SCCR 27 May 1, 2014 Limitation of liability for libraries and archives
Michelle Woods for the WIPO SECRETARIAT provided the SCCR with this very useful summary of the various proposals on the table:
This topic is on limitations of liability of libraries and archives. There is also actually a proposal to make that limitations on liability “for” instead of “of” libraries and archives, reflected in the text.
So in terms of the proposed text, there is a proposal from the African Group, a proposal from Brazil, Ecuador, and a proposal from Indian as well as a further general principle from the United States.
So the African Group proposal first sets out that must be responsible for their exceptions and limitations. It provides in general that a librarian or archivist acting within the scope of his or her duties shall not — so it’s mandatory — be line for copyright infringe am when the alleged action is performed in good faith in the belief there are reasonable grounds for the application of exception or other international or national provision or the material is in the public domain or under an open content license.
Then it concludes by saying that where the Member State or Contracting Party provides for secondary liability regimes, libraries and archives should be exempt from liabilities for the actions of their users.The proposal from Brazil, Ecuador, and Uruguay has many similar elements but spells out certain elements in more detail. So with respect to the claims against which a librarian or archivist acting in good faith would be protected, that provision has the options for shall or should be protected for claims from damages from criminal liability as well as copyright infringement. And then spells out that once again the reasonable grounds applies, and particularly where the use is being done in the scope of a limitation or exception or in a way that’s not restricted by copyright or if there’s a belief or reasonable grounds for believing that the work is in the public domain or under an open content license.
There is a similar provision on not being liable for the actions of the users when there are secondary liability regimes. Here there’s also an option of shall or should.
India’s proposal, once again, is very simple and direct. Any person working in any library or archive shall be protected for any action performed in good faith against claims for damages and criminal liabilities. So it’s a broad general provision.
The United States, in its principles and objectives, says — explains that national copyright laws may recognize limitations on liabilities as well as limitations on certain types of damages with respect to libraries and archives and their employees and agents, once again bringing up the elements of if they’re acting in good faith, have reasonable grounds to believe that they acted in accordance with copyright law.There are comments on pages 41 and 42 and then page 58 in the Annex. The comments in general, without going through each one, raise the point that on the one hand it is important for librarians to have legal certainty, and that’s one of the reasons for considering this provision. On the other hand, that it’s important to be able to adapt the limitations to national circumstances.
Then there’s some comments regarding the relationship of this provision to TPMs and the possible flexibility that it could add to WCT provisions, in particular on TPMs.There’s also a description of the exemptions that apply in the United States, both to damages, certain types of damages for libraries and archives, and then the workings of the exemptions from the Digital Millennium Copyright Act that could be seen to be consistent with the provisions under this section.
In document SCCR/26/8, on page 4, there’s a general statement that Member States should — from the U.S. again — that the Member States should recognize limitations on liabilities for certain types of damages applicable to libraries and archives in the same kinds of circumstances discussed before, good faith, reasonable grounds, acting in accordance with copyright law.
And a number of countries in their comments then go on and express general support for having a provision of this type.
The Chair invited the member states first, here are the highlights. Some countries might surprise you:
Kenya proposes to consolidate the various texts on the subject to make it easier to discuss:
KENYA: […]I think in our statement yesterday, we did indicate the reasons why we should have exceptions and limitations for this particular issue. We believe that we do have challenges with getting the digital environment, which has changed how things are happening, and librarians and archivists while performing their duties, they find themselves in situations whereby they perform work of their duties in good faith, meaning that they are managing in the best possible manner.
In this regard, then, we believe that there should be a way to be able to account for such circumstances or such cases whereby the person is involved in acts which may infringe on copyright law.
Chair, I don’t want to go in extent because I believe we discussed these issues. I want to focus on the tables which have been brought up by several delegations. And I believe just as a way of moving forward that we could just try to group them together and to the extent possible try to capture the ideas in a single text which expresses the same idea.
In in regard, then, we would appreciate if the principles could be grouped together, and other suggestions from other delegations also which capture the same idea, to the extent possible, be in the same text so that we can be able to consider them further in our next sessions, if that is acceptable to the delegations concerned.
[…]
Canada explains limits on damages:
CANADA:[…]To contribute to this discussion on limitations on liability for libraries and archives, Canada would like to share its support for the U.S. principle that Member States should recognize limitations on the liability for certain types of damages applicable to libraries and archives and their employees and agents.
Canada’s Copyright Act does not include a broad limit on liability for libraries and archives; however, it does limit their liability in certain situations. So for example, no statutory damages may be awarpeded against an educational institution, a library, an archive, or a museum that is sued in certain circumstances.
Another example, in relation to certain proceedings against educational institutions, libraries, archives, or museums, Canada’s Copyright Act imposes a cap on damages equal to the amount of royalties that would have been payable to a collective society.
We are interested in hearing from other delegations about their domestic experience in relation to limiting the liability of libraries, archives, and museums. We’re also interested in learning about their views on what challenges or gaps may exist at the international level in this area.
