TWN Info Service on Intellectual Property Issues (May14/04)
7 May 2014
Third World Network

WIPO: Copyright exceptions and limitations text needed, says South
Published in SUNS #7798 dated 7 May 2014 

Geneva, 6 May (Alexandra Bhattacharya) -- Despite intensive and prolonged discussions ending at 2 am on Saturday, 3 May, governments at a copyright meeting failed to agree on the conclusions. 

The 27th session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organisation (WIPO) was scheduled for 28 April to 2 May, but went on till the early hours of 3 May. 

The key divisive issue was on the agenda item on limitations and executions (i) for libraries and archives and (ii) for educational and research institutions and for persons with other disabilities. 

[The agenda of the SCCR also included work on a potential treaty for the Protection of Broadcasting Organisations, which although contentious did not witness the same degree of discord.]

A number of developed countries, most significantly the European Union, objected to any reference in the conclusions that the Committee had undertaken or would undertake "text-based work" as favoured by the proponents of treaty language on the issues. 

Developing countries, led by the African Group, the Group of Latin American and Caribbean Countries (GRULAC) and individual countries such as Brazil, however, maintained the position that since the Committee's conclusions were meant to provide a factual account of the meeting, it was evident that a number of member states had engaged with the text of the working documents and had provided textual proposals. 

The 2012 WIPO General Assembly mandated the SCCR to continue discussion on limitations and exceptions for libraries and archives to work towards an "appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms), with the target to submit recommendations on limitations and exceptions for libraries and archives to the General Assembly by the 28th session of the SCCR". 

Similarly, the 2012 WIPO General Assembly had mandated the SCCR to "work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms), with the target to submit recommendations on Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with Other Disabilities to the General Assembly by the 30th session of the SCCR." 

However, the idea of a legally binding international instrument in the two areas is being objected to by a number of developed countries who do not want any international norm-making activities in this area, and they have consistently stated that national legislative frameworks, exchange of national experiences, development of studies and technical assistance and capacity-building were currently sufficient to address the problems at hand. 

On the other hand, a large number of developing countries, including the African Group, have consistently emphasised the need for an international legal instrument which would harmonise exceptions and limitations in the two areas. 

In particular for libraries and archives, they have underlined that this international harmonisation would provide a solution to the current knowledge and access gap in developing countries, take into account the current digital age, and allow libraries and archives to fully deliver on their societal role. 

Due to the lack of consensus on the conclusions (which according to an observer is the third time in the history of the SCCR), the Chair is expected to produce his own conclusions taking into account areas where agreement had been reached. 

OPENING STATEMENTS ON LIBRARIES AND ARCHIVES 

The Committee devoted two days for the discussion on libraries and archives on the basis of the "Working Document Containing Comments on and Textual Suggestions Towards an Appropriate International Legal Instrument (in whatever form) on Exceptions and Limitations for Libraries and Archives" (SCCR/27/REF/SCCR /26/3). 

This document is comparatively seen as being more mature than the one for educational and research institutions and persons with other disabilities. 

The working document consists of 11 topics, textual proposals, and general comments along with comments on national experiences. 

Kenya, on behalf of the African Group, stated that the current exceptions and limitations were not sufficient for library and archive institutions to render them effective and this was more so with the digital environment and the move in the modes of transmission from hard copies to digital copies. 

It further elaborated that while copyright law grants exclusive rights to authors and owners of copyrighted works and for any third party to access such works, there was a need for exceptions and limitations to create a balance between the rights of the right holders and the public interest, especially for libraries and archives who are entrusted with the responsibility to provide access to information and knowledge. 

It noted that the exceptions and limitations as they currently stand were not sufficient to enable such institutions to render these services effectively. 

Kenya said that there was a need to revisit the existing provisions on exceptions and limitations to provide for the changes in technology so as to facilitate access. Additionally, this was also necessary for the purposes of education and research in order to provide access to information to users irrespective of their location. 

Kenya also noted the impact of technical protective measures (TPMs), stating that while the African Group recognised the need for the use of TPMs for enhancement of protection of copyright works on the internet, it was also understood that these created a barrier for both libraries and archives in carrying out the mandate to provide access to information to their users. 

The African Group also put forward a procedural proposal whereby the textual suggestions would be separated from comments which would then be captured in an annex. 

This was supported by India, Iran, Brazil, and Morocco but did not garner the support of Group B (group of developed countries). 

Mexico supported the holding of an intersessional meeting on the issue of limitations and exceptions for libraries and archives taking into account that one of the main objectives of this Committee was to proceed with discussions to be able to achieve an international legal instrument. 

