NGOS Comments on topic 5 on parallel importations.
>> CHAIR: Thank you very much for reminding me that approach. I was thinking about that. Usually we give the floor to member countries; however, since we need the input from NGOs related to a specific topic and that might trigger the discussion on it, I am ready to follow that approach. Thank you for that suggestion. And if there is no position, I invite NGOs to give us specific inputs and contributions related to parallel importations which is topic number 5 on our list. And in that regard, I’m sure that discussion will be triggered. Please use this time to make contributions related to the specific topic of parallel importations in order to avoid general remarks, which probably will be very similar to those that have been presented by you in previous sessions. We can do the efficient use of our time as the Distinguished Delegate from Korea said that we were doing. But that’s a challengeing description of our work. And I’m sure that we should do an effort to meet that perception.
Karisma Foundation has the floor.
>> Thank you, Mr. Chairman. For those familiar with the Karisma Foundation, it is a Colombian foundation which is in the area of foundation and policies promoting balanced development of Copyright with the interests of people with vision impairment and public interest taking into account the issues within — parallel importation is problems for lie brer -base it restricts their capacity in the market. It impedes them buying books if they are already available in their own country. Therefore it makes it difficult for them to source them from other markets particularly for Developing Countries where the offer is very limited, this is a problem in countries like Colombia because the rights not being extinguished, this is a particular problem. And the Copyright legislation is that the libraries have the right to distribute, but this right has so far not been incorporated into national legislation on Copyright has it has done for cells in the United States for instance and therefore the rights holders only tolerate the rights within Colombia but the rights are not actually established. And many of the universities, public universities having to effectively pirate copies in order to get hold of them because they are not able to get hold of them through libraries, public libraries. And the risk here is that the rights holders get fed up with this kind of activity. And this will lead to a problem with people not being able to get the necessary teaching and materials through libraries. This is quite fundamental and therefore we really require some minimal international standards and conditions so that knowledge will not have limitations and that there will be an international standard for this.
>> CHAIR: Thank you for the charisma foundation. KEI, you have the floor.
>> Thank you. Our organisation has taken a nuanced view on the issue of international exhaustion. We normally Thai that for many types of goods international exhaustion is appropriate. But we do make exceptions. I’ll briefly explain that. In the area of textbooks or entertainment products or pharmaceuticals where one would normally expect some price discrimination based on the income of the country, we think it’s appropriate to have restrictions on parallel trade between countries of lower incomes and counsel trials of higher incomes. We have submitted comments in a number of Forums where we’ve said that countries should be generally free to do parallel trade in areas of these special works for example, textbooks or pharmaceutical drugs, from countries of the same income that they’re in or higher incomes, but there should be restrictions on parallel trade from countries with lower incomes than their own incomes as a general Rule. However we would make further exceptions in countries where as was described by the previous speaker where there is a lack of available work in the country, where the work is essentially not worked in a country or where there’s an excessive pricing problem and other anti-competitive act.Thank you.
>> CHAIR: Thank you very much to KEI for sharing us the interesting view on this matter.
EIFL.net has the floor.
>> Thank you, Mr. Chairman, I’d like to thank you for your leadership of this committee and for the methodology of work with which you’re following these topics. So I’m speaking on behalf of Electronic Information for Libraries that works with libraries in developing and transition economies and I’ll speak on the topic of parallel importation.
Libraries buy books for their users who need the books to teach the subjects, study for exams or conduct research. Some libraries specialize in particular subjects and they build specialists collections in these areas. So when a required work is not for sale on the local market or not within a reasonable time or maybe not within a reasonable price or when the content of the imported edition is different from the locally available edition, a library needs to be allowed to legally purchase the work from another country.
So, in other words, for libraries this is an access to information issue.The problem is that a blanket national exhaustion Rule means that libraries are not allowed to import a book for noncommercial purposes because of rules designed primarily to regulate consumer markets relating to the sale of goods.
