Benjamin White is researcher at the University of Bournemouth (UK).
Common provisions
“Any contractual provision contrary to the exceptions provided for in Articles 3, 5 and 6 shall be unenforceable.”
“Article 5(5) of Directive 2001/29/EC shall apply to the exceptions and limitations provided for under this Title. The first, third and fifth subparagraphs of Article 6(4) of Directive 2001/29/EC shall apply to Articles 3 to 6 of this Directive.”
- Can you explain to us what article 7 of the EU-DSM Directive contains?
Although one of the least obtrusive articles in the EU-DSM Directive, Article 7 structurally performs a vital role.
Article 7(1) ensures that text and data mining for research purposes, preservation and any member state exceptions relating to education that fall under the new Directive cannot be removed by licence or contracts. Essentially these three categories of limitations and exceptions one could argue have become more than mere defences against claims of copyright infringement, but have now become “user rights” in European law.
Article 7(2) deals with an existing anomaly in the 2001 European Copyright Directive. Before this amendment EU governments were only able to require rightsholders to give access to digital content users were locked out from, if the digital content was either off-line (e.g. CD-Roms), or if online, not subject to any terms and conditions. Given that most digital content these days is online and comes with terms and conditions this provision created a position in law where governments were not able to force rightsholders to give access to the vast majority of digital content available to researchers and consumers.
As a result of this amendment however, governments will now have the ability to require rightsholders to give access to online digital content subject to terms and conditions. It applies to both text and data mining exceptions, preservation and any member state exceptions relating to education that fall under the new Directive.
Whilst a step forward Article 7 is perhaps unclear in regards to some of the exceptions. For example, how does non-contractual override of Article 5 work, if member states allow activities undertaken in educational establishments to be regulated by licences and not by exceptions? Similarly it is hard to see what difference it will make under the commercial data mining exception (Article 4), given that the Article itself allows rightsholders to opt out using technical means, preventing their works being used under the exception.
- Why is this provision necessary to libraries?
These provisions are vitally important for libraries. Libraries have been asking for decades for governments to protect the public interest activities of libraries and educational establishments from technical and contractual override for decades. Essentially without this, in a digital world where contracts and technical protection measures (TPMs) are ubiquitous, access to content for preservation, data mining, teaching etc cannot be guaranteed.
Article 7.1 is necessary because other than in a handful of European countries, licences offered to libraries can and do routinely remove limitations and exceptions provided for in copyright law. In many countries the kinds of defences available to consumers in regards to unfair contract terms, are simply not available to institutions like libraries and universities.
In terms of technical protection measures blocking access 31.2% of teachers and 36.9% of learners said they were not able to access or use TPM-protected works in a study commissioned by the European Union. The process to request to government access when access to digital content is blocked is also very unclear in most countries. Where it is clear the process of engaging with government has also proven to be very slow. (see section three below.)
Without addressing these issues intelligently, it also brings into question the very function of government in regards to maintaining the important balance in copyright law that supports new innovation and learning through limitations and exceptions. If limitations and exceptions can simply be removed by rightsholders through contracts or technical measures, what is the function of the legislature in supporting the public interest through copyright law?
- What is the best implementation Libraries could hope for with this article?
The best implementation of Article 7 would be for member states to apply the principles of non-contractual and non-technical override of limitations and exceptions to all exceptions – as a minimum those that relate to libraries, education, research etc.
Countries like the UK, Ireland, Portugal and Belgium already have provisions that prevent contracts removing many public interest exceptions in copyright law.
I believe it is very important that librarians in all European countries use the implementation of the EU-DSM Directive to push for the non-overridability of exceptions by contracts and technical protection measures
It is also vitally important that the existing governmental process for circumvention of technical protection measures is improved. It should be clear, transparent, and give access to digital content quickly. In the UK it took half a year from start to finish for a researcher to get some kind of resolution when locked out from digital content they were wishing to data mine. This is why organisations such as the European Research Library Association (LIBER) and Communia are calling for access to be given within 72 hours of the government being made aware of the blockage.
- You followed the implementations in Europe in particular on this article, what are the different positions proposed by the governments?
I am not aware of how this technical provision has been introduced in the countries where drafts are available (Belgium, Germany, Croatia and Hungary) but would love to know!