Thanks to the great work of Thiru Balasubramaniam (CP Tech), Cory Doctorow (EFF), Eddan Katz (Yale Law School Info Society Project) and Rufus Pollack (OKFN), here are notes from yesterday's WIPO Info Session on Educational Content and Copyright in the Digital Age.

Also published at http://www.eff.org/deeplinks/archives/004193.php#004193

Notes of the World Intellectual Property Organization's Information Meeting on Educational Content and Copyright in the Digital Age

World Intellectual Property Organization, Geneva

11/21/05

Impressionistic notes by:

Thiru Balasubramaniam, Consumer Project on Technology (thiru (at) cptech.org)

Cory Doctorow, Electronic Frontier Foundation (cory (at) eff.org)

Eddan Katz, Information Society Project at Yale Law School (eddan.katz (at) yale.edu)

Rufus Pollock, Open Knowledge Forum Network (rufus (at) okfn.org)

Public-domain dedication:

On November 23, 2005, Cory Doctorow, Thuru Balasubramianiam, Rufus Pollock and Eddan Katz (The Authors) dedicated to the public domain the work "Notes of the World Intellectual Property Organization's Information Meeting on Educational Content and Copyright in the Digital Age."

Before making the dedication, the Authors represented that they owned all copyrights in the work. By making the dedication, the Authors made an overt act of relinquishment in perpetuity of all present and future rights under copyright law, whether vested or contingent, in "Notes of the World Intellectual Property Organization's Information Meeting on Educational Content and Copyright in the Digital Age."

The Authors understand that such relinquishment of all rights includes the relinquishment of all rights to enforce (by lawsuit or otherwise) those copyrights in the Work.

The Authors recognize that, once placed in the public domain, "Notes of the World Intellectual Property Organization's Information Meeting on Educational Content and Copyright in the Digital Age" may be freely reproduced, distributed, transmitted, used, modified, built upon, or otherwise exploited by anyone for any purpose, commercial or non-commercial, and in any way, including by methods that have not yet been invented or conceived.

--

Chair: Thank you all for coming. We're carrying this over from the last meeting where we decided to address these issues.

--

First speaker, Julien Hofman, Commonwealth of Learning, Department of Commercial Law, University of Cape Town, Cape Town, South Africa. Has established a digital research repository on this subject. [[There is a hand-out from Prof Hofman available to delegates as well]]

Problem recently discovered by Commonwealth of Learning. Had been using distance learning since 1998.

Most of the information needed for distance ed is covered by copyright. They've drafted a joint letter to the ministers of education in all the commonwealth countries to stress the need for educatiofriendly exceptions and limitations

Drafted 2 page statement, available on WIPO website. reflects need to have exceptions and limitations proper for education and distance learning.

I want to tell you about my experience dealing with publishers on behalf of the tertiary education system in South Africa. Maybe this stuff shouldn't be in writing, but what the heck, we're all friends.

I've spent the past several years trying to negotiate with publishers for uses. We also have access to fair dealing, under the usual terms, "a reasonable portion," "no impact on commercial use." But no one knows what this means and no one knows what's reasonable. Only the courts know and litigation is too expensive.

One technical question on labour law that we litigated cost us 5,000,000 Rand.

As educational sector, don't have the kind of money needed to challenge the publishers. Need interpretation of legislation. Publishers say they have taken a reasonable position. They have no problem with individual students and teachers making copies. But when an institution makes copies, even of a single page, they must pay royalties. For instance, English literature professor making copies of a single poem from an anthology of 600 of them. There is no fair dealing from the standpoint of administrative teaching. Publishers say, hey, no problem, all you need to do is tell the students to copy it themselves. If you tell the students to come with their own copies, most of them wouldn't do it.

In the area of distance education, this is even less likely, since distance ed students don't have access to the school library. I have to post my course materials. But the moment you put it up for 100 students on the web, you become liable for unlimited penalties for infringement. For all intents and purposes, the fair use exception doesn't operate. We need something that strikes a balance between the needs of educators and publishers.

Collecting societies operate on behalf of the publishers (not authors -- we authors get precious little of this). They'll soon reach out to high schools and also primary education in rural areas. Places like South Africa - it's important there. We can deliver stuff to schools electronically, but of course what about the royalties.

Even the smallest, most rural school has Internet access and electricity.

Once delivery is done by an institution, it becomes a target for collecting societies.

I am not opposed to publishers. They are important to society -- they publish our books, they carry the risk that the books will flop.

Academic publishers don't make a lot of money -- it's not like there are many JK Rowlings in academic publishing.

But publishers as I know very well, in the ordinary way -- they just sold their books, until the moment that digital distribution arrived.

Now digital distribution has created a bonanza - a university can easily pay in royalties 1 million rand. What most universities do, which is why they don't challenge this, they just pass this on to students. Students have to pay beyond the regular fees for students.

It becomes an additional fee that students have to pay for their education and learning. Some institutions pick up the bill for that, but I wonder if they realize what they're letting themselves in for.

Of the millions collected for these uses, 25% (5 million Rand) goes to collection agencies. Where someone is using an online distribution in a way that impacts the sales, that person should be paying royalties. But where the use is in the normal course of education, it's a tax on learning and in a country where there are problems in education, this is an important problem.

WIPO is not accountable to the educational institutions of South Africa or any other country in the world. It is accountable to the member countries. Those countries should be working to change this. But in most commonwealth countries, copyright falls under the care of a department of trade and industry, not under a department of education or culture.

There are two empty seats before me -- South Africa didn't bother to attend. The permanent delegates from South Africa - one from trade and industry, the other from refugees. The industry person doesn't see the educational uses as part of their brief.

From our side, educational organizations will be pushing the government to become more involved. We need more useful fair use exceptions for copyrighted materials. It would be useful if the larger intellectual property community would lead people to see this in a wider context.

Thank you very much.

