IFLA and International Copyright Reform

RB 59, August 2012

Stuart Hamilton

Copyright is no longer a branch of the legal system debated only by lawyers and specialists. The continuing growth of the Internet worldwide has brought copyright into mainstream consciousness through media attention on file-sharing and the consumption of digital goods. The perceived danger to the entertainment and media industries caused by illegal sharing has recently led to a number of national and international legislative and trade initiatives in the area of copyright such as the Stop Online Piracy Act (SOPA), the protect Intellectual Property Act (PIPA) in the United States, the Digital Economy Act (DEA) in the United Kingdom, the Trans-Pacific Partnership Agreement (TPPA) in the Asia-Pacific region and the Anti-counterfeiting Trade Agreement (ACTA) at an international level. Throughout 2012 protests by Internet users and technology companies against SOPA, PIPA, ACTA and other initiatives have focused on the perceived pro-rightsholder bias in these agreements at the expense of flexibility and innovation, and the resulting press coverage has pushed copyright into the public gaze in a way not seen before. When digital information transfer is an issue that Internet users deal with every day it is no surprise that there is an emerging discussion in broader society about the motivations that support national and international legal copyright frameworks. At the same time there is also an increasing awareness that providers of public access to the Internet such as libraries can find themselves adversely affected by legislation that places liability on intermediaries.

As the global voice of the international library community with members in over 150 countries, the International Federation of Library Associations and Institutions (IFLA) is currently leading work on a number of issues relating to access to digital information resources. In particular, IFLA is working with its members and partners to ensure that international copyright frameworks support and benefit library users – something which is increasingly important as libraries shift from print materials to digital.

Balanced Copyright and Equitable Access to Information

Copyright, as put forward in the Berne Declaration, the World Copyright Treaty and the TRIPS agreement, exists to balance the rights of authors with the general public interest, including the support of education, research and access to information. The idea is that for every time-limited monopoly granted to exploit a creative work, there exist a number of mechanisms to ensure that the same work can also be used by those seeking to further learning – both today and in the future. These mechanisms are known as limitations and exceptions to copyright, and historically they have enabled libraries to undertake activities such as preservation, lending to users, inter-library loan, or copying for research and private purposes. Furthermore, by placing a time limit on copyright, international copyright frameworks all eventually feed the public domain – where the permission of third parties is not needed for an individual to take any work and build upon it.

Through this balance copyright can embody long-standing public policy goals of both rewarding creators and contributing to the education and creativity of individuals. However, when seen from the perspective of the general public interest, recent developments in international copyright lack balance. Extensions in the length of the term of protection, up from life of the author plus fifty years to life plus 70 years, have slowed the supply of works into the public domain. A continuing focus on increasing enforcement measures, without any reciprocal work on exceptions, seems to favour copyright holders at the expense of the public.

One reason for this situation is the shift from print materials to digital materials. The WIPO Copyright Treaty and the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement both attempted to update copyright for the digital age, but they did so in quite restrictive ways. For example, technical protection measures (TPMs), are now often used to prevent illegal uses of copyrighted works by users. One unforeseen consequence of this is that libraries are unable to carry out many of their traditional functions, such as preservation, unless they are allowed to circumvent TPMs to do so. Currently, only 26 countries around the world have a copyright exception that allows libraries to do this, and the net result that TPMs are an effective on/off switch that leave no space for copyright exceptions – and national policies created for the public benefit – to operate in.

The shift to digital is also changing the meaning of our relationship with ownership – for example, when digital goods such as MP3s or eBooks are purchased, libraries no longer own them in the commonly understood sense of the word. In reality, they are licensed from a supplier, and libraries do this by agreeing to a contract. Contracts have no obligation to conform to copyright law and this is extremely important when considering international copyright frameworks in the digital age – how valuable is an international framework if it can be overridden in an instant by a contract?

WIPO and Geneva

Exceptions for circumventing TPMs, along with others for preserving materials, copying materials for research or study, document supply, or inter-library loan, were discussed in a 2008 WIPO-commissioned study that found that the provision of library exceptions varies greatly around the world[1]. Based on this, and on extensive consultation with IFLA members in 2005 and 2009, IFLA therefore holds the position that the current system is not fit for the digital age[2]. At the WIPO Standing Committee on Copyright and Related Rights (SCCR) IFLA is working with WIPO Member States to gain support for a binding international instrument on copyright limitations and exceptions to enable libraries to preserve their collections, support education and research, and lend materials. Such an instrument would be a basic foundation for all countries, setting out a framework for national copyright laws that is flexible and consistent with existing international law. To demonstrate the change that is needed, and to support the SCCR’s text-based work, IFLA and other library groups have produced a treaty proposal (known as ‘TLIB’) to guide WIPO’s Member States in updating limitations and exceptions for libraries worldwide[3].

Getting the issue on WIPO’s agenda has been a long process. Thanks to IFLA and its partners’ prolonged engagement at WIPO since 2003, limitations and exceptions for libraries and archives were included in an 18 month workplan detailed by the 21^st meeting of the SCCR in November 2010[4]. The workplan set out that three additional working days dedicated libraries and archives would be added to the 23^rd SCCR in November 2011. This meeting was a successful one for libraries thanks to extensive preparation by the CLM Committee and IFLA’s members, particularly national associations. A very large library delegation took part in the meeting in Geneva which resulted in the drafting of a provisional document outlining 11 distinct cluster topics of limitations and exceptions for libraries and archives. All of the text that IFLA had suggested through its TLIB drafts was proposed in the document by Member States including countries from the African Group, Brazil, Uruguay, and Ecuador.

