Tag Archives: SCCR

Beneath the surface: reflections on some of the themes underpinning debate at SCCR42

Last month’s 42nd meeting of the World Intellectual Property Organisation’s (WIPO) Standing Committee on Copyright and Related rights (SCCR) was, at the same time, a breath of fresh air, and a return to the norm.

It was certainly welcome to be able to engage, once again, with delegates in person. Fora like WIPO offer great opportunities to interact with government representatives in order to understand more clearly their priorities and concerns, and to share the experiences of libraries.

There was also, thanks to the initiative of the African Group, the first Member State-led effort in many years to define and drive forwards the agenda on exceptions and limitations to copyright for libraries, archives, museums, education and research.

While only a part of the proposals made it through this time around, it is very positive news that libraries and their users can count on some governments at least to defend their interests.

This same point is, at the same time, also a reason for some disappointment. Despite the extreme caution in the proposals to adhere to consensus positions previously stated in the Committee, some groups – notably richer countries, continued to look to emaciate any effort to move SCCR in the direction of work that would bring benefits to libraries and their users.

While the rest of the African group proposal remains on the table for the next meeting, it was only a proposed information session on cross-border working, as well as a toolkit on preservation that had already been in the works, and a scoping study on a research toolkit that made it through this time around.

In their resistance to progress, developed countries could cite the support of rightholder organisations that looked both to warn against any extension of limitations and exceptions (L&Es), and which suggested that the status quo – at least as concerns L&Es – is adequate.

So why was this the case? This blog looks to explore some of the underlying themes which can help explain this situation.

We are not always talking about the same thing when we are talking about copyright: during exchanges between Member States, observers and experts, it became clear that two definitions of copyright were in use.

The narrower one sees copyright as being only about the exclusive rights given to rightholders, for example to reproduce, translate, or use works. The wider one – used for example by Professor Raquel Xalabarder – looks at copyright as a wider system, incorporating both rights and exceptions and limitations to them.

The argument for a latter approach is based on the core goals set out in texts such as the Berne Convention and beyond – i.e. that copyright should serve to support the production and dissemination of new ideas. Given how important access to and use of existing works is to the production of new ones, it makes sense that copyright needs to be seen as including the L&Es that allow this.

This wider approach is welcome, representing a more enlightened and constructive approach that of course takes account of the contribution of libraries. It also helps us get beyond the tired and blinkered cliché that any non-remunerated use of works is tantamount to stealing.

There remains, in some quarters, a refusal to accept that the public interest should be considered: a revealing statement was made by one observer from a rightholder lobby during discussions, when he argued that the public interest should never come at the expense of that of rightholders. This explicit argument for an unbalanced copyright system is something that you rarely hear spoken out loud.

This highlights the need for spaces like WIPO where governments can indeed take into account arguments from different perspectives on the way in which copyright systems should be designed, if they are to achieve their goal of delivering the best outcomes for societies as a whole.

This is not of course to say that protection of the interests of rightholders is not in the wider public interest. It is, up to a point. However, when the marginal benefits of protecting these private interests are outweighed by the costs to society of denying access and usage possibilities, governments need to act.

There is an assumption that while access concerns should be balanced by rightholder concerns, rightholder concerns should not be balanced by access concerns: closely linked to the previous point, the structure of the research report presented during the information session on the first day of SCCR is telling.

The first half of the report focused on the experience of rightholders during the pandemic, and how in particular the shift to digital had impacted the revenues of different categories of creator and intermediary. This underlined the hardship that many in the book sector had studied, but then presented, uncritically, the steps taken by some publishers at least to facilitate access.

The second half talked about libraries, archives, museums, educators and researchers. Beyond a tendency to indicate that the real problems lay outside of copyright, for example in funding (a point which is partially true, but does not take away from the need for copyright reform), the report felt the need to suggest that enabling libraries to do their jobs better in a digital world nonetheless should not come at the expense of rightholder interests.

This is revealing, sadly underlining a presumption – a prejudice even – that somehow the interests of libraries and their users need to be balanced, but those of rightholders do not.

There is a challenge around the supply of digital content, but is freezing work on L&Es the answer?: a fundamental question raised by both ‘sides’  of the debate – and which the WIPO Secretariat to their credit has certainly recognised – is that an key underpinning issue is the fact that there simply isn’t enough affordable, accessible, digital content out there.

Given the size of the internet, this may seem like an odd claim, but for many in schools and research centres, it is the case, with materials either stuck behind unscalable paywalls, not available in relevant languages, or simply not existing on topics and contexts that matter.

