EIFL (Electronic Information for Libraries) is a not-for-profit organization that works with libraries to enable access to knowledge in developing and transition economy countries in Africa, Asia Pacific, Europe and Latin America. Their mission is to enable access to knowledge through libraries in developing and transition countries to support sustainable development.
They recently developed a Core Library Exceptions Checklist, freely available on their website through a Creative Commons licence. The EIFL Core Library Exceptions Checklist sets out provisions that every copyright law should have to support modern library activities and services, such as lending, making an electronic copy of a journal article or book chapter for a user, providing library material for use in virtual learning environments, and undertaking digital preservation.
The checklist, in two parts, first featuring library activities and services, the second part dealing with issues affecting the scope and efficacy of the exceptions, is also companied by a scorecard to grade how the law performs for libraries.
In parallel to WIPO’s study on copyright limitations and exceptions for libraries, archives, educational and research institutions, this checklist is a practical tool that will benefit libraries and their users, and will hopefully result in globally improved copyright laws.
Photo: Emmanuel Berrod – WIPO
The World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) meets this upcoming November 14 to November 18. Several topics are on the agenda for discussion, including limitations and exceptions for libraries and archives. The last four topics outlined in this working document are slated for discussion:
- 1. Limitations on liability for libraries and archives (Topic 8 p.40): the committee will discuss a proposed text to protect librarians and archivists from criminal liability and copyright infringement when they perform their duties in good faith.
- 2. Technological measures of protection (Topic 9 p.43): The committee will discuss proposals that would ensure that libraries and archives could circumvent digital locks where necessary to carry out the actions permitted under the proposed international instrument. The government of India notes that “when we are extending limitation exceptions given to the Libraries, there is a need for giving or allowing them to circumvent the technological protection measures but the care should be taken that it should not lead to piracy.” (p. 43)
These two texts are of importance, as in the current context, “copyright exceptions and limitations are increasingly undermined by licensing practices and the use of technological protection measures that prevent libraries and archives from performing their functions.”
- 4. Right to translate works (Topic 11 p.48): Article 8 of the Berne Convention already provides that authors enjoy the exclusive right of making and of authorizing the translation of their works. The proposed text presented at WIPO will discuss proposals for an international norm for the right to translate, permitting translation for the purposes of “teaching, scholarship or research” when the original is lawfully acquired and the work is not available in the language required. Publishers and authors are likely to object to these proposals.
These proposed texts have been on the agenda since 2013. As discussed in one of our previous posts, these proposals, if ensured, could free libraries, archives, educational and research institutions from copyright provisions that hamper their ability to make use of copyright works.
Photo: WIPO – Emmanuel Berrod.
Photo: WIPO – Emmanuel Berrod.
The government of Argentina has submitted an important proposal in current negotiations towards an international instrument on limitations and exceptions to copyright at the World Intellectual Property Organization (WIPO).
Most international treaties seek to establish minimum standards. In the case of the current WIPO negotiations, relating to exceptions and limitations to copyright for education and research institutions and persons with disabilities, this means that all countries would agree to permit a minimum set of things, such as permitting photocopying for classroom use or reproduction for classroom display.
As the Argentinian government notes, this often does not go far enough, especially in the online context, since countries invariably differ widely in their implementation of such minimum standards, and digital transactions often involve multiple country jurisdictions.
Many everyday actions done in the context of educational institutions potentially involve multiple jurisdictions, and could be legal in one jurisdiction but not in the other:
- playing an Internet video from a web site based in one country in the classroom of another;
- uses of works in distance education, where students may be based in a different country from the instructor;
- downloading works from a web site in another country for educational purposes;
- making available or sending articles, texts, or digital course packs from one country to another.
Understanding the legality of any of these actions, along with many others, currently involves expensive legal analysis of the copyright regimes of multiple countries–an untenable situation for educational institutions, as the Argentinian government notes.
Argentina therefore proposes that “within the scope of a treaty on limitations and exceptions, lawful conduct in one territory should not be illegal in another. If reproduction or making available is valid under the treaty, it cannot then be invalid under the rules of another State jurisdiction.” (p. 4). The exact wording of the proposal is as follows:
Where performed in accordance with the exceptions and limitations set forth in this agreement, the reproduction or making available of a work shall be governed by the law of the country in which the reproduction or making available occur, without precluding the reproduced work from being delivered to or used by a person or institution benefitting from exceptions and limitations located in another Member State, provided that such delivery or use is consistent with the terms and conditions set forth in this agreement. (p. 4).
The Argentinian government has proposed a solution worthy of serious discussion at the WIPO meeting to be held next week.
[Original post available here]
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.
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:
by Sara Bannerman