Tag Archives: WIPO

Taming the Wild West of Digital Copyright

Understandably, the state of copyright law was not at the front of everyone’s minds in the library field in 2020. Much more immediate concerns – how to continue to fulfil missions with the doors closed, how to provide services in a way that doesn’t put staff or users at risk – were top of mind.

Nonetheless, they were felt, in the rules around online storytimes, remote access to materials, and the terms and conditions under which libraries could access digital content.

The pandemic, in effect, shone a light onto the possibilities and limitations of copyright laws, and their impact on libraries and their users, which has the potential to shape debates for years to come.

Crucially, it underlined that, as opposed to the situation around physical works for which there are pre-existing infrastructures and practices, copyright in the digital world is more of a wild west.

In other words, the way in which copyright applies it the digital space – and in particular which laws and principles should apply – remains contested, and even unclear. In effect, the law has yet to move in, leaving those with the greatest strength in charge.

To go into more depth – and in line with the idea of digital copyright as a wild west – this blog looks at different aspects of the situation through the medium of Westerns.

The Searchers

… or at least more correctly, the researchers – alongside other groups who rely on libraries – students, teachers, readers in general. Because throughout, it’s important to remember who are the ones affected here.

It is these groups who suffer when it is not possible to access, or make use of works in a library collection because of restrictions, or a lack of clarity over what is permissible.

Activities such as document supply or lending – relatively well accepted and established in the physical world, are not always in the digital. They can be simply blocked – made impossible through technological tools or contract terms – or made subject to a requirement to pay additional fees – an obligation that can be enough to put off many.

When these activities are prevented, this has a cost, felt in the results of research carried out, the possibility for teachers to use the best possible materials for teaching,  and the experience of learners.

While it may not be easy to put a monetary value on such costs, this does not mean it can be disregarded. Just as a lack of access to education or to healthcare causes harm, so too does a lack of access to information.

For a Few Dollars More

This is an issue, as hinted, because the shift to digital media gives rightholders much greater control over what a user can do with a book or other type of material.

In effect, whereas it would not have been possible to try to oblige payment of a licence fee in order to quote from a physical work, or to read and analyse it, this possibility does appear in the digital world.

Certainly, trying to licence such activities could represent a money-spinner for those organisations managing licences and collecting administration fees. However, this fails to take account of the harm that can be done by excluding those who aren’t able to pay (as set out above).

In short, while there may be a temptation to see new possibilities to raise money through licence fees, it is important to ensure that the societal costs of such an approach are also clear.

Yet without intervention, decision-making power is left with those who can set the terms, without much incentive to take into account the interests of users. Of course, the power of those who set the terms can then be challenged by others – not least digital platforms, whose hold over distribution and dissemination of information can be just as problematic. Either way, of course, the interests of users risk being forgotten.

The Good, the Bad and the Ugly

The previous two sections have focused on the theoretical. The situation is obviously less clear cut in practice. Just because there is little or no regulation over the application of copyright to digital materials, this does not mean that everything is bad.

The pandemic saw many rightholders make positive steps to broaden access, for example through increasing collections available open access, or loosening controls on where students could access licenced materials.

While to some extent, enlightened self-interest may be at play – pay-walling articles about COVID-19 would have caused bad press, and of course free content can be good advertising – the results in the short term were certainly positive.

At the same time, with many of these offers seemingly lapsing well before the end of the pandemic, the limitations of relying on enlightened self-interest are clear. The high prices paid by public libraries, funded through taxation, in order to licence eBooks, and the relatively low number of books that could be bought, highlight the challenges.

In parallel, there have been more worrying stories, notably around high prices and restrictive terms for electronic content (including since the beginning of the pandemic), and more worryingly still, talk of using spyware to identify use of shadow libraries. While of course, use of such libraries cannot be condoned, the ethics of using such a response are questionable.

High Noon

It is these practical stories that, we can hope, will ensure a stronger focus among governments, on ensuring firstly that there is clarity in the law around digital copyright, and that it is effective.

In order to get there, libraries can do well to gather stories and evidence of the challenges they have faced. High prices (especially for electronic as opposed to physical content) and restrictions on how works can be used that prevent usual library activities are good examples.

It is also true that evidence from COVID times will not suddenly cease to be relevant once we can finally declare the pandemic over.

While clearly the situation now is (hopefully) unique, there are many people who depend on – or would benefit from – more meaningful possibilities to access and use library collections digitally. Furthermore, it is unclear how long COVID-linked restrictions will last, and the habit of digital use is likely to stick for many, even beyond the pandemic.

This evidence will be valuable when opportunities arise to discuss changes to the law, or even to encourage debate, for example in parliamentary committees or the media.

Once Upon a Time in the West (of Switzerland)

Examples are not just relevant for work at the national level. Indeed, in a digital world, the idea of defining purely national copyright laws is increasingly absurd, given how much content is stored on the cloud, and how regularly we access materials from outside of the country where we are.

This is where the World Intellectual Property Organization (WIPO based in Geneva) has the opportunity to step up.

