DBV-Statement bei der World Intellectual Property Organisation zum Thema „Limitation of liability of libraries and archives“

Heute Nachmittag ging es los mit den Gesprächen zu Copyright – Ausnahmen für Bibliotheken und Archive. Für den Deutschen Bibliotheksverband konnte ich heute das erste Statement abgeben:

„Thank you Mr chairman,

Copyright codes are becoming extremely complicated. This is especially true for copyright limitations and exceptions. For example, the Art.53 of german copyright code about making copies for private, research and archive copies is extremely detailed. It has 7 paragraphs and fills a whole page. There are several dissertations only about this statute.

How can librarians, whose duty is it to make copyright protected materials accessible to researchers and the public, in their daily work always know what is legal and what not ? Even lawyers many times cannot give absolute clear answers. But, you may be surprised: Not every librarian even has a lawyer sitting beside him all day.

There are more reasons, why library exceptions are extremely difficult to deal with. Germany has exceptions for document  delivery, for digitizing, making available works on dedicated terminals in the reading room and for making available parts of  works for student classes. These exceptions are fixed in our Copyright code.
When libraries began to make use of these exceptions, they were confronted with deep and detailed legal discussions and lawsuits up to the CJEU, which took years. Additionally there have been and are still negotiatons about remunerations and further conditions about the use of the works within the scope of the exceptions. We are talking about statutes which are already 8 years old. In all this time, these exceptions simply did not work properly.

As a consequence of all these uncertainties, libraries found themselves in a legal limbo: Should they make use of the exceptions or not ? They were used, but on a very low level. If libraries made use of them, they took the risk of bring sued. A limitation of liability would help libraries to fulfil their purpose within The uncertain frame of limitations + exceptions.

Now, imagine cross border situations: With respect to all these incertainties on national level, how could any librarian be sure about conditions in other countries, if they send a copy across the border ? In Germany, there has been a lawsuit that lasted 5 years, between 2002 and 2007, about document delivery. It left the libraries uncertain about sending copies to countries other than Austria and Swiss. Since then, without licensing, in a cross border situation, if they deliver, they only deliver copies on paper.

What would help ? A limitation of liability on gross negligence. Another good measure could be the  mutual recognition of  exceptions.  This, however, would have to be fixed in an international agreement.

Thank you, chair“

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