SCCR 26 Topic #4: Library Lending (December 19, 2013)

Lending! Hot topic here! Seriously, this is now really about the core service, function, mission of libraries: lending. For many of course this topic, this exception, is the fundamental exception that makes or break the project.

One of the question (that the US and Tunisia put skillfully to bed) is whether library lending is a threat -as described by Greece–or a complement to the commercial market (as described by the US and Tunisia)? But France does not seem to understand that lending books (not only licensing them) can work out well for users and authors. Another important issue was the meaning of “fair practice” also well dealt with by Congo and Senegal. Please read on how Italy explains there’s no fair use now… because it has been taken over by the 3 step tests!

In addition, the issue of digital v. analog is not solved yet and maybe some delegates do not really trust TPMs?

Here are some of the interventions regarding topic #4:

First the secretariat summarized the proposals:

The African Group has a proposal on supply of works which at least in this section focuses on supplying works to another library or archive for subsequent supply to any of its users. The proposal from Brazil, Ecuador and Uruguay specifically says that a library may lend copyrighted works or materials protected by related rights to a user directly or to another library also noting, however, that contracting parties that have or Member States which have a public lending right may keep that right. The proposal from India is the most — the broadest language saying that there is a right to lend any work without authorization. Doesn’t specify the recipients. In the principles and objectives proposed by the United States, the objective is to enable libraries and archives to carry out the public service role of advancing research and knowledge and the focus here seems to be somewhat more on research with the users specified in the principles being in some situations the general public and also researchers and other users directly or through intermediary libraries. There are a number of comments on public lending regimes including public lending regimes from a variety of countries both here and in the annex and there were also some written comments made on the proposed text suggesting the ways in which the proposed language in the texts may intersect with the existing public lending systems in a variety of Member States.



Mr. Chairman, just a few words about this. Said that the European Union provides for the possibility of having lending but with re numerous and I think that idea has to be taken into account not just for lending but for the exceptions by this committee. You were already told by the representative of libraries that that basically the lending you’re giving involves the material rendering without any phenomena of the reproduction, just the actual work is Lent. This excludes the position built to have digital transmission because digital transmission, which is found in the African proposal implies copies, reproductions at a digital level. Here again, we have a digital transmission, digital copy, we have a distribution of the works. I don’t see how one can give back the work which was transmitted digitally. That’s just impossible. All we can do is provide more copies. The only possibility for a loan is a physical copy, a physical copy.


Well, very concise as well, briefly, Columbia is one of those countries which the representative was talking about in which in the current legislation there is no exception given to public lending. However, there are libraries in Columbia and, of course, we agree with the fact that there be an exception which enables us to have a library function work and has been said previously the main function of libraries is lending. We — I just wanted to comment rather about the situation from Columbia, our agreement, that that situation is established. Thank you, Distinguished Delegate from Columbia. Thank you for your clarification. That this treatment, exceptional treatment which enables us to carry out the main function of libraries be looked at and taken care of.


Thank you, Chair, for giving me the floor. Brazil would like to associate itself to the intervention delivered by the Distinguished Delegate of Ecuador that presented our joint proposal on library lending. I would like also to make reference to the intervention made by the Distinguished Delegate of Italy on the points of the African Group proposal I would just like to understand whether the mention of fair practice as in terms of national law is not a guarantee, associated guarantee which would suffice or whether there is any other form of guarantee that would be acceptable to the Delegation.


