Author: Sara Bannerman

WIPO’s move to open access laudable among international organizations

It’s important, in the interests of transparency, accountability, and access to knowledge, that international organizations adopt open licencing of their publications and records.  WIPO’s recent move to implement a new Open Access policy puts it among the forefront of international organizations adopting Open Access policies.

In 2013, Creative Commons announced a new Creative Commons licence specifically designed for international organizations (IGOs). International Organizations’ Creative Commons licences are similar to other Creative Commons licences, but are specially designed for international organizations, which have special copyright licencing requirements due to their privileges and immunities in national legal processes.

In adopting the Creative Commons-IGO licence, WIPO is at the forefront of UN agencies and other international organizations.  WIPO joins UNESCO and a number of UN-funded programs and portals, as well as the World Health Organization (WHO) and the World Bank Group in adopting the licence.  WIPO and other UN agencies must go further.

The 2012 Hague Conference on Private International Law unanimously endorsed a set of recommendations that included a set of 18 guiding principles on access to law (Greenleaf, Mowbray, & Chung, 2013).  The principles of access to law widely endorsed by states call for not just open access to legislation and case law, but also open access to “relevant historical materials, including preparatory work and legislation that has been amended or repealed, as well as relevant explanatory materials.”   Further, they call on states to “permit and facilitate the reproduction and re-use of legal materials[…]by other bodies, in particular for the purpose of securing free public access to the materials, and to remove any impediments to such reproduction and re-use.”

While not perfect, WIPO has been noted for its relative transparency and the accessibility of its documents.  WIPO’s new Open Access initiative is a part of this.  However, the licence, at present, will be applied to WIPO publications published online on or after November 15, 2016 and other select content.  In the interests of continued openness, transparency and accountability, WIPO should apply the Creative Commons-IGO licence to all of its publications, including historical materials, meeting documents, and explanatory materials, and including documents published prior to November 2016.  In an era of increasing skepticism of globalization, WIPO can build on its own best practices and take the lead on transparency and free access to law.

 

With thanks to Coralie Zaza for her extensive research on the Open Access policies of international organizations.

Fair dealing and course packs: Canadian and international challenges

by Sara Bannerman

A draft study by Professor Seng presented last week at the World Intellectual Property Organization (WIPO) is of particular relevance to Canada, where many universities have recently begun to take the stance that the inclusion of articles or book chapters, for example, in hard copy and electronic course packs, is fair dealing that does not require permission or payment of copyright fees.  Is the Canadian universities’ interpretation of fair dealing in line with the policies adopted in other countries?  Professor Seng’s study sheds some light on this question.  Read my full blog post on this topic here. Chapter 4: “Access to education, libraries, and traditional knowledge” of my book International Copyright and Access to Knowledge addresses the history and present politics of copyright in educational works.

Libraries, archives’ role in making orphan works accessible up for debate at WIPO

Discussion of the internationalization of copyright limitations and exceptions, such as expanded exceptions to copyright for libraries, educational institutions, and people with disabilities, continue this week at the World Intellectual Property Organization (WIPO)’s Standing Committee on Copyright and Related Rights.

Discussions of access provisions in international copyright have been ongoing since 2004 and have, so far, resulted in the establishment of the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today’s discussions focused on building on the work done under the Marrakesh Treaty to see the possible establishment of an international instrument internationalizing copyright limitations and exceptions for libraries and archives.  International provisions are necessary because, as I note in chapter 4 of my book, International Copyright and Access to Knowledge (Cambridge UP, 2016):

libraries face a number of problems as they attempt to provide both traditional and new services to their users – many related to new technologies. Digitization, license agreements imposed by publishers of electronic journals and books, and Technological Protection Measures (TPMs) all introduce problems of access, preservation,and maintaining copyright exceptions. Moreover, the globalized possibilities of resource sharing, which take place increasingly across borders, are undermined by the territoriality of copyright law. IFLA, the ICA, and others suggest that a treaty is the best way to ensure that a minimum set of limitations and exceptions for libraries and archives exist, and that they apply in cross-border environments. (76)*

One focus of today’s WIPO discussions was on the topic of orphan works, or copyright works where the copyright owner can’t be found.  Libraries and archives are often the “adoptive parents” of orphan works; they are in a position to facilitate access to these works, especially through digital means.  However, copyright regimes often stand in the way, as can differing national regimes.  The International Federation of Library Associations and Institutions (IFLA), which is active at the meetings, notes that:

…there is a lot of progress to be made, with as many different copyright regimes there as there are states, each giving different types and degrees of protection if any at all. Moreover, as digital technologies bring about radical change in the information environment, a failure to act is the same as going backwards. This is why IFLA is engaging in support of change both at the global (WIPO) level, and nationally.

