Behind the Scenes With Winston Tabb, Representing Libraries at the World Intellectual Property Organization (WIPO)

Fairly Used 2013-07-10

Mary Minow: Good morning. I understand that international treaty discussions concerning libraries, archives and copyright are scheduled in Geneva in November 2011. How did that come to be?

Winston Tabb: Really, where we began was at the International Federation of Library Associations and Instititutions (IFLA) World Congress in Oslo in 2005. We didn’t start with the idea of a treaty at all, but with an interest in finding real-life, detailed examples from our colleagues from all parts of the world about what issues they were facing with copyright and managing their libraries. So, we planned a program session in which we organized people into discussion groups based on regions, both because of linguistic affinities and because typically regional differences may matter a lot in the challenges faced by libraries in dealing with intellectual property. Through this session we came up with a list of very specific problems that our library colleagues face in different parts of the world, and that became the basis of our thinking.

I should add that we were led to plan this session in the first place because a group of Latin American countries had strongly suggested at WIPO in 2004 that the Standing Committee on Copyright and Related rights (SCCR) should focus in the need for limitations and exceptions, and we as a library community wanted to be prepared to say which L&Es were most critical to our mission.

Next, we said, if these are the problems we need to solve, then what is the best way to proceed with that? Around the same time, we and several other library groups were asked by the World Blind Union to join in the drafting of the treaty for the visually impaired that was introduced about three years ago, and we very happy to do so since service to print-disabled patrons was one of the issues that had surfaced in our dialogue with other librarians. We realized, in the course of that work, not only that it’s a really important issue, but that it was good to come first because it was easily definable, relatively easy to describe exactly what the applicable universe was. But this treaty solved only one of the issues that libraries have. So then we decided that we needed to move more toward crafting our own, broader instrument on libraries and archives. That process began with a workshop at the British Library in 2009 where a group of librarians, law professors, and civil society representatives (including the World Blind Union) met to develop a set of principles that would undergird the treaty we eventually drafted.

We also wanted to get archives engaged with us, and now they are. Someone from the International Council on Archives (ICA) has been part of our working group as well. So that’s it, a short summary of how we got from thinking about what the library problems are to a document that presents possible solutions to those problems.

Minow: That’s great! And then how did you get on the agenda at WIPO?

Tabb: The way we got on the agenda was by going and going and going! This is one of those situations where if you’re not present, you can just forget about having any impact. You can go to many of these meetings and maybe very little happens, but if you don’t appear, it is definite that nothing good is going to happen for libraries. So, to back up, when I was appointed Chair of the Committee on Copyright and other Legal Matters (CLM) of IFLA in 2003, the committee had existed for just six years. It had focused more on programs for the IFLA conferences and general awareness raising than on really active representation and engagement at the international level. There was, at that time, a Swiss who would go to WIPO meetings and report about what happened, but that was really quite different from our being formally accredited and regularly sending a delegation. So after I went to the WIPO General Assemblies and the meeting of the Standing Committee on Copyright and Related Rights in the fall of 2003, I realized that really we needed to be much more active. We needed to be present on a more regular basis and with more force, ideally with broad geographic representation. When you’re at WIPO, there’s a lot of time that’s not spent in plenary, but in hallway conversations and caucuses. The more people that we could have there, who could speak particularly to their own delegations, the greater our impact could be. When I could speak to the US delegation, [Victoria Owen] to Canada, etc. the easier it was to have access and impact, because delegates often naturally tend to listen more carefully to people who are their constituents, so that having a diverse delegation was important.