[…]
Brazil supports Kenya’s proposal to consolidate the texts
BRAZIL: […]
Brazil is, of course, one of the proponents that have tabled text under topic 8, and therefore, in response to your invitation, I would just like to indicate that we support the idea put forward by our colleague from Kenya with a view to further consolidate the different proposals here as it might facilitate our consideration on this issue. And I understand those proposals include also proposals coming from Ecuador and Uruguay as well as the African Group, of course.
Brazil, of course, thinks that a limitation of liabilities is the very important topic, particularly when we take into account the level of infringements against copyright that can be observed around the world. It is, in our view, fundamental that libraries have the right to fulfill their mission under a stable, lawful framework, an international framework. Particularly, it is increasingly important that we shield libraries from being targets of shame litigation.
[…]
The US presented its national legislation and continued to push for “Objectives & Principles”:
UNITED STATES: […]We appreciated the comments of Canada in support of our principle in this area and also had listened to Kenya and will look at all of the proposed texts to see if we can draw some principles.
As we stated in our statement of objective and principles, we believe that libraries, archives, and their employees and agents should have appropriate limitations on their liability when they can prove their conduct was in good faith, believing or having reasonable grounds to believe that they have acted in accordance with copyright law.
The U.S. copyright law limits liability for copyright infringement for libraries and archives and their employees and agents in a few ways. Notably, Section 504c 2 provides that libraries, archives, and their employees and agents, acting in the scope of their employment, are not liable for statutory damages for the reproduction of works and fon records if they believed or had reasonable grounds for believing that their action was a fair use.
Under another section, 1203c 5b, courts will not impose civil damages in cases where a nonprofit library or archive proves it was not aware of and had no reason to believe that its acts stereoed a violation of the prohi — constituted auto vailation of the prohibition to.
We recognize this in our general principles.
Also, Mr. Chair, the U.S. would like to provide the Secretariat with suggestions of where to place the U.S. principles and objectives within the working document, particularly in the areas that we’ve just started discussing.
[…]
The EU states that this “issue is unknown in the EU legal framework”
E
UROPEAN UNION: […] The EU as such cannot provide much substance on this topic because this issue is unknown in the EU legal framework. Perhaps certain Member States have this in their legal framework, but this is completely unknown unless we discuss about the very general eCommerce directive in Europe.
Tajikistan:
[…] we have three sections in our law on libraries and the activities of librarians, and in the law, it stipulates that libraries have to undertake all their activities in strict compliance with the law. I believe that if users were in some way to infringe the law, then they would be liable under the law of the country in question, the country where their action had been taken.
I also think that they would then — the individuals who work in the library would also be liable. They would be liable for the action that had been taken and that had infringed the law.
Knowing that, I do not think they would abuse any exceptions or limitations that might be included in an international treaty or in international law.
Colombia is to the point and in support of a provision:
[…]COLOMBIA: Thank you very much, Chairman. I’ll make it extremely brief.
In Colombia, we do not have any legislation on limitations on liability of libraries and archives, but it does seem to us to be perfectly reasonable that we should have a provision on this particular issue.
That’s all I wanted to say. Thank you.
[…]
Belgium is like the EU
BELGIUM: […]
Along the lines of what was said by the European Union, I’d simply like to say that in Belgium, domestic legislation, we do not have any limitations on liability of libraries and archives. We Actually make a clear distinction between exceptions and limitations and possible liability regime and eCommerce. It’s very specific and very limited, as you know, to certain types of activity on the Internet.
That is why I must confess that it seems to us to be a little odd in a discussion on exceptions and limitations to have this issue on limitations on liability of libraries and archives. It also seems rather delicate to us to look at exceptions or suei general limitations on liability. We do have a rather complete set of laws already on exceptions, and in any case, I think that the current proposals, at least in some cases, are too subjective and too general. Even if we agreed to them, I think they would have to be more restricted to certain specific cases, and on the cases of clear and subjective criteria, which are the only way of getting sure legal guarantees, especially on an issue like liability.I must confess, as I say, that I’m not that familiar with this subject, and I have and I have to be honest about this, and I am talking about limitations on liability of libraries and archives. I am even less expert when it comes to dealing with the issue in the international arena. We would need more substantive information, particularly provided from countries which have been operating a regime of this kind before we move on any further.
So basically, as the EU said, we also would need a great deal more clarification before moving further ahead.
[…]
Ecuador wants to hear from the libraries and Archives:
ECUADOR: […] On this issue, and indeed on other issues, the discussion which has taken place over the last couple of days on exceptions and limitations for libraries and archives has helped us to have a very thorough look at the issues.
On this particular topic — and much has already been said on it by various delegations, concerning the need for further clarity on certain points — Ecuador would like to say this. For us, it is extremely important and it has always been important to listen to both the users and the beneficiaries of causes of this kind. We believe it to be essential, as has been done previously in this session of the Committee on Broadcasting, to hear the opinions of libraries and archives on this issue, and particularly IFLA because they might be able to shed the light that people are looking for on the issue. Maybe they could clear up some of the doubts and concerns that certain delegations appear to have. Some points don’t seem to have been fully understood by delegations. Perhaps that organization could help clear up the issue.
