Afternoon Session SCCR 26 Topic #2 Reproduction and safeguarding of copies 26 Dec 19, 2013

Topic #2 Reproduction and safeguarding of copies (3 to 5pm).

The Chair was tirelessly looking for consensus items within each topic. Looming over the discussion was whether this is an international problem with an international solution. Brazil referred to the GA decision to work on an international instrument but the EU will be hard to convince. Italy continued to explain what the delegate described as “infringement” threat while Senegal was not backing down mentioning the need to reproduce or lend cultural products to preserve (his examples are from Mali and Egypt during recent events). Most unusual but helpful was the intervention for clarification by an NGO, IFLA regarding the differences between topic # 2 and topic #4 which seems to escape most delegates, most of them copyright experts but obviously not librarians.

EU: […] clarify the beneficiaries, are we talking about library institutions or the end users of this institutions?

Poland: on behalf of the Central European and European Union and Baltic States, we express the same opinion. In our view the title of the whole sector or cluster should be exceptions and limitations to the right of reproduction rather than the right of reproduction and that’s hour view.

Senegal: this is for the benefit of the people who go to libraries and use them but the beneficiaries of the exceptions are the libraries and archives


[proposals…] provide for reproduction and distribution to anybody. It says reproducing any work in any format and distributing it to any user in our proposal we talk about distribution. That’s the situation that libraries can transmit by internet to any of its users any of the works that it has available but I think that this is a serious infringement of copyright because we are opening the door wide to free distribution or if it is paying a slight cost to the library, it is a market to distribution channels which effects distributors and right holders. This is a situation we find totally unacceptable and there is a third proposal which speaks about even if the text is not very clear it says reproduce in work and distribute a copy of it to the user of the library. After that there is a coma. After that, to another library or to another archive service. Now, the coma means that the limitations under A, B, C and D don’t apply to the user of the library, if that’s the correct interpretation the result is the same. You can distribute the work to anybody. Even in the other case, there is a completely new situation. In other words, there is the combination of to access, to access the library, not to use the library, but to — but to get this exception used by other people and that’s unacceptable. These other people have their own ways of access for purposes of research. It is not a third party that should be helping them to gain access. This morning we had the example of students who go to a library to make copies and study. This system has been covered by our law. There is a possibility of making photocopies and that law allows for people to make a certain number of partial copies of the work and they have to pay for it and part of that money goes to the right holder.

There are photocopying machines in libraries that students photocopy the books they get out of the library. They pay their fee and part of the fee goes to the rights holder. That is done by the students, not an activity done by the library. It is quite different. Then when it says in paragraph 3 — Paragraph 2 of proposal 25 there again it says that the work may be — the copy of the work may be distributed providing that the legislation provide force that copy to be made. What does that cover? Is it to prevent copy?
That can be used if we just have legitimate acces. That can be used if we just have legitimate access to the work.

This is not the case if I have a book I can copy it at home, for my own means but I cannot go to the library and ask for a copy for my private copy so we can’t accept that hypothetical case either.


Thank you, Chairman. On the subject of this topic I would like to say that it is distinct from topic 1 regarding the definition of the problem, it is slightly clearer but as regards to topic 2, therefore examine the various proposed texts and also the comments we see that the definition of the problem is still not very clear. We see that among other things it doesn’t speak only of reproduction, also distribution although distribution means different things according to the different national laws. We don’t know whether it is tangible, intangible copies, whether it is making available, not making available so we don’t see who the real beneficiaries of the limitations are, exceptions or what are the concrete objectives being sought or any guarantees associated with the obtain.Of objectives regarding rights. Once again, I repeat, the comment I made on the previous topic we do not really see that there’s any evidence that this problem should be dealt with at a level that goes beyond the national arena, the national level.
As to how to deal with this problem, or the vision As to how to deal with this problem, or the vision of the problem point of which is to — is preservation or to ensure library lending and consultation I would refer you to the explanation under paragraph 46 of the document and the contribution from Spain which goes into much more details of the problems but we still don’t know whether we’re talking about the same categories of things because things are still far too vague from these texts.