As it turned out, it was also a wonderful coincidence of timing that we began to appear just at the time that WIPO itself began to be more open to non-governmental agencies (NGOs) and NGO interventions. The very first time I went to the Standing Committee on Copyrights was the first time in anyone’s memory when the chair of the session without prior warning suddenly asked, “Are there any NGOs that would like to make an intervention?” We were all caught so by surprise that we hardly knew what to do so. As I recall, Jamie Love, representing Knowledge Ecology International, took the microphone and made an off-the-cuff statement and then a few more people followed, and that was that. But that episode really started the trend, so that from that point forward, routinely, time has been set aside for all of the accredited NGOs to make interventions. In fact, at the last SSCR (June 2011), several Member States insisted that the Chair permit NGOs to speak early on concerning L&Es for the print-disabled because they really wanted to hear our reactions to recommendations that had been tabled on this hot issue. Quite often, we are limited to no more than three minutes, or sometimes even two minutes depending on how many NGOs are there. So it became obvious that not only was it good to have people from different parts of the world there so that we could discuss issues with representatives from our own countries or regions, but also that the more library organizations that were present, the more “air time” we actually got to do interventions. So IFLA was joined first by eIFL and after that came the Library Copyright Alliance of the United States; now we also have the Italian Library Association, and the Canadian Library Association. So we now have five library organizations that are accredited plus the International Council of Archives. We coordinate our statement so that if we only have two minutes each, that’s 10 minutes total for the libraries. We discuss whether we all want to say more or less the same thing because it’s so important we want people to hear about it five times; or whether there are multiple issues that need to be addressed. If so, we each take one so that we can maximize the benefit of having multiple delegations. That’s been a very, very big change at WIPO, this idea that the NGOs are not only permitted to be present but are expected to be heard from. Time is set aside and then WIPO takes our statements and publish them as part of the record. It’s been a very important way of our doing education for the people who are from the member states.

Minow: Are there NGOs then that also appeared that take positions opposing yours?

Tabb: Oh, of course. One of the most obvious ones, particularly in the context of the treaty for the visually impaired, is the International Publishers Association (IPA) which has said in its interventions said that it will never support a treaty. That was two or three sessions ago I think. And the other major one opposing a treaty is the International Federation of Reproduction Rights Organizations (IFRRO). Both of them have said that they will oppose our treaty in principle, that our issues should be dealt with at the national level, so they are opposed to a treaty in principle. In fact, we had been hoping for some more progressive collaboration because we’ve had fairly close relationships between IFLA and the IPA over the years. I’ve been a member of the IFLA IPA Steering Committee for the last eight years and we’ve issued joint statements on topics of mutual interest like retraction of articles and data-driven policies. IFLA hoped to get into a constructive dialogue about the library L&E instrument itself , focused on the substance of various articles – maybe some were ok, others weren’t, and yet others needed to be tweaked; but instead both IPA and IFRRO just basically said that in principle they opposed an international instrument so there was nothing substantive to discuss. That’s discouraging.

Minow: That is discouraging. And so do you expect the same, more of the same, when it comes to the library exceptions and limitations?

Tabb: Absolutely, I mean there’s no question about it. As a courtesy, it was extremely important to us to share our drafts because we want to be transparent. We were hoping we could agree on that some portions that should be relatively uncontroversial, like preservation. Perhaps they worry about the “slippery slope,” that if they start talking about an instrument at all there’ll just be no stopping it. I really don’t know the reasons, but it has been disappointing. Those are the two NGOs that probably have the most interaction with libraries generally – we are major customers! – but certainly the people representing the motion picture industry, the recording industry and others are not likely to be very supportive either. We just haven’t engaged with them as much as we have IPA and IFRO.

Minow: You don’t expect the motion picture industry et cetera to show up… or do you?

Tabb: Yes, they’re often there.

Minow: Okay, all right.

Tabb: I can’t remember all the different NGOs now engaged at WIPO. There are people who represent actors – especially when rights in audio-visual performances are being discussed – and people who represent music producers, broadcasters… really all these international associations for the various rights holders as well as the NGOs like Knowledge Ecology, Public Knowledge, the Electronic Frontier Foundation that represent the public interest.

Minow: Okay. Are you hopeful, then, about a treaty going forward?