--

Teresa Hackett, Project Manager of Electronic Information for Libraries (EIFL), IP Advocacy for Access to Knowledge, and Member of Committee on Copyright and Other Legal Matters, International Federation of Library Associations (IFLA)

EIFL and IFLA are membership organizations representing libraries and library associations since 1927.

Speaks for 4,000 leading libraries in the least developed and transition countries. Development and copyright. How copyright affects library education and information services.

* Libraries and education

Libraries are not just shelves of books. The unique role of libraries. Well informed citizenry. They are vital to a democratic and open society.

Good education cannot exist without access to knowledge. The education commission of the United States, a US think-tank, notes that good school libraries are linked to higher test scores.

High quality school libraries are linked to better results on tests. When a university seeks accreditation. The effectiveness of educational institutions depends on the quality of the provisions of their libraries.

* Development and copyright

The greatest resource for development is an educated society. A literate population

Literacy rates correspond to the development of a country. There is a direct correlation between library holdings and literacy rates, the higher the library holdings, the higher the literacy rates.

Libraries build capacity for learning. The millennium development goals are the most important way to make progress on development. Student teachers and nurses will provide research and learning.

Student teachers, nurses and engineers rely entirely on university libraries. Developing countries must ensure that learning materials are made tot he widest possible base.

* How copyright affects library education and information services.

Where do libraries stand on copyright? We believe in upholding copyright law.

But copyright is not just about the rights of creators. What makes copyright work is the exceptions and limitations. Copyright is supposed to balance the user's right to access and use knowledge. International agreements guarantee the same rights to creators, but not the exceptions to monopoly rights. The three-step test provides a mark to ensure that right holder rights are guaranteed. Creates an imbalance from the start. Balance between the rights of authors and rights of publishers.

If exceptions are narrow, how can there be a balance? Without a balance, copyright works against libraries, against educators, against access for people with disabilities and against development.

At the world library congress in Oslo in 2005, librarians from all over the world discussed the problems they have with copyright law: e.g., digitization projects are hampered by the lack of exceptions for long-term preservation, and where they exist, there's no making available rights.

Negotiations even for out of print material can be long and painful. This can be lost for other generations because there are no other institutions doing this work.

Masses of content held by libraries - permission from the rightsholder is usually required, but is impossible. This is because the copyright owners are untraceable -- the so-called "orphan works."

Print medium is essential for literacy and education.

A teacher in South Africa, discussing her students: With no fixed address they can't take books from the library. With no electricity, they can't make their own copies. Copyright law prohibits the teacher from making copies herself or preparing translations.

What choice does she have? Make copies and derivative works to educate or make unauthorized copies? How will people progress from developing to developed. How will people learn about their copyright law.

Super-national directives from the EU, the WIPO treaties, and bilateral free trade agreements have eroded the balance.

We need proactive acceptance. This is why we need treaty on Access to Knowledge. would enshrine user rights.

* Minimum set of limitations and exceptions that comply with international agreements

What can we do right now?

Professor Ruth Okediji has undertaken some research in this area. After analyzing Berne Convention, Prof. Okediji has drawn a list of exceptions and limitations acceptable to Berne.

These are for personal use, for criticism and review, for education, for reproduction by the press, ephemeral recordings, for people with disabilities, for interoperability and in a limited way for libraries too.

Every country can adopt these basic limitations and exceptions today. Doing so would show willingness to provide a balance between needs of publishers and needs of educators.

I don't believe that copyright law has to be a barrier.I want to see copyright law, like in Statute of Anne, to encourage learning. I want libraries to work

--

Otunba Olayinka M Lawal-Solarin, CEO Literamed Publishing, Nigeria

I am a publisher. I feel like I should defend myself as a publisher.

I'm a publisher in a developing country. We think we should have stronger copyright law to protect indigenous publishers.

Should be able to develop and the national policies of for instance governments in developing countries, in particular Africa. Should make it possible to develop culturally relevant books. What we're getting is not culturally relevant books.

Copyright laws should be strengthened in developing countries.

[[Ed: Why believe that stronger copyright for Nigeria will help with this problem?]]

UN says that everyone has a right to protect their moral and material interests resulting from scientific and literary works.

Socioeconomic principle that copyright encourages

Today's copyright law serves several purposes. The most important is to encourage progress in arts and sciences.

Copyright is a legal mechanism for the ordering of social and cultural life.

Here at WIPO, it's been emphasized that the driving force of development in the industrialized world is IP, particularly, a well-educated and enforced copyright system.

[[Ed: Historically, this is untrue; the US's refusal to offer exclusive rights to foreign authors is generally cited as key to its post-colonial development]

Post-colonially, the old powers have used copyright to deny access to knowledge to developing countries. Developing countries couldn't obtain translation and reprint rights. Dev nations said that copyright interfered with their access. The publishers said that their authors and publishers were entitled to a fair return and their rights should be respected. This lead to widespread piracy with copyrights that were weak or unenforceable.

There were several attempts to ameliorate the situation by producing low-cost editions. But this inhibited the growth of indigenous publishing, the growth of publishers like me.

Multinational publishers are not doing enough to develop the appropriate type of cultural goods for Africa.

Motivating indigenous publishers to produce relevant cultural books and encouraging the provision of adequate textbooks.

The Nigerian policy on literacy envisages 5 textbooks per pupil. Nigerian national policy envisages the individual sound education with full literacy by 2000. They are still very far from their goals.

The supply and distribution of books in francophone Africa is still largely dominated by France.

Most South African publishers are white-owned.

Multinational publishers, Oxford Univ. Press, etc. divested themselves of their interests after the the indigenization of the industry.

As democracy takes root in most African countries, there will be more indigenous publishing in Africa.

Kofi Annan talked about the $100 laptop.

