KEI has filed comments on the EC’s Green Paper on Copyright in the Knowledge Ecomony

KEI has filed comments on the EC’s Green Paper on Copyright in
the Knowledge Economy. Here are pdf and odt copies. The
html version follows below.


Comments of Knowledge Ecology International (KEI)

on the GREEN PAPER: Copyright in the Knowledge Economy, Brussels, COM(2008) 466/31

Submitted to the COMMISSION OF THE EUROPEAN COMMUNITIES

Request for Public Comments, via email:

November 24, 2008, final

Table of
Contents

Introduction


General issues

The Three Step
Test is Not Relevant in some areas

Part I of the
TRIPS

Part II, Section
8 of the TRIPS

Non-voluntary
uses under Part III of the TRIPS concerning remedies

The Limits of an
Exhaustive List of Limitations and Exceptions

The Economic
Benefits of Greater Freedom to Use Works

Copyright Terms
and Formalities


Responses to Specific (General) Questions

Question 1:
Should there be encouragement or guidelines for contractual
arrangements between right holders and users for the implementation
of copyright exceptions?

Question 2:
Should there be encouragement, guidelines or model licenses for
contractual arrangements between right holders and users on other
aspects not covered by copyright exceptions?

Question 3: Is
an approach based on a list of non-mandatory exceptions adequate in
the light of evolving Internet technologies and the prevalent
economic and social expectations?

Question 4:
Should certain categories of exceptions be made mandatory to ensure
more legal certainty and better protection of beneficiaries of
exceptions?

Question 5: If
so, which ones?


Exceptions for Libraries and Archives

Question 6:
Should the exception for libraries and archives remain unchanged
because publishers themselves will develop online access to their
catalogues?

Question 7: In
order to increase access to works, should publicly accessible
libraries, educational establishments, museums and archives enter
into licensing schemes with the publishers? Are there examples of
successful licensing schemes for online access to library
collections?

Question 8:
Should the scope of the exception for publicly accessible
libraries, educational establishments, museums and archives be
clarified with respect to

(a) Format
shifting;

(b) The number
of copies that can be made under the exception;

(c) The scanning
of entire collections held by libraries;

Question 9:
Should the law be clarified with respect to whether the scanning of
works held in libraries for the purpose of making their content
searchable on the Internet goes beyond the scope of current
exceptions to copyright?


Orphan Works

Question 10: Is
a further Community statutory instrument required to deal with the
problem of orphan works, which goes beyond the Commission
Recommendation 2006/585/EC of 24 August 2006?

Question 11: If
so, should this be done by amending the 2001 Directive on Copyright
in the information society or through a stand-alone instrument?

Question 12: How
should the cross-border aspects of the orphan works issue be
tackled to ensure EU-wide recognition of the solutions adopted in
different Member States?


Exceptions for the benefit of people with disabilities

Question 13:
Should people with a disability enter into licensing schemes with
the publishers in order to increase their access to works? If so,
what types of licensing would be most suitable? Are there already
licensing schemes in place to increase access to works for the
disabled people?

Question 14:
Should there be mandatory provisions that works are made available
to people with a disability in a particular format?

Question 15:
Should there be a clarification that the current exception
benefiting people with a disability applies to disabilities other
than visual and hearing disabilities?

Question 16: If
so, which other disabilities should be included as relevant for
online dissemination of knowledge?

Question 17:
Should national laws clarify that beneficiaries of the exception
for people with a disability should not be required to pay
remuneration for using a work in order to convert it into an
accessible format?

Question 18:
Should Directive 96/9/EC on the legal protection of databases have
a specific exception in favor of people with a disability that
would apply to both original and sui generis databases?


Dissemination of works for teaching and research purposes

Question 19:
Should the scientific and research community enter into licensing
schemes with publishers in order to increase access to works for
teaching or research purposes? Are there examples of successful
licensing schemes enabling online use of works for teaching or
research purposes?

Question 20:
Should the teaching and research exception be clarified so as to
accommodate modern forms of distance learning?

Question 21:
Should there be a clarification that the teaching and research
exception covers not only material used in classrooms or
educational facilities, but also use of works at home for
study?

Question 22:
Should there be mandatory minimum rules as to the length of the
excerpts from works which can be reproduced or made available for
teaching and research purposes?

Question 23:
Should there be a mandatory minimum requirement that the exception
covers both teaching and research?


User-created content

Question 24:
Should there be more precise rules regarding what acts end users
can or cannot do when making use of materials protected by
copyright?

Question 25:
Should an exception for user-created content be introduced into the
Directive?

Appendix
A

Elements of the May 9, 2005 Draft of
a Treaty on Access to Knowledge

Part 3 –
Provisions Regarding Limitations and Exceptions to Copyright and
Related Rights

Article 3-1 –
General Limitations and Exceptions to Copyrights

Article 3-2 –
Provisions regarding Distance Education

Article 3-3 –
The rights of persons with disabilities

Article 3-4 –
First Sale Doctrine for Library Use

Article 3-5 –
Internet Service Providers

Article 3-6 –
Digital Rights Management and Measures Regarding Circumvention of
Technological Protection Measures

Article 3-7 –
Non-original or creative works

Article 3-8 –
Orphan Works

Article 3-9 –
[Retroactive] Extensions of Term of Protection for Copyright and
Related Rights

Article 3-10 –
Requirements When Term of Protection for Works Protected by
Copyright and Related Rights Have Been Previously Extended to
Exceed TRIPS Requirements

Article 3-11 –
Works For Which Author Has Alienated Economic Rights

Article 3-12 –
Compulsory licensing of copyrighted works in developing
countries

 

 

Introduction

Knowledge Ecology International (KEI)2 offers
the following comments on the question of whether the exhaustive
list of exceptions under the Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in
the information society (“the Directive”) achieves “a fair balance
of rights and interests between […] the different categories of
right holders and users.” Our comments take into consideration the
question of whether “the balance provided by the Directive is still
in line with the rapidly changing environment.”

New technologies and cultural practices are challenging the
balance between exclusive rights and limitations and exceptions to
copyright, and this will surely continue to be the case for years
to come. In a global online environment, there is a trade related
aspect to the management and enforcement of intellectual property
rights, and also to the limitations and exceptions to those
rights.

We focus on the impact of copyright policies on consumers and
users including library patrons, educators students, and
researchers and reading disabled persons and on possible solutions
that would enhance access as well as promote innovations.

Our comments will address issues related to:

General issues;

The exception for the benefit of
libraries and archives;

The exception allowing dissemination
of works for teaching and research purposes;

The exception for the benefit of
people with a disability;

A possible exception for user-created
content.

In general, KEI’s position on copyright limitation and
exceptions to exclusive rights is as follows:

  1. A statutory regime of limitations and exceptions to exclusive
    rights is necessary in order to promote access to protected works,
    and to enable the development of new knowledge goods and innovative
    services.

  2. In some cases, the limitations and exceptions should be
    implemented as non-remunerative exceptions.

  3. In other cases users should have the freedom to use works
    subject to remuneration.

  4. The world that is connected to the Internet is experiencing a
    new era of access, and a proliferation of new approaches to
    authorizing and using creative works and data. As dramatic as the
    changes have been, there will be more.

  5. Among the most important features of the new environment are the
    empowering experience of much more equal access to creative works
    and data, and an acceleration of the creation, transformation
    dissemination and re-purposing of information.

  6. The new information technologies have greatly expanded the
    opportunities to create and use information resources; enabling new
    actors, new business models and an immense role for non-commercial
    and user generated publishing.

