SCCR 29 Negotiations on Limitations and Exceptions for Libraries and Archives (US, Greece, Kenya, Brazil)

This morning on the last day of the WIPO SCCR 29, we are listening to the opening statements regarding the work on limitations and exceptions for libraries and archives. The positive buzz of yesterday’s animated Q & A with Dr. Crews is replaced by the re-stating of well-known positions on the topic.

The EU does not want to continue the work on limitations and exceptions for libraries and archives but wants to move forward with the terrible and useless broadcasting and cablecasting treaty (which looks more and more like the database treaty for those who remember that silly treaty proposal). See below the statement by Greece.

The US wants discussion on its paper on principles and objectives (see below) and not a discussion of a binding instrument, treaty or other.

Some of the members of the African group, Asia Pacific and Grulac have provided us with a consolidate text (SCCR/29/4) perfectly described by Brazil, topic by topic below. The 11 topics (preservation, lending, contracts, liability etc…) have a lot in common with the US “Principles and Objectives” and the chair is trying to start a substantial discussion on each topic. He will provide us with a chart any minute now.

Opening statement of the USA:

[…]In our view, individual countries should have flexibility to taylor exceptions and limitations to address their own needs within the constraints of international obligations, taking into consideration their particular legal, cultural and economic environments. This flexibility is important to the United States, and we believe it is important to others as well. For this reason, we do not support binding norm setting at an international level, or further work by this committee or a facilitator on developing treaty text.

It is clear that some countries have different views, but there’s no question that for all of us, these discussions are timely and important. There is much that we can accomplish here to encourage and to promote the development of appropriate state of art exceptions and limitations for libraries and archives.

The United States continues to be convinced that the best way forward is to focus on high level principles and objectives and to identify those on which all Member States can agree. This may be consistent with Professor Crews’ idea of harmonizing the concepts or subject matter of exceptions and limitations rather than the language of the statutes themselves.

The US introduced a revised principles and objectives document for library exceptions, for SCCR/26/8, going forward we would like to engage in a substantive discussion within this committee to develop a set of principles and objectives in language we can all accept, in order to recognize the varied public service roles of libraries and archives, and to provide a framework for Member States to facilitate these institutions’ ability to perform those roles.

Once we have reached a shared understanding on such a set of principles an objectives, the US would propose to implement them through further work on developing and updating national laws. This could involve regional workshops, conferences, and sharing of experiences as well as studies and technical assistance.

The United States is confident that this approach would result in real progress, and improvements for library and archive services worldwide. We look forward to a meaningful discussion on principles and objectives as a valuable next step. Thank you.

Opening statement of Kenya:

>> KENYA: Thank you, Chair. And I did not take the floor, but maybe we need to make a few clarifications in regards to how we feel that we need to proceed and I think at the risk of repeating myself, I think Chair, it’s important for this committee to respect the mandate we have before us, and we made very clearly in our statement that the mandate is to discuss an issue and finally get a solution, and finally get a record through which that solution can be addressed.
So, Chair, I think — I want us to be very clear that some Member States feel we need a legally binding instrument. Others don’t feel that there’s a need for that. That does not prevent us from what seems very clear issues, which come from the discussion and the study undertaken by professor Kenneth Crews which is very clear that there are real issues and those issues need solutions.
So Chair, regardless of what finally will be the form and regardless of what Member States feel that solution should take, the real discussion has to take place. You have to find the solutions to those real issues. And Chair, under the analogy, it’s like now we have an exam and the exam is a choice. A is a treaty, B modern law C a recommendation, and three, other forms. A student goes to the classroom and says there’s a choice, which says treaty and they don’t like that choice. They say, can we change the exam question so there’s no more choice on treaty, or because other students are going to choose that choice.
So Chair, really, what we are saying is all of these things we are talking about here are within the money date of the SCCR. — they are in the mandate of SCCR and secondly within the mandate exceptions and limitations. There’s no choice here or there’s no reference outside the scope of this committee or outside the scope of the topic of exceptions and limitations. What we will finally choose to agree on as a committee is upon all of us. But the biggest and the most important step we have to take is to first of all address the issue in a manner which will clearly isolate the problems and the solutions, and from there we move forward.
Now, what I hear this day is that because some members prefer treaty, we are good to discussion, and that’s not an effective or a viable way of moving forward. So Chair I urge all of our colleagues and Member States to focus on the good spirit which has prevailed this week. The fruitful discussions which have taken place during this week, following the excellent presentation by Professor Kenneth Crews. And let’s be he very pragmatic and let’s see how these discussions lead us.
Otherwise then, I don’t want to repeat what I said in other forum. I don’t want to go along that path, but I think if we continue along the way things are moving, we would be forced to go that path and I don’t think it’s a very constructive way and we want to be very constructive. We are really trying to restrain ourselves so we can continue moving WIPO forward. Thank you,

