[Prepared by Kenneth Crews for the 29th Session of the SCCR, Link] INTRODUCTION: A study of copyright exceptions and limitations for libraries and archives, commissioned by the World Intellectual Property Organization and delivered in 2008, provided a foundation for the subsequent consideration and evaluation of the issues by delegates from the WIPO member states.[1] The original study was conducted by Dr. Kenneth D. Crews on behalf of WIPO, and he was again commissioned to be the principal investigator for the present 2014 report. This report offers a significant update and expansion of the 2008 study. First, the combined 2008 and 2014 studies offer analysis of the copyright laws from all but one of the WIPO member countries. Second, this 2014 project identifies countries that have revised their relevant statutes since completion of the 2008 report. These statutory revisions confirm an ongoing need for legal change and reveal specifically the relevant copyright issues on which lawmakers in diverse countries have taken legislative attention.
With greater accessibility of statutes and other legal resources, especially from the online collection of “WIPO Lex,” and with easier access to translation services, most gaps in the 2008 study have been closed. In 2008, WIPO membership comprised 184 states, and the 2008 study analyzed copyright laws from 149 countries. Membership today has grown to 187 states. The combined 2008 and 2014 reports encompass the copyright laws from 186 of those countries. Accordingly, the first section of this 2014 report includes new charts from 37 countries that were not included in the 2008 study. The charts are patterned on the analytical structures found the in the original study. The second section of this 2014 report includes revised charts or other in formation related to the copyright laws of 36 countries. All of these countries were included in the 2008 study, but research has identified changes in their relevant law during the intervening years.
Library exceptions are clearly fundamental to the copyright law of most countries. Of the 186 member countries, only 33 were identified as having no copyright exception in their statutes. Thus, 153 of the countries have one or more statutes that constitute a “library exception” within the scope of this study. The statutory library exceptions primarily address issues such as reproduction of copyrighted works for private research and study, preservation and replacement of materials, and document supply and interlibrary lending. Some issues that were prevalent in the 2008 study have not appeared frequently in more recent statutes. For example, the 2008 study examined statutes governing copying machines at the library and limitations on liabilities for infringements. This 2014 update reveals that relatively few countries have taken up these issues in their recent legislation.
Despite the trend toward inclusion of familiar subjects, the details of the copyright statutes can vary greatly from one country to the next. Moreover, when national statutes reach beyond familiar subjects, the developments stand out. Two such subjects were identified in the 2008 study and appear more often in this 2014 update. First, a growing number of countries have instituted a provision from a European Union directive regarding the ability of libraries to make digital copies of works available for study at dedicated terminals on the library’s premises. That concept has been adopted by many E.U. countries, but it also has been implemented by some countries outside the E.U. Second, many countries have adopted statutes on anti-circumvention of technological measures, and the statutes now more regularly include exemptions for the benefit of libraries.
Only a few countries have revised their statutes in recent years with elaborate language and extensive new provisions that are largely original to the country. For example, the United Kingdom in 2014 enacted an extensive array of copyright exceptions. The revised library exceptions encompass the familiar concepts such as preservation and research copying, but with clearer and more detailed application to diverse materials, and with more explicit application of digital technologies. Another example is the Russian Federation. Major revisions of its copyright statutes, also in 2014, include provisions that extend the former law to new uses and new technologies. Russian law also includes distinctive provisions supporting library services for the benefit of blind persons. Although not explicitly about libraries, the new Russian statutes include original language permitting “open licensing” of copyrighted works for public use. France and Japan have granted their national libraries broad rights to digitize many out-of-print books and to make the digital files available to readers at many libraries throughout each country. In yet other countries, the recent changes have been modest, resulting in little appreciable alteration of the substance of the law.
The 2008 study identified some patterns in lawmaking, attributing some trends to historical and regional influences. That study pointed to certain multinational agreements as the source of some developments in domestic legislation. That trend has continued. The role of the European Union is strong, with direct effect on its 28 member countries, but also evidence of influence on the laws of other countries that may be looking to the E.U. as a trade partner or simply as a source of ideas. The Bangui Agreement among 17 African countries also seems to have wide influence.[2] In recent years, several countries in Africa and a few outside the continent have revised their statutes to add language on preservation and research copying; the language often parallels the library provisions of the Bangui Agreement.
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