[A2k] Debate at WIPO on limitations and exceptions to copyright

[Sangeeta]

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Sangeeta

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SUNS #5924 Monday 28 November 2005

south-north development monitor SUNS [Email Edition]

Development: Debate at WIPO on limitations and exceptions to copyright

Geneva, 24 Nov (Sangeeta Shashikant) -- Strong views were expressed by
numerous developing country delegations and NGOs in favour of minimum
international standards on limitations and exceptions (L & E) to copyright
and related rights at the 13th session of the WIPO Standing Committee on
Copyright and Related Rights (SCCR).

Many times during the debate on L & E, NGOs and developing countries also
called for WIPO to monitor development and conduct further studies in this
area, especially conducting a survey on the availability and use of L & E at
the national level and the types of L & E needed especially in the digital
age for education purposes, disabled people, libraries and archives.

L & E are areas where the rights of the copyright owners do not extend or
are limited. This issue was first placed on the agenda of the 12th SCCR
session following a request dated 2 November 2004 (Doc. SCCR/12/3) by Chile
for the "inclusion for the Twelfth Session of the Standing Committee on
Copyright and Related Rights of the subject of exceptions and limitations to
copyright and related rights for the purposes of education, libraries and
disabled persons".

Many developing countries including Argentina, Paraguay, Syrian Arab
Republic, India, Uruguay, Iran, Brazil, Egypt, Costa Rica, Dominican
Republic, Senegal and Bangladesh, were supportive of the Chile proposal and
were keen to continue discussions on the issue. Thus it was decided that on
the agenda of the 13th SCCR meeting (21-23 November 2005) there will be an
item on L & E for the purposes of education, libraries and disabled persons.

At the 12th Session, Chile in introducing its proposal had pointed out that
almost a decade ago the international community had recognized the rights of
creators and cultural industries to exploit works and other protected
material in the digital environment. New technologies have also presented
new opportunities for the general public and particularly for the most
vulnerable groups in society to have access to education, culture and
knowledge.

However, the lack of regulation and harmonization of L & E at the
international level has made difficult any initiative for the benefit of
entities that had to be a social priority, particularly in developing
countries such as public libraries, handicapped people and for distance
education purposes, Chile added.

It said as regards public libraries, the creation and development of digital
public libraries, services and archives in the information society, as well
as the promotion of cooperation among those institutions seemed to be
impossible without certain copyright exceptions.

As for handicapped people, such as those suffering from visual, aural or
intellectual impairments, the lack or shortage of information material in
appropriate formats hampers the exercise of essential rights of access to
culture and education, Chile said.

As regards to distance education, few of the national legislations contained
exceptions concerning distance educational activities with the use of
digital means, including digital networks. The development of digital
educational web portals largely depended on harmonization of the right of
quotation and appropriate limitations for educational purposes.

The Chile delegation also referred to the WIPO Study on L & E of Copyright
and Related Rights in the Digital Environment, prepared by Professor Sam
Ricketson, the Information Meeting on Digital Content for the Visually
Impaired (November 3, 2003) and to document SCCR/8/2, a Short Description of
Possible Subjects for Future Review by the Standing Committee, where the
issue of L & E had been expressly included.

Chile said it was necessary to give priority to discussions on L & E
especially for the aforesaid beneficiaries, with a view to facilitate
understanding and to learn from successful examples at national level in
order to make progress towards achieving consensus on minimum international
standards.

At the 13th SCCR meeting which began late Monday evening, the Chairman Mr.
Jukka Liedes from Finland began discussions on the L & E by first giving the
floor to the NGOs, as they had not been given an opportunity to speak at the
12th SCCR meeting, followed by Members to allow them to respond to views
that are raised.

Many NGOs stressed the importance of having a mandatory and enforceable set
of minimum standards for L & E especially for the disabled, for educational
purposes, private use, for public libraries and archives. In this regard,
they were keen for WIPO to conduct studies and for this issue to continue to
be a subject of discussion among WIPO members.

Grave concerns were also raised about technological protection measures
(TPMs)/Digital Rights Management (DRM) (i. e. technologies that control
and/or restrict the use and access of digital media content on electronic
devices with such technologies installed) that are increasingly being
allowed in developed and developing countries, and the negative impact on
"Access to Knowledge", as the TPM/DRMs erode the ability to use L & E.

The views of these NGOs received wide support from many developing countries
that had similar concerns. Most of the developed countries that took the
floor while proclaiming the importance of L & E to copyright, did not
indicate support for Chile's proposal. They also did not address the
concerns raised over the TPM/DRM laws and the impact on access to knowledge.

