E sccr/34/7 prov. Original: english date: august 4, 2017 Standing Committee on Copyright and Related Rights Thirty-Fourth Session Geneva, May to 5, 2017

AGENDA ITEM 7: LIMITATIONS AND EXCEPTIONS FOR LIBRARIES AND ARCHIVES

6. 
   The Chair introduced Agenda Item 7, limitations and exceptions for educational and research institutions and for persons with other disabilities. Before plunging into the discussions, the Chair wished to share with the Committee his perspectives which he had discussed the Vice-Chairs and some of the Member States who had talked to the Chair about their expectations for that part of the agenda. The Chair stated that everyone in that room, as members of the Committee had a great opportunity and responsibility to make ensure that the corporate system took care of all stakeholders in that system. The Chair stated that in discussions, if members of that Committee could see how those discussions could make a positive impact on the lives of millions of citizens in different countries, struggling with different issues, and on different stakeholders and institutions within those communities, the he as the Chair thinks that if that were the case, then the Committee would have gone to full some of the responsibilities that it had. The Chair stated that copyright had an impact on the lives of every person, as when an app was launched, or music downloaded, or when content was consumed, the enjoyment of those activities, that right, was underpinned in copyright. The Chair hoped that in discussions, the Committee would able to move towards something that was constructive and useful, not from the government perspective, but from the Committee’s perspective. He stated that discussions should go to positively impact the lives of millions, making apparent the usefulness of the work that is done in the Committee. With regard to that part of the agenda, limitations and exceptions for libraries and archives, the Chair invited the Committee to discuss the agenda bearing in mind four documents: document SCCR/26/3, Working Document Containing Comments on and Textual Suggestions Towards an Appropriate International Legal Instrument (in whatever form) on Exceptions and Limitations for Libraries and Archives adopted by that Committee in 2013; document SCCR/26/8, Objectives and Principles for Exceptions and Limitations for Libraries and Archives, submitted by the Delegation of the United States of America; document SCCR/29/4, Consolidation of Proposed Texts Contained in Document SCCR/26/3, prepared by the African Group and the Delegations of Brazil, Ecuador, India and Uruguay; document SCCR/33/4, Proposal Concerning Limitations and Exceptions for Libraries and Archives and Limitations and Exceptions for Educational and Research Institutions and for Persons with Other Disabilities, submitted by the Delegation of Argentina. There were also the two very comprehensive and important studies that had been commissioned by WIPO. There was the study by Professor Kenneth Crews, document SCCR/30/3, Study on Copyright Limitations and Exceptions for Libraries and Archives: Updated and Revised, and the study by Mr. Jean-François Canat and Professor Lucie Guibault, SCCR/30/2, Study on Copyright Limitations and Exceptions for Museums. The Chair highlighted the informal chart, containing 11 subjects that had been identified by Member States and that had been developed by the former Chair in previous sessions of the SCCR. The Chair opened the floor for comments.
   
7. 
   The Delegation of Senegal, speaking on behalf of the African Group, hoped that the Committee’s work would contribute to defining, sufficiently, clear orientation or guidance on exceptions and limitations. The Delegation stated that the importance of exceptions and limitations in developing countries no longer needed to be demonstrated. Exceptions and limitations contributed to strengthening access to knowledge, promoting research and innovation, and they too supported libraries and archives in developing countries, in completing their public service missions, while having broader opportunities in what they provided. On a cultural level, those exceptions and limitations played a crucial role in the area of cooperation, while favoring and safeguarding preservation of cultural, artistic and scientific heritage. They also stroke a balance required between the recognition of rights and the address of general interest concerns. The Delegation stated that it was therefore urgent for the Committee to rapidly establish an appropriate international instrument, in accordance with the mandate to allow libraries and archives to reproduce works or protected documents, under property law, without having to have prior authorization. In that regard, the African Group wished to apply document SCCR/29/4, a compilation of texts proposed in document SCCR/26/3 by the African Group, the Delegations of Brazil, India and Uruguay, as a basis for negotiations on the legal instrument to be established. The Delegation stated that its argument reflected the convergence of regional views on the topics it covered. The Delegation stated that that could also be good for teaching establishments and research and reiterated its 2012 proposal to bring together the texts on exceptions and limitations in favor of libraries and archives on the one side, and teaching establishments and research establishments, on the other hand. The Delegation believed all of the resources of the Committee had been sufficient to allow it to achieve significant results.
   

6. 
   The Delegation Thailand, speaking on behalf of the Asia Pacific Group, reiterated that exceptions and limitations were of critical importance. Application of copyright system had to be balanced and had to take into account the interests of copyright holders, and equally important, had to take into account other competing interests in copyright, including the public interest in scientific, cultural, social progress and the promotion of competition. The Delegation hoped that all Member States would engage constructively in that session, so as to continue to make progress on that issue.
   

6. 
   The Delegation of Georgia, speaking on behalf of CEBS, acknowledged the fundamental role played by libraries and archives in social and cultural development. The Delegation welcomed discussions over the issue of facilitating the fulfillment of the public interest undertakings by the libraries and archives. It acknowledged that alternative approaches adopted by the Member States, and the rich exchanges of best practices, were a solid ground to elaborate a national legal framework that integrated the local needs and could serve as an example for other Member States in that Committee. The Delegation thanked the Chair for his work on the first revised draft on limitations and exceptions for libraries and archives and stressed that the Committee take note of the document which explained how exceptions and limitations functioned officially at the national level, within the framework of the existing international treaties. The Delegation stated that it was not in a position to favor the legally binding international instrument on exceptions and limitations for libraries and archives. The Delegation envisaged the possible outcome of the discussion in that Committee as guidance on the national implementation of the international treaties.
   

