Tag Archives: copyright exceptions

Catching up on Copyright: Current Global Trends in Legal Reform

As will have been highlighted by many of the posts made today – World Copyright Day (23 April), copyright has had a major influence on the way the modern creative industries have emerged.

It has spread way beyond its beginnings in the early 18th century as a limited protection lasting just 14 years, and now reaches into almost every corner of our lives.

It is so powerful, indeed, that even from the beginning of international law-making in the area, it was recognised that it should not be absolute. Just as it enabled authors and creators – or often the companies that bought and traded their rights – to earn a living, it could also bring dangers.

Copyright legislators have therefore sought to intervene in order to help the system work most efficiently. This comes both in terms of finding ways to simplify the way the system works where it is appropriate to charge for access to – or use of – works, and to create and enforce exceptions there would otherwise be market failure.

So how have things been developing since the last World Copyright Day? Below we set out a few trends:

 

Sorting out the Basics: despite these being seemingly core elements of free speech, it’s not in every country that there is the possibility freely to quote someone else, or to carry out criticism, make jokes, or review. The lack of such rules can allow copyright too easily to become a tool of censorship and control.

Fortunately, there have been steps forwards in Kenya and Myanmar (which previously was working with a law from 1911 inherited from the colonial period). In both countries, exceptions allowing for quotation, parody and criticism have been put in place.

However, some countries still lag behind, notably in Latin America where a number of states still have no meaningful copyright law containing exceptions. Long efforts by the library sector in Uruguay have been frustrated for now, with the government simply pushing through an unnecessary term extension, while it remains unclear what the Brazilian government will propose. Argentina too, beyond a welcome move to allow enjoyment of the rights created by the Marrakesh Treaty, still has some way to go before a full and modern copyright law is in place.

 

Enabling Digital Uses: a core focus of much library advocacy around copyright reform has been the drive to update copyright laws for the digital age. Provisions in existing laws – limiting the number of copies taken, specifying a format or method to be used, or explicit exclusion – can all make it impossible for libraries to take advantage of new opportunities.

There has been progress over the past year. Text-and-data mining (TDM) has proved to be a continuing area of uncertainty for many, given that while copies are made, these are usually exclusively part of the analysis process.

To resolve this, we have seen Switzerland and Ireland introduce or strengthen laws which make it clear that this is permissible, at least for non-commercial purposes. Singapore has gone further still in its own proposals, underlining that it should be possible regardless of the purpose, given that TDM causes no harm to original markets, and efforts to control it would likely limit innovation. Myanmar’s new law also opens the way to TDM.

Canada’s Industry, Science and Technology Committee also called for a broad TDM exception in its review of the country’s 2012 reforms. As focus increases on artificial intelligence – which often draws on TDM in order to train machines – it can be hoped that other governments will understand the need for strong exceptions in order to facilitate innovation in this space.

Similarly, there have been steps towards facilitating digital preservation. Myanmar, Switzerland and Ireland have both expanded exceptions to allow for preservation copying through digitisation, giving them more scope to safeguard their history for the future. Draft laws in the Philippines look to do the same.

However, not all is positive, with Kenya missing an opportunity to expand its own preservation provisions. Sadly, this will help continue the imbalance in laws that will give institutions in some countries a greater ability than others to fulfil their mission as guardians of memory.

 

Closing Loopholes: a major concern linked to greater reliance on digital resources is the opportunity that technological protection measures (TPMs), and the primacy of freedom of contract provide to hollow out exceptions.

TPMs can create practical restrictions on how libraries or their users make use of works, even preventing activities that would ordinarily be protected. Badly drafted laws will nonetheless criminalise the circumvention or removal of such measures.

Meanwhile, unless governments make it clear that they are not enforceable, the terms of contracts for digital content can be used to forbid uses, such as lending or document supply.

We have seen more progress on TPMs in the last year. In both Kenya and Myanmar, it has been made clear that libraries and others need to be able to enjoy copyright exceptions. The proposed Lebanese law includes the same idea, and we have seen calls for this in Canada.

Nonetheless, this is not the case everywhere. The Philippines draft law only refers to penalties for circumventing TPMs, rather than offering clarity to libraries. We will also need to see how European countries, in implementing the new copyright Directive, look to ensure that TPMs cannot be used to frustrate legitimate activities.

Meanwhile, the very promising provisions in South African law, ensuring that rightholders cannot use their negotiating power to deprive libraries and users of their rights under copyright exceptions, are still in limbo due to delay by the President in signing the law.

Unfortunately, neither Kenya nor Myanmar included provisions to prevent override by contract. However, we will see a number of European countries obliged to introduce such measures as they implement the Directive on Copyright in the Digital Single Market. We can hope that they will take the opportunity to extend this to other exceptions enabling public interest activities.

