Transcript Access to Knowledge and Creativity, IP and Strategies for the Creative Industries Shirley Leung The Chinese University of Hong Kong Library International Federation of Library Associations.

Access to Knowledge and
Creativity, IP and Strategies
for the Creative Industries
Shirley Leung
The Chinese University of Hong Kong Library
International Federation of Library
Associations and Institutions (IFLA)
Committee on Copyright & other Legal Matters
IFLA Core Values

Freedom of access to information,
ideas and works of imagination and
freedom of expression

People, communities and
organizations need universal and
equitable access to information, ideas
and works of imagination for their
social, educational, cultural,
democratic and economic well-being
Fair and Balanced
Intellectual Property Frameworks

Authors’ rights - basic element of the
copyright régime

Limitations and exceptions to
copyright - equally important in the
régime
Balancing Authors’ IP Rights with
the Needs of Users

Essential for improving access to
copyright-protected works for
information users

Safeguarding and providing access to
products of the mind are
fundamental to the growth of
knowledge
Creative Industries

Creativity can be promoted if
people can be exposed to a broad
spectrum of ideas and have the
opportunities to exchange their
ideas with others

IP strategies should foster the flow
of ideas and collaboration, rather
than imposing barriers to authors,
artists and inventors for follow-on
innovation
Creative Industries
Many people think that economic
growth can benefit from ever stronger
intellectual property rights while
concession on copyright exceptions is
purely for social reasons.
 In fact, many industries require access
to copyright material for the purposes
of research and development.
Concentrated ownership and control of
knowledge harm diversity and
development. A lack of reasonable
access actually hurts economic growth.

Creative Industries

A rich public domain and fair access
to copyright protected material
enhances creativity and the
production of new works.
Public Domain

Works that either have never been
copyrighted or that are no longer
within the term of protection under
the applicable intellectual property
laws
Public Domain

Part of the common cultural and
intellectual heritage of humanity

Major source of inspiration,
imagination and discovery for
creators

Not subject to any restrictions and
may be freely used without
permission for commercial and noncommercial purposes
Public Domain

May be used without expending
resources and cost in tracing rightholders to obtain permission or
purchasing licences

Its access fosters learning, innovation
and creation of new works

Must be accessible for the benefit of
creators, inventors, educational
establishments and research institutions
Public Domain

Crucial in preserving our knowledge,
technology, inventions, and cultural
heritage for present and future
generations
What are the threats to the
public domain and fair access
to copyrighted material?
Threats to Access to Knowledge for
the Creative Industries
Extending Terms of Copyright
Protection

During the 1990's, the European
Union (1993) and the United States
(1998) extended the term of
protection for general copyright by a
further 20 years to life plus 70 years.
Extending Terms of Copyright
Protection

Copyright is within the realm of free
trade agreements (FTAs), which, if
with the EU or US, typically require the
partner country to extend the
copyright term to at least match.

Certain developing and transition
countries have also extended the
period of copyright protection e.g.
Mexico (life + 100 years), Côte
d'Ivoire (life + 99 years), and Ghana
(life + 70 years).
Shrinking Public Domain

For developing and transition
countries, where access to
knowledge being a key for their
development , term extensions
remove information traditionally
belonged to everybody from their
collective ownership, leads to very
negative impact for education and
innovation.
Shrinking Public Domain

Extending the term
disproportionately benefits rights
owners in developed nations, at the
expense of users of information and
potential new creators in developing
countries, leading to the digital
divide.
Shrinking Public Domain

With less content for creators to build
upon and less content for the benefit
of the society, pioneering projects
such as those providing digital
learning materials to the poorest
children suffer because they can only
be allowed to use more out-dated
out-of-copyright materials, which
seriously hinder their academic
development.
Shrinking Public Domain
Longer terms of copyright protection
worsen the problem of orphaned
works - copyright works whose
owners are difficult or impossible to
trace.
 Rights clearance becomes more
difficult and expensive.
 Particularly significant when libraries
need to get permission to include
works in digitization projects for
preserving cultural heritage.

Shrinking Public Domain

Academic, scholarly material or less
known works of no commercial value
but important to researchers,
historians, architects, artists and
other specialists is being
disproportionately affected.
Technical Protection Measures

IP exceptions cannot survive when
technical protection measures are
imposed by right holders.

When the material is digital, mere
technical devices can remove the
exceptions and the much-needed
balance in copyright law is
removed.
Technical Protection Measures

Last on average for 2-5 years. If the
product is no longer made, there will
be no new TPM compatible with new
operating systems and no key
available to allow users to migrate the
content to new platforms, rendering
the product orphaned.
Technical Protection Measures

Do not expire when the term of
copyright protection expires, thus
locking up the content in perpetuity.
The digital content in the public
domain becomes inaccessible to
future generations, leaving damaging
gaps in the cultural and scientific
record.
Licensing
Contracts eliminate the benefit of
exceptions.
 Digital copyright material is supplied
under contract in general.
 If the supplier has a strict monopoly,
the contract is almost non-negotiable.
 It should not be left to the interested
parties, e.g. libraries, to negotiate
licence agreements to compensate for
legal exceptions.