Thank you, Chair for giving me the floor and thank you to the Distinguished Delegate from Ecuador for providing information regarding the joint proposal.
Regarding the questions that were raised by the Distinguished Delegate of Spain I believe that he raised four questions about first — about the beneficiaries, about the results expected with this exercise on topic two and about where we would find the assurances are right holders in the four points about whether this discussion should take place internationally.
Regarding the beneficiaries, Mr. Chair, I understand this was a topic also of discussions, of Topic 1 when we were discussing whether we should count on definitions of libraries and archives and perhaps this would give clarification and provide information needed by some Delegations. Regarding results expected we understand that the main purpose of this exercise to provide the legal certainty needed to the work of libraries internationally and nationally.
Regarding the associated assurances for right holders I would like to recall that in our proposal in Paragraph 2, we make reference to the national legislation giving assurances that the national legislation will be the focus and will be the basis for providing this comfort for right holders.
In regarding the last question, whether the discussion is has an international interest, the answer to the question is yes this question was presented by Member States that decided that we would have a point of discussion of the and has already been asked in the past. They have discussed this and have already decided that, yes, it is important to have this discussion.
Thank you, Chair.


Thank you, Mr. Chairman.
We took the floor because we wanted to endorse some comments that have been made here in this area. First, as others have noted, we do think this is covering — this section is covering a few different types of issues when a library supplies a copy of a work to another library, when a library provides the work for the personal use of a library user. In all cases this is very much focusing on the supply of copies for personal use and for library use.
We agree that this is a very, very important function and contribution of libraries, in fact so important that when we looked at principles and objectives in this area we actually put it under support for research and human development and so we think it is important that we be engaging in this particular discussion and I would just flag for you our proposal that it is to enable libraries and archives to Cherry out their public service role of advancing research and knowledge. We have some general principles there about access to collections and information. We also note that reasonable exceptions, limitations can and should establish the framework for enabling libraries and archives to provide copies of certain materials to researchers and other users directly and through intermediary libraries. We do think this is very, very critical element. We concur with Chili and Germany’s written comments weapon don’t want to impose solutions on the international level that are so fine tuned there is no room left for the balance deemed appropriate. We have heard a number of different ways that the countries approach this. In the United States we have a number of conditions for using an exception in supplying copies whether through the library or the personal use of a library user. It is important that the library believe that the copy will be used for private study, scholarship research, not for commercial use. It must carry a copyright notice. The materials must be the property of the user, requested through a library or the property of the library itself when used for other purposes.
In addition, we look at the purpose of the cop coping and how much of a work is being copied, a single Article, a whole work.
There are a number of different elements. That’s why we have really tried to come up with a proposal recognizing this important function but also provides flexibility for the countries to work individually and together for identifying how to reflect this function.
Thank you.

Now I give the floor to Senegal.


>> Thank you very much, Mr. Chairman.
As a reaction to the statement made by the Italian Delegation and Spain as well I think in the spirit of the African Group this is not a big opening which could basically infringe the rights of the rights holders. It is simply saying that we’ll proceed to exceptions and limitations to the reproduction rights, it even said in the provisions, those proposed by the African Group as well as India, Brazil, Uruguay, conditions which conformity with fair practice and here you should also read which shouldn’t be countered to the interests or provisional to the interests of the authors. After all, we’re directors of collective management organizations, you cannot have a mission safeguarding copyright and then participate quite simply in a violation infringement or even in questioning them. This is why the concern which we see here in the remarks made by the Italian Delegation.
As far as the African Group is concerned, we’ll do anything to reach a balance. What we want is access to knowledge. That’s what we want primarily. Access to the preservation of what we call human Heritage and the African Group is very sensitive to this because with one single international signal many will safeguard the linear nature of human creativity from one space to the next, one space to another. We cannot provide examples which are there, visible, well-known. Quite recently we have now beside us, we have Egypt, we know very well, for example, that with the whole historical Heritage that Egypt has with the pharaoh and populations that the conflicts that we’re visiting currently witnessed in Egypt made the population to attack libraries, museums to the point of destroying both the copies which have been safeguarded as well as accessible copies. Just one international instrument not done in a bilateral status, it is a international symbol, to entrust another library, a foreign library, the case where there may be an internal conflict, this is why national legislation doesn’t really settle the problem. This is what we’re experiencing in Africa, historic works of akhma baba, allow me to go in history, he was a Wiseman who lived in mali, who wrote in many a social sciences with the attack of the kidas, all of his works were destroyed. Just imagine that there were to be a previous international instrument they thought would be a problem they could entrust copies to be protected in France, the United States, wherever the attack may be where the libraries are subject to, we would have our libraries, works saved, that’s at stake, that’s why we believe even compared to that field, even another one, an international instrument could settle this problem. Moreover, national — besides national observation, it could be settled in an international manner.
Thank you.


