34th SCCR: Observer Statements on Limitations and Exceptions for Libraries and Archives

International Federation of Library Associations and Institutions (IFLA):
Thank you, Mr. Chair. We congratulate youas leaders of body and looks forward to working with you to achieve the goalsof the in the interests of the national copyright system. We thank the Secretariat fortheir hard work and IFLA is proud to have attended sessions of the SCCRfor many years and gratified that Member States understand and support the roleof libraries, archives and museums in promoting knowledge and the understandingof diverse cultures.

As the U.S. states and its principlesdocument SCCR/26/8, exceptions and limitations facilitate the public servicerole of libraries and are executives maintaining the balance between the rightsof authors and larger public interest, particularly education, research, andaccess to information that is essential in todays society. But that balancehas eroded over time as rights holders have promoted fell ashes notion thatcopyright is primarily or only about protection of rights not the public good.In a world where information is increasingly borderless, as borderless asbroadcast signals, the idea that issues related to access to information arelocal as one delegate astonishingly stated earlier this week is reallyincomprehensible and misguided. This is not to say, however, that local ornational action is not needed as one element in the equation of access toinformation. In this limited sense, we agree that the exchange of nationalexperiences in this body over the past several years has been helpful as havebeen the studies commissioned by WIPO from Professor Kenneth Crews whichdemonstrated the wide variation in exceptions and limitations existing inSCCRs Member States, including their absence in numerous countries. We applaudWIPO for commissioning these studies and urge that the Secretariat build on thestudies produced by professor cruise to develop a regularly updated searchabledatabase of exceptions and limitations for libraries, archives and museums tobe accessible across borders so that legislators and citizens who do not attendthese sessions can easily learn from others experience on an ongoing basis. Wefurther recommend that SCCR capitalize on the past sharing of Member Statesnational experiences and the suggested approaches in the Chairs chart ofSCCR/33 by creating a draft law on exceptions and limitations for libraries,archives and museums in collaboration with all stakeholders so that there willbe practical outcomes for recent discussions in this body. Such a draft lawwould draw on the committees past discussions on the subject but not bebinding or prejudice in any way the outcome of the committees own work. IFLA stands ready to work with its colleagues in the archival and museum communitiesas well as with rights holders delegates to SCCR and the Secretariat to achievethis objective. As for our recommendations or reactions to the Chairs finalchart from SCCR/33, IFLA supports this and we urge the Chairs chart be upped as a working document and certainly to the qua as an outcome of SCCR35. Finallyin response to the proposal by the Delegation of Argentina, SCCR/33/4, we hopethat the committee will request the Secretariat to prepare a study on issuesrelated to limitations and exceptions for libraries, archives and museums and across-border context including digital uses. We are grateful to the MemberStates that have placed and maintained limitations and exceptions for librariesand archives on the SCCR agenda and look forward to continuing thesediscussions. These outcomes will affect access to information and knowledge forpeople throughout the world. Thank you, Mr. Chair.

Society of American Archivists:
Thank you, Mr. Chair, I will try to bebrief. The Society of American Archivists, North Americas largest professionalarchival organisation looks forward to working with you and your Vice Chairs.Our members manage billions of primary source works from across the global. SAAbelieves in the importance of WIPOs work because copyright is central to themission of archivists. Archivists collect and preserve all types of creativeworks for one reason only, use. Most archived works, however, have never beenin commerce, but people globally need them to maintain their culture, identity,protect Human Rights and support innovation through new creative works. If suchworks cannot be made available digitally, however, and across borders, theymight as well not exist. Archivists and librarians are conscientious aboutcopyright, but sometimes strict adherence to the law conflicts with ourcollections and our mission. For example, a 1970s collection of over 120interviews of legendary jazz musicians are available for on site study in thearchives of the U.S. research library, but, their general usefulness has beenhobbled by unbalanced copyright law because the original copyright assignmentmentioned neither derivative works nor the yet to be invented Internet. As aresult, risk averse librarians and lawyers were unwilling to allow zing tallaccessibility of the interviews. Although jazz cannot thrive without takingrisks, an archivists obligation to the future requires that we minimize risk.Thats why we need reasonable exceptions to deal with the streams ambiguityinherent in our collections. Copyright is already perceived to be under attack.Can WIPO afford to torn away allies such as archivists? We have a very positivepublic approval rating from the very people that you need to reach. To keeparchivists on board the development of exceptions for archives must remain onSCCRs agenda. To this end the committees work should continue based on theprevious Chairs chart and that chart should become a working document for thecommittee. Thank you.

