Tag Archives: Fair use

Copyright Week: Fair Use protection in recent US Supreme Court cases

This week is the Electronic Frontier Foundation (EFF)’s Copyright Week. Watch IFLA’s Policy and Advocacy blog for posts on the rights libraries and their users have under copyright right law. Recently we shared a post on Monday’s theme, the Public Domain. Today: Fair Use.

Fair use triumphs over proprietarianism. Consumers benefit from competition and advances in technology – as affirmed and supported by two recent Supreme Court cases from 2021.

In a 6-2 decision the U.S. Supreme Court rendered a significant confirmation that fair use is a friend of innovation, interoperability and good old-fashioned American creativity and ingenuity. While the decision in Oracle America, Inc. v. Google LLC, 141 S.Ct. 1183 (2021), disappointed some commentators and practitioners as it assumed “for argument’s sake” that Oracle’s Java SE Program was copyrightable; leaving no further guidance on the boundaries copyright protection for works of function such as a computer program, it was a victory for the continued application of fair use in the technology sector.

The decision follows other fair use and computer program decisions from the appellate courts such as Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000), cert. denied 531 U.S. 871, that held reverse engineering requiring reproduction of the protected as well as unprotected elements of Sony’s gaming platform (PlayStation) a fair use. Connectix wanted to develop a platform that would allow users to play Sony games on a Macintosh. As the Ninth Circuit stated “because the Virtual Game Station is transformative and does not merely supplant the PlayStation console… Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly.” Id. at 607.  The Sony decision followed the logic of a previous case involving another gaming giant, Sega Enterprise Ltd. and its Genesis console, Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992).  There the disassembly of the program that included reproducing protected as well as unprotected elements so that Accolade, Inc. could write its own code and create games that would be playable on Sony’s console was also deemed a fair use.

In the Oracle case the stakes were higher than the video game market, rather the development of an alternative cell phone platform.   Like Accolade, Google wrote millions lines of new code, while it reproduced and incorporated 11,500 lines of code from the Sun Java SE Program.  The Java code consisted of 2.86 lines of which 11,500 represented about 0.4%.  Oracle claimed infringement. Google claimed fair use. The Court reiterated the purpose of U.S. copyright is to help society unleash its creative potential.  That purpose is balanced against the exclusive rights the copyright law offers. The court acknowledged that “the exclusive rights it awards can sometimes stand in the way of others exercising their own creative powers.” Oracle America, Inc. v. Google LLC, 141 S.Ct. 1183, 1195 (2021).  This review required “judicial balancing” and considered “significant changes in technology.” The use of the Java code was an efficient way to innovate a new product and this “use was consistent with that creative ‘progress’ that is the basic constitutional objective of copyright itself.” Id.  Programmers would not need to learn an entirely new programming language as “programmers had already learned to work with the Sun Java API’s system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them.” Id. at 1205.  The Court found this purpose to be an “inherently transformative role that the reimplementation played in the new Android system.” Id. at 1204. Further, Google took “only what was needed.” Id. at 1209.  The court also discussed how Sun’s mobile market was declining. This inability to compete in Android’s market “and the risk of creativity-related harms to the public … convince that this fourth factor… also weighs in favor of fair use.” Id. at 1208. Overall elements of all four fair use factors (purpose and character of use, nature of the work used, the amount taken and the market) favored fair use.

These cases represent support and encouragement of interoperative products and services, marketplace innovation and a recognition that the purpose of copyright is not only to reward copyright holders but to benefit society through new tools and technologies. Computer programs – while not unprotected by copyright – are works of function, a category in which fair use is more generously applied. Libraries produce works of function all the time, such as indexes, outline, bibliographies, lexicons, thesauri, finding aids, abstracts and reviews. Altogether, these open new avenues to work with and preserve content that people and institutions – including libraries – can further explore.

 

Written by:

Professor Tomas A. Lipinski, J.D., LL.M., M.L.I.S., Ph.D.
School of Information Studies, University of Wisconsin–Milwaukee
tlipinsk@uwm.edu

A quick word about an exceptional exception (you should get to know or start to consider using)

As part of the fair use and fair dealing week, IFLA is delighted to welcome Eric Chin, from the General Counsel at the National Library Board of Singapore, to share his views on the importance of making the best use of the flexibilities provided by the fair use and fair dealing provisions.

