Catherine Saez for IP Watch, Link (CC-BY-NC-SA)
The age of digitisation has opened new doors to distribution of information including for libraries and archives. However, librarians and archivists are often confronted with risk of liability for copyright infringement, nationally and in cross-border activities. This week, they asked the World Intellectual Property Organization copyright committee to provide them not only with some exceptions to copyright, but with protection against liability.
The WIPO Standing Committee on Copyright and Related Rights (SCCR) is taking place from 14-18 November. On the SCCR agenda is copyright exceptions and limitations for libraries and archives. On 17 November, librarians and archivists took the floor to explain why an international standard protecting them against liability is indispensable.
All of the representatives of library and archivist associations told the SCCR that both librarians and archivists are law-abiding organisations, trying their best to respect copyright law, but laws are complex to navigate and librarians and archivists run the risk of infringing copyright without intent.
The Society of American Archivists said the current technology enables archivists to have a global impact, but the risk of litigation “holds us back from the digital age.”
Archives are not locked away as treasures but include everyday items such as letters, reports, photos, and computer files. Archivists are not asking for free rein, the representative said, but assurance that doing their basic work is not going to expose them to costs of legal fees or penalties, exhausting their “meagre budgets.”
“We need a safe harbour so we can perform our work in good faith,” the representative said.
The International Federation of Library Associations and Institutions (IFLA) said copyright laws are complex and librarians and archivists are trained professionals but not lawyers. Many libraries and archives are undertaking digital preservation in response to government mandates, sometimes risking infringement in order to fulfil that mandate, the IFLA representative said.
A limitation on liability would provide librarians and archivists with valuable legal breathing space, IFLA said, adding that they should not be liable either in cases of their patrons infringing copyright.
Electronic Information for Libraries (EIFL) also said that few librarians have the benefit of formal training and most do not have access to specialised legal advice. EIFL said it developed a new resource call the Core Library Exceptions Checklist to help librarians.
The German Library Association said copyright codes are becoming “extremely complicated,” and this is particularly true for copyright limitations and exceptions. Germany has exceptions for document delivery, digitising and making available works on dedicated terminals and reading rooms, and for making available parts of works for student classes, the representative said. However, when libraries began to make use of these exceptions, they were confronted with detailed legal discussions and faced lawsuits. Discussions are still ongoing on remuneration and further conditions about the use of the works within the scope of the exceptions, he said.
The European Bureau of Library, Information and Documentation Associations (EBLIDA) said when dealing with copyright law, librarians have to put themselves on the line for the public interest without sufficient legal protection. The representative cited the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001on the harmonisation of certain aspects of copyright and related rights in the information society.
EBLIDA said the directive includes a list of 20 optional exceptions that the EU members can “pick and mix” at will and implement in different ways in their national legislation.
The International Council on Archives (ICA) said where copyright regimes provide for secondary liability, archives and libraries should be exempt from liability for the actions of their users, while the Scottish Council on Archives (SCA) said archivists often find the copyright regime (I think they are talking about their national context… not sure) complicated, confusing and intimidating, in particular within the international context.
The SCA representative also called for a safe harbour which would empower archivists and librarians to have confidence in their own good faith interpretation and application of the law.
The African Library and Information Association and Institution (AfLIA), newly accepted as observer to the SCCR, said their members are committed to the value of providing access to knowledge in a balanced way, which offers fair remuneration to rights holders but maximises the value of books and other resources for learning, creativity and development.
Librarians do not deserve to be treated as criminals when they make an honest mistake, the AfLIA representative said. If laws were clear, there would be little need for lawyers, she said. In an institution running on a shoestring budget, legal action could be fatal, she added.
The fight against piracy cannot be won if librarians, who were key partners in delivering a balanced, legitimate, sustainable copyright system, are first in the firing line, she said.
Museums Too
Meanwhile, the International Council of Museums (ICOM) said museums, too, should be added to the list of beneficiaries of copyright exceptions proposed for libraries and archives at the SCCR, including limitations on liability.
Museum collections include archival materials and library collections, and museums engage in scholarly pursuit and communication similar to libraries and archives, he said, and libraries and archives often hold object and artifact collections similar to museums.
Journalists: World Needs Independent Journalists
International Federation of Journalists (IFJ) said more clearly than in any recent time, the world needs ethical journalism. Despite the failings of some newspapers, the work of individual, independent journalists remains the best bastion against arbitrary power and the gaining of that power through a mixture of falsehood and rumour amplified by the echo chambers of electronic gossip.
The IFJ representative defended the necessity of authors’ rights and denounced “internet corporations” seeking a fortune selling advertising alongside other people’s creative work. He called for the SCCR “not to be swayed by the promise held out by some that opening up creative work for use without remuneration offers some kind of golden era of free information.”
He said libraries, archives, and educational institutions should have the legal certainty that they need to play their utterly essential part in insuring an informed citizenry, and called for those institutions to be well-funded so that the use they make of authors’ works is compensated because as libraries move online, as libraries form partnerships with “certain internet corporations,” their activities become close to publishing in some respects and they affect the income of authors. SCCR needs to refocus on supporting creativity, he said.
Some countries such as those in the African Group and Brazil, also said that a limit on liability for copyright infringement for libraries and archives is necessary, when the alleged action is performed in good faith.
The United States commented on its particular national exceptions and also said member states should recognise limitations on the liability of certain types of monetary damages applicable to libraries, archives, and other relevant institutions, when acting in good faith.
The European Union said the issue of liability of libraries and archives is not addressed under the European copyright framework but can be addressed at the national level by member states and by other areas of law.
Divide Still Clear on Limitations and Exceptions
The subject of limitations and exceptions at the SCCR is still unresolved. A number of developing countries are asking for a treaty establishing exceptions and limitations for libraries and archives, and also for educational and research institutions, and persons with disabilities other than visual impairment.
Some developed countries, such as the European Union, and the Central European and Baltic States, are saying that exceptions and limitations already included in international copyright laws can be applied at national level. Those countries are in favour of exchanging national experiences for the benefit of all member states.
Nigeria, speaking for the African Group, said on 17 November that the outcome of the SCCR discussions has to go beyond an exchange of ideas on national experiences.