6. 
   The Delegation of Turkey, speaking on behalf of Group B, supported the view that libraries and archives played a particularly important role in cultural and social development. As had been described by studies presented during previous sessions, many countries had already established their own exceptions and limitations for libraries and archives, which worked well in their respective legal domestic systems, within the current international framework. The Delegation stated that the work of that Committee had to be shaped in a manner reflecting that reality and complimenting the well-functioning current framework. The Group appreciated the aim of the Committee’s discussion, which was to reach a better understanding of the topics with regard to working methods. The Delegation was ready to continue the discussion from previous sessions, in order to explore common ground upon which the Committee could stand. The Delegation stated that the Committee should fully regard the reality that no consensus existed within that Committee for the work, and that that reality should be duly considered as members looked to work together. The Delegation highlighted that the objectives and principles proposed in the document SCCR/26/8, on the topic of exceptions and limitations for libraries and archives, could complement the Committee’s work on exceptions and limitations for libraries and archives.
   

6. 
   The Delegation of Colombia, speaking on behalf of GRULAC, recognized that in all Member States there were challenges facing libraries and archives, and given that situation, the Committee’s debate should draw possible solutions to those problems. The Delegation was very interested in continuing the debate on the proposal put forward by the Delegations of India, Uruguay, Brazil and the African Group, document SCCR/29/4, and on the proposal presented by the Delegation of Argentina, SCCR/33/4.
   

6. 
   The Delegation of China realized that exceptions and limitations were very important for innovation and for the exchange of culture. In order to better preserve civilization, especially in the digital environment, and in order to better satisfy the role of archives, libraries and educational institutions, the Delegation believed that continuing that discussion was very important. The Delegation had domestic legal framework, but was willing to participate in the discussions in that Committee constructively.
   

6. 
   The Delegation of the European Union and its Member States reiterated its belief in the crucial function of libraries and archives for the dissemination of knowledge, information and culture, and the preservation of history. The Delegation continued to believe that there was merit in discussing how a balanced international copyright framework could enable those institutions to fulfill their public interest mission, while continuing to ensure that copyright was an incentive and reward to creativity, and was willing to engage constructively in those discussions. The Delegation stated that its favorite approach remained one where the work in that Committee focused on how exceptions and limitations could function efficiently within the framework of existing international treaties, and where WIPO Member States took responsibility for their own national legal frameworks supported by an inclusive exchange of experiences and best practices, and when necessary, the assistance of WIPO. The Delegation believed that a meaningful way forward could be to focus on thorough and systematic understanding of the problems faced by libraries and archives against their needs, giving full consideration to the solutions provided by innovation and relevant markets and those available under the current international framework. The Delegation stated that it had engaged in the discussions on the Chair's informal chart on those premises. The Delegation took note of document SCCR/34/5, Informal Chart on Limitations and Exceptions for Libraries and Archives that the Chair had introduced and of which Member States were invited to comment during that session of the SCCR. The Delegation stated that that working document of the Chair should not be attributed to the Committee as such, but that it reflected the Chair's view on the discussion. The Delegation reiterated that the purpose of that exchange of best practices, as reflected in the Chair's revised chart, was to understand how exceptions and limitations can function efficiently at the national level within the framework of the existing international treaties. The Delegation believed that a possible outcome of the discussions in that Committee, under that agenda item, could serve as a guide in the national implementation of international treaties. The Delegation stated that it could not support work towards binding instruments at the international level.
   

6. 
   The Delegation of Argentina stated that, in the previous session, it presented document SCCR/33/4, Proposal Concerning Limitations and Exceptions for Libraries and Archives and Limitations and Exceptions for Educational and Research Institutions and for Persons with other Disabilities, on the basis of document, new elements of discussion came up in the previous session. The Delegation stated that the practices used by libraries and teaching institutions could not be addressed within Member States as they needed to be resolved on an international level. Therefore, there was a need to have minimum standards and approval of coordination rules. In that document, those elements were proposed to establish frame for limitations and exceptions, which initiated harmonization on an international level of literary works, but took into account, principles of international uniformity. The aim was to come up with a consensus on what use of works by libraries and archives did not undermine the usual use and the rights of the authors. However, the issue was that when a provision was adopted, it was interpreted or applied differently in each legislature, therefore, there was a need to introduce coordination rules to avoid any uncertainty for people working in libraries, archives, and users and rights holders. There was a need to have assurance that illicit use in some territories was not illicit in others, therefore, application which was legal in some jurisdictions could not be changed and made illegal by proceedings in another country. The Delegation believed there was need for a clear legal instrument that allowed the Committee to improve social and economic development by promoting copyright, while taking into account various different jurisdictions. The Delegation stated that to date, there was no study on the existence and content of similar standards on national legislation. It deducted, therefore, that it would be useful to have a consensual framework on the crossborder use of works and reproductions in the framework of a basic framework of exceptions and limitations previously agreed on by Member States.
   

6. 
   The Delegation of the Russian Federation stated that the Committee’s discussion over the past few years had clearly shown the need to have exceptions and limitations, and there was no person in that Committee who would object to that view of the situation. The practice of the Marrakesh Treaty indicated that such exceptions and limitations were required. However, there was a serious challenge with regard to the development of the Internet. The Internet meant that the Committee had to think about taking decisions which would not, on the one hand, undermine or infringe the rights of authors, and on the other hand, which also reflected the interests of people who were covered by exceptions and limitations and would allow them to widely access those works for the benefit of citizens. The Delegation stated that in the Russian Federation, such exceptions and limitations were already included in existing legislation, and had shown to be effective. Existing treaties, such as the Berne Convention, the Rome Convention and the Internet agreements, did not at present allow the introduction of such exceptions and limitations. The Delegation stated that it was not a good idea for the Committee to break down its time on two absolutely indistinguishable documents. Whether libraries and archives or research and education institutions the discussion was all on limitations and exceptions, and as such should be reflected in one working document. Those exceptions and limitations should be merged in a single text. The Delegation stated that many of those who had spoken insisted on the need to have a legal document, a binding document that was for example, like the Marrakesh Treaty, or protocol to the Berne Convention. The Delegation stated that the Committee needed to find a compromise on what document it wanted to have at the end of the day. The Delegation stated that the Committee needed to resolve whether that was going to be a binding treaty or instructions or guidelines or an international instrument of some kind.
   