 

  1. Your mission as a librarian is to enable teaching, learning and research.  How much you can achieve depends on the extent to which libraries can collect, preserve, give access, present and exhibit library materials.  This in turn depends a lot on copyright laws that govern how library materials can be used.

 

  1. For example,  one of the exclusive rights of a copyright owner is the right to make a copy.  This impacts your day to day work ranging from the request by a teacher to make a copy of a photograph for a lesson, to whether the much used book that is deteriorating and is out of print (but still in copyright) can be digitised to preserve the content from being totally lost, to whether a video in an obsolete format (but still in copyright) can be migrated to a new digital format;  and to whether the non-profit museum down the road can make a copy of part of a map for an exhibition.

 

  1. Before we go further, it must be said that there is nothing wrong about the principle that copyright owners have exclusive rights for a period of time as just reward for endeavours and ability and it is beneficial to society because, among other things, it does create incentives for the production of more library materials.  It is not often said but it is not unfair to say that copyright is partly the lifeblood of a librarian’s job!  The question is about how this is balanced against what rights or exceptions there are to also ensure that exclusive rights do not act as unintended and undue barriers to progress in science, in the preservation of heritage and culture and the dissemination of knowledge.

 

  1. So copyright laws typically include a set of provisions that act as exceptions that will  allow for your mission as a librarian.  I say “typically” because copyright law is territorial in nature and each country has its own set of copyright laws. This means the scope of exceptions can vary (very) widely from country to country.  To see where you stand in the wide spectrum of copyright laws, it is useful to look at this study covering 191 countries: https://www.wipo.int/edocs/mdocs/copyright/en/sccr_35/sccr_35_6.pdf (the Study on Exceptions).

 

  1. Starting by knowing where you stand allows you to consider if you need to advocate for copyright exceptions that fellow librarians in other parts of the world can already use but you simply cannot.  What you cannot do will have a negative impact on the amount of teaching, learning and research that can be done in your own country. In an ideal world for librarians,  all countries will learn from one another and all will level up until all countries share the most useful exceptions in common. However,  it must sometimes start with ground up advocacy to the right powers that be in our countries, which is partly in our own hands.

 

  1. Looking at the range of exceptions in each country in the Study on Exceptions, you will see a fair few countries that do not list what is called “fair dealing” or “fair use” (collectively Fair Use) among the exceptions. Fair Use is a general exception that anyone can use and is not a specific exception available only to libraries but libraries can benefit greatly from it.  Each country will of course have an argument to make for its own copyright traditions and doctrine that their society may be comfortable with, but in my own view,  countries that do not have this exception may be missing out on an exceptional exception.

 

  1. Most library specific exceptions are generally prescriptive in nature with fixed criteria that must be met in an unchanging way in order to become applicable and this oftentimes can make it challenging for us especially in the fast changing digital era. On the other hand,  Fair Use is special because it is normally stated in a flexible way.  Certain broad factors (that are also usually not exhaustive) are set out as matters to be considered in a fair use analysis such as whether there is transformative use (i.e. use of the original library material or part of it in a beneficial way to society that is different from the intended use of the original) and whether the amount of the original library material used is appropriate in the circumstances including bearing in mind whether it would unfairly eat into or destroy the livelihood of the owner of the copyright.  Those who have had the benefit of using Fair Use will know that these broad factors for fair use analysis are such that the law in Fair Use can automatically adjust to new, evolving and challenging situations that you will face in your daily work.

 

  1. Around the world, in countries that have the Fair Use exception, it has been crucial in allowing for the use of library materials (including copying to an appropriate extent only) for research or study, criticism or review, reporting of news, to support teaching and learning,  to publicise library programmes, to create exhibitions, to preserve at risk items, to enabling use for those who are disabled and to making a record of ephemeral but culturally significant matters posted on the internet.

 

  1. This short piece cannot hope to set out all the details of what the best practices and exemplars are for Fair Use that gets the balance right between your mission and the rights of creators and publishers,  but urges you, as a librarian, to see where you stand in the spectrum of copyright laws that may be available across the world to support your mission.  As it is Fair Use Week,  and if you are one of those that does not have the benefit of Fair Use or actually do have the benefit of such an exception but have not used it,  go find out about it through the lawyer or other experts supporting your library and see how it can be fairly used.  If you then think it is useful, consider how you can advocate for it to be introduced or used as part of your workplan in the not too distant future.