Tabb: Yes, I think we have to be. Who knows what will happen or when. We have to be patient and willing to persevere. As I mentioned the treaty for the visually impaired looks from certain points of view like it should’ve been a “slam dunk,” but it’s actually been on the table for several years now. At the session that we’ll be going to next week, actually, starting on the 15th of June, three full days are to be devoted to discussions just about the treaty for the visually impaired. It is gaining some traction. Libraries are the second in line by level of “maturity”. I’m putting that in quotation marks because that’s the term that’s often used at WIPO to determine how to proceed on certain issues. The SCCR agreed at its last meeting to a multi-year work plan, with three days devoted to the treaty for the print-disabled now in June, and then for libraries/archives to have three days at the SCCR in November, and then education will probably be taken up at the session of SCCR in May or June of 2012. At least that’s the current plan that’s a matter of record, part of the conclusions of the last SCCR. What we don’t know yet is what will actually happen either at the three days next week relating to the treaty for the blind or what will happen in November. We’re very interested to get there next week and see how WIPO or the member states deal with these three-day windows that have been set aside for focus on a very particular issues and instruments. One of the important directions from the member states as stated in the conclusions is that these three-day sessions should be “text-based.” The working assumption is that there has to be some text, so that people aren’t just talking in general about an issue but are focused on the current draft treaty for the visually impaired; and then the same thing should be true in November on the treaty for libraries. The library text would include the document that’s been produced by the African group, which is at this point the only one formally on the table at WIPO that talks about libraries. Our draft treaty has not yet been introduced by a member state.

Minow: Tell me about the African draft treaty.

Tabb: The African Group is very focused on what they call the holistic approach. They have one instrument that would cover the visually impaired and other disabled individuals, libraries and archives, and education. Probably the biggest controversy at the last SCCR session was whether the African group would accede to the idea that there should be separate, sequential discussions over a two-year period breaking the elements of their proposal into various pieces. I think it’s clear that one reason that the African group has been so adamant about the holistic approach is that they really believe that they will have more leverage if all of them are taken together. Particularly, they are concerned about education, which may drive the African group more than any of the other issues. The dispute about whether to sequence or bundle these issues literally brought us up to the midnight hour at the last SCCR. Finally there was agreement that these issues – visually impaired, libraries/archives, and education – would be taken up in sequence by level of maturity.

Minow: I see, okay.

Tabb:We have worked with the African group; we’ve explained our library concerns, and attended workshops with the Africa group in Geneva to talk about their proposals. They made quite a number of changes in their document relating to libraries based on the discussions we had – more detail, more clarity about real-life issues that need to be addressed through the treaty for libraries particularly.

Minow: Tell me about the IFLA draft treaty.

Tabb:It was drafted by IFLA and eIFL together. I was directed by the governing board of IFLA at the World Congress in Milan to appoint a drafting committee, which I did. The committee has six or seven people, and is chaired by Teresa Hackett who is a member of IFLA’s CLM but of course is also the head of the IP program for eIFL.The draft is considered to be jointly produced by IFLA and eIFL. The American NGO, the LCA, Library Copyright Alliance, has commented and offered suggestions, and we’ve taken some of them on board; but it has not formally signed on. I am very conscious when I’m working on these issues about functioning at the international level, not as an American librarian. Because there are national differences, I think it’s possible that the LCA – or other national library associations – would not endorse the entire draft that we have because they’re obliged to looking at issues primarily through a national lens whereas IFLA and eIFL represent an international constituency, and in eIFL’s case one that especially focuses on developing countries.

Minow: Interesting. I just re-read it and it’s hard for me to imagine what that would be because it seems like it covered everything the way we would want it but …

Tabb: Yes. Well the debate may come to focus not so much on the substance but the modality. I think what we’re seeing now, what’s happening with the treaty for the blind, is thatthere are various approaches. One would be the full treaty approach, and others more “soft law” approaches, a joint recommendation perhaps; there are different ways of coming at this.But IFLA – and the World Blind Union – remains convinced that a treaty will ultimately be the most efficacious way of achieving our mission.

Minow: Oh, I see.

