Thoughts after the FEBAB webinar: IFLA’s work at WIPO and current perspectives in the European copyright reform

[Spanish version available here]

A few days ago, I took part in a webinar organised by the copyright and open access committee of FEBAB, the Brazilian Federation of Library Associations. It was the first of four webinars that seek to inform the library field about copyright in Brazil and at the international level. It was moderated by Sueli Mara Ferreira, from the University of Sao Paulo, and was co-hosted by Anderson de Santana and Walter Couto, from the same institution.

My presentation focused on IFLA’s advocacy work at the World Intellectual Property Organisation (WIPO) and on the European copyright reform. WIPO is a United Nations specialised agency in charge of patents, trademarks, copyright and other related matters. Since several years, IFLA has been represented in this institution’s copyright committee, the Standing Committee on Copyright and Related Rights (SCCR), a forum in which IFLA defends the need to advance towards an international instrument that guarantees exceptions and limitations to copyright suited to the functioning of libraries, archives and museums.

I am not entirely sure of whether the webinar was helpful to participants (although hopefully it was!) but it certainly was to me. There were many interesting questions that referred to key challenges for the library profession around copyright. These questions show the struggle that librarians face when dealing with outdated copyright laws in their work. And by outdated I do not only mean that they are not adapted to the digital world: in some cases, they simply do not allow for fundamental activities such as preservation or lending. While some countries have exceptions and limitations to copyright that expressly allow some public interest activities, copyright in Brazil, for instance, has no exception at all.

This puts librarians in a very difficult position, having to constantly worry about copyright law infringement. Also, even if librarians are careful in guiding the user in how to use works, they cannot control all their actions. With no guarantee, librarians are worried that they might be considered guilty of infringements by users, especially under a legislative framework where any use, even when it is part of public interest activities, can be considered an infringement.

Progress at WIPO gives hope to the sector in countries in which the necessary change has not taken place. The Marrakesh Treaty and its numerous ratifications and accessions by United Nations member states is a very good example of the impact of an international instrument. Changes are happening at the national level that wouldn’t otherwise have taken place.

Two particular questions raised at the webinar are worth exploring in this blog:

  1. The Bern convention establishes the principle of “national treatment”, according to which countries need to apply its own legislation to third party nationals. This may make librarians’ work difficult, as they need to figure out what copyright laws say elsewhere when working across borders. Would it be possible to adopt something similar to the Marrakesh Treaty regarding other exceptions and limitations that can facilitate cross-border work?

IFLA has been advocating for the need of an international instrument, precisely to face the difficulty in applying copyright law across borders where no minimum standards exist. This would also encourage legislative change at the national level.

However, several WIPO member states oppose such an instrument (mainly the European Union, which is surprising given the fact that it already has exceptions and limitations to copyright for cultural heritage institutions and that it is now adopting them to the digital world).

Given the lack of consensus, the SCCR has defined an action plan to advance discussions on the topic, which among other things, establishes several regional meetings, a brainstorming exercise, and finalizes with an international conference whose goal is “to consider the opportunities and challenges provided by various international solutions including soft law, contractual/licensing and normative approaches, as appropriate”.

  1. In the history of copyright, there have been cases in which libraries challenge legislation and assume risks in order to do their work. An example is at the origin of the creation of Section 108 in US legislation, which was created after a legal dispute among a publishing house and a library. What is IFLA’s position regarding libraries wishing to take risks to do their jobs even with no adequate legal guarantees?

IFLA has no official position on that matter, which is clearly a delicate situation. However, IFLA recently adopted a Statement on Copyright Education and Copyright Literacy. The document insists on the need for librarians to have a minimum knowledge of copyright and also makes a series of recommendations. While it does not solve the question, it recognises that the lack of an adequate legal framework in this area can be very problematic. It also encourages more knowledge as a first step for the library field in order to understand the need for change in copyright law, and to advocate for it.

Librarians make efforts to ensure that copyright law is respected, but in some occasions the legal framework is so far away from their public interest mission that they are put in difficult situations. There is clearly an urgent need for change in copyright legislation.

For more information, check the full webinar (in Spanish and Portuguese) on FEBAB’s webpage.