Library & Archive exceptions at WIPO: Notes from SCCR 26 December 19, 2013 morning session

This morning the WIPO SCCR is going through the list of the following topics:

Topic #1 Preservation
Topic #2 Reproduction and safeguarding of copies
Topic #3 Legal Deposit
Topic #4 Library Lending
Topic #5 Parallel Importations
Topic #6 Cross-border uses
Topic #7 Orphan works, retracted and withdrawn works, and works out of commerce
Topic #8 Limitations on Liability of libraries and Archives
Topic #9 Technological Measures of Protection
Topic #10 Contract
Topic #11 Right to translate works

The morning session started at 10 am and was going quite smoothly– preservation and archives hardly seem controversial– until the issue of the nature of the instruments (national or international issue, treaty? No treaty?) came up.

In brief, at this point, the US and the EU do not see any need for international agreement on any norm for preservation. Some delegations such as Italy even questioned why would any preserved documents in an archive would be of interest outside national borders. Coming from Italy, a country with probably one of the richest and most consulted archived past that was quite surprising. One other delegation, France was also asking strange questions about whom could have access to archived copies of cultural heritage. India on the other hand seemed to totally see the interest for anyone in an archived Indian document. Latin American countries seem the most motivated in engaging on the topic at hand #1 and #2 for now. Senegal and Congo were both on top of their game vis a vis France.

Here are some summaries and a few complete statements heard this morning on the issue of preservation and archives.

Topic #1 Preservation
Chair: we need to find solution for the problem of preserving works to ensure accumulation of knowledge & heritage
General statements (summary)
Azerbajian: good proposal supportive
Australia: clearly permitted by International law
Russia: brings up the 3 step test so it is not a vague rule. Concerns.
Poland: 3 step test is in our national law already. No need for a treaty.
Brazil: Russia and others need clear definitions of entities that would benefit
Russia: Issues of use by educational institutions
Morocco: L&E should be limited esp re reproduction. Only for safeguard. List of when it is necessary
Chair: we have to continue to reach consensus
Senegal: Definitions and meaning of libraries and archives. Libraries mean different things. Collection of books and di. It can be a place public private when people can read.Archives is an administration that preserve all document whatever their dates.
Chair: let’s hear opinions about that? but stay on preservation for time sake.
Spain: We call it conservation in Spain. 3 step tests integral part of L&E rules. This is a national issue. Nothing beyond is necessary.
Chair: one of the theme is whether it should become and international norm. Opinion on that?
USA: Not ready to talk about international agreement
Ecuador: Chair, we’re in your hands but why talk about nature of instrument now? we’re not going to reach consensus today? Let’s talk about principles. But this guarantee is something that we have to find, paying due attention to these sensitivities of everyone. We have various proposals here from the United States, India, the African Group, but they all converge. We have the standard of fair practice in the centre of proposal and the USA has proposed a new concept which is appropriate circumstances. The African Group has proposed more specific circumstances but I think we could try and bring all these positions together, on the understanding that we do need exceptions. We do need to find an appropriate standard and perhaps in the meantime we could make progress on the other topics so as not to get in to the more complex issue of what should the nature of the instrument be.

El Salvador:

Should be done in accordance with the 3 step test and non profit. We can’t confine ourselves to the physical medium but also digital formats.
Both for libraries, archives and museums and for other museums in our country especially in remote areas where it is more difficult to get ahold of physical copies. very difficult to actually send these copies from one part of the country to the other. And there — there are campaigns to develop culture not only in the capital but also throughout the country. And so libraries have to have the proper materials. We should have an exception to protect this type of library or archive that’s acting in good faith so as to share knowledge, share texts and they really don’t want to see themselves involved in any kind of offense or crime that would cause them harm. They are simply Acting in good faith and have committed themselves to sharing knowledge.


Greece provides for particular limitations and exceptions in this area. More specifically reproduction is permissible only if additional copy cannot be obtained in the market promptly and in reasonable terms. It may take place only if specific requirements are made. And this specific requirements are the following, first if it is made by a non-profit library or archiving organisation, second if the copy is made from a work that belongs to the library or archive’s permanent collection and third if the reproduction is aimed at retaining the additional copy or transferring it to another non-profit library copy or transferring it to another non-profit library or archive. Lastly reproduction is deemed necessary since it is not possible for the library or archive to obtain an additional copy as I said from the market promptly and in reasonable terms. This exception is, of course, in full conformity with EU legislation and in particular with the Information Society director and it is also based on international Convention and takes in to account the three-step test. (Directive) now if libraries and archives want to do more than that they are free to enter in to agreements with rightholders and collecting societies. We believe that the international legal framework is flexible enough to accommodate the needs of libraries and archives and therefore there is no need for libraries and archives and therefore there is no need for a normative instrument in the area. We find these exchange of views between countries very fruitful but we would also find interesting to hear what are the actual needs of the various countries that are not covered currently covered by the international legal framework.