Tabb: Some parties think the solution is always a “stakeholders’ platform,” like an agreement involving “trusted intermediaries” that was one venue used for a time as an approach to resolving issues for the visually impaired. I think the best summary of where we are may be that people are more likely to agree, in many respects, about what they would like the outcome to be than about the method of getting there.

Minow: Yes.

Tabb:For lots of people it’s easier not to think about a treaty. From IFLA’s point of view, we are more interested in results for libraries than in the process. We are focused on the needs of libraries in about 185 countries, many of which, we know from Kenny Crews’ WIPO study, have no provision whatsoever in their national law for libraries, or such a general exception that it is practically useless. The chance of achieving our objectives either through national approaches or through soft law is less likely to be fully productive for all the countries that are members of IFLA than a treaty would be. Of course I could see that from the LCA point of view, a different approach might be more appealing – because really, American libraries have it better than any in the whole world, with our Section 107 and 108 provisions. We are really the envy of our colleagues in every other country. While there are changes that need to be made in our copyright law – none of us are totally satisfied, as we saw in the result of the 108 study group – American librarians might feel that they can get farther by some tweaks in US law, and that an international treaty is not as important to them as it would be to some of these countries, particularly in Africa or Latin America, that have no provisions for libraries at all.

Minow: I see. And what about the US delegation? What is their position? Support for the IFLA/eIFL draft treaty?

Tabb:Interestingly, I convened a panel at the Association of Research Libraries (ARL) meeting in Montreal in May and I invited Justin Hughes, who is the current head of the US delegation to SCCR, to come and speak along with Jonathan Band [LCA] and Paul Whitney, who is a Canadian librarian and a member of the IFLA governing board. They talked not so much about the library treaty per se but about the way things work in Geneva in general, and so I don’t really know exactly what the U.S. position is going to be. Also, we have the recent appointment of Maria Pallante as the new U.S. Register of Copyrights, and that could have an effect on the U.S. position. The U.S. delegation comprises many agencies and interests and individuals. Currently the U.S. Patent and Trademark Office (USPTO), as part of the executive branch, is playing the lead role, with support from the Copyright Office, Department of State and the Institute for Museum and Library Services (IMLS). When I was working in the Copyright Office in the 1980s, our delegations to WIPO were almost always led by someone from the State Department or Copyright Office. So you know, these things change over time. It’s a little bit hard to know what’s going to happen next because we do have some new players.

Minow: Right, right.

Tabb:So I don’t really know. I’ll be curious to see how this plays out.

Minow: When you talk about nontreaty options, soft law, what do you mean?

Tabb: Well, there could conceivably be a consensus of the signatories to the Berne Convention, that aspects of certain substantive provisions of our treaty are to be assumed under Berne. I think looking at the comments from both the US and the EU on the treaty for the visually impaired gives some examples of how non-treaty approaches might play out. Some argue that it might be wise to use these “soft” approaches to get half a loaf now, and work on the treaty later on. Another alternative is to say we want it all, and we’re willing to wait x years. Some argue it would be better to have something now than nothing, and others feel that if you start compromising, you’ll only get something and never get the whole thing, which is I think the point of view of the World Blind Union.

Minow: I’m not familiar with the consensus… is that something in writing that everyone agrees to but it doesn’t come back to be enacted into national law or what?

Tabb: Let me send you as an example a copy of the document from the US delegation relating to the visually impaired.

Minow: Thank you. How would you summarize where we are now?

Tabb: It’s a very exciting development to have come as far as we have, from 2003 and not really being present, not permitted to speak at WIPO – to being where we are now where people expect us to be there, in force, and to be making substantive interventions.People are expecting our treaty because it really follows on directly from those studies that the WIPO secretariat itself commissioned. The first one focused on the visually impaired and then the 2006 Crews study focused on libraries. We consider that we’re really just building on the WIPO-commissioned studies like the one done by Kenny Crews. The results of the data revealed in that study, like that fact that so few countries have provisions for libraries, made preparation of an actionable instrument inevitable.

