Tag Archives: exceptions and limitations

Hammer Time (or not): Breaking Free from the Law of the Instrument at WIPO

When all you have is a hammer, everything looks like a nail.

This – the law of the instrument, or Maslov’s hammer – refers to a situation where someone’s actions are more determined by the tool that they have at hand than by consideration of what the best response might be.

The consequence is likely to be ill-suited solutions to problems faced, or even leaving things more broken than when they started. This can be the case at any level, from the individual to the governmental.

The response, of course, is to take the time, when facing an apparent challenge, to reflect first on which tool from a selection may be most effective.

How is this relevant to the work of the World Intellectual Property Organization?

Many of those engaged in discussions at WIPO, and in particular in its Standing Committee on Copyright and Related Rights (SCCR) spend their time focusing on creating, managing, or enforcing intellectual property rights.

When this is what you are used to, it is perhaps normal that, when you are faced with a new situation, the automatic response is to think about how you can create a new right.

Currently on the agenda of SCCR are new rights for broadcasters, theatre directors, authors (for public lending), and potentially though work on copyright in the digital environment, streaming.

This of course will make sense for anyone involved in managing rights. But are these all situations where more rights really represent the most effective way of achieving stated goals? What risk is there that they, in fact, end up doing more harm than good?


Maslov’s hammer at work: the proposed study on Public Lending Right

A first example of a drive to push new rights as a response to a challenge is the proposed study on public lending rights (PLR). This document, in summary, calls for an investigation of the benefits of PLR (disregarding potential costs), and effectively mandates work to set up a road map for rolling this out in developing countries.

IFLA of course has a strong position on PLR in developing countries, where libraries are often poorly funded, if at all, and the need to build literacy and reading culture is high. Yet at the same time, it is undeniable that many authors incomes that are barely, if at all, sufficient to support them in their work.

Therefore, before (uncritically) doing work in support of PLR, there is a case for avoiding the law of instruments, and thinking first about what tools are available, before then exploring which ones might work best.

For example, the European Union, in the Digital Single Market Directive, introduced both new provisions on fair remuneration, transparency around revenues, and the potential for rights to revert to authors after a period of time.

In Australia, The Author’s Interest has also underlined the potential of rights reversion as a way of empowering authors.

Meanwhile, the Racine Report in France set out 23 recommendations, highlighting the importance of direct and indirect support for authors, as well as social security. Importantly, it highlights imbalances in the relationship between authors on the one hand, and intermediaries and collecting societies on the other. Indeed, the report does not mention exceptions to copyright at all.

In short, this suggests that any sincere effort to address the incomes of authors – in particular in the case of developing countries where public resources are scarce – can draw on a wide variety of experiences. Simply looking at just one solution – without considering its merits in relation to others – offers a poor service to governments. And for authors themselves, the uncertain promise of PLR money may offer less of a support than more meaningful solutions to support incomes.

An open question: understanding the impact of COVID on the copyright sector

As hinted on the first day of SCCR, there is the possibility that WIPO will launch discussions on the topic of the impact of the pandemic on the copyright sector.

The question is a fair one, given the intensification of the shift to digital tools for sharing and accessing culture. There has, undoubtedly, been a huge impact on performing artists, hit by the closing of venues, as well as for bookshops.

In the meanwhile, those able to operate online have done a lot better. This includes not just streaming platforms, but also those able to sell physical goods such as books over the internet. Clearly, of course, platforms have benefitted in particular from higher numbers of users and so of data gathered.

This situation has accentuated questions about the division of revenues from such services, not least as concerns whether compensation from streaming and other uses on digital platforms is fair – the ‘value gap’. This is the same concern that underpinned the drive for Article 17 of the EU’s Directive on Copyright in the Digital Single Market.

How to address the challenges faced is a great example of an opportunity to think hard about the different tools available, rather than immediately reaching for new rights.

For example, the traditional means of addressing situations where one player is in a much stronger position in a negotiation than another is through competition law. It may also be possible to use contract law, especially in the case of individuals, which of course may also help ensure that authors receive a higher share of any revenues earned.

