If the Broadcasters’treaty often appeared to be a treaty in search of a problem in the last few days (or years?), the Libraries and Archives’ problem is about a treaty in search of a solution… or maybe solutions. And if the problems (and thus solutions) were not specifically cross borders…well, the librarians and archivists of the world would not be here “en masse” testifying at the Standing Committee on Copyright and Related Rights, a Committee extremely proud to have created the WCT and the WPPT to solve the cross border issues of copyright owners.
Yesterday, we started discussions on item 6 (of 11 issues to cover in a day and a half) which is cross-border uses (cross-border def: Involving movement or activity across a border between two countries: cross-border trade) specifically for libraries and archives. But actually, the “burden” to bring evidence did not appear too heavy as Libraries and Archives representatives after representatives came up with telling examples of cross border related problems that often prevent them from fulfilling their professional mission today.
Rightfully so, Kenya asked for the floor first thing this morning to re-focus for a minute on Distance Education which is an area where national solution-only would not work in most cases since many distance education or training institutions are specifically created for and by a global community of instructors and students.
Kenya:
Yesterday we tried to give our opinion on the crossborder in our statement and therefore I would like to go back to what we said yesterday, but we realize there are many changes in the international scene, especially terms of the digital environment which has necessitated the change in terms of how we are moving away from hard copies to digital copies and from the traditional way of capturing that information or transmission of that information through hard copy to digital. Therefore, this new development and the increase in terms of education and the way we have satellites, compasses, institutions which are promoting distance learning we feel that the current exceptions and limitations aren’t adequate to deal with new challenges. In this regard, therefore, we feel this is an important issue and we have made proposal and recognize the other proposal from colleagues from Ecuador and India, and in the spirit of moving this issue forward we would like to request that we mandate the Secretariat to work on these three proposals to come up with a text that’s acceptable to our colleagues.
This proposal was supported by India and Ecuador.
Distance education came back several time in the morning session. The International Publishers Association (IPA) representative stated that the Library & Archives Treaty proposal was way too complex and that commercial solutions, such as licensing was the way to go. Of course the “complexity” the IPA representative was talking about is created by the publishers themselves and it is because the libraries and archives need simpler and global rules that they are here. But obviously most people in the room have never taught a distance education course (or even enrolled in one?) and it would be interesting to hear how a distance education instructor would manage negotiating 100s of licenses to be able to use works needed online as the course he or she is teaching develop. There are now many technical solutions that could be used to ensure that a global teaching online exceptions could be enforced and as education or training programs online develop, copyright should not stand in the way.
Another cross border issue that clearly demonstrated the need for an international solutions was collections in libraries and archives that have great cultural and research value but not much economic values. Teresa Hackett of eIFL.net illustrated the issue with real life examples:
eIFL (Speaker) thank you. Only behalf of electronic information for libraries, partners for libraries and those in more than 60 transition and economy countries we thank you for the opportunity to speak on crossborder issues. We thank the African Group, Ecuador and India for proposals on this topic. The collections of libraries and archives in one country often contains materials of unique Cultural and historical significance to people in other countries due to national border changes, mass immigration, shared common languages, research interests and a host of other reasons.These materials collectively contribute to the Cultural heritage of human kind and the building of intercultural understanding. Take, for example, an Italian scholar researching the lives of the people in South America. Should the Italian scholar only have access to research materials in Italian libraries? They will get resources in Italian libraries, but for the most part, the materials are only available elsewhere, for example in peru, Bolivia, Ecuador.like wise a person studying in the U.S., studyingying an Italians in fehr would find material in the U.S. libraries and would certainly need to consult other materials by and about gramsky held souly in Italian libraries.
A recent survey by the copyright committee of IFLA, international Federation of Library Associations, showed that libraries receive requests for access to specialized items in their collections from a wide variety of countries. For example, libraries in Senegal get requests from Morocco, France and I think others, Colombia libraries get requests for materials from Mexico, U.S.A., peru, France, Spain, Brazil, Argentina, cost rica, air guy and Venezuela. In many countries, however, copyright stops at the border, they do not permit libraries to legally provide copies of documents to overseas libraries at the request of an end user.
I will provide an example of a crossborder use, a recent example. A Ph.D student in Estonia was undertaking comparative research in five countries in narratives that’s a critical analysis of authentic source material used in the writing of history. The student needed to consult Articles and book chapters from around the 1920s that are not available in Estonia, the University library certainly electronic requests to Iceland and Norway that had the materials in their collections, but due to copyright and licensing restrictions the requests were refused by the libraries. How do we explain to today’s generation that they must get on an airplane to consult for bonafide research purposes a chapter of a book that was published 90 years ago? Or the copyright exists to actually encourage research and creativity?