A $100 laptop would provide 14,000 Nairu (?), multiplied by 25 million schoolchildren will cost 350 billion Nairu, which is about 3-4 years' worth of our educational budget. If you produce books that are cheap enough, it would provide six books per child for the same period. We're not allowing Africa to develop and to produce culturally relevant books. It's important that Africa be allowed to develop culturally relevant books that gives African children the same confidence as Western children. I believe in cross-cultural fertilization, but at the primary and secondary level African publishers need to be present producing medically relevant books, comics, etc that are relevant to Africa.

Western publishing gets things wrong about Africa. There's a myth that Black Africans don't have Rhesus Minus blood types. But I did my own research and discovered that Africans have the same as everyone else -- 50 percent Rhesus Minus.

Culture consists of ideas, knowledge, values, philosophy and so on. Culture is a distinguishing factor between man and man. It will not only kill local initiatives, but it would exaggerate assumptions

The production of books that reflect the history of a people should not be left to others.

--

Discussion

Teresa Hackett: Libraries are creating a mass market for your books.

What we are asking for is exceptions that satisfy the three-step test. We are not dealing with the issue of piracy here, we are dealing with exceptions that satisfy the three-step test.

Julien Hofman - Africans are like everyone else, both in their weaknesses and in their strengths. Like maximizing profit-making. Interest is to maximize profits. The indigenous publishing houses, like those abroad, seek to maximize profits. What is reasonable from the point of view of reasonable fair use.

Otunba Olayinka M Lawal-Solarin: Publishing is NOT every man's meat. It's not like buying rice or selling computers. It's arduous work. It has taken me 35 years to make a viable publishing company.

Collecting societies are there to collect SMALL royalties to be distributed to publishers. ... I am saying right now there are laws enough to protect everybody. ... There are collection societies and there are publishers. Asking them to reverse the laws. There are laws to protect everyone. If you're going to copy 100 articles, you should pay for it. Someone is suffering because of that. If you're

[[ comment by RP: What do we think of the testimony of Sam Yagan in this context in relation to Spark Notes?]]

Sonny Leong, Exec Chairman, Cavendish Publishing Limited: Have to respond to Julien Hofman's comments. Such sweeping unqualified statements are dangerous. Of course publishers have to make money to invest in their interests. Sure you delegates out there will want to see flourishing publishers in your country. But what will happen to publishing in your country? Represent 500 publishers. Not all of them are successful, there are some multinational publishers. A lot of them are not making money. They do it for the sake of the work. And such statements are dangerous.

Representative of Chile (Luis Villarroel Villalon) :

Question for Mr Otumba, I have heard from local publishers (in Chile). they have to go through a very laborious process to get a license from external publishers to get to publish in their country. Can you explain to us what is the experience about how complicated it is to get a license?

Otunba Olayinka M Lawal-Solarin: We have the same problem. I was just in Frankfurt, trying to buy rights to Bible Stories, which are universal, and we have problems. We have to get a reference because we're African, because they don't trust African copyright laws. I needed a reference. I had to go to a friend in Norway to give me a reference in order to get the rights to buy. There are difficulties. They're still happening.

They will sell the books, you cannot buy rights from the United States (which is an English territory). I am going to tell you a story: about 3 or 4 years ago I went to Frankfurt, and I went from stand to stand to buy books and they told me they wouldn't sell me the rights. I told myself when I got home that in five years I'd return and exhibit my material. Here's my material. Next year I'll exhibit in Bologna. I'll show them.

Delegate from Australia: Can I through you ask Professor Hofman a question? He referred to the payments that educational institutions have to make to make any copies. Were these sums arrived at through negotiation or arbitration? He also mentioned that he wondered whether he would ever see any of the remuneration from collecting societies. Did he have any information on the oversight of collecting societies?

Professor Hofman: 50 cents (South African cents) a page. This was determined by collecting societies. There is no process of arbitration, if you don't like their rate you don't get their material. Moving to a blanket license. You pay half a million rand and they then monitor what you do and if it is excessive it gets changed.

How they distribute their royalties I don't know. I'm not in a position to answer that. There is no statutory supervision of their activities. There was only one collecting society -- a monopoly -- until quite recently.

Representative of Nigeria: Thank you Mr Chairman. The first question I have which would have been for Mr Hofman, but given his disclaimer regarding this issue I want to limit it: In South Africa do you have separate rate scales for different institutions, primary, secondary and tertiary? The problems that confront the developing world aren't the same as those we face in the digital environment. Piracy is a long-standing problem, policy distortion is a long standing problem, economic downturn is a long-term problem. Just referring to experience in Frankfurt.

There are cartels in international publishing. They may withhold rights not because of your copyright system, but for other reasons. Nigerian copyright is based on the same international tenets as in the rest of the world. Each countries has different enforcement capacity. That's what we're here to consider. When it comes to level for enforcement, we need to understand that different countries have different capacities in terms of enforcement. How many rights do we need to give, how many layers of rights do we need to allow and how many rights do we need to concede? It's not just about extending rights - it's about letting people live with the copyright system. This isn't just a question about giving publishers more rights. It's about making society able to live with the law that is being put in place. The more the bar of copyright protection is raised without considering the needs and concerns of society, the more difficult it will be to run that copyright system. We have reached a point where we need to look practically at how much is enough. Publishing isn't all about profit, but profit is a key component of why people stay in the business. But without limitations, it's like putting a train on a track without a driver or a control mechanism. What limitations do we need to put in place to have the copyright systems serve society, so that both publishers and users can be happy?

[Otunba Olayinka M Lawal-Solarin]: Collecting societies have a certain amount that's paid to them and the rest is shared to publishers and through them to authors. There's a formula for distributing the proceeds of distribution to the publishers. What we're asking for in Nigeria as a collecting society is so small -- for instance, a student can copy whole books. It will cost them about 1000 Nairu in copying costs, but you can buy the book for only 500. If they buy my book I'll sell more books. I think the professor thinks profit is a dirty word [Hofman shakes his head]. Profit is necessary for expansion of the industry. You need to reinvest, you need to reinvest every year. You can't take your IP to the banks, they accept the fact that you are making a profit, that you have a cash-flow.