EU: Re possible definitions. See Directive Art 5 2 c Some members states define beneficiaries.


Good faith without saying. So legally acquired access to their works and the next page, on page 9, and here I am going to lose my identity papers as you can see my country you are going to see my age from my identity papers in the second paragraph it says in the Spanish version library and archives are essential to the 21st century supporting research, learning, innovations and creative activity. And I would add Mr. Chairman to this and leisure. Leisure activities. Amusement because many of the people here go back to the age of television and Nintendo and others but libraries for many people is a part and parcel of an amusement aspect, leisure. And leisure is part of the development of people’s personalities as well which is a human right. So I think we can add it without this being a problem for anyone because someone who is under 25 or even over 25 libraries seem to be their main source of entertainment.


There is no doubt for the need the importance of an exception for the preservation for libraries. Preservation of libraries. We have already intervened on this issue in a past meeting of of this Committee our intervention and then we can find it once again on page 3, No. 7, page 3 there where we explained how this exception works in our country. Paragraph 7, Italy. But the issue that we are raising now is what is the interest of having this exception at an international level. What is therefore the interest which is at the very root of this exception. There is no international interest! NO need to discuss these topics.


on the need the importance of an exception for the preservation for libraries. Preservation of libraries. We have already intervened on this issue in a past meeting of of this Committee our intervention and then we can find it once again on page 3, No. 7, page 3 there where we explained how this exception works in our country. Paragraph 7, Italy. But the issue that we are raising now is what is the interest of having this exception at an international level. What is therefore the interest which is at the very root of this exception. And what is the territorial relevance of this exception. There is no doubt that the main interest is the interests of libraries to preserve.

Congo expressed clearly the need for an international agreement:

The conviction of the Delegation of Congo is that libraries and archival services are a vital need for the development of creative industries. And here the limitations and exceptions within the framework of international Treaty will enable us to increase the creative capacities of the whole of humanity with its corollary. That is the guarantee of the cultural diversity, knowledge, know how and information for all. And everywhere. However the rule preservation rule and preservation above all of archival services must be supported their traditional role of a public service so that in the end the national interest be guaranteed and therefore certain concerns would be dispelled and would enable us to make head way and get rid of the fear that Copyright be inl fringed and national laws for the time being have many gaps. An international instrument is called upon to be successful as far as we are concerned and we think it is very timely. Thank you, Mr. Chairman.

[…Guatemala, Kazakhstan…]

Then France not sure about the meaning of fair practice:

[…] My intervention might be a bit more general in terms of vocabulary or methodology, specifically to try to truly outline this topic 1 and 2 I have heard that some Delegations already spoke about the safeguard copies and you have seen that this topic No. 2 in as far as this document goes that we are working on whereas in the minds and this is what I understood in the minds of certain Delegations here I am sure that of Morocco the safeguard copy was made to safeguard the library materials and the intervention which was made on this safeguard copy which is part and parcel preservation. Preservation whether in French or Spanish because we talk about conservation and not just preservation. So con ser vision and preservation. Particularly in the light of these safeguard copies which will also enable us to introduce the following topic and to really understand what we would mean by safeguard copy which hasn’t already been covered by topic No. 1 concerning preservation and conservation says the Delegate. So this by way of a methodology and vocabulary to be quite sure so that we are specifically focusing on each and every one of the problems for the time being with identified in a general manner in the document. Right. So that is my first comment, general comment that is.

Then I would have some questions about the elements contained in this document, several questions regarding the proposals which were made. The first is that of the proposal from the African Group. And here we are talking about making copies in a limited manner of published and unpublished works. Unpublished works and that’s what I am kind of wondering with that expression, traditional moral rights means that there is some problems as well regarding compliance with disclosure laws which is important for us. So I was just wondering why it was necessary to provide for these unpublished works in ade in French. Cameroon yesterday also made an intervention to say that it might not be necessary to include unpublished works here. So I just like to ask a question to the African Group to know yes, or no sorry, these works should be included within the framework of a discussion on this point.

Now a second question, proposal from Ecuador, paragraph 2 which spoke of a reference to practices which have to be in accordance with fair practice, in accordance with fair practice. Already any elements for this fair practice I just wondered if this was a national fair practice and I would have also liked to have received some specific elements here to know what we mean, specifically by fair practice. And what would be the indises or the criteria or qualifiers which could come in to play as elements to be a fair practice. To have a very specific question on this in fair practice do we include the commercial nature or not, for example, of the use, possible use that is. Right. Unfortunately I still have a last Right.

