Maher Reports on WIPO Copyright Deliberations

Read the original published on the website of the Society of American Archivists. CIS is briefly mentioned.

Attendees discussed an international treaty for library and archives exceptions for copyright, including provisions related to orphan works and making preservation copies. Maher noted that many of the national delegates are less familiar with the mission of archives than that of public libraries; his statement on SAA’s behalf helped to bridge that gap. (View his presentation and that of the International Council on Archives representative here, at 26:30 and 34:00.)

View the International Federation of Library Associations and Institutions (IFLA) information flyer here.

Following is Maher's report on the meeting.

Summary Report on Service as Society of American Archivists
NGO Representative at the World Intellectual Property Organization’s 
Standing Committee on Copyright and Related Rights, 26^th Session

William J. Maher
January 10, 2014

Executive Summary: At the December 2013 Standing Committee on Copyright and Related Rights (SCCR), the SAA was instrumental in educating not only the WIPO national delegates but also the library advocacy groups on the differences between libraries and archives and the specific archival needs for a treaty supporting copyright exceptions and limitations. With our coalition partners, the SAA helped prevent the marginalization of work on library and archives exceptions during future meetings.  Meanwhile, new leadership of the SCCR helped the Committee avoid the stalemate that had been evident at SAA’s prior attendance in November 2011.  Thus, momentum has been maintained for continued work on library and archives exceptions at the three SCCR sessions scheduled for 2014.

Next Steps: Because of the positive outcome of SCCR 26 calling for continuation of  “text-based” work on library and archives exceptions over the next three meetings in 2014, it will be important for SAA to secure funding to ensure that our archival voice, experience, and particular needs continue to inform both the NGOs and national delegates at the these sessions.  In addition, to help make that representation most effective, the Intellectual Property Working Group will need to develop several concise case study statements or “issue briefs” to exemplify the particular archival dimensions of the eight remaining themes in the draft text being considered for a treaty.  Finally, early consultations should be held with coalition partners to develop a strategy to ensure retention of the text’s orphan works provisions.

Background: Copyright law may be established by national laws, but it is international treaties, such as the Berne Convention and the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty that provide the broad framework of copyright and authors’ rights.  While current treaties allow nations to provide some exemptions to authors’ monopoly of exclusive rights, the areas for exceptions are quite limited, and none are mandated except in the recently treaty supporting exceptions for visual impaired persons.[1]   Meanwhile, there continue to be onerous regimes for exclusive rights,[2]  and  it has been difficult to get attention to archivists’ and librarians’ specific interests in supporting acquisition, preservation, and accessibility of our of collections, and services to our users.

Fortunately, there are global actors with whom American archivists can collaborate. Thanks to 2004 and 2008 initiatives by Chile, Brazil, Uruguay, and Nicaragua, there has been a call for WIPO to develop treaty language that would require member states to enact education- and development-friendly exemptions into national law.   The International Council on Archives (ICA) has commissioned a copyright working group to examine these issues, created a “white paper” entitled Current Issues in Copyright for Archives, and appointed the UK’s Tim Padfield as a representative to WIPO. By their joint work, ICA and the International Federation of Library Associations (IFLA) have created a plan to secure appropriate exceptions and limitations to copyright’s exclusive rights.  The plan’s success, however, would require continued engagement in and representation at WIPO.

WIPO’s Standing Committee on Copyright and Related Rights (SCCR) is the body authorized to draft language for international treaties on copyright and generally meets twice a year.  The possibility of “library and archives rights” was the subject of a special SCCR meeting in Geneva in November 2011.  This meeting was the first time the Society of American Archivists was able to participate as an ad hoc Non-Governmental Organization (NGO) observer, and I attended as SAA’s representative.  Subsequently, SAA applied for and was granted status as a permanent NGO observer, and on that basis sent me once again as a representative to the SCCR 26 meeting December 16-20, 2013.  Given what I had observed in 2011, the protocol and process of the SCCR made much more sense in 2013.  Perhaps this was just part of the learning curve, but it equally well could be a result of new leadership of the committee.