 

Realism on Rights Management: The argument that collective management can remove all of the complexities involved in making copyright work can be attractive. With many small (and a few large) producers trying to engage with many small (and a few large) consumers, an intermediary can make life much simpler. We have seen collective management organisations (CMOs) given new powers to offer licences in Kenya and Switzerland for example.

However, this is also a role of major responsibility. Good collective management can help realise the promise of copyright, and ensure that creators are fairly remunerated. Bad, over-reaching collective management can serve to bully libraries and users, undermine the public interest goals of exceptions, and still do little to improve the lives of creators.

Many governments are coming to see the need for tighter regulation and control of CMOs, with new rules brought in in Kenya and Singapore, and proposed in the Philippines. In both Singapore and Canada, as well as in Australia, there has also been a readiness to dismiss arguments made by CMOs when not based in fact.

Governments will need to act as strong and independent regulators of CMOs in order to ensure that they fulfil their positive potential and do not end up undermining the public interest side of the copyright equation.

 

Conclusion: 2020 and Beyond: the examples shared so far all date from pre-COVID-19. Understandably, since the pandemic took hold, the primary area of focus has been on providing healthcare and dealing with immediate human challenges.

However, the COVID-19 pandemic is clearly asking some serious questions of copyright systems. In many cases, rightholders have indeed been willing to find ways to give access when this would otherwise have been impossible when library doors have closed. This is very welcome.

However, arguably, being able to access something that has already been paid for, or to carry out an activity which would be permitted without question in person, should not rely on the goodwill of private actors.

This reliance – and the variety of responses made – has added to the disruption already caused to education, research, and access to culture.

The failure of copyright laws in general to adapt to the digital age, ensuring that libraries and their users do not have to play by different rules when using different formats, has been made very clear.

World Copyright Day 2020, we can hope, will be a wake-up call for law makers.

In the Public Interest? Promoting the Public Domain

1 January was Public Domain Day.

Around the world, advocates for access to culture celebrated the possibility to share books and other materials more broadly, and to make creative new uses of them.

Libraries were well represented. For our institutions, entry into the public domain means that there are new opportunities to allow users to enjoy and draw on works held in our collections.

Yet as the recent extension of Uruguay’s copyright term shows, the question of how long it is necessary to wait until a work enters the public domain remains a hot topic. There are loud voices calling for further delay.

This blog explores the main arguments on both sides:

 

The Case for Delay

Recouping Investment: a key initial reason for introducing copyright was to ensure that it was possible for creators, and others who had put effort into producing books and other works, to cover their own costs.

By ensuring that creators (or their publishers) could set the price of a book and then collect money, it would pay for advances, printing, editing, and other costs. As the argument goes, the longer a work stays out of the public domain, the more possibility there is to recoup investments (including on successful works in order to cover the costs of less successful ones).

Of course, many works which fall under copyright are not commercial – for them this argument makes little sense. Moreover, the idea of the success of one book cross-subsidising other less successful ones already takes us away from the more philosophical idea of copyright as something protecting individual works towards a logic of investment and speculation.

Finally, and most critically, work by the Australian Productivity Commission (p127-131 of the 2016 Intellectual Property Review), bringing together research from elsewhere, has noted evidence that almost all works have no commercial life after only five years. In effect, extending copyright beyond this will not help recoup any investments save in very exceptional circumstances.

Funding Future Creativity: linked to this first argument, a case for long copyright terms (and so the revenues that come from exploiting it) is that it provides the money necessary to fund future work. Once again, the longer the term, the longer one work can help fund the time to produce new ones.

Again, it is certainly true that there should be the possibility to earn a living from creativity, and so to spare the time in order to produce further works. Of course, this is also why cultural policies exist, with a specific focus on encouraging new and diverse voices to emerge.

However, the fact remains that most works will only earn an income for a short period. Furthermore, this argument provides no support for copyright terms that last beyond the death of the author, given that there is clearly no more creativity at that point.

Recognition: another important argument for copyright terms is the recognition it offers to authors. It is true that a lot of work will go into a book, and this is something to be respected and valued.

Even when rights do not (or no longer) make commercial sense, it is nonetheless a powerful thing for an author to be able to claim ‘parenthood’. Economic rights (such as over copying or distribution of works) provide an economic tool for ensuring that a creator (or publisher) has a tool for preventing many uses with which they may not agree.

In effect, the argument runs that longer copyright terms represent a greater recognition for the work of creators. At the same time, the logic of ‘parenthood’ is less powerful when economic rights are signed away, and of course moral rights remain, providing a means of challenging ‘misuse’ of works.

 

The Case for Speed

Democratic Access to Culture: While some countries focus more on this than others, the specific role of culture in promoting well-being and other goals is the subject of broad consensus. It follows that any government committed to promoting equity should wish to promote equal access to culture.