Ironically, libraries in the wealthiest markets with the greatest abundance of information resources have among the world’s fewest restrictions on importation. In 2013, the U.S. Supreme Court found that the U.S. Copyright Act provides an international exhaustion Rule, thus if an a U.S. library wants for its collection a work that is for some reason not on sale in the U.S., it can purchase a lawful copy of the work wherever it is sold anywhere in the world and import it into the U.S. It can then lend the work and do other activities that would be lawful within the Copyright law. The EU has adopted a regional exhaustion. This means that if a library in my home country, for example, island wants a book that’s not on sale in Ireland, can it purchase the copy wherever it is sold in the 27 other countries of the EU. Contrast that situation with the library in a country with a small market, especially if it shares a common knowledge with a much larger market or country where local buying power for books is low. Many works are not on sale there because it’s not worth the effort for the publisher. Where a national exhaustion Rule applies in this case, a library cannot legally purchase and import legal
copies of the works without negotiating a special import license with the publishers. And the transaction costs of obtaining such licenses are prohibited, even if the library and the institution to whom it belongs has the capacity to do so. So we welcome the acquisition remarks from — on this topic.
SCCR4 allows archives and libraries to acquire and import legally purchased works. The works may either be purchased or obtained in some other way, for example, by gift or donation Twork must be published and incorporated into the collection of the library.
Finally, we note that the Australian government’s independent research and advisory body, the productive at this commission, recommends that all restrictions on parallel imports for books should be repealed in its draft report published in 2016. So we look forward to comments from Member States on this important matter. Thank you.
>> Thank you, Mr. Chair. Well, for the system, even if STM is —
>> CHAIR: We will see the role German library association place is the one we are going to listen but it is really STM.
>> Can you hear me? Thank you, Mr. Chair. Speaking for the association of scientific technical medical publishers, I think the discussion on parallel imports could benefit from clarifying what works and what formats of works are being discussed and the distinctions between parallel imports of genuine gray goods and other articles.
So it is a broad stroke to discuss this topic, which normally in the past for physical goods is considered more of a trade issue than an issue of Copyright law.
The speaker from KEI and the speaker from EIFL made reference to some of the damaging effects that unrestricted parallel importations and the U.S. decision on this can have. It does mean that a global price almost has to be enforced throughout the world which with restrictions on parallel importation is not a great way to solve this the wide as possible access issue.
The international framework as far as I understand it at the moment allows every country to decide on how it wants to deal with parallel imports. So it is also not clear to me and in the spirit of reducing the list of issues that you mentioned earlier, one could consider that this is an issue that does not really belong into exceptions and limitations; it deals with the distribution of genuine goods. That’s the way I understand it. But perhaps there is some ambiguity if gray goods are included or in fact pirated copies. I think topic could benefit greater clarity on what is the discussion and secondly there could be a decision in my respectful view to remove this topic from the agenda. Thank you, Mr. Chair.
>> CHAIR: Thank you to the representative from STM. I think his comments could trying sore opinions from the Distinguished Delegates here. If EIBAB has the floor.
>> Thank you, I speak on behalf of ifla, the international federation of libraries and institutions, the international body of library professionals in 150 countries. The principle that a library should be able to import lawfully made items from another country without the permission of the Copyright holder is fundamental in enabling many libraries to fulfill their mission.
