Access to knowledge

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Ingrid de Ribaucourt is IFRRO Senior Legal Counsel since May 2010. She is a Belgian Lawyer with a master degree in European Affairs and currently doing a Master in UK, US and EC copyright law.

She has gained practical experience in EU policies related to the media and in defending copyright , working for more than four years for the European Federation of Magazine Publishers.

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  • Good Morning I first would like to thanks YRCI for organising this seminar that IFRRO is very happy to sponsor and I am happy to start the day on this very important topic that is Access to knowledge. Knowledge is intimately linked with creation, a central activity for any country and for many reasons. This is why copyright legislation has been developed at national and international level.
  • Indeed, Creative industries play a major role for the society as they contribute to defend cultural value by protecting national identities through in the written sector fiction or non fiction works (science, information, technology, education) or poetry, drawings, photographs, etc. It covers many different aspects of lives, knowledge, culture and entertainment. To sustain this creation which ultimately has an impact on the country’s economy, cultural industries rely on the protection of their work.
  • But creation makes no sense without wide dissemination and proper access to it. Indeed, access to written works, books, journals, magazines or newspapers leads to societal and cultural autonomy and empowerment of all citizens.
  • Access to any type of literature is indispensible for research and the further development of knowledge.
  • Access to books and other written material is fundamental for education and lifelong learning.
  • How to access these works? Are they protected by copyright? Are they in the public domain? What is the public domain?
  • A well-functioning copyright system is supported by three pillars.   The first of these is legislation. Without appropriate legislation, a copyright system supporting the moral and economic rights of rightholders cannot be sustained.   The second pillar is management. Rights must be managed in ways that are transparent, fair, and effective. Both individual and collective management may play a role in supporting the copyright system. The third pillar is enforcement. When legislation has been enacted, and effective management systems are in place, appropriate enforcement mechanisms are essential in ensuring that rights are properly respected and protected.
  • Let me present the first pillar. The question is often asked: how do I copyright my works? The answer is that all creative works, in whatever medium, are automatically protected by copyright . The ideas they contain may not be copyright: there is no copyright in ideas as such. But the form of expression – be it a written article, a drawing, a book, a poem, a song, a photograph, or any other type of literary or artistic expression – is automatically copyright from the moment it is created. This protection is given through legislation at national, regional or international level. The three main international instruments are: The Convention for the Protection of Literary and Artistic Works (Berne Convention); the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); WIPO Copyright Treaty (WCT) Berne and the other main instruments rule that the right to permit or prohibit the reproduction of their work is an author’s (i.e. creator’s) right. Moreover, it is an exclusive right. This means that, until and unless the author grants explicit permission, no other person or organisation may use the work, e.g. make copies, in any form or through any process whatsoever. The reproduction right encompasses for example the making of photocopies. The right of distribution includes making a work available, for example through document delivery. Communication to the public , by wire or wireless means, includes making © works available in such a way that users may access these works from a place and at a time individually chosen by them – such as through internal networks, or Virtual Learning Environments (VLEs). A work is considered in the public domain because the term of protection has expired or because by law it has been set that certain categories of work are not protected (such as works coming from public administrations, non original works, etc)
  • The second issue to address when we oppose the notions of public and private is to talk about the exceptions to the copyright legislation. Exceptions do not mean a work is in the public domain but that certain act do not require the permission of the rightholder to be made. The legislation at international and national level authorizes certain exceptions to the exclusive right. In the Berne convention, article 9, 2 introduces the so-called 3 step test. Exceptions can only be introduced in certain special cases that do not conflict with the normal exploitation of the work and do not prejudice unreasonably legitimate interest of the rightholder. These 3 conditions are cumulative. The most frequent exceptions are private copy; fair use/dealing; library privileges; statutory regulations for educational copying It is not because a State introduces an exception that it does not go along with a fair remuneration of the author. For example, private copying exception in Europe may only be introduced by Member states if a fair remuneration is given to the rightholder. Outside those cases, how to access copyrighted works?
  • Let’s focus on reprography now, as this is more relevant to IFRRO’s work
  • An enormous amount of copies are made each year and it is impossible to stop this process. The digital world is not facilitating the task. How to authorise copies of small portions of a work for internal and non commercial use? For example, how to give access to a portion of a book to a student? Should it be simply banned or should rightholders propose alternative solutions?
  • It is important to understand the reasons that justify the need for copying. Generally speaking, it is not the entire work that is copied but a portion of it to have updated information or because the work is no longer available or on sale. Copies also allow for more flexibility.