Fully considering these alternative options would make it easier to assess whether rights – which are likely to be best used by those with the resources to make the most of them – are the best response.


A clear case for action: cross-border exceptions

There is one situation at WIPO, however, where there is more clarity – the need for an international instrument to allow for cross-border cooperation for preservation, education and research.

Meetings held throughout 2019 explored various options for supporting these activities (see the report), but no credible alternatives to action emerged.

For example, while cross-border licensing is possible, there is no justification for obliging a user (or an institution supporting users like a library) to pay to do something across borders which they can do without compensation or permission at home.

Preservation is a perfect instance of this – a clear public interest activity for which few would argue for compensation domestically. Yet without an international instrument making clear the possibility to share works and copies – for example through preservation networks, or to allow for cloud storage of copies, there is no other solution giving legal clarity.

The same goes for core forms of access – for example to supply documents on an ad hoc basis, for text and data mining, or to support basic teaching activities. While more extensive uses may of course justify licensing solutions, minimal (or purely technical) ones do not.

Without a clear possibility to work across borders, learners, educators and researchers face uncertainty and frustration. This is an area where the other available tools have been reviewed, and the value of an international instrument is clear.


As argued in this blog, the law of the instrument provides a good analogy for an approach that sees new rights as a response to emerging challenges. While in some cases, they may be appropriate, in many cases they are not.

Indeed, the accumulation of new rights (i.e. offering someone a share of potential success, rather than simply offering those involved in the creation of a work a decent contract) causes significant challenges to those who need to clear them. While the work of collective management organisations does allow a simplification of the process, simpler still would be to seek alternatives which avoid this complexity in the first place.

In their work this week, we hope that delegates will break free of the law of the instrument, and be ready to consider the whole toolbox.

Digital Isn’t Different: Learning the Lessons of the Pandemic at SCCR

This week’s 41st meeting of the World Intellectual Property Organisation’s Standing Committee on Copyright and Related rights (SCCR) will take place in hybrid form.

With all but a few delegates attending online rather than in person, we are likely to see little in the way of concrete decision-making.

However, as the only meeting of the Committee this year, there is nonetheless the opportunity to deepen understanding of the situation that copyright law-makers – and those affected by their decision – face today. Through this, they can help lay the foundations for more normative work in future.

Crucially, as this blog suggests, the experience of the pandemic suggests that, more than ever, digital isn’t different, or at least shouldn’t be.

Analogue, but only by omission

Unfortunately, copyright laws have traditionally been designed in ways that do not take account of how digital technologies work. For example, when reading a physical book, copyright does not come into play. However, when you read it on your computer, a local copy is being made, and so copyright.

The same can go when delivering a copy of a book to someone, for example to support research or the right to participate in cultural life. Digital delivery raises many more questions under copyright than physical.

Storytimes too have raised the same concern. Reading to children aloud in a library is, in most countries, uncontroversial, accepted as a key part of promoting reading and intellectual development. However, filming a storytime for remote access implies rights of performance, and communication to the public or making available if put online. Technological measures exist to prevent the widespread sharing of works, allowing

It is by no means clear that the additional complexity associated with digital uses – especially by public interest institutions such as libraries – was intended. Rather, simply, the way in which digital technologies function was not imagined when laws were created.

And given that it can take time and effort to change these laws (and that copyright rarely wins or loses elections), they have all too often stayed the same.

The costs of inadaptation

For as long as physical access to library collection and services was possible, the costs of not adapting laws to allow for digital uses fell mainly on only the share of the population who would struggle to travel.

This of course already had a strongly discriminatory effect against people living far from major institutions, or persons with disabilities.

With the pandemic, and the obligation on libraries to shut-down physical services, whole populations have found themselves in this situation. Access to research, to storytimes, to educational materials needed to take place digitally, or not at all.

Yet copyright laws have not always permitted this, for the reasons set out above. As such, libraries have been prevented from letting their communities use works in the ways they are used to, for example to help students prepare for examples, researchers review existing knowledge, or others seek wellbeing in books.

