Panel 4: Limitations and Exceptions to Rights Appraising the WIPO Broadcast Treaty and its Implications on Access to Culture October 2018, Geneva Teresa Hackett

Examples of uses of broadcast material in libraries Principles for L&Es Review proposed L&Es

“There is now a growing acknowledgement that television and radio programming is just as important in terms of our cultural and social heritage as printed material held by libraries or artefacts found in museums.” Chief Executive, Broadcasting Authority of Ireland (BAI), June 2018 Part of €7.8m archiving project to safeguard Irish broadcast heritage.

Civic education and community information Examples of uses of broadcast material in libraries (EIFL partner countries) Research and study Civic education and community information  

Research and study e.g. film studies, history, social sciences, etc. University of Botswana Library: special collection on black history; American University of Armenia library: supports teaching on genocide studies.   Latvia: TV broadcasts 1963-2012 digitized available through public library network (70%), and online (30%).

We need exceptions to cover these types of uses. Civic education and community information Botswana: public library access to radio and TV shows e.g. Opening of Parliament, Independence Celebrations, President Day Celebrations, wildlife programmes for children. Senegal: Universite of Cheikh Anta Diop (UCAD) in Dakar library, films for World Environment Day. We need exceptions to cover these types of uses.  

Principles for L&Es Do no harm. Exceptions must be mandatory. The treaty must be future-proof.   Do no harm. No-one should be worse off in terms of L&Es under the treaty. If you currently have a lawful right to use a work (through an exception), the treaty should not deprive you of this right.   Exceptions must be mandatory. An exception to a literary work in national law must have a corresponding exception to the signal protection. The treaty must be future-proof. Just maintaining the status quo is not enough. There must be a mechanism to cater for new exceptions that are introduced for content. Otherwise the treaty will be out of date as soon as it is adopted.

Preservation If material is not preserved, it won’t exist. Digital preservation is just as complex as analogue: source material (stills, sound tracks, footage), formats, storage, migration, technical obsolescence. ‘The dilemma of archiving digital content is the same as it was for analog: how do we preserve the substance of a medium while its physical containers decay or grow obsolete?’ CLIR - Council on Library and Information Resources

We can’t leave preservation only to broadcast organizations. Lost programes. Partnerships: American Archive of Public Broadcasting - Library of Congress and a public broadcaster (WGBH) We can’t leave preservation to the market. Only programmes considered profitable would be digitized. Preservation is expensive.

Proposed L&Es SCCR/13/3 CORR proposal by Brazil SCCR/13/4 proposal by Chile SCCR/27/2 REV DOCUMENT prepared by the Secretariat SCCR/35/10 by Argentina, Brazil and Chile SCCR/36/6 REVISED CONSOLIDATED TEXT prepared by the Chair ‘Do no harm’ test: L&E proposals are optional, they should be mandatory.  Burden of ensuring that L&Es are adopted cannot be placed on civil society.

Proposals we like (if made mandatory) SCCR/13/3 CORR proposal by Brazil SCCR/13/4 proposal by Chile SCCR/27/2 REV DOCUMENT Alternative C for Paragraph 10 SCCR/35/10 by Argentina, Brazil and Chile Enumerated list of L&Es + general provision “Use by libraries, archivists or educational institutions to make publicly accessible copies of works...for purposes of preservation, education and/or research” (SCCR/13/3, SCCR/27/2 REV Alternative C, SCCR/35/10) “Use by publicly accessible libraries or museums, or by archive services, which do not seek economic or commercial benefit”. (SCCR/13/4)

Other proposals SCCR/27/2 REV DOCUMENT Alternative B for Paragraph 10 SCCR/36/6 REVISED CONSOLIDATED TEXT prepared by the Chair General carry-forward provision. Benefits countries that have L&Es but doesn’t help countries that don’t. New copyright exception + no signal exception. More confusion, less harmonization. ‘Contracting Parties may, in their national legislation, provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide, in their national legislation, …’

Multiple layers of rights – more rights to clear, more cost Cautionary tale State and University library of Aarhus in Denmark (now The Royal Library, Aarhus) wanted to publish a sound recording from their archive originally broadcast in 1950s. Recording taken from a re-broadcast in the 1980s. Performers' right had expired, author's heirs waived their fees due to the cultural importance of the work But the library had to pay broadcast organization c. $10,000 for permission to use the recording because signal protection also applied to the retransmission. Information provided by Harald von Hielmcrone, Copyright Officer, State and University library of Aarhus (2010).

In conclusion Unless broadcast treaty has robust, mandatory exceptions, it will become more difficult to clear rights and more costly for publicly funded institutions. Less broadcast material will be available. Increased awareness of the importance of L&Es in the copyright system. After Marrakesh, and discussions on L&Es at SCCR, inexplicable for WIPO to adopt a treaty without proper L&Es.

Thank you.