  • As said by Charles Clark: if you cannot beat them license them Licensing is thus a solution. It indeed offers alternative access to works guaranteeing a remuneration to authors and publishers. Today reprographic rights organizations are presents in 64 countries and licensed in 2009 for 1.3 billions USD.
  • To offer acces, rightholders will generally license directly their content or sale copies. Alternative access can be offered by collective management organisation typically when it is impossible to licence (orphan works) or it is impracticable(mass copying or private copying) or it correspond to user’s specific needs (course packs, press cutting,etc). In one sentence, RRO licenses can complement the individual licence from the rightholder. What are the user’s needs, wishes?
  • Dialogue in many countries over a long period of time has identified certain wishes which users have in common. Users commonly request access to © works in a range of formats , for a range of uses , for a range of works not limited to their national repertoire. The terms and conditions of the licences should be fair and transparent, and prices should be affordable according to sector and national circumstances. There should be flexibility as to time and place of access, and a one-stop-shop through which certain types of permissions could be sought and clearances granted on a mass-use basis. There should be assurance that the user will be acting in compliance with national copyright legislation , with the comfort of either a statutory solution , or an RRO-provided indemnity . What is the right holder’s attitude towards those needs?
  • The following requirements are paramount: The natural desire of rightholders is to make their works accessible : no rightholder under normal circumstances would prefer their works to be out of public reach. However, they expect the access to be on a basis that is controlled and orderly . Rightholders naturally expect that their rights , both moral and economic, should be respected and upheld by the user community. It is vital that the core business models should not be undermined but should be supported at all times by collective licensing schemes, so that creators and publishers may continue to pursue their trade, and to invest in future projects. In helping to make © material accessible in an orderly way, collective management helps to bring together the wishes of users, with the requirements of rightholders. The question is how RRO can get a mandate to license collectively?
  • More concretly, how will RROs operate?
  • RRO are set up by creators and/or publishers or by legislation to manage (license, collect and distribute revenues) the rights of of their constituents. Moreover, they have activities of awareness raising of governments, schools, etc and play a role in the enforcment of the rights.
  • How RRO can get a mandate to license collectively?
  • An RRO’s authority to obtain mandates may be granted by its constitution, or by statute law, or frequently by both. The process of recruiting members may be entirely voluntary. Individual members, and their representative bodies, may join the RRO, bringing with them their grant of mandates. National law may endow an RRO with the circumscribed authority to administer a certain type of © licence. The law may oblige the RRO to be approved by, and register with the appropriate authorities.
  • Among the 60-plus countries with RROs, the process of conveying mandates from the rightholders to their national RROs has evolved in various ways. The form of process chosen is entirely at the discretion of national rightholders, within the constraints of practicality and national legislation which will generally influence, or may stipulate, the form which collective management should take – whether voluntary or statutory, for example. However, no two approaches are necessarily mutually exclusive. In the USA, for example, collective management is organised entirely on a voluntary basis, and individual mandates are collected. In Germany, there is a legal licence – but the collection of individual mandates is still undertaken on a huge scale, which thereby legitimises international agreements. In Sweden and Jamaica, mandates are collected through rightholder organisations. In the UK, mandates are conveyed both individually and through rightholder organisations – but the law states that, in the absence of a collective licence, educational establishments could copy limited proportions of works without seeking individual permissions.
  • The basic mandate would be for photocopying without which, even in this digital era, no RRO could function. Almost universally though, rightholders would now be asked also to grant a digital mandate , recognising the technological and usage practicalities of the marketplace. The digital mandate would normally permit downloading , storage within agreed time limits, viewing on screen, and printing. Usage could also include making available on a passworded intranet , and controlled external distribution . The rightholder may also require the right to opt in or opt out of individual schemes, by sector or by territory .
  • Frequently rightholders are concerned that licensing will undermine their core business. This concern is generally based on an awareness of the damage done to their markets by unauthorised copying on a large scale, sometimes of course-pack compilations, sometimes of whole textbooks. What can be done to halt such infringement? In the case of piracy on a commercial scale, the answer may be an aggressive anti-piracy campaign, involving publishers, the RRO, and the national police. However, in the case of wide-scale copying by individual students, or by educational establishments on behalf of their students, a licensing solution is generally effective. A collective licence for an educational establishment does three things: Removes the familiar excuse that copying © works illegally is the only way to place those works in the hands of students ; Sets fair and reasonable limits on the amount of copying permissible – and places accountability for enforcing those limits firmly within the disciplinary structure of the establishment; Induces a growing awareness of, and respect for, © among staff and students, which generally has a beneficial overspill effect into the market at large. A fourth benefit is of course the remuneration that flows from the licence – and a fifth, the information which may be gleaned about usage. Finally, an educational licensing scheme has the benefit of bringing order to a disorderly situation! Education is not the only sector that can be licensed and there is not only one type of licensing.