Organizations that represent the groups such as publishers, authors and
composers, raised their own fears that excessive L & E would threaten the
existing copyright system and remove incentives for creativity.

The Chair summarized the discussions stating that there were references to
national and regional developments in this area and how L & E are applicable
and used in the digital environment.

Suggestions have been made for studies to be continued in this area and
consideration should be given to what kinds of studies and the basis of
these studies, he added.

He also said that references were made on the need to monitor development in
this area and suggestions for a survey to be made on a national level on the
use of L & E for the benefit of education, for handicapped people, libraries
and archives and how they are used.

He mentioned that a general observation was made about taking into account
the needs of the least developed countries and the developing countries.

The Coordinated Council of Audiovisual Archive Associations supported
reasonable exemptions to copyright to enable access by researchers to
archival and library repositories. It gave some examples of exceptions that
were required by publicly funded archives and necessary to allow access to
common heritage. These include exceptions that allow recording of broadcast,
web-cast and terrestrial transmissions; making of copies of archival
materials; playback of archival recording in public; and loan of archival
materials for other publicly funded archives for exhibition.

The International Federation of Library Associations (IFLA) and the
Electronic Information for Libraries, representing the world's major
libraries and library associations in 150 countries, said that libraries and
library users depend on L & E without which copyright owners would have a
complete monopoly over materials and thus control access to knowledge
especially in the digital age.

It said that the vast majority of libraries are publicly funded and paid for
by the taxpayer, yet without exceptions taxpayers would in every instance
have to pay a second time for licensing in order to copy for even minor
uses. In many cases finding the copyright owner of older material is
impossible rendering their works orphaned and so permissions cannot be
obtained.

The existing L & E need protection in the digital age from being overridden
and eroded by license terms and technological protection measures (TPMs) i.
e. technologies used to control access to information, especially in the
context of copyright. Thus, it called for the establishment of a minimum set
of guaranteed international L & E which may not be overridden by national
legislation, contracts or TPMs.

It stressed that a minimum set of L & E should allow among others, 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 inclusion in other material and preservation and use by libraries
and archives.

On the role of SCCR, it was of the view that the SCCR should be an active
custodian of the balance between the rights of authors and the greater
public interest. It should recognise that there are special issues for
libraries, educators and people with disabilities, monitor the
implementation of L & E in Member States and instruct the Secretariat to
take a more proactive and proficient role in providing guidance and raising
awareness of the importance of L & E, especially in its technical assistance
programme to developing countries.

The World Blind Union said that it is vital that material that is rendered
in one jurisdiction can be made available in other. It called on WIPO to
initiate a survey to examine the perceived and real barriers between
jurisdictions and draw authoritative conclusions and make recommendations
for changes to national laws and international treaties, saying that this
fits well with WIPO's current focus on development issues. It urged support
for L & E, saying that otherwise there is "little prospect of eradicating
the book famine experienced by blind and partially sighted people".

The Electronic Frontier Foundation (EFF) said that technology exists today
that is able to make all the published works of humankind available to
everyone in the world. However, many of the public-spirited projects which
seeks to provide universal access to knowledge through the internet have to
work within a framework of uncertainty due to constraints imposed by
differing national copyright regimes. It gave the example of Google, an
internet search engine which has a project to create a free electronic card
catalogue of the library collections of Oxford, Harvard, Stanford and
Michigan Universities, and the New York Public Library and which has been
slowed due to threat of litigation in the US.

It said that for these types of projects to deliver real benefits, there
needs to be certainty whether the work of one can be lawfully built upon by
another or whether a work scanned in to give access to a blind person in
Canada can be lawfully archived in Europe or even whether a page scanned in
Australia can be translated into French in Quebec and communicated to Haiti
and Francophone Africa.

It supported the Chile proposal, and said that entities involved in these
projects would benefit from the greater certainty as a result of harmonized
international copyright exceptions for libraries and archives, for the
disabled, and for educational uses.

It also recommended that WIPO commission a study of the range of L & E in
respect of libraries and archives, disabled people and educational uses that
currently exists in Member States' national copyright regimes, and make it
available to delegates prior to the SCCR meeting in June 2006. The study
could build on a previous WIPO study in 2003 (Doc. SCCR/9/7).

IP Justice, an international civil liberties organization based in San
Francisco, welcomed Chile's proposal saying that it was consistent with the
WIPO Development Agenda and will facilitate access to knowledge,
particularly in developing countries that do not currently enjoy the broad
range of L & E that many developed countries, such as the US permits and
which has allowed it free flow of information and to become a technological
and educational leader.

