[A2k] WIPO SCCR nov05_IFLA_eIFL joint intervention on exceptions and limitations

[Barbara Stratton]

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WIPO STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS

13th Session: Geneva, 21-23 November 2005



JOINT INTERVENTION by eIFL: Electronic Information for Libraries &

IFLA: International Federation of Library Associations



The importance of Exceptions and Limitations

to the fair operation of copyright regimes





Mr Chairman, I am speaking on behalf of the International Federation of
Library Associations and also on behalf of one of its members, Electronic
Information for Libraries.



We congratulate you and the Vice-Chairs on your re-election.



IFLA has since 1927 represented the world=E2=80=99s major libraries and lib=
rary
associations in 150 countries.



Electronic Information for Libraries represents 4,000 leading academic,
research and public libraries serving millions of users in 50 developing an=
d
transition countries.



Libraries collect, organise and preserve our global cultural and scientific
knowledge and heritage; the memory of the humanity. The richness of the
content we hold is reflected in the diversity of the media: books, newspape=
rs,
journals, audiovisual material, maps, pictures and music in both analogue a=
nd
digital formats. The raison d=E2=80=99etre of libraries is to collect and p=
reserve
our knowledge for the purposes of making the content available and providin=
g
access to the public.



Libraries, and the people who use libraries, depend on exceptions and
limitations to copyright without which copyright owners would have a comple=
te
monopoly over learning, and thus control access to knowledge, particularly =
in
the digital age[1][1]. Libraries are major contributors to the publishing
industry and spend billions of dollars each year on online databases,
expensive reference works and other material. The vast majority of librarie=
s
are publicly funded and paid for by the taxpayer. In other words, the peopl=
e
who use library services also fund them. Their taxes have already paid for
library materials yet without exceptions taxpayers would in every instance
have to pay a second time for licensing in order to copy for even minor use=
s
that conform to the Berne Three-step Test.



In a world without exceptions and limitations, the only rule would be that =
of
exhaustion. Published works could only be sold and lent.  Authors could
prevent fair criticism, news reporting and free speech in relation to their
works. Print disabled people would have no accessible formats. The user cou=
ld
only view or read, and all other uses would require licensing.  But licensi=
ng
is not always available, and when it is, it often has restrictions due to
intransigent rightholders, the works being orphaned or a lack of cross-bord=
er
licensing agreements between national collecting societies. This results in
market failure in providing for licensees needs.



Without exceptions, libraries would be prevented from sharing resources wit=
h
other libraries. Resource sharing is done not to reduce costs, but to expan=
d
availability of specialised material, to those who would otherwise not have
access to the work.



A modern cost effective policy for the preservation of digital material
requires that  preservation activities are undertaken at the point of
acquisition. Without exceptions, libraries could not perform this function.
The result is that the content remains on media that quickly becomes obsole=
te.
Migration to another format later on becomes technically impossible or high=
ly
expensive and the material is then lost forever even to legal deposit
libraries.



Without exceptions, every reproduction and every communication to the publi=
c
would be subject to permission and payment. In its recent consultation
document on digital libraries the European Commission said:



=E2=80=9CIn many cases, the costs of establishing the IPR status of a work =
will be
higher than the digitisation of the work itself=E2=80=A6The challenge of
successfully dealing with IPR issues is a key factor for the speed of
digitisation[2][2].=E2=80=9D



Without exceptions to enable libraries to serve their communities, the effe=
cts
on people who cannot afford access to copyright protected works would be
especially damaging. For many people in poor countries, books are a luxury =
and
the payment of copyright royalty fees is out of the question. Quite simply,
they would be denied access. This would widen the digital divide between
developed and developing countries.



The existing exceptions and limitations need protection in the digital age
from being overridden and eroded by licence terms and TPMs, just as
rightholders have been  granted additional protection in the last 10 years =
due
to the advance of technology.  We also need some new provisions. The most
important of these is to deal with orphaned works. In addition we need to
establish a presumption that where the author cannot be traced after due
enquiry, the work is deemed to be out of copyright and in the public domain
after a fixed number of years.



Information is a global industry. However currently it is often unclear whi=
ch
rules apply, and even where it is known, different rules are a barrier to
access. International cooperation is therefore essential.



We call for the establishment of a minimum set of guaranteed international
exceptions and limitations which may not be overridden by national legislat=
ion,
contracts or TPMs.



This is probably the only way for the international community to ensure tha=
t
TPMs will be developed to facilitate the use of imported material in digita=
l
format. The current situation allows for only the most restrictive rules to
dominate and tramples over national exceptions and limitations. For example=
,
where a broadcast signal is subject to a TPM, reproduction for preservation=
 or
educational purposes would be prevented if reproduction in digital formats =
is
not permitted by the licence for the product or is limited in a more
restrictive manner according to the originating country=E2=80=99s rules.



The minimum set of exceptions and limitations or user rights should inter a=
lia
allow for non-commercial reproduction and communication to the public of
protected material for:

private use or personal study
use by persons with disabilities
illustration for education and teaching, including distance education
research and criticism, including review, quotation and incidental inclusio=
n
in other material
preservation and use by libraries and archives



Without such exceptions guaranteed, the consequence would be less access, l=
ess
use, less transnational collaboration especially on expensive digitisation
projects, a less well-informed citizenry, a less educated population and  t=
he
resulting implications for the economy.



Why should WIPO be concerned and what can WIPO do to provide for global
minimum exceptions?



The WCT recognises the need (and I quote) to =E2=80=9Cmaintain a balance be=
tween the
rights of authors and the larger public interest, particularly education,
research and access to information=E2=80=9D[3][3].



There are many supporters of strong intellectual property rights today. Med=
ia
companies and their trade associations view ever increased rights for
copyright owners as the best way to maximize their potential revenue. Howev=
er,
it is somewhat harder to find equally prominent defenders of the other half=
 of
the copyright balance, namely the need for the public to have reasonable
legitimate access to copyright material. The wider public interest is more
diffuse and usually has no direct economic motive. The bargaining power
between libraries and rightholders is unequal.



We would welcome this Committee

to be the active custodian of the balance between the rights of authors and
the greater public interest
recognise that there are special issues for libraries, educators and people
with disabilities

=C2=B7         to monitor the implementation of exceptions and limitations =
in
Member States

to instruct the Secretariat to take a proactive and proficient role in
providing guidance and raising awareness of the importance of exceptions an=
d
limitations, especially in WIPO=E2=80=99s technical assistance programme to
developing countries.



We believe that this work is urgent and essential and we would respectfully
request the Committee to undertake it as a matter of priority.



Thank you, Mr Chairman.



Contacts:

Teresa Hackett, eIFL-net IP Project

E-mail: Teresa.Hackett AT eifl.net



Barbara Stratton, IFLA Copyright and other Legal Matters Committee

E-mail: Barbara.Stratton AT cilip.org.uk



Harald von Hielmcrone, IFLA Copyright and other Legal Matters Committee

E-mail: hvh AT statsbiblioteket.dk





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[1][4] See IFLA Limitations and Exceptions to Copyright and Neighbouring
Rights in the Digital Environment, 2004

[2][5] Communication from the Commission i2010: Digital Libraries 30.9.2005

[3][6] WCT Preamble

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