Centre for Internet and Society: Thank you, Mr. Chair.  CIS works on issues of access to knowledge and other digitalrights in India. I would like to share with you my experience which highlightsthe difficulty of building digital archives in India. Mr. Chair, earlier lastyear the government of India embarked upon the important project of digitizingthe cultural audiovisual material stored in government and private collections  to store material for preservation purposes,and set up a virtual network of these repositories to offer online access. Myorganization has been assisting them in this crucial public service mission.  These works are oral traditions, dance,music, theatrical practices, cultural practices – all of which lie largelyinaccessible and languishing in several small and large collections in India.Since, the Indian copyright Act does not contain an exception for the purposesof preservation by an archive; the entire project has suffered high costs interms of money and time. Money, because the project had to get expensive legalassistance to set up processes to obtain rights clearance from all theperformers who were a part of the works and copyright holders- some of whichare orphan works, thereby compounding the problem. Further, partneringorganizations also expressed legitimate fears of supplying their works, in caseof a potential copyright and related rights violation that could implicate themwith civil/criminal liability.

In such a scenario, for the benefit of other states toupdate their standards corresponding to this international legal instrument aswell, it would indeed be useful to adopt the proposals mentioned in the document SCCR/26/3 thataddress these issues, and others. Thank you.

International Council of Archives:Thank you very much, Mr. Chair. And the ICA congratulates you on your election and that of your Vice Chairs and we look forward to working with you. Archival institutions exist throughout the world. Governments, organisations and individuals create records to provide evidence of their actions to document their rights and obligations and to preserve their heritage. Archives acquire and preserve these documents and make them available for all to use as the raw materials for cultural, academic, social and scientific research. The nature of archival material presents a particular problem. Archives hold billions of copyright works that were not created or intended for commercial purposes. Because they were never published, the rights holders for such works cannot be located. For these reasons, collective licensing is not a workable solution. The archival mission to make their holdings available for research is ham strung by a web of inconsistent copyright laws that have failed to keep up with social and technological development. In this body systemic discussion of the eleven topics, archivists provided a rich array of real life examples that clearly demonstrate the need for exceptions, for mutual recognition by Member States of exceptions and limitations to copyright that would permit archives everywhere to serve an international audience. The results of that excellent work was summarized in the Chairs informal chart on limitations, exceptions for libraries and archives. Every creator benefits from the work of his or her predecessors. Knowledge of that earlier work comes largely from libraries and archives. Many of the rights holders represented in this room could not have created their works without us. Why would creators not wholeheartedly support exceptions for archives and libraries that would only benefit their work. Regrettably, we continue to hear assertions from some groups that national solutions are suffer. It should be abundantly clear by now that national solutions are far from sufficient. We need solutions that apply in a global network environment. And in that regard, Mr. Chair, the Chairs informal chart on limitations and exceptions for libraries and archives prepared at the end of SCCR33 refined and clarified the topics to be addressed and provides a practical approach to continue to move this initiative forward. We would support our IFLA colleagues called to have it adopted as a working document of the committee, and we would also support IFLAs call for a study of cross-border issues. Thank you, Mr. Chairperson.