Iran also strongly supported the development of a legally binding international instrument for limitations and exceptions for libraries and archives and also for research and educational institutions. In the case of libraries and archives, the objective of the possible treaty was the strengthening of the capacity of libraries and archives to provide access to and enable preservation of library and archives material to carry out the public service role, it added. 

India underlined its support for a legally binding treaty for exceptions and limitations for library and archives. It explained that this was considering the changes in the working of libraries, whether it was due to the onset of the digital environment, availability of digital copies or the various contracts which were overriding limitations and exceptions being provided by the national laws. 

India referred to the issue of inter-library lending, noting that most of the libraries, not only in India but in other countries, were not being allowed to practise inter-library lending due to contracts and licensing agreements. This was an issue that a potential treaty in this area should address along with the idea of digital lending. 

Ecuador, Morocco, and Congo also expressed support for a legally binding instrument in this area. 

Japan, on behalf of Group B, reiterated that in the discussions of this Committee, recognition and respect should be given to differences of legal systems relating to libraries and archives among Member States to the difference of traditions and cultures. 

Based on this principle, Japan stated that Group B continued to believe that the goal of the SCCR should be the promotion of the exchange of experiences, ideas and principles in this field. In this regard, it looked forward to a fruitful exchange of views and experiences on items in this field which were not dealt with during the last session of the SCCR. 

It also expressed appreciation for the contribution by the United States titled "Objectives and Principles for Exceptions and Limitations for Libraries and Archives", and looked forward to discussing this. 

[During SCCR 26, the US had submitted a two-page document SCCR/27/REF/SCCR/26/8 titled "Objectives and Principles for Exceptions and Limitations for Libraries and Archives" which included the headings of: (i) Adoption of National Exceptions; (ii) Preservation; (iii) Support for Research and Human Development; (iv) Legal Deposit; (v) Exceptions and Limitations in a Digital Environment; and (vi) Other General Principles.] 

The Russian Federation urged for flexibility when discussing the issue of exceptions and limitations with respect to libraries and archives and not losing sight of the ultimate goal of ensuring the effective protection for authors and for creative artists for those who produce creative work. 

The European Union stated that not the same type of action (i. e. legally binding instrument) was required for libraries and achieves as was required in providing access to books for the blind under the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. 

It was of the opinion that the SCCR had failed to explain the rationale for the need to harmonise exceptions and limitations at the international level and had also not provided "substantive evidence" to justify such international harmonisation. There was a need to explain the "lacking" of national level exceptions in this area. 

It further explained that the "existing international framework provided for a wide variety of possibilities for all Member States of WIPO to insure meaningful limitations and exceptions in this area". 

It also added that "WIPO Member States that have not yet introduced such exceptions in their national legislation, can currently do so, and if necessary, request the assistance of WIPO or help of other WIPO states and stakeholders". 

It underlined that the "European Union and its Member States were not willing to consider a legally binding instrument in this area", adding that it perceived that the issue of exceptions and limitations for libraries and archives was a national issue and, therefore, did not require addressing by an enacting international instrument but through exchanging national experiences and updating relevant WIPO studies. 

The United States said that exceptions and limitations were a "critical element of a balanced and vibrant copyright law regime". It added that a combination of strong protections for authors and appropriate exceptions and limitations on their rights together served to further the copyright system's goals of encouraging creativity and learning. 

It highlighted that exceptions and limitations must be consistent with Member States' existing international obligations. 

It was of the opinion that individual countries should have flexibility to tailor limitations and exceptions to address their own circumstances and needs within the constraints of international obligations and taking into consideration their specific legal, cultural and economic environments. For this reason, it did not support binding norm-setting at the international level. 

The US urged further work in this area, on the basis of objectives and principles which would guide the development of such exceptions and limitations at national level and referred to its own proposal SCCR/27/REF/SCCR/26/8 in this area which reflected areas where there may be agreement. 

DISCUSSION ON TOPICS INCLUDED IN THE LIBRARIES AND ARCHIVES WORKING DOCUMENT 

During the two days allocated to discussion of this agenda item, the SCCR managed to discuss topics 5, 6,7,8,9 and started discussion of topic 10 as found in the current working document SCCR/27/REF/SCCR/26/3. 

There was also active participation from library and archive organisations such as the Electronic Information for Libraries (EIFL), International Federation of Library Associations and Institutions (IFLA) and German Library Association who provided concrete practical examples of challenges being faced by their institutions and made their case for international harmonisation of exceptions and limitations.