The brightest spots have been in those countries with more flexible copyright laws, such as in the United States. Elsewhere, there has been some welcome flexibility from rightholders, but this is often uneven, and arguably the ability of libraries to carry out core functions should not depend on goodwill alone.

A bad good idea

Increasingly intensive use of digital technologies has, by bringing about situations of a lack of clarity, opened the door to new efforts to offer licences which ‘give’ the right to make uses of works, such as those set out above.

Licences of course do arguably have a place in giving original access to many digital works, as long as this is not under unduly restrictive terms. For example, a licence that imposes high costs, limited possibilities to grant access, or prevents preservation should be questioned.

However, elsewhere, just because it is possible to offer a licence, it doesn’t mean that this is necessarily the right thing to do from the perspective of maximising public benefit. In other words, in the case of many library activities, these are rights that should – arguably – be given by law, not by whoever manages licences.

For example, licensing storytimes, text and data mining, or ad hoc resource sharing can end up excluding many, leading to a much higher cost to the public interest than gain to whoever is managing the rights.


What does this mean for SCCR? Already, work in 2019 (pre-COVID), summarised in a report published last year, underlined the challenge that an inadaptation to digital technologies posed to the ability of copyright laws to achieve their goals.

COVID has only underlined the need to move towards action here, offering libraries and their users a situation that is not only clear, but also fair. An obvious solution is to promote technological neutrality in laws, ensuring that regardless of whether a use is analogue or digital, as long as it takes place under the same terms, it should be treated in the same way.

We hope that, in the case of core library functions, from preservation to the provision of access for education and research purposes, the committee will accelerate its work to provide the legal frameworks and guidance governments need to be able to bring laws into the digital age.

Libraries as Consumers: Potential for Protection?

Earlier this year, we published a blog looking at the degree to which competition law and policy could provide a useful lens for analysing the current state of markets for electronic content for libraries.

As highlighted in the blog, the prices and terms that libraries face for electronic content raise serious concerns about the sustainability of current levels of service to library users.

The blog suggested that further analysis from a competition perspective could be helpful, not so much at the level of individual companies, but rather to address wider practices that can see libraries limited in their ability to provide services.

This is the task of broader market investigations or studies, such as those carried out by the UK’s Competition and Markets Authority. Indeed, the American Library Association has made a submission to an ongoing review on digital content markets, highlighting concerns about the behaviour of platforms and publishers alike

A parallel approach can be to look at libraries as consumers, and what consumer law can offer us in terms of arguments or angles to explore.


Normally, we think about consumer law as referring to the protections in place to ensure that individuals are not mistreated by companies that sell products or services to them, benefitting from a situation of grater market power or information.

It covers issues such as rights when such products are defective, or when a consumer has been misled about what they are buying. We benefit from consumer law when we have the possibility to change our minds, or when we receive compensation when something goes wrong. This is particularly powerful when contacts for services are effectively non-negotiable.

Yet, to the extent that consumer law tries to respond to situations where the seller has the upper hand in terms of information or power, there are ideas in consumer law which can certainly seem applicable to the situation of libraries.

This imbalance, combined with the extensive copyright protections offered to rightholders, mean that libraries often face a hard choice between unfavourable terms and no access at all.

For example, a number of common law countries introduce the concept of ‘unconscionable’ contract terms (for example, Australia), referring to provisions which are not just unfair, but against the norms of society.

It could be argued, here, that if norms of society are set out in limitations and exceptions to copyright (for example, the importance of educational uses, of preservation and of criticism or quotation), then contract terms that override these, building on an imbalance in negotiating power between rightholders and consumers, are indeed questionable.

Outside of the common law world, in the European Union, there have also been efforts to address the question of unfair terms, with a 1993 Directive already setting out that a contract cannot be considered fair when the supplier is allowed unilaterally to change the content of the product or service offered.

In this case, we can perhaps point to the evidence of eBooks and other materials disappearing from bundles to which libraries subscribe. This was studied in depth in 2015, but stories continue to circulate underlining that it may continue to be a problem.


