Universalizing fair use: An important Argentinian proposal

The government of Argentina has submitted an important proposal in current negotiations towards an international instrument on limitations and exceptions to copyright at the World Intellectual Property Organization (WIPO).

Most international treaties seek to establish minimum standards.  In the case of the current WIPO negotiations, relating to exceptions and limitations to copyright for education and research institutions and persons with disabilities, this means that all countries would agree to permit a minimum set of things, such as permitting photocopying for classroom use or reproduction for classroom display.

As the Argentinian government notes, this often does not go far enough, especially in the online context, since countries invariably differ widely in their implementation of such minimum standards, and digital transactions often involve multiple country jurisdictions.

Many everyday actions done in the context of educational institutions potentially involve multiple jurisdictions, and could be legal in one jurisdiction but not in the other:

• playing an Internet video from a web site based in one country in the classroom of another;
• uses of works in distance education, where students may be based in a different country from the instructor;
• downloading works from a web site in another country for educational purposes;
• making available or sending articles, texts, or digital course packs from one country to another.

Understanding the legality of any of these actions, along with many others, currently involves expensive legal analysis of the copyright regimes of multiple countries--an untenable situation for educational institutions, as the Argentinian government notes.

Argentina therefore proposes that "within the scope of a treaty on limitations and exceptions, lawful conduct in one territory should not be illegal in another. If reproduction or making available is valid under the treaty, it cannot then be invalid under the rules of another State jurisdiction." (p. 4).  The exact wording of the proposal is as follows:

Where performed in accordance with the exceptions and limitations set forth in this agreement, the reproduction or making available of a work shall be governed by the law of the country in which the reproduction or making available occur, without precluding the reproduced work from being delivered to or used by a person or institution benefitting from exceptions and limitations located in another Member State, provided that such delivery or use is consistent with the terms and conditions set forth in this agreement. (p. 4).

The Argentinian government has proposed a solution worthy of serious discussion at the WIPO meeting to be held next week.

Libraries, archives' role in making orphan works accessible up for debate at WIPO

Discussion of the internationalization of copyright limitations and exceptions, such as expanded exceptions to copyright for libraries, educational institutions, and people with disabilities, continue this week at the World Intellectual Property Organization (WIPO)'s Standing Committee on Copyright and Related Rights.

Discussions of access provisions in international copyright have been ongoing since 2004 and have, so far, resulted in the establishment of the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today's discussions focused on building on the work done under the Marrakesh Treaty to see the possible establishment of an international instrument internationalizing copyright limitations and exceptions for libraries and archives.  International provisions are necessary because, as I note in chapter 4 of my book, International Copyright and Access to Knowledge (Cambridge UP, 2016):

libraries face a number of problems as they attempt to provide both traditional and new services to their users – many related to new technologies. Digitization, license agreements imposed by publishers of electronic journals and books, and Technological Protection Measures (TPMs) all introduce problems of access, preservation,and maintaining copyright exceptions. Moreover, the globalized possibilities of resource sharing, which take place increasingly across borders, are undermined by the territoriality of copyright law. IFLA, the ICA, and others suggest that a treaty is the best way to ensure that a minimum set of limitations and exceptions for libraries and archives exist, and that they apply in cross-border environments. (76)*

One focus of today's WIPO discussions was on the topic of orphan works, or copyright works where the copyright owner can't be found.  Libraries and archives are often the "adoptive parents" of orphan works; they are in a position to facilitate access to these works, especially through digital means.  However, copyright regimes often stand in the way, as can differing national regimes.  The International Federation of Library Associations and Institutions (IFLA), which is active at the meetings, notes that:

...there is a lot of progress to be made, with as many different copyright regimes there as there are states, each giving different types and degrees of protection if any at all. Moreover, as digital technologies bring about radical change in the information environment, a failure to act is the same as going backwards. This is why IFLA is engaging in support of change both at the global (WIPO) level, and nationally.

SCCR delegates. © WIPO 2016. Photo: Emmanuel Berrod.

 IFLA is asking for "changes which would give libraries the right to work across borders, to give access to orphan works, and to import books which are available in other countries."  For them, "the goal – an international framework which frees up libraries and librarians – is worth the effort."  After all, IFLA explains, "it’s through exceptions and limitations to copyright that we can do our job."

Current proposals that are on the table for orphan works (see page 34-39 of the current working document) would allow entities such as libraries to reproduce, make available to the public, and otherwise use orphan works.  Some proposals apply these provisions, as well, to retracted works (African Group, Equador, India), and some would require remuneration to authors or copyright owners who are subsequently identified (Equador).  However, there is no consensus among states on such proposals, with the United States and the European Union among the key detractors.

The chair's summary of today's discussion is expected to be disseminated tonight.