By providing clarity about the application of public interest exceptions and limitations to copyright in the digital world, it can help bring law to the chaos that exists currently, not just from one country to the next, but indeed from one licensing contract to the next.

As set out in our newspiece looking ahead to copyright in 2021, IFLA is continuing to make the case for action at WIPO. Because while westerns are fun, the best way of protecting the interests of all is to apply the law.

Library Stat of the Week #47: Countries Implementing the Marrakesh Treaty Overwhelmingly Choose Not to Introduce or Maintain Restrictions on Access Possibilities

This week, the world celebrated the International Day of Persons with Disabilities. Held on 3 December this has been marked for almost 30 years, and provides an opportunity, as highlighted by the United Nations to ‘promote the rights and well-being of persons with disabilities in all spheres of society and development, and to increase awareness of the situation of persons with disabilities in every aspect of political, social, economic and cultural life’.

Crucial to achieving this is providing access to information. As the 2006 Convention on the Rights of Persons with Disabilities states in its Article 21, governments should look to provide access to information at no extra cost.

The Marrakesh Treaty, agreed in 2013, makes achievement of this easier by removing unnecessary copyright-related barriers to the making and sharing of accessible format works for people with print disabilities. With over 100 countries now having ratified or acceded to the Treaty (or being members of the European Union, which has ratified as a bloc), there are exciting possibilities for libraries to provide more extensive services.

IFLA has been working to maintain the momentum towards not only ratification and accession, but also effective implementation of the Treaty on the ground. This is because for institutions such as libraries to be able to serve potential beneficiaries, they need the certainty that clear national laws can apply.

In this context, IFLA has called strongly on countries not to make use of the possibilities in the Treaty which can oblige libraries having already acquired copies of works to pay more for making accessible format copies, or to carry out a search of the markets before doing so. Both bring additional costs in terms of money and time which necessarily reduce resources available for service provision.

Therefore, in this week’s Library Stat of the Week, we take a look at some of the key statistics around Marrakesh implementation, based on IFLA’s Marrakesh Monitoring Report, which brings together known information from the 107 countries covered by the Treaty.

Graph 1: Have Countries Acted to Implement the Treaty in National Law?

Graph 1 looks at available data on whether countries which have officially ratified or acceded have taken action to implement the Treaty in national law. To our knowledge, over 42% have done so, with a further nearly 3% not needing to, given that international laws apply directly in national law.

However, this leaves a majority which have either yet to act, or where further information is needed. Where no action has been taken – including when there are already laws in place, but these do not cover all of the issues covered under the Treaty – there is a pressing need for reform.

Graph 2: Can Libraries Use Marrakesh Provisions Without Extra Payments?

Graph 2 looks at one of the possibilities in the Treaty to restrict the scope of the new powers, notably the option to oblige libraries and others to make additional payments for making and sharing accessible format works. IFLA has argued against using this, given that it has been the failure of rightholders to make works available in accessible formats that has caused a lack of access for people with print disabilities.

This finds that, fortunately of those countries which have legal provisions in place, over 90% have not made use of the possibility to oblige such payments. This provides a powerful example for those who are still to act.

Graph 3: Can Libraries Use Marrakesh Without Needing to Search the Market?

Graph 3 looks at the other possibility included under the Treaty to limit the application of its provisions by obliging libraries and others to limit their work under the Treaty to works which are not commercially available in accessible formats.

IFLA has argued that such provisions do more harm than good. If an accessible format copy is readily available on the market, libraries will seek to use this because it will be cheaper than making their own. However, obliging a check on commercial availability adds an extra bureaucratic step, and of course creates new liability – how can a library be sure, especially when sharing books across borders, or whether a book really is available or not, in the necessary format?

The graph shows that over three times as many countries which have clear provisions on the subject do not introduce restrictions here as do. Again, this provides a positive example.

It is worth noting, in both of the cases set out above, the Marrakesh Treaty makes clear that if countries wish to apply the restrictions, they need to notify WIPO. In reality, only three countries have done this (Australia, Canada and Japan). Nonetheless, Canada has not yet make use of this possibility. As such, those countries which have applied restrictions without notifying WIPO have arguably done so illegally.

Graph 4: Can People With Other Disabilities Benefit from Marrakesh Provisions?

Graph 4, finally, looks at the extent to which countries have extended the possibilities to support people with print disabilities created under the Marrakesh Treaty to people with other disabilities. Despite claims by some stakeholders, this is a clear possibility for Members States.

The data indicates that, where there is clear information, more countries have indeed used this possibility than have not. This is certainly a positive step, given that the Treaty as it stands does leave out groups such as those experiencing deafness.


Overall, while there is certainly room for frustration at the slow speed of implementation of the Marrakesh Treaty into national law, among those countries that have acted, the majority have done so without introducing restrictions, and using possibilities to benefit wider groups. In doing so, they have stayed faithful to the spirit of the Treaty, as well as of the Convention on the Rights of Persons with Disabilities, and the International Day of Persons with Disabilities in general.