6. 
   The Delegation of Canada congratulated the Chair and the Vice-Chairs and thanked the Secretariat for its hard work and support. The Delegation commended the previous Chair's work in designing an informal chart which had provided the Committee with a valuable framework for discussing those issues. The Delegation felt it important to acknowledge that the Committee had made some progress in refining the Chair's chart and that that tool had been successful in providing the Committee with an appropriate framework for discussions. The Delegation believed that by continuing a structured exchange of national practices and national experiences, the Committee would continue to build its understanding of what could be achieved together. The Delegation expressed its appreciation for the studies carried out by that Committee, namely, Professor Kenneth Crews' study on limitations and exceptions for libraries and archives and the study on copyright exceptions and limitations for science, which provided a fulsome international picture of exceptions and limitations for libraries, archives and for museums. The Delegation noted that those international discussions had already and would continue to be useful in informing domestic copyright policy analysis. Among the modernizing reforms of the Canadian Copyright Act in 2012, Canada enacted provisions that required Parliament to review the Act every five years, to insure that it remained responsive to the changing environment and the first of such a review was expected in the following fall. The Delegation believed that the exchanges in that Committee provided a valuable analysis of the main elements of effective modern national practices in that field. The Delegation continued to be keen to learn from the experiences of other Member States and observers on that excellent international exchange.
   

6. 
   The Delegation of Chile stated that that was a topic which was especially interesting for it. There were various documents to be considered under that agenda item, including a proposal from GRULAC as well as the table prepared by the Chair, which it believed could allow the Committee to find points of convergence on that topic. The Delegation hoped that discussions during that session would allow the Committee to reach agreement on specific ways in which to progress its work.
   

6. 
   The Delegation of Nigeria aligned itself with the statement it had made on behalf of the African Group on the exceptions and limitations agenda. The Delegation stated that one of the objectives of copyright exceptions and limitations at the international level was to give information on knowledge to a wide number of users for public use and public good. The importance of that was not emphasized in the current global knowledgebased economies and root systems. The Delegation underscored that exceptions and limitations were critical to the maintenance of an appropriate balance between the content and interest of rights holders and protected works. That spirit was encapsulated in the Sustainable Development Goals (SDGs), specifically SDG 4, which called on all stakeholders to work together to insure inclusive and equitable quality education and to promote long life learning opportunities for all. The Delegation stated that an analysis of Professor Daniel Seng’s study on copyright and exceptions and limitations reviewed exceptions and limitations to copyright in different jurisdictions across the 189 Member States. For Nigeria the study enforced the need for an international instrument which would provide general conditions for the application of exceptions and limitations, so as to introduce some level of certainty on how exceptions and limitations could be equitably handled within the Member States of WIPO. The Delegation called on the Committee to review taskbased work on exceptions and limitations for libraries and archives and on the exceptions and limitations for research institutions and for persons with other disabilities, which had immense similarities with issues discussed under libraries and archives. The Delegation offered its strong support for the proposal to hold regional and or crossregional meetings on the exceptions and limitations agenda of the Committee. The Delegation looked forward to the document on the study of access by persons with disabilities to protected limited works and welcomed the questionnaire which would form part of the information based on that study.
   

6. 
   The Delegation of Brazil aligned itself to the statement made by the Delegation of Colombia on behalf of GRULAC. The Delegation believed a balanced copyright system was a powerful instrument to encourage the creation and diffusion of knowledge. Those goals were best achieved when those institutions were able to carry out their activities in full. In that regard, it underlined the importance of crossborder aspects regarding exceptions and limitations, which required efforts on the part of the Committee to bring their national legislations a little closer together. That was necessary to insure the enjoyment of meaningful exceptions and limitations for libraries and archives. Discussions at the SCCR should take into account recent technological developments which had substantially affected the activities of libraries and archives and had the potential of extending their outreach in unprecedented ways. To reach that full potential, institutions needed legal certainty in fulfilling their mission. As had been stated by representatives from library associations in previous sessions of the SCCR, librarians were often liable to sanctions due to lack of clarity regarding crossborder access to copyrighted works. That was an opportunity for achieving a higher degree of international harmonization, insuring the smooth functioning of those exceptions and limitations for the benefit of society. With those concerns in mind, the joint proposal tabled by the African Group and the Delegations of Ecuador, India, Uruguay and Brazil, document SCCR/29/4, brought valuable suggestions for discussion. That document covered a number of items in the Chair’s presented for that session, such as technological protection measures, right of reproduction and limitation on liability for libraries and archives. The Delegation found important contributions in document SCCR/26/8, tabled by the Delegation of United States of America and in document SCCR/33/4 presented by the Delegation of Argentina. The Delegation believed that the important work on those issues could present an important contribution on the part of WIPO to the fulfillment of SDGs, as was stressed by the Delegation of Nigeria.
   

