SCCR 27 Difficult Discussion re Orphan Works & Author Right to Withdraw Work from Circulation

ORPHAN WORKS, RETRACTED AND WITHDRAWN WORKS, AND WORKS OUT OF COMMERCE
May 1, 2014 SCCR TOPIC 7

The discussion regarding orphan works included the rather difficult and political topic of moral rights and the right to withdraw a work from circulation. Can a library reproduce and make available a work that the author wants withdrawn from the public?

For example the Africa group had proposed:

Right to Access Retracted and Withdrawn Works
1. It shall be permitted for libraries and archives to reproduce and make available, as appropriate, in any format for preservation, research or other legal use, any copyright work, or material protected by related rights, which has been retracted or withdrawn from public access, but which has previously been communicated to the public or made available to the public by the author or other rightholder.
2. Any Contracting Party may, in a notification deposited with the Director General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all.

and here is the clean and elegant language proposed by India:

Libraries and archives shall have the right to reproduce, preserve and make available in any format or retracted any withdrawn works from public access or orphaned work.

The delegates often referenced Article 6bis in BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (Paris Text 1971) Article 6bis which deals with the moral rights.

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

Here are some of the most interesting (or disturbing?) interventions

Ibero Latin American Federation of Performers FILAE:

regarding moral rights to withdraw a work. […] In the language, as I have it in English, the question of retracted and withdrawn works. As you know, this is based on a moral right granted to copyright holders and other persons, and the right to withdraw a work can be based on three principal reasons, based on 6Bis of Bern, the copyright holder, the rightholder, has the right to withdraw a work on the basis of a change in religious conviction, change in political politicals, and third, very general term, change for ethical changes, which covers any issues which may concern matters of human rights. So since this is a moral right, we do not understand how a library, when the rightholder has chosen to withdraw a work, how a library can continue to make that work available. The language of the proposal says here for research or legal uses, this has rather worried us because if you look at 6B of Berne, the majority of the most progressive legislation in the copyright area, this moral right, is based on change in convictions or personal convictions of the rightholder, and I believe this is something rather controversial which could affect the moral right of right holders.

A change in personal convictions of a rightholders? The International Publishers Association Representative gave another example:

IPA: […]

Yes, this previous intervention does give rise to further comments, as you suggest, and I’m delighted that we are putting some focus on not just the issue of ovrp works, not just the issue of out-of-commerce works, but also on this third issue, which is about withdrawal, retraction, and removal of works from the record. These are three very, very different issues with three very different sets of rights and balances which need to be struck in the different environments. I would like to — because other people have already spoken about orphan works and about out-of-commerce works and because we’ve seen the kind of solutions which are gradually developing in this session over lunchtime, I’d like to briefly focus on withdrawal and removal and retraction of works.
In this area, the international publishers association and the International Federation of Library Associations created a joint position paper and a joint statement in 2006. And because we both share the same value of preserving the published record, we were — it took us only a few years to come to a consensual statement. The reason why that was also possible is because we were able to blend out a number of important issues which Member States will not be able to blend out.
For example, just this week, I received a copy of a book published in India about gas prices in India, which includes a lot of investigative journalism, and there is now — there are major industrialists who have come down very hard against the author, against the distributor, against the publisher, and insist that this book be removed, that it no longer be distributed or published because it contains allegedly defamatory material. Now, if a judge decides that this material is, in fact, defamatory, if a judge decides that a book is plagiarism, if a judge decides that, in fact, it contains false statements or it is illegal for one reason or the other, what does that mean for the library record? How will libraries deal with these kind of books where a national law has decided that they can no longer be made available to the public? These are questions which are complex, and they deal with many different sets of values which different countries will have different views on, so I look forward to the debate on this, but I’m quite skeptical that on any substance we can actually achieve the kind of consensus here that IFLA and IPA were able to achieve on a limited set of circumstances in 2006.

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INDIA: as my friend, distinguished delegate from IPA said, discussion is turning very interestingly.

Somebody raised the moral rights issues. Now, Berne Convention recognizes two basic moral rights, in Article 6 bis, right to paternity, right to integrity. It doesn’t include other moral rights, like right of withdrawal.