To give one example, a book might be published in South Africa. The publisher grants distribution rights in that book to a specific publish esh in Venezuela, but a library in Venezuela gets the books from another vendor in the country. This work is a parallel import. Parallel importation is permitted under the TRIPS Agreement, Article 6, exhaustion, as well as by the WIPO Copyright treaty, Article 6, right of distribution whereby Member States can enact provision allowing for international exhaustion of the distribution right. Not all countries have taken advantage of this option and those that do take different approaches. In some countries, works from outside the country cannot be imported without the permission of the holder of distribution rights in that country. National exhaustion. Some countries adopted a regional adoption, where once an item is made available in one country in their region, such as was mentioned earlier, European Union, then libraries in all areas of the region can obtain that item from within the regional. Some like Switzerland provide a law once a book is available for sale anywhere in the world it may be imported into Switzerland, international exhaustion. Such are inconsistent with the needs and realities of a global Information Society. Without a right of parallel importation or international exhaustion, many libraries will be unable to fulfill their core service mission. The national libraries of many countries are mandated to collect works that I beer nationals in their national language in or about their country that includes works published elsewhere. Academic libraries must build foreign language collections that satisfy the scholar lir pursuits of academics. For instance literary scholars are often required to access all versions of a text in all languages. Whereas public libraries with growing languages need to obtain works of for all their patrons. In the United States alone, libraries contain 200 million books published abroad and in research libraries in Brazil, more than 20 percent of the books required by undergraduate programmes are not available in that country’s market. IFLA is not seeking a broad right to import consumer goods such as Swiss watches or consumer products. Rather, we CEECA ability for libraries and archives of one country to acquire works from another country and to share this content with their
patrons as they do works lawfully acquired within their own country.
Thank you very much, Mr. Chairman.>> CHAIR: Thank you very much to IFLA. For clear statement and for giving examples on the need to tackle this issue. EFF have the floor.
>> EFF: Thank you, Mr. Chair. This comments follows on from the point raised by STM, the speaker from STM, the parallel importation is generally considered as a matter of trade law rather than Copyright law. So I thought it might be useful in that context to the make one point about how this issue has been treated in recent trade agreements, most notably the transpacific partnership.
The transpacific partnership agreement does allow explicitly for countries to adopt a system of international exhaustion of rights. So if this issue of parallel importation is to be treated in the instrument that the committee comes up with, then that is the current international standard that should be followed.
The speaker from STM also made the point that since the law as it currently stands allows country to include a law of international exhaustion of rights then we don’t need to reproduce that in the laws we produce.
Following on from the general statements, certain countries said much the same thing, that the existing international framework doesn’t prevent Member States from adopting appropriate limitations or exceptions for libraries or I suppose whatever scheme for exhaustion that they may wish to adopt, that is true; however, what we find out, if we look at the history of amendments to international legal frameworks, is that countries generally don’t amend their law unless there is some kind of impetus from an international instrument. And especially if it’s a hard law instrument. And for that reason we think it would still be useful to enshrine the principle of international rights in the instrument of whatever form this committee produces. Thank you very much,
>> CHAIR: Okay. IPI.
>> IPI: Thank you, at last. Thank you, Mr. Chair, I’d like to firstly support the comments from my colleague at STM. The IPI represents publishers as well as book publishers and we see this as very much a trade issue. It’s also interesting for us to agree with the KEI intervention about parallel imports.
In the situation where I have the most experience, the Australian Copyright law, just to follow up on what EIFL had to say, the interesting thing about the parallel import restrictions in the Australian Copyright law is that it allows for libraries I think to import two copies of books from anywhere in the world, that they’re not restricted. It’s purely a trade issue on the ground. And in that sense, the IPI wants to keep it as a trade issue. We think that the most appropriate way of dealing with parallel imports is a national territorial one. And it will allow for such flexible as the Australian act have. Thank you.
>> CHAIR: Thank you to IPA for his statement. Argentina has the floor.
>> ARGENTINA: Thank you, Mr. Chairman, for giving me the floor. We see that there is a desire among states. And if we have an international understanding of exhaustion of rights in terms, for instance, when we were talking about medications and we were talking about re-importation and this was a solution for a specific reason that could also be used in the publishing world for copies for libraries, it could be considered an exception for a certain number of copies for specific use to be separated or distinguished through specific exception limitation enabling this importation and re-importation. And this seems to be a problem that publishers are concerned about. And I think this could be a way around it.
>> CHAIR: Thank you very much for the Distinguished Delegate from Argentina for that suggestion. It’s a very interesting one. I’m sure that it also merits comment. And I’d like to invite all of you to share any comments that you have on this topic. On the basis of contributions that have been made by the members of the different NonGovernmental Organizations and that have also in this last intervention by a delegation.