Subject: EBLIDA and WIPO: workshop and position paper
From: Barbara Schleihagen (eblida@nblc.nl )
Date: ti 12 marras 1996 - 15:44:31 EET
Dear ecup-list subscriber,
Workshop on new developments in copyright for EBLIDA members in Oslo
attracted a lot of interest!
The Norwegian Library Association in cooperation with EBLIDA and the Oslo
College organised a workshop on 4-5 November 1996 to inform all members of
EBLIDA on recent international and European developments in copyright, and
to prepare an EBLIDA position paper concerning the new proposals of the
Expert Committee of World Intellectual Property Organisation (WIPO) and the
Directive on the legal protection of databases.
The urgency of the meeting was due to the new proposals of the Chairman of
the WIPO Expert Committee for the new Treaties to the Berne Convention. At
the meeting, which was attended by more than 60 members of EBLIDA from all
over Europe, people were informed of the consequences of these proposals for
the library community.
After a general introduction to copyright by Emanuella Giavarra, Project
Director ECUP+, Helge Sonneland of the Norwegian ministry of cultural
affairs and Thomas Vinje, copyright councellor, explained the new WIPO
proposals and the implications for the new electronic services of libraries.
In the afternoon Prof. Jon Bing gave an overview on Electronic Copyright
Management Systems and Emanuella Giavarra informed about new developments in
the ECUP+ project. Papers were given in a very informal way so that
participants had always the possibility to ask questions at the moment they
occured or to comment on specific issues.
The next day was dedicated to the discussion and formulation of an EBLIDA
Position Paper on the WIPO proposals, which you will find below. After the
presentation of the IFLA draft response by Sandy Norman, IFLA copyright
adviser and the response to WIPO by the Digital Future Coalition by Adam
Eisgrau, legal adviser to the American Library Association, relevant
articles were discussed step by step. During the lively debate very many
valuable contributions were received which added immensely to the EBLIDA
Position Paper and also proved the great interest in this important subject.
At the end of the day a further strategy for national lobbying was developed
to gain the greatest possible influence on the course of the discussions at
the Diplomatic conference. Background material that was distributed during
the conference is available on the request at the EBLIDA secretariat.
Barbara Schleihagen
Director EBLIDA
EBLIDA Position Paper on the Proposed New Treaties in the Copyright field
under discussion at WIPO
EBLIDA functions as the umbrella association for library, information and
documentation associations and all kinds of libraries throughout Europe. The
organisation was founded in 1992 and has established itself as a vital link
between the European institutions and library and information professionals.
At the moment EBLIDA represents over 70.000 libraries throughout Europe. On
behalf of the European library community EBLIDA would like to make the
following contribution.
EBLIDA welcomes the opportunity to respond to the proposals contained in
WIPO documents to be discussed at the forthcoming Diplomatic Conference on
Certain Copyright and Neighbouring Rights questions. Our comments are
confined to document CRNR/DC/4 only. Attached to our comments is the
Position Paper on User Rights in Electronic Publications of the European
Copyright User Platform (ECUP) which is a Concerted Action coordinated by
EBLIDA.
General Points
Without exception, we strongly support intellectual property protection. In
the digital age international harmonisation of intellectual property laws is
essential. However, this harmonisation should also aim at ensuring access to
information and knowledge to all. Whilst recognizing the importance of
finding solutions to problems that the digital technology may cause to
copyright owners, the European library and information community believes
that many of the proposals 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 in depth.
Of special concern to us is that the balance between the protection of
rights owners and public interest might be upset by the recent proposals.
The European library and information community is deeply worried that the
proposals will be threatening the freedom of access to information. We
request therefore that particular attention is given to our views regarding
the importance of the need for exceptions and limitations. In the
information society libraries have a crucial role as gateways to the
information resources on the global superhighways. Our societies are
dependent on democratic access to information. It is therefore essential
that there are provisions made for exceptions applicable in all countries to
allow copying especially by librarians and users for certain purposes.