 

  1. In the meantime,  it is Fair Use week and time to use those research skills to discover and read more about an exceptional exception that is not a fair weathered friend to librarians!

 

Eric Chin

General Counsel (and would be librarian and archivist)

National Library Board, Singapore

 

Note:  The views set out here are personal and do not represent the official view of any organisation I am associated with.

 

How HathiTrust Emergency Temporary Access Service (ETAS) supports Libraries in pandemic times

By Sara R. Benson, Copyright Librarian, University of Illinois at Urbana Champaign. Check out Sara’s podcast titled Copyright Chat at https://go.illinois.edu/copyrightchat

It’s Fair Use/Fair Dealing week and that means it is once again time to let folks know about exciting developments with the HathiTrust Digital Library. Last year on Fair Use Week I highlighted the ability of researchers to engage with copyright protected materials for text and data mining through the HathiTrust Research Data Capsule. This year, I would like to make readers aware of the HathiTrust Emergency Temporary Access Service or ETAS.

What is the ETAS? It is a portal allowing affiliated libraries to permit their patrons to access in copyright works remotely. Why is the ETAS available? COVID 19 has caused many libraries, such as my own (the University of Illinois at Urbana Champaign Library) to temporarily limit physical access to library materials. Almost half of our collection, however, has been digitized and is available in the HathiTrust corpus. Normally, users can only perform searches for how many times a given term appears in copyright protected works in the HathiTrust corpus. However, due to COVID 19, the ETAS allows users to view (but not download) entire copyright protected works remotely. Libraries participating must have the physical book in their collection and agree not to lend out the physical book. Thus, the book is being lent remotely on a one-to-one ratio to the Library’s physical collection on the basis of fair use. This type of lending is made possible because it is non-commercial, educational in purpose and justified due to the emergency nature of the pandemic virus. As noted by April Hathcock in a public statement created by copyright specialists and available at https://tinyurl.com/tvnty3a, “fair use is made for just these kinds of contingencies.”

So, as you celebrate Fair Use/Fair Dealing week this year, note that the pandemic has brought with it many challenges, but Fair Use has enabled libraries to keep lending their works digitally so that researchers and the public can continue to create, thrive, and produce . . . even during a crisis.

Celebrating flexibilities provided by fair-use and fair-dealing

This week is Fair use and Fair dealing week, organised by the Association of Research Libraries! It is a week to celebrate these doctrines implemented in many countries all around the world and the copyright provisions that allow libraries to benefit from flexibility to continue their missions.

Although libraries have similar missions around the world, trying to serve the best interests of users, they operate under very different laws.

As libraries have seen their doors closed and physical services interrupted or adapted due to the COVID-19 pandemic, the qualities and flaws of the varying legal provisions of each country concerning access to and use of content have been thrown into relief. The results are concrete: disparities result in significant divisions between the capacities of access to library resources by citizens around the world.

These varied laws reveal areas for improvement which in the midst of a global pandemic are only becoming more glaring.

Why and how have fair-use and fair-dealing been able and continue to support the needs of libraries during the pandemic? 

While many countries are subject to very detailed, prescriptive rules, tied to specific interpretations and technological supports, and even sometimes forgetting the spirit of the initial law, fair use and fair dealing have undoubtedly enabled libraries to obtain greater flexibility, thereby supporting the delivery of their missions.

To determine what is fair use, there are typically several criteria which are explored. These include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. These criteria are applied with reference to the objectives of the uses and not by the materiality of the medium on which the contents will be delivered, avoiding limiting library uses to specific formats of works.

Libraries that operate in countries with fair use and fair dealing benefit from an important advantage – the ability to continue their missions online to a greater extent, in order to meet the needs and expectations of users.

This is because fair use and fair dealing offer a more flexible framework, allowing for the taking into account of societal technological evolutions and therefore, consequently, the evolution of library practices. When a copyright law uses the term “analogous” in its legal vocabulary, this provision will, if not already, become obsolete as we move to other forms of media.

Fair use and fair dealing, an international doctrine

When we talk about fair use and fair dealing, it can seem that this is a doctrine whose scope is only applicable to North America. Certainly, opponents of more flexible laws try to claim that they can’t work elsewhere.