The effort to develop a treaty to provide exceptions and limitations for libraries and archives has been tied to development concerns of the “global South.”  When the WIPO General Assembly adopted a development agenda in 2007, SCCR had a mandate to make development needs an integral part of its work.  It commissioned Kenneth Crews to provide a report examining copyright laws of 149 of WIPO’s 184 member states.[3] Results, not surprisingly, showed wide variations in national practices and a general lack of provisions addressing library and archives needs. In 2010, SCCR expanded its consideration of exemptions and limitations to include provisions for visually impaired persons, libraries and archives, and education. Then, in June 2011, the 41-member Africa Group presented a draft WIPO treaty for these latter areas, based heavily on a 2010 proposal from IFLA.  Finally, IFLA itself presented its own “Treaty Proposal on Copyright Limitations and Exceptions for Libraries and Archives” (TLIB) at the November 2011 meeting.[4] The draft was cosponsored by ICA, Electronic Information for Libraries (EIFL), and a library NGO called Innovarte.[5]

Although IFLA, as an NGO, cannot propose treaty language, at the 23^rd session of SCCR in November 2011 a coalition of Brazil, Ecuador, and Uruguay put forward a document incorporating all of the essential elements of IFLA’s proposal, and that document received standing for debate and discussion within SCCR.  However, the discussion revealed deep divides among the national delegates.  Developed countries argued that their separate laws already contained provisions to meet the needs of users for access to library and archival material and that no mandatory treaty was needed.  Developing and lesser developed countries argued that the needs of their populations for access to information and knowledge was impaired by the lack of exceptions and limitations to copyright and particularly by the lack of an international instrument that could provide predictability and uniformity across national borders.  At best, the developed countries suggested the adoption of so-called “soft law,” or guidelines that countries could adopt. At worst, some argued that attention to balancing copyright with exceptions and limitations was unnecessary use of the committee’s time.

In the end, while the November 2011 SCCR 23 could not agree on the nature of the “international instrument” it would be pursuing, it adopted a work plan to continue to discuss library and archives exceptions at its future meetings while also focusing attention on the creation of exceptions to support the needs of visually impaired persons (VIPs).  Over the course of 2012 and through mid-2013 (i.e., SCCR 24-25), the Committee focused most of these discussion of exceptions on the VIP matter, but it did set a timetable to devote particular attention to the library and archives exceptions over the course of SCCR 26 through 29, with the objective of adopting a text for submission to a diplomatic conference in 2015.

Despite the seemingly intractable positions evident in 2011 and widely reported through early 2013 regarding VIP provisions, a June 2013 diplomatic conference in Marrakesh was able to reach an unexpected agreement on a VIP treaty.  This was an important development because it represented a first.  It elevated copyright exceptions to treaty status, and it involved obtaining consensus among hitherto seemingly irreconcilable parties.

The so-called “Miracle of Marrakesh” set the stage for potential drama at the December 2013 SCCR 26.  Could the momentum of creating copyright exceptions carry forward from the VIP area to also support library and archives exceptions?  Would the publishing industry, collective rights organizations, and the global north be able to argue that the exceptions created at Marrakesh had rebalanced copyright so that attention could now focus on other areas of exclusive rights, such as the long-deferred matter of exclusive rights for broadcasting organizations?

Preparations: Once it was clear that SAA Council would be funding participation at SCCR 26, I was asked to join various listservs and e-mail lists of other treaty advocates and invited to to brainstorm and coordinate positions among treaty-friendly NGOs.  These collaborations involved assessing the variant drafts that national delegates had put forward for the 11 separate “topics” or provisions of a proposed treaty text and advising on which variant was best for our particular needs.  Particularly important was being able to participate in the shaping of the message for a general publicity piece to explain to the public why copyright reform for libraries and archives mattered.  Because of this access and participation, SAA was able to have its logo appear on the ultimate piece after we were sure that it adequately reflected archival as well as library concerns.[6]  Throughout the entire preparation period, as well as during the week of SCCR, there were multiple and frequent consultations with the SAA Intellectual Property Workding Group (IPWG) and the SAA Executive Director, especially in drafting the main statement for SAA to present as well as the text for the “Side Event” presentation.