Thank you, Mr. Chairman. I must apologize to the floor again regarding the observation made by the Distinguished Delegate from Italy and the question asked. In which he raises the impossibility, we have the phenomena of lending, digitally, digitally transmission, it would be impossible technically not creating accessive copies based on one original and our understanding currently, there are technologies which are used specifically to provide for limited time one work and then these technologies make the formats disappear. The archive disappears so perhaps, Mr. Chairman, it may be interesting to know from the international library federation what the procedures are, which are being used currently in the developed countries of which are available to allow for this provision of a digital archives for a certain time frame which don’t mean that there is multiplicity of simultaneous copies


Thank you, Mr. Chairman. The Delegation of Tunisia believes that loans to users or interlibrary loans are very important procedure for the libraries so that they can play the role of a public interest or even a general interest specifically in the context of developing countries. This is why, of course, this exception is necessary and this is why we should also take into account the diversity of the supports used. The proposal made by the African Group provides for the fact that by any means, it says any means should be taken into account that aspect because of the evolution, technological evolution, the technical evolution in this field so we should take into account, we should take into account that is the diversity of the support and encourage the lending added to users or interlibrary loans.

However, Greece is seriously concerned about the scope and the idea that libraries could lend commercially available works:

We would like a clarification in relation to the African proposal. If one can get a film or a book or a piece of music without even going to the library in his computer, at his home, by a digital transmission, even if this is for a limited period of time, why would this person go and buy it or pay to see it on TV or pay to download it, so on, how is this compatible with the three-step test and protection of the legitimate rights of authors? As the title of the African proposal indicates it is rather about the supply of copyright and related rights material rather than about the lending of works.


Thank you, Mr. Chairman. I might have an answer regarding the questions asked concerning the proposal from the African Group because I also had some difficulties in understanding it. I have a question which, in fact, may echo the question of the previous Delegation or which may even provide a clarification. My lack of understanding concerning the African Group proposal was based on the fact that we’re only talking about providing a copy. A copy of any work and not providing a work by libraries so we’re talking about the loan of a copy of a work but there is no question of lending the work itself. That is where questions may have arisen and it is inclusively a copy of the work, if we’re just talking the copy of the work which may have been digitalized or transformed in another format to become a copy then that is when the confusion of answers and I would have liked to have known, in fact, indeed, why we were just talking about the copy of any work in the African proposal, and not just the fact of lending the works as we can see in the proposal found in part of 77, proposal from Brazil, Columbia, Uruguay which is explained by Ecuador and Brazil.
Now I would like to come back to the information provided, the clarification from Ecuador, Ecuador and Brazil which said quite specifically
Now I would like to come back to the information provided, the clarification from Ecuador, Ecuador and Brazil which said quite specifically that their proposals respected the right, the public lending right, which is provided for in certain legislation. I’m not quite sure that this is really a public lending right or an authorization for a loan which would be enumerated or not. I would like to point out that we’re talking an authorization maybe, I would like to remind you, this is what we already did in the previous SCCRs, in the case of a loan, France does not use an exception mechanism, uses a legal license mechanism which may be comp — comp ensated for by enumeration of the authors. I’m aware of the fact that this proposal is there to respect, comply with the national mechanisms already in place, I think that’s a good thing. I would like to remind that you the mechanisms are not necessarily exceptions, there are also licenses which do not necessarily correspond either to a lending right as used in the proposal of Brazil, Columbia and Uruguay. This is just to help or to assist regarding the questions arisen in the African Group proposal and to remind you there is a whole set of authorizations and die versety to see to it that the public missions of libraries and archives be best complied with and this is a system which enables libraries and the archive services to fulfill their public missions and functions and it doesn’t necessarily go to the exceptions of limitations, they can go through a license also. That’s our case and I’m sure in other countries as well. I just wanted to remind you of all this, thank you very much.


Thank you, Chairman. Referring to the comments made on the proposal from the African Group and fuely more on what France said about trying to find an interpretation of the text and how we see it it seems to us that the text of the African Group contains the word “supply.” Without making a reference specifically to a loan one interpretation could be that this is a neutral concept, what it brings to mind is the loan of digital copies. They may interpreter pretty that as being an act different than a loan because they’re made available for a limited period of time.
>> I think the word “supply” means avoiding a discussion on whether or not this is a loan in the strict sense of the word meaning making available because it could be digital copy.
An additional point is how international obligations are respected.
The scope of the supply of copies is limited in the final phrase which says that all this making available has to be compatible with fair practice as determined in national law. Consequently there is a standard that limits the scope of the exception but there is no doubt that this is the text that could come both under topic 2 or under Topic 4 because as it uses the word supply you may consider that it means that these copies are not going to be limited in turn and they might remain in the hands of the lender — sorry, not the lender, the borrower. So it could be applied either to loans or when you actually have a copy that becomes your property.


