Mr. Chairman, the Library Copyright Alliance appreciates the opportunity to speak before this forum about an issue that is so central to libraries and the public. We would like first to congratulate Mr. Gurry on his appointment. We would also like to express our appreciation to WIPO for commissioning these important studies and hosting these informative sessions.
The Library Copyright Alliance is a coalition of the five major U.S. library associations: the American Library Association, Association of Research Libraries, Special Libraries Association, Association of American Law Libraries, and the Medical Library Association. We would like to offer this statement regarding copyright exceptions and limitations.
Effective copyright law must balance the interests of creators of intellectual works and the users’ rights to use protected works to further creative endeavour, learning and research. The exclusive rights of copyright held by the creator are tempered by exceptions and limitations for users. For libraries, copyright exceptions are critical to meeting our missions to support learning and research, promote the free flow of information, provide equitable access to information to the public, preserve cultural heritage and encourage free expression. Without limitations to copyright, the advancement of knowledge and innovation could not proceed. At the same time, libraries recognize the need for creators to be rewarded for their work and for creative works to be protected from unfair exploitation. It is noteworthy that content spending by the global library market is $22.5 billion.
It is the position of some that the current state of copyright protection sufficiently provides limitations and exceptions for libraries to fulfil their public service mission. Although copyright protections are mandated by international treaties and are required, most limitations and exceptions are optional, dependent upon the statutes in each country. This has resulted in great variations that are often in conflict with one another in a globalized, networked world. As protections have been strengthened and extended in this digital era, limitations and exceptions have not been addressed, creating a critical imbalance. And there is an integral link between limitations and exceptions and the fundamental human rights expressed in the United Nation's Universal Declaration of Human Rights: equality, the right to education, freedom of expression and the right to access culture and to share in scientific advancement.
Limitations and exceptions have grown in importance with the emergence of the digital economy. As we learned from his Study on Copyright Limitations and Exceptions for Libraries and Archives, Kenneth Crews found that at least 21 of the member states have no library exception in their copyright law. The copyright laws of some developing countries are more restrictive than developed countries. As the Development Agenda discussions in the CDIP have made clear, developing a global approach to exceptions to and limitations on copyright law is essential for access to knowledge and for economic and social development.
Recognizing that the formats and delivery mechanisms of knowledge will change over time and that copyright exceptions should be viewed in light of their situational use, we also suggest the need for a broad exemption like fair use. Creators and users of intellectual property alike benefit from fair use. For example, the publishing industry regularly asserts fair use when incorporating content from earlier works. Likewise, a computer scientist relies on fair use when reverse engineering a computer security threat.
Exceptions permit a range of activities that are critical to many high-tech businesses. The study conducted by the CCIA demonstrates that exceptions to copyright protection promote innovation, are vital to many industries, and stimulate growth. Companies benefiting from the broad exception of fair use generate substantial revenue, employ millions of workers, and represented one-sixth of the total U.S. GDP in 2006.
Copyright exceptions should make sense in the digital world where information is the primary currency. Currently, different rules apply to different formats, but all formats should be equal in terms of exceptions that apply to their use. For example, the laws limiting preservation copies to three or limiting use to the physical premises of the library are outmoded in a digital environment. Because there is no exception for long-term preservation, digitization projects are hampered. In many countries, the law does not allow for the preservation of websites and other digital content.
We believe that a robust and growing public domain provides new opportunities for creativity, research, and scholarship.
All works created by government entities or with government funding should be publicly available at no charge within a reasonable timeframe. Facts and other public domain materials, and works lacking in creativity, should not be subject to copyright or copyright-like protections.
Consistent with the Berne Convention, the term of copyright should be the life of the author plus 50 years. The term of copyright should not be extended retroactively.
Copying individual items for or by individual users should be permitted for personal research and study.
Copyright laws should not inhibit the development of technology where the technology in question has substantial non-infringing uses.
It should be permissible for a work that has been lawfully acquired by a library or other educational institution to be made available over a network in support of classroom teaching or distance education in a manner that does not unreasonably prejudice the rights holder. Subject to appropriate limitations, a library or educational institution should be permitted to make copies of a work in support of classroom teaching.
A library should be permitted to make copies of published and unpublished works in its collection for purposes of preservation or migrating content to a new format. In support of preservation, education or research, libraries and educational institutions should be permitted to make copies of works still in copyright but not currently the subject of commercial exploitation.
A library should be permitted to lend to others a work that has been lawfully acquired without further transaction fees to be paid by the library. Interlibrary loan is essential to the vitality of libraries of all types and sizes and is a means by which a wider range of materials can be made available to users. Libraries have an obligation to obtain materials to meet the informational needs of users when local resources do not meet those needs. However, interlibrary loan should be regarded as an adjunct to, not a substitute for, collection development in individual libraries.
Libraries and archives should be permitted to make available a copyrighted work after conducting a reasonable search for the rights holder without liability for unreasonable damages. Publishers, filmmakers, museums, libraries, universities, and private citizens, among others, have faced significant challenges managing risk and liability when a copyright owner cannot be identified or located. If a copyright holder emerges, statutes should provide for reasonable remuneration for the use without penalty.
A library should be permitted to convert material from one format to another to make it accessible to persons with disabilities. The exception should not be format-specific to allow for the use of technologically-advanced access mechanisms.
It should be permissible to for libraries and their users to circumvent a technological protection measure for the purpose of making a non-infringing use of a work. Implementation of anti-circumvention legislation in many nations exceeds the requirements of Article 11 of the World Copyright Treaty. It describes the only TPMs subject to legal protection against circumvention are those that: (1) are effective, (2) are used by authors to exercise copyrights, and (3) restrict acts not authorized by authors or permitted by law. Some countries have allowed TPMs that effectively eliminate existing exceptions in copyright law.
The goals and policies providing for exemptions are important statements of national and international principle and should not be varied by contract. A British Library study of 100 contracts offered to it found that 93% undermine the exceptions to copyright law, and therefore worryingly undermine the public interest.
The limitations and exceptions should not be over-ridden by other bi-lateral or multi-lateral agreements.
There is a need to clarify and re-state the role of limitations and exceptions for libraries in the digital age. Sharing information on national policies on limitations and exceptions and their fit within international law is an important first step to constructive work on these issues.
The Library Copyright Alliance supports limitations and exceptions to copyright for libraries as outlined in this document as a minimum. We endorse the proposal presented at the Sixteenth Session of the WIPO Standing Committee on Copyright and Related Rights by Chile, Nicaragua, and Uruguay for work related to exceptions and limitations. We believe that there is a need for this committee to adopt a work plan that will identify national models and best practices through regional and international seminars that involve librarians. We hope consensus is achieved on a recommended set of minimum exceptions and limitations for libraries with a situation-based and flexible exemption like fair use.
Thank you for your consideration.
Lori Driscoll, LCA
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