Every April 26, the World Intellectual Property Organization (WIPO) marks World IP Day to increase understanding of intellectual property and its role in supporting innovation and creativity. WIPO is the UN agency that oversees the negotiation of international treaties pertaining to all aspects of IP, e.g., copyright, patents, trademarks, etc. Copyright is the area that most directly affects archives, and World IP Day provides an opportunity to discuss the intersection of copyright and archives.
Since 2010, the ICA has been represented at WIPO’s Standing Committee on Copyright and Related Rights, working collaboratively with the International Federation of Library Associations (IFLA) and the International Council of Museums (ICOM) and other cultural heritage organizations. Our goal is a binding international treaty setting out basic copyright exceptions to enable archives, libraries, and museums (ALMs) around the globe to fulfil their mission to preserve their holdings and make them available for use.
An international treaty is needed because copyright laws differ from one country to another. Copyright law is a national regime; that is, each country has its own copyright law that applies only within the borders of that country. From a global perspective, copyright laws vary greatly. Some countries have robust exceptions for ALMs, others have exceptions that cover only published materials; still, other countries have no exceptions that benefit ALMs. A treaty would require signatory countries to amend their laws to provide the core copyright exceptions that permit ALMs to fulfil their fundamental mission globally.
Copyright law aims to achieve a balance between the interests of creators (to be justly rewarded for their works) and the public interest (ensuring the public has access to such works). In this way, copyright law supports further creation as well as the growth of knowledge and culture.
Archives serve the public interest by preserving records of enduring value and making them available to the public. Archives provide the raw materials for all manner of new works: books, movies, student assignments and academic studies, and family histories. In doing so, archives inevitably make copies. But the archives rarely owns the copyright. Thus, to avoid copyright infringements, archives depend on legislated copyright exceptions to accomplish their mission to preserve their holdings and make them available for use. Exceptions are urgently needed in three areas.
- Preservation frequently requires copying. For example, archives create reference copies to safeguard fragile originals. To ensure that digital holdings remain accessible, it is standard practice for archives to copy works from proprietary formats to open standard formats.
- Making our holdings available for study and research also involves copying. Archives do not lend their holdings, instead they provide users with copies. The Internet offers exciting opportunities to make our holdings available to a wider audience by digitizing them and making them available online. The closure of archives during the current pandemic has provided even more compelling evidence of the importance of online global access to digital copies.
- The territorial nature of copyright is incompatible with today’s globalized society. Frequently, researchers need to consult records located in other countries (due to colonization, migration, or trade) for academic or personal research or in pursuit of legal rights relating to nationality, identity, and property. Some nations have exceptions to copyright that permit such copying. But when copies are sent to a country where the copyright law differs or where the copy does not meet national requirements, how can the archivist or the user act lawfully?
Archives, therefore, require copyright exceptions to ensure that they can serve the public interest, confident that such activities do not infringe. Exceptions are fundamental to maintaining the balanced structure of copyright law, and the consistent application of exceptions is necessary to enable effective archival services that fulfil the social objectives of copyright law. Archivists and their allies will continue to advocate for a treaty that will establish minimum exceptions to allow us to serve our users in a globalized world.
Dr. Jean Dryden
ICA Representative to WIPO Standing Committee on Copyright and Related Rights (SCCR)