WIPO SCCR 19: European Commission statement on exceptions and limitations

Information for the SCCR at WIPO 14-18 December, 2009.

Mr Chairman,

I would like to take this opportunity, in the framework of our discussions on exceptions and limitations, to inform you about what the European Commission has been doing over the past year and a half and is preparing for the future.

In July 2008 the European Commission launched a public consultation in the form of a Green Paper on Copyright in the Knowledge Economy. ( COM(2008)466). The purpose of the Green Paper was to foster a debate on how knowledge for research, science and education and cultural works can best be disseminated in the online environment within the European Union. The Green Paper focussed on general issues regarding exceptions to exclusive rights and specific issues relating to exceptions and limitations most relevant for the dissemination of knowledge.

At the European level, Directive 2001/29/EC on copyright and related rights in the information society, sets out the exclusive rights of reproduction, distribution, communication to the public and making available and the exceptions to these rights. This Directive also contains the provisions set out in the WCT and WPPT.

The Copyright in the Information Society Directive contains a list of 21 exceptions all but one of which are optional. The one compulsory exception concerns temporary acts of reproduction which are an essential part of a technological process. The other exceptions cover a variety of uses such as illustration for teaching or scientific research, private use which is neither directly nor indirectly commercial, uses for the benefit of people with a disability, specific acts of reproduction made by publicly accessible libraries, educational establishments or museums and archives, quotations for purposes such as criticism or review, political speeches, official celebrations organised by a public authorities, caricature, parody, the demonstration or repair of equipment, etc. Some of the exceptions impose conditions such as the payment of fair compensation to right holders or the mention of the source, including the author's name. The list of exceptions is exhaustive which means that Member States may only apply those set out in Article 5 of the Directive.

As is required by European Directives, the EU's Member States have to transpose the provisions into their national laws, but can follow their own legal traditions in doing so.

Member States have selected the exceptions they want to include in their legislation from
the list in the Directive. However, for the purposes of our discussions in WIPO I can affirm that all EU MS have in their laws exceptions for educational purposes and for persons with disabilities.

The exceptions for educational purposes are set out in three different forms, one for "specific acts of reproduction made by publicly accessible libraries, educational establishments or museums or by archives, which are not for direct or indirect economic or commercial advantage" (Art 5.2(c)); another for "the sole purpose of illustration for teaching or scientific research" as long as the source is indicated (Art 5.3.(a)) and a third for "use by communication to the public or making available for the purpose of research or private study to individual members of the public by dedicated terminals on the premises of publicly accessible libraries, educational establishments, museums or archives (Art 5.3.(n)).

The wording of the exception for persons with disabilities in the Directive is very wide and reads: "Member States may provide for an exception or limitation to the reproduction right…..for uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability."

The Green Paper from 2008 focussed on the exceptions which are most relevant for the dissemination of knowledge, namely:

- the exception for the benefit of libraries and archives;
- the exception allowing dissemination of works for teaching and research purposes;
- the exception for the benefit of people with a disability.

The public consultation yielded almost 400 responses from publishers, collecting societies, libraries, archives, universities, researchers, companies and consumer organisations.

After examining the submissions, the Commission published a Communication on Copyright in the Knowledge Economy on 19 October this year.

The Communication identifies three priority areas:

1. Print access for persons with disabilities
2. Orphan works
3. Digital Preservation and Dissemination of out-of-print works.

On all three issues, the Commission makes recommendations on the immediate way forward.

For persons with disabilities, the Commission believes that the problems of accessibility could be improved at the European level in a relatively short time frame through goodwill and constructive discussions among stakeholders. It is for this reason that it has set up a Stakeholder Dialogue for the visually impaired and reading disabled. The first meeting of the stakeholder dialogue took place in Brussels on 4 December.

This first meeting of the Stakeholder Dialogue brought together representatives from the European Blind Union, , the European federation of Publishers, the European Writers Council, the Publishers Licensing Agency, the International Federation of Reproduction Rights Organisations, the European Disability Forum, DEDICON (which provides information and works in accessible formats) and various European Commission departments.

I am pleased to inform this SCCR meeting that the discussions were open and very constructive. It was agreed that tangible added value at the EU level could be found in identifying measures to improve the online and offline distribution of works in accessible formats. These measures will be set out in a Memorandum of Understanding (which we hope will be agreed to by the Summer of 2010) and should include steps towards establishing trusted intermediaries in every EU Member State with guidelines on their functioning, the setting up of an electronic inventory of available works within the EU and the free circulation among EU Member States of a product that has been legally produced under a copyright exception in another EU Member State.

Other Recommendations in the Communication refer to orphan works and out of print works. The European Commission held a public hearing on orphan works on 26 0ctober. Input from this hearing will also contribute to an impact assessment which will serve as a basis for the future policy decision the Commission will make on the matter of orphan works.

It is clear that the success of digital conservation of Europe's cultural heritage and its making available to libraries, the research community and the public at large requires a simple and EU wide approach on how to recognise orphan works and on how to permit their digital use. The Commission shall work, as a priority matter, at presenting proposals in how to ensure a swift digitisation of orphan works in full compliance with international and EU copyright rules.

As for the digital preservation and dissemination of out-of -print works, the European Commission will engage in a stakeholder dialogue to develop simple and cost-efficient copyright clearances covering mass-scale digitisation of out-of-print books that are still nevertheless still protected by copyright.

In September 2009, President Barroso presented his Policy Guidelines for his new mandate. Included in this package is an ambitious European Digital Agenda. To focus the debate as concerns a Single Market for Creative Content Online, the European Commission published a reflection paper for public consultation on 22 October. The deadline for responses is 5 January 2010. The reflection paper and information about the consultation process can be found at the following website address:

http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-...

The reflection paper covers all creative sectors and in its chapter 5 sets out possible EU actions under three headings: consumer access, commercial users' access and protection of rightholders. The subject of exceptions and limitations is included. I would encourage participants to visit the website.