SCCR 26, December 16-20, 2013: The schedule for SCCR 26 allocated the first two days to a discussion of exclusive rights for broadcasting organizations, a question of limited interest to archivists.  This was to be followed by two days devoted to exceptions and limitations for libraries and archives, and a final day discussing issues relating to whether exceptions could be created to support educational institutions and organizations.  The session opened on December 16 with the election of Martin Moscoso of Peru as a new chair to lead the committee for the next two years.  He had most recently served as facilitator over informal discussions between opposing sides at Marrakesh and had strong support from the Committee.

Moscoso proved adept at maintaining good order, identifying issues for potential consensus, and managing situations when positions of some national delegates conflicted sharply. The resultant draft text for the SCCR’s plan for future work suggests that the matter of the exceptions for libraries and archives being sought by the Africa Group (AG) and the Group of Latin American and Caribbean countries (GRULAC) will remain on the agenda. Overall, the SCCR session showed a much more positive spirit and productivity than that of November 2011.

Library and Archives Exceptions and Limitations: Despite some efforts by global North countries to extend the broadcasting discussion beyond the scheduled two days, the Chair directed the Committee to follow the previously agreed-upon allocation of time.  After calling upon regional groupings and national delegates offered for general comments on library and archives exceptions, the floor was opened the floor for presentations by approximately two dozen NGOs.

Interventions from Non-Governmental Organizations: Unlike some other international bodies such as the telecommunications union where invited NGOs participate in floor debate, at SCCR NGOs’ formal involvement is limited to scheduled opportunities to offer statements or “interventions” on the policy issues before SCCR.  By long convention, these interventions are limited to three minutes, with some prior chairs enforcing the time limit vigorously.  The NGOs at SCCR contained representatives from both sides.  Those speaking against the need for library and archives exceptions included Motion Picture Association, International Federation of Journalists, International Federation of Musicians, International Publishers Association, Group of Scientific, Technical and Medical Publishers, Federation of Reproductions Rights Organizations, etc.  Those speaking in favor of L&A exceptions included the Canadian Library Association, Center for Internet and Society, German Library Federation, Karisma Fundaćion (Colombia human rights organization), IFLA, eIFL, ICA and the SAA.  In his intervention, Jamie Love of Knowledge Ecology International pointed out that the needs of archives were particularly striking yet seemingly less complex than those of libraries.

A central part of my presence as SAA’s NGO representative  at SCCR was this opportunity to provide a formal position statement to the Committee.[7]  Within the allowed three minutes, I noted how the recent UNESCO “Universal Declaration on Archives” called for broad public access to archives.  I also noted that because the public increasingly expected archival content be online, copyright represented a major barrier to the archival mission and to the public’s right to access.  Noting the insufficiency of the U.S.’s Section 108 library and archives exceptions, I called the national delegates’ attention to the need to develop a treaty that would provide cross-border uniformity.  I closed by suggesting that the viability of both archives and the copyright system required exceptions to support public access for heritage and accountability.  The statement appears to have been well-received by treaty advocates based on several comments that received through the end of the week.  Perhaps the best indication of this was the blog entry provided by Manon Ress of Knowledge Ecology International, who reproduced my statement in full, immediately preceded by her comment: “The room is clearly divided but the intellectual argument is being won by the libraries and archives. Here are some of the very strong statements.”[8]