Thank you, Mr. Chairman. We listened quite carefully to previous comments and we think it is useful to compare it to other topics of the working document to try to untangle things.
When we listen to Delegations and proposal on Item 2 seems to aim at three objectives, copies, safeguarded copies, enabling the libraries and archives to safeguard the copies so as to protect the works from digitalization and even in the case of a copy being leapt to the users, more appropriate to consider this objective and topic I talking about preservation. 2, to enable, second objective, to enable library to lend — to a second library, benefiting the user of the second library. Again it appears for this objective it may be appropriate to consider it under topic 4, library lending. The third objective, I think that that is what was submitted, the eloquently by the Distinguished Delegate from Ecuador, the library making a copy of a work for a user in conformity with fair practice. In other words the librarian would make up what a user could make themselves by using the legislations available in the national legislation, that’s the case, there seems to be appropriate to consider this objective.
Number 8, limitations of liability of libraries and archives.
So, to conclude, it would appear that trying to compartmentalize what’s under topic 2 we have reached topics which are more specific or more appropriate and we would like to see the understanding, there may be redundancy with topic 2 as a whole and there is another objective here as well, attitude that we have mentioned, which may have escaped our attention.
Thank you

Chair: […] re topic #2 We would like you to think and to help us to establish or solve that main problem and adequately limit this second topic.
Italy has the floor.


we feel we should distinguish between the exceptions, the exceptions, the rights of the right holders, the authors, exceptions are not a right, Berne Convention talks about this, talks about free use, it is something which is outside the realm of law, it isn’t a law or a right which is opposed to those of the right holders, it is not opposed to. It does not contravene them.
Talking about national legislation I think it is quite clear, our thinking is quite clear here, regarding this exception it is up to the Member States and not up to the international sphere but once we have — we tried to settle in a very specific manner this exception when we try to settle the exception we feel we shouldn’t leave full freedom to the national states afterwards to decide on the extent of the scope because the limitation and extension of the subject which might benefit exceptions, from exceptions, in other words the users, who may benefit from the exceptions, this is not a secondary, minor issue, it is a fundamental issue because if we apply at a national level the possibility of distributions to users who are specified in a limited, focused manner, that’s one thing.
If at a national level we say which is a large scope of application, wide ranging, and the fact that the many people can have access to these kinds of exceptions, well, then we’re in a completely different situation altogether. If we want to settle this as an international level we have to settle that aspect saying exactly which — who are the users, that the libraries can distribute these works to.


Thank you, Distinguished Delegate from Italy. Thank you once again to express the need to properly settle this issue of limitations and exceptions which have been brought up in the different comments which contribute to achieving a well-balanced treatment of the issue.
Now regarding this second topic, we don’t see any requests from the floor from some of the Delegations. We do see a request for the floor from the international federation of libraries. Here unless some Delegate, groups of Delegate consider anything to the contrary, they would like to enrich our discussion by having an NGO participating with its point of view but just asking you that the general statements and comments have already been made and the topics that have not been discussed yet are not objects of comments at this point in time and since they intervened we have developed the topic 1 and Topic 2 since you made your major statement. Additional topic 1 has had such a development, so extensively developed and has led to such consensus on what the problem is that no doubt we may need the illustration and examples from some NGOs when they take the floor on the point that we reach.
I don’t want to cut short anyone, anyone who wishes to take the floor. Methoddaling it would be more tidy if we’re discussing the same topic. So I would like to keep to the same topic. I don’t see that any Delegationings oppose to this, to giving the floor to the NGO and I will be pleased indeed to listen to the Delegate from the international federation of libraries.

WInston Tabb of IFLA is (finally) called by the Chair and since no one is opposing this unusual move, he explained the difference between topic 2 reproduction and safeguarding and topic 4 Library lending.


Thank you very much, Mr. Chair. I raise made flag when you asked for some interventions that would relate to clarifying our situation. I wanted to revert to discussion we had even before lunch about the differences between the activities that will be covered by cluster 2 and those in Cluster 4. Speaking not as a lawyer but as a practitionor I thought it may be helpful to understand exactly what could be done and what we would need to be able to do in these two different arenas. I would speak first about number four, library lending.
Library lending has to do with lending a physical object or a time-limited view of an Article. Often what happens with libraries is if someone needs to borrow an Article we don’t send the entire volume, we make a digital copy of the Article, post it in a password protected way on the server to make it available for a limited period of time. Just as we limit a physical item for loan is borrowed. This is different from what’s covered under number 2, right of reproduction as in this case has to do with providing a copy to a library or a user to retain, but for very specific purposes such as education and research or private use. Items that would be permissible under clusters 4 and 2 are similar in that they both cover works in print and digital form but they differ in that the activities under 4 would be temporary access and those under 2 would be permanent.
I want to say that the driver for both of these kinds of activities and libraries comes from the fact that no library can have everything that it needs to have. This is maybe to some degree an issue of money, but actually it is much more related to mission. I would just give one example from my University which I run the libraries there, we do not have a law school at my University. Therefore, we do not have large law collections. Occasionally someone may need to have an Article from a — a Law review Article and we’ll borrow that. This has to do with fulfilling obligations to users but not ones that are major and an on ongoing basis. Much more devoted to our focus on mission.
I hope this way of describing the two kinds of things that libraries do by lending and by making copies under clusters 2 and 4 will make it clear about what we would like to be able to do and are now doing under certain circumstances for those of thaws are fortunate enough to have library exceptions.
Thank you.

