These are the notes from my statement on behalf of KEI on July 3, 2014, during the WIPO SCCR 28 discussions of principles and objectives for library copyright exceptions. The WIPO discussions on July 3 focused on the four topics in the US paper, SCCR/26/8.
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I will start with comments on the statements made by the Federation of Independent Journalists, which were critical of library copyright exceptions, and authors who don’t make a living directly from royalties.
All authors have used libraries. Some authors still use libraries.
Authors who are not specifically paid for the things that they write, like many academic authors, or people with a point of view, described as people “with an ax to grind” by the FIJ, should also not be devalued by the SSCR. What all author do contributes to social progress, and it is best that everyone informed by the best evidence.
When you look at people that win Nobel prizes, and those that contribute to the most innovative sectors in Europe, in the United States, Belgium, Canada, Japan and every country, one of the reasons that they can do what they do, they make the discoveries that they have made, and contribute to the development of new businesses, is because governments have invested in an infrastructure supporting access to information, including scientific information.
Libraries are facing a crisis, because the pricing of journals and academic publications is going through the roof.
It is not as if libraries were free loaders, they spent about $25 billion in content purchases in 2011 and they represent 70% of the global market for academic publications.
There is a problem related to collective action. Each publisher has a micro incentive to get as much money as they can from libraries. Collectively, the effects of restrictive licenses and contracts, digital locks and high prices is that people that fund libraries are beginning to doubt whether it makes sense to do so.
Governments and other library funding entities ask, is there good value for money? As prices increase and contracts and locks restrict access, the social benefit/cost ratio suffers. This leads to reductions the amount of funding available for libraries. In the end of the day, the publishers will be hurt the most of reduced funding of libraries. To the extent that authors are paid anything by publishers, reductions on library funding will lead to reductions in their incomes. And, for authors who rely upon libraries to write, to create, to discover new information and ideas, and to create research services that people will pay for, the threats to the libraries are threats to them as well.
Authors have much more at stake than the fact that exceptions reduce exclusive rights. Exceptions are used to take the hard edges off what is increasingly a brutal market for works, and to make the system work better, for everyone.
Now if you look at the U.S. document, it calls for the adoption of national exceptions. We know, from several WIPO studies, that in many countries there are inadequate (or no) copyright exceptions for libraries. So, if the objective is for countries to adopt exceptions, what is the road-map to make things happen? What will be the role of WIPO or this committee to solve the problems?
If the SCCR agrees that the objective is for countries to have library exceptions, and you also establish that they don’t have those exceptions, at some point this committee needs to propose a set of actions. If you identify something that needs to be done, and if it is not being done, what is the path to success? You can’t just say governments should do something, and then recognize that it is not being done, and call it a day.
The distinguished Delegates from the United States and the European Union talked about the three-step test.
The three-step test was not initially intended to limit library exceptions. It was created in 1967, in the Berne Convention, in a limited way, and not to regulate all exceptions. It did not regulate the “particular” exceptions in the Berne Convention on a wide range of topics, including education, it did not regulate the first sale doctrine, the control of anticompetitive practices, exceptions related to limitations on remedies for infringements, or the Appendix to the Berne for developing countries. The 3-step test does not apply to all related rights.
Over time, there has been an effort by publishers to replicate and modify the 3-step test, and to promote the 3-step test as a broad global norm to restrict all copyright exceptions. One of my colleagues at KEI has referred to the 3-step test as poison ivy that’s invading all copyright discussions today.
Some act as if there are versions of the three-step test that can magically stop all governments for all time from choosing to place limits on copyright, creating a perpetual democracy-free-zone for publishers. Publisher lobbies see the 3-step test as a permanent injunction against legislative efforts to expand exceptions and user rights.
No one really knows how the three step test should be applied in practice, and if applied in the most literal and restrictive ways, it would have a devastating impact on the policy space for copyright reform.
The biggest threat to the public right now is the effort by trade negotiators from the United States and Europe to write new versions of the three-step test into trade agreements, and to give private investors the rights to fine governments when national exceptions violate the 3-step test. They want to allow publishers to litigate the 3-step test, not in national courts, but in Investor State Dispute Settlement (ISDS) arbitration.
The distinguished delegates from the United States and the European Union were suggesting, that it is unambiguously a good thing to elevate the 3-step test as a global norm, but it is actually a threat to nearly everything you need to do in this area.
On the topic of exceptions in the digital environment, delegates should look at the language in Article 7 of the Marrakech treaty for the blind. This is a text that has been signed by the European Union and the United States, indeed, so far, some 78 countries plus the European Union have agreed to this text. It says that when providing legal protection against circumvention of technological measures like digital locks, this should not prevent beneficiary persons from enjoying copyright limitations and exceptions. Article 7 of the Marrakesh treaty should be the starting point for any kind of discussion you have, in the principles, on digital locks, and it would be a better formulation than what the United States proposed in this document.
Finally, on the topic of “other general principles,” I think that it is important that anti-competitive practices, including excessive prices, are discussed, as well as the exhaustion of rights. To me it is odd to talk about exceptions for libraries without recognizing the importance of the exhaustion of rights. Certainly the first sale doctrine is important in the United States in terms of what libraries do.
Thank you for the opportunity to make these comments.
See also:
Why do US and EU trade negotiators hate the Berne Copyright Limitations and Exceptions?, February 20, 2013.
Berne Convention revisions, and the evolution of its limitations and exceptions to copyright, https://www.keionline.org/BerneConventionExceptions, August 11, 2012