  7. A legal framework that focuses on protecting commercial rights
    under the older publishing technologies is inferior to one that
    recognizes, appreciates and focuses on the value of the new
    opportunities to create and use information.

General issues

According to
the Green Paper, Directive 2001/29/EC on the harmonization of
certain aspects of copyright and related rights in the information
society has harmonized the rights of reproduction, communication to
the public, making available and distribution. The scope of the
exclusive rights is thus broad and gives right owners high-level
exclusive rights. The Directive has also introduced an exhaustive
list of exceptions that limits the member states in their ability
to introduce new exceptions. There is only one mandatory exception
and 20 optional exceptions. This optional list of exceptions is
drafted in vague language and has actually prevented harmonization
and created a level of uncertainty detrimental to consumers.

The Three Step Test is Not Relevant in some
areas

It is a common misunderstanding that all copyright limitations
and exceptions are subject to the so called “three step test”
(3ST). In many areas copyright limitations and exceptions can be
implemented outside of the 3ST. These include the specific
exceptions referenced in the Berne and Rome Conventions that are
outside of the 3ST, such as the mandatory exception for the right
to quotation, the Appendix to the Berne and some other user rights
clearly spelled out in the Berne and the Rome. In addition, WTO
members can use other types of flexibilities when implementing
their copyright laws.

Part I of the TRIPS

In Part I of the TRIPS, WTO members are given very broad freedom
to consider national, regional and international regimes for the
exhaustion of rights in copyrighted works — a very important and
potentially broad exception to exclusive rights.

Additional context for limitations and exceptions are set out in
Articles 1, 7 and 8 of the TRIPS.

Part II, Section 8 of the TRIPS

In Part II, Section 8, Article 40 of the TRIPS, WTO members are
given very broad discretion in controlling anticompetitive
practices. The text of paragraphs 40.1 and 40.2 is useful to
review.

SECTION 8: CONTROL OF ANTI-COMPETITIVE PRACTICES IN
CONTRACTUAL LICENCES

Article 40

1. Members agree that some licensing practices or
conditions pertaining to intellectual property rights which
restrain competition may have adverse effects on trade and may
impede the transfer and dissemination of technology.

2. Nothing in this Agreement shall prevent Members from
specifying in their legislation licensing practices or conditions
that may in particular cases constitute an abuse of intellectual
property rights having an adverse effect on competition in the
relevant market. As provided above, a Member may adopt,
consistently with the other provisions of this Agreement,
appropriate measures to prevent or control such practices, which
may include for example exclusive grantback conditions, conditions
preventing challenges to validity and coercive package licensing,
in the light of the relevant laws and regulations of that
Member.

Article 40 of the TRIPS should be read in connection with other
parts of the TRIPS, including Articles 1, 6, 7, 8 and 44.2. Article
40 ensures that governments have the right to address unreasonable
licensing practices in a wide range of areas. This includes cases
of excessive pricing under guidelines or formulas, and also where
there is no formal finding of dominance under a normal EU
competition case.

In the context of traditional competition law cases, the EU has
used the Article 40 flexibility in a wide range of cases, including
but not limited to those involving software (Microsoft),
programming guides and pharmaceutical sales data.

Non-voluntary uses under Part III of the TRIPS
concerning remedies

Under Part III of the TRIPS, WTO members have very broad
authority to issue compulsory licenses as an alternative to the
enforcement of an injunction, under TRIPS Article 44. For example,
the ability to enforce an exclusive right through an injunction can
be waived in some cases (Article 44.1), or in every case (Article
44.2) when “these remedies are inconsistent with a Member’s law”
and “declaratory judgments and adequate compensation” are
available. It is under Article 44.2 that the US government
exercises its rights to use all copyrighted works without licenses
or prior negotiation, under 28 USC 1498.

The importance of so called “Part III compulsory licenses” has
been highlighted by the expanded use of non-voluntary uses of both
patents and copyrights following a U.S. Supreme Court decision
involving the online auction company eBay. KEI has written about
this topic in the context of copyright:

“Compulsory licensing of copyright under Article 44.2
of the TRIPS, in light of eBay,” KEI Research Note
2007:5.

KEI notes that Article 44 non-voluntary uses of works are highly
relevant in discussions of certain limitations and exceptions,
including those such as:

  1. the use of architectural plans, where the enforcement of the
    exclusive right could lead to an unreasonable burden on
    builders,

  2. in inadvertent copyright infringement in newspapers, periodicals
    and books, and

  3. in schemes to grant freedom to publish orphaned works.

Given the considerable flexibilities of Article 44.2 of the
TRIPS, some are suggesting it can be used for a wide range of
remunerative rights, including those relating to libraries,
education, distance education, orphan works, the creation of
documentary films, and user generated content.

Unfortunately, recent proposals by the European Commission in
connection with negotiations for Economic Partnership Agreements
(EPA), and possibly within the proposed Anti-Counterfeiting Trade
Agreement (ACTA) would impose new TRIPS plus measures that would
undermine the Part III flexibilities. KEI has written about this
issue to the USTR:

“ACTA provisions on injunctions may undermine eBay
Supreme Court decision,” September 22, 2008, Letter from KEI to
USTR and the U.S. Department of commerce.3

The Limits of an Exhaustive List of Limitations
and Exceptions

The European Union has embraced the notion of an exhaustive list
of limitations and exceptions rather than a set of recommended
exceptions coupled with principles to allow for new exceptions that
will address future needs. This approach is too static, and stifles
innovation.

The European Union is now confronting the need to consider new
limitations and exceptions for user generated content as well as
for new innovative services. In the area of disabilities, new
information technologies are creating demands to expand limitations
and exceptions to new formats, and across borders.

Many of the more interesting and useful areas of non-voluntary
uses of works have evolved due to unexpected changes in
technologies and business models. Bookshare.Org, which serves
persons who are blind and disabled, uses a peer to peer technology
that did not exist until recently. The pervasive use of hypertext
linking, Internet search engines, the vast blogsphere, Facebook and
other user generated content sites, and the exploding uses of low
bandwidth video works, many involving partial remixes of
copyrighted works, could not exist within a strict interpretation
of copyright rules as understood just fifteen years ago.

A regime of exceptions that works only because it is largely
ignored is one that is too rigid.

The Economic Benefits of Greater Freedom to Use
Works

Europe needs to stop looking at the strict enforcement of
intellectual property rules, including rules on copyright
enforcement, solely as tools to increase European incomes, by
collecting global rents for domestic content industries. A more
accurate assessment is that Europe has been losing market and mind
share to countries that provide greater freedom to innovate and use
works.

It is shortsighted and unimaginative to define the markets for
copyrighted works only as the rents collected by a handful of
highly concentrated publishers. There is a market from the point of
view of the seller of works. There is a market from the point of
view of the buyer of works. Extracting more money from European
consumers has a redistributive impact, but it is not the best way
to expand the European economy. To appreciate why, one has to
recognize that the overall market has grown when works and data
were widely shared, transformed and re-purposed.

There are new markets that are created for the services that
enable the sharing, transformation and re-purposing of works and
data. There are also new markets that are created because of the
knowledge that has been shared – including markets for
non-information goods and services that are improved, invented or
marketed in the new knowledge ecology.

A stifling regulatory environment for knowledge goods suppresses
economic development.

One recent area of evidence for this concerns the divergent
efforts of the US and European Union with respect to the protection
of non-copyrighted elements of databases. The EU took the more
protectionist route and lost market share.4 Another
area of evidence concerns the divergent views of the US and Europe
on the topic of fair use of copyright as applied to new innovative
services. Many EU states take a more protectionist view of the
non-voluntary use of copyrighted works. But the value today is
being created with firms (many US based) that provide remarkable
freedom to use works. It will be a challenge for Europe to consider
such new paradigms, in a world where content industry lobbyists are
insisting on more and more enforcement of exclusive rights.

