Subject: Proposed WIPO response
Date: ke 09 loka 1996 - 17:35:14 EEST
Emanuella Giavarra has asked if I would post this to the Ecup
List. I have put this together as a proposed response to
governments. I admit to using suggestions from other
colleagues. Feel free to use it and to post further
suggestions/deletions. I have not commented on Article 13 -
Obligations concerning Technological Measures - as I do not
know whether it should concern the lis community. If you
think it should be included, write something. I look forward
to your views.~
Information Manager (Legal and Parliamentary)
The Library Association Tel: 0171 636 7543
7 Ridgmount Street Fax: 0171 436 7218
London WC1E 7AE email: email@example.com
Proposed New Treaties in the Copyright field under discussion
Suggested text for a Response from the Library and Information
1. Comments are confined to the proposals contained in
CRNR/DC/4 concerning the provisions aimed at addressing the
challenges of digital technology.
2. Whilst it is important to consider the solutions to the
problems digital technology may cause to copyright owners, the
library and information community believes that the proposals
on the digital agenda are premature. The proposals concerning
the Right of Reproduction and the Right of Communication have
only been put forward in the last few months. The
implications for the public especially have not been given
sufficient debate either in the WIPO Committee of Experts or
nationally. Users' viewpoints have not been considered or
discussed. We consider, therefore, that they be deleted from
the treaty in December with the aim to raise them again after
a suitable period of deliberation and discussion with the
users, especially the library and information community.
3. Of especial concern is the fear that the balance between
the protection of rights owners and public interest will be
4. In the note 7.15, the Chairman has stated that the
interpretation of the important right of reproduction should
be agreed by all nations. We support this. In this digital
age, harmonisation of intellectual property laws is essential.
However, within this harmonisation should be the equally
important aim of ensuring access to information and knowledge
5. From the perspective of the library community, the growing
trend towards copyright protection for purely economic reasons
seems to be in conflict with the original aims of copyright to
promote the progress of science and arts. We are concerned
for our colleagues working in less favoured nations who are
unable to have adequate access to knowledge contained in
copyright protected works and we question what would happen to
knowledge if all knowledge had to be paid for.
6. It is essential, therefore, that there are exceptions in
all countries to allow copying especially by librarians for
certain purposes. It is essential that the gap between the
information haves and have-nots is not widened.
Article 7 - Scope of the Right of Reproduction~
7. We are puzzled by the need to expand the definition of the
right of reproduction to include indirect reproduction (7.1)
caused by incidental digitisation of a work, and we are
similarly confused about the the proposed limitation in 7.2:
"Contracting Parties may limit this right of reproduction in
cases where a temporary reproduction has the sole purpose of
making the work perceptible or where the work is of a
transient or incidental nature".
8. It would appear that the limitation would still have to be
authorised by the author or allowed under national
legislation. As it cannot be guaranteed that all nations will
implement an exception to authorise temporary reproduction in
the digital environment, there appears to be a contradiction
to the purpose behind the accompanying notes 7.14 and 7.15
which attempt to justify Article 7 by reasoning that the
interpretation of the right of reproduction should be "in fair
and reasonable harmony all over the world". The opposite is
likely to be the case.
Article 10 Right of Communication~
9. Note 10.08 states that the proposal made by the European
Community and its member states received a positive reaction
from many Government members of the Committee. However,
according to reports, many other Government members had
10. Note 10.14 indicates that the liability of an Information
Service Provider (ISP) does not occur within the Right of
Communication unless a copy is made available to the public by
the ISP, which should evidentally not occur. It further
refers back to Article 7 (Reproduction right) with regard to
transient copies occurring in ISP computers due to electronic
transmission. However, Article 7 (and notes 7.07 and 7.18)
give no protection to ISPs who inadvertently producing
transient, temporary or incidental copies in the process of
communicating or transmitting a user initiated message -
except where national limitations or exceptions are in place.
In effect, this combination of Article 10 and Article 7 seems
to make ISPs potentially liable for the users transmissions.
11. An Information Service Provider should be explicitly
protected from liability for incidental/unintentional
liability for transient/temporary/incidental copies. Again,
this should be done at Treaty level and not left to
12. Although the Chairman has avoided it, it is essential
that a definition is given on what is "public". It is not
enough to leave it to national interpretation which, as has
been pointed before, will lead to disharmony. The role of the
librarian is to give access to information to all citizens.
They act as a failsafe for the disadvanted in society. This
Article will cripple libraries and frustrate society unless
there are clear limitations to this right in "fair and
reasonable harmony all over the world". Although this is
addressed in Article 12, it is by no means clear.
Article 12 Limitations and Exceptions~
13. This Article is to be welcomed although, the library and
information community would prefer that there should be some
harmonisation of what exactly would be a deserving case which
passes the three step test.
14. Leaving limitations or exceptions to such rights to
national legislation, will create, in effect, unfair and
unreasonable disharmony all over the world with respect to the
interpretation. While creating formalising new owners rights
on the basis of need for worldwide interpretation in this age
of international communication, the impact on usage is left to
national legislation, leading to major problems for users
communicating, quoting and reviewing in the same age of
15. The exceptions and limitations of the exclusive rights of
authors should also be harmonised internationally. In the
analogue world, there are already many differences between
nations on what can or cannot be copied for research, private
study, education and by libraries. It is not enough to leave
it to Contracting Parties.
16. The notes are very helpful although some examples of
copying electronically would be of use. Also, the note 12.09,
although very welcome, could be argued to be of such
importance that it should have been at the beginning of the
notes and not as, what looks like, an afterthought.
"Important values in society" deserve a greater and more
prominent place in this treaty. Authors as creators need to
have access to works of other authors in order to understand
and build upon them. If creators are hampered in some way by
being denied access, whether because it is no longer available
in libraries or the payment for access is prohibitive then
creativity is stifled.
17. Having to ask permission every time to disseminate or use
a copyright work, or having to pay for every piece of
copyright information would frustrate society. If payment is
required every time a work is even accessed (eg. viewed on a
computer screen) the role of the library to be society's
collectors and disseminators of knowledge will be destroyed.
18. Note 12.10 demonstrates the need for further discussion
of this part of the treaty. Have Governments been asked to
submit proposals? Have Governments consulted the people?
There has been no direct consultation with the international
library community on this.
19. Some clarification (ie. a comma?) is need in the clause
(1) of this Article: Contracting Parties may........ under
this treaty only ...."; or "only in certain special cases".
20. Note 12.08 is essential in understanding all these
proposals - it is similar to the European Communities Green
Paper on Copyright: "In the digital environment, formally
minor reservations may in reality undermine important aspects
Article 16 - Special Provisions on Enforcement of Rights.~
21. It is recommended that the anti-monopolistic clauses of
TRIPs, including compulsory licensing, should also be included
in Article 16.
Sandy Norman (with the help of her friends)
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