German Library Association: I congratulate you on your election as aChair and I speak on behalf of German Library Association representing 10,000libraries in Germany. Libraries and archives face a problem. There is a highlevel of the international copyright protection, on the other hand, there is nosuch uniformity in limitations. Limitations like the ones fixed in the alreadymentioned Chairs informal chart, for example, for preservation, lending,document delivery, are the basis of library services. But limitations andexceptions are like a patchwork of different national legislations. For everylibrary service crossing borders that means to act legally library staff has toknow about the limitations and exceptions not only in their own country,country of origin but also in the country of destination of that service.Respective to the German library index and university libraries in 2016 around60% of the acquisitions were electronic in technical universities the portionof electronic acquisitions is even much higher. These numbers in internationalcomparison are even low. We can assert that research libraries are digital morethan they are paper based. In the electronic world, the problem is resourcesusually are only available after agreement on license stipulations formulatedby the rights holders mostly. That means contracts are concluded. Contractseventually can override the limitations and exceptions. This committee mightagree on in one form or the other. The objective of facilitating cross-borderlibrary teaching and research services could be achieved by introducing aninternational mandatory instrument on limitations and exceptions. Another trackto facilitate cross-border use could be the introduction of principles ofharmonizations combined with a rule of mutual recognitions like proposed in thedocument of the Delegation of Argentina. Thank you, Mr. Chairman.

International Federation of Journalists: The International Federation of Journalists congratulates, again, the Chair and Vice Chairs on their election and the members of the Secretariat for their diligent work. We represent about 600,000 journalists in 140 countries worldwide north and south. The International Federation of Journalists, of course, understands ts essential role of libraries and archives specifically we fully support them having the freedom to have copies for preservation. The International Federation of Journalists has repeatedly called for libraries and archives to have proper direct funding to do this themselves and not to be forced to subcontract digital archiving to commercial operations. The honorable representative of Brazil referred earlier this morning to the potential to extend the outreach of libraries and archives in unprecedents ways.. Of course, this, the making of works available on the Internet, for example, and on its successes is an important supplement to the vital role of libraries and archives in the education and training of many including journalists. But when it comes to libraries and are executives making copies of works available off the premises, that is is it not, a publishing operation? The International Federation of Journalists believes that the solution to this issue is collective licensing and necessarily capacity building to insure that efficient Democratically controlled collective licensing is available in all Member States and can deal with cross-border issues as the collective licenses that already exist already do. Many of those 600,000 journalists particularly those who focus on international reporting are poorly paid. Where there is such collective licensing it makes important contribution to their economic survival as independent professionals with their own essential contribution to make to the recording and preservation of our culture from within our cultures and not relying on foreign reporting. Thank you.

Knowledge Ecology International: Thank you, Mr. Chairman and congratulationsfor your election. And for your Co-Chairs. One thing I just wanted to mentionas related to libraries is in addition to the excellent studies that have beendone by Kenneth Crews and other people that have looked at library exceptions,I thought it might be interesting to have the chief economist or other peopleinvolved, but certainly the chief economist to look at the economics of thelibrary industry. I think that we look at libraries as part of the research anddevelopment infrastructure for a country, not only as places people go to readnovels, but an essential part of the competitiveness and ability for a countryto have a strong high tech sector but also play an important role in thedevelopment. And it would be interesting to know what the assessment is becausewe hear it from other industries all of the time. They talk about the number ofjobs in the film industry or the number of jobs. It would be interesting toknow how many people are employed in different countries in the library sector,but also what contributions the library sector makes to the economicdevelopment of the country, and what challenges they face on pricing. The lastpoint I wanted to make is that clearly there is a set of issues that itsreally hard to reach on census on, and there is other areas where its easier,I would think, to reach consensus on. This discussion of the archiving and thepreservation of documents is a pretty good case. Certainly the making availableof whats put into, whats archived and preserved in terms of documents, itsmore challenging to reach consensus on that than it is to insure that peoplehave adequate exceptions to merely do archiving and preservations. And I thinkthat it would be unfortunate if in looking at their wide range of issues thatare facing libraries, recognizing that there is a very inadequate set ofexceptions in many countries according to the studies that have already beendone, that people dont move forward in areas where consensus could be reachedsuch as preservation and archiving because there are other areas that are morecontroversial. Thank you.

