By Luisa Fernanda Guzmán Mejía

After approving the Marrakesh Treaty, the World Intellectual Property Organization (WIPO) will resume the Development Agenda. Now is turn for reviewing the needs of libraries and archives, but will there be political will to do so?

Libraries and archives have the mission to collect, preserve and provide access to knowledge and information. Undoubtedly, they are guarantors of fundamental rights such as freedom of expression and access to information. These institutions contribute for improving education, research and employment, and as a source of entertainment; moreover, they promote the flow of ideas and freedom of thought, creativity and innovation. Due to their important role, they are central axis of cultural ecosystem.

Although libraries invest annually about 24 billion dollars in books, magazines, audiovisual and digital content, and although they serve over 1,000 million users worldwide, there is no clear legal scenario that allows them to perform basic activities of their mission. In some countries, for instance, the public material lending requires the express prior authorization of copyright holders. This puts out libraries in a vulnerable position by implying that their activities are illegal since it is unrealistic to request all these permissions.

The absence of guarantees for the exercise of fundamental rights within the copyright system, such the exceptions and limitations, threatens the effective compliance of the mission of libraries and archives, sentences them to obsolescence and restricts them to provide their services in a traditional consulting room, without the possibility of exploring the potential of the digital environment. This situation is paradoxical especially in developing countries like Colombia, where, in some regions, libraries are the only form of access to books.

According to a WIPO study conducted in 2008, 21 out of 184 Member States of the United Nations agency has no exceptions and limitations for libraries and archives. Meanwhile, only 27 enshrine a general exception that is not very useful. Nowadays the activity of these institutions practically depend on the “goodwill” of authors and rightholders, who have been “so kind” to not bring suit for the works’ uses carried out in most of the countries in the region.

This situation will be analyzed precisely in the WIPO Standing Committee on Copyright and Related Rights (SCCR), the committee responsible for these subjects, which will meet from 16 to 20 December in Geneva.

In Search for a Solution

In 2004, Brazil and Argentina proposed the Development Agenda in order to integrate the UN Millennium Development Goals into all WIPO activities. That same year, Chile proposed advancing a WIPO consensus on minimum standards to guarantee libraries, archives and the education system to fulfill their mission, and for people with disabilities to exercise their rights. In this context, exceptions and limitations should be considered in all legislation for restoring the balance between rights of rightholders and users.

The Interests at Stakes: Proposals and Positions on an International Instrument for Libraries and Archives

In 2008, under the Development Agenda’s “umbrella”, Brazil, Chile, Nicaragua and Uruguay posed a work proposal that followed the original Chilean initiative.

In 2011, this work-plan was completed on two different regulatory proposals:

a. The African Group submitted a project, with a holistic approach, which recommended a treaty for benefiting people with disabilities, teaching and research institutions, and libraries and archives. However, it was decided to address them separately at WIPO.
b. Brazil, Ecuador and Uruguay introduced a complementary proposal to the African Group project, which incorporates the considerations of a sectoral document (result of the effort of the International Federation of Library Associations –IFLA–, the International Council on Archives –ICA–, the Electronic Information for Libraries –EIFL– and Innovarte) that Brazil had previously submitted to WIPO.

These treaty proposals seek essentially to establishing minimum legal guarantees within the copyright system for libraries and archives to preserve the works (including digitization), reproduce and provide copies, facilitate legal deposit, lending and parallel import, cross-border uses, use of orphan works, withdrawn or retracted right; circumvent technological protection measures, carry out translations and make explicit the liability limitation for these entities for the illegal acts that their users may commit.

It is worth stating that the Marrakesh Treaty already solved one of the great difficulties of libraries and archives when providing services to people with visual disabilities. This, however, requires that these institutions are considered authorized entities in the treaty national implementation.

Despite calls for a treaty’s signing, the truth is that the instrument nature is not yet defined. This reflects the tensions between developing countries (in favor of a treaty) and developed countries, which undoubtedly seem to lean towards a non-binding instrument (recommendation, model law, etc.). The United States has expressed its reluctance to negotiate a treaty on the subject. The delegate has argued that their legislation already included specific exceptions and limitations for libraries, and that they have the fair use doctrine.

Meanwhile, the industry, led by the International Publishers Association (IPA), has argued that existing flexibilities are not only adequate but also preferable. There is no need for new binding international rules that restrict freedom of development of locally adapted exceptions. Similarly, the representative of this organization (that sometime has even worked jointly with IFLA) has stated that the circumstances for the Marrakesh Treaty’s adoption were special and unique due to simple humanitarian reasons, which in his opinion are not extendable to the libraries and archives case.

Next meeting at WIPO

The agenda for December at WIPO SCCR involves working on a proposed treaty to protect broadcasting organizations and two other proposals on exceptions and limitations (for libraries and educational uses). For that reason, we believe the first obstacle to be overcome will be the definition of the agenda.

Group B countries or developed countries (the European Union and the U.S.) want to prioritize the treaty for the protection of broadcasting organizations. Precisely the Central Europe and the Baltic States Group (CEBS) proposed a roadmap for expediting the works of the SCCR by refining the text and with an eye on a diplomatic conference in 2015. Meanwhile, the Development Agenda Group (Brazil) and the African Group do not share this approach. They prefer to give priority to the exceptions and limitations. But it is likely that the balance tilts the other side.

Many believe that WIPO was very worn out after Marrakesh’s negotiation, hence it will need a break to come back to the Development Agenda’s issues, more controversial among members because it implies building a guarantee system for users. Most likely, the broadcasting treaty will be used to create such space.

Karisma Foundation will attend this WIPO session to strengthen the civil society participation in the region and to monitor the position of the Colombian government, which unlike countries like Argentina, Brazil, Chile, Ecuador and Uruguay has not been very active on such relevant issues.

Luisa Fernanda Mejia Guzman is a lawyer and researcher at Karisma Foundation’s Law, Internet and Society Group. Twitter: @ lfdagm