IFLA will be participating actively in the 46th meeting of the World Intellectual Property Organization’s (WIPO) Standing Committee on Copyright and Related Rights on 7-11 April in Geneva. Our main ambition: that the Committee delivers relevant and meaningful outputs that support the work of libraries and their users worldwide.

Background

WIPO’s Standing Committee on Copyright and Related Rights (SCCR) is the primary global space for discussing how copyright frameworks are designed. It brings together heads of copyright offices and other officials, as well as diplomats and civil society.

Its highest profile outputs are Treaties, such as the Marrakesh Treaty of 2013, which created an obligation for signatories to remove copyright-related barriers to making and sharing accessible format copies of books and other materials for people with print disabilities.

Treaties represent a powerful tool, creating a pressure for reform, as well as providing clarity about what governments can and cannot do. Given that capacity is limited in many countries, that there are often many other priorities, and that there can be intense pressures from private interests, action at the international level can be very impactful.

IFLA engages at WIPO in order to advocate that this potential is realised in order to ensure that libraries and their users are able to work within copyright frameworks that align with their missions, including the preservation of heritage, and support for access to knowledge, research, education and culture. These are typically enabled through limitations and exceptions to the rights awarded to rightholders.

At the moment, libraries face a triple threat:

  1. a world where many countries have never even had a copyright framework that supports the work of libraries, let alone in the digital world. This leads to intense legal uncertainty for libraries who are expected to fulfil their missions, but without any guarantee of protection from prosecution. We need to stimulate reform.
  2. a structural weakness in the international copyright framework, which creates uniform rights, but not uniform exceptions, meaning that library users have different possibilities from one country to the next, and that libraries themselves can struggle to work across borders. We need an international solution.
  3. a transition from physical to digital media increasingly means that it is not the law, but contracts that determine what is possible. The consequence of this is that library users’ access to knowledge depends on the ability of their library to negotiate a good deal. We need to ensure that contracts cannot undermine the law.

A chance to make a difference

In this broader context, discussions at SCCR focused on limitations and exceptions to copyright for libraries, archives, museums, education and research provide an opportunity to highlight needs.

After a number of years of discussion around studies, as well as efforts led by various chairs to define common principles, we come into the 46th meeting with a concrete action plan on the table to develop sets of objectives and principles around limitations and exceptions, as well as other tools.

There are three potential areas of focus – preservation, digital and cross-border education, and a review of the Marrakesh Treaty.

We welcome an effort to move beyond purely descriptive efforts. For example, we have been grateful for work around toolkits – for example the one on preservation offers practical insights on how governments can create a preservation statute. However, demonstrating what is possible is not the same as making clear that it is desirable to have well adapted laws in order to deliver on cultural rights, as well as to contribute to the safeguarding of the memory of the world.

As a result, we will be encouraging Member States to make a firm commitment to advancing work at least to establish objectives and principles that underline the value of providing libraries with the copyright frameworks they need to fulfil their missions. Such a step will complement existing work on toolkits and studies.

Preservation certainly represents the most mature and consensual topic. Crucially, nonetheless, we will be underlining that it is not possible to address preservation in isolation.

Enabling access is essential. Without this, all that preservation and conservation activities will do is create ‘dark archives’ of materials which only become available once they fall into the public domain. Given that the justification of investment in preservation is precisely in order to enable ongoing use, efforts will likely be focused not on those materials that are most vulnerable or important, but on those that raise the fewest legal questions.

We also need a clear pathway forwards around education and research in a digital environment, as well as access for persons with disabilities, all of which represent core activities of libraries. And throughout this work, we continue to argue that the Committee must adhere to its mandate to develop legal instruments which offer the only meaningful solution to the challenge of the inconsistency of laws between countries.

Keeping it relevant

Exceptions and limitations to copyright for libraries, archives and museums are not the only thing on the agenda at SCCR.

There appears to be momentum behind the proposal for a Treaty on Broadcasting, creating new rights for broadcasters, apparently in order to provide a response to concerns about piracy.

The whole proposal, which is decades old, is arguably no longer relevant. In addition to the transformation of the broadcasting sector with the switch to training, there are fundamental questions around the impact of any new rights on activities beyond short-term piracy of sports content, and the effectiveness of new rights in achieving the goals set out.

The overall priority for libraries in this discussion is to ensure that, if a Treaty advances, it does not make the work of libraries working with audiovisual collections more difficult. This will be the case if it means that libraries need to clear additional rights in order to preserve and give access, for example. Currently, libraries are already restricting preservation work around audiovisual materials, or scared to share their catalogues of audiovisual materials, for fear of legal action. We cannot make this problem worse.

Another issue on the agenda is a study on Public Lending Rights. Already from the first calls for work on this issue, we have expressed concerns about the scope of this work, underlining that such rights are not covered by international law, that they are rather a question of cultural policy, and that they are of limited relevance. We have also been concerned that this work has been driven by private actors who want to install (and administer) such programmes in developing countries.

IFLA’s global position is to oppose such programmes in principle, in particular in developing countries where libraries often do not even have acquisitions budgets and spending is likely to lead to a fall in wider spending on libraries. Where such schemes exist, we recommend that they operate in a way that minimises costs for libraries.

The resulting study provides useful information, but also contains a of errors and focuses on those (primarily European) countries where Public Lending Rights schemes exist. Now, in line with the claim by those promoting the study that the topic should disappear from the agenda once this work is completed, we believe that it is time formally to close discussions.

Finally, there will be an information session focused on questions around copyright and artificial intelligence. With this topic attracting huge attention in many national and regional contexts, questions are being raised about how to regulate AI in order to avoid harm to the creative sector, as well as to address other problems.

Our focus in this work is on ensuring that whatever rules are implemented will support libraries in our mission to support research, education and cultural participation. An important point is that copyright is far from the only tool available, and that any eventual action should pay close attention to the full range of options, and choose those that are most appropriate.

In particular, it is likely that directly addressing actual downstream problems created by AI for the creative industries may be a more effective and proportionate approach than regulating training (other than ensuring that access to training materials is legitimate and ethical).

IFLA will be represented at SCCR by our Head of Delegation, Sara Benson, as well as Rodney Malesi (member of the Advisory Committee on Copyright and other Legal Matters), Tony Kakooza, and IFLA HQ. We look forward to sharing the results of the meeting, while you can follow live via WIPO’s webcast (see the meeting page for more)