6. 
   The Delegation of Iran (Islamic Republic of) underlined the central role of libraries and archives in the learning, creative, innovative and discovery process. Libraries and archives continued to fulfill their central and traditional function as facilitators of research, particularly given the emerging challenges of the digital environment and pertinent copyright concerns. Exceptions and limitations for library and archives had an essential contribution in the attainment of the right to education and access to knowledge, increasing educational opportunities and promoting cultural work, actualization of which in many countries was hampered due to lack of access to relevant application and research material. According to SDG 4, obtaining a quality education was the foundation of improving people's lives and sustainable development. Libraries and archives played an undeniable role in implementation of that goal. In that regard, the issue of how the copyright system afforded a balance between the interest of rights holders and public interest was quite significant. The copyright system had to equally take into account the interest of rights holders as well as other competing interests in copyright, including the society's interest in scientific cultural and social progress. That balance of interest was reflected in Article 7 of TRIPS with the need to maintain balance between the rights of authors and larger public interest, particularly education, research and access to information. The Delegation stated that the existing limitations and exceptions and visions in the current international copyright treaties did not sufficiently address emerging technology and cultural changes. The Delegation was of the conviction that pragmatic norm setting solutions were essential to move toward a balanced international copyright law. In 2012, the WIPO General Assembly provided a mandate to the SCCR, to continue discussions toward an appropriate international legal instrument or instruments, with the target to submit recommendation on limitations and exceptions for libraries and archives to the General Assembly. According to that mandate, the Delegation strongly supported establishing a legally binding instrument for exceptions and limitations for libraries and archives. The objective of that instrument was to address the capacity of libraries and archives to carry out their public service role in the development of societies. It was highly expected from the SCCR to accelerate negotiations and make progress on the textbased work by engaging substantively in the discussion in order to fulfill its mandate. The Delegation took note of the revised version of the Chair's chart.
   

6. 
   The Delegation of the United States of America aligned itself with the statement made by Group B. The Delegation expressed appreciation for the revised Chair's informal chart which contained much useful information. The Delegation appreciated the number of positive references to its principles and objectives chart, and it would look for opportunities throughout those discussions to evolve that document.
   
7. 
   The Delegation of Botswana congratulated the Chair and Vice-Chairs and appreciated the work of the Secretariat. The Delegation aligned itself with a statement made by the Delegation of Senegal on behalf of the African Group. The Delegation stated that limitations and exceptions would help it to strike a balance between the interest of rights holder and the public interest. The Delegation stated that the table prepared by the former Chair and the studies carried out would assist the Committee as it engaged in that topic. The Delegation found that the question of whether or not the Committee should come up with a legally binding instrument called for the Committee to engage fruitfully bearing in mind the objective of the copyright system as a whole.
   

6. 
   The Delegation of Malawi aligned itself with the statement made by the Delegation of Senegal on behalf of African Group. The Delegation believed libraries and archives played a crucial role in facilitating access to information to education institutions and too appreciated the important role that the rights holders played in making works available to the public. The Delegation was open to discussions that would provide a balanced copyright framework at the international level.
   

6. 
   The Delegation of Ecuador expressed its support for the statement made by the Delegation of Colombia, on behalf of GRULAC. The Delegation stressed the importance of exceptions and limitations for libraries and archives which were extremely important for the development of culture and access to information and education. My Delegation remained interested in following debate of the joint proposal by the Delegations of Brazil, Uruguay, Ecuador and India.
   

6. 
   The Delegation of Benin of stated that it had national legislation in the area of libraries, archives and copyright. The Delegation was interested in the work of the Committee, so as to achieve the establishment of an international instrument, which would not in any way cause problems for the workings of libraries and archives but would promote the services they offer, particularly in the area of the dissemination of knowledge, research and fluid circulation of information. The Delegation supported the statement made by the Delegation of Senegal on behalf of the African Group.
   

6. 
   The Chair opened the floor to NGO statements.
   

6. 
   The Representative of the International Federation of Library Associations and Institutions (IFLA) was proud to have attended sessions of the SCCR for many years and was gratified that Member States understood and support the role of libraries, archives and museums in promoting knowledge and the understanding of diverse cultures. As the Delegation of the United States of America stated in document SCCR/26/8, exceptions and limitations facilitated the public service role of libraries and were executives maintaining the balance between the rights of authors and larger public interest, particularly education, research, and access to information that was essential in today's society. That balance has eroded over time as rights holders have promoted the fallacious notion that copyright was primarily or only about protection of rights, not the public good. In a world where information was increasingly borderless, as borderless as broadcast signals, the idea that issues related to access to information were local, as one delegate astonishingly stated earlier, was really incomprehensible and misguided. That is not to say, however, that local or national action was not needed as one element in the equation of access to information. In that limited sense, the Representative agreed that the exchange of national experiences in that body over the past several years had been helpful as have been the studies commissioned by WIPO from Professor Kenneth Crews which demonstrated the wide variation in exceptions and limitations existing in SCCR's Member States, including their absence in numerous countries. The Representative applauded WIPO for commissioning those studies and urged that the Secretariat build on the studies produced by Professor Crews to develop a regularly updated searchable database of exceptions and limitations for libraries, archives and museums to be accessible across-borders so that legislators and citizens who did not attend those sessions could easily learn from other's experience on an ongoing basis. The Representative recommended that the SCCR capitalize on the past sharing of Member States' national experiences and the suggested approaches in the Chair's chart of SCCR/33 by creating a draft law on exceptions and limitations for libraries, archives and museums in collaboration with all stakeholders so that there would be practical outcomes for recent discussions in that body. Such a draft law would draw on the Committee's past discussions on the subject but would not be binding nor would it prejudice, in any way, the outcome of the Committee's own work. The Representative stood ready to work with its colleagues in the archival and museum communities as well as with rights holders, delegates to SCCR and the Secretariat to achieve that objective. The Representative supported the Chair's final chart document SCCR/33, and urged that it be adopted as a working document. On the proposal presented by the Delegation of Argentina, document SCCR/33/4, the Representative hoped that the Committee would request that the Secretariat prepare a study on issues related to limitations and exceptions for libraries, archives and museums and a crossborder context including digital uses.
   