Current proposals that are on the table for orphan works (see page 34-39 of the current working document) would allow entities such as libraries to reproduce, make available to the public, and otherwise use orphan works.  Some proposals apply these provisions, as well, to retracted works (African Group, Equador, India), and some would require remuneration to authors or copyright owners who are subsequently identified (Equador).  However, there is no consensus among states on such proposals, with the United States and the European Union among the key detractors.IFLA is asking for “changes which would give libraries the right to work across borders, to give access to orphan works, and to import books which are available in other countries.”  For them, “the goal – an international framework which frees up libraries and librarians – is worth the effort.”  After all, IFLA explains, “it’s through exceptions and limitations to copyright that we can do our job.”

The chair’s summary of today’s discussion is expected to be disseminated tonight.

Tomorrow’s discussions are expected to focus on the internationalization of exceptions and limitations for educational and research institutions and for persons with other disabilities.

For those following the discussion, a number of groups are blogging and tweeting from WIPO:

 Originally posted here.
by Sara Bannerman

WIPO to discuss library and archive copyright provisions

Some interesting proposals will soon be under discussion at the World Intellectual Property Organization that could free libraries, archives, educational and research institutions, and people with disabilities from copyright provisions that hamper their ability to make use of copyright works.

The World Intellectual Property Organization’s committee on copyright meets this upcoming June 29 to July 3.  Three main topics will be under discussion: first, the possible establishment of a treaty granting intellectual property protection for broadcasting organizations; second, the possible establishment of an international instrument setting out copyright limitations and exceptions for libraries and archives; and, third, the possible establishment of an international instrument setting out limitations and exceptions for educational and research institutions and for persons with other disabilities.[1]

The need for limitations and exceptions by libraries was laid out in 2011 by a number of library organizations, which noted that:

  • preservation of print and digital materials is a matter of increasing concern as “born digital” documents must be retained, print documents must be preserved and sometimes repaired, and digital lock increasingly make the job of preservation difficult or impossible.
  • libraries and archives must increasingly collaborate across institutions and borders, and copyright law must “catch up” to reflect this.

They suggested that an international treaty could enable libraries and archives to better preserve works; to support education, research, private study; and to support people with disabilities in accessing content (p. 5).

Currently two sets of proposals, one by the USA, and the other by the African Group, Brazil, Ecuador, India and Uruguay, are on the table for discussion. Both sets of proposals would:

  • encourage copyright regimes that would enable preservation;
  • encourage legal deposit regimes; and
  • encourage limitations on liability for libraries and archives acting in good faith.

However, the proposals of the African Group, Brazil, Ecuador, India and Uruguay go much further to also encourage countries to enable:

  • acquisition of works by libraries via parallel import where a member state does not provide for international exhaustion;
  • cross-border use of works between library and archive institutions;
  • libraries and archives to reproduce and make available orphan works;
  • circumvention of digital locks for the purposes of making use of limitations and exceptions outlined in the instrument;
  • elimination of the contractual overrideability of limitations and exceptions; and
  • libraries and archives to translate works for the purposes of teaching, scholarship and research.

It is expected that at the next session discussion will continue on these proposals, and that an additional document by the chair will also be discussed (13).

[Original post available here.]

—

[1] Knowledge Ecology International provides extensive information on the first topic.

The broadcasting discussions have been ongoing for ten years, as was noted by the Brazilian delegate at the last meeting of the committee (Draft report, p. 17).  The latter two sets of discussions have gathered some momentum after the successful adoption of WIPO’s first treaty on limitations and exceptions for the visually impaired.

Gurry appointed for second term at WIPO

Francis Gurry has been appointed by the member states of the World Intellectual Property Organization (WIPO) for a second term as Director General.

Gurry is responsible for “signing, sealing, and delivering” two new intellectual property treaties, including the 2013 Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, the first WIPO treaty ever to focus on granting  access to copyright works rather than on granting new intellectual property rights. He also delivered the 2012 Beijing Treaty on Audiovisual Performances.

Controversies had surrounded Gurry’s tenure as head of WIPO, including recent allegations of misconduct (see also report by Fox News); the failure to conclude the fall 2013 General Assembly on time, requiring an extraordinary meeting in December; controversies over the process for establishing new WIPO regional offices; and the (later resolved) shipment of computer equipment to North Korea and Iran.  Some Members of US Congress have opposed his reappointment.

The Twenty Seventh Session of WIPO's Standing Committee on Copyright and Related Rights
Photo: WIPO – Emmanuel Berrod

In his acceptance speech, Gurry made note of a number of challenges that lie ahead, including “asymmetries of wealth, opportunity and knowledge; historical and contemporary trust deficits; and the reality of a multi-speed and multi-tiered world in which multilateralism, while being the highest expression of inclusiveness and legitimacy, is nevertheless the slowest solution.”  He also thanked the diplomatic community in Geneva, saying  “Ambassadors and their colleagues have been extremely generous with their time and availability, very indulgent of my failings and shortcomings and always willing to engage and to assist in overcoming difficulties.”

Gurry, an Australian, was appointed from a slate of four candidates including also Nigerian Geoffrey Onyeama, WIPO Deputy Director General; Alfredo Suescum, Chair of WTO TRIPs Council and Panama’s Ambassador to the World Trade Organization; and diplomat Jüri Seilenthal of Estonia.  Seilenthal was eliminated in March.  Gurry’s second term will last until 2020.