The importance of democratic access is of course a major argument for libraries in general, especially in the case of works which are still subject to copyright. By buying works, libraries support creativity, and then give access in a way that carefully looks not to harm rightholders’ interests.

But as set out in the introduction, this job is much easier when works have entered the public domain, making it possible, for example, to place them online and so let people access them wherever and whenever they want. In effect, the longer works stay out of the public domain, the longer they are less available.

Supporting Creativity and Re-Use: Going one step further, entering the public domain removes barriers not just to access, but also to the re-use of works. At a time where it is increasingly easy to engage with books, music and other materials to create and share new ones, there is a strong demand for the ‘raw material’ for this further creativity.

While many of these re-uses are purely playful, some are of course commercial. This can be seen as distasteful in some cultures, and give rise to calls for the sharing of revenues with the creators of the original. Of course, once a work enters the public domain, this possibility disappears, even if the use is unoriginal. Other cultures are less concerned, seeing commercial re-use as a means of generating value.

Furthermore, re-use also provides an opportunity to re-discover the vast majority of works which are no longer commercially available after a short period. As the Australian Productivity Commission report highlights, just because one publisher has decided no longer to sell a book, it doesn’t mean that it doesn’t have value.

Given that this is the case for almost all works after only a few years, facilitating re-use provides a great way of saving books from oblivion. The longer we have to wait for a work to enter the public domain, the longer it risks remaining hidden – often without even a clear idea of who to contact in order to seek permission for use (Orphan Works).

 

Balancing the Arguments

Determining the right length of copyright – and so when works should enter into the public domain – will in the end be a balance between the arguments set out above.

In the short-term, copyright clearly is at the heart of the modern creative industries, providing a means of funding a large part of commercial culture. It has also become seen as a key ingredient in the recognition of artists.

However, in the longer term, economic and even more philosophical arguments lose their power, while the cumulative costs – in terms of missed opportunities to access, re-discover and re-use works as facilitated by their entry into the public domain – rise.

 

Of course, the arguments will apply differently for different creators and different works. It will always be possible to find works which are still earning copyright revenues many years after the death of an author. But this is clearly the exception not the rule.

 

This is why it is so valuable to celebrate – and remind ourselves of the importance of – the public domain.

7 out of 10: the ARIPO Model Copyright Law

The African Regional Intellectual Property Organisation (ARIPO) has released its model copyright law.

ARIPO it aims to support the work of intellectual property (IP) teams across Africa, through both country-specific capacity building, and regional-level reports and guidance.

Its 19 Member States come primarily from English-speaking Africa (with some exceptions), and will now doubtless be encouraged to refer to the Model Law in reflecting on their own reforms.

This means that the document has a potentially powerful impact. As such, it is worth being clear about its strengths, weaknesses, and silences, from a library point of view. Library associations and others advocating for better laws for libraries should be aware of where the Model Law will, or will not help.

This blog therefore explores the positives, the negatives, and the holes in the Model Law. All references to Articles are to the Model Law, unless stated otherwise).

 

The Good

Fair Dealing: in the first Article of the chapter on exceptions and limitations (Article 18), the Model Law suggests that uses which constitute fair dealing, for the purposes of scientific research, private use, criticism or review, or the reporting of current events should be permissible (Article 18(1)). It then offers a set of criteria for judging the fairness of this dealing – the purpose and character of the use, the nature of the protected work (how original is it?), the amount of the work used, and the effect of the use on the market (Article 18(3)).

This is a positive step, giving valuable flexibility to libraries and other users in making reasonable uses of works. However, it if course remains less open than fair use exceptions, which do not have closed list of accepted purposes. If the list was to be made open (for example by adding a ‘such as’ before the list of purposes), it would offer an even better model.

Inclusion of Unpublished Works: too often, copyright exceptions only apply to works which have been formally published. This can make the work of libraries and archives in dealing with unpublished works more complicated. The Model Law underlines that the fact of being unpublished does not prevent uses under fair dealing (Article 18(4)).

A Digitally-Reading Education Exception: the Model Law makes it clear that it is possible to make uses of copyrighted works for education purposes via electronic networks, and not just in analogue form (Article 21(1)(a) and 21(1)(b)).

Interestingly, the only area where the exception can be cancelled out by a licence is for in-person teaching (Article 21(1)(c)(iii)). This is clearly not ideal, given that the Article is, anyway, covered by the rule that uses under exceptions should not conflict with the normal market exploitation of a work.

A Technologically Neutral Definition of Copying: too often, national laws suggest that copies can only be made through a specific technology, such as photocopying. The Model Law has the merit of underlining that it is possible to make reproductions through any format (Article 2).

Protection of the Public Domain: the Model Law includes standard provisions on facts, data, news and political speeches not being protected by copyright, but is clear that this also applies to laws, court judgements and other administrative texts are also in the public (Article 6). Furthermore, there is an explicit definition of the public domain, which allows the possibility for authors to renounce their rights. This is positive, given the tendency in some countries to create unwaivable rights which undermine initiatives such as Creative Commons (Article 35).