Copyright Terms and Formalities

One area of possible flexibility not addressed in the Green
Paper would be to introduce formalities to use works for the period
of protection that exceeded the terms set out in the Berne and Rome
Conventions and in the TRIPS Agreement. Given the growing interest
in access to older works that can be digitalized, including but not
limited to the many works that have been orphaned by authors or
publishers, there is great value now wasted because the European
Union (and other countries) provide decades of extra years of
exclusive rights, even when the owners of the works do not exploit
the works commercially. Solutions to these issues are examined in
Part 3 of the attached Draft Treaty on Access to Knowledge. From
the point of view of users, there is no reason to extend exclusive
rights to owners that are not even willing to register works for
sale. While registration of works is not a condition for copyright
protection under the minimum Berne/Rome/TRIPS mandatory terms,
registration can be required for the extended terms, by converting
the extended terms to sui generis regimes with different
conditions (not dissimilar to supplementary protection regimes used
to extend exclusivity for patented medicines in some countries).
The right owners that have valuable assets to protect can easily do
so, without laying waste to an enormously valuable body of
knowledge.

Responses to Specific (General)
Questions

Our responses to the Green Paper general questions are as
follows:

Question 1: Should
there be encouragement or guidelines for contractual arrangements
between right holders and users for the implementation of copyright
exceptions?

Contractual arrangements should not replace implementation of
exceptions. Guidelines should ensure that contractual terms that
are contrary to copyright exceptions are not enforceable.

In some cases, the elimination of an exclusive right in favor of
a remunerative right can be combined with guidelines in terms of
the reasonableness of the remuneration payments, and create a
framework where the exceptions to the exclusive rights effectively
reduce transaction costs and support greater freedom to use works
and greater access to works.

For example, a country may determine that certain licensing
practices, such as refusals to license works on terms that are
affordable, is an anti-competitive practice under Article 40 of the
TRIPS, and should be remedied through a compulsory license under
Part II of the TRIPS, or a limit on remedies under Part III,
Article 44 of the TRIPS. For example, governments may exercise
certain government rights in copyrighted works, under Article 44 of
the TRIPS, subject to remuneration or compensation.

In some other cases, the copyright exceptions should extend
beyond the right of a copyright owner to control use through a
license. An illustrative and non-exhaustive set of examples of
areas where exceptions should not be subject to licensing
obligations follows:

  • rights to use works for quotations,

  • certain uses relating to criticism or political speech,

  • rights exercised by individuals for their personal use,

  • uses of orphaned works,

  • certain uses of works in connection with documentary audiovisual
    works,

  • the exercise of certain rights associated with making works
    available in accessible formats for persons with disabilities,

  • archival preservation, or to migrate content to a new
    format,

  • cases involving the exhaustion of rights,

  • reverse engineering of software in order to make products
    interoperable,

  • some measures necessary to remedy anticompetitive practices,
    and

  • a wide range of cases where the requirement to obtain licenses
    would result in unacceptable reductions in access, unreasonable
    delays and burdensome procedures, and high transaction costs.

In respect to the last point, we recall Article 2(f) of the
October 23, 2008 World Blind Union (WBU) proposal for a WIPO Treaty
for Blind, Visually Impaired and Other Disabled Persons.5

Contracting Parties shall ensure that the
implementation allows for timely and effective exercise of
authorized actions covered by this Treaty, including expeditious
procedures that do not in themselves create barriers to legitimate
uses, are fair and equitable,and are not unnecessarily complicated
or costly, or entail unreasonable time, time-limits or unwarranted
delays.

Question 2: Should
there be encouragement, guidelines or model licenses for
contractual arrangements between right holders and users on other
aspects not covered by copyright exceptions?

Technological Protection Measures (TPMs) are designed to
prevent, in the digital networked environment, the unauthorized
access to or use of creative works or data. Their legal protection
comes as a second layer of protection for rights owners, in
addition to copyright protection itself.

The obligation to grant legal protection for the use of TPMs
arises from Article 11 of the WCT and Article 18 of the WPPT.
Article 11 of the WCT: ‘Contracting Parties shall provide adequate
legal protection and effective legal remedies against the
circumvention of effective technological measures that are used by
authors in connection with the exercise of their rights under this
Treaty or the Berne Convention and that restrict acts, in respect
of their works, which are not authorized by the authors concerned
or permitted by law.’

Article 11 of the WCT requires that protection of TPMs be
granted only with respect to technologies used by rights owners in
connection with the exercise of a right protected by copyright law.
This means that the application of TPMs to public domain material
does not fall within the scope of Article 11 and that it is not
enough that TPMs are ‘used in connection with the exercise’ of a
copyright. In other words, the circumvention of a TPM in order to
use a work while benefiting from one of the exceptions to copyright
is, in principle, not prohibited by Article 11 of the WCT.

It is also important to address related rights, including those
associated with the protection of non-copyrighted elements
of databases
. Here it is useful to consider language from
the WBU proposal on three points:

parties shall ensure that beneficiaries of the
exception provided by . . . have the means to enjoy the exception
where technological protection measures have been applied to a
work, including when necessary the right to circumvent the
technological protection measure so as to render the work
accessible.


Any contractual provisions contrary to the exception provided . . .
shall be null and void.

The provisions . . . shall apply mutatis
mutandis
to non-copyrighted elements of
databases.

Question 3: Is an
approach based on a list of non-mandatory exceptions adequate in
the light of evolving Internet technologies and the prevalent
economic and social expectations?

No, the lack of certainty has increased and with evolving
cross-border Internet technologies, it is necessary to have
mandatory minimum exceptions implemented across Member states, and
also between Member states and other countries. In this respect,
the European Union should also abandon its opposition to analysis
and norm setting on the question of mandatory minimum copyright
limitations and exceptions in the WIPO Standing Committee on
Copyright and Related Rights. People who live and work in Europe
have a profound and economically important interest in
communicating with people who live in countries outside of
Europe.

Question 4: Should
certain categories of exceptions be made mandatory to ensure more
legal certainty and better protection of beneficiaries of
exceptions?

Yes.

Question 5: If so,
which ones?

KEI endorses the minimum limitations and exceptions that are
included in Part 3 of the May 9, 2005 draft Treaty on Access to
Knowledge (attached in Appendix A). The May 9, 2005 draft Access to
Knowledge Treaty was developed by a multi-stakeholder group. It
addressed a wide range of areas where mandatory minimum copyright
limitations and exceptions are appropriate and welfare
enhancing.

KEI also calls attention to the recent report by Professors
Bernt Hugenholtz & Ruth Okediji, “Conceiving an International
Instrument on Limitations and Exceptions to Copyright,” a March 6,
2008 study supported by the Open Society Institute (OSI).

On the special topic of persons with reading disabilities, KEI
attaches a copy of a report of a July 24-25, 2008 experts meeting
hosted by the World Blind Union and KEI, and the October 23, 2008
proposal by the WBU for a WIPO Treaty for Blind, Visually Impaired
and Other Reading Disabled Persons (attached). KEI endorses the WBU
proposal for a treaty, and asks the European Union to support WIPO
SCCR discussions regarding such a treaty.