Prof Hofman: As far as I know, no one has asked secondary or primary schools to pay royalties yet. The infrastructure is intensive. But once you create the principle that all copying comes with a payment, its likely that fees will be assessed against any institution that is worth suing. I agree that we'll need sliding scales for different kinds of institutions.

[Delegate of Jamaica]: An issue for IFLA: Before leaving Jamaica i had a meeting with a librarian from the University of the West Indies. She raised the issue of subscribing to online periodicals. She said that once you stopped subscriptions you couldn't even get access to the old issues that you had paid for.

Hackett: It's a licensing issue and it's important. Increasingly copyright exceptions are being overridden, by technological protection measuress and by contract. When libraries acquire access to electronic material, they do so by contract, which overrides copyright law in most countries. Unless the library can negotiate, it ends up signing away its rights. My organization is working on negotiating multi-country licenses for libraries in developing nations, to get a good price and fair terms. Perpetual access is one of those issues. Traditionally when a library bought a journal it got to keep it on its shelf, even if the library stopped its subscription, where students could come and read it. Library would bind it and it would be there forever. But in an electronic environment when access to the journal ends access to the back issues also ends.

World Blind Union: I want to give you an example from everyday life that despite limitations and exceptions can prevent access to educational material. The example comes from the Netherlands where a blind student in literature can't get the texts for his degree in time, even though they have been created by a US NGO that provides talking books for blind people; the US institution couldn't verify whether its editions were lawful in the US and so the Dutch library had to reproduce the talking book again. This means a high cost and a delay which prevents the international exchange of educational materials,

We think as the WBU that the international exchange of accessible educational materials should not be hindered by unreasonable copyright barriers.

Prof. Hofmann: Just wanted to respond to the remarks of the next speakers. Let me give you a small example of what I am not trying to say. There was a visitor from New York - that if you adopt this approach, it will be the end of the publishing industry in South Africa. She said, I don't give an f*** about the future of publishing in South Africa. I do very much care about publishing in South Africa. What I'm after is a balance and a gradation. The present situation is skewed in the direction with disfavors education of the very poor. I'm very in favor of a strong publishing industry worldwide and in every country. It is simply a question of where we draw the line.

Teresa Hackett: Libraries do support a strong publishing industry, particularly local publishers. But the issue is bargaining power. Our negotiations are often unequal.

[Otunba Olayinka M Lawal-Solarin]: For the first time, Prof. Hofman and I are in agreement. We should not go directly to publishers. There are collecting societies that are part of copyright laws. They can be established in such a way that their content can be accessed at a price that is acceptable to everybody.

--

Facilitating the flow of educational materials in developing countries:

Commercial licensing systems. Mr Sonny Leong, Exec Chairman, Cavendish Publishing Limited, London.
Mr Victoriano Colodron, Tech Director, Spanish Reproduction Rights Center (CEDRO), Madrid.

Access to Affordable Books in Developing Countries.

Leong: I fondly remember a scheme that allowed for low-cost publishing in the developing world. It was dismantled by a few consultants. I vowed never to allow this to be repeated.

Cavendish books publishes cheap editions to the developing world. We're the largest indie law publisher in the UK, we export to 80 countries, 50 percent of them in the developing world.

Recently I was in a South American country; I had a meeting with several people at the university as well as many students. It embarrassed me to meet these students knowing my government took away the books these students could have bought. They're capable and could have gone to overseas universities, but because of their economic circumstances they have to study at home. Their library is full of > 20 year old books. These students were deprived of the books they could easily have afforded to buy.

Tertiary Publishing

-FE, vocational and university (under and post graduate) education

-English Language markets

Global issues

- Not a big item issue, unlike "Education for All" (EFA)

If any country wants to talk about education, they need to talk about tertiary publishing.

- Perceived as elitist

Tertiary ed is not elitist -- it is a prerequisite for development.

- Piracy (organized crime) (IPR)

There are raids in India, books seized. Piracy is organized criminality. It's organized crime, big-time crime. They make more money from piracy than gun-running. Books are use as a camouflage for other activities.

- Tax/VAT - Import Duties

- Bureaucratic import procedures

This is why books can't be cheaply sold in developing nations.

To sustain publishing, you need certainty. Universities on strike, etc undermine publishing.

We need an effective supply chain from author -> publisher -> distributor -> wholesaler -> bookseller

Authors publish their own books on the Internet or on their own. Some academics come to publishers because they add value to the production cycle. We need a level playing field: in primary school publishing, the state gets involved and commercial publishers walk away. Tertiary publishing is expensive -- that's why there's not much of it in developing nations.

How to sustain a viable publishing/book trade environment?

- Course/curriculum certainty

-Effective and efficient supply chain

-- Booklist/distributor/wholesaler ...

What are publishers doing now?

-International Students' Editions

Publishers bring out their own international students' editions, pricing to markets. Publishers' association survey of 30 major textbooks, compared across 30 developing nations: always cheaper in developing countries.

---Global pricing?

We need global pricing. In India, 20 years ago, the Indian market was closed. Publishers wanted to sell into the Indian market but couldn't because it was inefficient there. Eventually they licensed local printers to produce Indian editions. Now foreign publishers had an interest in India. The Indian government created "economic printing zones" where foreign publishers can print local editions and export the majority abroad.

-Special pricing to markets/discontinuing

--Territorial rights

-Licensed reprints

Have adaptations of their works; e.g. Economics are the same the world round, but publishers can produce local editions that tell the stories locally.

--local editions

-BookPower Scheme (Subsidized)

--Former ELBS

Subsidy scheme funded by donors. We compete with OXFAM, Red Cross, etc -- so we don't have a lot of money. We have 40 titles and we sell 30k units/year in developing nations. This is publishers doing something for developing countries.

-Local/co-publishing

Local authorship. have to encourage local publishing.

--Authors/printing

-Sacrificing margins

Publishers give away their royalties and margins to publish in developing nations.