No Term Extension: the Model Law does not take the opportunity too often used elsewhere (and in spite of the evidence) to go beyond protection lasting for the lifetime of the author plus fifty years. This is a useful model to use elsewhere.

Inclusion of Museums: the provisions on library copying also apply to archives and museums. This is a positive, given the challenges identified in WIPO work around museums facing different conditions and rules to other heritage institutions.

 

The Bad

Overall, the Model Law provides a relatively good example for governments. However, there are some weaknesses which libraries should look to avoid replicating in their own national legislation. The below suggestions are in addition to the encouragement to adopt fair use above.

Vague Provisions on Circumventing Technological Protection Measures: in line with the WIPO Copyright Treaty, the Model Law underlines that ‘effective’ technological protection measures should themselves be protected by law. In other countries, there then follows a guarantee that users should be still be allowed to carry out permitted acts (i.e. under exceptions). However, the ARIPO Model Law only provides that governments may make exceptions. This is far too weak at a time that libraries are acquiring a growing share of collections in digital form (Article 40(4) ad 45(3)).

No Lending Exception: the Model Law includes public lending as one of the uses over which a rightholder should have exclusive rights. This is not something required by the Berne Convention itself (which only covers rental). This risks obliging libraries to make payments or seek authorisation for lending (over and above what they have paid to acquire books in the first place). This risks seriously damaging libraries’ ability to promote literacy and a love of books (Article 7(1)(k).

Restrictions on Preservation Copying: while the Model Law does (commendably) not limit the technology used to make copies, the fact that it only talks about ‘a’ copy poses to digitisation efforts (Article 23(3)). In line with recent EU reforms, it would be better to talk about taking copies in the quantity necessary to achieve the goal.

Furthermore, the Model Law also includes the obligation to see if a commercially available copy is available before taking such a copy. This risks introducing an unhelpful administrative burden, and may not be practicable. Given that it is usually cheaper to buy a copy than digitise and preserve, it would be better to leave the choice between copying and buying to libraries, rather than enforcing it through law (also Article 23(3)).

Imposing Commercial Availability Checks for Marrakesh Copying: The Marrakesh Treaty made an important breakthrough by removing copyright-related barriers to making and sharing accessible format copies of books for people with print disabilities. It did however leave the possibility for Member States to impose restrictions though, in the form of an optional remuneration requirement, or the obligation to check if an accessible format copy is not already available on the market before making or sharing one (Marrakesh Treaty, Articles 4(4) and 4(5)).

Libraries have argued strongly against making use of either of these possibilities, given the financial and administrative cost. However, the Model Law does suggest that there should be a check on commercial availability. Given the lack of information about which books are available where, and in what formats, such a requirement risks only leading to uncertainty.

Lack of Provisions on Collective Management: the Model Law is surprisingly thin on guidance about the regulation of collective management organisations (Article 57), while at the same time including provisions on extended collective licencing (Article 38). While it is clear that well-managed collecting societies can facilitate the work of libraries when carrying out uses that fall outside of exceptions, it is essential that these are run in a transparent and accountable way in order to be legitimate.

The Model Law says very little about the need for CMOs to be independent of government (in order to avoid conflicts of interest in the operation of copyright offices), to publish information about how much they are collecting and paying out, or to be representative of rightholders and rights when offering licences. At a time when multiple governments are needing to act to force better governance in this field, the vagueness of the Model Law is troubling.

Over-Application of the Three-Step Text: The Berne Convention only applies the three-step test (that a use needs to be a certain specific case, not conflict with the normal market exploitation of a work, and not unreasonably prejudice the legitimate rights of rightholders) only to exceptions to the reproduction right (Article 9(2), Berne Convention). However, the Model Law applies this to all exceptions, leading to potentially unhelpful debates about what is and is not possible (Article 18(2))

Attribution Obligations: on various occasions (Articles 18(1), 21(2), 22, 23(2), 24(1), 26(3)), the Model Law suggests that use can only be made under exceptions if there is attribution. However, this may not always be possible. Laws elsewhere recognise this possibility to make uses without attribution when this is not practicable. However, the Model Law does not, creating uncertainty for users who do not know the author of the work they are using.

Licence Override for Document Supply: as mentioned above, the exception allowing for educational uses of works in face-to-face teaching can be disapplied when a licence is available. This also applies to situations when libraries are making copies for the private use of users. Where a collective management organisation argues that it can offer licences, this could do a lot of damage to document supply activities (Article 23(2)(a)(iii).

Block on Parallel Importation: in the context of WIPO, libraries have argued that even when there is a domestic rightholder with the right to distribute a work nationally, it should be possible for libraries to make acquisitions across borders. This can be essential in order to meet requests for specific versions of works, or, for example, when the domestic rightholder is not active. The Model Law gives the rightholder the exclusive right to import works, without exceptions (Article 7(1)(j)).