Greece opening statement brings us back to the European position stated yesterday:

>> GREECE: Thank you Mr. Chair. We would like to express our sincere hope for the fruitful outcome. We would like to align ourselves with the statements by Japan on behalf of Group B and the European Union. We would like to share the view that the new sea of copyright requires a compass, particularly when it’s a collective clear effort and we’re also looking forward to see that this committee proceed under this agenda item on a shared understanding of where the compass leads us.
We have to bear in mind that no consensus exists in the area of exceptions and limitations and that the current international copyright framework offers the flexibilities for states to adopt their own legislation. Yet, the work on the broadcasters treaty has advanced well so far, and it’s perhaps time that we engage in further substantive discussions for its successful completion.


The US takes the floor to continue its presentations on the principles and objectives:

>> UNITED STATES OF AMERICA: Thank you for allowing to us review our objectives and principles document for libraries and archives. We do not want to repeat the introductory remarks we made in past sessions of the SCCR, but appreciate the opportunity to take the floor again to complete and refocus our documents in light of the discussion we already had and in light of Professor Crews’ excellent contribution to our understanding.
We have listened carefully to the comments of Distinguished Delegates from many Member States and continue to hear common objectives for our work on exceptions and limitations and a brief reference on the term, objectives what are we are trying to achieve and principles is what helps us get there.
While we have different legal systems and benefit from national flexibility. We believe that together we can develop some core objectives and principles to help facilitate the lex Septemberions of libraries and archives throughout the world.
As we know from Professor Crews’ study the majority of Member States have some legislation in place. To encourage Member States to adopt limitations and exceptions in their national laws consistent with their international obligations, including the three-step test. We won’t go into too much detail on the second objective, to enable libraries and archives to carry out their public service role in preserving works, other than to say that this is an area where we have heard enormous support, and is reflected in Professor Crews’ study, at least 100 Member States have developed exceptions for this purpose.
Support for research and human development is a core function of libraries and archives around the world. This objective reflects the role of libraries and archives in providing access to works that comprise the cumulative knowledge and heritage of the world’s nations and people. In order for libraries and archives to fulfill their role as a gateway of knowledge, they must be able to provide access to their materials in appropriate ways.
In this regard, updated and tailored exceptions and lippations establish a framework enabling libraries and archives to supply copies of certain materials to researchers and other users either directly or through intermediary libraries, including through the collaborative process known as interlibrary loan. This reflects the topic of reproduction rights and safeguarding copies.
We recognize the different Member States have different rules about legal deposit and are flexible on this objective, but we want to emphasize an important point that’s reflected in our document. Libraries archives serve the public by maintaining essential government information. Copyright restrictions on government materials should not limit the ability of libraries and archives to receive, preserve and disseminate government works.
We have heard a lot about the many challenges of preservation and access in the digital environment, which is why we included a fifth objective, that exceptions and limitations should enable libraries and archives to carry out their public service mission in the digital environment. Libraries and archives have a particularly critical role in the development of the 21st century knowledge ecosystem. Accordingly, exceptions and limitations should help to ensure that these institutions can continue to carry out their public service mission in the digital environment, including preserving and providing access to information developed in digital forms and appropriately using network technologies.
In the same vein, we acknowledge that libraries and archives possess rich collections that are important for the research and the study of increasingly sophisticated disciplines of all kinds and tailored ex Septemberions and limitations can be a powerful means of helping to build an existing knowledge. So we have objectives.
We have also reflected other principles that are very important to the provision of library and archival services. For example, we provide that Member States use both specific exceptions and general exceptions such as fair use and dealing to serve the public. We also suggest that in appropriate circumstances Member States should recognize limitations on the liability of certain types of monetary damages applicable to libraries and archives when they have acted in good faith when they believe that they have accounted in accordance with copyright law.

We recognize that rights holders have a critical role in sustaining access to copyrighted works in both developed and developing countries. We are rapidly changing technology requires flexibility solutions, Member States encourage collaborative and innovative solutions among all stakeholders.
We know that there are many different legal systems and approaches and that others have identified additional topics, while this may be many possible topics our document described those areas where there may be consensus and where we believe it would be fruitful to find agreement.
We appreciate Member States’ attention and consideration of the objectives and principles. As soon as the timing is appropriate in this committee’s schedule, we would like to hear specific views on which of these the Member States could accept and which they might want to change. Thank you.