Tomorrow's discussions are expected to focus on the internationalization of exceptions and limitations for educational and research institutions and for persons with other disabilities.

For those following the discussion, a number of groups are blogging and tweeting from WIPO:

• WIPO webcasts the meeting live
• WIPO posts pictures from the meeting on flickr
• Follow the #SCCR32 hashtag on twitter
• Knowledge Ecology International is blogging the meetings
• The International Federation of Library Associations and Institutions (IFLA) is tweeting from the SCCR
• IFLA held a side-event "Shelves to Servers: Digital Content in Libraries and Archives"
• The Electronic Frontier Foundation hosted a side-event on music and copyright with Imogen Heap

My June 2015 post about these negotiations is here.
* Discount code for International Copyright and Access to Knowledge: Bannerman2015

New Book: International Copyright and Access to Knowledge

My new book, International Copyright and Access to Knowledge,  is now available from Cambridge University Press.

The principle of Access to Knowledge (A2K) has become a common reference point for a diverse set of agendas that all hope to realize technological and human potential by making knowledge more accessible. This book is a history of international copyright focused on principles of A2K and their proponents. Whilst debate and discussion so far has covered the perspectives of major western countries, the author's fresh approach to the topic considers emerging countries and NGOs, who have fought for the principles of A2K that are now fundamental to the system. Written in a clear and accessible style, the book connects copyright history to current problems, issues and events.

"Sara Bannerman's thoughtful and compelling book is a must-read for all of those interested in the challenges of increasing access to knowledge. She offers historical perspective on the narrowing of the knowledge commons and identifies opportunities for positive change going forward."
-Susan K. Sell, George Washington University

 International Copyright and Access to Knowledge is available through CUP, Amazon, on Wordery. An excerpt is available here.  Purchases through CUP can make use of 20% discount code Bannerman2015.

Canada readies to attend important WIPO meeting

Next week the World Intellectual Property Organization's Standing Committee on Copyright and Related Rights (SCCR) will continue to discuss possible international treaties/instruments on limitations and exceptions for educational and research institutions.  The SCCR is one of the most important bodies at WIPO, since it is tasked with the early work in the formulation of possible copyright-related treaties.  At the last meeting of the SCCR, which I wrote about here, Canada's recent Supreme Court decisions on copyright came under discussion.

It appears that Canada may take a more active role at the SCCR than it has in the past where, at the last SCCR meeting, it made no statement on record, and having not sent a delegate to the Inter-sessional Meeting on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities.  Howard Knopf writes of Canada's potential role at the meeting: 

This is also, hopefully, a sign that Canada will begin to reclaim its profile, independence and influence in WIPO, all of which has been in decline for many years and for many reasons. Canada needs to be a credible player in all international fora dealing with IP, and WIPO is the oldest, largest and most specialized. Canada may have less economic and political clout on the international stage than the USA, EU, and certain other countries. But Canada is still a G8 country and one that can make a very constructive contribution both in its own interest and for the general betterment of many around the world, including the blind, those who are in developing countries, and those who are in countries that might wish to reclaim their IP sovereignty. There are other signs elsewhere hat Canada is beginning to participate more actively on the international stage, where it was once a very influential honest broker with positive results for itself and the rest of the world. 

I agree with Howard that Canada should take a more active role on record in the negotiations.


Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities
To be discussed Monday and Tuesday, the SCCR will aim to finalize or nearly finalize a text on limitations and exceptions for visually impaired persons to be presented to an extraordinary session of the WIPO General Assembly in December, which will decide whether to convene a diplomatic conference in 2013 on an international instrument for visually impaired persons.  The fact that this extraordinary session has been scheduled is a good sign that a diplomatic conference is a strong possibility. Howard Knopf reports welcome news, from a stakeholder meeting that I also attended, that Canada will endorse the  idea of a treaty (rather than a softer non-binding instrument) for the visually impaired. 

Broadcast Treaty
Negotiations around a new broadcast treaty will continue on Wednesday next week.

In 2011 Canada submitted a proposal that parties to the treaty should be granted the ability to opt out of the exclusive retransmission right that would be granted to broadcasters under the treaty, for free over-the-air signals.  Canada submitted a similar proposal in 2007. 

Canada's proposal is an attempt to maintain space for Canada's retransmission regime, which allows Canadian cable and satellite companies to retransmit American over-the-air broadcasts without the consent of the broadcaster, but with payment to the content owners under a compulsory licence with the rate set by the Copyright Board.  Canada's retransmission regime is very important to the Canadian broadcast system; under the main (not Canada's) Broadcast Treaty proposals, American broadcasters would be granted an exclusive retransmission right which would see an extremely unbalanced flow of royalties from the Canadian broadcasting system to the American one. This is exactly what American broadcasters are seperately calling for: payment for the rebroadcast of their signals by Canadian cable and satellite operators. (HuffPost reports)  A Nordicity report from 2006 commissioned by Canadian cable companies and other broadcast distribution undertakings argued that such a treaty "has the potential to undo the broadcasting regulatory regime established over the last three decades" (i).  The study predicted that a broadcaster right would cost cable companies millions, reducing the amount such companies are able to spend on Canadian programming and other areas, raising the prices consumers pay, and causing some consumers to drop their service while others cut back.