Minow: I thought the orphan works provision was particularly elegant.

Tabb: Well thank you for that, we’re interested to see what will happen because orphan works present one of our biggest frustrations as librarians. At the very time when technology makes it possible to share information easily and widely, the incessant (and unconscionable) extension of copyright term combined with the elimination of registration and renewal formalities has effectively prevented the sharing of millions of publications that have little if any commercial value. We’re watching very closely what’s going on at the EU and at what decisions might be taken in the US under the new Register of Copyrights about how to proceed, if at all, on new orphan works legislation. A lot of people are afraid that opening things up could be more dangerous than living with what we have now through our Section 107 and 108. But clearly the orphan works issue has got to be resolved somehow, because it’s really locking up so much information that’s giving no value to anyone, including the theoretical owner.

Minow: The orphan works language was simple and well written. Why haven’t we just used similar language in U.S. legislation?

Tabb: Well, in the draft treaty, what we tried to do in several of the provisions was to focus on what the result should be, not on the modality. And we took a similar approach in articles where moral rights issues might arise. We don’t really think about moral rights in the U.S. But there are countries where that’s a very important issue. So we focused not on prescribing exactly how things should be done or how they should be embodied in the national law if the treaty were to be adopted and ratified, but on what the outcome ought to be for libraries and our users. We realize that there can’t be a one-size-fits-all approach to how these exceptions or limitations would be implemented.

Minow: That’s right, I wasn’t thinking about the moral rights for orphan works, of course that would be an issue elsewhere.

Tabb: Well it came up very explicitly when I launched the treaty at the IFLA President’s meeting at the Hague in April. Take the idea of retraction of articles from databases. This is a very controversial issue. Most librarians, myself included, feel strongly that the record is the record and shouldn’t be expunged. Records can be annotated to explain why retraction might be sought; but it’s part of the historic, scholarly record and it doesn’t disappear. However, there are others who feel, particularly if they’re from a country where moral rights are prized, that if the owner or author wishes to withdraw his or her work, it simply must be done, period. There are various, strong differences of opinion on some issues like this; so we knew from the beginning that we had to leave certain matters more open to national interpretation.

Minow: So that provision says, I’m not looking at it now, it says “but subject to national law” or something like that?

Tabb: Right. And that’s the reason for that.

Minow: I see.

Tabb: That’s the pragmatic approach, which you have to have if you’re ever going to get this treated adopted. I wasn’t at all surprised when I got asked that question about moral rights from one of the students who had been invited to come to the IFLA president’s meeting. He was just appalled at the idea that the author couldn’t withdraw or destroy something that he or she had created. To a librarian, thinking about the national record, that’s an anathema.

Minow: It seems like when things are withdrawn, it’s not usually the author… but it could be.

Tabb: Usually it is the publisher, and more often in the area of science where things were really wrong and someone could be killed because there was a wrong formula or prescription…

Minow: Right …

Tabb: Something of that sort. So there really are good reasons why retraction could be sought.About six years ago, the IFLA/IPA steering committee did issue a joint statement on retraction. As I recall, the agreement there with the international publishers was that yes, the publisher should be able to withdraw an article, but taking notice of the importance of legal deposit, we also agreed that the item should remain as part of the legal deposit, properly annotated to indicate that the publisher has withdrawn x publication on x date for the following reason. That’s the approach librarians would prefer because we think that really is necessary for the historical record.

Minow: Oh, absolutely.

Tabb: There are a lot of people, including some colleagues from other countries, who see that in a different way; so our own drafting compromise was to say that this situation would be handled according to national law, knowing that means that it would be treated differently in different countries.

Minow: Well, thank you so much for your time, I know it’s a busy time for you.

Tabb: Oh, yes, I’ve enjoyed it so much.

Winston Tabb is Chair, Committee on Copyright and other Legal Matters (CLM), International Federation of Library Associations and Sheridan Dean of University Libraries and Museums and Vice Provost for the Arts, Johns Hopkins University.

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