Clearly, as mentioned above, consumer law is primarily focused on individuals. As such, it can appear to be a bit of a jump to consider a library – as an institution – as a consumer.

Libraries themselves are in an odd position – they are not reselling anything, although clearly are giving users access, placing them somewhere between the situation of a business and that of an individual consumer.

The law in some countries does make clear that only individual people can count as consumers, given that anyone operating in a professional capacity can be seen as better able to defend their rights.

However, not all countries operate such an approach, with some extending consumer protections to cover small businesses, for example the Netherlands and Belgium. The same has also happened in Australia and New Zealand (for businesses with a turnover of up to $250 000).

These countries have recognised that an imbalance in negotiating power or information can affect an organisation just as much as individuals. The specific nature of libraries as neither businesses nor individuals makes this approach particularly interesting.

For example, the Belgian law makes it clear that small businesses can also raise doubts about contracts which allow sellers to change the characteristics of what they are selling unilaterally (recalling the situation of missing eBooks and journals).

The Australian law, also, allows for such unilateral changes to be counted as unfair, at least when the buyer is locked into the contract (a situation which may, de facto, be the case for a library acquiring content in order to serve students and faculty).


This blog, in looking at themes that emerge in consumer law, complements previous posts exploring the insights that competition law offers into the way markets for libraires do – or do not – function.

The previous post highlighted the issue that refusals to sell or licence (in particular where these seem designed to encourage the buying of big deal packages) create. It also noted concerns that libraries’ limited margin for manoeuvre faced with expectations from users and faculty put them in a weaker position, and left them susceptible to needing to pay more.

This post adds to this the risks around contract terms which prevent the fulfilment of recognised public interest goals (especially in the case of non-negotiable contracts), and around unilateral changes in packages offered.

There is certainly scope for looking further, from both the competition and consumer policy angles, in order to understand better the challenge facing libraries in a digital marketplace. Comments and links to further materials on the subject are welcome in the comments box below.

Decisions, Decisions: The Options Ahead at the Next WIPO SCCR

Next week, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet, virtually, for the first time in over a year.

This is an opportunity not only to take stock of work to date on the exceptions and limitations agenda, but also to consider the implications of the COVID-19 on the issues under discussion.

It is also a time of renewal, with a new Director General, and chair of the Committee, creating possibilities to think again about the role that the Committee can play.

The below sets out six roles that the Committee could take on. The choice of which – if any – will be down to Member States.

For further background about the work of SCCR, please see the pages on the IFLA website.


The First Responder: it is clearly arguably a little late to be talking about a first response to the pandemic, but it seems likely that the virus – and so measures to stop or slow its spread – will be with us for some time. With it comes the potential for SCCR to make clear that extraordinary times may require extraordinary measures, or at least that it is legitimate to interpret existing rules in a way that allows for education, research and access to culture continue at difficult times.


The Guiding Light: a permanent problem in the current copyright system is that under international law, exceptions and limitations other than a couple of very specific examples are optional. As such, governments  can face uncertainty when passing laws in order to support education, research and access to culture. WIPO can play a valuable role here by making clear what is allowed, and so excluding the risk of challenge by different actors. For example, model provisions on key issues can offer helpful guidance.


The Teacher: WIPO clearly also has an important role in supporting reflection about copyright and its interrelation with other policy areas around the world. While there are certainly a lot of strong opinions around copyright, we can gain a lot from looking past the hyperbole, and building up a stronger idea of the evidence on the ground. The evidence around COVID-19 is of course still coming in, but one way in which WIPO could provide a helpful service is by developing a clearer picture of how copyright frameworks – changed or unchanged – have fared during the pandemic.


The Leader: SCCR also has a unique position as a global forum for tackling questions around copyright. Through the Marrakesh Treaty, it has shown its potential to take concrete action at the global level, enabling cooperation across borders, and promoting national reforms in an area of clear public interest. Arguably, while SCCR can just be a discussion space, its potential to lead in changing laws in areas of market failure cannot now be denied. Recent work has underlined consensus around issues such as preservation, digital readiness, and work across borders. In particular with COP26 next year, work on preservation could make an important contribution to efforts to safeguard heritage threatened by extreme weather.


