[A2k] IFLA statement on Chile's proposal

[Barbara Stratton]

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Dear all



WIPO Provisional Committee on Proposals Related to a WIPO Development Agend=
a
(PCDA)

1st session, Geneva 20-24 February 2006

Below is the intervention IFLA made yesterday with regard to Chile's propos=
al
concerning the public domain.  Chile's proposal is
PCDA/1/2[1]. It and all but one of the proposals submitted by member states=
 at
this meeting can be found at http://www.wipo.int/meetings/en/details.jsp?me=
eting_id=3D9643[2]

Barbara Stratton
Senior Adviser, Copyright
CILIP: Chartered Institute of Librarians and Information Professionals, UK
Member IFLA-CLM (IFLA Copyright and other Legal Matters Committee)




The International Federation of Library Associations and Institutions

(Federation Internationale des Associations Bibliothecaires)



STATEMENT BY IFLA

Provisional Committee on Proposals Related to a WIPO Development Agenda (PC=
DA)

1st session, Geneva 20-24 February 2006



Mr Chairman, the International Federation of Library Associations represent=
s
the world=E2=80=99s major libraries and library associations through 1700 m=
ember
organisations in 150 countries.  We support the intervention made at this
meeting by eIFL: Electronic Information for Libraries, one of our member
organisations.



We welcome the proposal by Chile (PCDA/1/2) that WIPO undertakes an apprais=
al
of the public domain. In our view this must include the issue of the impact=
 of
intellectual property laws, licensing and technological protection measures=
 on
access to public domain information and works in electronic form. As Chile =
has
stated, the public domain provides a fertile source of content on which
creators can build new works but it needs to be nurtured and protected from
erosion in the digital environment.



The digitisation of public domain works affects libraries=E2=80=99 role as =
the
world=E2=80=99s custodians of human memory. While there are indeed major pu=
blic sector
digitisation projects, many public sector libraries such as national, acade=
mic
and public libraries give commercial publishers access to public domain
content for digitisation projects because they can not afford to digitise
everything themselves. The publisher in turn uses the content to provide
databases of compilations which receive their own copyright protection and
which provide much more enriched content than can be provided by merely
digitising the original works =E2=80=98as is=E2=80=99. It is only right tha=
t the publisher
should have rights in the compilation and have prospect of receiving a viab=
le
financial return from such investment for a specified period.



Public domain content within commercial electronic materials is subject to =
a
licensing regime which is often non-negotiable and in most countries licenc=
es
and contracts are allowed to override copyright exceptions and limitations.
Moreover, if the digital content is not  otherwise available in an open acc=
ess
repository, it risks being locked up in perpetuity by TPMs and the DRMS tha=
t
enforce the licence terms.  Libraries already have experience of how TPMs i=
n
e-books, e-journals, databases and multimedia products such as film,
broadcasts and sound recordings, remove users=E2=80=99 rights to avail them=
selves of
statutory exceptions and limitations to copyright, including the rights of
visually impaired people to have accessible copies made or to deploy
read-aloud software.



The world=E2=80=99s great research libraries need to keep digital works in
perpetuity and be able to transfer them to other formats and platforms in
order to preserve them for the public domain, so they can make the content
fully accessible and usable once all the rights have expired.  A number of
legal deposit libraries now have legislative mandates to collect and preser=
ve
digital materials. Yet the average life of a TPM or DRMS is around 3 to 5
years. If the product is no longer made, there will be no new TPM compatibl=
e
with new operating systems and no key available to allow libraries to migra=
te
content to new platforms. Nor does the TPM cease upon expiry of copyright, =
so
the content will remain locked even when no rights subsist. By then the
ownership of the rights may be impossible to trace, rendering the product
orphaned and without a key.  Obsolescent TPMs render digital content
inaccessible to future generations of researchers.  For libraries, charged
with creating and maintaining a patrimony of public domain works in the
digital environment, this is serious.



A low cost solution to these problems is that publishers who digitise publi=
c
domain works also be required to furnish the library which provided the
material, with clean digital copies so that the library may not only preser=
ve
the digitised works for posterity and migrate them to new platforms, but al=
so
make those public domain works freely available forthwith on an =E2=80=98as=
 is=E2=80=99
basis to the public on library servers. This would immensely benefit access=
 to
public domain works by developing countries, especially if WIPO created a
database or portal to these works as Chile proposes. Publishers should also=
 be
required to entrust major legal deposit and research libraries stipulated b=
y
national legislation with clean copies of their electronic products for the
purposes of conservation and preservation so that the content is not lost w=
hen
the rights in the product expire. It would be helpful if the proposed
appraisal were to address these points.



The library community believes that it is proper for WIPO to assume
guardianship of the public domain, promoting its value and protecting it fr=
om
encroachment. Chile=E2=80=99s suggestion that WIPO establishes a permanent =
unit which
would work on public domain issues would be of great benefit to Member Stat=
es
and the IP community.  IP is not just about generating economic benefit for
nations and enterprise, an area of activity that WIPO already advises on, b=
ut
is also about growing knowledge, innovation and creativity, and delivering
education - the bedrock of economic prosperity.



We support Chile=E2=80=99s proposal for a without-prejudice impact study to=
 assess
the appropriate levels of IP with regard to individual countries and we
endorse the suggested criteria. We would expect the study to reveal the hid=
den
costs met by libraries resulting from copyright protection =E2=80=93 such a=
s the
fees they pay for licensing and document supply, book and journal prices,
reprographics and levies and the expensive and frustrating process of
copyright clearance =E2=80=93 especially when tracing the vanished rightown=
ers of
orphan works. This study risks being flawed unless library associations and
institutions in those countries are specifically invited by their governmen=
ts
to play a full part. We urge WIPO to request Member States to do this. IFLA
would be pleased to assist in this regard.



Finally, we urge the present meeting to adopt the practical proposals made =
by
the Group of  Friends of Development (PCDA/1/5). They seem to present an
eminently sensible way forward.



Thank you Mr Chairman














=3D=3D=3DReferences:=3D=3D=3D
  1. doc_details.jsp?doc_id=3D55592
  2. http://www.wipo.int/meetings/en/details.jsp?meeting_id=3D9643