PROPOSED REVISION TO THE DRAFT WIPO TREATY PROPOSALS
Preamble
1. Original text of document CRNR/DC/4:
The Contracting Parties,
Desiring to develop and maintain the protection of the rights of authors in
their literary and artistic works in a manner as effective and uniform as
possible,
Recognizing the need to introduce new international rules and clarify the
interpretation of certain existing rules in order to provide adequate
solutions to the questions raised by new economic, social, cultural and
technological developments,
Recognizing the profound impact of the development and convergence of
information and communication technologies on the creation and use of
literary and artistic works,
2. Proposed Revision by EBLIDA
The Contracting Parties,
Desiring to develop and maintain the protection of the rights of authors in
their literary and artistic works in a manner as effective and uniform as
possible,
Recognizing the need to balance such protection against other important
values in society, such as the interests of education, scientific research,
and the need of the general public for access to information,
Recognizing the need to introduce new international rules and clarify the
interpretation of certain existing rules in order to provide adequate
solutions to the questions raised by new economic, social, cultural and
technological developments,
Recognizing the profound impact of the development and convergence of
information and communication technologies on the creation and use of
literary and artistic works,
3. Justification:
"Important values in society" , mentioned in note 12.9 deserve a greater and
more prominent place in this treaty and is therefore included in the
preamble. 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.
Article 7: Scope of the Right of Reproduction
1. Original text of document CRNR/DC/4:
(1) The exclusive right accorded to authors of literary and artistic works
in Article 9(1) of the Berne Convention of authorizing the reproduction of
their works shall include direct and indirect reproduction of their works,
whether permanent or temporary, in any manner or form.
(2) Subject to the provisions of Article 9(2) of the Berne Convention, it
shall be a matter for legislation in Contracting Parties to limit the right
of reproduction in cases where a temporary reproduction has the sole purpose
of making the work perceptible or where the reproduction is of a transient
or incidental nature, provided that such reproduction takes place in the
course of use of the work that is authorized by the author or permitted by law.
2. Proposed Revision by EBLIDA
Alternative A: Delete the article completely
Alternative B:
Article 7(1)The exclusive right accorded to authors of literary and artistic
works in Article 9 (1) of the Berne Convention of authorizing the
reproduction of their works includes direct and indirect reproduction of
their works in any manner or form, whether permanent or temporarily.
Article 7(2) Without prejudice to Article 12 and subject to the provisions
of Article 9 (2), it shall be a matter for legislation in Contracting
Parties to limit the right of reproduction in cases where a temporary
reproduction has the sole purpose of making the work perceptible or where
the reproduction is of a transient or incidental nature, provided that such
reproductions take place in the course of use of the work that is authorized
by the author or permitted by law.
3. Justification:
Article 7 was included in the Treaty as clarification to Article 9 of the
Berne Convention.
The European library and information community believes that Article 7 is
too premature and could, to the contrary, cause confusion. It is believed
that in Article 9 of the Berne Convention the scope of the right of
reproduction is already broad enough and that the new technologies and its
services do not require a major revision of international copyright law at
this time. It is therefore recommended to delete Article 7 completely.
Should this not be feasable, the following considerations should be taken
into account:
The right of reproduction should be limited to the legal notion of
reproduction, and should not be extended to the technical notion of
reproduction. The right of reproduction would otherwise become a right of
transmission of information. The right of reproduction should not include
all types of intermediate, temporary storage. Every act of using a computer
involves intermediate storage. When an e-mail message, or any copyrighted
material, is sent via a digital network, it will be stored and forwarded
many times before reaching its destination. The same applies for a user who
browses the internet and looks at Web-pages and thus displays parts of
protected works on his screen. In the analogue world, reading a book is not
a restricted act, but in the digital world rights owners would be able to
prohibit individual acts of usage.
The European library and information community is therefore extremely
concerned by the expanded definition of the right of reproduction to include
indirect reproduction (7.1) caused by incidental digitisation of a work,
especially as limitations will be left in the hands of national governments.