--Royalties

_More needs to be done_

We need to do more: lobby for government assistance. We need more local authorship. I encourage local authors around the world. I take them to an international scene.

-Lobby for government assistance

-Encourage local authorship

-Invest in tertiary publishing

-Eliminate customs and import duties

We donated 50k books to an Indian subcontinent country, but it took 4 months to clear them through customs while we paid for storage. We need faster clearance to get books into students' hands.

-Training in supply chain

We need to invest in training supply chain

-E-publishing/learning?

5.25" floppy was supposed to be the death of the book. Then the 3.5" floppy. CD ROM. Online.

The book is still here.

There's loads of content on the Internet. But researching on the Internet is a waste of time. Because anything that's free may not be worth it.

[[Ed: !!!!!]

We need to train teachers to use technology. They have to be trained to use this new medium.

_What next?_

-Empowering knowledge through partnerships

-EFA

-African Publishers Network (APNET)

-Access to finance to support local publishing

-Less red tape

--customs

I have spent the last 10 years visiting countries where there is limited access to affordable books. We need to talk about copyright and exceptions to the rule.

Any reasonable socially-conscious publisher will agree to the problems of blind users. There is no problem [[Ed: so the problems of blind users are imaginary?]]

Don't take away intellectual property wholesale. Piracy will be the end of publishing. Together we can make ignorance history.

--

Mr Victoriano Colodron, Tech Director, Spanish Reproduction Rights Center (CEDRO), Madrid.

[[Missed the beginning]

There are many billions of photocopies made without compensation. It's natural that publishers want compensation for this. But it's completely impractical to ask each and every one of them for permission every time.

That's why we have collective licensing -- it's a practical solution to legal problems.

_Reproduction Licenses_

-- License systems vary according to the legal framework

Regarding licenses for copying/scanning. They vary with national legislation. The legal backing for them comes from a given country. They're awarded for a type of copying, e.g., in the course of education, but not for uses that replace purchases.

-- Licenses authorize the reproduction of small fragments

- Photocopies and also digitization

These licenses also authorize scanning for the intranet of educational institutions. The most advanced bodies are located in the United States, Canada and Australia.

-- Transactional and blanket licenses

Blanket licenses are useful for large institutions. This morning we talked about fees. Tariffs are usually set per student. There is a framework for negotiation. They must be established with a great sensitivity. Regulations are set by public authorities and published on the internet on our website. These are practical system of licenses. Collective licenses of books are carried in countries with different levels of development.

In Spain, we've just granted our first license of this nature.

-- Tariffs set per student

-- Royalties are distributed to rightsholders

Collection societies across different continents.

_ASIA_

-- Singapore: CLASS

-- Philippines: PRRO

-- Hong Kong, Korea, India ...

_AFRICA_

-- Malawi: COSOMA

-- Ghana: COPYGHANA

-- Cameroon: SOCILADRA

_LATIN AMERICA

-- Uruguay: AUTOR

-- Colombia: CEDER

-- Mexico (CEMPRO), Argentina (CADRA)

-- Bolivia (ABOPOL), Costa Rica (ACODERE), Chile (SADEL) etc.

__Support for license systems__

-- Collective management serves creators, users, and the society at large

-- The book sector, a delicate ecosystem-damage to one part of the ecosystem could destroy the entire balance.

-- Collective management, possible and important developing countries

Collection societies are not just relevant in developed countries, where publishing is fully developed. They are also relevant to developing countries.

The problem is that it doesn't give any incentives to publishers which results in less cultural diversity.

Mostly, pirates copy popular works, but these subsidize the publication of poetry and other culturally important items. Collective management allows us to counteract the negative effects of photocopying. It facilitates legal access. It's a practical and realistic way to manage the different needs of actors in the publishing ecosystem.

-- Limits and exceptions with educational purposes should allow rightsholders to manage their works.

For collective management to work, public authorities have to assist them. But limitations and exceptions can be practically managed through collecting societies. If E&Ls are vague, they become meaningless. We've seen that happen.

Imagine that there's a law that determines that it's possible to copy small parts of works without copyright holders' permission for educational uses. This could lead to enormous problems.

-- The need for an effective commitment to copyright.

It's also important for the political authorities to address copyright. It's very important to allocate budget to culture. They should pay providers of people who provide culture and education, e.g., royalties.

Governments shouldn't forget that publishers have to pay for furniture and water.

--

Facilitating the flow of educational materials in developing countries: Alternative Licensing Systems.

Mia Garlick, General Counsel, Creative Commons,
Jan Vlterop, Director of Open Access, Spring, Surrey, UK.

Mia Garlick: Before I start, here's a little about Creative Commons.

What is the problem CC is trying to solve?

Copyright automatically applies upon fixation. This turns some people into unwitting infringers. Some people do know it, but this instills fear in them that they'll get in trouble. Some have no option and become infringers by necessity.

Digital tech revolutionizes creativity -- how it's made, made available and used. It's democratizing, everything is online. The very essence of copyright is implicated by the fact that digital tech always makes copies.

_Absolute control v. Anarchy_

__All Rights Reserved v. No Rights Reserved.__

The outcome is polarization -- All rights reserved, technological protection measures, litigation. On the other side, there's anarchy -- no rights reserved, information wants to be free, old laws don't apply online.

Creative Commons is a middle ground. Reasonable copyright -- some rights reserved.

CC is a nonprofit in San Francisco, with offices in London and Berlin, with volunteers in 50 countries.

Offer licensing, publishing and search tools for free. Partner with tech companies for search (Google, Yahoo, etc).

We want to enable collaboration across space and time to allow for active cultural participation -- content that can be freely used and re-used.

The core licenses all require attribution (this didn't used to be the case, but everyone wanted attribution, so we made it mandatory). We've also got NonCommercial/NoDerivative/ShareAlike (if you make a derivative use, you must re-license it under CC).