On the topic of persons with reading disabilities, this
population is clearly a vulnerable group, and special measures are
required to make access to works more equal. Persons with
disabilities, like everyone else, need to communicate with persons
in foreign countries, and to read works published everywhere. It is
expensive to transform works into accessible formats, and it is
important to allow the import and export of such works. The vast
majority of works in accessible formats are created under
limitations and exceptions. People who are blind or have other
disabilities cannot today obtain access to the bulk of the vast
collections of accessible works published in the United States by
Bookshare.Org or works created in other countries. Blind and
disabled European nationals who migrate to work and live in
countries outside of the European Union do not have access to works
created in Europe under copyright limitations and exceptions. These
inefficiencies and barriers to knowledge not only harm persons with
disabilities – they harm society as a whole, as we are deprived of
the talents and skills of millions of persons who can contribute
more if they have access to more works. Today, New York State has a
governor who is blind, but millions of persons who have lost their
ability to read works in traditional formats through illnesses or
injuries are too frequently marginalized, and we do not fully
benefit from their talents and skills. The technological
opportunities to serve this population have expanded dramatically
with the development of digital technologies, and platforms such as
the DAISY format, and ingenious new reader technologies such as
refreshable braille, computer generated (and searchable) audio, and
large type displays. The systems of limitations and exceptions to
exclusive rights should empower blind and other persons with
disabilities to fully participate and contribute to society. That
obviously requires systems of cross-border information flows.

The European Commission should support the proposal by persons
who are blind or have other disabilities for work at the WIPO SCCR
on a WIPO Treaty for Blind, Visually Impaired and Other Disabled
Persons.

Exceptions for Libraries and Archives

Libraries and archives do not enjoy a blanket exception for the
right of reproduction and may only copy to preserve a work. It is
not always clear if format shifting is allowed and how many copies
can be made. This is left to the national level. Another important
issue is the electronic delivery of copies to consumers. Finally,
while the Commission has been encouraging Member states to create
mechanisms to facilitate the use of orphan works and provide lists,
there is no harmonized regulatory approach to this cross-border
issue yet.

Today publicly accessible libraries, educational establishments,
archives and museums may benefit from two exceptions in the
Copyright Directive:

  1. an exception to the reproduction right for specific acts of
    reproduction for non-commercial purposes (Art. 5(2)(c) of the
    Directive), and

  2. a narrowly formulated exception to the communication to the
    public right and the making available right for the purpose of
    research or private study by means of dedicated terminals located
    on the premises of such establishments (Art. 5(3)(n) of the
    Directive).

Question 6: Should the
exception for libraries and archives remain unchanged because
publishers themselves will develop online access to their
catalogues?

No.

Question 7: In order
to increase access to works, should publicly accessible libraries,
educational establishments, museums and archives enter into
licensing schemes with the publishers? Are there examples of
successful licensing schemes for online access to library
collections?

Libraries already engage in extensive licensing of copyrighted
works. Unfortunately, while some licenses between providers of
digital knowledge goods and libraries are negotiated on reasonable
terms, in many cases libraries are faced with unequal bargaining
power or non-negotiable “take-it-or-leave-it” license terms that
are quite unreasonable, for the use of databases or online
journals.

Libraries rely on millions of dollars of mass-market retail
computer information products. Many of these products use
non-negotiated or standard form licenses in which the licensor or
vendor determines the terms without input from the licensee.
Libraries, like consumers, should be protected from unfair contract
terms.

There are also areas where approaches that require licensing are
inappropriate, and statutory rights for users better accomplish
policy goals regarding the creation, dissemination, transformation,
use and archiving of works.

Question 8: Should the
scope of the exception for publicly accessible libraries,
educational establishments, museums and archives be clarified with
respect to

(a) Format
shifting;

(b) The number of
copies that can be made under the exception;

(c) The scanning of
entire collections held by libraries;

Yes, the exclusive economic rights of copyright holders
(including but not limited to reproduction, distribution, display,
performance, adaptation and communication to the public) should not
apply to the use of works for purposes of library or archival
preservation, or to migrate content to a new format.

Question 9: Should the
law be clarified with respect to whether the scanning of works held
in libraries for the purpose of making their content searchable on
the Internet goes beyond the scope of current exceptions to
copyright?

Only if the clarification permits the
searching of content on the Internet.

Orphan Works

Question 10: Is a
further Community statutory instrument required to deal with the
problem of orphan works, which goes beyond the Commission
Recommendation 2006/585/EC of 24 August 2006?

Yes.

Question 11: If so,
should this be done by amending the 2001 Directive on Copyright in
the information society or through a stand-alone
instrument?

The Commission should consider an
instrument that permits works to be used without prior consent,
under a system that limits the remedies available to the unknown
copyright owners. This would use the flexibility now allowed under
Article 44.2 of the TRIPS. As noted above, the Commission should
also consider requiring registration of works for the period of the
term that exceeds the minimum terms set out in the Berne/Rome and
TRIPS Agreements.

Question 12: How
should the cross-border aspects of the orphan works issue be
tackled to ensure EU-wide recognition of the solutions adopted in
different Member States?

All Members States should agree to implement measures that
ensure access to works that are unidentifiable, un-locatable or
unresponsive, or referred to as orphan works. Any use by
reproduction in copies or by any other means of use within the
rights of the copyright owner, is not an infringement of copyright
when the user has conducted a reasonable investigation and can
conclude that the work is an orphan work. The Commission
Recommendation 2006/585/EC of 24 August 2006 established a multi
stakeholders group that set up guidelines for search and general
principles concerning a database of orphan works. The Commission
should draft a model law based on these principles to be
implemented in a harmonized fashion by all Member States. This
model law should fruitfully explore options under Part III of the
TRIPS on enforcement of rights, as the flexibility regarding
injunctions and remuneration rights is greater under Part III of
the TRIPS than it is under Part II.

If we want to learn from the past, we have to know what happened
in the past. The cross border trade of orphaned works is extremely
important. KEI’s own research efforts depend extensively upon
access to foreign works, and this is certainly true for a growing
number of scholars, researchers, policy makers and businesses in
Europe. KEI recommends that the EU study the provisions for
cross-border distribution of works in the October 23, 2008 WBU
proposal for a WIPO Treaty for Blind, Visually Impaired and other
Persons with Disabilities.

Exceptions for the benefit of people with
disabilities

Summary of issues:

The Directive provides for an exception to the reproduction
rights and the communication for the benefit of persons with
disabilities but some Member States restrict it to certain
categories of disabled persons. Also some Member states require a
payment of compensation while others do not. The number of
available works for the reading disabled is still minimal in Europe
and the need to have cross border issues addressed to enhance
access and lower the costs has not been met.

According to the World Health Organization (WHO), more than 161
million people worldwide are visually impaired. This includes 37
million persons who are considered blind and 124 million persons
with “low vision.” According to the WHO, more than 90 percent of
visually impaired persons live in developing countries.

In addition to those who are visually impaired are large numbers
of persons who have other disabilities relating to reading,
including persons with inadequate access to reading aids, and
persons who cannot turn pages of books, persons who cannot visit
libraries, and persons suffering from dyslexia and other learning
disabilities.

On July 24-25, 2008, the World Blind Union (WBU) and KEI hosted
an experts’ consultation to consider a text for a possible Treaty
for the Visually Impaired (TVI). Participants included nineteen
experts from eight countries. Sections of this answer are drawn
from the report of that meeting.

Louis Braille invented the Braille alphabet in 1829, empowering
visually impaired persons to read, typically by using embossed paper Braille. The development
of new information technologies have vastly expanded the
opportunities to make works available in accessible formats,
particularly for works stored in digital formats. This includes
works stored digitally by the original publisher, as well as works
keyed in or read by volunteers, or scanned by third parties, in
connection with a variety of devices that can perform optical
character recognition.