  • Licences issued by RROs generally permit the copying of limited extracts from © works. According to national practice, the permitted extent of copying may be in the region 5%-10% of a given work, though more may sometimes be permitted: for example, extracts in Sweden and Norway may be 15%, and in Denmark 20%, depending upon the type and age of the material. The licence will define the uses which are permitted, which in addition to photocopying may include scanning, downloading, storing, printing, making available on intranets, and in certain cases external distribution. Rightholders may wish to decide on a licence by licence, sector by sector basis, whether and in what form intranet uses and external distribution would support their core business models. The licence would normally specify the categories of authorised user , the time-related term of the agreement, the fees and the payment points. Usage reporting requirements would usually be spelled out – for example, whether in the form of detailed record-keeping, or through sampling and surveys – and the organisation would be obliged to ensure that its members were aware of and compliant with the licence.
  • Through dialogue between RROs and user representative groups, licences have been developed which cater for these wishes and requirements. Communication between RROs ensures that best practices may be disseminated internationally, and dialogue with rightholder bodies nationally and internationally ensures that rightholders’ requirements are met. IFRRO fosters dialogue both internally between RROs and the rightholder bodies, and externally. Dialogue between stakeholders may help to clarify different perspectives, and to increase focus on the mutual objective of facilitating legal access to © materials. This is one of IFRRO’s mission
  • What is IFRRO?
  • The International Federation of Reproduction Rights Organisations (IFRRO) is the main international body which links together members of the © community in the print and publishing sphere worldwide. Currently IFRRO membership totals 123, with 72 RROs, and 55 bodies representing rightholders nationally, regionally and internationally in all relevant categories of creation and publishing.
  • IFRRO’s mission statement, purpose and tasks may be summarised as follows: Increase the lawful use of © materials, and eliminate unauthorised copying, by promoting efficient collective management by RROs which complements rightholders’ own activities. Foster the creation of new RROs, facilitating agreements and information exchange between members, and raising awareness of © and of the activities of RROs. Provide legislative and operational support for members, and disseminate up to date information concerning the positive impact of collective management on a well-functioning society.
  • IFRRO maintains active links with a wide range of key international bodies in the © sphere. These include WIPO, with which IFRRO has a longstanding cooperation agreement, and UNESCO with which IFRRO enjoys NGO status. IFRRO maintains regular and frequent contact with the European Union, involving itself in different project such as ARROW or the VIP platform. IFRRO has productive contacts with regional IP bodies including ARIPO, OAPI and SADC in Africa, APEC/IPEG in Asia, and CERLALC in Latin America. IFRRO has a programme of strategic cooperation with CISAC, and works with the International Federation of Library Associations (IFLA).
  • IFRRO’s role in fostering dialogue leads to its involvement in a range of stakeholder-focused mutually beneficial initiatives, including: Support for an orphan works solution that should be applicable to all kinds of protected works. lead partner in ARROW (Accessible Registry of Rights Information and Orphan Works) – an EC project aiming to clarify the rights status of orphan and OP works. range of tools to help RROs in assisting authors and publishers to provide legal access to their works by people with print disabilities (available to IFRRO members only). development of common standards and formats , including involvement in the International Standard Text Code (ISTC), the International Standard Name Identifier (ISNI), and applications of the ONIX format. supportive positions on Traditional Knowledge , and on accessibility for Least Developed Countries , and with WIPO, a Strategic Partnership to Enhance a Book Culture in key countries.
  • Before concluding, I would like to browse quickly through the latest developments in licensing and show you how dialogue can lead to new licenses.
  • I would like to repeat myself, access to knwoledge is fundamental and the entry into the digital era has fostered new needs. Most RROs started by licensing photocopying, and obtained photocopying mandates. Photocopying until recently, and in some cases still, formed the basis of their activities and of their fee collections. However, photocopying increasingly relies upon, or is being replaced by, digital technology. This has led RROs, individually and under the IFRRO umbrella, to explore the strategic issues around the digital reproduction and distribution of IP. A recent IFRRO survey among the 60-plus countries with RROs indicated that a majority of RROs now licence digital uses. Individual digital licensing schemes have been developed by RROs working closely with their rightholders and users. There is ongoing information exchange from RRO to RRO, and within IFFRO through frameworks such as the IFRRO Business Models Forum. Good practices are shared and built upon, and are codified when appropriate with the rightholders bodies in membership of IFRRO.
