KEI and other NGOs attending SCCR 27 have been able to make interventions on various articles in the proposed library treaty. On the issue of library access to orphaned works, KEI’s intervention covered the following points, and made a proposal for text.
1. There is ample evidence that national approaches to providing access to orphan works is quite diverse.
2. The diversity of approaches have been used by some to express pessimism that this issue can be addressed in a treaty.
3. In 1996, WIPO addressed the issue of technical protection measures and rights management information, before there was much state practice. The 1996 WCT and WPPT did not spell out every detail of a solution, but provided a framework. The USA enacted the DMCA in October 1998, nearly two years after the text of the WCT existed. Other countries adopted different methods of implementing the 1996 treaties.
4. In this case, the treaty language would address an obligation to address access, but not necessarily micro-manage the method of doing so.
5. KEI proposes consideration of the following language:
Members shall provide adequate and effective legal remedies to overcoming barriers to orphaned works, for libraries.
6. Such an obligation, in a treaty, could be met by a variety of approaches, but it would require that members act, and do something, to provide “adequate and effective remedies to overcoming barriers” to access. The obligation to address the library need for access would be a useful outcome, and quite feasible to enact.
7. KEI would also like to call attention to one specific measure in the United States that is specifically focused on library access to orphaned works. This is:
17 U.S.C. § 108(h) Limitations on exclusive rights: Reproduction by libraries and archives
There is also a related regulation
8. The Statute and the regulation implementing the legislation provide a system whereby right holders can avoid the exception if they file a form with the copyright office that documents the availability of the work at an affordable price.
9. The US law, 17 USC 108(h), provides libraries a right to use works in cases where the work is not commercially exploited, and not available at a reasonable price, during the last 20 years of copyright protection for that work. KEI does not endorse every feature of this act, but find it an interesting example of how a government can introduce measures that improve library access to orphaned works.
10. In closing, the fact that national implementations of orphan work exceptions are diverse is not a barrier to created a global obligation to have solutions for library access to orphan works.