[A2k] EFF Exceptions and Limitations statement to WIPO SCCR 13

[Gwen Hinze]

EFF Statement in Support of Chile's Proposal for Harmonized
International Copyright Exceptions for Libraries and Archives, for
the Disabled and for Educational Uses,.to WIPO SCCR, November 22, 2005

Thank you, Mr. Chairman. Congratulations on your appointment. Thank
you for the opportunity to present the views of my organization at
this important meeting.

The Electronic Frontier Foundation is an international public
interest non-profit organization, with offices in the USA, the UK and
Canada, dedicated to protecting civil liberties, freedom of
expression and the public interest in the digital environment.

For the first time in human history we have the technology to realize
the dream of making all the published works of humankind available to
everyone in the world.  We live in a digital world, and the Internet
provides the promise of universal access to the knowledge that is
stored in the world's libraries. There are many international
collaborative projects currently underway focused on making that
happen.

These enterprises rely on committed volunteers working across many
different countries, the goodwill of the many libraries that are
making their works available for digitization,  the support of
national governments and on new technologies that enable access to
digital works to those who live in remote areas, or who have
disabilities. At the moment, many of these public-spirited projects
work within a framework of uncertainty brought about by constraints
imposed by differing national copyright regimes. These projects would
all benefit from the greater certainty that would come from
harmonized international copyright exceptions for libraries and
archives, for the disabled, and for educational uses.

There is no single international public domain, so collaborative
projects which seek to make public domain works available online must
work as separate national units, or risk cross-border litigation.
There are potential risks for those who make works available online,
for those who want to create local mirror copies of digital
collections to improve access time and reliability in their own
countries, and risks also for the teachers and students who seek to
utilize such international knowledge resources.

For instance,  Project Gutenberg, which has made available electronic
texts of over 10,000 United States' public domain works, warns
readers outside of the United States not to copy or download texts.
And in 2004 Project Gutenberg was threatened with legal action in the
United States when Project Gutenberg Australia, a separate entity,
made available a work that was in the public domain in Australia but
not in the US.

Other projects such as the Open Content Alliance, and the Internet
Archive's Open Library web-page which provide free web access to
public domain works in the important book collections from the
libraries of the Smithsonian Institution, the University of
California, Johns Hopkins University, nine Canadian university
libraries, the National Science Foundation and library collections
from India and China, face similar challenges that limit their
ability to provide a full range of services to library patrons around
the world. And the Internet search engine Google's project to create
a free electronic card catalogue of the library collections of
Oxford, Harvard and Stanford Universities, the University of Michigan
and the New York Public Library, has been slowed by the threat of
litigation in the United States.

These are public-spirited projects, designed to deliver real benefits
to all of humanity. These entities need to have the ability to know,
to a certainty, whether the work of one can be lawfully built upon by
another. They must know whether a work scanned in to give access to a
blind person in Canada can be lawfully archived in Europe. They must
know whether a page scanned in Australia can be translated into
French in Quebec and communicated to Haiti and Francophone Africa.
The entities that develop the technologies that make this all
possible also need legal certainty to continue and expand their
efforts to support universal access, and distance education.

This is not just a question for developing countries. The British
Library is just one of many international libraries undertaking a
project to archive and make available the web-pages produced by its
citizenry as a means of capturing and preserving the quicksilver
years at the dawn of the Internet age. However, the British Library
lacks the statutory right to archive, nor to make that archive
available. And so they are embarking upon a Sisyphean labor to
contact and secure permission from every British web-site author, one
at a time, in a series of grinding negotiations. A set of exceptions
and limitations for archiving would make this pointless labour
vanish, so that the archivists could get on with archiving.

EFF firmly believes that a mandatory set of common exceptions and
limitations is required to preserve room for socially beneficial
activities such as distance education, and to foster creativity and
technological innovation across the world.

Accordingly, we welcome the proposal put forward by the honorable
delegate of Chile to discuss these issues and work towards finding
international solutions to the current restrictions on global access
to knowledge. As a first step towards facilitating that discussion,
EFF respectfully recommends that WIPO should commission a study to be
undertaken of the range of limitations and exceptions in respect of
libraries and archives, disabled people and educational uses, that
currently exist in Member States' national copyright regimes, and
make it available to delegates prior to the June 2006  session of the
Standing Committee. This study could build on and complement the
important review of the international legal framework for exceptions
and limitations undertaken by Professor Ricketson in 2003 in WIPO
document SCCR/9/7.

Thank you for your consideration.