One such technology is the refreshable Braille display, or RBD.
The RBD produces Braille by raising and lowering pins in response
to an electronic signal. There are numerous software programs that
can convert text to RBD output, or which convert text to audio
speech, or publish works in large print text. There also exist
technologies and solutions to address other reading disabilities,
such as for persons who have physical disabilities that prevent
them from turning the pages of a book, or persons with a variety of
reading disabilities such as dyslexia, or various comprehension
problems.

One aspect of the new information technologies is the ability to
create works that can be navigated more efficiently. For example,
works that are published in the DAISY format use digital tags on
data to allow the user to skip sections of a work, or return to
areas of a work. This is possible not only for text, but also for
audio sections. Some DAISY readers permit users to bookmark
specific locations, including the ability to include voice
annotations to accompany the bookmark.

Despite advances in technology, only a small fraction of
existing published works are available in formats that are
accessible to persons who are visually impaired. The labor involved
in making a new text accessible varies considerably, depending upon
the formats in which the work is originally published, as well as
the complexity of page layout designs.

Most books and periodicals today are created as digital works,
and then printed in a variety of formats, including both paper and
digital versions. It is technically possible for most books and
articles to be published in modern digital formats such as DAISY at
the same time they become available to persons without visual
impairments. This rarely happens.

Some estimate that five percent of published books are available
for visually impaired persons. Others estimate that far fewer works
are accessible today, particularly for works that have smaller
audiences. There is considerable variance in terms of access
regionally and nationally. Developing countries typically have far
fewer works available, due to existing restrictions in global
copyright norms regarding the import and export of works created
without the permission of copyright owners.

The non-profit sector plays an important role in making works
available in accessible formats for the visually impaired, both in
terms of developing new assistive technologies, and publishing
works in accessible formats.

While the recent and continuing improvements in information
technologies have created enormous opportunities to provide access
to knowledge for visually impaired persons, it is necessary to
address the global norms for copyright protection, including in
particular the area of limitations and exceptions to copyright that
are necessary to permit works to be re-engineered for accessible
formats, and make accessible to persons who are visually
impaired.

Entities using such exceptions to create accessible works often
are prohibited from exporting outside of national boundaries,
reducing considerably the access to works that are now in
accessible formats.

For example, in the United States certain authorized entities
are allowed to distribute works that are accessible for the
visually impaired without the permission of copyright owners, but
this exception only applies to access in the United States –
exports to other countries are not allowed. The non-profit
organization BookShare.org is a leading U.S. provider of books in
accessible formats for the blind and visually impaired. Less than 5
percent of Bookshare.Org works are licensed from publishers and
available worldwide.

Question 13: Should
people with a disability enter into licensing schemes with the
publishers in order to increase their access to works? If so, what
types of licensing would be most suitable? Are there already
licensing schemes in place to increase access to works for the
disabled people?

People with disabilities already engage in extensive
negotiations for licenses for works, as well as for agreements to
get access to the underlying digital files, in order to facilitate
the publishing of works in DAISY and other accessible formats.
Unfortunately, there is massive evidence that publishers are not
very responsive, which is illustrated quite powerfully by the
paucity of works accessible to people who are blind or otherwise
disabled.

A strategy that relied only on voluntary licensing by publishers
will not allow persons who are blind and disabled to have access to
most works. It would be an appalling, ethically repugnant policy
that either ignores massive evidence of access disparities or
considers such disparities acceptable.

Mandatory exceptions for blind and visually impaired persons
force publishers to consider pro-active strategies to make works
available to blind and disabled populations. Donors will not focus
on funding the publishing of works in accessible formats when such
works are actually available in accessible formats from the
publishers themselves on a timely basis.

It is not necessary and not desirable to create a legal regime
that conditions the exceptions for blind and disabled users by
donor supported non-profit entities with prior negotiation for
contracts, or endless disputes over the degree to which publisher
versions are actually accessible. Donors themselves will act
responsibly, without burdensome procedures and unwarranted access
denying delays.

When people with reading disabilities or their representatives
enter into a licensing scheme with the publishers, any contractual
provisions contrary to the necessary mandatory exception should be
null and void.

Question 14: Should
there be mandatory provisions that works are made available to
people with a disability in a particular format?

Yes. KEI Supports the WBU October 23, 2008 proposal for a WIPO
Treaty for Blind, Visually Impaired and other Reading Disabled
Persons.

All works should be made available in an ‘accessible format’,
meaning an alternative manner or form which gives a visually
impaired person or reading disabled person access to the work,
including to permit a person with a visual impairment to have
access as flexibly and comfortably as a person without a visual
impairment. For publishers for the blind, the accessible format
should include, but not be limited to, large print, with different
typefaces and sizes all being permitted according to need, Braille,
audio recordings, digital copies compatible with screen readers or
refreshable Braille and audiovisual works with audio description.
It should also be understood that whether a format is accessible or
not varies depending on the purpose for which the work is to be
used and so, for example, an audio recording of a book without
indexing may be accessible for a visually impaired person listening
for pleasure but not where a visually impaired person needs access
for the purposes of study.

Question 15: Should
there be a clarification that the current exception benefiting
people with a disability applies to disabilities other than visual
and hearing disabilities?

Yes. This exception should be extended to persons with any other
disability who, due to that disability, need an accessible format
in order to access a copyright work to substantially the same
degree as a person without a disability.

Question 16: If so,
which other disabilities should be included as relevant for online
dissemination of knowledge?

For example, people who do not have the use of their limbs may
have excellent vision, but may not have the ability to turn the
pages of a book or manipulate a standard computer. There are
technologies that enable such persons to read works. Some persons
have physical handicaps that do not allow them to enter libraries.
In such cases, libraries should be allowed to make works available
outside of the library. There are important cognitive disabilities
that can be addressed with new information and learning
technologies.

Question 17: Should
national laws clarify that beneficiaries of the exception for
people with a disability should not be required to pay remuneration
for using a work in order to convert it into an accessible
format?

Beneficiaries of the exception for people with a disability
should not be required to ask for permission or pay remuneration
for using a work in order to convert it into an accessible format,
if the activities are conducted on a non-profit basis.

If the activity is on a for profit basis, reasonable
remuneration should be available if requested by the rights
owner.

In the area of remuneration, KEI supports the approach taken in
the October 23, 2008 proposal by the WBU for a WIPO Treaty for
Blind, Visually Impaired and other Reading Disabled Persons.

Question 18: Should
Directive 96/9/EC on the legal protection of databases have a
specific exception in favor of people with a disability that would
apply to both original and sui generis databases?

Yes, the Database Directive should include a specific exception
that would apply to both original and sui generis
databases, similar to a mandatory exception to copyright works for
the reading disabled. The WBU proposal includes an Article 14 that
addressed this issue as follows:

Article
14. Limitations and Exceptions Applied to Non-Copyrighted Elements
of Databases.
The provisions of this treaty shall apply

mutatis mutandis

to non-copyrighted elements of databases.

Dissemination of works for teaching and
research purposes

Summary of issues:

The Directive includes an exception for teaching and research
purposes. It provides for exceptions or limitations to the rights
of reproduction and communication to the public when a work is used
“for the sole purpose of illustration for teaching or scientific
research, as long as the source, including the author’s name, is
indicated, unless this turns out to be impossible.” In some
countries (Denmark, Finland, Sweden and France) the use of work for
teaching and research is dependent on negotiations with collecting
societies. In addition, some Member states have implemented this
exception in such a way that it does not cover distance education
or Internet-based learning. Many states such as Spain and Greece do
not have an exception for research and when there is one it is
implemented in a narrow sense since it may cover copying only short
excerpts of the research material. Again, the limited harmonization
has created a legal uncertainty that prevents online networks to
benefit European education and research communities.