The Hedgehog: there are, however, also less positive paths that SCCR could choose to take. The first of these is to roll up, or even to hibernate, until the COVID-19 pandemic is over. While hibernation can be a safe way of passing a winter, it also risks meaning that the Committee is seen as missing in action at a time when there are calls to do something, or being seen as less relevant. While it is true that there is little point in taking action for the sake of taking action, there is sufficient evidence of challenges around copyright during the pandemic to mean that claiming that there is no need to do anything risks looking like denialism.


The Dodgy Car Salesman: worse, arguably, than doing nothing would be to move things backwards by trying to make activities of libraries which have previously taken place without barriers subject to new restrictions. Discussions about exceptions and limitations have, unfortunately, often seen efforts to present licensing as the solution, despite this having long been rejected for uses in the physical world. In effect, like the stereotypical dubious car salesman, there is a risk that the customer ends up with a product that they neither want nor need.

Core Public Service, Corporate Social Responsibility? Supporting Libraries, Now and in the Future

Libraries and their users around the world are facing complexity and uncertainty, both in maintaining operations today, and in their future planning.

Clearly a main area of concern is how to reopen and resume services safely for users and staff, given that our understanding of COVID-19 is still developing. Library associations and authorities are working hard to collect and present the latest evidence in order to inform their members.

Two further areas of doubt are around funding, and legal guarantees for library activities and values. With some libraries already having to furlough or lose staff, and a strong likelihood of cuts in future, there will almost certainly be the need to engage in discussions about how – and how much – library services are paid for.

Meanwhile, with the pandemic forcing libraries alongside many others to switch to digital service provision, the legal basis on which libraries can provide access to information, education, research and culture online has become a major topic.

In both cases, there is an underlying question – to what extent is it advisable for libraries to rely on choices made by private actors – companies, philanthropists, others – in order to carry out their work?

This blog looks at the issues.


Complement, don’t Compete: Funding

The most obvious area where the balance between the public and private comes up is in funding. The Public Library Manifesto makes it clear that this should come from local and national governments.

This reflects the point made in the Manifesto that public libraries are there to deliver on a range of public interest goals. Yet the same goes for other types of library – national libraries which safeguard the historical record, academic libraries that enable research, school libraries that support literacy and education and as well as many special libraries.

Part of this is down to the sense that public funding should – ordinarily – be more stable. It is rare – although not unknown – for governments to ‘fail’. It is also the case that when there is a proposal to amend library funding, this should be subject to due process, with opportunities for review and influence.

The focus on public funding is also, arguably, linked to the mandate of many libraries to serve all members of the community without discrimination, just as other public services are expected to do.

In contrast, private actors can face situations that would force them to stop providing support, or simply can change their minds without such strong obligations to explain themselves. Especially when services are offered on a market basis, they can also often be little direct incentive to serve the poorest and most vulnerable.

This is clearly not to exclude the possibility of private funding. Libraries globally have benefitted from engagement with the private sector in order to invest in capital – both buildings and equipment, where local laws allow for this.

Partnerships can enable the provision of new services, either through corporate social responsibility, or an understanding that investing now – for example by offering internet connectivity or coding classes – can build demand later on. Sometimes, even, private funding allows for pilot projects which are then taken over and scaled up with public funding when they show their worth.

This is welcome, and we can be grateful to library benefactors for all they do. What is clear, however, is that this support should be additional. It should complement existing public (or institutional, in the case of academic libraries for example) funding, rather than replacing it, in order to ensure that libraries retain their universal, public service focus.


Guarantees, not just Goodwill: Laws

The second area where the relationship between the public and private comes up is in law, and in particular, how much legal certainty libraries and their users have in what they do.

A key function of the law is to step in when there is a risk that, otherwise, people’s rights may not be respected. This can happen when one actor is stronger than another – because they are bigger, richer, have more information, or indeed have been granted monopoly powers by other laws.

