Library Privileges and Educational Freedoms: Limits, Limitations and Licenses Prof. P. Bernt Hugenholtz Institute for Information Law, University of Amsterdam WIPO Regional Symposium, Hong Kong

2 Contents Drawing the Boundaries of Copyright –Direct limits to exclusive rights –Statutory limitations or exemptions –Compulsory licenses Voluntary licensing –What will happen to user freedoms? –Extended collective licenses Conclusions

3 Copyright’s ‘Delicate Balance’ WIPO Copyright Treaty (1996), Preamble: ‘Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research, and access to information, as reflected in the Berne Convention.’

4 Why Limitations are Important Protect free flow of information: –Quotation, news reporting, political debate, scientific discourse Promote dissemination of culture & knowledge: –Library uses, archiving, musea –Educational uses –Public broadcasting

5 EC InfoSoc Directive: Permitted Limitations Reproduction right Repro & communication right –Reprography* –Private use* –Libraries, schools, museums, archives –‘Ephemeral’ recordings –Hospitals, prisons* *‘fair compensation’ –Teaching & research –Disabled –News reporting –Criticism & review –Proceedings, speeches –Religious ceremonies –Public places –Exhibitions –Parody –Demonstration, repair, reconstruction –Library networks –Existing analogue exemptions

6 Drawing the Boundaries of Copyright Direct limits to exclusive rights Statutory licenses (limitations, exemptions) –In some cases: right to remuneration Role for collecting societies –In some cases: unless licensing schemes (UK, HK) Compulsory licenses –Special faculties for developing nations Extended collective licenses

7 Direct limits to exclusive rights (‘carve-outs’) ‘First sale’ (exhaustion) rule: –Resale of school books permitted –Public lending permitted but: public lending levies in many countries commercial video/CD rental usually not permitted

8 Statutory licenses Library privileges Preservation, replacement copies Obsolete formats Photocopying (parts of work) on demand –Library patrons –Interlibrary loans Making of abstracts Library networking

9 Statutory licenses Educational uses Instruction (‘illustration’) –Onsite (performance, display in classroom) –Distance learning Anthologies, syllabi Other educational (photo)copying Recording, use of broadcast programs

10 Compulsory licensing Special facilities for developing countries Berne Convention, Appendix: –Translation and reproduction for educational uses of foreign works permitted under strict conditions: Translation not published in local language or edition not available in local market Bona fide attempt to seek permission –Developing country must make declaration TRIPs leaves Appendix intact

11 Voluntary Licensing Voluntary licensing is on the rise –Scientific publishing, online databases Publishers – library/university –Library and educational reprography Rights organisation – library/university

12 Voluntary Licensing Problems (1) What about statutory user freedoms? –Are exemptions ‘user rights’ or ‘overridable’? EC Software Directive: right to make back-up copy –Codify set of non-overridable freedoms?

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14 Voluntary Licensing Problems (2) Does rights organisation really have the rights? ‘Extended’ collective license (Nordic countries) –Terms of collective license offered by rights organisation ‘extended’ to all right holders Educational copying Photocopying in libraries, public institutions

15 Conclusions Limitations reflect varying social and cultural needs and traditions –No ‘one size fits all’ solutions –Variety of legislative techniques International framework leaves broad discretion to national lawmakers –Subject to 3-step test Limitations are here to stay