6. 
   The Representative of Society of American Archivists (SAA) stated that it believed in the importance of WIPO's work because copyright was central to the mission of archivists. Archivists collected and preserved all types of creative works for one reason only, to be used. Most archived works, however, had never been in commerce, but people globally needed them to maintain their culture, identity, protect human rights and support innovation through new creative works. If such works could be made available digitally, however, and across-borders, they might as well not have existed. Archivists and librarians were conscientious about copyright, but sometimes strict adherence to the law conflicted with their collections and their mission. For example, a 1970's collection of over 120 interviews of legendary jazz musicians were available for onsite study in the archives of the U.S. Research Library, but, their general usefulness had been hobbled by unbalanced copyright law because the original copyright assignment mentioned neither derivative works nor the yet to be invented Internet. As a result, risk averse librarians and lawyers were unwilling to allow digital accessibility of the interviews. Although jazz could thrive without taking risks, an archivist's obligation to the future required that risk was minimized. That was why reasonable exceptions were needed, so as to deal with the tremendous ambiguity inherent in collections. Copyright was already perceived to be under attack. Could WIPO afford to turn away allies such as archivists? Archivists had a very positive public approval rating from the very people that WIPO needed to reach. To keep archivists on board, the development of exceptions for archives had to remain on the SCCR's agenda. To that end, the Representative stated that the Committee's work had to continue based on the previous Chair's chart and that chart had to become a working document for the Committee.
   

6. 
   The Representative of the Center for Internet and Society (CIS) stated that CIS worked on issues of access to knowledge and adult digital rights in India, wished to share in the Committee, the organization’s experience, which highlighted the difficulty of building digital archives in India. In the previous year, the government of India had embarked upon the important project of archiving digital material to store for preservation purposes. Since the Indian Copyright Act did not contain an exception for the purposes of preservation by an archive, the entire project had incurred high costs in terms of money and time. Money because the project had to get expensive legal assistance to set up processes to obtain rights clearance from all of the performers who were a part of the work and the copyright holders. The Representative stated that partnering organizations had expressed legitimate fears of supplying works in case of a potential copyright and related rights implication which could implicate them with criminal or civil liability. The Representative stated that in such a scenario, for the benefits of other states who needed to update standards corresponding to the national legal instrument, it would be useful to adopt proposals envisioned in document SCCR/26/3 that addressed those issues and others.
   

6. 
   The Representative of the International Council of Archives (ICA) stated that archival institutions existed throughout the world and governments, organizations and individuals created records to provide evidence of their actions to document their rights and obligations and to preserve their heritage. Archives acquired and preserved those documents and made them available for all to use as the raw materials for cultural, academic, social and scientific research. The nature of archival material presented a particular problem. Archives held billions of copyright works that were not created or intended for commercial purposes because they were never published and the rights holders for such works could not be located. For those reasons, collective licensing was not a workable solution. The archival mission to make their holdings available for research is ham strung by a web of inconsistent copyright laws that had failed to keep up with social and technological development. In that body, systemic discussion of the eleven topics, archivists provided a rich array of real life examples that clearly demonstrated the need for exceptions, for mutual recognition by Member States of exceptions and limitations to copyright that would permit archives everywhere to serve an international audience. The results of that excellent work were summarized in the Chair's informal chart on limitations, exceptions for libraries and archives. Every creator benefitted from the work of his or her predecessors and knowledge of that earlier work came largely from libraries and archives. The Representative stated that many of the rights holders who were represented in that room could not have created their works without archivists. The Representative asked why creators would not wholeheartedly support exceptions for archives and libraries that would only go to benefit their work. The Representative continued to hear assertions from some groups that national solutions were sufficient. The Representative stated that it should be abundantly clear that national solutions were far from sufficient. There was need for solutions that applied in a global network environment, and in that regard, the Chair's informal chart on limitations and exceptions for libraries and archives prepared at thirty-third session of the SCCR, refined and clarified the topics to be addressed and provided a practical approach to continue to move that initiative forward. The Representative supported IFLA’s call to have the chart adopted as a working document of the Committee, and supported IFLA's call for a study of crossborder issues.
   

6. 
   The Representative of the International Federation of Journalists (IFJ) stressed the essential role of libraries and archives and fully supported them having the freedom to have copies for preservation. The Representative stated that IFJ had repeatedly called for libraries and archives to have proper direct funding to do that themselves, and not to be forced to subcontract digital archiving to commercial operations. The Delegation of Brazil had earlier referred to the potential to extend the outreach of libraries and archives in unprecedented ways. The making of works available on the Internet, was an important supplement to the vital role of libraries and archives in the education and training of many, including journalists. The IFJ believed that the solution to that issue was collective licensing and necessary capacity building to insure that efficient democratically controlled collective licensing was available in all Member States and could deal with crossborder issues as the collective licenses that already existed already did. Many of those 600,000 journalists, particularly those who focused on international reporting, were poorly paid. Where there was such collective licensing, it made important contribution to their economic survival as independent professionals with their own essential contribution to make to the recording and preservation of our culture from within our cultures and not relying on foreign reporting.
   

6. 
   The Representative of the German Library Association stated that libraries and archives faced a problem and that even there was a high level of the international copyright protection, on the other hand, there was no such uniformity in limitations, for example, the limitations listed in the Chair's informal chart such as limitations for preservation, lending and document delivery. The Representative stated that limitations and exceptions were like a patchwork of different national legislations and that for every library service crossing borders that meant that the local library staff had to be aware not only of the limitations and exceptions in their own country, but also in the country of destination of that service. According to the 2016 German library index, in university libraries, around 60% of their acquisitions were electronic. In technical universities, the portion of electronic acquisitions was even much higher. Those numbers in international comparison were even low. The Representative asserted that research libraries were more digital than they were paper based. In the electronic world, the problem was that resources were only available after agreement on license stipulations formulated by the rights holders mostly. That meant contracts were concluded, which could eventually override the limitations and exceptions. The Representative stated that the Committee should agree in one form or the other. The objective of facilitating crossborder library teaching and research services could be achieved by introducing an international mandatory instrument on limitations and exceptions. Another track to facilitate crossborder use could be the introduction of principles of harmonization, combined with a rule of mutual recognitions like proposed in the document by the Delegation of Argentina.
   