Advocates for rightholder organisations suggest that a key factor in this undersupply is a fear that if works are made available in digital format, they will be pirated, and demand for them will evaporate. As a secondary argument, they also claim that digital-adapted L&Es will also suppress the market.

Of course, the first question is one of enforcement, not basic copyright laws, while the second goes back to the arguments above about the degree to which the work of libraries strengthens or weakens markets for books and other materials.

The counter-argument here of course is that libraries offer an excellent means of providing access to digital content in a way that can be better controlled, using effective tools, and of course that the work of libraries represents a guarantee of research, innovation and creativity in the future, not a threat to it.

Indeed, we can argue that this is rather a failure of the market to respond to demand, driven perhaps by a lack of capacity, but also perhaps by fear and uncertainty among actors who more or less control the market.

This is not the first time that WIPO has addressed the issue of the under-supply of content in formats that work for readers. It’s exactly the challenge that the Marrakesh Treaty looked to overcome.

While international legal action around L&Es remains only one of the options on the table for now to resolve this failure (although arguably, there’s no other way of dealing definitively with challenges around cross-border working), it would undoubtedly have a strong triggering effect on national legislation.

 

This blog has looked to provide insight into some of the assumptions and understandings that explain position taken, and outcomes achieved, at SCCR. Addressing them, and finding solutions, will need to be part of any ongoing strategy to achieve progress.

As a final point, of course, it is worth noting that copyright can of course tend to polarise, whereas on most issues, the interests of rightholders, libraries and their users converge. Setting aside pure profit motives, we all, deep down, work towards a situation where there is a rich production of relevant materials, and literate, curious populations that are eager to read and apply knowledge. Despite the various points of disagreement in fora like WIPO, it is good to remember that we are all there for the same ultimate purpose.

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.

A Path to Progress at WIPO: Tackling Confusion, Complexity, and a Can’t-Do Attitude

The 40th meeting of the Standing Committee on Copyright and Related Rights was far from what was expected when IFLA and others last left Geneva in October 2019, at the end of the 39th meeting.

The dates had changed (the meeting had been planned for July), the WIPO Director General had changed (Daren Tang took over on 1 October), and of course the format had changed, with all but a handful of those involved doing so via an online platform.

Despite all that was different, the meeting nonetheless brought clarity around the long-standing challenges that the SCCR will need to overcome if it is to prove its relevance as a forum for delivering on fundamental rights and the Sustainable Development Goals.

With a new Director General and Chair in place – as well as the shock that COVID-19 has certainly brought – there is a great opportunity to act.

Challenge 1: tackling confusion as to the goals of the committee

With progress almost inevitably being slow in any such intergovernmental negotiation, it is perhaps normal that we all need to be reminded, from time to time, of why we are there.

In the case of the exceptions and limitations agenda, it is because WIPO’s General Assembly agreed, in 2012, to work towards a legal instrument, in whatever form, on provisions allowing for libraries, archives, education and research institutions, and subsequently museums, to carry out their core missions.

Crucially, this is not a discussion about the foundations of copyright, or of the business models that have grown up around the commercial uses of copyrighted works. No-one is suggesting that libraries or any other institution should be able to do more online than they can already do in person. The future of the copyright industry is not at stake, just one part of the structure.

In taking its discussion forwards, it will therefore be important for SCCR to set aside the dramatic rhetoric, dismiss suggestions that the future of the creative industries depends on limiting the ability of libraries to fulfil their missions, and focus on this one area where it can make a difference.

Challenge 2: reducing, not increasing, complexity

A further risk is that the Committee dilutes its focus by adding to its agenda in an unplanned, unsystematic fashion. This brings risks both for libraries, and to the credibility of SCCR’s overall work.

Crucially, it is not sure that creating new rights (and so licensing opportunities) will do much good. This is because, especially in current circumstances, even freezing the budgets that libraries have available for acquisitions and rights clearance is likely to be optimistic. Similarly, with governments looking for opportunities to make cuts, overall cultural budgets are likely to struggle to maintain themselves at current levels.

In this situation, adding new rights – for broadcasters, or public lending rights – will effectively mean that libraries (or their funders) will need to divert resources away from acquisitions towards rights clearance. Rather than this money going directly to creators, it will pass through a middleman, and only get to the original publishers or authors once overheads and other management costs have been subtracted.

Before embarking on any focused work on new rights, WIPO therefore should complete its exploration of what is really going on in markets and consider carefully where non-rights-based solutions could prove more effective as means of supporting authors.

Challenge 3: rejecting a ‘can’t do’ attitude

Finally, there is a broader question of how ready the Committee is to realise its own potential. It is important to remember that only 7 years have passed since the same Committee’s work led to the Treaty of Marrakesh.