Limits on Caricature, Pastiche and Parody: the Model Law does include welcome exceptions to economic rights (such as reproduction) for review and critic. However, the exception for caricature, pastiche and parody (Article 30) only applies to moral rights, and not to economic rights. As such, it may make it possible to restrict such activities on other grounds.

 

The Missing

The Model Law, while comprehensive, does not cover a number of areas which, from a library point of view, would be desirable in any national copyright law.

Orphan and Out-of-Commerce Works: libraries hold many works which are no longer commercially available, but are still in copyright. As such, there are significant restrictions on how far they can give access. This is particularly difficult when a work is orphaned (i.e. it isn’t possible to identify or local rightholders). More and more countries are introducing provisions allowing libraries to permit use of such works, subject to various conditions. The Model Law does not even reference these issues.

Text and Data Mining: legal uncertainty about the possibility for libraries to allow for text and data mining of works in their collections has lead a number of countries to introduce explicit exceptions. There is nothing about this in the ARIPO Model Law, meaning that there is continued uncertainty.

Limited Exceptions for People with Disabilities: while the Model Law does copy provisions from the Marrakesh Treaty for people with print disabilities, it does not take the opportunity (foreseen in the Marrakesh Treaty) to apply similar rules for people with other disabilities (such as sub-titling for people experiencing deafness). Many countries do allow copying without restrictions on the type of disability – it is a shame that this possibility has not been included in the Model Law.

Contract Override: the Model Law is silent on the issue of contract override – i.e. the possibility for exceptions and limitations to be cancelled out by the terms of a licence. In a growing number of countries, there are conscious steps to prevent this from happening, and so defend user rights. National governments should introduce broad provisions ensuring the pre-emption of any contract terms which do undermine exceptions.

Cross-Border: the Model Law only refers to cross-border uses in the case of the provisions on sharing accessible format copies of works for people with print disabilities. There is nothing anywhere else which would allow for the cross-border application of exceptions.

This is perhaps an unfair criticism of course – it is only through international law making that there can be legal certainty for cross-border uses. ARIPO itself could act, but the most effective solution would need to come from WIPO itself. IFLA of course continues to engage to achieve this.

 

Conclusion

Overall, the ARIPO Model Law does cover a number of key points which help libraries do their job, in particular relatively flexible fair dealing provisions. However, there remain a number of flaws, both specifically (lending rights, limitations on preservation), and cross-cutting ones (contract override).

Governments should therefore not look to adopt the Model Law wholesale, but rather work with their library associations to ensure that they have rules that truly support the public interest missions of libraries. Overall, the Model Laws gets a 7 out of 10.

The Wrong Target: Resistance to Exceptions to Copyright for Libraries and a Sustainable Book Chain

The Wrong Target? Why opposition to copyright reform won’t guarantee the future of the book chain

Copyright reforms introducing or updating exceptions and limitations to copyright can easily become a lightning rod.

Recent examples have regularly seen apocalyptic claims about the collapse of the book chain – understood as all those involved in writing, editing, publishing, distributing and reading books – and the demise of creativity in general.

In a sector marked by concern about falling author incomes (despite overall growth in the sector), fears for the future sustainability of the publishing industry, and worry about the role of major internet platforms, it is understandable that there is a desire to take action.

It is true that policy reforms seem to allow this, given the possibility to engage politicians, make statements and get involved in the media debate. Many have done this, claiming that by preventing libraries from enjoying new rights, it is possible to secure the future.

However, just because it is possible to take a position , it does not mean that it is sensible or correct to do so.

This blog explains how in the short term, modern copyright exceptions and limitations for libraries do not pose a threat to the future of the book chain. Instead, it argues, a healthy library sector, enabled by such exceptions and limitations, is a key guarantor of future success and viability.

 

A Complex Challenge Deserves Better Than a Simplistic Response

A number of questions are at play in determining the health of the book chain.

Effective cultural policies supporting new and diverse voices, competition policies to prevent individual actors (such as Internet platforms) taking too powerful a position, and regulation of contracts between authors and publishers are all important. Other regulations, such around book pricing or taxation, as well as copyright enforcement, can also play a role.

There are also factors beyond policy – a shift to digital and the ability (or inability) of the sector to keep up, growing competition for readers’ attention, and changing trends in education and research.

In effect, the challenges and questions facing the book chain are multiple, as are the tools for responding to them. A short-sighted focus only on stopping copyright reforms is highly limiting, and will do nothing to increase authors’ shares of revenue from their works, provide targeted support for new voices, or address the dominance of digital platforms.

This has not stopped some from trying to argue that modern copyright rules will mean disaster. However, each time there has been a truly comprehensive effort to look at the evidence recently, this argument has been rejected.

