3 July 2014
On day four of WIPO SCCR28, the United States of America presented its paper on Objectives and Principles for Exceptions and Limitations for Libraries and Archives (SCCR/26/8) to the WIPO plenary.
Morning Intervention:We appreciate the opportunity to present our suggestions on Objectives and Principles for exceptions and limitations for libraries and archives. We prepared this document last year to provide a blue print for the approach that we have been recommending on this subject: seeking agreement on basic goals at the international level on which to base further work on national laws.
Let me start by explaining what we mean by an objective or principle. An objective is a goal or what the Member States are hoping to achieve; and principles are further elaborations or key considerations to keep in mind in getting there. Of course many Member States have already developed exceptions and limitations for libraries and archives that meet their specific social, cultural, and economic needs. In reviewing these, we realized that there are a number of shared objectives that form the basis for these exceptions. While the working document identifies a list of specific issues, we have organized our objectives and principles into overarching themes of particular importance to policy makers to enable libraries and archives to carry out their essential functions. We think focusing on the intended outcomes at this level is the most effective way to organize our thinking.
Yesterday, our Chair recognized that, as a Committee, we are in consensus that Member States should have appropriate limitations and exceptions for libraries and archives that enable them to carry out their public service mission. Always, of course, consistent with their international obligations, including the 3-step test. So, we start with the premise — our first objective — to encourage Member States to adopt national exceptions. We then move to more specific objectives for library and archival exceptions, such as preservation, support for research and human development, including access, and concluding with issues of cross-cutting relevance.
(1) Adoption of National Exceptions
The first objective in the U.S. document encourages Member States to adopt national exceptions and limitations for libraries and archives and reflects several important principles.
As we know from our earlier work, the majority of Member States already possess some library and archive exceptions (128 out of 184 surveyed), indicating a strong consensus on the importance of this objective. But we know that many others do not or have only limited coverage in their exceptions. Therefore, it is important to develop consensus on this at an international level.
This first objective and related principles provide foundational underpinnings for the other principles and objectives introduced.
We then considered the different areas for which libraries have adopted exceptions, relying on the work of the SCCR. We won’t go into too much detail on (2) preservation now because we will be discussing it later, other than to say that this is an area where we have heard enormous support and, as reflected in Professor Crews’ study, at least 72 Member States have developed exceptions for this purpose.
The next objective, (3), Support for Research and Human Development
This objective reflects the role of libraries and archives in providing access to works that comprise the cumulative knowledge and heritage of the world’s nations and peoples.
In order for libraries and archives to fulfill their role as a gateway to knowledge, they must be able to provide access to their materials, as appropriate.
In this regard, updated and tailored exceptions and limitations establish a framework enabling libraries and archives to supply copies of certain materials to researchers and other users directly (or through intermediary libraries including the collaborative process known as inter-library loan.)
We recognize that authors and creators depend upon robust library and archives exceptions in order to perform research and enjoy access to works, including works that may not have enjoyed commercial success.
Libraries and archives provide access to their collections in a variety of ways, including through digital means. In this regard, updated and tailored exceptions and limitations establish a framework enabling libraries and archives to supply copies of certain materials to researchers and other users directly (or through intermediary libraries including the collaborative process known as inter-library loan.)
We will skip legal (4) Legal Deposit, as this is discussed in the working document.
Since SCCR 23, we’ve heard about the many challenges of preservation and access in the digital environment, which is why we prioritized our fifth principle, which reflects, as we have just discussed, that Member States should enable libraries and archives to carry out their public service mission in the digital environment.
(5) Exceptions and Limitations in a Digital Environment
Digital technologies are changing all aspects of our society, including the ways in which libraries and archives obtain, preserve and provide access to their collections.
We recognize that libraries and archives have a particularly critical role in the development of a 21st century knowledge ecosystem. Accordingly, limitations and exceptions must ensure that these institutions can continue to carry out their public service mission in the digital environment, including preserving and providing access to information developed in digital form and through networked technologies.
Moreover, in the digital era there is much more pressure on libraries and archives for them to make their collections accessible online, whether on a single-user basis or broadly by sharing on a website.