Thank you, Mr. Chair. We just wanted to do a quick clarification that we believe library lending compliments the commercial market. Libraries purchase work and generate interest in work by lending that creates consumer demand for other works so we wanted to follow-up on that point.Just for us, the United States does not have an express provision in our law addressing lending by libraries rather the capacity of our libraries to lend materials is implicit in our right of distribution and also through what we call the for sale doctrine in section 109 of our Copyright Act. We recognize that libraries and archives advance knowledge by providing access to their collections.
We had a question for the African Group, we’re a little concerned about having a standard that’s compatible with fair practice and this follows up on the ininquiriy raised by Brazil as well that we would be concerned about establishing a standard where a library or archive woulds have to do a fair practice or fair use analysis with the lending of any particular material so we just flag that as an issue that raises some concern with us.

What is fair practice in the African proposal? asked Brazil


Thank you, Chairman. I shall and try provide some answers to the questions asked.
The question of whether in making available the explanation making available is so that people can take advantage of it.
Regarding Brazil’s question on national law would it be possible to have such limitations in national law, I think we could stop the text after the words “fair practice.” But since another question has been asked about fair practice I would just like to describe all the flexibilities proposed by the African Group.

And Senegal added:

To compliment what the Congo has just said in respect of the African Group proposal, I just a would like to say that the expression “fair practice” is fairly broad in scope because we can’t really check whether a particular library or archive is acting in a way compatible with fair practice so we’re flexible on that and over time we could try to find the most appropriate expression. I don’t think it should hold us up, it is not engraven in stone. We remain flexible on that.


Thank you, Chairman. I would like to react to the statement by the Distinguished Delegate of Greece.
I think the activity of libraries is not in contradiction with the market and the principles of copyright so there is no contradiction there between the mission that is in interest of the public when it is carried out by libraries and the market and the defense of copyright so I don’t see any contradiction there and at present all libraries throughout the world work like this, they don’t challenge the principles of copyright but they do have a mission that is in the interest of the general public and which is to allow access to works for users. This is the clarification I would like to make in respect to the comment made by Greece.


On the subject of fair use, fair practice, we find that expression in Article 10, Paragraph 2 of the Berne Convention. In fact, this expression has been over taken by the three-step test and the text of that three-step text on the subject of the right of reproduction.

That’s been over taken by Article 13 on all of the exceptions there.

To talk about fair practice, fair use today has been over taken by the text of the three-step text so it is no longer applicable today, this expression. I would like to add a few words about digital transmission. We agree with what Greece has said and will what the European Union reminded us of, that there is no provision in our countries for digital transfer or digital lending of works and this is for another reason too because the procedure is to make reproductions of copies of works Lent by libraries and the reproduction is in limited numbers so by way of a loan one can deliver an enormous amount of works because thousands of people could ask for the same work and the library is in a position to make a loan to thousands of persons when the idea of a loan is to make a limited loan of the works the library owns, they’re made and then they’re returned but if we are talking about digital transfer we still are talking about it but this delivery would be perhaps for a limited period of time for a month or so and we’ll be talking about in a limited number of copies then it is the three-step test and that’s not possible so we can’t talk about digital transfer in terms of loan.

