>> EIFL.NET: I will start with retracted and withdrawn works. So libraries and archives have a mandate to pre seven public record for the future. In the analog aenvironment exhaustion to the distribution right provides legal means to insure its basic operation. If an Article in a print journal is withdrawn for any reason, the library has the hard copy to preserve and provide access for research or scholarship subject to preservation exceptions.
The rights holder cannot remove the item physically under the library. In the digital environment where the right of distribution does not apply, there are no such safeguards. Journal Articles can and do disappear from databases. Well known example arose in the case of the MMR vaccine in the U.K. in 198. A paper published in the medical journal, the Lancet, claimed that the combined vaccine for measles, mumps and rubella known as MMR caused Autism Spectrum Disorders.
The claims that were widely recorded in the mainstream media led to a sharp drop in vaccination rates. As a result, there were increased cases of measles and mumps among children that led to deaths and permanent injury. The medical claims contained in the Article were subsequently discredited. The research paper was partially retracted by the journal in 2004 and fully retracted in 2010. So researchers in future years in epidemiology who are investigating the sharp drop in vaccination rates at that time will want to have access to that pain gler if the Article was published in the print version of the journal, it will be preserved in a library. If it was only published in online, there is no guarantee. So the principle behind the provision on retracted and withdrawn works, therefore, is to help achieve the goal of permanent access and preservation in the digital environment because if the library doesn’t have the item, it can’t preserve it.
So we thank member states for their proposals addressing retracted works and the consolidated text in document SCCR29/4. The provisions contained in Paragraphs 4 and 5 of topic seven provides an exception to the rights of reproduction and communication to the public for works that were previously communicated to the public. Since retraction concerns moral rights, photograph 5 provides for respect of moral rights.
A member state can limit the application of the provision or can decide not to apply the provision at all. Paragraph 4 makes clear that the provision is subject to any court decisions in respect of a particular work or as otherwise provided by national law. Libraries and archives work to insure that the public record is complete and accessible for the future long after the work has lost its commercial value or the owner has disappeared.
Unless libraries have the legal backing, a proper record for digital material cannot be guaranteed. So now moving onto my intervention on orphan works, so on orphan works, some countries are legislating in an attempt to resolve the problem. In others such as the U.S., libraries use fair use to engage in the mast digitization of their special collections of archival material, photographs and em ef people Mora such as post ires. New York public like as digitized its collection of materials relating to the New York world’s fair of 1939 and 1940.
These materials are now available on line and form the basis of an educational curriculum. In contrast to the millions of likely orphan works made available by U.S. libraries under fair use, in Europe only 1729 works have become available so far under the orphan works directive that came into force in October 19, I’m sorry, 204.
This is because the requirements in particular the diligent search mechanism is too onerous to lead to real results. We hope the shortcomings will be addressed in the commission’s review of copyright rules in order to realize the aim of the directive to facilitate large scale digitization of Europe ease cultural and educational heritage. We believe that libraries outside of the U.S. and the E.U. should also have the opportunity to digitize orphan works.
We appreciate the consolidated text addressing orphan works in SCCR2/4. Paragraph 1 in topic seven provides for an exception to the rights of reproduction, adaptation and communication to the public for works for which the author or rights holder cannot be identified or found after reasonable inquiry.
And on a technical note, I note that the word copyright appears to be missing from the text in the document. So I believe it should read libraries and archives shall be permitted to reproduce, make available to the public and otherwise use any work or material protected by copyright and related rights. The next Paragraph provides that if the rights holder subsequently shows up, they may claim equitable remuneration for future uses or can require termination of the use. The provision leaves it to member states to determine whether commercial uses will require payment of a fee.
So Mr. Chairman, the orphan works problem is huge. It affects every country in the world.The current situation is in no one’s interest. Keeping orphan works locked up harms creativity and innovation, the very things that copyright is supposed to encourage. Making orphan works available supports education, creative industries and economic activity based on digitized cultural resources. SCCR is the appropriate body to address the orphan works problem and in doing so would do a great service to copyright and to the copyright system. Thanks for your attention.