However, the reality of copyright implementations is much more complex than this, demonstrating the possibilities and compatibilities of fair use and fair dealing under current global regulations.

For example, other countries such as Israel, Malaysia, Singapore and South Korea have fair use provisions.

In 2007, the Israeli government updated its copyright regulations to include a fair use exception. It did this by creating an open-ended list of permitted purposes of use, with fairness being determined using a set of four factors similar to the US criteria for determining whether the use is fair.

In 2012, South Korea decided to add a fair use exception to its copyright regulations. Once again, the four determining factors are included as in the US. The same applies to Malaysia (2012) and Singapore (2004).

As far as fair dealing is concerned, in addition to the countries traditionally identified as fair dealing countries such as Canada, Australia and the United Kingdom, there are many other countries that still use these principles today. A list of 40 countries using fair dealing provisions has been compiled, including India, Antigua and Barbuda, Bangladesh, Barbados, Canada, Cyprus, Gambia, Namibia, Nigeria, Saint Lucia, Guyana, Jamaica, Vanuatu, Sierra Leone and Zimbabwe.

The fact that legal provisions on fair-dealing are implemented on all continents, in industrialized countries and countries in transition, is of considerable importance in demonstrating that there is no reason to limit these doctrines geographically. Moreover, given how long-established they are, without challenge, they are arguably also compatible with trade agreements and international copyright law.

We look forward to sharing further posts this week both about the benefits of fair use and fair dealing, and the practical implications for libraries.

 

A Narrow Basis for a Decision with Wide Implications

South Africa’s Copyright Amendment Bill represents an important opportunity to bring the country’s laws into the 21st century, and apply international best practice in support of access to education, research and culture. Indeed, the country has been a strong and leading voice in Africa and across the developing world, at the World Intellectual Property Organisation, in support of better rules for libraries and their users, in order to help bridge the development gap.

There clearly has been controversy around this legislation, including efforts to engage foreign governments to call for a halt to the work. This has only underlined the need for the President of South Africa to stand above the noise and take account of the views of all sides in carrying out his duties.

Surprisingly, however, it appears that in the letter signed by the President and addressed to Parliament, returning the legislation for consideration of a number of questions of constitutionality, this may not have been the case. Indeed, it is rather a submission prepared by Steven Budlender and Ingrid Cloete, on behalf of members of the Copyright Coalition of South Africa – an active and vocal player on one side of the debate – which appears to have provided the structure, the content, and in some cases the wording of the letter.

On such an important issue, it is therefore unfortunate that the letter appears to be so narrowly based, with little evidence of having taken account of the opinions of all Senior Counsels, or the whole range of recommendations from stakeholders. Here, we look more closely at the similarities.

Concerning the allegation of incorrect tagging, the President’s letter repeats the arguments made by Budlender and Cloete, not only giving the exact same article references in its claims that the bill concerns trade and culture, and raising the same suggestion that the referral to the House of Traditional Leaders represents a further proof of the cultural nature of the legislation. The only substantive difference on this point is the reference to the Performers’ Protection Bill in the President’s letter, which can be explained by the exclusive focus in the Budlender and Cloete letter on the Copyright Amendment Bill.

Concerning the allegation of retrospective and arbitrary deprivations of property, the President’s letter summarises the case of Budlender and Cloete. The latter claim both that the scope of the provisions for compensation of creators who have been mistreated in the past is excessive, and suggest that the lack of a time-limit in the primary legislation for the operation of the provisions creates uncertainty. The President’s letter adds in short arguments concerning the issues surrounding works with multiple authors, or where copyright owners are non-profit organisations.

Concerning the allegations around fair use, the President’s letter broadly copy-pastes sentences from the Budlender and Cloete submission (paras 47-49) with only the most minor changes.

Concerning the delegation of legislative power to the Minister, the President’s Letter simply summarises Budlender and Cloete’s arguments, including the focus on the treatment of past agreements, the supposed lack of a due process for making regulation, and the specific reference to the role of the National Council of the Provinces.

Concerning copyright exceptions. The President’s letter lists the exact same sections and paragraphs as highlighted in Budlender and Cloete’s submission, including for example the highly questionable assertion that it may be impermissible to extend the quotation right to artistic works in Article 12b(1)(a)(i) – something that is in fact mandatory under the Berne Convention.

