Librarians, Archivists: Why An International Solution Is Needed For Copyright Exceptions

Last week, the World Intellectual Property Organization copyright committee ended without agreement on the conclusions of the meeting or its future work, to the dismay of librarians and archivists associations. During the week, numerous representatives of these communities gave vigorous accounts of why a treaty is vital to grant them exceptions to copyright.

Two days of the 27th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), held from 28 April to 2 May, were devoted to exceptions and limitations to copyright for libraries and archives. The committee discussed a number of topics contained in a working document [pdf] (IPW, WIPO, 5 May 2014).

For each topic, a number of librarians and archivists associations were given the floor by SCCR Chair Martin Moscoso, director of the Peru Copyright Office. The speakers provided specific examples justifying the need for particular exceptions and limitations.

Parallel Importations

The working document, currently containing some textual proposals and comments from member states, has 11 topics. The first four topics had been dealt with at the previous session of the SCCR, last December. Topic 5 deals with parallel importations. According to the World Trade Organization’s glossary of terms, parallel imports refer to when a “product made legally (i.e. not pirated) abroad is imported without the permission of the intellectual property right-holder (e.g. the trademark or patent owner). Some countries allow this, others do not.”

The International Federation of Library Associations and Institutions (IFLA), said in their statement that parallel importation is allowed by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Article 6 (Exhaustion), as well as by Article 6 (Rights of Distribution) of the WIPO Copyright Treaty.

Libraries and archives may wish to import books from other countries which are not for sale in their national market for different reasons, the IFLA representative said.

“The ability to parallel import is important to enable libraries to fulfil their missions,” he said, adding “we need a guarantee that libraries all over the world will be able to provide their patrons with the information they are seeking.”

The German Library Association concurred and said parallel importation is an issue of “international exhaustion” of the distribution right. “As long as countries have only national or regional exhaustion, like in the EU (European Union), libraries that buy books in other countries outside the EU cannot be sure that they are allowed to lend them to their patrons,” the representative said.

Cross-Border Uses

Topic 6 addresses cross-border uses. According to the Australian Library and Information Association (ALIA), libraries participate extensively in cross-border collaborations, such as document supply and interlibrary loan. A survey carried out in Australia showed that of the 15 libraries and two consortia surveyed, all libraries participated in cross-border collaboration, dealing with 77 countries, requesting and supplying content.

However, the ALIA representative said, a majority of libraries participating in the study had requests from overseas institutions refused for copyright reasons, “even though those requests were made in accordance with Australian copyright law, an even though for some requests the material was not available from any other source.” As a “legacy to our colonial heritage,”he said, “many documents relating to Australia are overseas, in particular in the United Kingdom.”

The International Council on Archives (ICA), said that “an article on cross-border transmission of copies of copyright works by libraries and archives would not assist an imaginary group of users determined illicitly to exploit other’s people material and to export it around the world,” but would encourage research and study to produce new works. “Without libraries and archives, the rights holder bodies represented here today would have little to protect,” the ICA representative said.

According to the Society of American Archivists (SAA), “archives are the bridge between the past and the future,” and because archives consist of unique documents, “nearly all archives worldwide face the problem of cross-border requests for copies.”

The Electronic Information for Libraries (EIFL), said it partners with libraries and library consortia in more than 60 developing and transition economy countries. “The collections of libraries and archives in one country often contain materials of unique cultural and historical significance to people in other countries due to national border changes, mass emigration, shared common languages, research interests…,” the representative said.

“In many countries,” said the EIFL representative, “copyright exceptions stop at the border. They don’t permit libraries to legally provide copies of documents to overseas libraries at the request of an end user.”

“We need an international solution to an international problem,” she said.

The Association of European Research Libraries (LIBER) explained that the cross border nature of many of the activities of libraries are manifold, such as licensing, the use of orphan works and out of commerce works, document supply, and the purchasing of analogue information across borders.

