In 2018, a fire in the building of the National Museum of Brazil in Rio de Janeiro almost completely destroyed its historical collection, which had accumulated over about two hundred years. In 2021, South Africa also lost a part of its history in a devastating fire at the University of Cape Town, which took the famous Jagger Library. Due to copyright restrictions, collections from these institutions disappeared because they had not been backed up.
In 2019, WIPO member states identified preservation in libraries, museums, and archives as a priority issue and decided to develop a toolkit to toolkit targeted technical assistance in these countries. In 2023, preservation and the development of the toolkit for these institutions were included in the new work program within the long-standing discussions on exceptions and limitations in the Standing Committee on Copyright and Related Rights (SCCR).
In 2024 the WIPO Toolkit on Preservation was launched in Bogota. This happened at an event in early September where WIPO, in collaboration with the Colombian National Copyright Directorate, presented this document at the Luis Angel Arango Library with an international seminar entitled ‘Safeguarding cultural heritage in libraries, archives and museums through copyright law’. The authors of the toolkit attended the seminar: Kenneth Crews, Rina Pantalony, David Sutton and Sylvie Forbin, Deputy Director General, Copyright and Creative Industries Sector of WIPO.
The launch of this toolkit in five languages: Arabic, Chinese, English, French, Russian, Spanish, and French is a piece of necessary and urgent news that with the Colombian event begins its tour around the world.
About the toolkit.
This toolkit will serve as a navigation chart for copyright officers and cultural heritage professionals to build the exception for the preservation of material in libraries, museums, and archive collections using digital technology. The document will also help policymakers around the world understand the copyright provisions that libraries, archives, and museums need to preserve documents, films, and other cultural heritage materials in their custody. The toolkit explains the rationale and need for a preservation exception, and discusses the criteria for drafting such an exception: format neutrality, proactive preservation, and cooperative preservation programs.
While arriving to this toolkit, WIPO recognized the inadequacy of copyright laws in many countries and that early preservation (before deterioration or loss occurs) is essential to avoid threats to cultural heritage such as fires and floods caused by climate change, as well as illicit trafficking.
Concerning the toolkit, before concluding this analysis, it is necessary to talk about what it does not address, which is the dissemination of the works, i.e., it does not deal with making conservation copies available. From the civil society that follows the WIPO agenda with a view of public interest and access to knowledge, we have criticized the decision to separate conservation (copying) from access. After all, institutions conserve works to use them; it does not make sense to do so only for them to gather dust. The consolation is that this event reaffirmed that WIPO is working on a new toolbox to address the issues of access to preservation copies, we will have to be patient.
There was a full house at the Bogotá launch.
The launch event had an impressive turnout, some people could not even enter the place. It makes sense, libraries, museums, and archives have been exposing for years the doubts and copyright barriers they face when fulfilling their mission.
On the first day, in addition to local experiences in digital preservation, voices and specific questions could be heard. Among the doubts, participants in Bogotá prominently expressed their frustration with the uselessness of the rules for using the orphan works they keep and complained about the lack of regulation on the legal process in Colombia.
That day the future beneficiary organizations of a preservation exception were actively voicing their problems. The experts’ answers to those problems mostly encouraged “risk assessment” strategies rather than the guide exception. That is, to make an effort to identify who should authorize the use, document the process, and decide whether to assume the risk of the use they want to make. They added that “there are rarely lawsuits,” but it may be appropriate to set up a fund for that eventuality.
The second day’s panel of “stakeholders” was dominated by the entertainment industry’s authors and rightholders view, but one lawyer stood out talking from an access to knowledge perspective, Marcela Palacios.
The contributions to the panel confirmed that authors and rightsholders are not particularly concerned about preservation exceptions, they have made it clear that dissemination is what concerns them, and their proposal for dealing with access is paid licensing. For them, this is the solution that solves everything. I regret that the lack of diversity on the panel did not problematize this vision and present alternatives.
As expected, it was Marcela Palacios who made a dissonant intervention, explaining the challenges that memory institutions face in terms of the type of materials they need to preserve, use and disseminate. But not only was her presentation different in this respect, her intervention was the only one that was not followed by a request for applause, nor was it praised. The commentary on her intervention was to explain the problematic of her approach, her concern was minimized, in the end what memory institutions need is to work with materials that usually do not reach the condition of a work to be protected, such as testimonies, she was told.
One of the criticisms of the authoritarian approach is its navel-gazing about the products of the cultural industry and their uses. If the diversity of actors who face problems of preservation in cultural heritage institutions had been invited to the panel, such as those who participated in the Truth Commission or those who work in memory houses or libraries with work on memory and truth, those who work on these issues would have confirmed what Marcela said, explaining, for example, how they have to access and preserve news. In fact, the day before, the Colombian public television program “Señal Memoria” pointed out that they often carry out risk assessments to define how to use the materials they preserve. It must be said that the signs of approval from the audience for Marcela Palacios’ intervention were a clear affirmation of support.
Another thing that caught my attention at the event was the way in which the WIPO experts insisted in their explanations that the toolkit should be read as a way of learning about the different legal options for preservation so that one can decide locally which one works best. For example, when presenting the toolkit in relation to who would benefit from the exception, they explained that there are laws that speak generally of non-profit institutions, others of non-profit activities, while others will say that it is certain activities of certain institutions that are not for profit.
This leads to another criticism of this toolkit as a model for the global campaign on exceptions and limitations around the world. The purpose of WIPO’s exceptions and limitations agenda is to solve the problems that exist due to the lack of provisions to protect the public interest, and this should not be done on the cheap, it requires standardization that truly protects the rights of users. Giving options as restrictive as the third in the list is promoting options with useless exceptions that do not solve the problem that the toolkit itself recognizes. It may be the complacent nature of the toolkit that makes it so well received by all, and yet it must be remembered that it is an exercise in balancing rights, and that is the key when it comes to implementation.
Regarding Colombia. I hope that this event is a sign of the commitment of the country – especially of the National Copyright Directorate – to move forward with the public hearing on limitations and exceptions that should have been held by law since 2021. Even WIPO says that countries need to catch up on exceptions, so let’s make a list of what’s needed and start the legislative process. For now, let’s celebrate the news.