In Canada, for example, where the Parliament’s Industry, Science and Technology Committee held a thorough review of the country’s 2012 copyright reform. However, despite intense calls for one particular reform (the extension of educational fair dealing, confirming decisions already made by the courts) to be repealed, it rejected the claims made:

“Despite the volume and diversity of evidence submitted throughout the review, the Committee observed a problematic lack of authoritative and impartial data and analysis on major issues. Multiple witnesses either overestimated how strongly the data they presented supported their arguments or failed to disclose its limitations”.

Similarly in Australia, the Productivity Commission, charged with making an independent assessment of the impact of different policy actions, found very little evidence to back up claims that fair use would cause any unjustifiable harm to the publishing industry.

As Deputy Commissioner Karen Chester noted in a speech, the claims made against reforms which would benefit libraries and users simply have evidence behind them. Moreover:

“It was claimed that fair use destroys publishing industries and has done so in Canada, and particularly their educational resource sector. That claim did not stand up to even modest scrutiny: the experience in Canada has been grossly misrepresented and ignores specific market factors there”. 

Similarly, impact assessments in the European Union and Singapore have also underlined that well-designed copyright exceptions are very much a positive sum game, with no harm to publishers or authors, and significant gains to researchers, educators and readers.

 

Sacrificing the Long-Term?

Of course in the long-run, it is not a case of there being two ‘sides’ to the debate – rightholders and readers. Today’s readers may well be tomorrow’s creators, innovators and researchers.

This is where libraries come in. Through promoting literacy and a love of reading, supporting responsive and innovative teaching, and helping students and researchers, they have a key role in ensuring a ‘pipeline’ of new talent.

Moreover, through giving access to heritage and existing ideas, they are spaces where new ideas can come to life.

They also have a key role in ensuring the legitimacy of the book chain, by ensuring that it does not simply become the preserve of the wealthier. The goal of the great library builders of the 19th Century to democratise knowledge is still relevant today.

Yet to continue to play this role, libraries need to benefit from a basic set of exceptions and limitations that work in the digital age. Preservation, lending and supporting education and research are core functions around which there should be little disagreement.

There is a growing body of evidence that underlines the costs to library users of rules that do not allow libraries to fulfil their missions. This contrasts – as set out above – with the lack of evidence that library exceptions and limitations actually do any short-term harm to the book sector.

 

In the light of this, it is perhaps time to look more broadly at the actions that can be taken to guarantee the future of the book chain. This may be hard – the questions are difficult ones, and the effort required will be higher. It also involves stepping away from old and comfortable assumptions.

Nonetheless, this would certainly be a more constructive approach than to spend time and energy opposing reforms that would in the short term be neutral, and in the long term be positive, for all involved.

Intellectual Property Is Important for…

We often forget that intellectual property rights – such as copyright, patents or trademarks – are not ends in themselves, but instruments at the service of development, creativity, innovation and welfare. Today, for World Intellectual Property Day 2019, we want to show this side of intellectual property, and how it has an impact on libraries and similar institutions.

Like all tools, they can be used well, or badly, and in some circumstances may even simply not be relevant. Copyright can contribute to these objectives, as long as the right legislation is in place.

However, it is not the case that more rights mean better outcomes. Scholars have underlined on several occasions how more flexibility contributes to development, rather than stronger protection. Exceptions and limitations are therefore key for many public interest activities. Copyright is not complete and does not fulfill its purpose without them.

In particular, when copyright laws are only written with the industry or and legal practitioners, there is a tendency to forget its strong impact on other sorts of institutions or activities. Unbalanced, unrealistic or unreasonably complicated laws can be a real problem for cultural heritage institutions for instance, whose staff have the important duty of understanding and interpreting copyright, and guiding users, students, authors and researchers through what they can and cannot do.

Copyright needs to be mindful of its impact beyond the most obvious commercial activities. Here are a few examples of where intellectual property has an impact, and so where relevant stakeholders’ views should be taken into account. Libraries, of course, have a key interest in all of these:

Copyright is important for cultural heritage

 Cultural heritage institutions hold collections of items protected by copyright law. Even if some are not necessarily protected, it is sometimes difficult to confirm this (when did the author die? Should the work be considered as being subject to copyright?).

Any activity involving such materials is then affected by copyright law, from public lending (in some countries), to preservation, to digitising and making available orphan works. Unless copyright adapts to support these activities, it will fail to promote this public policy goal.

Copyright is important for research

 Here again, decisions taken around copyright have a major impact. Most research material, for example articles, monographs or theses, have copyright protection. Apart from traditional issues such as plagiarism, or quotation (which should be protected by an exception under international law), new challenges arise as technology evolves.

