EBLIDA's comments to Follow-up Green Paper on Copyright

Subject: EBLIDA's comments to Follow-up Green Paper on Copyright
From: Barbara Schleihagen (eblida@nblc.nl)
Date: ti 03 kesä   1997 - 11:08:00 EEST

The comments below were sent to the European Commission, DG XV. The first
draft directives are expected to be published before August this year.
Therefore EBLIDA is organising in co-operation with the Danish Library
Association an “Oslo follow-up” conference for its members only to inform
them in detail about the content of these directives and to discuss
EBLIDA's future strategy on 6-7 November 1997 in Copenhagen. A more
detailed programme is to follow soon.

Barbara Schleihagen
Director EBLIDA

EBLIDA’s Comments to the Follow-up to the Green Paper on Copyright and
Related Rights in the Information Society

On the eve of the implementation in directives of the Follow-up to the
Green Paper on Copyright and Related Rights in the Information Society of
20 November 1996, the European Bureau of Library, Information and
Documentation Associations (EBLIDA) would like to make the following comments.

The views expressed in the Follow-up to the Green Paper signify the
approach of the European Commission on certain subjects which were also up
for discussion at the WIPO Diplomatic Conference in December 1996.

The European library community welcomed the overall outcome of the WIPO
Diplomatic Conference and in particularly the WIPO Copyright Treaty. The
provisions in this Treaty are perceived as striking a much fairer balance
between the rights of the holders of copyrights and the users of
copyrighted material than in the initial proposals of Mr Jukka Liedes,
Chairman of the WIPO Committee of Experts on a Possible Protocol to the
Berne Convention.

Our comments in this paper will be limited to the reproduction right, the
communication to the public right, and the harmonisation of limitations and
exceptions. These rights are of fundamental importance to the development
of a European competitive information society and in particular for the
development of library services.

Reproduction right
In the Follow-up to the Green Paper the European Commission advocates a
broad interpretation of the concept of “reproduction”, which includes the
digitisation of works and other protected matter, as well as other acts
such as scanning, uploading, downloading and transient or other ephemeral
acts of reproduction.

The same approach was taken by Mr Jukka Liedes in his proposed article on
the right of reproduction for inclusion in the WIPO Copyright Treaty. This
article was the most heavily discussed article at the WIPO Diplomatic
Conference. During the conference we have seen a variety of proposed
changes to this article. Although we are of the opinion that the Berne
Convention provides a sufficient basis for the right of reproduction, we
favoured the
proposed changes by the Norwegian delegation to Article 7 (old). They
proposed that:

“The temporary reproduction made for the sole purpose of making a work
perceptible, or which are of a purely transient or incidental character as
part of a technical process, does not as such constitute a reproduction
within the meaning of Article 9(1) of the Berne Convention.”

The Norwegian proposal reflects the concerns expressed by the European
Commission’s Legal Advisory Board in its reply to the Green Paper on
Copyright and Related Rights in the Information Society.

According to the Legal Advisory Board, the application of a broad
interpretation of the concept of “reproduction” to the digital environment
will have far-reaching consequences. In the process of being transmitted
and routed through a switched digital network, information is constantly
being “stored and forwarded”. The Commission’s approach would imply that
practically every act of transmitting a work over a network, as well as
each subsequent act of downloading and screen display would qualify as
countless separate acts of reproduction of the protected work. Thus, for
example, sending electronic mail, browsing the Internet and viewing a
digital file would become restricted acts.

We agree with the Legal Advisory Board that this broad interpretation of
the reproduction right would mean carrying the copyright monopoly one step
too far.

The Agreed Statement to Article 7 (old), adopted by the WIPO Diplomatic
Conference, was welcomed by the European library community. It clarified
something we have advocated for a long time. It has been implemented in
Article 1 (4) of the WIPO Copyright Treaty. It reads as follows:

“The reproduction right, as set out in Article 9 of the Berne Convention,
and the exceptions permitted thereunder, fully apply in the digital
environment, in particular to the use of works in digital form.”

During 1996, the Steering Group of the European Copyright User Platform, an
initiative which is co-ordinated by EBLIDA and funded by the European
Commission’s Library Programme (DGXIII/E-4), worked hard to define the
exceptions and limitations which are based on this interpretation of
Article 9 Berne Convention. The results of the discussions can be found in
the ECUP Draft Position on User Rights in Electronic Publications.

Communication to the public right
The Communication to the public right is covered in the WIPO Copyright
Treaty in Article 8. It reads as follows:

“Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and
(ii), 11ter(1)(ii), 14(1)(ii) 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, by wire and
wireless means, including the making available to the public of their works
in such a way that members of the public may access these works from a
place and at a time individually chosen by them.”

Applying the concept of “communication to the public” to the digital
environment makes it necessary to define a clear division between what
constitutes a “public” and what constitutes a “private” communication. Also
a clarification is necessary about what activities constitute a
reproduction and what is considered a communication to the public.

Harmonisation of the limitations and exceptions
Limitations and exceptions are essential instruments in finding the
necessary balance between the property rights in information and
safeguarding the public interest. Rights and exceptions are intertwined; if
the scope of the protection increases, exceptions must be widened accordingly.

Article 10 WIPO Copyright Treaty provides for, among other things, the
possibility for limitations and exceptions to the right of reproduction and
the communication to the public right. The Agreed Statement to Article 10
provides for the adoption of new limitations and exemptions other than the
ones that were acceptable under the Berne Convention. Especially for the
communication to the public right, new limitations and exemptions should be
proposed by the European Commission.

We agree with the European Commission that some degree of harmonisation of
the limitations and exceptions will be necessary. However, we would urge
the European Commission to leave enough room for national regulation and
interpretation which is in accordance with the individual nations’ cultural

EBLIDA, May 1997

Barbara Schleihagen, Director
Heidi Grootscholten, EU Policy Officer
P.O. Box 43300
NL-2504 AH The Hague
Tel: +31-70-309 06 08
Fax: +31-70-309 07 08
email: eblida@nblc.nl

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