The only area where the President’s letter indeed departs from the Budlender and Cloete submission is in its inclusion of arguments concerning incompatibility with international law. These paragraphs are also out of character with the rest of the letter, providing long descriptions of the international legal instruments mentioned, but only the vaguest indication of what concerns may be.

 

In sum, the letter signed by the President appears to represent a summary of the Budlender-Cloete submission on almost all points, and occasionally a direct reproduction of specific sentences. There is little evidence of the President having applied his own mind to the issues or having proposed new reasons for the alleged unconstitutionality of the bills. The only divergences concern inclusion of reference to the Performers’ Protection bill (a topic not covered in the Budlender-Cloete submission), specific additional issues relating to the retroactive effect of laws, and vaguely worded concerns around international law.

We very much hope that the Parliament will, as it has done in the past, continue to show a more balanced and independent approach, focused on promoting the wellbeing of South Africans and the sustainable development of South Africa.

The HathiTrust Digital Library: A Fair Use Story

Sara R. Benson, Copyright Librarian, University of Illinois.

If you are unfamiliar with the work of the HathiTrust Digital Library, fair use week is a great time to familiarize yourself with it.  The HathiTrust Digital Library “is a not-for-profit collaborative of academic and research libraries preserving 17+ million digitized items.”[1]  Essentially, partner libraries digitize volumes of in-copyright and public domain books for preservation and access through the library.  The library makes the works available to the fullest extent possible under United States copyright law.  Thus, for public domain works, the works are fully available to read and access through the digital library.  (The HathiTrust also works with library partners to review works to determine whether they are in-copyright or have fallen into the public domain due to failed formalities).[2]  For in-copyright works, researchers can search to see how many times a particular term is used in the book and on which pages the term is used.  This search feature has been deemed a quintessential fair use by the Second Circuit Court of Appeals[3] and paved the way for the broader Google Books fair use court decision.[4]

Select member affiliated researchers can also engage in text mining with in-copyright books through a special Data Capsule.  This capsule allows researchers to use a secure online environment to engage in research and text mining with the book corpus.

If you are unfamiliar with the HathiTrust Digital Library and the HathiTrust Research Center, fair use week is as good a time as any to get familiar with it.  What are you waiting for?  Dive into the resources available through the HathiTrust and discover a whole new text-mining world!

[1] https://www.hathitrust.org/about.

[2] https://www.hathitrust.org/copyright-review.

[3] Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).

[4] Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).

7 out of 10: the ARIPO Model Copyright Law

The African Regional Intellectual Property Organisation (ARIPO) has released its model copyright law.

ARIPO it aims to support the work of intellectual property (IP) teams across Africa, through both country-specific capacity building, and regional-level reports and guidance.

Its 19 Member States come primarily from English-speaking Africa (with some exceptions), and will now doubtless be encouraged to refer to the Model Law in reflecting on their own reforms.

This means that the document has a potentially powerful impact. As such, it is worth being clear about its strengths, weaknesses, and silences, from a library point of view. Library associations and others advocating for better laws for libraries should be aware of where the Model Law will, or will not help.

This blog therefore explores the positives, the negatives, and the holes in the Model Law. All references to Articles are to the Model Law, unless stated otherwise).

 

The Good

Fair Dealing: in the first Article of the chapter on exceptions and limitations (Article 18), the Model Law suggests that uses which constitute fair dealing, for the purposes of scientific research, private use, criticism or review, or the reporting of current events should be permissible (Article 18(1)). It then offers a set of criteria for judging the fairness of this dealing – the purpose and character of the use, the nature of the protected work (how original is it?), the amount of the work used, and the effect of the use on the market (Article 18(3)).

This is a positive step, giving valuable flexibility to libraries and other users in making reasonable uses of works. However, it if course remains less open than fair use exceptions, which do not have closed list of accepted purposes. If the list was to be made open (for example by adding a ‘such as’ before the list of purposes), it would offer an even better model.

Inclusion of Unpublished Works: too often, copyright exceptions only apply to works which have been formally published. This can make the work of libraries and archives in dealing with unpublished works more complicated. The Model Law underlines that the fact of being unpublished does not prevent uses under fair dealing (Article 18(4)).

