SCCR 31: Statement of SAA Representative re Reproduction and Safeguarding Copies

Statement of SAA Representative to WIPO Standing Committee on Copyright and Related Rights 31 December 2015 by
William J. Maher (w-maher at illinois.edu)

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TOPIC TWO: Reproduction and Safeguarding Copies

The Society of American Archivists, North America’s largest professional archival organization, thanks the Secretariat for its hard work and graciousness in preparing these meetings. Because our members manage billions of primary source works from throughout the world, SAA cares about copyright’s system of incentives, but we are equally concerned about the strong disincentives the system provides for use of our collections to create new works.

Before I comment on Topic Two, “Right Reproduction and Safeguarding Copies” Clarification is needed. If the objective is to safeguard copies by backing up, that will be solved by text-based work on Topic One, “Preservation.” However, the proposed Topic Two texts in Document 26/3 relate more to providing copies to users, for which we note the following principles, concerns,

Most fundamentally, because archives contain items that are unique or exceedingly rare, each of our documents has a global audience, but only a tiny portion of that audience can ever visit the archives. We therefore must be able to make copies on behalf of users.

The Berne Convention, however, assumes that everything committed to a fixed medium is a commercial object and that copyright applies to every scrap of paper. But there is another universe of intellectual material that has always existed almost entirely outside the commercial world –unpublished material whose creation had no commercial intent. To put this into perspective, the top 108 North American academic libraries hold more than 420 million books, but their archives hold more than 6 billion unpublished works. Only by contemplating the vastness of this disparity can WIPO begin to understand why archives are desperate for a
modern, international system of exceptions and why the chaos of separate national laws will not
work. Two examples illustrate this concern:

My university archives holds the papers of a world-famous Armenian-Iranian architect who was a leading advocate of modernism in Paris from the 1920s through 1940s. Now, a Netherlands-based biographer requires images from his projects plus information on classes he conducted in occupied Germany and the US. Unfortunately, we cannot know who holds the copyright for some materials. If the researcher were in the US, copying would be no problem, but sending copies across borders raises barriers.

Then there are the papers of a prominent US chemist who led a 1920s effort to reconcile leading scientists from both sides of World War I. Now a Canadian researcher needs scans of his papers and most likely the same from European archives holding the papers of the other scientists involved in the inter-war effort. We can provide those from the US, but why should European scientists be excluded from her research?

Perhaps it is time to reopen the Berne Convention and create a modern system of formalities to recognize that the creative world no longer operates via physical books and train travel. Alternatively, WIPO could recognize that archives have never been about commerce and thus create an internationally binding instrument that provides an exception to allow archives copying The Crews study shows why the current jumble of separate national laws creates this problem.
The solution is to provide predictable copyright exceptions for archives across all borders through an international treaty.