  • The digital sources permitted by RROs’ licences may include: Scanning from analogue original to digita l format Digital to digital , including: Copying from carriers such as CDs and DVDs Copying from online sources Downloading and copying from the internet The corresponding uses and applications would typically cover: Scanning and printing out Viewing on screen by authorised persons, and storing within limits Emailing internally, and in certain cases externally Creation of slide shows in PPT or similar Display on white boards or smart boards Access for students via Virtual Learning Environments, and similar internal networks Some RROs license redirecting to publishers’ content, and a few from their own content database.
  • Another area which sees important developments is access to works by VIPS WIPO established in January 2009 a platform to develop solutions for enhanced access to work by people with reading impairment. Representatives of the visually impaired communities including the DAISY consortium, IFLA, IPA, EWC, RROs and IFRRO participate. The platform recommends a solution based on TIs which will be piloted as from later this year with India, Brazil being one of the pilot countries. An enabling technology is also being developed as a joint stakeholder project. Also the EC has a stakeholder dialogue which also aims at implementing a system of TIs. To this end a MoU has been signed on 14 September, this year.
  • Finally, we see the development of new license to allow the creation of digital libraries. One example is The Bookshelf (Bokhylla) project in Norway. It allows the National Library to digitise and make available all 50,000 printed books in its collection published in the three decades 1790ies, 1890ies and 1990ies under a contract with Kopinor, the Norwegian RRO. Kopinor has been mandated by Norwegian authors and publishers to enter into the agreement which establishes remuneration to the rightholders based on an annual fee per digitised page. The licence is extended by law to cover the works of non-mandating national and foreign rightholders (Extended Collective Licence), who are granted the right to opt out of the agreement. Any user with a Norwegian IP address may view and read the book on the screen which is made searchable via search engines. No download or print-out is allowed of works in copyright; the user is provided with information that will facilitate the purchase or the borrowing of the books. This is not the only project. Germany is looking into it and the RRO, VG WORT that represents authors and publishers are currently negotiating a license covering works from 1965 and before. France is also looking into developing solution based on extended licensing to authorise libraires to digitise and make available certain categories of works.  
  •            
  •     To conclude, I would like to say that access to knowledge is a shared goal by all the stakeholders, creators, publishers, users and RROs. If some consider copyright to be a barrier and the necessity to introduce new and wide exception to the legislation, I have shown through my presentation that alternative solutions to give access exist with collective licensing. These solutions can be shaped for the analogue and the digital world and are best developed in a climate of dialogue between stakeholders.        
  • Access to knowledge

    1. 1. Access to Knowledge Yogyakarta,Indonesia 28 September 2010Ingrid de Ribaucourt, Senior Legal Advisor, IFRRO
    2. 2. Value of the creative industries Cultural value  National identity  Fiction, non fiction (science, technology, education), poetry, drawings, photographs... And more!“Cultural industries” work within  Culture  Knowledge  Entertainment Economic importance  Incentive to create and publish
    3. 3. Literature paves the way forcultural autonomy and readership
    4. 4. Literature is indispensible toresearch and knowledge
    5. 5. Literature is indispensible toeducation
    6. 6. Access to knowledgeProtection and access to work Basic Principles
    7. 7. Protection of © worksThree pillars
    8. 8. How does a work become protected by copyright?• All works• Automatic• Legislation• Author’s exclusive right • Reproduction • Distribution • Communication to the public• Public domain
    9. 9. Copyright – Limitation to exclusive rightsBerne Convention – Article 9.2 Cumulative 3- step test Certain special cases No conflict with the normal exploitation No unreasonable prejudice to the legitimate interest of authors
    10. 10. Access to works through reprography
    11. 11. Addressing Reprography Point of Departure• Billions of copies made annually• Most impossible to stop• Some considered legitimate • Portions/small parts of works for • Internal use • Non commercial use • Example: Student’s need for a chapter of a book• Dilemma: Ban or Licence?
