Limitations and exceptions for libraries & archives and education have been on the agenda at WIPO since 2011. Work on the topic has been extensive, substantive and has enjoyed much support from most WIPO member states. But two allied groups of member states, the European Union (EU) and the group of Central European and Baltic States (CEBS), have resisted progress and repeatedly opposed discussion on an international instrument concerning limitations and exceptions for education, research, libraries, archives, and museums.

However, a closer look at European copyright legislation, including the Directive adopted by the European Parliament on 26 March 2019, demonstrates that both blocs clearly recognize the inadequacy of the current international framework to address barriers created by national copyrights for cross-border activities by educational and cultural heritage institutions. And they have addressed the problem through the adoption of pan-European legislation. In other words, European copyright reforms demonstrate the need for global copyright reform.

EIFL hopes that the upcoming session of WIPO’s copyright committee will provide an opportunity for the EU and CEBS to share with the global copyright community not only information about the new Directive, but also the policy analysis that underpins the legislation for the benefit of all.

At meetings of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR), representatives of the European Union (EU) and the group of Central European and Baltic States (CEBS), 11 members of which are also in the EU, have resisted progress on an international instrument concerning exceptions and limitations for education, research, libraries, archives, and museums.

Representatives of both blocs have asserted that the current international legal framework is sufficient to address these issues, and no additional instruments are needed, despite strong evidence of the urgent need for international action, efforts by other member states to break the deadlock (for example, in 2014, 2015, and 2016), and scrutiny of the EU’s position from Members of the European Parliament (MEPs).

However, in several European Directives, the EU has recognized that differences in national copyright laws create an obstacle to the cross-border activities of cultural heritage institutions. These Directives demonstrate that the EU and its member states recognize the inadequacy of the current international framework to resolve the impediments national copyrights create for cross-border activities by educational and cultural heritage institutions.

Statements at SCCR/37

The EU and CEBS have repeatedly stated at SCCR that international instruments relating to educational, research, libraries, archives and museums are not necessary because the needs of these institutions can be adequately addressed through national law. At the last meeting of the SCCR (SCCR/37 in November 2018), the CEBS representative stated that although it recognizes the fundamental role of libraries, archives, and museums in social and cultural development, “the CEBS group believes that the current international legal frameworks give enough space for establishing adequate national legislation in this area.”

Similarly, the EU representative acknowledged the role of libraries, archives and museums in the dissemination of knowledge, information, and culture, but stated that “the existing international copyright framework empowers WIPO to maintain Exceptions and Limitations in the national legislation and meaningfully can respond to local needs and traditions…as a result we do not see the need for a new and additional legally binding instrument in this area.”

EU Directives

Notwithstanding these statements at WIPO, EU member states, including countries in the CEBS group, have understood that national copyright laws can create barriers to the cross-border activities of educational and cultural heritage institutions. To be sure, the Directives recognize these barriers in the context of cross-border activities among the different member states of the EU i.e. within the internal market (also known as the European single market).

Nonetheless, the reasoning behind these Directives applies equally to cross-border activities outside the EU. Just as libraries in France and Germany may wish to cooperate in a preservation project, for example, so too would libraries in Spain and Argentina.

• Digital Single Market Directive (2019)

On 26 March 2019, the EU adopted a new Directive intended to foster the development of a Digital Single Market (DSM). The European Commission’s explanatory memorandum in support of its proposal could not be clearer on the need to harmonize national copyright laws to eliminate obstacles to cross-border activities:

“In the digital environment, cross-border uses have also intensified and new opportunities for consumers to access copyright-protected content have materialised. Even though the objectives and principles laid down by the EU copyright framework remain sound, there is a need to adapt it to these new realities. Intervention at EU level is also needed to avoid fragmentation in the internal market.”

In particular, the Commission identified the need “to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU.” The Commission highlighted the importance of enhancing cross-border access to facilitate new uses in the fields of research and education.

The explanatory memorandum specifically discussed the need to harmonize copyright exceptions. The memorandum noted that a degree of harmonization of exceptions and limitations already existed at the EU level.