A Digitally-Reading Education Exception: the Model Law makes it clear that it is possible to make uses of copyrighted works for education purposes via electronic networks, and not just in analogue form (Article 21(1)(a) and 21(1)(b)).

Interestingly, the only area where the exception can be cancelled out by a licence is for in-person teaching (Article 21(1)(c)(iii)). This is clearly not ideal, given that the Article is, anyway, covered by the rule that uses under exceptions should not conflict with the normal market exploitation of a work.

A Technologically Neutral Definition of Copying: too often, national laws suggest that copies can only be made through a specific technology, such as photocopying. The Model Law has the merit of underlining that it is possible to make reproductions through any format (Article 2).

Protection of the Public Domain: the Model Law includes standard provisions on facts, data, news and political speeches not being protected by copyright, but is clear that this also applies to laws, court judgements and other administrative texts are also in the public (Article 6). Furthermore, there is an explicit definition of the public domain, which allows the possibility for authors to renounce their rights. This is positive, given the tendency in some countries to create unwaivable rights which undermine initiatives such as Creative Commons (Article 35).

No Term Extension: the Model Law does not take the opportunity too often used elsewhere (and in spite of the evidence) to go beyond protection lasting for the lifetime of the author plus fifty years. This is a useful model to use elsewhere.

Inclusion of Museums: the provisions on library copying also apply to archives and museums. This is a positive, given the challenges identified in WIPO work around museums facing different conditions and rules to other heritage institutions.

 

The Bad

Overall, the Model Law provides a relatively good example for governments. However, there are some weaknesses which libraries should look to avoid replicating in their own national legislation. The below suggestions are in addition to the encouragement to adopt fair use above.

Vague Provisions on Circumventing Technological Protection Measures: in line with the WIPO Copyright Treaty, the Model Law underlines that ‘effective’ technological protection measures should themselves be protected by law. In other countries, there then follows a guarantee that users should be still be allowed to carry out permitted acts (i.e. under exceptions). However, the ARIPO Model Law only provides that governments may make exceptions. This is far too weak at a time that libraries are acquiring a growing share of collections in digital form (Article 40(4) ad 45(3)).

No Lending Exception: the Model Law includes public lending as one of the uses over which a rightholder should have exclusive rights. This is not something required by the Berne Convention itself (which only covers rental). This risks obliging libraries to make payments or seek authorisation for lending (over and above what they have paid to acquire books in the first place). This risks seriously damaging libraries’ ability to promote literacy and a love of books (Article 7(1)(k).

Restrictions on Preservation Copying: while the Model Law does (commendably) not limit the technology used to make copies, the fact that it only talks about ‘a’ copy poses to digitisation efforts (Article 23(3)). In line with recent EU reforms, it would be better to talk about taking copies in the quantity necessary to achieve the goal.

Furthermore, the Model Law also includes the obligation to see if a commercially available copy is available before taking such a copy. This risks introducing an unhelpful administrative burden, and may not be practicable. Given that it is usually cheaper to buy a copy than digitise and preserve, it would be better to leave the choice between copying and buying to libraries, rather than enforcing it through law (also Article 23(3)).

Imposing Commercial Availability Checks for Marrakesh Copying: The Marrakesh Treaty made an important breakthrough by removing copyright-related barriers to making and sharing accessible format copies of books for people with print disabilities. It did however leave the possibility for Member States to impose restrictions though, in the form of an optional remuneration requirement, or the obligation to check if an accessible format copy is not already available on the market before making or sharing one (Marrakesh Treaty, Articles 4(4) and 4(5)).

Libraries have argued strongly against making use of either of these possibilities, given the financial and administrative cost. However, the Model Law does suggest that there should be a check on commercial availability. Given the lack of information about which books are available where, and in what formats, such a requirement risks only leading to uncertainty.

Lack of Provisions on Collective Management: the Model Law is surprisingly thin on guidance about the regulation of collective management organisations (Article 57), while at the same time including provisions on extended collective licencing (Article 38). While it is clear that well-managed collecting societies can facilitate the work of libraries when carrying out uses that fall outside of exceptions, it is essential that these are run in a transparent and accountable way in order to be legitimate.