Key laws for libraries include copyright and privacy. In the case of copyright, most countries – and indeed international law – recognise that there is a need to guarantee the possibility to carry out certain activities – such as quotation, preservation or education – as exceptions to the monopoly rights offered to rightholders.

Yet due to the concept of freedom of contract – i.e. that the terms of contracts override what may exist elsewhere in the law – these exceptions frequently do not apply in the case of digital content (usually acquired or accessed under a contract (or licence)). While some countries – including those in the European Union – have moved to limit the possibility for contracts to override exceptions, his is far from universal.

The impact of this has been clear during the COVID-19 Pandemic, with contract terms limiting the possibility for libraries to give remote access to works that could have been accessed on-site.

While there have been welcome initiatives from many publishers and rightholders to provide access, it seems contrary to the objective of exceptions in the first place to need to rely on goodwill, rather than legal guarantees in order to be able to support, education, research and access to culture. At least ensuring that the law offers a back-stop, where voluntary action is not taken, seems necessary.

Privacy too is a major concern. With many services collecting data from users – either in place of, or in addition to, fees – there is a particular need for effective laws that protect against unauthorised and/or unethical retention and use.

With a much greater share of teaching, research and simple communication needing to take place online currently – in particular outside of campus networks – the risks of tracking usage and behaviours, as well as vulnerability to cybercrime, grow.

There is therefore a pressing need for companies to be held to high standards, with the law providing a guarantee for privacy. It should not be the case that users need to rely on the goodwill of private actors not to gather private data without full and meaningful consent.


Attitudes towards reliance on private funding and goodwill to support libraries will vary from culture to culture, and depend very much on the prevalent political philosophy.

Nonetheless, as highlighted at least the Public Library Manifesto, there should not be any question of excluding public funding. As a result, it is more a case of finding the right balance.

The COVID-19 pandemic – and its aftermath – is likely to force reflection on this balance. It will be important to ensure that we can make the case a situation where libraries can offer a stable, public-focused universal service, and can rely on the law in order to fulfil their missions.

Remedies, Removals and Rights: (Lack of) Conclusions So Far from the EU Stakeholder Dialogue on Upload Filters

The third day of Copyright Week 2020 is focusing on the topic of remedies – the compensation that those found guilty of infringement are expected to pay to ‘make things right’. In the United States, for example, these can be very high, with the intention of having a dissuasive effect, although often final sums are the result of out-of-court settlements.

However in Europe, through the Copyright Directive, the goal appears to be to prevent copyright-infringing content being made available in the first place, and permanently remove it from circulation, at least through internet platforms. This is the logic behind Article 17, which looks to increase pressure on platforms (primarily YouTube) to do more to stop videos which contain copyrighted content getting online.

The Article contains various flaws, not least the fact that despite the original goal being to strengthen the position of rightholders in their negotiations with YouTube, it covers all types of work, and all but the smallest and newest platforms. It also includes a fundamental contradiction between the obligation to make, ‘in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter’ (Article 17(4)(b)) – almost universally assumed to mean the use of filters of uploads, and the prohibition of ‘general monitoring obligations’ (Article 17(8)). Added to this are the demands in Articles 17(7) and 17(9) to protect uses under exceptions and limitations.

In order to try to resolve some of these issues, Article 17(10) of the Directive calls for a stakeholder dialogue in order to provide guidance on these issues. Five meetings in, it remains hard to see what sort of document will emerge. If nothing else, this can hopefully serve to underline the need to resist any similar legislation elsewhere.

The below sets out a number of key points so far, based on IFLA’s engagement in the discussions alongside partner organisations such as Communia:

There’s a difference between detecting content and detecting infringement: the dialogue has heard a number of presentations from companies selling software which aims to detect copyrighted as it is uploaded to internet platforms.

While the strong variation in the claims made (from being able to detect a film in a fraction of a second to needing a somewhat longer, for example), it has been consistently clear that such tools cannot determine whether an exception of limitation to copyright is at work

Therefore, while some involved in the dialogues have sought, effectively but wrongly, to deny the existence of exceptions and limitations, it seems clear that for a determination to be made between whether  use of a work is infringing or not, filters are not enough – human moderation is needed.