It also said that what was necessary was mandatory minimum standards of L &
E and not a ceiling on users' rights, as Members must remain free to enact
additional L & E that suit the particular needs of their people and their
level of development.

The Civil Society Coalition (CSC) said that only because of L & E to the
exclusive rights of copyright owners, are internet search engines such as
Google and Yahoo, able to make copies of copyrighted works available from
the internet web site without prior licenses from the right holders and
which allows the public to search for information by using key words. It
proposed that WIPO commission a study and have an information session on the
L & E that are essential for modern search engine services.

CSC also proposed that WIPO conduct a study on the impact of TPM and DRM
technologies on the public as the use of TPM and DRM can undo traditional L
& E for educators, libraries, the blind and news organizations. With TPM and
DRM laws, works can be protected beyond copyright terms and lost forever
once the technologies and keys to unlock them are no longer available. Works
that were once accessible will now only be available for rent for very
limited and sometimes temporary uses.

The International Publishers' Association (IPA) said that no publisher
organization is against L & E but these were 19th century solutions to 21st
century problems. It said that the provisions in the Berne Convention gave
sufficient policy space to countries.

The representative from the International Confederation of Societies of
Authors and Composers (CISAC) and the International Bureau of Societies
Administering the Rights of Mechanical Recording and Reproduction (BIEM)
said that copyright is not an act of charity towards the creative community
but it is an incentive for the artistic community. Thus, the wider the
exceptions, the greater the threat to the creative community. While the
creative community accepts that certain areas need special consideration,
this should not always be interpreted as free use, for example, for
education and libraries.

Switzerland was not in favour at this stage to engage in discussions on L &
E. It preferred to complete discussions and hold a diplomatic conference on
a treaty for broadcasting organizations before exploring L & E options.

The US said that it places great weight on the incentives for creativity
within the US system as well as valued carefully crafted L & E. It then
spoke extensively about the US Copyright Law, saying that studies were being
conducted on how to revise the copyright law in order to reflect the
interest between creators and libraries in the digital age as well as deal
with the matter of orphaned works.

Benin said that Members should avoid falling into the trap of excessive
rights or L & E and that the latter should not strip copyright of its
substance.

Brazil said that it favoured retaining this issue on the SCCR agenda and
that there is much WIPO can do on this issue that will benefit developing
countries.

It added that investigations reveal that even developed countries have
questions on what is the best solution for the new era and so WIPO should
take its time on possible new solutions concerning technological change.

Responding to the intervention by IPA, Brazil said that IP in general is a
15th century solution to 21st century problems. It also said that this
debate should be dominated by the concept of "Access to Knowledge".

It supported the need to have an international instrument pertaining to
minimum standards on L & E, because once harmonized, perhaps developing
countries can make better use of them in the national context and in the
respective national programs.

On the issue that harmonizing L & E would lead to a one-size-fits-all
approach to IP, Brazil said that it frequently complained about that
approach when it came to expansion of rights and creation of new rights,
since harmonization led to loss of flexibilities. But this argument does not
apply to L & E where harmonization leads to globalizing of flexibilities.
The trend is usually to harmonize the protection of rights but this rarely
applied to flexibilities. Thus internationally, there is a need to contain
upward harmonization but to harmonize the flexibilities. This will retain
the balance internationally. In this regard, Brazil was supportive of
internationally enforceable L & E.

Nigeria said that it was unthinkable that public interest should be subsumed
by the narrow interests of right holders. While acknowledging the importance
of encouraging authors and creators through the copyright system, it said
that the future of the copyright system depends on the careful demarcation
of public space.

It also said that while the approach in previous international instruments
on L & E was commendable, they are not adequate for the present realities,
and supported the call for further study on L & E at the international level
and to what extent these L & E exist within the legislation of developing
countries and how they have worked in practice.

It expressed the belief that L & E should not be left to contractual or
licensing mechanisms. It also said that it would be useful to have a
specific impact assessment on how the use of TPMs affect the L & E to
copyright as many African countries now also have TPM laws.

"We need to pay special attention to the needs of disabled individuals" and
"special L & E should be developed to address the specific needs of
developing countries," Nigeria added.

Morocco supported the need to conduct studies on L & E as it believed they
were extremely important in ensuring that there is a smooth transition into
the digital age.

Kenya was supportive of changes that would allow for flexibility including
the adoption of minimum standards that suit the needs of individual
countries, particularly in relation to educational programs.

Mexico, New Zealand, Chile, the EC, and Jamaica were sympathetic with the
problems faced by the disabled, particularly the issues raised by the World
Blind Union (WBU). Many of these delegations were also supportive of the WBU
proposal to initiate a survey as mentioned above. +