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IN THIS DOCUMENT:

Introduction

Document CRNR/DC/4 Copyright: General Points

Document CRNR/DC/4 Copyright: Comments Per Article

Document CRNR/DC/5 Neighbouring Rights

Document CRNR/DC/6 Databases




Comments on the proposed new treaties in the copyright field under discussion within WIPO

PRESS RELEASE: for immediate release
November 1996

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 accom-modate 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 Chairman'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.

Document CRNR/DC/4 Copyright: Comments Per Article

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, (e.g. 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 evidently 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 unreas-onable 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 manage-ment 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.

By:
Sandy Norman,
IFLA Copyright Adviser
November 1996

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