Library and archives exceptions addressing access should recognize the need for increased digital access, especially to digitized unpublished works or other hard-to-find materials.
The United States recognizes that researchers are using new tools and methods to support research outputs, and appropriate copyright laws and corollary exceptions and limitations can help to facilitate this activity. In the same vein, we acknowledge that libraries and archives possess rich collections that are important for the research and study of increasingly sophisticated disciplines of all kinds, and that customized exceptions and limitations can be a powerful means of building on existing knowledge.
(6) Other General Principles
Finally, we recognize “other” general principles. “Other” does not mean that they are not important; each could have been its own objective. But we thought they were cross-cutting or supporting of the other objectives. For example, other types of exceptions are critical to the ability of libraries and archives to serve the public.
One such principle relates to the possible use of both specific and generally applicable exceptions. In this regard, we recognize that different Member States may use different combinations of specific exceptions and exceptions of more general application to enable libraries and archives to carry out their public service missions.
Both specific exceptions, as well as general use exceptions, should be consistent with Member States’ international obligations, including the three-step test.
The second principle relates to limitations on liability.
In appropriate circumstances, Member States should recognize limitations on the liability of certain types of monetary damages applicable to libraries and archives and their employees and agents when they have acted in good faith, believing or having reasonable grounds to believe that they have acted in accordance with copyright law.
In the US, for example, 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 or phonorecords if they “believed and had reasonable grounds for believing” that their action was a fair use under Section 107 of the Copyright Act. Also, courts will not impose civil damages in cases where a non-profit library or archive proves that it was not aware of and had no reason to believe that its acts constituted a violation of the prohibition to circumvent technological protection measures.
In addition, Member States should consider limitations in the case of customer use of unsupervised reproduction equipment, including equipment brought onto the premises by users themselves.
The third principle recognize the role of stakeholder solutions.
It is important to recognize that rightsholders have a critical role in ensuring sustainable access to copyrighted works in both developed and developing countries. Where rapidly changing technology requires flexible solutions, Member States should encourage collaborative and innovative solutions among all stakeholders.
The next principle relates to museums.
Museums often share many of the same public service roles as libraries and archives, and Member States should consider the extent to which the same or similar exceptions and limitations should apply to museums, when they perform these roles.
The final principle involves safeguards for helping to ensure responsible behavior by users of library and archival services.
Libraries and archives should have adequate safeguards in place to ensure the responsible and lawful exercise of exceptions and limitations by libraries and archives. These institutions provide access to many works for members of the public and can play an important role in helping to guide the extent and nature of their uses.
We appreciate WIPO Member States’ attention and consideration of these Objectives and Principles. We believe they are a useful tool for continued discussion. We look forward to hearing other delegates’ reactions and comments as we discuss each topic.
Afternoon Intervention:
(5) Exceptions and Limitations in a Digital Environment
Digital technologies are changing all aspects of our society, including the ways in which libraries and archives obtain, preserve and provide access to their collections. We are moving from analogue to digital, and from pages to bits.Rapidly evolving digital technologies have transformed the way that works are created, disseminated, stored, preserved, accessed, and experienced. And libraries and archives have had to adjust their practices so that they can continue to carry out their mission of obtaining, preserving, and providing access to works, in light of these transformations. Materials are often born digital and the-use of digital technologies has prompted a corresponding increase in expectations regarding the formats and ways in which content can be accessed.
Our discussions at this Committee have focused on the challenges of libraries and archives in this regard, so we thought that it was important to recognize — through a clear objective — that appropriate limitations and exceptions should enable libraries and archives to carry out their public service role in a digital environment. Our principles recognize the variety of ways in which digital technologies are changing library and archival practice and that exceptions and limitations should help libraries and archives preserve and provide access to information developed and/or disseminated in digital form and through networked technologies, with appropriate regard for the special security and other challenges posed by these technologies.
We recognize that this could be a cross-cutting objective, but wanted to acknowledge the special need for exceptions and limitations to address the challenges and opportunities of the digital environment.