SCCR 32 DAY 4 Groups on Libraries and Archives Issues

Day 4. May 12, 2016

After the Chair Summary of the previous discussions on libraries and archives limitations and exceptions we heard the goup statements. In brief, Group B (the rich countries) stated that the discussions should continue to get a better understanding of the issues but there is no consensus regarding any normative work.Then the Africa group was clear: there is a need for an international instrument on L&E for libraries and archives. India on behalf of the Asia -Pacific region made a beautiful intervention regarding how essential L&E for the public welfare of developing and least developed countries. The group also proposed the nomination of a friend of the chair that would assist in the writing of a text. Latvia for CEBS following Group B and the EU explained that best practices and national solutions are enough. Bahamas for GRULAC want an open discussion that do not prejudge the nature of the outcomes. The EU was quite blunt and stated “we cannot support work towards legally binding instrument”.

The group Statements were followed by individual member states. Particularly interesting were the statements by South Africa, Egypt, Uruguay, Nigeria, Senegal, Chile and Brazil that will be posted shortly.

>> CHAIR: Good morning. Good morning to the morning session. I would like to open Agenda Item No. 6 related to exceptions and limitations for libraries and archives. As you were aware, yesterday we heard an interesting presentation of the report or study made by professor Simm, but we said in advance that we were going to continue discussion following the agenda, and that’s what we are
planning to do.

In consequence, I open the floor for general statements regarding this important Agenda Item. The floor is open.

I am aware that you have finished your coordinations within your regional groups, and that’s the reason probably some delegations are still coming. Let me use this initial time to remind you that we have undertaken a structured discussion regarding a list of topics and that we did so two sessions ago with the topic of preservation. And then last session of this Committee, we undertook the discussion of the right of production and safeguarding copies, topics of legal deposit principle and controls and the topic of library lending.

This time we will continue our structured discussion. We expect three topics, parallel importations, cross-border uses and orphan works. Including in this one, retracked and withdrawn works and works out of commerce.

As an intent to make a summary of the previous topics that have been discussed, as to the topic of preservation, it was considered that in order to ensure that libraries and archives can carry out their public service responsibility for the preservation, including in digital form, of the cumulative knowledge and heritage of nations, limitations and exceptions for the making of copies of works may be allowed so as to preserve and replace work under certain circumstances. Concerns were expressed to be taken into account when we undertake such a task, and those concerns are digital preservation, conversion or format shifting and unauthorized uses of preservation copies.
The suggested approach to tackle those concerns have been discussed in the matter of discussion, and some of the opinions regarding how to tackle those concerns initially suggested the adaptation — either the adaptation or creation of a new exception for digital preservation and conversion for the benefit of libraries and archives. Those exceptions should cover both the reproduction of works, printed works and in digital format, as well as born digital works. And it was considered as these exceptions should meet the three-step test.

Other conditions which were mentioned regarding this topic was the not-for-profit condition that reproduction concern to that is not made for direct economic or commercial advantage. The limitation to specific kind of works, if published or unpublished. Some arguments were made regarding the inclusion of unpublished works.
Related to the source, there was one possible condition that reproduction should be made from legally or lawfully acquired source.
There were some mentions to the number if a single preservation copy or if there could be a chance to have multiple copies.

Regarding the requirement of these works should be part of the collection, that’s something that has to be mentioned, as well.

Regarding the format, if the preservation could include or could be made in any format was also a condition mentioned.

Regarding the conditions of the current work, for example, if the work was damaged, lost, unusable, in full or in part or out of date.

And, finally, the commercial availability was mentioned, as well as a topic to discuss related to — as a condition to discuss related to this topic.

Then we undertook the right of reproduction and safeguarding copies as the sec second topic related. And we were around as to the right of reproduction and safeguarding copies initially there was a concern about overLAPping topics on the list. Some discussions were made nodfy the title of the topic. However, it was said that such reproduction was considered important; and in that regard,
limitations and exceptions for libraries and archives play an important role for reproduction for certain purposes, including research and some concerns to be taken in account when we undertake an effort of making exceptions and limitations are to protecting the public service role of libraries to provide copies for patrons as well as works for — and to take the measures in order to avoid
unauthorized reproduction.