Orphan Works

Topic 7 (Orphan works, retracted and withdrawn works, and works out of commerce) relates in particular to the use of orphan works and materials protected by related rights by libraries and archives.

The Scottish Council on Archives (SCA) remarked that despite the EU being of the opinion that exceptions to copyright for libraries and archives should be dealt with at national level, the EU chose an EU-wide “exception to copyright as the most appropriate and efficient solution for orphan works.” EU Directive 2012/28/EU [pdf] allows “certain permitted uses of orphan works.”

LIBER added that libraries “have embarked upon digitisation projects of public domain items in their collection since the 1990s.” However, he detailed, “finding legal mechanisms to digitise post-1874 published analogue materials that are still in-copyright has been very challenging.” This has been a concern for the EU Commission, he said, “because of the fear that in-copyright material not born digital will never be digitised due to the significant copyright barriers that exist.”

“This problem has been called the ‘black hole of the twentieth century’,” the representative said. He also called to an international solution to this issue.

Limitations on Liability for Libraries and archives

Topic 8 (Limitations on liability of libraries and archives) aims to protect libraries and archives from infringement liability if their action was performed in good faith.

The representative from SCA said archivists “take copyright law very seriously.” However “they find the copyright regime complicated, confusing and intimidating, and especially within the international context.” Archivists and librarians “want to know with certainty that they are in fact acting within the law,” he said.

He went on saying that exceptions to copyright, because they are often subjected to concepts such as “fairness” (fair dealing, or fair practice), and “reasonableness” are not sufficient and they should be accompanied by a limitation on liability. Librarians and archivists acting in good faith, engaged in non-commercial activities, should benefit from a provision establishing that “they will not be liable for inadvertent or unintended copyright infringement.”

IFLA gave the example of the Swiss National Library which had engaged in the digitalisation, in collaboration with researchers, of a series of First World War postcards, and had to refrain from publishing the entire collection of postcards online, by fear that some would still be under copyright, and unable to check.

Technological Protection Measures

Topic 9 deals with Technological Measures of Protection (TPMs) and the right for libraries and archives to circumvent those TPMs in certain circumstances.

The Chartered Institute of Library & Information Professionals (CILIP) said TPMs create a number of problems, among which is that TPMs do not cease to exist upon the expiry of copyright.

“In effect, they create perpetual copyright,” she said. Also, TPMs “may prevent acts permitted by national limitations and exceptions. The same TPM will apply to a specific digital information product, regardless of which country it is accessed from and which legal jurisdiction applies,” she said.

“WIPO member states have already recognised the TPM problem in Article 7 of the Marrakesh Treaty (Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled), which provides a useful precedent for language on TPMs that could be included in a treaty for libraries and archives,” the CILIP representative added.

Publishers Warn of Collusion with Marrakesh Treaty

The International Publishers Association (IPA) remarked that when the Marrakesh Treaty was created, “there was a clear awareness for the urgency and because of the humanitarian need, it was decided to move quickly rather than to move thoroughly.”

“We now have a lot more time on our hands,” he said, “and we can make sure that we get the issues right and we therefore give them the proper reflection.”

On the issue of TPMs, he said the issues faced by libraries are a mix of many different kind of issues and “only a very small part actually has anything to do with technical protection measures.”

Nowadays, the publishers’ representative said, it is no longer the case that libraries always buy copies which they then hold in their repository. “Often they will buy only temporary access to an online database which is constantly being updated,” he explained.

“We are actually talking about huge databases which are stored around the world” and the issue of how to preserve and how to enable continued access “is not solved simply through a small clause in a copyright law,” he remarked, adding that publishers are not an obstacle and are providing solutions themselves.

On the issue of parallel importations, he said that the prevention of parallel imports enables differential pricing, where the same book will be offered at a lower price in one country and at a higher price in another country.

If parallel imports are permitted, that will not lead to cheaper prices, he said, but actually “to much more expensive textbooks” in developing countries because “the cheap local editions will disappear and all that will be left is a single international edition priced for the comparatively wealthy students” in developed countries.