Text and data mining (TDM), a form of processing information by machine, often involves copying, and so raises questions of whether the content processed is protected by copyright. If it is, then either permission is needed for every single work protected (impossible to manage), or a solution such as an exception is needed.

Exceptions for TDM, as well as other research copying, can make a real contribution to strengthening innovation and scholarship, while protecting the market for original works.

 Copyright is important for education

 Education is all about exchanging and sharing information. Information is present in the classroom, in forms of textbooks or online material displayed, at home with homework, or during examinations. Copyright has a strong influence on how education is provided, as it is applicable to most materials.

Traditionally produced textbooks, as well as digital course ware, play a helpful role, alongside open educational resources and materials produced specifically by teachers for their classes. Such materials should benefit from copyright protection, in order to reward the work of authors.

However, such rules should not stand in the way of educational uses which do not harm markets, or indeed make it unduly hard to create and share open educational resources. As set out in the provisional report by Professor Raquel Xalabarder at the most recent meeting of the World Intellectual Property Organisation’s Standing Committee on Copyright and Related Rights, the primary goal must be to make it easy for teachers to teach.

Copyright should be seen as a tool, amongst others, for achieving broader ends, including creativity, innovation, and the public interest activities such as the ones described in this above.

 

 

The EU Copyright Reform: Battles Won, Bullets Dodged, and the Questions that Remain

The text adopted yesterday at the Council, after the Parliament’s vote on 26 March, comes after years of discussion.

The Commission’s proposal released in 2016 has been reviewed and voted upon in five parliamentary committees, at the plenary of the European Parliament, at several levels within the Council, and through trilogue discussions among the Council, the Parliament and the Commission.

IFLA and its partners have engaged in every step of the process to ensure the best results possible for our sector. There are also a number of very good analyses out there, not least those produced by our partner organisations.

This blog, rather than looking to give a comprehensive overview of the legislation, looks at the battles that libraries have, together, won, the bullets we have dodged, and the questions that remain. These last will be important, with the effort to ensure the right rules for libraries now moving to the national level. You can access the final agreed text here.

 

TEN BATTLES WON

First of all, the battles won – those areas where we have seen a significant improvement on the text originally proposed by the Commission in September 2016. Through the work of a number of committed Members of the European Parliament, and supportive Member States, there have been important steps forward in some key areas:

  1. Extension of the mandatory text and data mining (TDM) exception to all libraries and cultural heritage institutions (Article 3): originally, the Commission proposed that only research organisations could benefit. However, research libraries may have faced a lack of certainty, and other libraries and cultural heritage institutions would have been excluded, forced to seek licences in order to carry out analysis on the works they hold. Now they can.
  2. A second and broader mandatory TDM exception, applicable to any individual or institution (Article 4): the first version of the TDM provision created extensive uncertainty by trying to distinguish between types of mining which would and wouldn’t be allowed. The final version of the Directive makes TDM exceptions mandatory in all Member States, for all users with legal access, albeit with some smaller limitations. See below for more.
  3. Clarity on cross-border networks of collaboration for preservation (Recital 28): while the need for cultural heritage institutions to work across borders in order to make the most of digitisation equipment was mentioned in the original impact assessment, the first version of the Directive failed to make it clear that such networks were possible. Now it does.
  4. Application of contract override to preservation (Article 7(1)): libraries can be prevented from carrying out preservation activities when the terms of the licences under which works are accessed state otherwise. The original Directive did not address this issue. Now it does.
  5. A wider number of purposes acceptable under digitisation for preservation (Article 6, Recital 27): preservation does not only imply taking a copy of a particularly vulnerable work. Cataloguing, insuring and even lending to another institution for preservation work may also require copies to be made. Improvements to the Directive have offered a greater indication that these are possible under an exception, although libraries will need to work at the national level to ensure these are covered.
  6. A fall-back exception for out-of-commerce works where no collective management organisation exists for a specific category of work in a given country (Article 8(2)): the grand plan in the original Directive was to allow for extended collective licensing of out-of-commerce works? But what about the many sectors and countries where there isn’t a representative, well-governed collecting society to run this, or they don’t have the right mandates? Thanks to the new exception, libraries can now also find a way to digitise and make available works which aren’t available on the market.
  7. Stronger conditions on when a country can opt out of the education exception (Article 5(2)): the original proposal left a lot of scope for Member States to disapply the new education exception and allow licensing to prevail. However, it is clear that many educational licences are not fit for purpose. The final version of the Directive puts the onus on Member States to ensure that before an exception is taken away, licences have to offer a realistic solution.
  8. Protection of the public domain (Article 14): recent cases have seen actors take simple photos of works which have long been in the public domain and claim copyright. This can represent a barrier to their spread, as key texts and images risk being subject to infringement proceedings. The final version of the Directive makes it clear that straightforward reproductions of works in the public domain cannot themselves claim copyright.
  9. A clear possibility to have broader limitations and exceptions (Article 25): the tendency in international copyright law is to favour higher levels of protection of rights, rather than greater scope to pursue public interest goals through exceptions. However, in the final version of the Directive, it is made clear that Member States should feel able to go further if they want.
  10. Extension of education exception to uses by educators in other settings (Article 5(1)): the original version of the directive allowed for teachers to use digital works in the classroom, or online. This potentially restricts the ability of educators to offer courses in libraries and elsewhere. The final version of the Directive clarifies that this is possible under the exception (or licences if applicable).

