education, which he said “is vital” for the successful implementation of the law.

On the role of WIPO, he told member states, “I am not going to give you a prescription.” But, since countries wanting to adopt a statute are going to look for a model, that is an opportunity for WIPO “to step up and say here is, if not a model, at least some guidance to help you as a country develop some law on this point.”

“And because those models are proven to be so influential, because countries will in fact be looking to models for their innovative law-making,” he said, “if WIPO does not do it, I would hazard to say somebody else will.”

IP-Watch Researcher Elena Bourtchouladze contributed to this story

Image Credits: Gates Foundation