UNITED KINGDOM: […] I would like to set out some of the law the UK has on liability in relation to libraries.
In the United Kingdom, we don’t have any general provision on library liability; however, we do have some specific exceptions relating to the making of copies by librarians for users of libraries. And under these provisions, we have a requirement that in order for a librarian to provide an extract from published work, they must have a declaration from the person who will be receiving the copy and a declaration must say that that person will be using the copy for the purposes of noncommercial research or private study. And if it then transpires that the person has used it for some other purpose, then the person who has received the copy is liable and not the librarian. So that’s how it works. We have a couple of provisions that work in that way. Thank you very much.
EL SALVADOR: […]Here we would like to make clear that our own legislation does not contain a regulation of this type. However, our secondary legal system might allow us to find something to cover this. However, we are working on a binding international treaty here, and we would certainly welcome the inclusion of this topic. Since it will be very useful in practice, particularly when we would also welcome the objectivity and pragmatic nature of the Indian proposal. […]
India explains its national way of dealing with the issue:
INDIA: […]The topic number 8, limitations and liability of libraries and archives. This is, indeed, an interesting topic to be covered in this proposed Treaty, something you never heard of in such topic covered in India, that Treaty, because the main problem stems from the very nature of functioning of the libraries. So many national laws, a study clearly mentions at least one exception is given to libraries. But several occasions, there is — there are examples where these exceptions have been misunderstood because — I’ll give you an example of India.In India, when reproduction exception is given for education, research, private copy, or personal use, or for the library, no terms or conditions have been imposed. Unlike other laws where only chapter has to be copied, only a poem has to be copied, only an article has to be copied, like this. So we don’t understand international law and trying to — since that book is published in X country, where those laws are like that, that only one chapter has to be copied, so those country laws were imposed on the library here disregarding the nation law’s exceptions. So legal notations have been sent, they have been harassed.
What has been asked — because after the coffee break, one of the Distinguished Delegates mentions that, you know, everybody should be treated equal before the law. There should not be any exceptions if any crime committed by the librarian. We except. Rule of law is the law all over civilized nations. We don’t give any exceptions to the person who is ruling the nation or a person who is begging in the street. Everybody is treated equally under the rule of law.
But a person, a librarian who is implementing the law in good faith, he is implementing the law in good faith, is implementing the exceptions given in the national law (coughing) — sorry — so he should not be harassed sending legal notices, threatening him, putting him in such a situation that the won’t be able to function.
So behind that spirit, this has been introduced. So that’s what we have to see.So if you look at the Indian proposal, it clearly states that it is in that spirit. Any person working in any library or archive shall be protected for any action performed in good faith. So here it means performing action in good faith means as per the exceptions provided in the national law.
So against claims of damages or criminal liabilities. So he should not be harassed with criminal liabilities or damages for the copy exception he allowed to the researcher.
[…]
Pakistan states that such a provision is needed:
PAKISTAN: […]At present, we don’t have any provision in our Copyright Law regarding the liability of libraries and archives, but our delegation is of the view that this exception is very much needed, especially in the context of our country, and I hope it would be the case with many other countries where the libraries are not very much aware of their liabilities under copyright law.
And these libraries and archives, while undertaking their routine functions, are at the risk of infringement. For example, the digitization project is under way at national archives of Pakistan, and they have digitized papers which were fortunately under public domain, but for the rest of the material, they are at the risk of infringement because copyright ordinance — our national copyright ordinance allows three copies, reproduction of three copies, while digitization may require more.
So our delegation is of the view that this exception should be available to archives and libraries, obviously with the condition that if these activities are being performed in good faith. […]
Italy (not an easy place for a librarian I think) explains why it disagrees with the principle of limitation of liability for libraries:
ITALY: […] We have a great deal of difficulty with this topic c because we believe that it completely overturns general principles of civil law. We’re talking here about legal entities and the responsibility of nations in the case of libraries is born by the entity itself. If I am damaged by an action taken by a library, I have recourse to the library and not to the member of the library staff. It is a second-degree responsibility for the staff member a. According to national legislation, they can turn to their employer. But here we are talking about the responsibility of the staff member. And if the staff member is not responsible, then the library cannot be held responsible either, cannot be held liable.
Therefore, we cannot agree to this principle. There is some professional liability inasmuch as anybody exercising a profession is expected to have the necessary knowledge and skills to practice that profession. But if they are not properly trained, then they cannot be considered responsible.
Vietnam supports the principle:
VIETNAM: Thank you, Mr. Chairman. We think that the library and archives have a very important role in accessing information and knowledge, so we think that this topic is limitation and libraries and archives is very useful so that when they act in good faith, we support in principle that such extensions would be to introduce appropriate specific circumstances.