Following ICON (museums) are also called to help clarify:

I’ll be brief, I don’t want to stand in the way of the coffee.
I would first like to express our deep gratitude to a number of the states which have recognized the importance and role of museums which are extremely similar and share many functions as libraries and archives. However, I would like to not be repet active and actually like to point out a couple of the applications which are unique to museums with making copies. For example, works of art is our largest issue that we deal with. Museums require making a copy initially for our management of the collection unlike documents we actually have to have a copy, a photograph of a work of art, which is usually put in a catalog system. This is for internal management. It is not for external application. In many countries that is a permissible activity but it is unclear whether that is a permissible activity in all countries.
Other examples of sort of internal coping that are required are when we’re doing exhibition planning and model making of where works of art would fall on a wall and so on. I wanted to point those out because when you start getting in three dimensional objects the applications and the concerns of copyright become different than in the two dimensional document world. I could go on about other special considerations that museums would have, but I don’t think that’s the place to do this right now. I will not take further of your time.


Thank you very much, ICOM, for your position which does help us. So useful to have an idea of those two particular uses that you have identified and many Delegations have in fact mentioned museums during the course of the discussion of Topic 2 so I’m sure this subject will be developed in national legislations which museums have been included. Thank you very much.
Good. Well, I wouldn’t like to cutoff discussion on Topic 2 or limit the scope of it because that would be difficult, probably would have to recognize that additional work is needed in order to properly define Topic 2, however there does seem to be a common element which in any case is not highlighted as being contentious and that is what’s being said about the need to establish exceptions and limitations, reasonable ones, ones that are in pro possession as to enable libraries and archives to reproduce, to reproduce certain copies or certain works. I correct myself, to reproduce certain works so as to facilitate research. This is the subject that nobody has questioned. For other specific uses, where there have been differences of view. There is still no agreement on what these are. For the purposes of research practically all systems have provided for a system of exceptions. This has been described in reasonable experiences and national legislations so as to meet that challenge so from up here I note in spite of the difficulties of establishing any limits to this second topic there is an area of consensus which would be reproduction as to facilitate research under certain conditions. Which would effect the users and certain options that have been put forward such as the three-step test, fair practice and people have said that the first step would be taken by making it a specific exception and specific reference to the second and third steps but there is something still pending. The additional scope of reproduction that is to add to reproduction disFriday abuse, whether to add distribution or not is still being discussed. Some people have said that the right of reproduction doesn’t make sense until you have distribution as well. Under what conditions that would take place there we still have to achieve a consensus. Is that correct? It also has been pointed out that it is possible that under those conditions that still have to be established the copy would have to be done on the premise of the library or by using means — whether it should be by using means that provide access from the outside to the library. There is still no consensus on that. So I’m being very cautious and trying to bring together what the Delegations have said and trying to concentrate on the consensus areas rather than the areas of contention.
Good. Having invited you to recognize the principle, although I clarify that this doesn’t mean that we have decided anything about the nature of the international instrument the topic is before you I see that someone is asking for the floor Good. Having invited you to recognize the principle, although I clarify that this doesn’t mean that we have decided anything about the nature of the international instrument the topic is before you I see that someone is asking for the floor. Since we have reached that point we can go on to Topic 3. But the Delegate of the European Union could perhaps supplement what’s been said up to now. I hope you will concentrate on the areas of consensus that I have outlined so far.


I don’t want to hold up the conclusions on Topic 2 but the European Union and its Member States think that we cannot just isolate that I mention of this topic or problem as you call it being treated on an international level. We have indicated several times in this discussion, I heard for example a reply from Brazil that because the General Assembly decided on the fact that we should discuss on a legal instrument that, therefore, you have an answer to the question whether this should be considered a problem on an international level or a problem that should be solved on an international level, I’m certainly not satisfied with this reply and we want to have this noted, that in this conclusion, that in any event we agree that there may be a problem for those Member States that don’t provide for exceptions international laws that talk about the certain things mentioned in Topic two, yet again, we have repeat it had over and over, we’re not satisfied or convinced this should be addressed at the international level.