EBLIDA's Comments to the Follow-up to the Green Paper on Copyright and Related Rights in the Information Society of 20 November 1996

On the eve of the implementation in directives of the Follow-up to the Green Paper on Copyright and Related Rights in the Information Society of 20 November 1996, the European Bureau of Library, Information and Documentation Associations (EBLIDA) would like to make the following comments.

The views expressed in the Follow-up to the Green Paper signify the approach of the European Commission on certain subjects which were also up for discussion at the WIPO Diplomatic Conference in December 1996.

The European library community welcomed the overall outcome of the WIPO Diplomatic Conference and in particularly the WIPO Copyright Treaty. The provisions in this Treaty are perceived as striking a much fairer balance between the rights of the holders of copyrights and the users of copyrighted material than the initial proposals of the Mr Jukka Liedes, Chairman of the WIPO Committee of Experts on a Possible Protocol to the Berne Convention.

Our comments in this paper will be limited to the reproduction right, the communication to the public right, and the harmonisation of limitations and exceptions. These rights are of fundamental importance to the development of a European competitive information society and in particular for the development of library services.

Reproduction right
In the Follow-up to the Green Paper the European Commission advocates a broad interpretation of the concept of "reproduction", which includes the digitisation of works and other protected matter, as well as other acts such as scanning, uploading, downloading and transient or other ephemeral acts of reproduction.

The same approach was taken by Mr Jukka Liedes in his proposed article on the right of reproduction for inclusion in the WIPO Copyright Treaty. This article was the most heavily discussed article at the WIPO Diplomatic Conference. During the conference we have seen a variety of proposed changes to this article. Although we are of the opinion that the Berne Convention provides a sufficient basis for the right of reproduction, we favoured the proposed changes by the Norwegian delegation to Article 7 (old). They proposed that:

"the temporary reproduction made for the sole purpose of making a work perceptible, or which are of a purely transient or incidental character as part of a technical process, does not as such constitute a reproduction within the meaning of Article 9(1) of the Berne Convention."

The Norwegian proposal reflects the concerns expressed by the European Commission's Legal Advisory Board in its reply to the Green Paper on Copyright and Related Rights in the Information Society.

According to the Legal Advisory Board, the application of a broad interpretation of the concept of "reproduction" to the digital environment will have far-reaching consequences. In the process of being transmitted and routed through a switched digital network, information is constantly being "stored and forwarded". The Commission's approach would imply that practically every act of transmitting a work over a network, as well as each subsequent act of downloading and screen display would qualify as countless separate acts of reproduction of the protected work. Thus, for example, sending electronic mail, browsing the Internet and viewing a digital file would become restricted acts.

We agree with the Legal Advisory Board that this broad interpretation of the reproduction right would mean carrying the copyright monopoly one step too far.

The Agreed Statement to Article 7 (old), adopted by the WIPO Diplomatic Conference, was welcomed by the European library community. It clarified something we have advocated for a long time. It has been implemented in Article 1 (4) of the WIPO Copyright Treaty. It reads as follows:

"The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form."

During 1996, the Steering Group of the European Copyright User Platform, an initiative which is co-ordinated by EBLIDA and funded by the European Commission's Library Programme (DGXIII/E-4), worked hard to define the exceptions and limitations which are based on this interpretation of Article 9 BC. The results of the discussions can be found in the ECUP Position on User Rights in Electronic Publications.

Communication to the public right
The Communication to the public right is covered in the WIPO Copyright Treaty in Article 8. It reads as follows:

"Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire and wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them."

Applying the concept of "communication to the public" to the digital environment makes it necessary to define a clear division between what constitutes a "public" and what constitutes a "private" communication. Also a clarification is necessary about what activities constitute a reproduction and what is considered a communication to the public.

Harmonisation of the limitations and exceptions
Limitations and exceptions are essential instruments in finding the necessary balance between the property rights in information and safeguarding the public interest. Rights and exceptions are intertwined; if the scope of the protection increases, exceptions must be widened accordingly.

Article 10 WIPO Copyright Treaty provides for, among other things, the possibility for limitations and exceptions to the right of reproduction and the communication to the public right. The Agreed Statement to Article 10 provides for the adoption of new limitations and exemptions other than the ones that were acceptable under the Berne Convention. Especially for the communication to the public right, new limitations and exemptions should be proposed by the European Commission.

We agree with the European Commission that some degree of harmonisation of the limitations and exceptions will be necessary. However, we would urge the European Commission to leave enough room for national regulation and interpretation which is in accordance with the individual nations' cultural policies.

EBLIDA, 25 April 1997