Debate by National Delegates on Proposal for Library and Archives Treaty: Following a previously developed work plan, the Committee adopted a text-based discussion of the awkwardly titled:  “Working document containing comments on and textual suggestions towards an appropriate international legal instrument (in whatever form) on exceptions and limitations for libraries and archives.”  The work plan had called for discussion of the draft text through its 11 topics which had been built from texts first by the Africa Group and Brazil/Ecuador.[9]  Over the two allocated days, the delegates were able to complete work on the first two topics (copying for preservation and for users), touch briefly on legal deposit (topic 3), and begin discussion of library lending (topic 4).  Those skeptical of the need for an international treaty kept trying to steer the discussion toward a review of current national practices and the need to protect the authors’ interests.  Advocates for the treaty emphasized the need for a base level of exceptions and the need to establish uniformity across national borders. Insofar as multiple phrasings of the the proposed provisions were left in document, those proposals appear to have basically survived the discussion, but it became clear that there was overlap among some of the themes, such as copying for users and library lending/document delivery.  Thus, some consolidation could be expected.  For archives, issues about preservation, including the need to remove limits on the number of preservation copies, were well handled.  However, one of our most important topics, orphan works copying and distribution, was deeper into the work plan and was not addressed.

Overall, there was little change in the delegates’ positions during the meeting.  In short, the global North argued that an international instrument was not needed because many countries had addressed these concerns with national laws.  They therefore tried to steer SCCR’s work towards merely studying the laws and practices of member states.  In addition, a number called for an update of Kenneth Crews’ 2007/08 study, presumably on the assumption that legislation in some countries may have changed in the past 6 years.

Throughout, the SCCR Chair worked to find a consensus for the future work. On the down side, it appeared that the complexity of the copyright issues archivists face are quite foreign to these policy makers, no matter how much we restated the principles that we would like to see incorporated into an international instrument. The discussion at SCCR 26 clarified that our most important task is to have a rich roster of simple, practical examples of how the lack of a specific exception militates against the public’s need for information and records.  We also need to counter the claim that national laws already provide locally tailored solutions by explaining the cross-border, international nature of the problem.  Good, clear, and provocative examples in our prepared remarks and in briefing sheets, will advance the understanding of friendly delegates. on whom we have to rely.  The IFLA and eIFL representatives began working on such a set of

“Side Event” Presentation: SCCR meetings often include “side events” beyond the official proceedings of the Committee.  These events include evening receptions as well as the more typical early afternoon panel sessions on some issue of relevance to the topics being considered. At SCCR 26, the Thursday December 19 side event, sponsored by IFLA, was titled “‘Digital Gridlock’” What Future for Libraries and Archives?”  Its particular point was to clarify how access to library and archival material is impeded by copyright limits, and how the problem is fundamentally an international one that can only be solved by a treaty providing consistency across borders.  The speakers were allocated five to ten minutes.  I was asked to present on how copyright affected the future of archives.  My remarks were titled, “It's My Heritage, Why Can't I Have It? The Unintended Consequences of the Digital Embargo.”

Realizing that neither the delegates nor all the other NGOs understood what archives contain and what archivists do, I drew on my own archives’ experience to describe the scope and use of institutional archives and manuscript collections.  I focused on the increasing expectations to meet users needs via online holdings, and I emphasized how copyright in orphan works was a major impediment to meet these expectations.  I cited an example of a NARA project where the use of its data files increased 335 times when the data were put online.[10]  I made a special point of citing core statistics from Maggie Dickson’s University of North Carolina study to underscore the excessiveness of a strict authors’ rights and permissions regime for archival digital projects.[11]  I closed with two specific examples drawn from collections and users at the University of Illinois Archives, in which key cultural heritage information was not readily available to individuals of those communities unless they could afford travel to see the originals.  The presentation was well-received and generated some useful discussion during the question period. Overall, the “Side Event” was a successful opportunity to explain the archival concerns and clarify that they are not precisely the same as libraries’.

Education Exceptions: Friday morning, December 20, was devoted to general statements from NGOs, and regional and national delegates about the set of exceptions that the Africa Group had proposed to support educational organizations and educational activities.  These call for a broad array of exceptions to allow copying and digitization of works in support of education and research activities at all levels.  Overall, the concept appears to face a tough road ahead.  Because this issue was at a very early stage, only the morning of the last day was dedicated to discussing it.