You can produce any of six CC licenses from "by" (attribution only) to "non commercial/attribution/noderivs."

There's no money passing hands through our licenses, but that doesn't mean that no money changes hands. Also, all our licenses are non-exclusive, you can use them in combination with other licenses.

Licenses are in three formats, b/c three different groups read licenses: humans, lawyers and computers. The logo gets placed on content, which links through to the deed, which links through to the code. THere are affiliates in jurisdictions around the world -- 24 countries so far, on every populated continent. Work is underway in 13 more jurisdictions and projects are in 70+ countries all told.

Here's the license in Finnish -- language and legal system.

Science commons: Encourages stakeholders to create areas of free access and inquiry using standardized licenses and other means, a Science Commons built out of voluntary agreements.

In June 2005, launched the Open Access Law program. Open publishing is common in science but not law. Weird, since law publishing is meant to promulgate ideas and reputation, journals pay no royalties. Editorial review is done by students for prestige, and publishers subsidize them -- no one's doing it for money. So it was a natural for CC.

29 journals have signed on in national areas, and two more international journals are onboard.

Partnered with technology companies to find Creative Commons licensed works.

You can apply CC to non-digital works, but searching relies on Metadata, so real-world works don't get that lift.

Yahoo and Google announced CC searching capability. CC licensing has been exported all over the world.

As of last June - over 12 million link-backs -- over 1MM after a year

Enabling open educational resources and scholarly research

MIT Open Courseware

Started in 2002. Occurred after the MIT committee - the idea was in line with MIT agenda to advance knowledge. There are 1000+ courses online, from aeronautics to philosophy. The goal is 1800 by 2008. They've published a guide to establishing an open courseware project. Because it has been around for a while, we have evaluation stats. Since March 2004, you can see distribution of visits by geography. North America and Western Europe dominate, but visitors come from all over the globe. Self learners amount to more than 50% of the group. These self-learners come from all regions equally.

Educators with less than five years' experience rely heavily on the project -- possibly because they're younger and savvier.

Other open courseware: Johns Hopkins, Rice, Vietnam Fulbright Economics, there are projects underway at universities in the US, China, France, Japan, Spain, Portugal, Vietnam and India -- translating MIT stuff and making their own content.

South Africa's bridges.org, promoted ICTs for development and uses CC licenses. The South African education system and university of the Western Cape are both considering CC licensing.

PLoS. Public Library of Science -- publishes journals across many disciplines.

Publish under our attribution licenses.

BioMed Central. over 100 open access journals in biological sciences.

Benefits of CC

CC licenses clearly signal copyright terms, on a fair-dealing-plus basis.

Allows translation and adaptation and localization of content and provides ready tools for publishing and finding content to reduce barriers in getting online and publishing from developing countries.

open content can benefit commercial models. High-energy physics research is nearly 100% open science with seemingly no effect on subscription research. Consultants in South Africa give books away for free online and sell print on demands, increasing revenue by more than 300 percent.

Online lots of authors have adopted CC to spread their works beyond the places where their works were published, expanding their reach.

Public Policy Lessons from CC

Limited, because we're a voluntary, private ordering tool, that can only offer fair use/fair dealing plus, so we're bound by copyright. In the developing world, copyright is but one issue in trying to facilitate access.

We would benefit from harmonized laws. The CC experience also demonstrates what's possible if copyright friction is reduced.

It's increasingly inaccurate to consider copyright owners as a monolithic whole -- there's real diversity in who makes that up.

--

Jan Velterop, Director of Open Access, Spring, Surrey, UK.

Coming to WIPO to talk about copyright is like carrying sand to the Sahara.

In science, copyright is something that's used to build sand-castles, but we need a level playing field.

Virtually no institution has access to all relevant literature, no matter where it is in the world. In richer countries, it's pretty good; in poorer countries, it's worse; in the poorest countries, it can be limited to nothing but abstracts.

If we had open access then we'd have a level playing field then in poorest countries and in the richest; the same, full, access

Not having open access publishing risks losing a large part of the world's capacity for production of scientific research. Science communication is the connective tissue between the world's inquisitive minds. Need more than the sum of its parts. To harness their power, we need optimal communication between them.

Authors have to transfer exclusive rights to science publishers. Copying is rarely allowed. What scientists and scientific authors need is to have their work copied as widely as possible, simply citing the author when it happens. We don't need money, but we do need to propagate our ideas and contributions.

In open access publishing, the author has to pay, because all publishing costs something. Traditionally authors paid the cost by transferring copyright so that publishers could recoup the cost of production through sales.

In our model, the author pays upfront -- but it's rarely the author who pays; it's usually the institution who pays for it, through subscription (just as it's almost always the institution that pays for access to traditionally published journals)

In the old world, a journal cost $300k to run, with profit, with 100 articles, so each article cost $3000 each.

The old journals recouped this by charging $100 for 3000 subscriptions to individuals, like "Nature", with the understanding that these wouldn't be shared. Or you can sell 500 subscriptions to libraries at $600 each, with the understanding that they'll share. Or you can sell 100 subs at $3000 for a library consortium.

Our model: we charge $300,000 for the whole world and the whole world gets to share it.

Where do we get $3,000 for our articles?

Currently an article costs the average library $5-10. Just 300-600 library subs/year cost $3,000. There are lots more than 600 libraries! This means that we restrict enormously the potential of distribution.

With "author pays" you get unlimited worldwide access with wide reuse of the material, just as we heard with CC licenses.

There is money in the academic system to pay for communication. You can do it through subscription charges or you can do it through libraries paying. Different models.

We don't charge for subscriptions, we charge for articles.

Is this a panacea? No. Those don't exist.

Look at this grid:

west south
brains good good
money adequate inadequate
access never enough hardly worth mentioning
ability to publish never enough hardly worth mentioning

Optimal would be where access would be very good in both developing and developed world.

