EBLIDA Position Paper on the Proposed New Treaties in the Copyright field under discussion at WIPO

EBLIDA functions as the umbrella association for library, information and documentation associations and all kinds of libraries throughout Europe. The organisation was founded in 1992 and has established itself as a vital link between the European institutions and library and information professionals. At the moment EBLIDA represents over 95.000 libraries throughout Europe. On behalf of the European library community EBLIDA would like to make the following contribution.

EBLIDA welcomes the opportunity to respond to the proposals contained in WIPO documents to be discussed at the forthcoming Diplomatic Conference on Certain Copyright and Neighbouring Rights questions. Our comments are confined to document CRNR/DC/4 only. Attached to our comments is the Position Paper on User Rights in Electronic Publications of the European Copyright User Platform (ECUP+) which is a Concerted Action coordinated by EBLIDA.

General Points

Without exception, we strongly support intellectual property protection. In the digital age international harmonisation of intellectual property laws is essential. However, this harmonisation should also aim at ensuring access to information and knowledge to all. Whilst recognizing the importance of finding solutions to problems that the digital technology may cause to copyright owners, the European library and information community believes that many of the proposals are premature.

The proposals concerning the Right of Reproduction and the Right of Communication have only been put forward in the last few months. The implications for the public especially, have not been given sufficient debate either in the WIPO Committee of Experts or nationally. Users' viewpoints have not been considered or discussed in depth.

Of special concern to us is that the balance between the protection of rights owners and public interest might be upset by the recent proposals. The European library and information community is deeply worried that the proposals will be threatening the freedom of access to information. We request therefore that particular attention is given to our views regarding the importance of the need for exceptions and limitations. In the information society libraries have a crucial role as gateways to the information resources on the global superhighways. Our societies are dependent on democratic access to information. It is therefore essential that there are provisions made for exceptions applicable in all countries to allow copying especially by librarians and users for certain purposes.

PROPOSED REVISION TO THE DRAFT WIPO TREATY PROPOSALS

Preamble

Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,

Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,

Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,

Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,

*Recognizing the need to balance such protection against other important values in society, such as the interests of education, scientific research, and the need of the general public for access to information,*

Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,

Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,

"Important values in society" , mentioned in note 12.9 deserve a greater and more prominent place in this treaty and is therefore included in the preamble. Authors, as creators, need to have access to works of other authors in order to understand and build upon them. If creators are hampered in some way by being denied access, whether because it is no longer available in libraries or the payment for access is prohibitive then creativity is stifled.

Article 7: Scope of the Right of Reproduction

(1) The exclusive right accorded to authors of literary and artistic works in Article 9(1) of the Berne Convention of authorizing the reproduction of their works shall include direct and indirect reproduction of their works, whether permanent or temporary, in any manner or form.

(2) Subject to the provisions of Article 9(2) of the Berne Convention, it shall be a matter for legislation in Contracting Parties to limit the right of reproduction in cases where a temporary reproduction has the sole purpose of making the work perceptible or where the reproduction is of a transient or incidental nature, provided that such reproduction takes place in the course of use of the work that is authorized by the author or permitted by law.

Alternative A: Delete the article completely

Alternative B:
Article 7(1)The exclusive right accorded to authors of literary and artistic works in Article 9 (1) of the Berne Convention of authorizing the reproduction of their works includes direct and indirect reproduction of their works in any manner or form, whether permanent or temporarily.

Article 7(2) *Without prejudice to Article 12 and* subject to the provisions of Article 9 (2), it shall be a matter for legislation in Contracting Parties to limit the right of reproduction in cases where a temporary reproduction has the sole purpose of making the work perceptible or where the reproduction is of a transient or incidental nature, provided that such *reproductions take* place in the course of use of the work that is authorized by the author or permitted by law.

Article 7 was included in the Treaty as clarification to Article 9 of the Berne Convention. The European library and information community believes that Article 7 is too premature and could, to the contrary, cause confusion. It is believed that in Article 9 of the Berne Convention the scope of the right of reproduction is already broad enough and that the new technologies and its services do not require a major revision of international copyright law at this time. It is therefore recommended to delete Article 7 completely.

Should this not be feasable, the following considerations should be taken into account:

The right of reproduction should be limited to the legal notion of reproduction, and should not be extended to the technical notion of reproduction. The right of reproduction would otherwise become a right of transmission of information. The right of reproduction should not include all types of intermediate, temporary storage. Every act of using a computer involves intermediate storage. When an e-mail message, or any copyrighted material, is sent via a digital network, it will be stored and forwarded many times before reaching its destination. The same applies for a user who browses the internet and looks at Web-pages and thus displays parts of protected works on his screen. In the analogue world, reading a book is not a restricted act, but in the digital world rights owners would be able to prohibit individual acts of usage.

The European library and information community is therefore extremely concerned by the expanded definition of the right of reproduction to include indirect reproduction (7.1) caused by incidental digitisation of a work, especially as limitations will be left in the hands of national governments.

It would appear that the limitation would still have to be authorised or allowed under national legislation. As it cannot be guaranteed that all nations will implement an exception to authorise temporary reproduction in the digital environment, there appears to be a contradiction to the purpose behind the accompanying notes 7.14 and 7.15 which attempt to justify Article 7 by reasoning that the interpretation of the right of reproduction should be "in fair and reasonable harmony all over the world". The opposite is likely to be the case.