Many national laws also don’t include, but there are countries which have gone beyond the Berne Convention to include right to withdrawal. If you study the model rights included in the copyright laws available in the copyright legs of WIPO, 125 countries, I don’t think more than 10 companies have included the right to with trawl in their national copyright laws. — to withdrawal in their national copyright laws.
This can be dealt as pour the national legislation, blah, blah, normally the language we use here.

And then coming to the issues raised that is recently popular book about gas wars, which my friend mentioned, written by Pronunja Gupta the author’s name is. The gas wars he was referring to. o if publisher thinks that the accusation is defamatory because he incriminated maybe government officials how the gas prices are decided here, or any other book which is considered mras if he muss, just like Satanic verses was banned by government of India, obviously, these kind of banned books cannot be treated as withdrawn books and made available to the library. It is against their national law which decided to ban that book or withdraw that book.

But the countries, just like in India, which have no such law of right to withdrawal, so it is for them to define whether it should be available, we can debate whether that can be a law or not.

[…]

Russian Federation has the floor and warns the committeeon the effect of moral rights and the quality of information that is disseminated when
moral rights are not respected.

RUSSIAN FEDERATION: […]

I’ve listened very carefully to the statements which have been made by our Non-Governmental Organizations, and I’d like to take the opportunity to share a couple of points with you myself on the issues we’ve been discussing.

First of all, however, I would like to give you an example from our own Russian legislation and our civil code. Part 4 thereof covers that works, the author of which is unknown, are not covered by a copyright. They are not given protection. In other words, they are a common social good, and libraries and archives may use such works freely. There is absolutely no impediment in their way to doing so.
In some countries, however, we seem to have an understanding of the publisher when a work, the author of which is unknown, is found, then the work is published, and it becomes something that the publisher has the right to use and dispose of. Then I think we should be talking about protection being provided by national legislation.

I would, however, be a little bit cautious because I have very, very considerable concerns about this issue we’ve been discussing related to the retraction or withdrawing of works. I think here the problems that we may come up against would be a lot more complicated than it appears to seem to some people. After all, what are we talking about when we talk about the right to retract or withtraw? We are talking about the moral right of the author, and we are also talking about the exclusive right of the author. If the author decides to retract or withdraw his work, that’s one thing. But if we say no, it can and should be published and distributed. We are […] trampling all over that right and taking it away from him or her. In other words, we are denying the author one of his or her basic rights. I think there’s a very, very considerable danger that in doing so, we may be even encouraging the distribution or circulation of untrue or inaccurate information. If the information concerned is inaccurate in some way or is offensive in some way and the author, therefore, retracted and/or withdrew it in the work, we may be actually contributing to the further dissemination of it. That’s why I think we need to look at this decision very, very carefully, especially if we are going to consider working out norms of international law to deal with these issues.
That is the main concern which I have heard and which has come to my mind while I’ve been listening to what my colleagues have been saying on this point. Thank you.

EUROPEAN UNION:

[…]I want to make a clarification in reaction to an intervention by an NGO before the lunch break.
The context of harmonization in the EU is considerably different from the international context. Harmonization of copyright legislation in the EU should be seen within a regional project of creating an internal market without borders. The EU is a system of regional integration which requires a level of harmonization that is not necessary or even possible at international leve

l. […]

IRAN: […]

I would like to give some information about the situation of limitation for libraries and archives according to Iranian copyright law. According to Article 8 of Iranian Copyright Law, Copyright Act of 1970, public libraries, document centers, scientific institutions, and educational establishments which are noncommercial may reproduce protected works by photographic and similar — or similar process in the number necessary for the purposes of the activities according to a directorate issued by the Board of Ministers.
Actually, the drafting of this decree has been delayed until recently, and recently the Ministry of Culture and Islamic Guidance has drafted this decree but has not yet approved, recently provided some articles of this draft related to orphan works. According to this draft, actually, in the case of using or reproducing orphan works, the moral rights of the author should be protected and should be obeyed, and if the library decides to reproduce an orphan work, it should inform and give permission from the Ministry of Culture and Islamic Guidance.

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