How it works : author submits an article. There's a peer review process. If the article is accepted, there's a payment from the author to the publisher (but usually payment on behalf of the author to the publisher). Then the author attaches a Creative Commons license and the publisher copy-edits it, adds XML, etc. Does not add DRM! World gets access.

Springer Open Choice

Don't think as a publisher that we can impose system on the authors. Just give the authors' the choice to stay with the traditional model or go with open access.

Governments can re-route the money they spend on subscriptions to journals to subsidize authors who wish to make their materials freely available for the whole world.

--

Discussion

Cancelled due to time pressure

--

Devising copyright exceptions for education: national experience of Chile and Canada.

Luis Villaroel Villalon, IP Advisor, Ministry of Education, Santiago de Chile.

Bruce Couchman, Legal Adviser, IP Policy Directorate, Department of Industry, Ottawa.

Danielle Bouvet, Director, Legislative and International Projects, Copyright Policy Branch, Department of Canadian Heritage, Ottawa.

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Luis Villaroel Villalon: Limitations are an integral part of the IP system. Exceptions are for specific works and for specific uses. Despite the importance of L&E and the development of IP and the 1996 treaties, there has been specific developments for rightsholders. There has not been commensurate development to L&E.

This loophole for exceptions at the international level is visible in Chile. We comply with international treaties and give rights to creators, but we have precious few exceptions to copyright in the digital environment, especially with respect to exceptions for educational use, the disabled, and educators.

These loopholes are to be closed with a new bill in parliament

There are stiffer penalties for infringement. We must also provide greater clarity to the use that is permitted without suffering penalties. In this context let me discuss the Chilean experience with L&E for educational purposes.

In the discussions we have had we wanted to improve the quality of the textbooks within the IP framework. Schoolbooks are used by classrooms and teachers and are not generally in competition with content primarily for entertainment purposes.

There needs to be authorization for adaptation, translation etc (especially digitization). Often it's hard to locate the rights holders and involves a costly and time-consuming search. Often publication is not authorized.

The main difficulties are locating rightsholder and negotiating the payment. in the international framework for exceptions, there are feasible solutions that we feel should be explored.

We could have compulsory licensing for textbook content. National law must incorporate rights of quotation regarding textbooks. For libraries: In Chile we have had intensive discussions in which many of this morning's concerns were expressed. Libraries are concerned about the potential penalties for copying materials, fearing that this might be illegal. But libraries defend this, saying it is part of scholarship and teaching.

There is now a bill in Chile which comprises legislative provisions that would allow for permissible exceptions for libraries. This bill is going through Parliament and says there's no requirement for payment or permission for nonprofit use, educational use or research. This doesn't violate the three-step rule.

It is necessary to take account of the need of libraries and respect the rights of rightsholders. We need the following exceptions:

* Preservation and restoration of works -- photocopying without prior authorization is legitimate if it is to replace a book that has been lost or damaged or to acquire a copy for a library if it has been unavailable in the market for a five-year period

* We also wish to allow libraries to produces copies of up to two chapters without authorization or payment, provided it is not for profit and for private use

* Libraries and archives should be able to digitize work that is in its physical collection and that can be consulted by users within their facilities without authorization or payment

* For educational libraries, they should be able to reproduce short articles from periodicals or partial works for the use of the students of the institution in response to the requests from the teachers of a given course, provided that the rightsholders' interests are upheld

* There should be exceptions for the disabled. Libraries should be allowed to adapt works or reproduce works in assistive formats, especially for the visually impaired. There might or might not be remuneration depending on national legislation. This depends on a second bill that's also working through Parliament.

It's important that we discuss the implication of Technological Protection Measures and non-negotiated licenses with exceptions. I lack the time to address that now, but I'd like to say that in presenting a paper at the last SCCR, it was Chile's intention to launch an initiative to have a discussion on the exceptions that will meet public needs for education and archiving.

Bruce Couchman: Current Canadian Copyright Act is from 1924. Employer is owner of works created by employees unless there's an agreement to the contrary. Still have the concept of fair dealing, similar to in South Africa. Also applies to private study and research. Limitations on remedies for performing music.

There's a limitation on royalties payable for performing music in libraries and schools. There's also a narrow right to works in special collections. Lacked anything related to libraries. In those days there was only one collective related to musical or performing rights. They also increased criminal remedies.

In 1988, there were actually no specific exceptions Collectives were allowed to organize with regard to any works.

Also increased criminal remedies. Most of these comments stem from 1988 amendments. Prior to 1988, all collectives other than music ones fell under the Competition Act and are subject to anti-trust. Because of concern over anti-trust, most rights were not collectively managed until 1988. Now they can exist without worry about liability. In theory, they could even represent foreign rights.

In terms of the structure of collective management organizations, they can federate either nationally or communally.

They tend to be organized under relevant nonprofit incorporation statues. There are no rules about transparency, disclosure, governance or dispersion of royalties. There's no regulation regarding publisher representatives and creator representatives.

In terms of how collectives operate in the education sector, there are two relevant provisions:

1. Collectives start out negotiating to come to agreement about royalties. If they fail to agree voluntarily, they can apply to the copyright board to have a binding tariff set -- this is rare

2. Voluntary agreements - even if two parties agree to relevant rate, they are not necessarily cleared in regards to competition law. They can ask the copyright board to review the agreement, since there may be third parties prejudiced under the Competition Act.

The second major revision was in 1997. This is essentially the current law. it hasn't been amended in ways relevant to this discussion since then. We have set up exceptions for educational institutions and libraries. Also includes exceptions for preservation and for disabled people.

Clearly allowed performance of works in a classroom, with the exception of cinematic works. You can play the radio, read aloud, turn on the TV. It covered the performance right but not the communication right. You can't send it to another classroom -- that's under consideration at Parliament now.

Also a number of exceptions introduced at that time relevant to libraries.

1. If a person is entitled to make use of the fair dealing exception, the library could do it on their behalf. Librarian is entitled to the benefit on that person's behalf.