Having to ask permission every time to disseminate or use a copyright work, or having to pay for every piece of copyright information would frustate society and permanently stifle world culture and learning. If payment is required every time a work is even accessed (e.g. viewed on a computer screen) the role of the library to be society's collectors and disseminators of knowledge will be destroyed.

There is confusion that only Article 9 (2) and not also Article 12 is referred to in Article 7 (2). The connection between Article 7 and Article 12 should be made much clearer by a cross reference.

Article 8: Right of Distribution, Alternative B

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.

(2) A Contracting Party may provide that the right provided for in paragraph (1) does not apply to distribution after the first sale or other transfer of ownership of the original or copies of works by or pursuant to authorization.

Alternative B is strongly supported by the European Library and Information Community. It is in harmonisation with EU legislation (right of exhaustion) and could be easily adopted in most national legislations of the EU Member States.

Article 10 Right of Communication

Without prejudice to the rights provided for in Articles 11(1)(ii), 11bis(1)(i), 11ter(1)(ii), 14(1)(I) 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, including the making available to the public of their works, by wire or wireless means, in such a way that members of the public may access these works from a place and at a time individually chosen by them.

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

*(2) National legislation of a Contracting Party may provide that the right provided for in paragraph (1) does not apply to the communication to a specific individual of a copy of any work after the lawful acquisition of a copy of that work by the person making the communication, provided that in the case of works in digital format, the copy in the possession of the person making the communication shall be erased or deleted substantially contemporaneously with the communication.*

In paragraph (1) "any communication" is replaced by "communications". In the attached ECUP Position Paper any lawful activities that libraries would like to undertake have been specified.

Paragraph (2) has been revised so as to provide for exhaustion of the communication right under specific circumstances, so as to preserve the ability to dispose or transfer copies lawfully acquired by electronic means.

The Contracting Parties must make clear distinction between what kind of activities are carried out in Article 7 and 10. Users of electronic material should not end up paying twice for the same activity.

Article 12: Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty only in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases which do not conflict with the normal exploitation of the work and so not unreasonably prejudice the legitimate interests of the author.

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this *Treaty* in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author, *inter alia for the interest of education, scientific research, and the need of the general public for access to information.*

The European library and information community welcomes that limitations and exceptions now apply to all rights granted to authors of literary and artistic works under this Treaty. There is nevertheless confusion that only Article 9 (2) and not also Article 12 is referred to in Article 7 (2). The connection between Article 7 and Article 12 should be made much clearer by a cross reference.

The word "only", to describe the cases in which limitations or exceptions may be provided, has been deleted from paragraph (1). The word "only" does not appear in Article 9(2) of the Berne Convention, on which this paragraph is based upon.

An important note like 12.09 should be included as part of the Article, not in the notes as an afterthought. Therefore the phrasing " inter alia for the interest of education, scientific research, and the need of the general public for information" has been included in the Article.

Article 12 (2) is not regarded as necessary at all, as the existing Berne Convention text provides already for specific limitations and exceptions in particular cases.

Article 13: Obligations concerning Technological Measures

(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.

(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).

(3) As used in this Article, "protection-defeating devise" means any device, product or component incorporated into a device or product, the primary purpose or primary effect of which is to circumvent any process, treatment, mechanism or system that prevents or inhibits any of the acts covered by the rights under this Treaty.

There are no objections to this Article as long as there is provision for being able to circumvent a protection defeating device for legitimate use. Note 13.05 states that there is a need to "avoid legislation that would impede lawful practices and the lawful use of subject matter which is in the public domain". It is not enough to confine this in a Note. There should be an additional clause which limits this right for lawful use as laid down in national legislation. Any such exceptions or limitations should be related to Article 12 Exceptions and Limitations.

Article 14: Obligations concerning Rights Management Information

(1) Contracting Parties shall make it unlawful for any person knowingly to perform any of the following acts:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution or communicate to the public, without authority, copies of works from which electronic rights management information has been removed or altered without authority.

(2) As used in this Article, "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, and any numbers or codes that represent such information, when any of these items of information are attached to a copy of a work or appear in connection with the communication of a work to the public.

There is no clear definition of "rights management information". The scope of this article and implications for the future are therefore unknown at this moment. This article is therefore premature and should not be part of the Treaty. As an example of "rights management information" could serve the information on author or title of a book. In that case libraries would not be able to serve the public with copies of parts of an article or a book.

Conclusion

The proposals (especially articles 7, 10, 12 , 13 and 14) put forward by the Chairman of the Committee of Experts are, as they stand now, not clear enough, premature, and will cause a lack of balance between the protection of owner's rights and the freedom of information. EBLIDA believes that the new technologies and its services do not require a major revision of the Berne Convention at this time. Existing international copyright law provides for a basis in which users, libraries and copyright owners continue to be well served.

Should revisions be considered at the WIPO Diplomatic Conference, EBLIDA recommends that the comments made in this Position Paper are taken into account during the discussions.

Should the proposals be considered to be too premature, EBLIDA recommends that sufficient deliberation and discussion with the users, especially the library, information and scholarly communities, is also performed on a national level, so that more balanced proposals can be provided.