Question 19: Should
the scientific and research community enter into licensing schemes
with publishers in order to increase access to works for teaching
or research purposes? Are there examples of successful licensing
schemes enabling online use of works for teaching or research
purposes?

The scientific and research community already enters into many
such licensing schemes, with mixed results. As one might expect,
there are examples where licenses work well, and examples where
licenses are excessively priced and too restrictive. The progress
of scientific and research efforts is too important to be solely
determined by these licensing negotiations, particularly given the
excessive concentration of ownership among publishers of journals,
and the widespread evidence of excessive pricing for journals and
textbooks. Such licenses also often lack the flexibility to allow
works to be distributed across borders, inhibiting the development
of distance education services.

Question 20: Should
the teaching and research exception be clarified so as to
accommodate modern forms of distance learning?

Member States should agree to adopt measures for limitations and
exceptions to copyright that are effective in promoting greater
access to education through new distance education tools. These
tools often involve cross border delivery of educational content
and services, making it highly appropriate to address in
European-wide agreements and legislative frameworks, as well as to
explore the need for the harmonization needed for a global platform
for distance education.

In appropriate cases and circumstances, distance educators
should be able to use copyright protected materials on websites and
by other digital means of sharing works–without permission from
the copyright owner and without payment of royalties.

Question 21: Should
there be a clarification that the teaching and research exception
covers not only material used in classrooms or educational
facilities, but also use of works at home for
study?

Yes. And also to consider education services that are outside of
a formal academic institution.

The growth and potential of distance education is great.
However, the expansion of copyright protection (terms, rights and
enforcement), the lack of harmonization and narrowing of exceptions
related to distance education materials are preventing
progress.

Most materials used in educational programs whether in a
classroom or through transmission are protected under copyright
law. Because copyright protection is automatic in nearly all works
most writings, images, artworks, videotapes, musical works, sound
recordings, motion pictures, computer programs, and other works
that an educator needs to use in his or her teaching are protected
by copyright law.

The students, in a classroom or in different cities in front of
their computers constitute a “public” and educators frequently
incur possible violations of owners’ rights whenever they use
materials. When they copy materials to distribute as an handouts,
upload works to a virtual classroom websites, “display” slides or
“perform” music or videos, they are teaching and often not asking
for any permission.

The rules for distance education are significantly more rigorous
than those in face to face, in classroom setting. Clearly, when the
materials are uploaded to websites and can be transmitted anywhere
in the world, this is a possible threat to the interests of
copyright owners.

However, this has led to a situation where educators and
students cannot use the benefits of innovative educational
services. It is built around the notion that mediated instructional
activities must only occur in discrete installments, in a limited
span of time, and be as much as possible like a traditional
classroom sessions and most importantly in one country only. In
other words the lack of specific and harmonized exceptions in
Europe is not allowing the immense possibilities of distance
education.

Distance education exceptions should expand the range of works
that educators are allowed to use. Educators should be able to
lawfully display and perform all types of works for instructional
purposes.

Limiting the transmission of content to classroom or other
specific locations is denying the benefits of distance teaching and
learning. A new exception for distance education should include the
expansion of receiving locations.

Exception to copyright for distance education must explicitly
allow retention of the content and student access for an
appropriate period of time established by an instructor. It must
permit copying and storing if is necessary to teaching/learning
process and the technical aspects of digital transmission
systems.

The exception must allow digitization of analog works when they
are not already available to facilitate digital transmissions.

These benefits must be available to distance educators without
undue burdens. Following the WBU formulation:

. . . Parties shall ensure that the implementation
allows for timely and effective exercise of authorized actions . .
. including expeditious procedures that do not in themselves create
barriers to legitimate uses, are fair and equitable,and are not
unnecessarily complicated or costly, or entail unreasonable time,
time-limits or unwarranted delays.

Question 22: Should
there be mandatory minimum rules as to the length of the excerpts
from works which can be reproduced or made available for teaching
and research purposes?

It may be difficult to have a hard rule on length. It may be
useful to distinguish between cases where the commercial rights to
a work in an education setting are aggressively pursued by
publishers, such as textbooks and other materials that are prepared
explicitly for use in a education setting, and the growing body of
research that is primarily intended to be shared, without payment
to copyright owners, but often with formal licensing programs, or
works that are published with non-educational markets in mind, and
where use in an education setting, including even the full text,
will have a de minims impact of the core sustainable
market for the work.

One of the inefficiencies of the current system is overly broad
enforcement of exclusive rights to communities that do not need or
manage them, leading to under-utilization and under dissemination
of works in education and research settings.

Question 23: Should
there be a mandatory minimum requirement that the exception covers
both teaching and research?

Yes. Some mandatory exceptions should cover both teaching and
research. In some cases, restrictions on access will cause more
harm in research than in teaching, if in teaching there are
opportunities to substitute one work for another in a curriculum,
while in high level research, there may be less flexibility.

User-created content

Summary of issues:

The Directive does not include an exception that would allow the
use of protected content for creating new or derivative works. The
Gowers Review recommended an amendment to the Directive in order to
facilitate innovative uses and increase production of new or
“transformative” works. While there are some flexibilities for free
uses of works for criticism or review (see 5 (3) (d)) and in some
cases caricature, parody and pastiche (see 5 (3) (k)), it is in a
narrow sense since this can become “unfair practice” if the
commenting is addressing a wider issue than the work itself.

Question 24: Should
there be more precise rules regarding what acts end users can or
cannot do when making use of materials protected by
copyright?

There should be some areas where users have a clear right to use
works. In other cases, user rights should be determined by the
context and purpose of the use, such as the fair use provisions in
the United States.

Overall, the Commission should review the actual practice in web
sites featuring user generated content, such as personal or group
blogs, sites distributing user uploaded videos, personal networking
sites, and similar services and platforms and ask several
questions, including those asked and answered here:

  1. Do these sites operate within copyright law in the European
    Union? Probably not.

  2. Do these sites have a valuable function? Do they enrich the
    lives of people? Do they create greater access to knowledge? Do
    they enhance other social goals regarding raising awareness or
    knowledge? Do they contribute to greater efficiency and
    productivity of businesses? Based upon our own experiences and
    research, the answer is a resounding yes.

  3. Would a system of required licensing with individuals discourage
    and limit such activity. Yes. Quite a few very important things
    will not happen unless the person who creates, uploads or
    redistributes the user generated content faces zero costs when
    people access the re-purposed work.

  4. Are there commercial services that host such activity, that make
    money? Yes.

  5. Would it be reasonable to ask that such sites share some of
    their revenues with copyright owners? Yes, in principle, for some
    sites, doing some things, under some circumstances. It may be
    reasonable if the demands for revenue sharing were realistic and
    reasonable, and did not impose transaction costs shifted to users.
    However, if the demands for revenue sharing are unreasonable, they
    can be quite harmful. Demand may be unreasonable, considering for
    example, (1) the ability to pay, (2) the actual role of the
    commercial works in an otherwise non-commercial setting with much
    value added from users themselves, (3) if the activity itself is
    fundamentally protected, such as the right to use excerpts of works
    in criticisms or journalism, or (4) if services that generate
    commercial sales are not treated differently than sites than
    operated without fees, advertising or other methods of
    commercialization.