2. Fair dealing in request to research or private study. Distinction between scholarly or scientific articles, where exception applies immediately, and other periodicals, which have one year delay in application.

Interesting concepts in 1997 amendments - Conditional exception. Could either purchase or get a license, then it doesn't apply. -Limitation on remedies. If there is a license between a collection society and an institution. Works outside of the collective. The remedy is limited to the royalty that would otherwise be payable.

June. Bill C. 60. Amendment to Copyright Act introduced. Addresses 4 issues:

1. Implementation of WIPO copyright treaty

2. Internet service provider liability

3. Technological protection measures

4. Limitations and exceptions with respect to non-profit libraries and educational institutions

The opposition parties are calling for an early election, so this will likely not pass through this parliament. [[Ed: The current Parliament is on the verge of collapsing under a non-confidence vote]]

In Canada copyright is under federal jurisdiction but educational institutions are administered under the provincial level.

Current copyright law allows transmission of works. Does not include transmission of audi-visual works.

There are no technical restrictions on live transmissions, but they may only be made to students in the course. Can't be sent over regular radio or TV. There are some restrictions with respect to recorded or subsequent retransmissions.

With respect to recording the lecture or presentation, lectures must be destroyed within 30 days of the course finishing. Digital works are even more restricted. Students must not use the material after the course is ended. Student must be prevented from reproducing the work. Records of the making and destruction of these copies must be kept for three years.

Regarding textual material: this is very complex.

It is intended to say that if an educational institution is allowed to reproduce, then it can also send it in a digital form to students. Even though the collective does not have digital rights. Allows digital or remote delivery of material. If they have right to give course pack, they have the right to make the work available digitally.

Must be restricted so that students can only make a single copy or printout of the materials [[Ed: Wow, this looks like a DRM mandate to me]]

This does not apply if the copyright owner has expressly NOT given authorization to make a digitized copy for the collective.

Rights owner would still have the right to an injunction. Provision also protects the student in case the institution does something wrong. This particular provision applies only if the collective doesn't have digital rights. No longer subject to this particular provision for remedies.

This provision only applies if the collective doesn't have digital rights. Once they do, the limitation on remedies goes away (but the collective must give notice to the institution)

Change to proposed law on inter-library loans.

It is now possible to engage in purely digital delivery of print material. The restriction that the user only gets a print copy no longer applies, however there can only be a single printout and that limit has to be limited to seven days. You could put this on a website and the student can only access the website that only lasts seven days. Or you could use a DRM file that self-destructs after 7 days. [[Ed: Wow, that's more restrictive than the US's extremely restricted TEACH Act ]]

Danielle Bouvet:

- The relationship between technological measures and exceptions.

- Role and responsibilities of ISPs and public accounts for educational purposes online.

Technological Protection Measures(TPMs) and limitations: in C60, Canada is trying to ratify the 1996 treaties. In this context we will amend Canadian copyright law to introduce means of addressing TPMs. Canadian govt has considered these issues in light of its obligations re TPMs. There's a question as to whether we'll address anti-circumvention and a means to prevent smuggling. Will we establish a link between TPMs and counterfeiting? What about civil or criminal penalties?

Government has taken a minimalist approach. Decided to preserve the balance between existing exceptions and rights. In other words, the TPMs are NOT meant to change the scope of the law.

Fair use by a student for private studies could constitute a reasonable, acceptable circumvention. In this bill we define technical measures which protect copyright under copyright law -- we have included civil provisions for rightsholders with respect to reproduction of sound recordings, which is intended to punish those who circumvent TPMs without authorization if they jeopardize the interests of the rightsholder. There are civil procedures against those who provide the means to circumvent TPMs (knowingly) in the case of counterfeiting. Any agreement in which one individual offer the ability to another to circumvent or counterfeit a good the law provides a penalty.

The roles of internet and intranet service providers- In C60, the government has decided to allow certain kinds of decryption. A university with an intranet could be exempted from all liability if they exercise no control, if the institution allows any communication over its network, it can benefit from the exception. Also caching of copyrighted material to facilitate communication, if gains access to a limitation. Third, on provision of a digital work to a student, the student and teacher can share access under a limitation.

There are many obligations imposed on service providers and learning institutions. There's notice-and-notice: a rightsholder sends a notice to an ISP, which then has to pass it on to the user who is the subject of the notice. The institution has to preserve the material related to the user identity for six months after notice, and may be required to further retain it in the event of litigation.

Exceptions to copyright for educational institutions -- Canada in its recent copyright law amendments -- we talk more about access than L&E.

We think the term access is more appropriate for the needs of educational institutions. We are exploring the use of publicly available content over the Internet and have been studying it for years. Wants a legal exception as to what educational institutions can and cannot do with regards to the Internet. The Canadian government is considering whether or not it should be intervening. There are exceptions provided for by law and we should decide whether we should go further with respect to the existing exceptions.

With respect to the different approaches, we must ask ourselves whether we can facilitate access through licensing or through exceptions. Rightsholders suggest that the best answer is broad licenses. The rightsholders -- the collective rights management orgs -- would be able to grant blanket licenses to schools that meet their needs. That's one possible solution. We've also looked at compulsory licensing as has been recently tried in Australia. There are lots of licenses that can be used, like Creative Commons licenses that might be useful for scholarship. There's also the possibility of using an implicit license. We would like there to be an exception that enables legislators to define exactly what they mean by fair use. Should the government specify a definition?

Education circles have suggested that they should be able to use any works on the internet as long as they are not protected by TPMs.

Many options are available to us at this time. Some content is online and there is no expectation for payment for its use. How can we take this into account? The following was suggested: If a technical protection measure is not imposed to lock users out of the content, then the education sector should be able to use such content. We would like for the education sector to assume that things on the Internet can be used freely unless it explicitly states that they are not. There are two schools of thought on this. We hope to soon release a document that will help us take stock of these discussions.

--

Discussion:

Cancelled due to time constraint.