Conclusions and Closure of SCCR 26: One the defining elements of any SCCR meeting is the last day’s work to prepare a “Conclusions” document.  It summarizes what work was completed during the session, including consensus statements on issues where possible.  Most importantly it identifies the work plan and allocation of time in the coming SCCR meeting(s) for particular issues.  Because the Conclusions define what it the SCCR has accomplished and where its priorities and policies are headed, each sentence in the relatively short document (generally 3-4 pages) is subjected to great scrutiny and sometimes nearly endless debate late into the night or wee hours of the morning.

Given the smoothness of the earlier days of the week, there was some hope that floor fights would be minimized and that the evening might end early.  Unfortunately, that was not the case, even if the ultimate result was positive for those interested in library and archives exceptions. Those delegations advocating for a broadcast treaty and merely more study for the library and archives area launched an effort to allocate the majority of time in the next three SCCR meetings (i.e., three days in each) to broadcasting, with only two days in each for “exceptions.” Thanks to the some effective work by the librarians and archivists present in connecting with a few of the sympathetic to neutral country delegates, wording in the final version of Conclusion item 31 included the specific reference to libraries and archives as the lead topic for the latter two days of the April 2014 SCCR.

Nevertheless, the issue of relative allocation of time during the three 2014 SCCR meetings was contentious.  Because of some persistent resistance by treaty-sympathetic countries, the Committee’s eventual consensus was that the allocation of days for the July and December SCCRs would need to be deferred pending outcomes of the April meeting.  While this may seem a small accomplishment or even just a delaying action, in fact it reflects significant success by treaty advocates in not allowing the momentum from Marrakesh to be turned back.

Advocacy as Education of Multiple Publics: SAA’s experience at the SCCR in 2011 and especially in 2013 demonstrates that a central part of successful policy advocacy is not simply communicating our position, but also the extent to which we use the interchange as an opportunity for education.  Because the policy makers and stakeholders whom we want to reach are only minimally aware of the mission and professional practices of archivists, influencing policy cannot start until we are recognized as a distinct sector with a mission that matters to the public and communities we serve. Ironically, the low visibility of archives and archivists among the public can work to our advantage in that if we sharpen our message carefully, we can immediately create a positive foundation for future interactions.  By providing concise statements that focus on the broad cultural and educational value of archives combined with the substantial professional and ethical standards we have developed over the past three-quarters of a century, we can obtain not just respect for our mission but also a sympathetic hearing for our policy needs.

In this regard, according to comments from more than one of the stakeholders at SCCR 26, SAA was extremely effective in its communications and advocacy for the archives sector.  SCCR 26 also demonstrated that archivists can obtain a hearing and audience for our concerns that is clearly well out of proportion to our inescapably small size.  Indeed, it is the power of the archival message that has made stakeholders much larger than ourselves seek us out as coalition partners.  In the process, we have gained significant leverage to advance our positions.

To the extent that SAA wishes to build on the success at SCCR 26, an infrastructure is needed for this advocacy.  First, there needs to be a physical presence at WIPO.  Many of the occasions SAA had for influencing the text of coalition advocacy pieces would not have arisen if our planned presence at SCCR had not opened the door to our participation in the coalition’s communication channels through which positions were formulated collaboratively.  Only through these were we able to make clear to library and other prospective allies those fundamentally different and compelling archival needs.  We to be able to dedicate significant amounts of time to collaboration in the weeks leading up to the meeting.  Significant preparation is needed to prepare concise, targeted position statements that can be effectively delivered in time that is measured in seconds rather than minutes.  The statements need be supplemented by practical examples of archival needs and the benefits to the public from our holdings and professional work.  The examples need to reflect the breadth of the publics whom archives serve as well as how these  relate to international policy objectives being sought.

It goes without saying that SAA’s representative has been absolutely dependent upon and grateful for the strong support provided by the Intellectual Property Working Group, especially its chair, and for the confidence and support of the SAA Executive Director.  Education is essential for effective advocacy, but it is preeminently a team effort.