It would appear that the limitation would still have to be authorised 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.
Having to ask permission every time to disseminate or use a copyright work,
or having to pay for every piece of copyright information would frustate
society and permanently stifle world culture and learning. If payment is
required every time a work is even accessed (e.g. viewed on a computer
screen) the role of the library to be society's collectors and disseminators
of knowledge will be destroyed.
There is confusion that only Article 9 (2) and not also Article 12 is
referred to in Article 7 (2). The connection between Article 7 and Article
12 should be made much clearer by a cross reference.
Article 8: Right of Distribution, Alternative B
1. Original text of document CRNR/DC/4:
(1) Authors of literary and artistic works shall enjoy the exclusive right
of authorizing the making available to the public of the original and copies
of their works through sale or other transfer of ownership.
(2) A Contracting Party may provide that the right provided for in paragraph
(1) does not apply to distribution after the first sale or other transfer of
ownership of the original or copies of works by or pursuant to authorization.
2. Comment by EBLIDA
Alternative B is strongly supported by the European Library and Information
Community. It is in harmonisation with EU legislation (right of exhaustion)
and could be easily adopted in most national legislations of the EU Member
States.
Article 10 Right of Communication
1. Original text of document CRNR/DC/4:
Without prejudice to the rights provided for in Articles 11(1)(ii),
11bis(1)(i), 11ter(1)(ii), 14(1)(I) and 14bis(1) of the Berne Convention,
authors of literary and artistic works shall enjoy the exclusive right of
authorizing any communication to the public of their works, including the
making available to the public of their works, by wire or wireless means, in
such a way that members of the public may access these works from a place
and at a time individually chosen by them.
2. Proposed Revision by EBLIDA
(1) Without prejudice to the rights provided for in Articles 11(1)(ii),
11bis(1)(i), 11ter(1)(ii), 14(1)(I) and 14bis(1) of the Berne Convention,
authors of literary and artistic works shall enjoy the exclusive right of
authorizing communications to the public of their works, including the
making available to the public of their works, by wire or wireless menas, in
such a way that members of the public may access these works from a place
and at a time individually chosen by them.
(2) National legislation of a Contracting Party may provide that the right
provided for in paragraph (1) does not apply to the communication to a
specific individual of a copy of any work after the lawful acquisition of a
copy of that work by the person making the communication, provided that in
the case of works in digital format, the copy in the possession of the
person making the communication shall be erased or deleted substantially
contemporaneously with the communication.
3. Justification:
In paragraph (1) "any communication" is replaced by "communications". In
the attached ECUP Position Paper any lawful activities that libraries would
like to undertake have been specified.
Paragraph (2) has been revised so as to provide for exhaustion of the
communication right under specific circumstances, so as to preserve the
ability to dispose or transfer copies lawfully acquired by electronic means.
The Contracting Parties must make clear distinction between what kind of
activities are carried out in Article 7 and 10. Users of electronic material
should not end up paying twice for the same activity.
Article 12: Limitations and Exceptions
1. Original text of document CRNR/DC/4:
(1) Contracting Parties may, in their national legislation, provide for
limitations of or exceptions to the rights granted to authors of literary
and artistic works under this Treaty only in certain special cases that do
not conflict with the normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the author.
(2) Contracting Parties shall, when applying the Berne Convention, confine
any limitations of or exceptions to rights provided for therein to certain
special cases which do not conflict with the normal exploitation of the work
and so not unreasonably prejudice the legitimate interests of the author.
2. Proposed Revision by EBLIDA
(1) Contracting Parties may, in their national legislation, provide for
limitations of or exceptions to the rights granted to authors of literary
and artistic works under this Treaty in certain special cases that do not
conflict with the normal exploitation of the work and do not unreasonably
prejudice the legitimate interests of the author, inter alia for the
interest of education, scientific research, and the need of the general
public for access to information.