Unfortunately I still have a last question, which deals with the intervention from India which I listened to quite carefully which seems to concern also topic 1, preservation and conservation. I understood that preservation and conservation have to be linked to the replacement of a material work contained in the collection of libraries. Where I thought I understood that India would like these copies once they have been replaced should not just be preserved but also distributed. And that is where I have a — I find it difficult to understand what is the objective and the reason why we would need not just to preserve to safeguard which I think is the essential mission and the very reason behind this or motivation behind this first topic. Why would we need to distribute these copies? I guess in a more numerous copies and to whom. Why we need to distribute these copies. Therefore from what I have understood we are limited to the needs for preservation, safeguarding the cultural heritage. That is all. Thank you very much.



We are not now talking about libraries and archives in general but in order to make limitations of Copyright justifiable our principle is that the libraries or archives who have under the public law dealing the archiving system or dealing with the library system, they might be designated as beneficiaries of some limit actions in Copyright according to the tasks that have been designated to them concerning, for instance, the preservation of materials maintaining and organizing the collections restoration of the materials in the collections and completing the items and objects in the collections from which some parts are missing. And I think that each and every function of libraries and archives we are talking about we should take in to account that the — these limitations and exceptions concerning Copyright they cannot be general limitations of Copyright concerning all libraries and archives but in many cases only those libraries and archives who have under public laws designated special tasks. I should say that, for instance, the preservation and digitization of materials to would be completely unthinkable that several or many libraries or archives would digitize the same materials in a given country in order to preserve them. Of course, you have to select the institution that have this special tasks. This is something that is still missing in our considerations and we are willing to contribute in your analysis concerning this when we come further in the work. Thank you very much


[…]Libraries and archives in my country play a very important role in preservation. They are considered the memory of our nation and therefore the Jordanian Copyright Law states that libraries and noncommercial archives and cultural institutions have the right to make copies photographal copies of any materials provided permission from the authors and the Copyright holders and provided no harm is being done to the Copyright holders. And also with regards to exceptions and limitations for the benefit of libraries and archives this is such an important effort that we highly salute. Thank you, Chair.

Senegal2_19dec2013_sccr26_IMG_20131219_070810.pngSenegal clearly answered France questions regarding unpublished works being included or not:

On behalf of the African Group I shall try very succinctly to reply to the question asked by France about the nature of the works that are intended to be covered here. As you know most African countries in particular the French speaking ones draw on the French legislation for their own laws. And Article 58 in particular has been incorporated in to most of our national legislation. Which means that the copies we are talking about here are published and unpublished which means that we would take up the Indian proposal that talks about all kinds of works. In particular since this is what is implied by the Berne Convention. So published and unpublished works means all works, whether published or unpublished. So that is the reply from the African Group.

CHAIR: We have said that there is a problem and it has to be dealt with. And this is the principle on which we would base the solution to the problem. Let’s go to topic #2 Topic #2 Reproduction and safeguarding of copies What distinguishes from topic #1? Concentrate on specific.

[…] On to topic #2 Reproduction and safeguarding of copies

The EU picking up on the French delegate’s “fear” of archived document possible distribution (to the wrong people?) asked the following a question:


Thank you, Mr. Chair. I have a question related to the title of the topic and it is not related to safeguarding copies but looking at the proposals made by different groups I wonder whether we should only focus on right of reproduction since very often supply for access being mentioned should we also focus on distribution or even communication to the public in making available. Thank you.

The very efficient Chair moved on with the following intervention:


Thank you very much. Thank you for this comment which I am sure is going to create other comments. Yes, it is important I repeat to recognize what is the specific problem we wish to deal with so that we can see what is the principle that we can define to take up this problem. Thank you very much Distinguished Delegate from the European Union for this appeal. Would anybody else like to take the floor on this issue on topic 2? Right. We are sure that very detailed discussion on the issue of preservation has not completely exhausted the energies. So we can continue discussing the other topics put to our consideration. And time of recharging those energies is approaching within a few minutes. But so as to make an efficient use of time and while we are going to come up with questions or comments on topic 2 the proposal is to set aside topic No. 2 and move on to 3. So we will move on to 3 which is legal deposit. Sorry Ecuador, sorry you had the floor.



Thank you, Chairman. After having heard the comments on the right of distribution I find it rather difficult to understand because here distribution doesn’t fit in with the primary mission of libraries and archives because distribution can be free of charge or not. So instead of distribution which is really more like a commercial activity because we talk about if distribution chains buying and selling, I think it would be better to use the concept of making available. In other words, you can consult these works on the spot or borrow them. And coming back to safeguarding copies in France in its footnote requests the deletion of the words and safeguarding copies and that would cause us a slight problem because as my colleague from Congo has so well pointed — so rightly pointed out there are problems here in countries like Nili, for example, when centuries old libraries the centuries old libraries that belong to the heritage of man kind in Timbuktu were looted and destroyed that showed up the need for safeguarding copies. That’s what enables us to preserve human creativity over time and space which explains the great relevancy of keeping in safeguarding copies here. Thank you.