The scope for action today, too, is clear, with serious challenges encountered by libraries, archives, museums, educators and researchers in going about their work (legally) with the doors of institutions closed. While some countries have laws which have allowed a relatively seamless passage to online provision, this has not been the case everywhere, and none provide certainty for cross-border uses.

The SCCR does have the potential to show leadership by preparing a declaration or other instrument which makes clear the flexibilities available to governments under international law to allow for education, research and cultural participation during COVID-19.

Similarly, looking ahead to COP26, it has it in its power to drive progress towards meaningful preservation provisions in copyright laws worldwide, including certainty for libraries and others looking to work across borders to safeguard heritage.

All the Committee needs to do is accept that, just as has been the case with Marrakesh, opposition to change from governments and stakeholders will likely be replaced with celebration as action has been taken.

 

Read IFLA’s news story about the meeting.

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.

Policy Incoherence for Stagnation: How Richer Countries’ Position at WIPO Contradicts their Commitments to the Rest of the World

A lot of money gets spent on aid annually – $132 billion alone from members of the OECD’s Development Assistance Committee.

This includes not only simple financial support, but also large amounts of expertise and technical assistance, in order to promote growth and well-being around the world.

There is also the major effort made, for example through the United Nations and its 2030 Agenda, to set out goals and mobilise other resources in order to achieve them.

Given this level of commitment, it is normal that governments and NGOs alike want to ensure that this money – and these efforts – are most effective. A key challenge to this has long been the potentially negative (inadvertent) impact of other policies.

For example, European investment in helping an African country develop its agricultural exports will be wasted if the European Union then imposes quotas or tariffs that prevent them being sold.

This idea – that there needs to be an effort to promote coherence between policies in order to ensure the effectiveness of development – is now well established.

This blog looks to argue that a key area where there is a need for – and a current lack of – coherence is in approaches to discussions on international copyright law at the World Intellectual Property Organisation.

And in line with the theme of the 5th day of Copyright Week, it is a call for a proper democratic debate about this position, and whether it is time to change.

 

Work at WIPO: a Recap

IFLA, as part of a coalition of civil society organisations, has been calling for over ten years for international action on exceptions and limitations to copyright at the World Intellectual Property Organisation (WIPO).

This is a response to the fact that in too many countries around the world, existing limitations and exceptions do not cover all core activities of libraries, and are not adapted for the digital age.

While some claim that the fact that international law allows for exceptions is enough, there are many reasons why countries are not taking up these opportunities, including limited capacity, other immediate priorities, and in some cases, aggressive lobbying and threats of legal action.

For IFLA, international action can play a critical role in underlining the importance of passing the laws that libraries need to operate, and giving greater certainty about what is possible.

Yet efforts to promote international action are currently being blocked by a number of richer countries – in particular the European Union, the single biggest provider of development aid.

Clearly when a use of a work does cause unreasonable harm to rightholders, then it is necessary to find solutions. But this is not the question at stake when we are talking about preservation of heritage, use in research, or use of small parts of works for educational purposes.

A failure to include exceptions and limitations for these types of activity forces libraries and others to fall back on licencing schemes created either directly by rightholders or through collective management organisations.

This is, effectively, what the European Union and others are proposing.

 

For or Against Promoting Local Education, Research and Heritage?

This is ironic. The European External Action Service runs many projects on education, culture and research. Yet in its position at WIPO, it works against these goals.

For a start, blocking progress towards an international instrument removes a key impetus to carry out reforms that would allow key actors in culture, education and research to do their jobs in a digital age.

Moreover, beyond this harm done to the efforts of libraries, schools and universities to achieve their missions, this possibility may well also benefit larger, often foreign companies more than local ones.

For example, an insistence on enabling licencing solutions will favour most those who are able to call on extensive rights management departments – generally the larger players – creating offers that segment markets and maximise profits. Smaller, often local players are less able to create complicated offers.

An alternative is to promote collective licensing through collective management organisations. While this may help more money flow to local producers, it can just as well facilitate the flow of money out of developing countries and back into richer ones.

While this may be a legal obligation in the case of major uses of works, it seems particularly absurd that the limited resources of developing country libraries, schools, universities and research institutes should be channelled back to richer countries for uses which don’t actually harm markets. Moreover, such uses also often don’t lead to remuneration in the same richer countries.

 

A Double Dividend Missed

A particularly powerful impact of passing an international instrument would be the clarity it provides over the possibilities for cross-border cooperation. This can be an important point for libraries, archives, museums, schools, universities and research institutions in smaller or poorer countries.