6. 
   The Representative of Knowledge Ecology International, Inc. (KEI) stated that, in addition to the excellent studies that had been done by Professor Kenneth Crews, and other people that had studied library exceptions, it would be interesting to have an economist study the economics of exceptions. Libraries were not only part of the research and development infrastructure of a country but were too an essential part of the competitiveness and ability of a country to have a strong high tech sector that played an important role in development. The Representative stated that it would be interesting to know what the assessment was on that, because other industries had an assessment and talk about the number of jobs their industries produce. It would be interesting to know how many people were employed in different countries in the library sector, and also what contributions the library sector made to the economic development of the country and also what challenges the libraries faced in terms of pricing. The Representative stated that there were a number of areas where it was difficult to reach consensus on, and other areas where it was much easier. That discussion of the archiving and the preservation of documents was a pretty good case. The making available of what was archived and preserved, in terms of documents, was more challenging to reach consensus on, than it was to ensure that people had adequate exceptions to merely do archiving and preservations. The Representative stated that it would be unfortunate if in looking at the wide range of issues that libraries faced, that people did not move forward in areas where consensus could be reached such as preservation and archiving.
   

6. 
   The Representative of Electronic Information for Libraries (eIFL.net) thanked the African Group, GRULAC, the Asia Pacific Group and the other delegations for having spoken of the interrelationship between the SDGs and the establishment of access to libraries and archives as emphasis was placed on access to information. The Representative stated that though the Internet was global, legislation on copyright stopped at borders, and that was why everyone was there. Digital technology had changed the world, but in copyright, there was no recognition of the extent to which people had access to information. The way that the world studied and learned in that day and age, meant that people did not have full access. Copyright was important, and limitations and exceptions were crucial for a modern information infrastructure as well as for open access and other licensing models. The Representative was very pleased that other countries had modified proposals on copyright and had expanded their exceptions or introduced new ones. However, some countries who were updating their laws were not enough to resolve a broader problem, the demand for crossborder access to information for science, research and culture, and the need to insure that nobody was left behind in the access to knowledge meant that there was a need for that aspect to be taken into account. The Representative invited the Committee to read the document that featured specific issues and that was compiled and submitted to the Committee. The Representative supported the interventions by the International Federation of Library Associations and Institutions (IFLA) and the Center for Internet and Society (CIS).
   

6. 
   The Representative of the International Council of Museums (ICOM) stated that she was there to give a voice to museum professionals. Upon consultation with the international museum community, and in keeping with the results of the WIPO study on exceptions and limitations on copyright for museums, ICOM joined forces with its library and archive colleagues to pursue exceptions to copyright for the benefit of libraries, archives and museums as enumerated in the Chair's informal chart that provided for exceptions for all three. That pursuit was not intended to disrupt markets, but instead was targeted to instances where museums and indeed libraries and archives were unable to carry out their often shared mission. The Representative stated that ICOM was very pleased that the Delegation of Canada had called for a museum study in 2013 during the twenty-sixth session of the SCCR. The first draft of the museum study on exceptions was distributed and presented at the thirtieth session of the SCCR in 2015. The study distributed by WIPO provided a broad basis of understanding the status of exceptions for museums within WIPO Member States and provided for the basis for ICOM's continued advocacy of exceptions for museums. ICOM was committed to the belief that a harmonized approach towards libraries, archives and museums was both possible and necessary to achieve the overall objective of obtaining operational exceptions for materials and cultural heritage collections at the international level. There were many instances where museums, libraries and archives crossed mandates, given the nature of their distinctive collections. Libraries held collections that included artifacts more traditionally aligned with museum collections or had accessioned collections that included unpublished materials often found in archives. Museums held archival collections, there were libraries within museums, and museums also included study collections as part of their overall collections. Museums like archives oftentimes included a vast array of artifacts in their collections and included materials that had often been published and unpublished. At the same time, libraries, archives and museums faced the same obstacles created by copyright law in trying to fulfill their respective missions be it education, public interest, access to collections and communication of scholarship. That particularly true when museums were examined not simply as stewards of art collections but as stewards of historic scientific and natural collections as well. The similarities were magnified when the challenges they faced with their twentieth century collections were examined. Museums, libraries and archives faced similar challenges in preserving, exhibiting and providing access and in communicating about art collections.
   

6. 
   The Representative of the European Bureau of Library, Information and Documentation Associations (EBLIDA) stated that the consolidated libraries and archives studies in the thirtieth session of the SCCR and the museum study from 2015 revealed that the national frontierbased approach to copyright with regard to libraries, archives and museums was now in disarray, too disparate and stuck in the preInternet era. In the European Union that had been the justification of proposing mandatory crossborder exceptions to copyright. In the face of the ever expanding Worldwide Web, however, national copyright laws were in need of constant modernization to allow institutions to function optimally in an international crossborder online environment. Since the detailed discussion of the topic had been summarized by the previous Chair, in his document from the thirty-third session of the SCCR, the Representative wished to offer practical suggestions for moving forward. The Representative stated that the Committee should establish the principles of inclusion in the overarching note for international copyright framework for copyright exceptions and limitations affecting libraries, archives and museums. The proposals made by the Delegation of the United States of America in document SCCR/26/8 offered useful guidance that could shape the content of the Committee's work. A comprehensive and effective solution for libraries should set standards for, and protect national copyright exceptions, that impacted on the functions of those institutions, including preservation of materials and content, copying for document delivery in any format including crossborders, lending of works including remotely, protecting limitations and exceptions for override by contract terms, holding partially inaccessible legal protections of TPMs, making orphan works available online to the public, text and data mining of legally accessed content, acquiring work including by importation and protecting libraries, archives and museums and staff accounting for them in good faith for criminal or civil liability for unintended copyright infringement. There were various ways in which the Committee could support work and that could usefully be adopted by the Committee. In line with the European Union’s call for guidance to Member States, the Representative welcomed efforts from the Secretariat to further inform their discussions. In line with the proposal from the Delegation of Argentina, which correctly addressed the need for a minimum set of exceptions and limitations nationally and the solution for crossborder issues, that was what the European Union itself was seeking to do domestically. The Representative welcomed a study on crossborder issue as a basis for further discussion. In order to provide further guidance to Member States, the Committee could request the Secretariat to convene an expert group first and foremost of library, archive, and museum copyright experts, as well as copyright academics, lawyers and relevant stakeholders to support the commissioning and tasking of an agreed expert to develop modern WIPO draft law for libraries, archives and museums. The Representative stated that the Committee might wish to request that the Secretariat provide a useful tool to assist its work by creating online publicly accessible database of copyright exceptions and limitations. Additionally, since the pace of change in copyright law, which affected the library, archive and museum sector, was moving very fast, the Representative stated that the Committee might request an annual report from the Secretariat of changes to national practices in copyright and related rights.
   