At this point, it was suggested some sort of flexibility taken into consideration, particular legal, turl and economic environments while maintaining the right on the larger public interest. Then regarding the third topic. Principle concerns it was delegations expressed in the concern related to this topic different views on the need to address this topic within the framework of
limitations and exceptions. However, it was discussed whether we could keep this topic in the list because it’s even — even if it’s an important action if it is still related as a topic directly included in the matter of exceptions and limitations.

That was going to be further discussed. However, as a result of the discussion, there was the need to consider its importance and then to decide if we are going to keep this topic on the list.

Regarding the topic No. 4, library lending, the delegations recognized the importance of addressing this issue through exceptions and limitations and considering the — of rights and licensing schemes. Different views were expressed regarding the digital distribution in the scope of library lending.

Some suggestions were around the application of the principle of exertion and some measures to prevent unauthorised use of copies.

There was discussion about the advantages and limits of the licensing schemes to tackle the needs related to this topic.

And again digital distribution was challenging in order to find a solution related to this important function of library lending. We had to be reminded that since we have different levels of lending considering the territory and considering the physical — both physical and digital environment, there was a need to clarify the boundaries of that previous topic in order not to have an
overLAPping with other topics. And I think that we can make an effort when we keep on discussing the following topics.

GROUP B

>>Greece: Thank you, Mr. Chair. I have the honour to take the floor on behalf of Group B. At the outset, Group B can’t agree more with
the important role of libraries and archives play in cultural and social development in particular. As the studies presented during the previous session have described, many countries have already established their own exceptions and limitations for libraries and archives which works well respective legal systems within the current international framework. It means the work of this committee should be shaped in a manner reflecting this reality and complimenting the well-functioning current situation.

Regards the working methods we would like to discuss the charts. And we’d like to thank you, Mr. Chair, for your continued efforts to find a common ground upon which we can stand.

We welcome the clarification reached during the last session that the aim of our discussion is to reach a better understanding of the topics while respecting differing views regarding the possible outcome. As no consensus exists in this committee for normative work, Group B believes the study by professor Kenneth cruise which we consider considerable achievement can help us and inform our discussions as to a way forward. The discussion at objectives and principles level as proposed by U.S. could compliment such work.

Group B will continue to engage in the discussions, some limitations and exceptions for libraries and archives in a constructive and faithful manner. Thank you, Mr. Chair.

Nigeria for the Africa Group

>> NIGERIA: Thank you, Mr. Chairman and good morning to everyone. Nigeria has the honour to deliver this statement on behalf of the African Group.

We take the opportunity to again reiterate our — in the SCCR that an international instrument on exceptions and limitations for libraries and archives is an important — to the ever expanding gap for public and human societal development. Needles to elaborate further, potential beneficiaries in a vast number of Least Developed Countries are excluded from this fundamental space due to
Copyright frameworks. The digital environment has shattered any traditional concept of libraries and archives, including the medium of information and activities of its users. There is therefore need for an international standard response to this dynamic environment. Indeed, the records of the SCCR is replete with Member State views. Those are representatives of libraries and archives, and
other stakeholders of the particular obstacles faced by libraries and archives in fulfilling their public interest, knowledge, teaching functions as a result of Intellectual Property restrictions in the international environment, even in cases as simple as rare, unique and valuable works. Our opening statement this work observed that significant changes in access to knowledge occurred at the
national, regional and global levels since commencement of exceptions and limitation this is the SCCR. To this end, we hope that our discussions this week will see us take a cue from some of the progressive activities that have been undertaken by regional communities to facilitate learning and access to knowledge for their citizens.

Mr. Chairman, the Africa Group would like to reiterate appreciation for the Chair’s chart as a tool for facilitating the committee’s discussion. We also welcome the sharing of national experiences by Member States as a useful information resource that aims to advance the committee’s work towards the expressed mandate.

Finally we reframe our support for the Chair’s proposal to hold regional meetings for exceptions and limitations to facilitate the SCC R on this topic. Theur, Mr. Chair.

India for the Asia Pacific Group

>> INDIA: Thank you, Mr. Chairman. And speaking on behalf of the Asia Pacific group, our group would like to reiterate our group position on the issue of limitations and exceptions for libraries and archives.

Limitations and exceptions are essential requisites for all non-setting exercises and understandings in national and international fora. These provisions are are vital for achieving the desired equilibrium between right holders and public Welfare in scientific and social progress, especially in developing and Least Developed Countries.