>> CHAIR: Thank you very

Brazil took the floor to present SCCR/29/4

>> BRAZIL: Thank you, Mr. Chairman, and good morning, everyone. Before I speak on behalf of the proponents of documents SCCR/29/4, allow me to say a few words on behalf of the Brazilian delegation, in order to share with the membership some information regarding recent developments in Brazil related to the ratification of the Marrakesh Treaty, Mr. Chairman.
As you know, Mr. Chairman, Brazil’s commitment to the cause that led us to negotiate and successfully conclude the Marrakesh Treaty has been unrelenting, unfortunately we have not been able this year to go through the internal legal procedures needed to ratify the treaty in the expeditious manner we had expected and envisaged.
Only naturally, the electoral process has increasingly dominated the political scene in Brazil during 2014. It’s slowing the internal proceedings of several initiatives, including the Marrakesh Treaty. The good news is that the treaty has now been submitted for congressional scrutiny and approval. The government is confident that the ratification will be accelerated as Congress examined this most important instrument.
More importantly, I would like to highlight the fact that the Marrakesh Treaty has been submitted to the scrutiny of the Congress based upon the constitutional amendment 45, which allows for international treaties and conventions on human rights to be incorporated into Brazilian law as equivalents to constitutional amendments.
Besides under constitutional amendment 45, the legislative approval process can be undertaken in the more twist fashion than it is otherwise the case for constitutional amendments.
This is only the second time in history that the the constitutional amendment 45 has been used as a base to us submit a treaty to the Congress. In 2008, the Brazilian Congress examined the text of the U.N. Convention on the rights of persons with disabilities, established under amendment 45 and approved the convention as an equivalent to constitutional amendment under Brazilian law.
The decision to incorporate the Marrakesh Treaty into Brazilian law through the means of constitutional amendment 45 should thus be seen as a clear indication of the high importance that Brazilian government attached to that instrument and of our continued commitment to its twist implementation.

Mr. Chairman, I will now turn to document SCCR/29/4. Which is a consolidation of proposed text contained in document SCCR/26/3, and a document prepared jointly by the African Group, Brazil, India, and Uruguay.
Document SCCR/29/4 consolidates the proposed text by the African Group, Brazil, Uruguay and India. We have maintained the structure of the text, keeping the number of topics as well as the title of each topic as in the previous document.
Given that the text proposed had similar underlying goals and converged on many points, this new document presents us with the same general ideas and clearer fashion and with adjustments wherever we felt the need for improvement. In this sense, the new consolidated text provides clearer language, combining the previous proposals in a single document.
It is the proponent’s understanding that the document SCCR/29/4 might be reflective of the interests and the objectives of other delegations that have not taken part in the process of consolidatation undertaken by the proponents. The proponents, therefore, would like to take advantage of this occasion to indicate that document SCCR/29/4 is open for subscriptions by other interested delegations and that the proponents remain at their full disposal to further clarify specific elements and the general ideas that underlie the document.

The proponents would also like to make clear that they acknowledge the fact that several delegations have expressed that they do not share the views of the proponents, and that they would prefer to discuss the issue of exceptions and limitations in different terms and perhaps with different goals in mind.
Nevertheless, the proponents considered that document SCCR/29/4 will prove to be useful even for those that do not share our views since it also helped to pin down the matters of concern that are being raised from the perspective of the proponents, as well as possible ways to address them.
The documents should therefore also be seen as a contribution to the conceptual discussions on exceptions and limitations for libraries and archives to be undertaken in this committee.

On topic 1, preservation, the first and second paragraphs draw from the African Group’s proposal and Ecuador’s contribution, combining both text while making adjustments in the language. The first paragraph was taken from the African Group’s proposal. Paragraph one states that the basic limitation of the right of reproduction while the subsequent is works or materials that are preserved or replaced and for specific purposes such as education, research and preservation of cultural heritage or for other uses permitted by the document or uses in accordance with fair practice.
The final paragraph under this topic further states that this limitation is only for nonprofit uses and reiterated the three-step test.
On topic two, right of reproduction and safeguarding copies, the new text combines the previous proposals into two paragraphs, with some language adjustments. This topic ensures that libraries may supply copies of works to its users or to other libraries for specific purposes, education, private study, research or interlibrary document supply.
In accordance with fair practice, paragraph 2 also ensures that libraries and archives will benefit from other limitations provided in national legislation that would allow users to make a copy of a work.