6. 
   The Representative of Corporación Latinoamericana de Investigación de la Propiedad Intelectual para el Desarrollo (Corporación Innovarte) stated that the proposal to work with the aim of a treaty on exceptions and limitations to copyright that would go to protect the balance and legitimacy of the system for copyright and related rights, with regard to libraries and people with disabilities, was something that the Committee had been discussing since 2004 starting with the proposal from the Delegation of Chile. The adoption of the Marrakesh Treaty showed that provisions on copyright, to protect categories of people threatened or undermined by the lack of exceptions, was not only possible, but good and showed that it was possible to protect libraries, archives and possibly also museums. In that regard, the Representative requested the members of the Committee in good faith to consolidate all of the work done based on the text which had already been considered, the informal summary of the Chair. The document which was based on textual proposals either for a treaty or another form of instrument was based on proposals submitted by various delegations including the Delegations of Brazil, India, the United States of America and many others. The Representative proposed that the Committee adopt that text without any prejudice to what form the work might take in the future. The Representative believed that the proposal from the Delegation of Argentina was particularly useful since it sought to come up with a solution to the obstacle, namely, the lack of harmonization of rules on libraries and archives at the international level. That proposal was a complement to what had already been worked on by the Committee, with regard to principles and topics which were necessary for exceptions on a national level. The Representative stated that that proposal should be subject to greater analysis by the Committee.
   

6. 
   The Representative of the Electronic Frontier Foundation (EFF) stated that the updating of exceptions and limitations was an important way to insure that libraries and archives were equipped to meet the challenges of fulfilling missions in the digital age. The Representative stated that norm setting was the only way to insure that WIPO Member States provided a basic level of modernized limitations and exceptions for libraries. However, the Representative recognized that Committee members did not have the appetite for norm setting in that area at that point in time for various reasons. In that light, the Representative supported the proposal by the International Federation of Library Associations and Institutions (IFLA) for a draft law and searchable database on library limitations and exceptions. That was a workable compromise that did not commit members to norm setting, but which that would be a useful interim step towards the harmonization of limitations and exceptions for libraries worldwide. The Representative expressed EFF's hope that in the following SCCR session, time will be made available for NGOs to make statements about the broadcast treaty.
   

6. 
   The Chair invited the NGOs that did not have a chance to speak email their written statements to the Secretariat.
   

6. 
   The Chair stated that it was interesting for him to hear comments from the floor that which reflected the fact that the cross-border element of limitations and exceptions was more and more on the minds of stakeholders. The Chair was also very interested in the fact that a number of Member States had commented and observed that the impact of limitations and exceptions could not be addressed in isolation, but had to be addressed in a more thematic fashion. The Chair stated that the agenda items were divided into different types of exceptions and limitations, but the Chair thought that the points and observations made by others that those issues were connected was a fair. Based on the documents and proposals presented by Member States, both formally and informally, and the work of the Chair, the Chair wished to discuss the work between then and the following SCCR session. The Chair wished to discuss what could be done in preparation of the General Assembly that could advance the Committee’s work, bring value to stakeholders, and give a sense that the work of that Committee had a positive impact on the different lives of people and institutions in the respective countries across the world. The Chair stated that he made those proposals in the spirit of asking for views and asking for reactions, and not with the spirit of trying to close off discussions. The Chair stated that it had heard a couple of interesting fascinating suggestions including commentary about, and praise for, Professor Kenneth Crews report. The Chair wondered whether one of the things that the Committee could work on was to update the Crews study, as it was done in 2015, and things had been moving fast in that area. With the Marrakesh Treaty, there had been renewed interest it how the corporate system could help create engagement of other stakeholders and help support national and other objectives. The Chair wondered if an updated study was needed, and that it would not require a lot of resources on the Committee’s part. The Chair stated that Professor Crews had indicated interest in that so it was perhaps something to think about and share views. The Chair stated that another thing that came up as part of the cross-border discussion to limitations and exceptions, was to ask the Secretariat to organize a seminar or Conference or some kind of event where researchers, academics, experts, people who are really deep and steeped into the details of those areas could focus on and to talk about the crossborder impact of the limitations and exceptions and not just from a library, archives perspective, but from across the different agenda items including museums, and even educational research institutions. The Chair stated that as someone who was the regulator and was leading copyright review in Singapore, when they engaged with stakeholders in Singapore on that, there were a lot of similar issues. There were challenges relating to exhaustion of rights, challenges relating to different approaches to limitations and exceptions, challenges relating to not knowing enough about how the industry is shaped and its nature. The Chair stated that another thing he thought should be considered was to not so much model laws but to look at whether the Committee could develop benchmarks and principles that would guide its and that would influence domestic regulators to look at those issues. The Chair thought that the couple of NGOs had mentioned model laws as a way of saying that eventually changes were best made when they enshrine the law, but the Chair also believed that at the broader level, benchmarks, principles were also equal. The Chair stated that he had heard a couple of comments about whether it was time for the informal chart done by the Chair to move into another place. On that piece, the Chair wished to hear the Committee’s view on whether that was possible at that point in time. The Chair noted that there were comments made both privately and publicly that suggested that maybe not all of the elements in the chart needed to be at the same level of priority. The Chair requested comments on that. With regard to moving to a normative agenda on those issues, the Chair stated that as with other sessions, that topic was still frankly speaking quite far from a consensus. There were very passionately held views either way and in the interest of focusing on what could be done in the following few weeks and months, the Committee’s views on the specific work items, any other work items that it thought were useful, were very welcome.
   

