d[E]u as we say, not as we d[E]u

CREATe’s Founding Director Prof Ronan Deazley describes his attendance at the most recent meeting of WIPO’s Standing Committee on Copyright and Related Rights.

A large consortium of international and regional NGOs representing the cultural heritage sector attended the most recent meeting of WIPO’s Standing Committee on Copyright and Related Rights (SCCR27). Drawn from Europe, Latin America, Australia, the United States, Canada and the UK, the consortium worked in concert to push for an international treaty to help libraries and archives deliver on their mission within a global, networked environment. I was in attendance in my capacity as Copyright Policy Adviser to the Scottish Council on Archives.

During the week-long meeting, NGO representatives spoke to a number of challenges facing the library and archive sector, both in plenary and at a bespoke lunchtime event organised by the International Federation of Library Associations (IFLA) (for a number of the presentations given at that lunchtime event see here). The range of issues addressed included the problem of cross-border exchange and use of library and archive material, orphan and out-of-commerce works, data and text mining, and the extent to which the providers of digital content are increasingly relying on contract to override existing exceptions to copyright.

Unfortunately, on the final day of the meeting, negotiations broke down. A common way forward could not be agreed by the delegates present, with the EU delegation emerging as the villain of the piece. Throughout the week, the EU – as well as other delegations from the Global North – had repeatedly argued that the challenges facing libraries and archives were best addressed at national level. There was, they maintained, no need to debate a set of international norms within this domain. Many other delegations disagreed, with Brazil, Ecuador, India and Kenya taking a leadership role in calling for the development of a binding treaty.

When a draft set of conclusions was set out before the Committee on the final day of discussions, they included the proposal that a new working document would be prepared by the Secretariat (based on the current document SCCR/26/3) but with new text proposals based on the discussions during SCCR27. This document was to provide the basis for the future text-based work to be undertaken by the Committee at SCCR28 later in the year. However, the EU refused to countenance any reference to future ‘text-based work’ on copyright exceptions. The negotiations were derailed, and the meeting ended in disarray in the early hours of Saturday 3 May.

For many, the position of the EU smacks of hypocrisy and naked economic self-interest. Consider, for example, the way in which Europe has addressed the phenomenon of orphan works. Recognising the enormity of the problem that orphan works present to libraries and archives, Europe initially adopted a soft law approach to resolve the issue in the guise of the 2006 Recommendation on the digitisation and online accessibility of cultural content and digital preservation (2006/585/EC); the  Recommendation, however, delivered very little in terms of meaningful activity. In 2011 the European Commission conceded that “soft law [is] not enough to compel Member States to take action in respect of orphan works” (European Commission Working Paper: 2011, 12). An alternative solution was required, and this is turn led to the adoption of the Orphan Works Directive (2012/28/EU) which comes into force in October this year. In short, the Directive introduces a mandatory pan-European copyright exception to enable cross-border online access to orphan works throughout the EU. Where soft law failed, Europe has implemented binding copyright norms. Apparently, however, a soft law approach still represents the best global solution to what is a global problem … at least, according to the EU delegation at WIPO. The message from the EU is simple: do as we say, not as we do.

No doubt certain quarters within Europe will plead the special case of the integrity of the internal market, contending that different solutions are often needed for regional as opposed to global problems. Perhaps so, but it should not be forgotten that the Orphan Works Directive has little if anything to do with commerce. Indeed, its scope is specifically limited to non-commercial digitisation initiatives on the part of cultural heritage organisations. Moreover, as set out in the European Commission’s Impact Assessment on the Cross-border Online Access to Orphan Works (2011), the imperatives underpinning the adoption of a mandatory exception to copyright were principally concerned with the free movement of information across borders, with closing the international knowledge gap, reducing the operating costs and risks for libraries and archives providing pan-European access to their collections, ensuring the best possible access to Europe’s rich cultural heritage for researchers and consumers, and promoting cross-cultural awareness and diversity. These are not issues to be managed within the silo of Fortress Europe. These are concerns of interest to all humankind, and they demand a substantive global response.

NGO Representatives in Geneva

The frustration and disappointment of the NGOs present at WIPO was palpable, and their critique of the EU’s position following the breakdown of discussions has been unanimous and robust. Dr Paul Ayris, President of LIBER, the Association of European Research Libraries, neatly captured the prevailing mood: “The position taken to the EU delegation in Geneva contrasts strongly with current discussions at European level, where it has been recognised that copyright exceptions for libraries are essential, and must be harmonised in order to facilitate international research and innovation in the age of Science 2.0. The conservative position taken at SCCR27 in Geneva this week is therefore deeply disappointing. It does not support research and education and hampers European researchers in their use of new tools and services”. On behalf of the Scottish Council on Archives, I echo that sentiment – whatever interests the European Union were representing at WIPO this week, they certainly weren’t representing the best interests of archives and archivists within Scotland, the UK, or indeed across Europe.

One can only hope for a more constructive and progressive dialogue at SCCR28.

For a joint press release and additional comment from the NGO representatives present at SCCR27, see here.

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