On topic 3, the African Group’s text has On topic 3, the African Group’s text has been captured in general terms with minor improvements in order to make explicit that works in any format are included in the provision. The text gives wide discretion to countries as to deciding whether and how to implement legal deposit policies in accordance with India’s original proposal. Furthermore, it makes clear that the purpose of legal deposit rules is to guarantee or to make sure that preservation of culture while also ensuring that digital culture that is made available or communicated to the public should also be subject to legal deposit rules.
On topic four, library landing, the text combines the African Group’s proposal with the contribution by Brazil, Ecuador and Uruguay and keeps the spirit of the Indian proposal in the sense that libraries shall not need authorization to land works in their collections to users or to other libraries.
The provision states that lending may occur by my means, including digital transmission, provided that it is compatible with fair practice as determined by national law.
Paragraph two is designed to ensure that states that adopt in their legislation a public lending right may keep such rights.

On On topic four, library landing, the text combines the African Group’s proposal with the contribution by Brazil, Ecuador and Uruguay and keeps the spirit of the Indian proposal in the sense that libraries shall not need authorization to land works in their collections to users or to other libraries.
The provision states that lending may occur by my means, including digital transmission, provided that it is compatible with fair practice as determined by national law.
Paragraph two is designed to ensure that states that adopt in their legislation a public lending right may keep such rights.
On topic five, parallel, importation, the new text consolidates in simplified language, the previous proposals providing that libraries and archives shall be able to acquire and import legally published works whenever a state does not provide for international exhaustion of the distribution right after the first sale or other transfer of ownership of a work.
On topic 6, the general cross provision. It’s the language agreed to in material 5.1 of the Marrakesh VIP treaty, which also deals with cross border uses. The provision is of crucial importance to the document as it ensures that libraries and archives worldwide may lend, make available or distribute copies made under a limitation of exception — of exception to another library or archive in another state.
It aims to force the diffusion ever knowledge across borders while ensuring that the uses permitted contain only copies made under a limitation or exception or in accordance with national law.

On topic 7, orphan works, retracted and withdrawn works, and works out of commerce, the African Group’s proposal has been combined with Ecuador’s with some minor improvements into the text. Paragraph 1 deals with the issue of offered works. Defining such works as those for which the author or the rights holder cannot be identified or located after reasonable inquiry.
The second paragraph makes it optional for states to decide whether commercial uses of authored works by libraries would be subject to remuneration.
Paragraph 3 then provides a safeguard for authors and rights holders, ensuring that should they identify themselves to the library or the archive, they are, or they would be entitled to claim remuneration for future uses or to require termination of such uses.
Paragraph 4 Deals with the issue of withdrawn and retracked works allowing libraries to reproduce and make them available where appropriate for reservation, research or other legal use.
Finally, paragraph five provides great flexibility for each state in applying the provision of orphan works allowing reservations to such a provision.

Topic 8 an on liability for libraries and archives, the text improves upon the proposals of the African Group and Brazil, Ecuador and Uruguay, keeping in touch with the Indian proposal at the same time, in order to ensure that a library or archivist operate within his or her duties shall not be liable for copyright infringement if acting on good faith, in the belief and where there’s reasonable grounds for believing that a use is permitted by a limitation or exception or is in the public domain or is not restricted in other ways by copyright.
Paragraph 2 then assures that libraries and archives are Paragraph 2 then assures that libraries and archives are exempt from secondary liability for the actions of their users.

On topic nine, technological protection measures, instead of combining the proposed texts, we opted to draw from the language agreed to in Article 7 of the Marrakesh Treaty, providing a clearer text which affirms that the states should take steps for technological measures do not prevent libraries and archives from enjoying the limitations and exceptions provided for in the document.

On topic ten, contracts, the proposals of India, Ecuador and the African Group have been combined into a single text whose goal is to ensure that contractual provisions do not prohibit or restrict of exercise of the limitations and exceptions provided for in the document.
It is inspired by the concern that contracts, especially, regarding digital works may be used to limit or even to override exceptions and limitations provided for in national law or in international instruments.
This provision follows some recent changes in national laws, such as in the United Kingdom, which ensure that contracts cannot override some limitations and exceptions for libraries and archives.
Finally on topic 11, right to translate works, the African Group’s proposal was reformulated, incorporating a reference to works in any format, taken from India’s original proposal to state that those works that are lawfully acquired or accessed and that are not available in a certain language, may be translated by libraries and archives to such language for the purpose of teaching, scholarship, or research.
Mr. Chairman, the proponents of document SCCR/29/4, of course remain at the full disposal of delegations and other interested stakeholders to further clarify our views, ideas, and the text that we have tabled.
Thank you very much.