6. 
   The Delegation of Senegal stated that the Chair’s indications clarified the path ahead for the Committee’s work. The Delegation stated that the African Group was in favor of having an international legal instrument concerning exceptions and limitations, irrespective of its form. From that viewpoint, the Delegation stated that the initial guidance given, for instance, the seminar, would need to take account of the latest changes that had taken place in connection to copyright and the impact of those changes on the process. The Delegation stated that it would be in favor of more information, of a document from the Committee, which could subsequently lead to a standard setting activity.
   

6. 
   The Delegation of Chile stated that with regard to the Chair’s question about the equality of the Chair’s informative table, the Delegation had heard from observers and other delegations that that document could be a document adopted by the Committee as a working document. Based on the different views expressed by delegations, some were looking for a binding instrument while others were looking at another way of approaching that issue as reflected in national experiences. The Delegation stated that that would in fact be a good basis for future work, bearing in mind that the Chair’s proposal had the possibility of developing benchmarks and principles. The Chair’s proposal was a good basis for that work and could serve a living document that would not prejudice the positions of delegations. And if that were not the case, a clarification could be made in the very same document itself. The Delegation stated that the Committee had done a lot of work and that unless it came up with a document on which it could continue to work, then the time spent in many long discussions would be quite complicated. The Delegation supported that proposal and stated that the document did not preempt or prejudge the positions of delegations.
   

6. 
   The Chair thanked the Delegation of Chile and stated that the document did, in painstaking detail, clarify that it was not to guide the discussion towards any particular direction but to lead to a better understanding of the topics and their actual relevance of discussions and intent and outcome. The Chair stated that the Committee needed to show the General Assembly what the work of that Committee had led to. That could be concretized as the Committee had done a lot of work.
   

6. 
   The Delegation of the United States of America stated that it still had not had a chance to consult internally, so those were preliminary actions. The Delegation favorably noted the suggestion to update the Crews study as it had been a valuable study in the past and he was an outstanding scholar. The Delegation stated that developments were rapidly changing, so we that would be a useful approach. The Delegation noted the development of principles and the word used by the Chair, benchmarks. The Delegation stated that on initial reading, it thought it a little bit prescriptive and preferred the phrasing of the principles and objectives approach, but would be favorably disposed to that. The Delegation noted that that there were already principles embodied not only in its document, but also in the Chair’s chart, so it agreed. The Committee had a great deal to draw from, in terms of its achievements, as was noted by the outgoing Chair the chart itself was an interim outcome. The Delegation was still considering the possibility of moving the chart into a Committee document, but it was not totally persuaded at that point that that was a necessary step. The Delegation state that it would continue to draw from the Chart as an accomplishment, but that it would continue to contemplate.
   

6. 
   The Delegation of Brazil supported the idea of updating Professor Crew’s study and that would be very useful. The Delegation supported the suggestion of a seminar and took note of the comments made by the Delegation of Chile and the Delegation of the United States of America. The Delegation agreed that there were a variety of national approaches to the whole issue of limitations and exceptions to libraries and archives, and no one was listening. The Delegation stated that its own law was not a great example of what it was looking forward to achieving. The Delegation felt that there should be some minimum standards between all delegations agreed upon otherwise the whole concept of crossborder would be meaningless.
   

6. 
   The Delegation of Iran (Islamic Republic of) stated that that agenda item had been on table in the SCCR for years and that so much work had been done during the previous year with regard to that topic. The Delegation stated that it had no problem updating the study and having a seminar, asked the Committee to bear in mind the mandate that had been given to the Committee. The Delegation was of the view that it was time to reach an agreement with regard to the future work plan for that agenda item. The Delegation stated that the Committee was mandated to work toward a legal instrument, and it was the time to think about how the Committee was going to work on that agenda item and achieve some kind of norm setting process. As had been expressed by the Delegation of Nigeria, that session of the Committee could be a turning point with regard to the exceptions and limitations for libraries and archives as the Committee needed to reach an agreement for the future.
   

6. 
   The Delegation of the European Union and its Member States commended the Chair for his proposals on the way forward. The Delegation stated that other than being able to agree on the updating of the Crews study, it would like further time to be able to consider the Chair’s proposals.
   

6. 
   The Delegation of Canada supported the updating of the Crews study and believed that that would be helpful for the Committee. The Delegation wondered if it would be appropriate and helpful to update the study on limitations and exceptions for museums as well.
   

6. 
   The Chair thanked the Delegation of Canada for its suggestions. The Chair stated that the discussions had been interesting and that he appreciated the candor and the passion of which the delegations have been speaking. The Chair stated that it would speak to the regional coordinators, touch upon those topics a little bit, and encouraged the Committee to have those conversations. The Chair stressed the need for the Committee to continue its work in some way, and in a way that did not prejudge and did not detract from the bigger discussions, whether a normative instrument was needed. The Committee needed to do things that were practical, and which would ensure that the Committee was multitasking and that it had a practical work program. The Chair indicated that he was cognizant to report to the General Assembly in a way that allowed understanding the hard work that was being done in the Committee.
   

6. 
   The Chair asked the Secretariat to report on the side events.