Finally, Mr. Chairman, we note that despite extensive schemes in nordic countries, licensing did not facilitate this straight forward request on this occasion. In addition, libraries in Denmark and Norway reported in the recent consultation on copyright that crossborder access is not permitted under their extended collective licensing schemes. In its comments, to the consultation, the national Library of Norway that has a extended collective licenses to provide online access to Norwegian literature said that the crossborder effect is faulted as the crossborder effect is not compatible with EU law.
So we need an international solution to an international problem. Thank you.
eIFL was followed by Barbara Stratton of CILIP, the chartered institution of library professionals:
[…]As the main UK professional association for some 14,000 librarians, information and knowledge managers, CILIP is convenor of the Libraries and Archives Copyright Alliance, an umbrella advocacy group for the UK’s major library, information and archive associations and institutions.
Most UK universities have overseas campuses or Partnerships with foreign universities and colleges, whereby students earn UK degrees taught overseas without leaving their home country. This generates significant demand for cross-border information transfer and access to digital resources held by UK university libraries. The different licensing contracts for the UK library’s commercially purchased online information resources mostly restrict access by Partnership staff and students, including access via the library’s secure Virtual Learning Environment.
Many of these licensing contracts also override copyright exceptions, for example by preventing the library from furnishing electronic copies of documents across borders to Partnership staff and students in response to ad hoc requests that would have been permitted under the UK’s non-commercial research or private study exception. Partnership staff and students are significantly disadvantaged: they need the same access to the same digital materials as their UK counterparts for teaching and learning on the same courses, but serving them generally requires express permissions, extra licence provisions, and additional fees costing a typical 30% extra on top of a library’s e-journals and database licence spend. The rapidly increasing use of academic e-books in place of traditional printed academic textbooks will simply exacerbate this situation.
This was followed by the Karisma Foundation represented by Amalia Toledo Hernandez:
Karisma Fundacion (Speaker) thank you very much, Mr. Chairman. As this is the first time that our foundation has taken the floor, we would like to thank you for inviting us and congratulate you on your election as Chair of this committee. As an organization of Civil Society in Colombia who works on rights and technology the foundation supports and promotes policies that help with the development of copyright from perspective of users. With regard to the topic we’re looking at the moment I would like to emphasize the importance of this guarantee to enjoy the rights to culture and the Committee of economic Cultural and social rights at the United Nations said that the right to access and enjoy Cultural rights is a human right that’s more important than copyright. I close the quote.
In the exercise of enjoying Cultural life, the libraries and archives play a major role. In the past, we have the source to create a better future, it enables us to enjoy Cultural heritage of our nations and gives us an education and far more than that, the ability to acquire knowledge, the uses in Colombia often find themselves in legal problems that restrict their access to their own Cultural heritage which is done in other areas of the world. For example I would like to share with you is regarded to a public library, to ensure that Colombia has access to a whole series of older visual works that were produced by researchers, farm researchers to focus their studies on Colombia, they’re protected by copyright and they’re part of the archives and collections in the United States and French libraries. These works are of huge interest to Colombia but we can’t access them by — users can’t access them unless they go to the libraries and this involves high-costs, authorization from the author which is long and involved and a complex process. This situation prevents the development of new content, the promotion of knowledge and also generates problems for access to culture, our own culture which is unjustified, this is a reason why we think this guarantee is a necessary one.
Thank you.
Tim Padfield representing the International Council On Archives followed by the Australian’s made the case again and again:
LIBER represents 410 research libraries (university, research centre, and national libraries) from over 40 countries across Europe and beyond. Our mission is to create an information infrastructure to enable research in our institutions to be world class. Research shows that much of the best research in Europe takes place as a result of international, cross-border collaborations. Our information infrastructure must be globally oriented, and underpinned by a legal framework that supports seamless access to information and enables its exploitation for innovation.The collaborative nature of research and the value of its results are increasing exponentially. This potential has been recognised in the G8 Open Data Charter of 2013. The Charter also recognises that international IP legislation must be observed.
The Research Data Alliance, which was a brainchild of the G8, aims to facilitate international and interdisciplinary collaboration and recognises the importance of legal interoperability. The scope of intellectual property protection of information within them can be confusing, even to the legal community.
The cross border nature of many of the activities of libraries are many. To name but a few: interlibrary loan, licensing, the use of orphan works and out of commerce works, document supply, and as outlined yesterday by the German library association also the purchasing of analogue information across borders. The United States national library, the library of congress even has overseas field offices in cairo, islamabad, jakarta, nairobi, new delhi and rio de janeiro for this purpose.
As this illustrates preservation, collection development, and sharing by large research libraries is by definition international and cross border.
We also see the huge growth in international research outputs. According to bibliometric data over 40 per cent of research outputs from France and germany are from international research collaborations. The UK between 1990 and 2005 saw collaborations with researchers in India, Australia, Canada and germany grow from 50 percent with germany, up to 65 percent in the case of India.