Member States were given until the end of February 2012 to submit written comments to the paper. There is always substantial work to be done in between SCCR meetings, and in response to the outcome of the SCCR 23, CLM Committee members updated TLIB to include new articles on translation and legal deposit, as well as a revised article on lending. New supporting documentation, in the form of a ‘cheat sheet’ for every cluster topic, was also produced and distributed to friendly Member State delegations, while national library associations continued to advocate to copyright officials in their own countries. IFLA partnered with other NGOs to hold an event on copyright at the European Parliament library in May and a question on the library work at WIPO was put to the European Commission[5]. The answer received was minimal, but it did provide a platform to build on as IFLA continues to try to influence EU Member States[6].

A substantial library delegation attended SCCR 24 in Geneva in July 2012. The SCCR adopted the compilation document on libraries and archives that came out of SCCR 23, and this will now constitute the basis for the future text-based work on the matter to be undertaken by the Committee in its 25th session. The Committee also agreed to recommend to the WIPO General Assembly that the SCCR continue discussion to work towards an appropriate international legal instrument or instruments (whether model law, joint recommendation, treaty and/or other forms), with the target to submit recommendations on limitations and exceptions for libraries and archives to the General Assembly by the SCCR/28 session. SCCR 28 is likely to take place in June 2014 – which means that there is still plenty of work for IFLA to do to make an international treaty a reality.

Multilateral Trade Agreements

Libraries are explicitly connected to the types of national and international copyright systems that are discussed and governed at WIPO. Yet even when advocating for more flexible frameworks, the IFLA representatives at WIPO understand that copyright must provide for a fair and profitable balance between the needs of information users and society at large and the commercial imperatives of creators and content providers. This is why IFLA and the international library community have recently been troubled by the emergence of non-transparent intellectual property negotiations taking place outside of WIPO and World Trade Organisation (WTO). These negotiations focus solely on copyright protection and enforcement, neglecting essential limitations and exceptions to copyright.

The Anti-counterfeiting Trade Agreement (ACTA) is the best known of these negotiations, although the Trans-Pacific Partnership Agreement (TPPA) has a rising profile. ACTA has recently been rejected by the European Parliament and appears to be somewhat finished as a trade agreement with an international reach. Nevertheless, it is informative to examine the problems surrounding it as some of them are being repeated in the ongoing TPPA negotiations.

Fundamentally, while efforts to combat commercial systematic counterfeiting are to be commended, IFLA was concerned that because ACTA focused so intensively on copyright enforcement, it would pose a threat to the balance of copyright in the international arena. From the beginning the negotiations were cloaked in secrecy and the lack of transparency throughout the drafting of the agreement developed mistrust amongst many interested parties who were not consulted at any stage in the Agreement’s genesis. There seemed to be no telling whether or not libraries would be affected by clauses on secondary liability, or if any flexibility for public access providers would be built into the agreement. The FAIFE Committee had previously expressed concern to the European Commission about the secondary liability aspects of the UK’s Digital Economy Act, and the potential obligation on libraries to monitor users’ information-seeking behaviour to prevent copyright infringement. The uncertainty about ACTA’s contents therefore meant that IFLA’s first statement on it in March 2010 made it clear that the best forum for any discussions would be WIPO where it would be possible to ensure the participation of a wide range of stakeholders[7].

IFLA delivered a video submission to a stakeholder meeting at the European Parliament in April 2011[8], followed by a joint statement with the European Bureau of Library, Information and Documentation Associations (EBLIDA) in July 2012[9]. This final statement urged MEPs to reject ACTA in a decisive vote on its ratification, which it did in plenary on the 4^th July 2012.

At the same time as ACTA was dying in Europe, IFLA noted with concern the emergence of similar negotiations on international IP standards in the form of the Trans-Pacific Partnership Agreement (TPPA), by countries in the Asia-Pacific region. The TPPA is a multilateral trade agreement between Australia, Brunei Darussalam, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States, covering all aspects of commercial relations between the countries. The TPPA includes an extensive intellectual property chapter.

As was the case during negotiations of ACTA, negotiating texts for the TPPA and countries‘ positions have been withheld from the public. The first leak of a draft text proposed by the United States for the IP chapter did not reflect the balance necessary to protect the public domain and the ways in which society may access and use content. IFLA, along with library associations in the United States, Canada, Australia, New Zealand, Chile, Peru and Vietnam issued a statement in July 2012 expressing concern[10]. One month later a second leaked draft did mention limitations and exceptions but also contained a problematic introduction of the ‘three-step test’ into their implementation. Such a measure is not found in the Berne or TRIPS agreements.

IFLA and its partners are concerned that agreements like ACTA and the TPPA erode the fundamental balance in copyright law and do not seriously consider and protect the interest of the broader community in having equitable access to knowledge and cultural expression. Library associations and their members must stand up for balanced copyright in their own countries, and communicate the benefits of flexible systems that protect the public’s right to access information to policymakers. The issues surrounding international copyright law and policy development must be discussed in an open and transparent forum, such as WIPO, to ensure fair representation of the views of civil society groups, developing countries, members of legislative bodies and the public at large. It is crucial that IFLA’s work at WIPO succeeds if there is to be a fit-for purpose copyright framework for libraries and their users in the digital age.

Full details of IFLA’s WIPO, along with supporting materials and information on how to get involved, can be found at: http://www.ifla.org/en/copyright-tlib