Licensing

In order to prevent right holders
from unduly taking advantage of
their monopoly, there should be a
general provision in all copyright
legislation - any term of a licence
agreement which purports to
contradict exceptions and
limitations to copyright, should be
null and void.
Exhaustive Exceptions

A list of exhaustive exceptions only
keeps the exceptions firmly in the
twentieth century by limiting to
provisions that have been found
useful in the past but not the
future.
Imbalanced Copyright Laws

Successive changes to copyright law
by strengthening authors’ rights
without proportionate treatment of
the limitations and exceptions

Authors’ rights have lengthened in
duration, and if they are supported by
technical measures, they can operate
without any effective exceptions at all
What are all these
leading to?
The Digital Divide
The Digital Divide

If access to knowledge is dependent
upon an individual’s capacity to pay,
the less privileged will be placed at a
significant disadvantage, leading to
perpetuating poverty and the lack of
educational opportunities.
The Digital Divide

With the increasing availability of
digitised information resources, there
is a growing imbalance of intellectual
property laws in favour of rights
holders and to the detriment of
users.

The lack of review of exceptions and
limitations to take into account
changes in format is resulting in their
constant erosion.
The Digital Divide

The gap is widening between the
digitally advanced and the digitally
deprived, and that current copyright
rules foster the dependence of
developing countries on developed
countries.

Fair access to material in copyright is
a crucial factor in narrowing the
digital divide.
Minimum Limitations & Exceptions

Copyright term - Should be the life of
the author + 50 years, consistent
with the Berne Convention

Contracts, statutory exceptions, and
trade agreements – Should not be
permitted to override limitations and
exceptions
Minimum Limitations & Exceptions
Technological protection measures
that prevent lawful uses - Educational
establishments and libraries should
be able to circumvent such measures
to make a non-infringing use of a
work
 Orphan works – Researchers and
libraries need an exception to make
copies of protected works whose
owner cannot reasonably be found

Minimum Limitations & Exceptions


Education and classroom teaching Educational establishments and libraries
should be able to make lawfully acquired
works available for classroom teaching,
including distance learning in ways that do
not unreasonably prejudice the rightsholders
Reproduction for research or private
purposes – Copying individual items for or
by individual users should be permitted for
research, study and other private purposes
Minimum Limitations & Exceptions
Provision for persons with disabilities
– Libraries should be permitted to
convert from any format to any
other, and transfer across borders
 Interlibrary loan and document
supply – Libraries should be able to
supply documents to the user
directly or through the intermediary
library irrespective of the format and
means of communication

Minimum Limitations & Exceptions

Legal Deposit - Legal deposit
laws/systems should include works
published in all formats and allow
for preservation of those works

Preservation - Libraries should be
permitted to make copies of
published and unpublished works in
its collections for purposes of
preservation, including migrating
content to different formats
Minimum Limitations & Exceptions
General free use exceptions
applicable to libraries – A general
free use exception consistent with
fair practice helps ensure the
effective delivery of library services
to the users
 Limitation on liability – Library staff
who act in good faith, having
reasonable grounds to believe they
have acted in accordance with
copyright law, should not be liable

Public Goals of Copyright, Patent
and Trademark Laws
The WIPO Copyright Treaty recognizes
copyright law serves “to maintain a
balance between the interests of
authors and the larger public interest,
particularly education, research, and
access to information”. Access to
knowledge and information sharing are
fundamental to fostering innovation
and creativity.
Public Goals of Copyright, Patent
and Trademark Laws
TRIPS Agreement states: “The
protection and enforcement of
intellectual property rights should
contribute to the promotion of
technological innovation and to the
transfer and dissemination of
technology, to the mutual advantage of
producers and users of technological
knowledge and in a manner conducive to
social and economic welfare, and to a
balance of rights and obligations.”
Access to Knowledge (A2K) Treaty
Set out user freedoms by addressing
the need to maintain a balance
between the rights of authors and
the larger public interest, particularly
education, research and access to
information.
 A crucial element in policy
interventions is to enhance the
overall socio-economic and political
development of a country, especially
the disadvantaged countries.

More Flexibility
IP laws must reflect each country's
development needs to better facilitate
access to information and knowledge
throughout the world.
 Lift the “one size fits all” approach
that imposes the highest levels of
intellectual property protection for
every country which leads to unjust
outcomes for the developing
countries struggling to meet the most
basic needs of their people.

Intellectual property is
the means for innovation and
creativity, not an end.
Thank you.