Find out more about library data on on the Library Map of the World, where you can download key library data in order to carry out your own analysis! See our other Library Stats of the Week! The data supporting this analysis comes from IFLA’s Marrakesh Monitoring Report. See also IFLA’s Getting Started Guide, focused on implementing the Marrakesh Treaty.

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.

Lessons from the World Intellectual Property Organization’s Global Innovation Index 2020

Last week the World Intellectual Property Organization (WIPO) released the 13th edition of its Global Innovation Index (GII). This looks to bring together different indicators that can help governments and others understand how different countries are doing in promoting innovation, which is taken to be a key source of growth and progress towards wider development goals.

The index takes a wide perspective on innovation – not just specific activities such as patenting, but also evaluations of the innovation environment (institutions governing innovation, human capital, infrastructures, sources of finance and opportunities to sell innovative products, and businesses’ own behaviour), and a wider range of measures of outputs and their dissemination and use, including online.

The report as a whole – and the measures that underpin it – are worth exploring for anyone interested in how something as broad as innovation can be defined and measured. This is particularly true for the library field, given the role of our institutions in supporting and promoting basic research in particular, through their work with faculty in universities and other research centres.

It is also, clearly, a crucial moment to think about the way that innovation is encouraged and managed, given the impacts of COVID-19 on economies. The report includes various perspectives on funding, as well as insightful commentary on what the pandemic may mean more broadly.

This blog, as a starter, identifies five key points made in the GII 2020, which may be of particular relevance.


Spending on research and development is likely to fall – we will need to ensure what money is there is spent effectively: the most prominent graph in the report highlights that the first three months of 2019 have already seen a drop in spending on research and innovation, likely as companies became aware of the potential costs of the pandemic. Governments too are likely to look to reduce spending also in the coming months – and indeed, the latest proposal for the European Union’s Multi-year Financial Framework already (mistakenly, in the view of libraries) plans to do this.

Clearly, any decision to cut spending on innovation cannot be taken lightly. But where this is the case, it will be necessary to think hard about how to maximise efficiency. A clear way of doing this is through promoting openness in science, which has the potential to make research both faster and fairer. A wider analysis of the way research is shared can also help identify where money is being removed from the system unnecessarily, reducing that actually spent on creating and applying new ideas.


There is a positive trend towards international cooperation between researchers which should be encouraged: the report notes that despite the many stories of countries failing to coordinate around border controls or purchases of vaccines, the scientific community has proven itself readier to work across borders in order to share ideas, data and results. It underlines how much of a positive this is, echoing existing findings by the Organisation for Economic Cooperation and Development that cross-border collaborations tend to lead to higher impact research.

Support for research cooperation is a key focus for many academic libraries. Clearly encouraging openness (not only of publications, but also of science in general) will help with this by reducing (or removing) copyright-related barriers to collaboration. So too will progress towards an international legal instrument on copyright limitations and exceptions at the World Intellectual Property Organization. Yet libraries are also, through work around linked data and developing and updating standards, facilitating the sharing and use of information across borders to advance innovation.


Steps to remove red-tape have been welcome and can continue to contribute to supporting innovation: another positive underlined by the report is the effort made by many governments to simplify processes around innovation. These have focused in particular on financing, as well as on some rules around testing. Clearly it will be important in the longer term to assess which of these changes should be made permanent – rules are usually there for a reason – but this will allow for a re-evaluation.

Once again, the value of simplifying rules and processes around innovation will be positive for libraries. For example, in discussions around the copyright rules that should apply to text and data mining, it is clear that research is facilitated when there is no need to seek additional permissions, or buy additional licences in order to carry out mining – the right to read should be the right to mine. Similarly, the complexity that libraries face in giving access to digital resources, each subject to their own set of contract terms, could be easily removed by simply underlining that such terms should not be enforceable when they override copyright limitations and exceptions.


Countries with more flexible copyright regimes tend to top the tables for their regions: Once again, it is countries with flexible rules around copyright – namely fair use or fair dealing – which top the tables in five out of the seven regions highlighted by WIPO. The United States in North America, India in Southern and Central Asia, Singapore in South-East and Eastern Asia and Oceania, Israel in North Africa and Western Asia, and South Africa in Sub-Saharan Africa all have such rules.

The only exceptions are in Europe (Switzerland) and Latin America and the Caribbean (Chile). Nonetheless, both have recently updated their copyright laws to favour access to information in support of innovation. This provides a helpful argument in favour of greater flexibility as a means of supporting more innovation.


Innovation will be essential for the recovery from COVID-19: an overall point – and one that could be expected from a report with this title – is that innovation is likely to be essential for any future recovery from COVID-19. This was already the case before of course, with limits on the world’s resources meaning that ‘doing better’ has to replace ‘doing more’ as a driver of growth. Faced with COVID-19, we need to innovate both in order to find ways of carrying on with lives and services, and to create new opportunities for work and earning.

As a key part of the innovation infrastructure of any country – in particular the basic research that makes major breakthroughs possible – libraries will certainly be able to agree with the importance of a focus on encouraging the development and spread of new ideas. It is only to be hoped that governments, when taking decisions about the future, will do the same.

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!