[A2k] EFF statement at WIPO SCCR 17 on Exceptions & Limitations

[Sherwin Siy]

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[ Picked text/plain from multipart/alternative ]
PK statement on same statement inline below.

By now, the importance of WIPO and this Committee continuing work on
exceptions and limitations to copyright is abundantly clear. This week's
presenters on exceptions and limitations all notably agreed that the
Committee should address exceptions and limitations going forward, and we
support the proposal by the honorable delegates from Brazil, Chile,
Nicaragua, and Uruguay to further work on these matters.



The issues raised by new technologies, including the increased ability to
move works between formats and the ability to impose technical protection
measures on works, have in years past prompted governments and stakeholders
to address their effects on copyright law.



However, the focus has been primarily upon changes that might better
accommodate rightsholders in the digital world, often neglecting the effect=
s
that the new technologies may have on users, creating liability for acts
which were impliedly permissible, accepted, unenforced, or even simply
impossible before. These acts include those that provide essential,
necessary access to works to many different classes of people, for a wide
range of inarguably beneficial purposes.



Furthermore, efforts to harmonize copyright law internationally have added
to the trend of increasing liability exposure to individuals. While
liability and enforcement are assured international minimums, exceptions an=
d
limitations are left to a patchwork of inconsistent regimes. This
demonstrates the need for clarity in international standards for exceptions
and limitations. To note that exiting instruments and laws allow for
appropriate exceptions and limitations does not resolve this issue. After
all, existing treaties allow member states to provide* *any higher level of
rights for rightsholders on a national basis. Yet harmonization of minimum
rights is still viewed as a positive goal. The same should therefore be tru=
e
for exceptions and limitations.



In addressing these broad changes, it is clear that there is much common
ground eventually to be found in discussions on limitations and exceptions
generally. However, it should be even clearer that in certain*, *special,
targeted subject areas, there are positions on which it is possible to reac=
h
consensus.



For example, we have seen in Judith Sullivan's study and presentation that
national differences in limitations and exceptions for the visually impaire=
d
can lead to legal uncertainties and barriers to access. Meanwhile, there
appears to be no underlying reason for these discrepancies and barriers, bu=
t
perhaps for chance=97as the needs of visually impaired are, as we have hear=
d,
diverse within countries and also similar among countries.



The proposed text provided by the World Blind Union provides an excellent
means for beginning a process of ensuring that the laws and technologies
that benefit rightsholders also do not unduly constrain the visually
impaired.



This is eminent, and should be imminent, work taken up by this Committee.
Although establishing copyright exceptions for the visually impaired may no=
t
be sufficient to solve the problems of access to works and knowledge, these
exceptions are certainly necessary. Pakistan, on behalf of the Asian group,
has mentioned the urgent need for concrete steps in this area, and we agree
wholeheartedly. The WBU proposal represents just such a concrete step.
Furthermore, it is a specialized step that should be able to account for
different systems of copyright law, creating international clarity while
allowing coexistence with national variations in conditions and legal
traditions.



This week's presentations on studies presented to this Committee indicate
the potential for other useful instruments to clarify and harmonize
limitations and exceptions in other specific areas, such as for libraries
and archives. Other areas clearly merit further exploration, such as orphan
works or educational uses.



We thank the Committee for its work to date on limitations and exceptions
and eagerly anticipate the results of the continuing work on these issues t=
o
which all of the member countries have so far committed.




On Wed, Nov 5, 2008 at 6:02 PM, Eddan Katz <eddan@eff.org> wrote:

> as just delivered.
>
> ----
>
> I speak on behalf of the Electronic Frontier Foundation and its 13,000
> members worldwide. We endorse the joint statement of civil society
> groups on exceptions and limitations available outside. In accordance
> with the recently adopted Development Agenda and its vision for WIPO's
> leadership in the global knowledge economy, we respectfully urge the
> Standing Committee to discuss the World Blind Union's proposed Treaty
> for the Visually Impaired as the first part of establishing a step by
> step work plan on copyright exceptions and limitations, as proposed by
> the honorable delegates of Chile, Brazil, Uruguay and Nicaragua at the
> 16th session of the SCCR.
>
> EFF believes that now is the time for the Standing Committee to show
> leadership on mandatory minimum copyright exceptions and limitations.
> Firstly, while minimum rights have been harmonized trans-nationally,
> there is wide disparity in the exceptions and limitations in Member
> States national laws. There is   great uncertainty about what type of
> new exceptions can be created under the international copyright
> framework, as demonstrated by several of the studies commissioned by
> WIPO. Copyright has expanded dramatically in scope, duration, and
> breadth, and the legal fortification of technological protection
> measures has increased the asymmetry between exclusive rights
> incentives for creativity, and the public access to knowledge and
> innovation. This fundamental balance at the heart of copyright's
> fundamental rationale is now lopsided and threatens to undermine the
> framework of knowledge production.
> Second, the international copyright regime has lagged behind current
> technological realities. Copyright law is territorial, but the
> digitally networked environment is global, facilitating information
> flow in goods and services across national borders.
>
> Trans-border education and internationally accessible digital
> libraries are currently frustrated by the divergence of exceptions and
> limitations in different countries and the unclear application of
> private international law to the Internet: Students and teachers who
> want to use digital copyrighted information obtained from outside of
> their country cannot be sure that they can do so legally. Educators,
> libraries, and other knowledge providers face uncertainty about what
> information they can digitize, and make available without fear of
> legal liability. Yet, to date, there has been almost no discussion of
> how copyright law should be updated in light of these trans-border
> activities.
>
> EFF commends WIPO for commissioning a study on exceptions and
> limitations for educational purposes in Member States' national laws.
> We believe that WIPO should also commission an empirical survey from
> the point of view of educators, of the impact of current copyright
> laws on their ability to provide quality education and the impact of
> digital technology on participatory learning. This survey would allow
> Member States to understand the particular needs of educators and
> students that are not met by the current copyright regime, and
> underline the urgency of finding solutions to ensure the future of
> cross-border and digital education.
>
>
> As the World Blind Union has demonstrated so compellingly, these are
> real and pressing humanitarian problems that can no longer be ignored
> without calling into question the legitimacy of the entire copyright
> regime. While the international copyright regime allows countries some
> flexibility in creating exceptions and limitations to their national
> copyright law, it is not sufficient to address the opportunities and
> challenges facing those who seek to provide or access information
> services across borders.
>
> Providing greater certainty to students, educators, information
> service providers and technology developers, requires minimum
> exceptions and limitations for education, libraries and archives and
> the visually impaired in all countries' national copyright law  and
> international reciprocal recognition of works produced under national
> exceptions.
>
>
> The Standing Committee has reached an institutional fork in the road.
> It can seize the opportunity uniquely before it to stimulate the
> complementary goals of innovation, creativity, and development. Or it
> can resurrect discussions that only benefit incumbents and have not
> resulted in agreement after 10 years. Meaningful exceptions and
> limitations are key to the Development Agenda and the future relevance
> of WIPO. To pass over this opportunity is to ignore the winds of
> change and hope now before us. We call upon the SCCR to begin its
> urgent work guiding the construction of exceptions and limitations
> that would revive balance in the international copyright regime and
> make it more effective for the 21st century.
>
> Thank you for your consideration.
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Sherwin Siy
Staff Attorney
Public Knowledge
202.518.0020