The balance of interest as reflected in Article 7 of TRIPS Agreement which stresses, and I quote, the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information. Libraries and archives are two vital institutions of society, mostly operating on a non-commercial basis. In most developing and Least Developed Countries, they are often the predominant, if not the only, source of material for students and academics. In fact, people in all countries irrespective of their level of development, have benefited from exceptions and limitations for libraries and archives. An international agreement on exceptions and limitations for libraries and archives that addresses specific cross-border barriers is critical to ensuring equal access to information and supporting research, education and development.

Such an agreement would allow these benefits to be extra — for the good of all instead of restricting them to individual countries. This agreement would require uniformity and balance at a national level, including the harmonization of domestic laws and policies which would also contribute to safeguarding and promoting the legitimate interest of all stakeholders. Members of the group also wish to reiterate their previous appointing of a facilitator or a friend of Chair, like other WIPO committees, to shape up the text to a full working text so that we can actually make some visible progress. Some of the members of my group might have to make a specific point on the exceptions of limitations and exceptions. For this I would request you to kindly give them opportunity to make their national position more clear on this important issue. With these words, I thank you once again.

Latvia for CEBS

>> LATVIA: Thank you, Mr. Chairman. I’m speaking on behalf of the central European and the Baltic states group.

Mr. Chairman, the CEBS Group highly values the role of libraries and archives in fulfilling their public interest mission by preserving and disseminating cultural heritage. The CEBS Group is of the opinion that the existing international legal framework does not prevent the NBC states to have an accessory provisions on exceptions and limitations in their national legislations. During the last sessions of SCCR in 2015, we have seen two studies covering these topics: The cruise study on the libraries and archives and the study presented during the last session on limitations and exceptions by Elizabeth Loger and — both studies have shown the existing legislations at national level. We believe that these studies could form a good basis for the discussions in this committee.

Moreover, the exchange of the best practices could help us to guide the Member States wishing to introduce limitations and exceptions deriving from international treaties in their national legislations. The CEBS Group is ready to be a constructive participant in these discussions. Thank you, Mr. Chairman.

Bahamas for GRULAC

>> BAHAMAS: Thank you, Mr. Chair. The topic of exceptions of libraries and archives is of great interest to GRULAC. And as we reiterated earlier, GRULAC looks forward to addressing these issues through balanced discussions under your leadership that address the interests and priorities of all Member States. Therefore, GRULAC supports an open and frank discussion on the limitations and exceptions for library and archives that does not prejudge the nature of the outcomes of the discussions in order to reach effective solutions with regard to problems affecting libraries and archives around the world.

GRULAC is also very interested in the discussion on the proposal submitted by Brazil, Ecuador, Uruguay, India and the Africa Group regarding the treatment of this topic.

In order to promote the work on this topic, our group supports the debate on the table proposed by the Chair. GRULAC also supports the holding of regional meeting seminars on this topic to advance the work in this area.

Mr. Chairman, GRULAC is committed to discussing these matters in a very constructive and positive manner and looks forward to the discussions. Thank you very much, Mr. Chair.

>>

EU Statement

>> EU: Thank you, Chairman. The EU and its Member States would like to reemphasize that we strongly believe in the function of libraries and archives for cultural, social and economic progress. These institutions play an essential role in the dissemination of knowledge, information and culture and have to preserve our history. We therefore believe that there is merit in discussing our
balanced Copyright framework can enable these institutions to fulfill their public interest mission, and we are willing to continue to engage constructively in these discussions.

The EU and its Member States consider that the SCCR should focus on how exceptions and limitations can function efficiently within the framework of existing international treaties. As we have stated in the past sessions of this committee, our favored approach is one where WIPO Member States take responsibility for their own legal frameworks supported by an inclusive exchange of experiences
and best practices and, when necessary, with the assistance of WIPO.

In this respect, we cannot support work towards legally binding instruments. We believe that a meaningful way forward could be to focus on a more thorough and systematic understanding of the problems faced by libraries and archives against their needs, giving full consideration to the solutions provided by innovation and relevant markets followed by an investigation of possible solutions
available under the current international framework.

A possible outcome of this discussion could be guidance regarding the national implementation of the international treaties in this regard. We think that on this Agenda Item, the committee should work towards this general outcome and undertake to find a consensus way to achieve it. Thank you very much.