IFLA Position paper on WIPO proposals

Subject: IFLA Position paper on WIPO proposals
From: Heikki Poroila (poroila@kaapeli.fi)
Date: la 23 marras 1996 - 05:29:20 EET

Sandy Norman

      Comments on the Proposed New Treaties in the Copyright field
      under discussion within WIPO


      IFLA, the international association representing library and
      information professionals, 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. These proposals have
      stimulated much discussion and thought among the library and
      information community.

      Attached to our comments, for your information, is the IFLA
      position paper on Copyright in the Electronic Environment.

      Document CRNR/DC/4 - Copyright

      General points

      1. We are pleased that WIPO is addressing the need to update
      copyright law in order to give protection to creators.
      Harmonisation of international intellectual property laws is
      vital to accommodate the protection of works of the mind in
      digital form in order to enable an unrestricted flow of
      information. The public interest in learning, cultural
      development and the free and efficient flow of information
      requires it. However, whilst we agree that it is important to
      consider the solutions to the problems digital technology may
      cause to copyright owners, IFLA believes that many of the
      proposals, as written, are likely to obstruct rather than
      assist the flow of information.

      2. IFLA believes that these proposals, although an excellent
      starting point, 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
      all users, now and in the future, have not been given
      sufficient debate either in the WIPO Committee of Experts or
      nationally. Users' viewpoints do not appear to have been
      considered or discussed.

      3. Of especial concern is the fear that the balance between
      the protection of rights owners and public interest will be
      upset. We request therefore that particular attention be
      given to our views regarding the importance of the need to
      preserve the exceptions and limitations.

      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. IFLA supports this. Harmonisation
      of intellectual property laws is essential.

      5. However, 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.
      Access to information and knowledge underpins society. An
      unrestricted flow of information is necessary for trade and
      industry as well as for culture and education. So, within
      this harmonisation should be the equally important aim of
      ensuring that access to information and knowledge is available
      to all users.

      6. We are especially concerned for our colleagues working in
      less favoured nations who are unable to have adequate access
      to information and knowledge contained in copyright protected
      works, and we question what would happen to knowledge if all
      knowledge had to be paid for.

      7. It is essential, therefore, that there are exceptions in
      all countries to allow use, especially by librarians, for
      certain purposes. It is essential that the gap between the
      information haves and have-nots is not widened further.

      8. Despite the Chariman's renowned expertise on drafting,
      many of the Articles lack clarity. Much of the confusion lies
      in the exceptions and limitations. It is not clear if the
      limitation in Article 7(2) relates to Article 12 Limitations
      and Exceptions, and whether Article 12 extends to Articles 10,
      13 and 14. We strongly believe that, if the information is to
      flow freely, the exceptions which are permitted in the print
      and analogue environment should not be reduced or weakened in
      the digital environment.

      Article 6 - Abolition of Certain Non-Voluntary Licences

      9. We note the abolition of this with some concern.
      Compulsory licences have an important place in copyright
      administration, especially since voluntary collective
      licensing often falls short of blanket rights clearance.

      Article 7 - Scope of the Right of Reproduction

      10. The Chairman states in Note 7.01, that Article 9 of the
      Berne Convention is already broad. Therefore, we question
      whether it is really necessary to expand the definition of the
      right of reproduction to include indirect reproduction (7.1)
      caused by incidental digitisation of a work. As it is, we
      have great concerns over this proposal and continue to believe
      that Article 9 of Berne is adequate.

      11. We do not believe there is a need to deem all temporary
      copies to be copies and believe it will cause endless
      confusion, especially as limitation will be left in the hands
      of national governments. 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.

      12. 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 as well as
      stifling creativity, economic progress, world culture and
      learning. For example, if permission and/or 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.

      Article 8 - Right of Distribution and Right of Importation

      13. IFLA opposes Alternative A and supports Alternative B.
      Once a copy has been sold, it should be acceptable to
      distribute it, including export/import, without further
      permission or payment (subject, of course, to the rental
      right). Libraries often need to purchase on a global market
      and the importation/territorial restrictions are not
      warranted. Once a library has paid for a legal copy, it
      should be free to remove it and send it anywhere in the world.

      Article 9 - Right of Rental

      14. We have no objection to this Article but would like to
      stress that Rental Right should be clearly confined to
      commercial rental, and should not affect lending, even lending
      for modest cost-recovery fees by libraries.

      Article 10 - Right of Communication

      15. 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
      reservations. IFLA, too, has reservations.

      16. IFLA is deeply concerned that the flow of information
      will be restricted if "any communication to the public" has to
      be authorised, especially as there are no exceptions to this
      right outlined in the Article. IFLA requests that the
      Chairman's note 10.22 should appear in the treaty language.
      However, we would not want the exceptions for librarians to
      be seen as "minor reservations".

