TWN Info Service on Health Issues (Jul14/01)
8 July 2014
Third World Network

WIPO: Divide over new treaty on exceptions for libraries/archives
Published in SUNS #7839 dated 8 July 2014

Geneva, 7 Jul (Alexandra Bhattacharya) -- A North-South divide continues over a legally binding instrument for copyright exceptions and limitations for libraries and archives at the World Intellectual Property Organisation (WIPO).

Member States attending the 28th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) focused their discussion on "objectives and principles" for copyright exceptions and limitations for libraries and archives.

Developing countries throughout the discussion maintained the need to work towards the development of an international binding instrument in this area.

The 28th session of the WIPO SCCR took place in Geneva from 30 June to 4 July 2014.

The proponents of "text based" discussion for a binding instrument for exceptions and limitations for libraries and archives, namely the African Group and countries such as Brazil, had initially stated their preference for the current working document on the table (SCCR/28/REF/SCCR/26/3) to be used as the basis to discuss "objectives and principles".

The document contains "textual suggestions towards an appropriate international legal instrument (in whatever form)".

On the other hand, Group B (group of developed countries) including the United States, which has consistently spoken against the need for an international legal framework in this area, stated their preference to use the paper submitted by the US on Objectives and Principles for Exceptions and Limitations for Libraries and Archives (SCCR/28/8) as a basis of discussion.

After consultations with the regional group coordinators led by the Chair, it was decided, by way of compromise, to initially use the paper submitted by the US (SCCR/28/8).

Specifically, it was decided to focus the discussion on 4 out of 6 "objectives and principles" found in the US document, namely: (i) adoption of national exceptions; (ii) support for research and human development; (iii) exceptions and limitations in a digital environment; and (iv) other general principles.

It was then expected to move towards discussion on "objectives and principles" of 11 specific topics found in the working document SCCR/28/REF/SCCR/26/3.

The difference in views regarding which documents should constitute the basis of discussion stems from the inherent differences in positions with respect to exceptions and limitations for libraries and archives. Group B in particular, reiterated that the acceptance of the working methodology in no way should be seen as the acceptance of the merging of the two texts.

Similar positions exist in the discussion on Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with Other Disabilities which was also on the agenda of the 28th session of the SCCR.

The idea of a legally binding international instrument in the two areas is being objected to by a number of developed countries notably the European Union, which does 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.

[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."]

COUNTRIES PUT FORWARD DIFFERENT PROPOSALS TO MOVE FORWARD

In their opening statements, under the agenda item on exceptions and limitations for libraries and archives, Member States set forth their positions and proposed different modalities to make progress.

Bangladesh, on behalf of the Asia-Pacific Group, reiterated the importance the Group attached to limitations and exceptions.

"Almost all the members of our group are not gifted or blessed with adequate resources for dissemination of information or for imparting education to the public or for preservation of information of national importance, or for allocating large sums of money for basic research," it explained.

Bangladesh further noted that, "Under the circumstances, as per common practice in different international agreements, some vital limitations and exceptions should be allowed to the countries that require them to meet basic public interest demands".

It also expressed the need for "Facilitators" to work on the salient points from the discussion and to capture this in the working document.

Paraguay, on behalf of the Group of Latin American and Caribbean Countries (GRULAC), stated that the issue of limitations and exceptions for libraries and archives and for educational institutions and research institutions was of the greatest importance because such institutions generated knowledge and information. It expressed support for regional technical workshops to be organised to make headway on the matter and to clarify issues.

Support for regional technical workshops was also expressed by South Africa, Uruguay, Guatemala and Malawi.

Kenya, on behalf of the African Group, reiterated that the digital environment posed new opportunities for libraries and archives. There was the possibility of sharing information easier and faster and also advancing knowledge in society.

"Instead of waiting for hard copy of a book, which is available in library in one country, for weeks or months, the same can be delivered to a library within seconds," Kenya stated. There were however also challenges posed by the current system which made it difficult for libraries and archives to take full advantage of the opportunities.

Kenya underlined that the limitations and exceptions in the copyright system were not sufficient to deal with the new changes as they were designed to work in the era of hard copies.

In this regard, Kenya said that it was important to look at mechanisms at the international level on how some of the challenges could be addressed to also enable countries to take advantage of the opportunities provided by the digital environment without infringing on the law.