For example, heritage institutions have collections which need to be digitised in order to be preserved for future generations. But the equipment needed for digitisation to a good standard may simply not be available in the country. Therefore, a preservation exception with purely national effect would have little real-world impact.

However, if a cross-border preservation exception were created, this opens the possibility of forming networks with institutions in other countries which do have the necessary equipment. It is possible to imagine regional preservation networks emerging, contributing both to the safeguarding of heritage for the long-term.

The same can go for cross-border education or research, where the value of legislating relevant exceptions domestically is multiplied when there is also the chance to work with counterparts in other countries.

In other words, by preventing progress towards an international instrument with cross-border effect, the European Union and others are diminishing – if not eliminating – the value of legislating nationally at all.

The ‘double dividend’ of an international instrument is clear in the case of the Marrakesh Treaty, with poorer countries benefitting not only from new possibilities to make and share accessible format works domestically, but also access to international collections.

 

In the light of this, it is time to bring more people into the discussion. Those who care about – and invest in – education, research and culture around the world need to have their say in the policy adopted by the European Union and others at WIPO.

There needs to be a democratic debate, and the full cost of the incoherence of the EU’s approach made clear.

Why is it important to make digital reproductions of collections in the public domain free and accessible?


What is the public domain?

The public domain includes all creative works to which no exclusive intellectual property rights apply.
Works protected by copyright are those where the rightsholder has the potential to limit access and many uses in exchange for remuneration.

After the death of the author of the work, the work continues to be protected by copyright to the benefit of whoever holds the rights subsequently for an X time (depending on the copyright of the country).

At the end of this period of copyright protection, the work falls into the public domain. The work is, therefore, no longer the subject of remuneration or a monopoly.

Each country has different legislation on the term of copyright protection.

 

Why is it important to keep the public domain free and accessible?

_ The public domain must be free and accessible because it must be accessible to everyone. Social and economic inequalities are accelerating, and free access to culture lowers these barriers.

_ The public domain must be free and accessible because all nations need access to their history and heritage.

_ The public domain must be free and accessible because social, historical, literary progress is built brick after brick to build together have common bases, a common history.

 

Why digitised works in the public domain should be labelled with the public domain mark instead of a copyright mark?

It is a strategic decision for the establishment, which requires collaboration from several sectors: the digital department, the collections department and the department linked to the public.

Until now, there has been a legal vagueness regarding the fact of putting a copyright mark on a reproduction of an object in the public domain.

However, many institutions are committed to the principles of OpenGLAM, for example, one of the principles of which is not to add copyright to heritage collections.

Copyright is defined by the creativity of its author, and it is precisely the creativity of the author that is rewarded by copyright.

_ This limits the dissemination of collections since the photos cannot be shared freely.
_ This limits the use and re-use of reproductions of public domain collections for the general public, but also research and education.
_ This risks representing an inaccurate declaration of copyright.

 

How to combine business models and accessible public domain?

The mass digitisation of artefacts may involve high costs (material, human resources, skills), and so many institutions are invited by their supervision to find economic models involving digitised content in order to contribute to the establishment’s revenues.

If the ideal would be to have a strong (and financed) policy of national digitisation to make works in the public domain (or reproductions of them) free to access and use, in practice, the heritage institutions face these permanent demands to cover costs.

Nonetheless, some institutions have developed different user-pays business models to digitise collections which do not exclude free public access, for example:

_ offering on-demand digitisation services for a fee for the first user, but then making the digital work available free of charge under a label in the public domain or CC0)

_ carrying out public-private digitization partnerships. While this type of partnership often raises questions about the respect of the public domain, given exclusivity rights over reproductions for a commercial purpose, it can become more interesting if this period of exclusivity is only for a reasonable time.

At the same time, numerous reports have assessed the general costs, i.e. the investments of the institutions in digitisation and the revenues made by making access pay.

On the one hand, the revenue from paid access to collections is often a drop in the ocean of digitisation costs. On the other hand, this drop of water can make a difference in terms of accessibility at the user level and will limit access and use of the collections for the broader public, research and educational purposes.

 

What does the European DSM Directive Say?

In the Copyright Directive currently being implemented in Europe, Article 14 addresses this issue. It especially deals with works of visual art in the public domain.

This provision proposes in particular to introduce the following rule:


“Works in visual art in the public domain: Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the materiel resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.”

In other words, the reproduction of visual works in the public domain (i.e. when the copyright expires) should not benefit from new protection of copyright or related rights unless the reproduction is modified and presented new creative forms of the author.

In practice, this essentially aims to allow faithful reproductions of works in the public domain to remain in the public domain and thus facilitate access to culture. We look forward to seeing the results!