      17. Also, although the Chairman has avoided it, it is
      essential that a definition or at least some guidance 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

      18. We would expect, also, that as soon as the communication
      of a copyright work has been authorised, that any person shall
      have the right of access to such material.

      19. IFLA is concerned about the liability of an Information
      Service Provider (ISP). Note 10.14 indicates that the
      liability of an 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 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.

      20. We believe that an Information Service Provider should be
      explicitly protected from liability for incidental or
      unintentional liability for transient/temporary/incidental
      copies. Again, this should be done at Treaty level and not
      left to Contracting Parties.

      Article 12 - Limitations and Exceptions

      21. IFLA would not welcome any Article which seeks to limit
      what is already in Berne and this appears to do so. The
      inclusion of the word "only" in 12(1) subjects Contracting
      Parties to the three step test. As we understand it, it does
      not extend the general Berne 9(2) style exemption to all
      rights protected under Berne. IFLA believes that it should be
      extended to allow exceptions under this Treaty and the Berne
      Convention. We would, therefore, prefer that the word "only"
      be deleted.

      22. Article 12(2) appears even more damaging. It seeks to
      override a range of Berne exemptions by making them all
      subject to the narrower Berne 9(2) style test. IFLA believes
      that there is no justification for this. There are many
      reasonable and important exemptions based on Berne 2(8), 2bis,
      10(1), 10(2), 10bis(1), 10bis(2), etc, which are likely to be
      affected by this proposal. We question whether this Article
      is necessary at all.

      23. To leave limitations or exceptions 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 a 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
      international communication.

      24. 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.

      25. Some examples of copying electronically in Note 12.05
      would have been preferable. 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. It
      must not be forgotten that, 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 information is no longer
      available in libraries or the payment for access is
      prohibitive then creativity is stifled.

      26. Note 12.10 demonstrates the need for further discussion
      of this part of the treaty. Not all Governments will consult
      their people. There has been no direct consultation with the
      international library community on this.

      Article 13 - Obligations concerning Technological Measures

      27. We are concerned that legal copyright protection could be
      overtaken by technical controls which would override lawful
      practices provided by exceptions.

      28. Therefore, we would have no objection to this Article as
      long as there is provision for being able to circumvent a
      protection defeating device for bona fide 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 to a Note. There should be an additional clause which
      limits this right for lawful use as laid down in national
      legislation unless Article 12 applies. If it does, this
      should be made clear.

      29. Greater clarity should be given to what constitutes a
      "protection defeating device". A personal computer could,
      arguably, be seen as such, or at least a computer chip.

      Article 14 - Obligations concerning Rights Management

      30. Again, the library and information community would
      support a move to protect rights management information.
      However, as the notes 14.04 and 14.05 state, consideration
      should be given to avoiding legislation which would impede
      lawful practices and that there should be limitations to this
      right for those authorised to communicate works. This is not
      stated in the Article and therefore needs to be. Such a
      limitation should also be related to Article 12. Users should
      not be denied access to use and copy information if they have
      been given explicit permission to do so, under an exception or
      limitation, for example. Without such a legal provision,
      there is a danger that rights owners, are likely to tie up
      rights, and thus access to information, contractually.

      Article 16 - Special Provisions on Enforcement of Rights.

      31. It is recommended that the anti-monopolistic clauses of
      TRIPs, including compulsory licensing, should also be included
      in Article 16.

      Document CRNR/DC/5 - Neighbouring Rights

      32. Our comments on this document are more or less the same
      as in Berne Protocol document

      Document CRNR/DC/6 - Databases

      General comments

      33. We note that this document introduces a new sui generis
      right for databases which is similar to that already adopted
      by the European Union. Although Article 1 makes clear the
      protection offered is in addition to any copyright protection
      the database may enjoy, in view of the proposals regarding
      copyright for databases as intellectual creations, and because
      the sui generis protection is much weaker than copyright, in
      practice, these proposals are of relevance only to those
      databases that do not enjoy copyright. From our point of
      view, most of the proposed Articles are non controversial.
      However, the aim of this proposal is to protect the economic
      right of a database compiler. In the process it should not be
      the aim to limit the actions of a lawful user.

      Article 8 - Term of Protection

      34. We agree that it would be advisable to adopt a single
      term of protection for all types of database. We believe that
      the EU proposal for a term of protection of 15 years is
      probably more than adequate protection for sui generis
      databases. By their nature, the vast majority of them will be
      updated or amended and therefore incur further terms. In
      effect, it is likely that their protection, although not
      welcomed, will last for ever. If simple databases of facts
      have not been updated in the last 15 years, it is unlikely to
      have significant usage.

      Article 10 - Obligations concerning Technological Measures

      35. Our comments on Article 13 of CRNR/DC/4 apply equally

      Sandy Norman~
      IFLA Copyright Adviser~
      November 1996~

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