Canada has in the past argued against the layering of broadcast rights over top of copyright, proposing instead that authorization from the copyright holder should be sufficient, making unnecessary additional authorization from broadcasters.

Canada's proposal has been relegated to a footnote (p. 9) in the current working document that contains the treaty proposals.

Limitations and Exceptions for Educational and Research Institutions
To be discussed Thursday,  the SCCR will aim to conclude discussions on limitations and exceptions for educational and research institutions by SCCR/30 (expected June 2015).  As I said in my last post, it's important for educational and research institutions institutions to follow what is happening at WIPO and to ensure that their proposals and interests are brought forward to these discussions, which could eventually set new norms worldwide.

Limitations and Exceptions for Libraries and Archives
Also to be discussed Thursday, the SCCR is aiming to conclude discussions on limitations and exceptions for libraries and archives by SCCR/28 (expected June 2014).

The negotiations will be webcast throughout the week.

Discussions of possible new WIPO treaties for schools, libraries, visually impaired underway

This week at WIPO member-states are gathering for the twice-yearly meeting of the Standing Committee on Copyright and Related Rights (SCCR).  The SCCR is one of the most important bodies at WIPO, since it is tasked with the early work in the formulation of possible copyright-related treaties. 

The SCCR's work recently led to the conclusion of a new Audiovisual Performances Treaty (the Beijing Treaty) which ended speculation that WIPO was no longer able to conclude treaties.  (It had not done so since the conclusion of the WIPO Internet Treaties in the 90s.)  In fact, as Michael Geist observes, WIPO was able to conclude this treaty in a far more transparent manner than has been the case for other recent treaties, such as ACTA and the TPP, which have recently hit roadblocks. 

The Beijing Treaty was in fact only the first of a suite of new treaties under discussion at WIPO.  (See IPW's coverage.)  Those next on the agenda include treaties on copyright limitations and exceptions, or what are referred to in Canada as 'user's rights'.  Specifically, three new possible treaties are under discussion:

1. a treaty for the visually impaired and print-disabled users; 
2. a treaty for educational and research institutions; 
3. and a treaty for libraries and archives. 

Any one of these would represent the first time that a WIPO treaty has been primarily focussed on ensuring that a minimum set of rights are granted to users of copyright works, as opposed to the rights of copyright holders. 

Canada's recent Supreme Court Decisions on copyright, released July 12, have reportedly come under discussion at the SCCR meetings.  While the Canadian delegation has repordedly not yet spoken on the issue at the SCCR, the recent decisions of the Canadian Supreme Court have been raised by other actors.  The African Group, according to IPW, suggested - in a proposal that seems inspired by and in line with the Canadian Supreme Court's K-12 ruling -  that individuals and institutes should be authorised "to distribute a copy or copies of all or part of the work, including making available to pupils or students, the originals or copies thereof the work, or copies when these are necessary to illustrate the teaching." 

The possible treaty on limitations and exceptions for educational and research institutions currently under discussion at WIPO should be of particular interest not only to Canada's educational and research institutions as they grapple with the post-Supreme Court-decision environment, but also to those worldwide.  It would seem important for such institutions to follow what is happening at WIPO and to ensure that their proposals and interests are brought forward to the discussions.While many groups and international NGOs have been involved in the WIPO discussions of a possible treaty for the visually impaired and print-disabled, it is equally important for educational and research institutions, and library and archives communities, to be involved in ensuring that their concerns and environments are taken into account in discussions that could eventually set new norms worldwide.

Meeting documents are available here.  The current session, now webcasting is here, along with webcasting/recorded video link and links to documents containing possible treaty language.

Update: new IPW post here

Further to C-32 & the A2K Problem

Further to my op-ed, which appeared in today's Hill Times (full text), it is worthy to note that Canada has spoken out at the World Intellectual Property Organization calling for movement at the international level to encourage the export of special format editions for the visually impaired. Currently, Canada's copyright bill, C-32, would allow the export of special-format editions of works by Canadian authors or authors of the country of destination, but not works by authors of a third country. My op-ed suggested that Canada could do more. It's worthy to note, however that Canada has in fact called for an international solution that would also cover those third-country works (see here, p. 41). While not as bold as leading the way by example, Canada's call is definitely a good move.