Committee on Copyright and other Legal Matters
(CLM)
Standing Committee on Copyright and
Related Rights (SCCR): 17th Session, Geneva, 3-7 November 2008
Copyright Limitations and Exceptions for Libraries
Effective copyright law must balance the interests of creators of
intellectual works and the users’ rights to use protected works
to further creative endeavour, learning and research. The exclusive
rights of copyright held by the creator are tempered by exceptions and
limitations for users. For libraries, copyright exceptions are critical
to meeting our missions to support learning and research, promote the
flow of information, provide equitable access to information to the
public, preserve cultural heritage and encourage free expression.
Without limitations to copyright, the advancement of knowledge and
innovation could not proceed.
There is an integral link between limitations and exceptions and the
fundamental human rights expressed in the United Nation's Universal
Declaration of Human Rights: equality, the right to education, freedom
of expression and the right to access culture and share in scientific
advancement. While copyright is mandated by international treaties,
most limitations and exceptions are optional, dependent upon the
statutes in each country. This has resulted in great variations that
are often in conflict with one another in a globalized, networked
world. While owners’ rights have been strengthened and extended,
limitations and exceptions for users have not, creating a critical
imbalance.
Libraries support the need for creators to be rewarded for their
work. However, libraries rely on limitations and exceptions to fulfil
their mandate to collect, organize, preserve, and make available the
world’s cultural and scientific heritage. Library exceptions
expand the accessibility of library collections, support the research
needs of library users, and enhance education. They allow libraries to
copy works in copyright for the purposes of teaching, research, and
preservation, and to serve people with disabilities who may require
special formats for accessibility.
Information is the raw material of the knowledge society, therefore
exceptions and limitations have grown in importance. In his Study on
Copyright Limitations and Exceptions for Libraries and Archives (2008),
Kenneth Crews analyzed the statutes of 149 WIPO Member States and found
that 128 of them had at least one library exception. However, 21
countries have no library exception in their copyright law, only 72
have provisions that allow copying for preservation, and just 74
countries have exceptions for research or study.
Exceptions are important to libraries everywhere, but they are of
critical importance to developing countries whose capacity to access
knowledge is defined primarily by exceptions and limitations.
Effective library programs and services are a means of advancing
knowledge. Libraries must have limitations and exceptions to copyright
law to fulfil their public service mission.
- Education
It should be permissible for work that has been lawfully acquired
by a library or other educational institution to be made available
over a network in support of classroom teaching or distance
education in a manner that does not unreasonably prejudice the
rights holder. Subject to appropriate limitations, a library or
educational institution should be permitted to make copies of a
work in support of classroom teaching.
- Research or private
purposes
Copying individual items for or by individual users should be
permitted for research and study.
- Preservation
A library should be permitted to make copies of published and
unpublished works in its collection for purposes of preservation
including migrating content to different format.
- Orphan works
An exception is needed to resolve the problem of orphan works,
where the rightsholder cannot be identified or located.
- Interlibrary document
supply
This is a collaborative system of resource sharing amongst
libraries because no single library can own every book, journal or
published work. Libraries should be able to supply documents to the
user directly or through the intermediary library irrespective of
the format and the means of communication.
- Provision for persons with
disabilities
A library should be permitted to convert material from one format
to another to make it accessible to persons with disabilities. The
exception should not be format-specific to accommodate
technological advances. To avoid duplication of costly alternative
format production, cross-border transfer should be permitted.
- Technological protection measures
(TPMs) that prevent lawful uses
It should be permissible for libraries and their users to
circumvent a technological protection measure for the purpose of
making a non-infringing use of a work. Implementation of
anti-circumvention legislation in many nations exceeds the
requirements of Article 11 of the WIPO Copyright Treaty,
effectively eliminating existing exceptions in copyright law.
- Contracts v statutory
exceptions
Contracts should not be permitted to trump exceptions and
limitations. A British Library study of 100 contracts offered to it
found that 93% overrode exceptions to copyright law. The goals and
policies providing for exception are important statements of
national and international principle and should not be varied by
contract.
- Copyright term
Consistent with the Berne Convention, the term of copyright should
be the life of the author plus 50 years. The term of copyright or
related rights should not be further extended. A robust public
domain provides new opportunities for creativity, research, and
scholarship.
The Library Copyright Alliance, the International Federation of
Library Associations and Institutions, and Electronic Information for
Libraries call for the limitations and exceptions to copyright for
libraries as outlined in this document as a minimum. We endorse the
proposal presented at the Sixteenth Session of the WIPO Standing
Committee on Copyright and Related Rights by Brazil, Chile, Nicaragua,
and Uruguay for work related to exceptions and limitations.
We believe that there is a need for WIPO SCCR to adopt a work plan
that will identify national models and best practices and will achieve
consensus on a recommended set of minimum exceptions and limitations,
and that will implement the appropriate recommendations from the WIPO
Development Agenda.
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