[10826] in Public-Access_Computer_Systems_Forum
IFLA Comments on upcoming WIPO Diplomatic Conference
daemon@ATHENA.MIT.EDU (Kuny Terry)
Mon Nov 18 20:41:44 1996
Date: Mon, 18 Nov 1996 12:36:30 -0600 (CST)
From: Kuny Terry <txk@ITS.NLC-BNC.CA>
To: Multiple recipients of list PACS-L <PACS-L@UHUPVM1.UH.EDU>
Reply-To: Public-Access Computer Systems Forum <PACS-L@UHUPVM1.UH.EDU>
----------------------------Original message----------------------------
Dear Colleague,
As many of you know, the WIPO Diplomatic Conference in December
will be discussing a number of proposals that will directly
influence our work as information professionals. IFLA is very
much concerned about the far-reaching effects of these proposals
on our services and will attend the WIPO-meeting with a
three-person delegation (headed by IFLA's Copyright Adviser Sandy
Norman) to voice our concerns and lobby national delegations.
The basis for IFLA's comments has been put down in the enclosed
position paper. I would urge you to give this paper as wide a
distribution as possible, particularly where your national
delegations to WIPO are concerned.
I would further like to express my gratitude to the UK Library
Association, the Australian National Library and the American
Library Association/Digital Future Coalition for their support to
IFLA in realizing a strongly voiced comment on behalf of the
worldwide-community of librarians and information professionals.
The position paper will also be made available through IFLANET
(http://www.nlc-bnc.ca/ifla/II/cpyright.htm), where you can also
find the general IFLA statement on copyrights in the electronic
environment.
Sincerely,
Leo Voogt
Secretary General
ifla.hq@ifla.nl
------------------------------
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
