Culture clash over copyright exceptions and limitations
James Nurton investigates AIPPI Question 246 on exceptions and limitations to copyright protection for libraries, archives and educational and research institutions, which is being debated today
It’s a balancing act that would challenge an accomplished circus performer: how to support access to information in education and research on the one hand while ensuring proper recognition and remuneration for authors on the other hand. That is essentially the trick that delegates debating Question 246 are hoping to pull off today, and it’s made harder by the divergent approaches taken to the question of exceptions and limitations around the world.
As Yusuke Inui of Kubota Law in Tokyo and an AIPPI Assistant Reporter General notes, feelings on this issue go beyond the law: “Education is very much connected to the culture of the country; it’s not simply about copyright. It’s the cultural issues raised by this question that make it particularly important.” Giorgio Mondini of Mondini Rusconi in Italy, who is chairing this question, adds: “We have to balance the rights of rights holders with the public interest to disseminate culture and science.”
The digital challenge
Exceptions to the exclusive rights of the copyright owner are well established, but have come under greater scrutiny in recent years, as digital technology and online distribution have made copying easier, cheaper and more convenient. AIPPI has tackled the copyright exceptions twice in the past five years, but not the specific issues concerning libraries, archives or education institutions (see box on the three-step test). In the EU, the Copyright Directive and the Orphan Works Directive both make it optional for member states to provide exceptions/limitations, including for libraries, educational establishments, museums and archives in their national laws. The UK, for example, updated its copyright exceptions in line with the Directive last year.
Despite the broad agreement that there should be exceptions or limitations in this field, there is wide divergence over questions such as which institutions should be covered and what they should be permitted to do. For example, should a library be able to make a digital copy of a physical work that may become damaged? Under what circumstances should copyrighted works be usable in course work or exams, or in distance education?
These were a few of the 30 questions tackled by AIPPI national and regional groups in their reports. The majority (70%) of groups agreed that use under the exceptions or limitations should be permitted automatically, and 70% also agreed that remuneration should be payable in at least some circumstances, though they disagreed on the details and on who should determine remuneration.
Looking specifically at libraries and archives, 60% of groups said the exceptions and limitations should only apply to public, non-profit and/or publicly accessible institutions, while 20% said they should apply to any library or archive. Around 40% of groups agreed that the exceptions and limitations should cover preservation and/or replacement, with around one-third saying they should apply to education and/or research activities. But there was great variance in the groups’ views on the conditions that should apply, including adherence to the three-step test, the possession of a legitimate copy, safeguards for digital copies and inter-library lending.
There was generally less consensus when it came to educational and research institutions. While 35% of groups felt that exceptions or limitations should apply to all institutions, 30% said they should be limited to those that are public and/or non-profit. And 40% said that exceptions and limitations should cover educational or research activities in general. As with libraries/archives, there was a variety of views on the conditions that should apply.
The WIPO context
Despite the divergences between nations and regions, most of the 40 groups that responded to this question said that harmonisation is desirable. The exceptions were the Finnish, French and US groups, which all expressed concerns about protecting national practices and policies. “I’m sure we will have a good discussion and I hope we can draft a resolution that everyone will agree on,” says Inui.
The issue is timely as it is one of two main topics being discussed by WIPO’s Standing Committee on Copyright and Related Rights (SCCR) and is listed on the agenda for the SCCR next session in December this year. WIPO has also published a detailed report by Professor Kenneth Crews on exceptions and limitations for libraries and archives, which highlights the different approaches taken to this question worldwide. “The purpose of AIPPI’s work on this topic should be to try to find acceptable solutions that might be adopted by WIPO,” says Mondini.
While WIPO members have agreed on the importance and the goal of enhancing the public service mission of libraries and archives, they differ on how best to achieve it. At the last meeting of the SCCR, delegates discussed national laws and practices and examined a chart to provide a structure to discuss the substance of each topic. “Hopefully AIPPI can confirm its position with a resolution at this year’s Congress and then present it to WIPO to inform that discussion,” says Inui.
The three-step dance
The three-step test set out in the Berne Convention of 1886 permits the reproduction of a copyrighted work:
• in certain special cases;
• provided that such reproduction does not conflict with a normal exploitation of the work; and
• does not unreasonably prejudice the legitimate interests of the author.
AIPPI Resolution on Q216A in 2010 confirmed that the three-step test should also apply to exceptions and limitations in the digital environment. Resolution Q216B in 2011 expanded on this, confirming that in general national laws should be harmonised relying on the three-step test. However, it was left to future studies to examine how to implement the test in specific circumstances. Neither Q216A nor Q216B studied the particular issues arising for libraries, archives or educational and research institutions.
One of the questions raised by Question 246 is whether there should be any special treatment for orphan works – that is, copyright works whose author cannot be traced. Around 45% of the national/regional groups concluded that institutions should be required to make a reasonable search for the copyright holder before using an orphan work.
However, beyond that there were varying views: three groups said deposit of remuneration is required for orphan works, and two said that attribution of authorship is required if possible. One group said that remuneration could be less for an orphan work, and six groups said there should be no special treatment.
In the EU, the Orphan Works Directive (2012/28/EU) was enacted in 2012 and came into force in October 2014, though it has not yet been implemented in all member states. The directive applies to printed works, cinematographic and audio-visual works, phonograms and embedded works. It sets out what steps institutions should take to trace authorship, provides for pan-EU recognition of orphan status and enables remuneration to be paid if a copyright holder asserts ownership. The directive also set up an EU Orphan Works Database, which can be searched on OHIM’s website, and so far has more than 1,300 records.
“Orphan works is another area where different countries take different approaches,” said Inui. “However, EU member states are progressing towards regional harmonisation despite their different cultures, and that is helpful for international harmonisation.”