The Model Law says very little about the need for CMOs to be independent of government (in order to avoid conflicts of interest in the operation of copyright offices), to publish information about how much they are collecting and paying out, or to be representative of rightholders and rights when offering licences. At a time when multiple governments are needing to act to force better governance in this field, the vagueness of the Model Law is troubling.

Over-Application of the Three-Step Text: The Berne Convention only applies the three-step test (that a use needs to be a certain specific case, not conflict with the normal market exploitation of a work, and not unreasonably prejudice the legitimate rights of rightholders) only to exceptions to the reproduction right (Article 9(2), Berne Convention). However, the Model Law applies this to all exceptions, leading to potentially unhelpful debates about what is and is not possible (Article 18(2))

Attribution Obligations: on various occasions (Articles 18(1), 21(2), 22, 23(2), 24(1), 26(3)), the Model Law suggests that use can only be made under exceptions if there is attribution. However, this may not always be possible. Laws elsewhere recognise this possibility to make uses without attribution when this is not practicable. However, the Model Law does not, creating uncertainty for users who do not know the author of the work they are using.

Licence Override for Document Supply: as mentioned above, the exception allowing for educational uses of works in face-to-face teaching can be disapplied when a licence is available. This also applies to situations when libraries are making copies for the private use of users. Where a collective management organisation argues that it can offer licences, this could do a lot of damage to document supply activities (Article 23(2)(a)(iii).

Block on Parallel Importation: in the context of WIPO, libraries have argued that even when there is a domestic rightholder with the right to distribute a work nationally, it should be possible for libraries to make acquisitions across borders. This can be essential in order to meet requests for specific versions of works, or, for example, when the domestic rightholder is not active. The Model Law gives the rightholder the exclusive right to import works, without exceptions (Article 7(1)(j)).

Limits on Caricature, Pastiche and Parody: the Model Law does include welcome exceptions to economic rights (such as reproduction) for review and critic. However, the exception for caricature, pastiche and parody (Article 30) only applies to moral rights, and not to economic rights. As such, it may make it possible to restrict such activities on other grounds.

 

The Missing

The Model Law, while comprehensive, does not cover a number of areas which, from a library point of view, would be desirable in any national copyright law.

Orphan and Out-of-Commerce Works: libraries hold many works which are no longer commercially available, but are still in copyright. As such, there are significant restrictions on how far they can give access. This is particularly difficult when a work is orphaned (i.e. it isn’t possible to identify or local rightholders). More and more countries are introducing provisions allowing libraries to permit use of such works, subject to various conditions. The Model Law does not even reference these issues.

Text and Data Mining: legal uncertainty about the possibility for libraries to allow for text and data mining of works in their collections has lead a number of countries to introduce explicit exceptions. There is nothing about this in the ARIPO Model Law, meaning that there is continued uncertainty.

Limited Exceptions for People with Disabilities: while the Model Law does copy provisions from the Marrakesh Treaty for people with print disabilities, it does not take the opportunity (foreseen in the Marrakesh Treaty) to apply similar rules for people with other disabilities (such as sub-titling for people experiencing deafness). Many countries do allow copying without restrictions on the type of disability – it is a shame that this possibility has not been included in the Model Law.

Contract Override: the Model Law is silent on the issue of contract override – i.e. the possibility for exceptions and limitations to be cancelled out by the terms of a licence. In a growing number of countries, there are conscious steps to prevent this from happening, and so defend user rights. National governments should introduce broad provisions ensuring the pre-emption of any contract terms which do undermine exceptions.

Cross-Border: the Model Law only refers to cross-border uses in the case of the provisions on sharing accessible format copies of works for people with print disabilities. There is nothing anywhere else which would allow for the cross-border application of exceptions.

This is perhaps an unfair criticism of course – it is only through international law making that there can be legal certainty for cross-border uses. ARIPO itself could act, but the most effective solution would need to come from WIPO itself. IFLA of course continues to engage to achieve this.

 

Conclusion

Overall, the ARIPO Model Law does cover a number of key points which help libraries do their job, in particular relatively flexible fair dealing provisions. However, there remain a number of flaws, both specifically (lending rights, limitations on preservation), and cross-cutting ones (contract override).

Governments should therefore not look to adopt the Model Law wholesale, but rather work with their library associations to ensure that they have rules that truly support the public interest missions of libraries. Overall, the Model Laws gets a 7 out of 10.