3. Justification:
The European library and information community welcomes that limitations and
exceptions now apply to all rights granted to authors of literary and
artistic works under this Treaty. There is nevertheless confusion that only
Article 9 (2) and not also Article 12 is referred to in Article 7 (2). The
connection between Article 7 and Article 12 should be made much clearer by a
cross reference.
The word "only", to describe the cases in which limitations or exceptions
may be provided, has been deleted from paragraph (1). The word "only" does
not appear in Article 9(2) of the Berne Convention, on which this paragraph
is based upon.
An important note like 12.09 should be included as part of the Article, not
in the notes as an afterthought. Therefore the phrasing " inter alia for the
interest of education, scientific research, and the need of the general
public for information" has been included in the Article.
Article 12 (2) is not regarded as necessary at all, as the existing Berne
Convention text provides already for specific limitations and exceptions in
particular cases.
Article 13: Obligations concerning Technological Measures
1. Original text of document CRNR/DC/4:
(1) Contracting Parties shall make unlawful the importation, manufacture or
distribution of protection-defeating devices, or the offer or performance of
any service having the same effect, by any person knowing or having
reasonable grounds to know that the device or service will be used for, or
in the course of, the exercise of rights provided under this Treaty that is
not authorized by the rightholder or the law.
(2) Contracting Parties shall provide for appropriate and effective remedies
against the unlawful acts referred to in paragraph (1).
(3) As used in this Article, "protection-defeating devise" means any device,
product or component incorporated into a device or product, the primary
purpose or primary effect of which is to circumvent any process, treatment,
mechanism or system that prevents or inhibits any of the acts covered by the
rights under this Treaty.
2. Comments by EBLIDA
There are no objection to this Article as long as there is provision for
being able to circumvent a protection defeating device for legitimate use.
Note 13.05 states that there is a need to "avoid legislation that would
impede lawful practices and the lawful use of subject matter which is in the
public domain". It is not enough to confine this in a Note. There should be
an additional clause which limits this right for lawful use as laid down in
national legislation. Any such exceptions or limitations should be related
to Article 12 Exceptions and Limitations.
Article 14: Obligations concerning Rights Management Information
1. Original text of document CRNR/DC/4:
(1) Contracting Parties shall make it unlawful for any person knowingly to
perform any of the following acts:
(i) to remove or alter any electronic rights management information without
authority;
(ii) to distribute, import for distribution or communicate to the public,
without authority, copies of works from which electronic rights management
information has been removed or altered without authority.
(2) As used in this Article, "rights management information" means
information which identifies the work, the author of the work, the owner of
any right in the work, and any numbers or codes that represent such
information, when any of these items of information are attached to a copy
of a work or appear in connection with the communication of a work to the
public.
2. Proposed Revision by EBLIDA
Delete the article completely
2.Justification
There is no clear definition of "rights management information". The scope
of this article and implications for the future are therefore unknown at
this moment. This article is therefore premature and should not be part of
the Treaty. As an example of "rights management information" could serve the
information on author or title of a book. In that case libraries would not
be able to serve the public with copies of parts of an article or a book.
Conclusion
The proposals (especially articles 7, 10, 12 , 13 and 14) put forward by the
Chairman of the Committee of Experts are, as they stand now, not clear
enough, premature, and will cause a lack of balance between the protection
of owner's rights and the freedom of information. EBLIDA believes that the
new technologies and its services do not require a major revision of the
Berne Convention at this time. Existing international copyright law provides
for a basis in which users, libraries and copyright owners continue to be
well served.
Should revisions be considered at the WIPO Diplomatic Conference, EBLIDA
recommends that the comments made in this Position Paper are taken into
account during the discussions.
Should the proposals be considered to be too premature, EBLIDA recommends
that sufficient deliberation and discussion with the users, especially the
library, information and scholarly communities, is also performed on a
national level, so that more balanced proposals can be provided.
EBLIDA, The Hague, November 1996
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