The European Commission has a credibility problem. It is seen as
being captured by a handful of large publishing interests, and
hostile to consumer concerns, as evidenced by the recent push to
extend protection terms for recorded music, or to retain the
sui generis database regime despite lack of empirical
evidence that it is improving economic development in Europe. How
much trust is there that the Commission would create an appropriate
set of rules regarding user generated content at this time? At
present European consumers generally ignore strict interpretations
of copyright rules, or use and post content on foreign hosted
sites. This may be a preferable short term solution to the adoption
of an inadequate rule now.

Question 25: Should an
exception for user-created content be introduced into the
Directive?

Possibly, but that would depend upon the substance of the
exception.

Persons who create “user generated content” and do not benefit
commercially from such works should have certain rights and
freedoms to use copyrighted works. When a commercial firm sells
advertising for sites that host access to user generated content,
it may be appropriate to provide remuneration to the copyright
owners, from the entity providing the advertising, subject to the
concerns set out in the answer to Question 24.

At this point official policy makers are faced with a public
that is making its own rules, and innovating around the regulatory
environment. There is some value in deferring policy making
decisions, while things sort out. However, if there is in fact
enormous pressure to enforce exclusive rights, and notions of third
party liability for user generated content are endorsed and
implemented by policy makers, then a set of exceptions becomes
important, if Europe is to protect activities that are valuable to
individuals, businesses and society.

For More Information
Contact:

Knowledge Ecology International (KEI)

Manon Ress, Director of Information Society
Projects

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need JavaScript enabled to view it

Appendix A

Elements of the May 9, 2005 Draft of a Treaty
on Access to Knowledge

Part 3 – Provisions Regarding Limitations and
Exceptions to Copyright and Related Rights

Article 3-1 – General
Limitations and Exceptions to Copyrights

(a). Members agree that the exclusive economic rights of
copyright holders (including but not limited to reproduction,
distribution, display, performance, adaptation and communication to
the public), shall not apply to:

  1. The use of relevant excerpts, selections, and quotations for
    purposes of explanation and illustration in connection with
    not-for-profit teaching and scholarship;

  2. The use of relevant excerpts, selections and quotations for
    purposes of criticism and comment, including but not limited to
    parody:

  3. The use of works, by educational institutions, as secondary
    readings by enrolled students;

  4. The use of works, by educations institutions, as primary
    instructional materials, if those materials are not made readily
    available by right holders at a reasonable price; provided that in
    case of such use the right holder shall be entitled to equitable
    remuneration;

  5. The use of works for purposes of library or archival
    preservation, or to migrate content to a new format;

  6. The use of works in connection with legitimate reverse
    engineering;

  7. The use of works specifically to promote access by persons of
    with impaired sight or hearing, learning disabilities, or other
    special needs;

  8. The use by libraries, archivists or educational institutions, to
    make copies of works that are protected by copyright but which are
    not currently the subject of commercial exploitation, for purposes
    of preservation, education or research.

  9. The use of works in connection with Internet search engines, so
    long as the owners of works do not make reasonably effective
    measures to prevent access by Internet search engines, and the
    Internet search engine service provides convenient and effective
    means to remove works from databases upon request of the right
    owner.

(b) It shall be presumed that these uses constitute special
cases that do not conflict with a normal exploitation of the work
and do not unreasonably prejudice the legitimate interests of the
right holder.

(c) In determining whether applying any limitation or exception
to exclusive rights to a particular use of a work would conflict
with its normal exploitation or unreasonably prejudices the
legitimate interests of the right holder, the extent to which the
use benefits the larger public interest shall be taken into
account.

(d) In addition to implementing specific exceptions for the
cases listed in subparagraph (a), parties to this treaty also shall
implement a general exception to copyright law, applicable in
special cases where the social, cultural, educational or other
developmental benefit of a use outweigh the costs imposed by it on
private parties, [and providing for equitable remuneration to the
copyright owner in appropriate circumstances.]”

Article 3-2 –
Provisions regarding Distance Education

(a) Members agree that the convergence of telecommunications,
publishing, broadcasting and computing, is creating a media
environment with enormous implications for flexible learning, and
mass higher education and training, including through programs of
distance education. The cross border nature of information flows
provides compelling justification for harmonization of minimum
limitations and exceptions for distance education. In order to take
full advantage of new technologies in the delivery of education and
flexible learning, it is necessary to ensure that educators have
sufficient rights to use works.

(b)The exclusive economic rights of copyright owners shall not
extend to the following uses in connection with distance education
projects:

  1. Performances of non-dramatic literary works;

  2. Performances of any other work, including dramatic works and
    audiovisual works, but only in ”reasonable and limited portions”
    and

  3. Displays of any work in an amount comparable to that which is
    typically displayed in the course of a live classroom session.

(c) The works described in (b) do not include works that are
marketed primarily for performance or display as part of mediated
instructional activities transmitted via digital networks; and
performances or displays given by means of copies not lawfully made
and acquired, if the educational institution knew or had reason to
believe that they were not lawfully made and acquired.

(d) Non-voluntary authorizations for education institutions and
programs to use works in distance education should not involve
overly restrictive or burdensome procedures.

(e) Educational institutions shall be permitted to record and
retain copies of the distance-education transmission, even if it
included copyrighted content owned by others, for (1) retention of
the content for student access for a period of time that is
necessary to achieve the learning objectives, and (2) copying and
storage that is incidental or necessary to the technical aspects of
digital transmission, including transient or temporary storage of
material, provided that the copyrighted content on a system or
network is not available for a longer period than is reasonably
necessary to facilitate the transmissions for which it was made,
and to the extent technologically feasible, the material is not
accessed by anyone other than the anticipated recipients.

Article 3-3 – The rights of persons with
disabilities

(a) Members recognize the importance of accessibility in the
process of the equalization of opportunities in all spheres of
society, and the right of equitable access to knowledge
irrespective of disability. This requires:

  1. a right to access knowledge through a diversity of formats to
    meet the individual’s specific needs,

  2. a right to transcend national frontiers,

  3. a functional definition of accessibility, and

  4. a functional definition of disability.

(b) Libraries, education institutions, or other institutions or
organizations duly designed shall have the authority to convert
material from one format to another to make it accessible to
persons with disabilities.

(c) The dissemination of works in formats that enable access by
disabled persons shall be permitted to any country that duly
authorizes the non-voluntary use of such works.

(d) Inclusive design principles to promote accessibility shall
apply to government web pages and other public documents.

(e) National legislation to protect copyrighted or
non-copyrighted works using digital rights management or
technological protection measures shall provide for appropriate
exceptions that are necessary to ensure access by persons with
disabilities.

Article 3-4 – First Sale Doctrine for Library
Use

A work that has been lawfully acquired by a library may be lent
to others without further transaction fees to be paid by the
library.

Article 3-5 – Internet Service Providers

Members agree that the exclusive economic rights of copyright
owners (including but not limited to reproduction, distribution,
display, performance, adaptation and communication to the public),
shall not apply to:

(a) An internet service provider’s (ISP) transmitting, routing
or providing connections for, material through a system or network
controlled or operated by or for the service provider, or by reason
of the intermediate and transient storage of that material in the
course of such transmitting, routing, or providing connections, if

  1. the transmission of the material was initiated by or at the
    direction of a person other than the service provider;

  2. the transmission, routing, provision of connections, or storage
    is carried out through an automatic technical process without
    selection of the material by the service provider;

  3. the service provider does not select the recipients of the
    material except as an automatic response to the request of another
    person;

  4. no copy of the material made by the service provider in the
    course of such intermediate or transient storage is maintained on
    the system or network in a manner ordinarily accessible to anyone
    other than anticipated recipients, and no such copy is maintained
    on the system or network in a manner ordinarily accessible to such
    anticipated recipients for a longer period than is reasonably
    necessary for the transmission, routing, or provision of
    connections; and

  5. the material is transmitted through the system or network
    without irreversible modification of its content.