There’s no consensus about how much of an answer can collective management provide: one of the options for internet platforms presented in the Directive is to obtain licences for uploaded content. Clearly, when it is working well, collective management has the potential to provide at least a partial answer that would make it easier for platforms to clear at least some rights, when needed.

At the same time, representatives of many rightholders underlined their discomfort with an excessive focus on collective licensing as solution. In many countries, collecting societies do not cover every sector or type of right, and there may be questions about governance and representativeness, especially given the diversity of content uploaded onto platforms. There can be major differences between sectors, and types of right, in attitudes.

Finally, there was strong doubt expressed – including by the Finnish government representative – that extended collective licencing could work across borders.

There is a lack of data about what is really going on: the Directive underlines the need for transparency about the operation of platforms in order to inform the Dialogue.

As a result, there have been calls for figures to be shared on the volumes of works uploaded that contain copyrighted content, what share are then determined to be infringing, what share is then taken down or monetised, and how often take-downs or decisions to monetise are challenged, successfully or otherwise. However, this information is rarely if ever forthcoming, meaning that it can be difficult to understand the scale of the challenge faced.

Size matters: a point that has repeatedly emerged during the discussions is the difference between bigger and smaller players, be they creators, platforms or uploaders. For creators, there is a fair amount of evidence that exposure is essential for newer entrants as a means of building a following. However, established creators understandably do not want to lose revenues.

For platforms, the larger ones are generally able to pay for – or create – their own tools (including armies of content moderators) for trying to determine infringements. For smaller ones, it remains unclear if meaningful technologies are available at an affordable price.

Finally, for uploaders, broadcasters underlined concern about their own content – for which a priori they have cleared all rights – being blocked. This raises questions about whether some uploaders might enjoy privileges, something that could provide controversial amongst others.

There is a risk of abuse: A telling intervention from Facebook in the 4th meeting underlined their concerns about mistaken claims of copyright, and the degree to which they only make filtering tools available for use by rightholders who could trusted to use them fairly. It has also become clear that filtering companies themselves do not verify the legitimacy of copyright claims before providing the tools to enforce them.

Clearly this is a difficult area, as there are different ways of demonstrating ownership of copyright from one sector to another. As some rightholders underlined, this can slow down assessments, and so cause harm. At the same time, without any effort to show ownership, the system is wide open to abuse.

There is a need to remind everyone what’s at stake: finally, but importantly, a key issue remaining to be discussed is how to ensure that whatever system is chosen must protect fundamental rights, including those protected through exceptions and limitations such as those for quotation, criticism, satire, parody, and pastiche.

The risk, in a situation where there is no firm guidance, but rather decisions are left up to national authorities and courts, is that this aspect is forgotten among all the efforts to tailor rules to the specific situation for the sector, type of rights and country involved.

A key task for libraries and others, both in the discussions in Brussels and in national implementation, will be to ensure that this is not the case.

Fail! How Copyright Risks Creating Market Failures, and How Exceptions Can Correct Them

At the end of a recent WIPO meeting, a suggestion was made that the Marrakesh Treaty – which removes the need to seek permission in order to make or share accessible format copies of books – was a response to a market failure.

Market failures happen when the impacts of a decision (to do something or not) are not fully taken into account by the person making it. These impacts are known as ‘externalities’.

Examples include pollution (which mainly affects people other than the ones responsible), or street lighting (which benefits everyone who passes by, regardless of whether they have paid taxes for it). These are ‘negative’ and ‘positive’ externalities respectively.

When there are externalities, a producer will make more, or less, of something than is optimal for society as a whole.

Talking about the Marrakesh Treaty as a market failure raises some interesting questions about the way copyright works.

All forms of intellectual property are, arguably, a response to another market failure. Traditionally, in the case of copyright, if an author and publisher have invested money in order to produce a book, but then anyone can copy and sell it for less, there is an externality.