Why then given all this cross border activity are library limitations and not cross border in their effect? Education, culture, and this huge increase in international research and education does not take place in jurisdictional silos.
In the context of a cross border research project, it is only common sense that a medical researcher shares a new and pertinent research finding packaged in the form of a research article with his or her international colleagues working on the same project. National silos of limitations and exceptions do not clearly allow such activity. It could be argued perhaps within Europe that levy based private copying exceptions may allow this article to travel from Berlin to Vienna. But how does it work when this article travels to Canada where no such levies exist. Did the German legislature foresee this use in Canada, is it incorporated in the German levy calculations? How do German limitations and exceptions interplay with Canadian fair dealing exceptions? Are there obligations that Candian laws place on the German researcher when making the copy?
This example I think aptly illustrates why nation based silos of limitations and exceptions leave libraries in an impossible legal position in the context of the cross border learning and research environment we live in.
As we see starting to happen in the EU for certain limitations and exceptions ,LIBER believes we need certain, specific, well-defined exceptions that facilitate the activities of libraries to be cross border in effect.
Not doing so does not reflect the norms of our respective member states massive investment in libraries, research and education itself. Complexity does not mean that we should not solve this.
Australian Libraries representative explained why libraries and archives in Australia need a global solution just as copyright owners needed their international solution:
Australia libraries have a proud heritage playing in the distance by providing knowledge and culture to our farm population. It is an incredibly long way from Australia to this room in WIPO. Australia libraries don’t exist just in our small corner of the world, we have known for a long time that Australian libraries face challenges especially crossborder projects. In preparation for this SCCR we actually surveyed a cross-section of our libraries to get hard evidence of the extent of the problem. Despite the statement from my learned friend from the IPA in Australia our experience surveyed experience is that documents supply is in the going down but instead is maintaining or even growing. Indeed I would actually be quite curious to speak to him afterwards about where he got his figures from exactly. Of the 15 libraries we surveyed recently and the two consortia, every single library surveyed participated in crossborder projects. Every single library participated in interlibrary learning and document supply. In that small sample they did interlibrary line and document supply with 77 other countries. Unfortunately a majority of those libraries surveyed also reported requests from overseas institutions that had been refused for copyright reasons. Even though those requests were made in accordance with Australian Copyright Law and even who some requests, the material was not available from any other source. As legacy of our colonial heritage, many documents relating to Australia are government, heritage reside overseas especially in the archives of the United Kingdom that my learned friend just spoke about.
To this day, even our national library has been unable to digitalize or get access to digital copies of the microfilm of some of those official documents. Documents relating to my country held overseas.
In the last two days I have been here, I have heard a lot of states question why we would need a treaty for libraries and archives as there is nothing to stop nations from implementing exceptions at the national level, same thing could be said for any Copyright Treaty at WIPO. There is nothing to stop any nation protecting copyright, it was nothing preBerne Convention that stopped any nation from setting the term of copyright for 50 years after death. WIPO fantastically recognized the practical issues facing Member States and the importance of international norms. Similarly then, the importance of protection for libraries and archives and the importance of international norms need to be recognized. Our experience in Australia, a developed country, with specific library and archive exceptions is that today libraries face real problems in delivering their mandated services. We look to you to ensure that access to knowledge and dissemination of culture are protected and ask for your support in the treaty for libraries and archives.
However, the International Publishers Association (IPA) representative is still apparently confused and explained how licensing and philanthropy could solve all the problems of libraries and archives:
IPA:
We have the traditional issue of crossborder document delivery, we have heard about multicountry universities with campuses in American countries, we have heard about distance learning, virtual learning environments, remote access to libraries from various researcher, to students in different countries, from alumni, we have heard about the problems of accessing Cultural heritage or of distributing unpublished material which is only uniquely available in one area. All of these different issues is an issue in itself. Each of these issues would require a Marrakesh Treaty type negotiation to actually understand the concerns and to actually understand the different problems. However, these issues are more complicated because unlike the Marrakesh issues, we already have solutions. We already have a dynamic environment and we are putting our fingers into a running machine. There are commercial solutions and the licensing solutions that publishers are providing dramatically improving access which is why document delivery is less and less frequent simply because there is more access. There is enormous amounts of philanthropic interests to provide the research material in a developing country and this is an instrumental organization in providing and promoting that access and in getting the support from publishers for the initiatives. There is other business models which created services around delivering content, in particular to developing countries as prices and following business models which make the access affordable. There are collective licensing solutions that we have heard from ifro. There is a lot going on in each of these areas and I would, again advise through to committee extreme caution in trying to regulate issues which are developing dramatically and are being resolved in many ways in many different ways following existing legal frameworks or new business solutions.