Electronic Information for Libraries: Thank you, Chairman. Im speaking on behalfof the Electronic Information for Libraries and I would like to thank you forgiving me the floor and congratulate you upon your election to Chair thiscommittee. I would also like to congratulate your Vice Chairs. We would like tothank the African Group, GRULAC, Asia-Pacific Group and the other delegates forhaving spoken of the interrelationship between the Sustainable DevelopmentGoals and the establishment of access to libraries and archives because emphasisis placed on access to information. Ladies and gentlemen, the Internet isglobal, but legislation on copyright stops at borders and that is why we arehere today. Digital technology has changed the world, which people have accessto information. Today the way we study and learn in fact means that people donot have full access. We believe that copyright is important, and thatlimitations and exceptions are crucial for a modern information infrastructureas well as for open access and other licensin wills. We are very pleased thatother countries have modified proposals on copyright.. We are pleased that somecountries have expanded their exceptions or introduced new ones. However, somecountries who are updating their law are not enough to resolve a broaderproblem, the demand for cross-border access to information for researchand culture. And the need to insure that nobody is left behind in access toknowledge means that there is say need for this aspect to be taken intoaccount. There are specific issues which were compiled in a document andsubmitted to this committee and I would like to invite you to read it. Thereare printed copies available, but it can also be found on line. It begins withthe Internet is global. We also support IFLAs and ICAS interventions and wehope that progress will be made swiftly in the SCCR in this issue. We thank youvery much for your attention.

International Council of museums (ICOM):Thank you, Mr. Chair, for this opportunityto address this important agenda item.. The international Council of museumsrepresents important 36,000 museum professionals world wide. We are here, Mr.Chair, to give our voice to museum professionals for this important agendaitem. After consultation with the international museum community and in keepingwith the results of the WIPO study on exceptions and limitations on copyrightfor museums ICOM joined forces with our library and archive colleagues topursue exceptions to copyright for the benefit of libraries, archives andmuseums as enumerated in the Chairs informal chart that provide for exceptionsfor all three. This pursuit is not intended to disrupt markets, but instead istargeted to instances where museums and indeed libraries and archives areunable to carry out their often shared mission. ICOM was very pleased that theCanadian delegation called for a museum study in 2013 while at the 26th sessionof the Standing Committee on copyright and related rights. The studyon exceptions first draft was distributed and presented at the 30th session ofthe SCCR in 2015. The study distributed business WIPO provides a broad basis ofunderstanding of the status of exceptions for museums within WIPO Member Statesand provides for the basis for ICOMs continued advocacy of exceptions formuseums. The purpose of our intervention today is to signal that ICOM iscommitted to the belief that a harmonized approach towards libraries, archivesand museums is both possible and necessary to achieve the overall objective ofobtaining operational exceptions for materials and cultural heritagecollections at the international level. [..] there are many instances wheremuseums, libraries and archives cross mandates given the nature of distinctivecollections. Libraries hold collections that include artifacts moretraditionally aligned with museum collections or have accessioned collectionsthat include unpublished materials often found in archives. Museums hold archivalcollections, have libraries within museums, and include study collections aspart of their overall collections. Museums like archives nay oftentimes includea vast array of artifacts in their collections and include materials that haveoften been published and unpublished. At the same time, libraries, archives andmuseums face the same obstacles created by copyright law in trying to fulfilltheir respective missions being education, public interest, access tocollections and communication of scholarship. This is particularly true whenmuseums are examined not simply as stewards of art collections but as stewardsof historic scientific and natural collections as well. The similarities are in fact magnified when we examine the collections we face with our 20th century collections. Museums, libraries and archives face similar challenges in preserving, exhibiting and providing access and communicating about art collections. Thank you, Mr. Chair for the opportunity to address this important issue.