INDIA then tackles the issue of digital lending:

Building upon the views expressed by the Delegate of Senegal and the Delegate from Ecuador we can now look at two issues, one is lending, and there is a submission about physical and digital. The question of if you say that lending has to be, you know, complicated in many way, then we’re really not talking about anything about fair use and fair dealing when we talk about many of the countries, what they have expressed with knowledge, culture dissemination inhe canties and et cetera. This is now part of the Development Agenda, whether it falls to move people from one level to another level and that’s why we’re using library as instrumentality of dissemination. The question comes about digital, whether the Lent copy, there is a borrower, a lending, it comes back, in terms of the concern of the members regarding — regarding digital copy I’m sure that as we discussed in discussions about the seven-year technological development, that should not should be in our provisions looks, many things that our libraries can resort to. So obviously by telling the digital transcription we’re facilitating much more of the original purpose to remove medias in many other places where it is in the possibility but somebody trying to get the physical library, to get a book for the lending, it is a difficult proposition, the trend of publishing also is changing in a big way, that last year the E-book sales has exceeded the physical book sales in the United States. You really find if you’re looking at one aspect when talking about technology and I’m sure that digital transmission without loss or without piracy could be tackled

What is unfair practice? asked Greece.
Congo replied:

Thank you to the Delegation of Greece for coming back to the attack but when we refer to anything which could be against fair practice, that would be, for instance, a loan of indeterminate duration which would open the door, like a type of second loan, to others and even to copies, that is what we mean by what would be not compatible with fair practice. At this state of the discussion, this is my answer, I hope my friends from Greece have understood my answer.

Senegal added:

I just wanted to clarify on the question from Greece which is very well taken and important for the subsequent work. Now, fair practice as was so well explained is simply to avoid the fear of France of having a loan of indeterminate duration as was said earlier. There are Libraries which do not receive back the loans and if this goes beyond the period of time in the loan contract, this could be an unfair practice, and even worse, it can be an unfair practice whereby a library has a copy which is lent to it and which it then lends on, so this would be typical example of unfair practice. The contrary of fair practice

Last words tonight by the lively Indian delegate regarding fair practice, paranoia and TPMs


Thank you, Mr. President.
Because when I teach copyright in the classroom, one of the topics is fair dealing which we call in India fair as in U.S., so no student or professor had asked me to say what is unfair. Is as good as asking a believer why do you believe, then he says prove there is no God, right? So the question of fairness here is taken from the jurisprudence of Intellectual Property rights where the author is not the central person. The central person is the public-at-large and the facilitation to the author to come out with a lot of words, creative word, makes a lot of people to enjoy. So in fact Intellectual Property rights is an in true mentality to make an author to produce and then be enjoyed by the public so that’s how the whole jurisprudence starts. You this look at the 1909 when U.S. Congress starts the same thing. It’s not about any natural rights to author but, rather, for the public to enjoy and to facilitate the author.
It is in this context we should understand fair user and fair dealing as an exemption, we put putting back intellectual ropt for the agenda we are talking about fair dealing. There are nitty-gritty of issues what somisuses, someone said I just yesterday got a mail from my university I have not returned a book which I took about five years, right? I’m a defaulting by lending and I’m really trying to find out, I thought I returned it back.
So the question of nitty-gritty of many things are a smaller issue. We are on the larger issue of lending which is very important of the main DNA of library. It is not physically 2,000 people can go sit in library. It’s not somewhat you call a massive haul where you are sitting, they are very very small places, religion and many places Libraries are there, they loan and they take it and give it back. As far as digital transmission is concerned, that’s what I said, there are private practice of no digital, not about returning but about encrypted password and what you call it, you cannot share, so the question of coming back and giving digital copy is not the issue. If you want to really look at how or whether you bring in a big loss to the people who are in publishing et cetera. We are only serving the same purpose of someone taking home and returning it back. Here is someone having it but at the same time they cannot, what do you call, spread it out.
What’s the kind of studies we have to tell that, you know, this is going to have a huge thing? It’s a kind of paranoia, we think, about digital which we are hopeful on one side. On another side we are getting too much worried when it kinds to libraries, Exceptions and Limitations
What’s the kind of studies we have to tell that, you know, this is going to have a huge thing? It’s a kind of paranoia, we think, about digital which we are hopeful on one side. On another side we are getting too much worried when it kinds to libraries, Exceptions and Limitations. Thank you very much, sir.

Manon Ress