(b) An ISP’s intermediate and temporary storage of material for
the purposes of caching material, as long as they do not modify the
material or provide it in a manner inconsistent with access
conditions set by the copyright holder;

(c) An ISP’s storage at the direction of a user of material that
resides on a system or network controlled or operated by or for the
service provider;

(d) The referring or linking to an online location containing
infringing material or infringing activity; in cases in which the
service provider has the right and ability to control such
activity, this exemption applies only if the ISP does not receive a
financial benefit directly attributable to the infringing
activity.

(e) The caching of electronic documents for the purposes of
enhancing functionality of internet search engines, as long as the
original webpage address is clearly indicated on the cached page,
and it is clear that the cached page may not be the most up-to-date
version;

(f) The transmitting of a universal resource locator or other
electronic pointer, that has the effect of instructing a user’s
browser to load electronic documents from a third-party server;

Article 3-6 – Digital Rights Management and
Measures Regarding Circumvention of Technological Protection
Measures

(a) Members agree that measures concerning Digital Rights
Management (DRM) systems and prohibitions against the circumvention
of technological protection measures (TPMs), referred to as DRM/TPM
measures, present the following risks:

  1. The DRM/TPM measures may undermine traditional limitations and
    exceptions to exclusive rights,

  2. DRM/TPM measures may present barriers to mechanisms that enable
    or enhance access for the visually impaired or other people with
    disabilities,

  3. The DRP/TPM measures may effectively extend of the term of
    protection beyond that provided in copyright law, including
    perpetual protection,

  4. Unfair contract terms and the inadequate disclosure of the
    limitations of uses of works may harm consumers,

  5. Anticompetitive practices, including market segmentation and
    technological tying to other potentially competitive products, may
    result in high prices and reduced innovation,

  6. DRM/TPM measures may make it difficult or impossible to archive
    or preserve works.

(b) Therefore, legal prohibitions against anti-circumvention of
DRM/TPM measures shall be limited, and not be enforced in the
following cases:

  1. When DRM/TPM licensing terms preclude implementation in Free and
    Open Source Software (FOSS),

  2. When DRM/TPM systems are marketed without adequate disclosure of
    their restriction modes and the terms under which they can be
    invoked, or when terms can be modified without a user’s explicit
    consent,

  3. When DRM/TPM systems do not provide mechanisms to permit works
    to be accessible by persons with visually impairments or other
    disabilities,

  4. When DRM systems rely upon social entities that such as
    households and families in their technology more narrowly or
    restrictively than have been defined in local law,

  5. Unless the use of DRM/TPM measures do not substantially
    interfere with uses that are authorized by the right holders or
    permitted by law, circumvention is permitted for the following
    works:

i. Works consisting predominantly of
public-domain material;

ii. Works of medical and scientific
literature;

iii. Works substantially financed by
national governments or international organizations;

iv. Works consisting predominantly of
factual information available from a single source, if equivalent
information cannot readily be gathered or compiled by others;

v. Works currently protected under
extended terms of copyright that exceed those required by the Berne
Convention or TRIPS.

(c) In providing legal protection and remedies against the
circumvention of technological measures, contracting parties shall
not prohibit circumvention undertaken in connection with uses of
works that are authorized by rightholders or permitted by law.

(d) In providing legal protection and remedies against the
circumvention of technological measures, contracting parties shall
not prohibit the making available of any technology or service that
is intended primarily to facilitate uses of works that are
authorized by the right holders or permitted by law.

Article 3-7 – Non-original or creative
works

Facts and works lacking in creativity, should not be subject to
copyright or copyright-like protections.

Article 3-8 – Orphan Works

(a) Members agree to implement measures that ensure access to
works that are unidentifiable, un-locatable or unresponsive,
referred to as orphan works.

(b) Use by reproduction in copies or phonorecords or by any
other means of use within the rights of the copyright owner, is not
an infringement of copyright when the user has conducted a
reasonable investigation and can conclude that the work is an
orphan work.

Article 3-9 – [Retroactive] Extensions of Term
of Protection for Copyright and Related Rights

Members agree that for works
protected under Article 9 through 13 of the TRIPS agreement, not to
extend the term of protection beyond the minimum required term
[retroactively].

Article 3-10 – Requirements When Term of
Protection for Works Protected by Copyright and Related Rights Have
Been Previously Extended to Exceed TRIPS Requirements

For countries that have previously extended terms of protection
for works protected by Article 9-13 of the TRIPS agreement, beyond
the terms required the TRIPS agreement, such protection shall be
converted to a sui generis system of protection that
includes the following features:

(a) The sui generis regime shall include limitations
and exceptions to rights that are least as supportive of access to
knowledge as exist for copyrighted works;

(b) The sui generis regime shall require that the
extended term of protection is based upon the registration of the
work and the inclusion of a notice of extended term of protection,
identifying the right owner and the date the work will enter the
public domain; and

(c) The sui generis regime may be subject to additional
public interest measures that promote access to knowledge,
including additional limitations and exceptions to rights,
obligations to support public knowledge goods, or the deposit of
the work in an archive in a format that will ensure public access
after the expiration of the extended term.

Article 3-11 – Works For Which Author Has
Alienated Economic Rights

For works when the term of protection is based upon anything
other than the life of a natural person, or in any case for any
work for which the author has alienated all economic rights,

(a) Extensions of the term of protection will not be
retroactive,

(b) Terms of protection shall not exceed the requirements of the
TRIPS agreement.

Article 3-12 – Compulsory licensing of
copyrighted works in developing countries

(a) Members agree that:

  1. In the past quarter of a century, technical progress has changed
    the ways and means of transmitting information and knowledge;

  2. Developments that have taken place in the field of international
    trade during this period reflect in greater freedom of
    exchanges;

  3. The needs and concerns of the developing countries should be
    taken into consideration, with a view to giving them easier and
    less costly access to education, science, technology and
    culture;

  4. The Appendix to the Berne Convention has been of limited benefit
    to developing countries, due to complex procedures, high
    transaction costs, limitations on exports and the limited scope of
    works and uses; and

  5. The Appendix to the Berne Convention is not a viable mechanism
    to promote access to works that are distributed on the
    Internet.

(b) A new protocol for access to copyrighted works in developing
countries will be developed for compulsory licenses for copyrighted
works that will feature:

  1. Simpler procedures,

  2. Lower transaction costs,

  3. Faster decision making,

  4. Appropriate scope of works and uses, including for translations
    in major languages,

  5. Permission to export to other developing countries that have
    issued compulsory licenses for the same works,

  6. Feasible implementation for works distributed in electronic
    formats, including over the Internet, or in distance education.

  1. The protocol described in (b) will be set out in the Regulations
    to this agreement.

2KEI is an
international organization that searches for better outcomes,
including new solutions, to the management of knowledge resources.
KEI undertakes and publishes research and new ideas, engages in
global public interest advocacy, provides technical advice to
governments, NGOs and firms, enhances transparency of policy
making, monitors actions of key actors, and provides forums for
interested persons to discuss and debate knowledge ecology topics.
http://www.keionline.org

4James Boyle, “A
natural experiment: Do we want ‘faith-based’ IP Policy?” FT
Online,
November 22nd, 2004.

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