“However, as new types of uses have recently emerged, it remains uncertain whether these exceptions are still adapted to achieve a fair balance between the rights and interests of authors and other rightholders on the one hand, and of users on the other. In addition, these exceptions remain national and legal certainty around cross-border uses is not guaranteed.”

Accordingly, the Commission identified three areas of intervention: digital and cross-border uses in the field of education, text and data mining in the field of scientific research, and preservation of cultural heritage. The Commission’s explicit objective is “to guarantee the legality of certain types of uses in these fields, including across borders.”

Under a modernised framework of exceptions and limitations,

“researchers will benefit from a clearer legal space to use innovative text and data mining research tools, teachers and students will be able to take full advantage of digital technologies at all levels of education and cultural heritage institutions (i.e. publicly accessible libraries or museums, archives or film or audio heritage institutions) will be supported in their efforts to preserve the cultural heritage, to the ultimate advantage of EU citizens.”

In explaining the need for a EU-wide Directive, the Commission observed that “intervention at national level would not be sufficient in view of the cross-border nature of the identified issues.” Rather, EU intervention was “needed to achieve full legal certainty as regards cross-border uses in the fields of research, education and cultural heritage.”

• Information Society Directive (2001)

The issues addressed in the 2019 Directive were not new to the Commission. The 2001 Information Society (InfoSoc) Directive harmonized copyright law within the EU to a certain extent. The Commission’s explanatory memorandum to the InfoSoc Directive noted that “the increasingly cross-border exploitation of information and entertainment products…implies that significant disparities between exceptions and limitations to the exclusive reproduction right currently allowed under Member States’ laws need to be eliminated as they would inhibit the achievement of an Internal Market for those products….”

The explanatory memorandum focused in particular on the need to harmonize the laws relating to exhaustion of rights (also known as the first sale doctrine). The Commission stated starkly that “the smooth functioning of the Internal Market cannot be guaranteed if Member States apply different regimes in respect of the exhaustion of intellectual property.” The Commission noted that discrepancies in applying the exhaustion principle by Member States could lead therefore to the re-partitioning of the Internal Market into separate national markets and territories. To avoid this result, member states  must “apply the exhaustion principle in a coherent manner.”

Recital 31 of the InfoSoc Directive directly addressed the importance of harmonizing copyright exceptions and limitations:

“Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously.”

• Orphan Works Directive (2012)

In a third Directive, the Orphan Works Directive, adopted in 2012, created a framework by which cultural heritage institutions would be able to make use of works whose copyright owners couldn’t be identified or located. Recital 2 of the Directive recognized the importance of promoting “free movement of knowledge and innovation in the internal market….” Recital 8 directly addressed how the Directive would facilitate cross-border access to orphan works.

“Different approaches in the Member States to the recognition of orphan work status can present obstacles to the functioning of the internal market and the use of, and cross-border access to, orphan works. Such different approaches can also result in restrictions on the free movement of goods and services which incorporate cultural content. Therefore, ensuring the mutual recognition of such status is appropriate, since it will allow access to orphan works in all Member States.”

Other Directives, such as the Software Directive (2009) and the Database Directive (1996), likewise harmonize exceptions (as well as rights) for the purpose of promoting cross-border activity.

Copyright barriers won’t go away on their own

The existing international copyright law framework allows significant divergences to exist in the exceptions and limitations under national copyright law. The EU’s Directives relating to copyright all reflect the recognition that these divergences need to be eliminated in order to promote trade and other activity involving copyrighted works among the EU’s members states. The European Union and its member states understand that without Directives, these divergences would not be eliminated; they would not go away on their own.

The barriers that national copyright law places in the way of trade between two member states of the EU are no different from the national copyright barriers between an EU member state and a country outside the EU, or between two non-EU members. Just as the copyright barriers between two EU member states will not go away on their own, so too the barriers between countries outside the EU will not go away on their own. It is disingenuous, and somewhat illogical given justifications for its own reforms, for EU member states to suggest that they will.

At the next session of SCCR (SCCR/38), that takes place in Geneva on 1-5 April 2019, EIFL believes that it is incumbent upon the EU and CEBS to share with the global copyright community not only information about the new Directive, but also the policy analysis that underpins European legislative developments for the benefit of all.