Chile stated that in 2004 it had proposed introducing limitations and exceptions on the Agenda of the Committee and after years of negotiations, there was now a treaty for the Visually Impaired.

Chile expressed its support for text-based work on exceptions and limitations in the area of libraries and archives the goal of which would be to obtain an international instrument that would promote these institutions.

A similar view was expressed by Ecuador, who stated that "work should proceed towards an instrument of this nature without prejudice to the flexibility that we hope all Delegations will display in this Committee."

Trinidad and Tobago also spoke in favour of text-based work in this area and supported the proposal for regional workshops and Inter-Sessional meetings with respect to this area.

Algeria clearly articulated reasons outlining the need for an international binding instrument in this area. Firstly, an international instrument could help developing countries to implement existing exceptions and limitations to enable national legislations to better implement them, Algeria stated.

Secondly, the international system would also be used to manage cross-border exchanges in the digital world.

Thirdly, an international instrument would "re-balance" the international copyright regime, which had primarily focused on the rights holders.

The Czech Republic, on behalf of Central Europe and Baltic States (CEBS), reiterated the group's long-standing position that the current international legal framework sufficiently enabled Member States to craft limitations and exceptions for the benefit of libraries and archives, research institutions and persons with other disabilities.

This is proved by the limitations and exceptions currently existing in legislation of many Member States, it explained.

As a way forward, the Czech Republic recognised the value of sharing experiences and views among delegations about the different ways of implementing these limitations and exceptions. It added that it might be useful to analyse legislation and also its implementation and applications by relevant stakeholders, beneficiaries and right holders.

It underlined its position that it was up to every Member State to decide how to allocate public resources in order to stimulate the public's access to copyright protected works.

It should be up to WIPO Member States to decide what kind of instruments, whether based on licenses or limitations and exceptions, are more adapted to traditions and realities of their societies and better reflect the cultural policy goals of their governments, said the Czech Republic.

Japan, on behalf of Group B, stated that constructive work on objectives and principles, the exchange of experiences, and the updating of studies by the Secretariat would be beneficial for all Member States and should be the way forward.

With respect to the organisation of regional workshops, Japan said that it was "premature to have those workshops at this moment, [on] account of the current status of the discussion at this Committee."

It stated that it would be rather more useful to have better technical understanding on the challenges and complex issues faced by libraries and archives at the national level.

The European Union (EU) said that it believed that the dissemination of knowledge, information and culture were important objectives and considered cultural institutions like libraries and archives to play an essential role within the communities they served. It therefore welcomed discussions on how a balanced copyright framework could enable these institutions to fulfill their public interest mission.

The EU expressed its opinion that the existing international copyright framework already provided for ample legal space and flexibility to all Member States of WIPO, to device, adopt and implement meaningful limitations and exceptions in this area.

It reiterated that space was available to all WIPO members to update and/or adopt rules as needed and to take into account their national legal systems and specificities. It underlined that the EU and its Member States did not consider the need for work leading towards a legally binding instrument in this area.

The EU yet again maintained that debate and exchange of views on this topic and the diverse national experiences in this area should be the way forward.

The United States stated that limitations and exceptions to support the important work of libraries and archives in preserving and providing access to creative works are a critical element of a balanced and vibrant copyright regime.

It continued to believe that the best way forward was to focus on general principles and objectives, and defined concepts on which all Member States can agree.

COUNTRIES DISCUSS GENERAL AND SPECIFIC OBJECTIVES AND PRINCIPLES

The substantive focus of the discussion for a day and half was devoted to the four "general" objectives and principles identified in the US document (SCCR/26/8) along with the discussion on the principles for preservation; right of reproduction and safeguarding copies; and legal deposit (found in the working document SCCR/26/3).

A number of countries including the African Group emphasised that an international legal framework for exceptions and limitations for libraries and archives was imperative in order to create an enabling environment for their implementation at the national level.

Other countries such as Brazil also emphasised that whilst promoting national exceptions and limitations was a good step forward, it was not sufficient.

With respect to the principle of "support for research and human development", the African Group emphasised the need for international cooperation in the form of an international instrument in order to share information across borders and facilitate human development.

On "exceptions and limitations in a digital environment", the third principle in the US paper, the African Group again emphasised the need for a solution at the international level so as to allow or to enable libraries and archives to exchange information across borders in a digital environment.