    12. 12. Why are photocopies made? Need for just a small part of the work Need to update information Material not available Material no longer on sale Increased flexibility
    13. 13. If you cannot beat them, licence them!What if copies for internal use are not licensed?: © copies made all the sameRROs© in 64 countries© USD 1.3 bill. (2009)
    14. 14. Collective licensing Benefits
    15. 15. RROCollective Licence complements individual licence• Individual licence when One to One / Many• Collective licence when individual licensing is • Impossible •Many to Many = Collective licence • Impracticable • Insufficient •Clearly Defined Rights •Proven Advantages• RRO licence complements Rightholder licence
    16. 16. Users’ wishes• Access to © materials • Formats, uses, repertoires• Transparency and affordability• Flexibility• One-stop-shop• Legal certainty • Statutory • Or indemnity
    17. 17. Rightholder requirements for collective management• Access on an orderly basis• Protection of rights, moral and economic• Support for business models
    18. 18. Reprographic rights Organisations
    19. 19. RROs -Reproduction Rights Organisations Set up/Governed jointly by Authors and Publishers• Operate on the basis of mandates from; governed by• Creators and Publishers  Writers including translators; Visual artists; Composers  Publishers (Book, journal, newspaper, magazine, music)• Legislation• Key facets of RRO activities • Awareness raising; Copyright enforcement • Licence, collect and distribute revenues; • Reprography; certain digital uses
    20. 20. Mandates
    21. 21. Authority to obtain mandates• RROs’ constitution • Voluntary membership• Statute law • Circumscription and approval• Rightholders’ authority • National treatment
    22. 22. Process for conveying mandates• Individual mandates• Through rightholder organisations• Through statute• Combination of approaches
    23. 23. Content of mandate• Photocopying• Digital • Download • Store • View • Print • Internal and external distribution• Opt in/out • By sector/territory
    24. 24. Licensing
    25. 25. Benefits of RRO licensing• Win-Win situation: legal access at reasonable conditions agreed to by rightholders• Fighting infringement on two fronts• Licensing – three key benefits: • No excuses for infringement • Accountability and discipline • © respect in market• Remuneration and information• Order out of chaos
    26. 26. Content of RRO licences• Limited extracts• Permitted uses • Photocopying and scanning • Download, store, print, internal dissemination, external dissemination• Authorised users• Terms• Fees• Usage reporting requirements• Compliance awareness
    27. 27. Dialogue between stakeholders
    28. 28. IFRRO’s mission, purpose, tasks IFRRO The International Federation of Reprographic Rights Organisations
    29. 29. IFRRO – MEMBERSHIP 127 Members in 64 CountriesRROs (72) • RRO Members (58) • Mandate to licence reprography • Represent publishers and creators • Associate Members (14) • “RRO”s representing publishers or creators• Authors and Publishers Associations (55) • International • STM, IPA, ENPA; EWC, IFJ, ICOGRADA • National • AAP, Authors Guild, ARS
    30. 30. IFRRO’s mission, purpose, tasks• Increase lawful use of © materials• Eliminate unauthorised copying• Promote efficient management by RROs• Foster creation of new RROs• Facilitate agreements & information• Raise awareness of © and of role of RROs• Provide legislative and operational support
    31. 31. Links to key international bodies in the © sphere• WIPO• UNESCO• European Union• Regional IP bodies (APEC, OAPI, ARIPO, CERLALC)• CISAC• IFLA• etc
    32. 32. Some IFRRO initiatives
    33. 33. LicensingLatest developments
    34. 34. Transition to digital• RRO origins in photocopying• Markets switch to digital technology• Analysis of strategic issues for RROs• Majority of RROs now licensing digital use• Good practices shared • RRO to RRO • Within IFRRO
    35. 35. Digital sources and applications• Sources o Analogue o Online o Electronic carrier o Internet download• Applications and uses o Scan o PPT o Printout o Whiteboard o View o VLE o Store o Redirect to content o Email o RRO content database
    36. 36. Access for people with reading impairment• WIPO VIP Stakeholder Platform • Trusted Intermediaries (TI) pilot project• EC VIP Stakeholder Dialogue • MoU; TI model
    37. 37. Library Digitising projects Bookshelf project (Norway)37 • Contract National Library – RRO (Kopinor) • Mandate from authors and publishers • Extended Collective Licence • Digitise and make available 50,000 books • Published in: 1790-99; 1890-99; 1990-99 • Including Orphan Works and Out-of-Print works • User access • Registered library users • Norwegian IP addresses • View; No download, print-out or copying • Purchase opportunities • Other countries
    38. 38. In Conclusion
    39. 39. • Access to knowledge is a shared goal• Collective licensing can complement theoriginal offer from the right holder• Solutions for the different uses in theanalogue and digital world can be found• Dialogue is the best way forward
    40. 40. Thank you for your attentionIngrid.debaucourt@ifrro.org www.ifrro.org

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