Endnotes

^[1] .  According to the Berne Convention and the World Trade Organization’s 1994 TRIPS agreement, any exemptions provided by national legislation are supposed to meet a “three-step-test.” “Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.” See:  Berne 9.2. at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

^[2]. For example, the 1996 WIPO Treaty required countries to create legal prohibitions against circumventing any electronic copy-protection mechanisms that copyright holders have used on their works, making archival migration and preservation of electronic records very difficult.

^[3]. Kenneth Crews, Study of Copyright Limitations and Exceptions for Libraries and Archives,  http://www.wipo.int/edocs/mdocs/copyright/en/sccr_17/sccr_17_2.pdf.

^[4].  Available at:  http://www.ifla.org/en/node/5856 .

^[5].  The TLIB proposal calls for copyright exceptions and limitations that would enable libraries and archives to engage in: parallel importation; library lending; reproduction and supply of copies; preservation; making and distributing accessible copies for persons with disabilities; providing access to retracted, withdrawn, and orphan works; cross-border uses; translation of legally acquired works for specific users/user groups; freedom from contract provisions which would otherwise overwrite the exceptions; circumvent technological protection measures for lawful access; and enjoy limitations on liability for libraries and archives work.

^[6].  The resultant flyer can be seen at:  http://www.ifla.org/files/assets/hq/topics/exceptions-limitations/ifla_wipo_message_overview_final.pdf

^[7].  The full text of the intervention on behalf of the SAA can be found attached as Appendix A.

^[8]. http://keionline.org/node/1863 Unfortunately, because the SAA’s acronym was mistranslated, WIPO interpreters muddled the translation of the SCCR Chair’s Spanish language introduction of my intervention.  Thus, Ms. Ress misidentified the first text as being from the International Council on Archives.  While the ICA intervention was quite good, the text Ms. Ress replicates on the KEI blog is a verbatim transcript  of the SAA remarks.  The video of the SAA presentation can be seen at:  http://www.wipo.int/webcasting/en/index.jsp – Scroll down to below the title "Video on Demand," and in the right-hand menu, select “SCCR/26-Wed 18-English, Afternoon Session.”  SAA’s intervention begins at minute 34.

^[9].  Those themes/topics, with a brief summary of the provisions being sought, were:

1): Preservation :  It shall be permitted for libraries and archives to reproduce works, or materials protected by related rights, for the purposes of preservation or replacement, in accordance with fair practice.

2) Right of reproduction: A library or archives may reproduce and distribute a copy of a copyright work to a library user, or to another library or archive, for purposes of:  education, private study by a users, or interlibrary document supply.

3) Legal deposit: Treaty member countries may determine that specific libraries and archives or any other institution shall serve as designated repositories in which at least one copy of every work published in the country is to be deposited and  retained.

4) Library Lending: It shall be permitted for a library to lend copyright works, or materials protected by related rights, to a user, or to another library.

5) Parallel Importation:  Libraries and archives shall have the right to buy, import or otherwise acquire copies of any work published in any other Member State with the permission of the author of that work.

6) Cross border uses:  To the extent that it is necessary for the exercise of a limitation or exception provided for in this Treaty, cross-border uses shall be permitted.

7) Orphan works, works out of commerce.  Libraries and archives shall have the right to reproduce, preserve and make available in any format or retracted any withdrawn works from public access or orphaned works.

8) Limitations on Liability: A librarian or archivist acting in good faith within the scope of his or her duties, is protected from claims for damages, from criminal liability, and from copyright infringement.

9) Technological Protection Measures:  Libraries and archives may circumvent technological protection measures to exercise any of the rights provided by this treaty. 10) Contracts:   contractual provisions may not overwrite the limitations and exceptions.

10) Margaret O’Neill Adams, “Analyzing archives and finding facts: use and users of digital data records,” Archival Science 7( 2007):21–36.

11) Maggie Dickson, “Due Diligence, Futile Effort: Copyright and the Digitization of the Thomas E. Watson Papers,” American Archivist 73 (2010): 626-36.