European Bureau of library, information and documentation associations: Mr. Chair, we congratulate you and the ViceChairs on your elections to office, and thank you for inviting the EuropeanBureau of library information and documentation associations which is the voiceof libraries in Europe to take the floor. The consolidated libraries andarchives studies in the SCCR30 and the museum study both from 2015 reveal thatthe national frontier-based approach to copyright with regard to libraries,archives and museums now in disarray, too disparate and stuck in the pre-Internet era. In the E.U. this has been the justification of proposal ofmandatory cross-border exceptions to copyright. Yet in face of the everexpanding world wide web. National copyright laws are in need of constantmodernization to allow institutions to function optimally in an internationalcross-border online environment. Now that the detailed discussion of the topichas been summarized by the previous Chairs SCCR/33 document. We offerpractical suggestions for moving forward. First, we suggest that this committeeestablishes the principles to inclusion in the note for overarchinginternational copyright framework for copyright exceptions and limitationsaffecting libraries, archives and museums. The proposals made by the USdelegation in 26/8 offer useful guidance that can shape the content of thecommittees work. A comprehensive and effective solution for libraries shouldset standard for and protect national copyright exceptions that impact on thefunctions of these institutions, including preservation of materials andcontent, copying for document delivery in any format including cross-borders.Lending of works including remotely. Protecting limitations and exceptions foroverride by contract terms and by holding partially inaccessible can due tolegal protections of TPMs. Making orphan works available on line to the public,text and data mining of legally accessed coven tent. Acquiring work includingby importation and protecting libraries, archives and museums and staffaccounting for them in good faith for criminal or civil liability forunintended copyright infringement. There are various ways in which thecommittee can support work. And could be usefully adopted by this committee.Secondly, in line with the EUs call for guidance to Member States, we wouldwelcome efforts from the Secretariat to further inform our discussions. In linewith the Poe proposal from Argentina which correctly addresses the need forminimum set of exceptions and limitations nationally and the solution forcross-border issues this what the E.U. itself is seeking to do domestically. Wewould welcome a study on cross-border issue as a basis for further discussion.In order to provide further guidance to Member States, this committee couldrequest the Secretariat to convene an expert group first and foremost oflibrary archive and museum copyright experts as well as copyright academics,lawyers and relevant stakeholders to support the commissioning and tasking ofan agreed expert to develop modern WIPO draft law for libraries, archives andmuseums. Finally this committee might wish to request that the Secretariatprovides a useful tool to assist its work by creating online publiclyaccessible database of copyright exceptions and limitations. Additionally sincethe pace of change in copyright law affecting the library, archive and museumsector is to fast moving the committee might request an annual report from theSecretariat of changes to nationals and practices in copyright and relatedrights. Thank you for your attention.

Innovarte Corporacion: Thank you very much, Chairman. We wouldlike to congratulate you upon your election. We would like to thank the excellent  work on studies on libraries and archives.The proposal to work with the aim of a treaty on exceptions and limitations tocopyright to protect the balance and legitimacy of the system for copyright andrelated rights with regard to libraries and people with disabilities issomething we have been discussing in this committee since 2004 starting from a proposal which came from Chile. As discussions of the Marrakesh Treaty hasshown that provisions on copyright to protect categories of people who arethreatened or under mined by a lack of exceptions is not only possible but goodand it shows a means to protect libraries, archives and possibly also museums.In this regard, we would like to request the members of the committee in goodfaith to consolidate all of the work done based on the text which has alreadybeen considered, the informal summary of the Chair of the committee as we haveseen its based on textual proposals either for treaty or another form ofinstrument which was proposed by various delegations including Brazil, India,the United States and many others. We propose that the committee would adoptthis text without any prejudice to what form the work might take in the future.We believe on another point that the proposal from Argentina is particularlyuseful since it seeks to come up with a solution to the obstacle, namely, thelack of harmonization of rules on libraries and archives at internationallevel. We believe it is a compliment to what has already been worked on by thecommittee with regard to principles and topics which are necessary forexceptions other than a national level. It should be subject to greateranalysis by this committee, thank you very much.

Electronic Frontier Foundation: Thank you Mr. Chair. The EFF work supports the work of libraries and archives which have become more relevant in the digital age and which are more challenging now. The updating of exceptions and limitations are an important way to insure that libraries and archives are equipped to meet these two challenges of fulfilling missions in the digital age. In an ideal world EFF sees norm setting as the only way to ensure that WIPO members provide a basic level of modernized limitations and exceptions for libraries, however, we recognize that members do not have the appetite for norm setting in this area at this point in time for various reasons. In that light, we do support the proposal IFLA has made for a draft law and searchable database on library limitations and exceptions. This strikes us as a workable compromise that does not commit members to hard norm setting but which would be a useful interim step towards the harmonization of limitations and exceptions for libraries worldwide. Finally and on a different topic, I would like to express EFFs hope that in the next SCCR session time will also be made available for NGOs to make statements about the broadcast treaty. Thank you very much.

Note: Source of the statement texts are WIPOs realtime transcription service.