The original author is not able to benefit from all of the positives associated with the book, and so may not produce again.

Copyright – under the ‘orthodox’ model of revenue generation that dominates today – helps correct this by giving exclusive rights to the author or their publisher.

However, as in the case of the Marrakesh Treaty, it is clear that the rights given by copyright can create their own problems. In effect, by leaving almost all decisions about who can do what, with what, in the hands of the rightholder, it places them in the same position as the producer mentioned above.

While Marrakesh did deal with a specific population – albeit one numbering into the hundreds of millions around the world – this is not to say that market failures do not exist elsewhere. This blog looks at four areas where they may appear and affect the work of libraries, and underlines how exceptions to copyright can offer a response.


Market Failures Linked to Types of User

This was very much the case with the Marrakesh Treaty, where the limited buying power of people with print disabilities in many parts of the world made them less interesting as a market.

This is not because there was not a value to people with print disabilities from gaining access. Indeed, for them, the possibility to read and enjoy works can lead not only to greater well-being, but also to new opportunities.

The same can be said for children and young families for example. Children can have a huge appetite for books, and most parents are unable to pay for all of the books they will read.

Publishers, however, cannot lower prices for individuals or groups without this threatening their profitability. We risk a situation of many children being left with only limited access to books – including arguably those who need it most.

The possibility to borrow books from the library not only ensures demand is met today, without costing sales, but also helps build the book consumers of the future.


Market Failures Linked to Types of Material

A second failure is linked to types of material. Many of the works held by libraries are ‘orphan’ – i.e. the author is either not known, or not traceable.

This is a common phenomenon, given the very long duration of copyright, as well as the fact that copyright also applies to works which were never made for commercial purposes (and so where fewer records have been kept).

The problem comes from the fact that by default, copyright locks these works away, as the (unknown) author is assumed not to have agreed to their work being used.

The consequence is that this leaves large parts of library collections locked away, despite a low risk of objections to their being shared online (indeed, many people who do come back are happy about it), and lost potential value for researchers and historians.


Market Failures Linked to Type of Use

A third category of market failure is linked to the type of use that is planned. This is an issue because copyright not only governs who can sell books and other works, but also what can be done with them afterwards.

There are arguably certain activities – quotation, basic educational uses, preservation – which are of clear public benefit. However, the last two of these are, by default, also left in the hands of rightholders.

To take the example of preservation, the benefits of this may only be felt in many years to come, or if something deeply uncertain, such as a disaster, strikes.

Yet this is not something that can easily be translated into money, or something that the rightholder taking the decision will necessarily take into account. Indeed, they may logically focus more on the idea of a lost sale (however unlikely this is), or the risk of hacking or loss. Again, by default, preservation is not permitted.

In effect, if the right to preserve works effectively is not covered in law, there is a real risk of books and other works being lost.


Market Failures Linked to Lack of Coordination

The examples of given up to here have been more focused on the decisions taken by rightholders, and represent market failures. But there are also failures associated with policy-making around copyright.

This is because when policies are decided – and in particular, when copyright exceptions are designed – the focus is on domestic interests. There is little if any consideration of how the choices make will affect researchers, teachers and libraries working across borders.

It seems unlikely that anyone would want to prevent libraries from working together across borders in order to carry out preservation, or to share works in a fair and regulated way. These activities are just too easily forgotten.

If these interests were taken into account, there would be a far stronger argument for convergence in copyright exceptions in order to support research, heritage and learning.


As highlighted in the recent WIPO meeting, the Marrakesh Treaty is a response to a market failure – one that ensures that the wider interests of society can be promoted within the context of the copyright system. It is a means of dealing with a problem created by the way copyright works, with exclusive rights by default, and little consideration for cross-border working.

These failures are not the fault of rightholders either, who are acting rationally in the circumstances. They have a duty to maximise revenues in order to support themselves or their authors (and shareholders as appropriate), and are not being deliberately unhelpful.

Such failures can be addressed through exceptions to copyright. It is time to do so, both at the national and global level.