Subject: IFLA Position paper on WIPO proposals
From: Heikki Poroila (poroila@kaapeli.fi)
Date: la 23 marras 1996 - 05:29:20 EET
Sandy Norman
IFLA:
Comments on the Proposed New Treaties in the Copyright field
under discussion within WIPO
Introduction
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
disharmony.
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
Information
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
here.
Sandy Norman~
IFLA Copyright Adviser~
November 1996~
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