The Value of Copyright Exceptions and Limitations in the Information Society
This panel will explore the value of copyright exceptions and limitations and includes the insights of Bernt Hugenholtz, University of Amsterdam, Kenneth Crews, Colombia University, Emilija Banionyte, Vilnius Pedagogical University Library, Lithuania, Coenraad Visser, University of South Africa (UNISA), Antoine Aubert, Google, and moderated by Winston Tabb, IFLA.
The panel will address the topical issue of exceptions and limitations to copyright. While copyright protections are mandated by international treaties and are mandatory, by contrast, exceptions and limitations are optional, residing with the national legislature. This has resulted in a patchwork of provisions, increasingly ill-suited to access to and delivery of content in a globalised, networked world. Furthermore, as standards of protection have been strengthened and extended, exceptions and limitations are widely regarded by beneficiaries as having fallen behind. This imbalance has become critical as more and more content is born digital. Will the promise of digital technologies as an enabler of access for all, especially in developing countries, turn out to be a pipedream as legal obstacles to access become the new reality?
These questions have led to a renewed interest in exceptions and limitations, especially their role in the digital environment. Sectors that traditionally rely on exceptions and limitations to help fulfill their mandate, such as libraries and educational institutions, are vocal in support of the public policy goals enshrined in the principle of exceptions and limitations. Recent academic studies and analysis, as well as public consultation by governments, have generated significant new thinking and ideas amongst protagonists.
Winston Tabb:
Limitation and exceptions are important to balancing users and owners rights. They are important to all users of recorded knowledge. Libraries are key stakeholders in this debate pushing for users rights more broadly.
How do we safeguard users rights in the copyright debate?
Bernt Hugenholtz:
Exceptions and limitations are pejorative – they imply that freedom is exceptional and ownership is the rule. Looking at Article 10 of the European Convention of Human Rights it exemplifies how freedom is, and should be, the rule.
The question this presentation focuses on is on identifying what an international instrument on limitations and exception to copyright might look like.
There are, first of all, many reasons for having international instruments on L&Es. It would help restore the balance in international conventions, eliminate barriers in global trade, promote international legal certainty and protect developing nations against “TRIPS plus” standards in bilateral agreements.
However, it is important to next identify if there is “wiggle room” in the international treaties to develop such international instruments. The room in fact does exist and it exists within the vague definitions of limits to minimum standards and definitions of minimum rights. Notions of ‘public’, ‘reproduction’, etc. are left undefined – as such, there is a lot of room left for carve-outs (carve-outs not subject to the three step test!).
A potential L&E instrument would have focus foremost on “allowing things” not “protecting things.” It would have a preamble that discusses normative considerations. It would have general limits to copyright protection and include limitations and exceptions section that has mandatory and optional L&E’s that are subject to the three step test.
Finally, the instrument should be a multilateral instrument (though regional experimentation is encouraged) with an institutional home in WIPO. Also, this instrument should be a soft law instrument that may eventually develop into a “hard” treaty.
Kenneth Crews:
There is deep significance and importance of “library exceptions.” They expand accessibility of library collections, support research needs of library users, and enhance education among many other things. These exceptions are statutory provisions that allow libraries to make copies of copyright works for purposes of research, preservation etc.
We can postulate about the success of these exceptions. How do we ensure information access and the expansion of knowledge resources and the enhancement of education? The three-step test of the Berne Convention and similar language in TRIPS provides an initial answer.
There are a variety of types of exceptions; however the most common types of exceptions are general exceptions that allow copying for the “purposes of the library” which includes administrative purposes. Other exceptions are more specific (e.g. research only).
There is no library exception in only 21 countries of 149 country statutes surveyed. 74 countries have provisions for exceptions for research or study. 72 countries have provisions that allow for copying for preservation.
One of the main points of this presentation is that if you take any one of these various exceptions, you’ll find that they vary enormously around the world – Who may make the copy? What may be copied? What is the purpose of the copy? What is the relationship to the Three-Step test? The relationship to licensing?
Underlying the diversity and trends are political realities, competing interests, economic and cultural values, history, regional agreements (EU), etc.
Worldwide library exceptions are incredibly important and incredibly diverse and highlight how implementation can vary from country to country.
Emilija Banionyte:
Users should have rights, not “exceptions and limitations.” However we are in a legal world where exceptions and limitations are what we have to work with.
Exceptions and limitations are important for libraries and development.
eIFL.net is a global coalition of 48 national library consortia in transitioning and developing countries.
It offers six programs :
- Negotiating access to commercially available e-resources
- Supporting the creation of sustainable national library consortia
- Knowledge sharing and networking
- Promoting and advocating for free online availability of research literature
- Free and open source software for libraries
- Advocacy for access to knowledge: copyright and libraries.
Why are exceptions and limitation (E&L) important for development? Because libraries are aiming to collect, organize, preserve, and make available the world’s culture and scientific heritage
Without exceptions and limitations every reproduction and every communication would require payment;
International treaties contain flexibilities, however they are often not leveraged by developing countries; in fact the copyright laws of some developing countries are more restrictive than those of developed countries.
As such, the importance of an E&L provision for libraries is critical for development and A2K.
Absolute minimum E&L provisions necessary:
- Private purposes and research
- Translation and quotations
- Educational activities, especially in the electronic learning environment
- Libraries including backup and preservation, inter-library document supply
- Provision for orphan works
- Contracts and TPMs should not override copyright exceptions.
eIFL aims to develop a practical guide aimed at government policy makers. The guide will focus on free uses (E&L that are permitted by law) only and will include basic, minimum provisions only.
Coenraad Visser:
Developing countries have a fairly young population, with nearly a third under the age of 25. Thus, there is a very small group of people generating income and tax income for the government to pay for a lot of programs. Additionally, developing countries often have many indigenous languages and thus translations are necessary to proliferate a lot of educational materials.
Patterns of public spending in developing countries indicate that the government spends nearly 25-30% of its income on education – this 3 to 4 times what the IMF recommends.
The last important factor that is important to consider is the public domain. The extent of the public domain informs how we think about the importance and the number of E&L.
The Appendix to the Berne Convention which is also included in TRIPS, states that developing countries can avail themselves of various provisions if they are unable to successfully implement the general provisions of the Berne Convention. However, few countries actually leverage these provisions because there are many qualifications on the provisions that make them cumbersome and not appealing to many developing countries.
For example, countries are able to demand compulsory licensing if after 1-3 years from the date of first publication, translations has not been published in language in general use in that country by the owner of the right of translation. However, the provision requires that the country in question price the license at a level “reasonably related to that normally charged in the country for comparable work” and that compensation must be paid and transmitted in internationally convertible currency.
Antoine Aubert:
Thoughtful exceptions to copyright are fundamental to competitiveness and growth. CCIA did a study a while ago discussing the positive relationship between fair use and economic growth.
There is the European model of amending the directive every time you want to add an exception. The US model is much more flexible allowing more fluid amendment process to the list of existing exceptions. Flexibility is important to this process.
It is also important to take into account the use of information location tools and user generated content. User created content is great and copyright exceptions must be allowed to ensure that user created content is continued and supported on a global scale. Information location tools like search engines have a social value. They drive traffic towards content producers and thus should be protected as an exception and limitation under the copyright rule.