 

10 BULLETS DODGED

In the course of the discussions, a number of ideas emerged which would have seriously limited the effect of the new rules, and indeed have created dangerous precedents both for Europe and the rest of the world. Fortunately, they didn’t stick:

  1. Obligation to delete datasets created for text and data mining (Article 3): a number of MEPs tried to argue that if copies of articles and other materials were made in machine-readable formats for text and data mining, these needed to be destroyed afterwards in order to prevent against misuse. This (once again) makes the lazy assumption that exceptions are more or less the same thing as piracy (wrong), and would have meant that experiments carried out with TDM could not be reproduced.
  2. Scientific publications in the scope of the new rights for online press publications (Article 2(4)): in one European Parliament committee, there was an to extend the new planned press publishers right extended to scientific publications. This did not make sense, given the very different market conditions there (not least the fact that authors are not paid for their work). Fortunately, MEPs saw sense and rejected this proposal.
  3. Continued over-protection of technological protection measures (Article 7(2)): the original Directive took the refreshing step of arguing that technological protection measures (TPMs) which prevent the enjoyment of exceptions (for example copying for preservation) should not themselves enjoy legal protection, even for licenced (as opposed to purchased) works. The European Parliament tried to reverse this, leaving any work accessed under licence potentially tied up in TPMs. This proposal did not make it to the final version.
  4. No possibility to cumulate exceptions and limitations (Article 7): a further effort sought to overturn the (highly restricted) TU Darmstadt ruling. This established that it is possible to combine exceptions, as long as these continue to respect the three-step test. Despite this obvious safeguard, rightholders tried to add in a new clause that would prevent ‘stacking’, but which would have at the same time had a huge impact on disciplines such as digital humanities. It didn’t make it.
  5. Automatic right for publishers to benefit from public lending right at the expense of authors (Article 16(2)): one often-overlooked article in the Directive served to protect collective management organisations who had been paying out shares of copying revenues to publishers. Following the Reprobel case in the Court of Justice of the European Union, they risked having to pay this money out to authors instead – the Directive therefore underlines that publishers can claim a share. There were efforts during the negotiation of the Directive to extend this to public lending right, which would have seen authors in a number of countries lose revenue to publishers. The final version leaves the choice to Member States.
  6. Library repositories being covered by new rules on platform liability (Article 2(6)): the first version of Article 13 (now 17) would have meant that any site hosting large volumes of user uploaded content would need to implement filters to check for infringement, or face liability. This would have placed a huge burden on scientific and open education repositories, which play a vital role in giving access to materials. Thanks to extensive work, there is now a clear exception for these, alongside sites such as Wikipedia.
  7. Libraries and individuals being obliged to pay for uses of short snippets of press publications (Article 15(1)): while clearly aimed at GoogleNews, the original version of the Directive gave very broad application to the Press Publishers Right, with non-commercial users such as libraries potentially liable to pay. This would have potentially had a major impact on research work done by librarians for users, as well as catalogues and libguides. Fortunately, the new Directive is clear that non-commercial users are not affected.
  8. Works can only be declared out of commerce when all versions, manifestations and translations are no longer on sale (Article 8(5)): the original version of the Directive indicated that a work could only come under the new provisions when all versions, manifestations and translations were no longer on sale. This would have seriously limited the impact of the Directive, given that different language versions are not necessarily interchangeable, and that researchers may well need a specific edition, and so cannot complete their work with a substitute that is still on sale.
  9. 20-Year duration for press publishers’ rights (Article 15(4)): the first version of the Directive gave press publishers a right for 20 years, despite any evidence of this being proportionate or justified. This would have seriously limited the work of libraries working with the press, as well as research into recent history. In the end, the duration of the right was limited to two years.
  10. Retroactive effect of the new press publishers’ right (Article 15(4): at first, a lack of clarity in the text could have implied that even existing publications would benefit from the new possibilities. This would have put into question work already done using this material, bringing major new uncertainty. The final version of the Directive is clear that there is no retroactive effect.

 

TEN OPEN QUESTIONS

As is almost always the case with European legislation, a lot comes down to transposition – the steps taken to turn EU rules into national ones. An added factor in this is the lack of precision in many parts of the Directive. This is inevitable, and offers opportunities to ensure positive outcomes. At the same time, it also means that libraries will need to play close attention.

Here are ten more things to watch out for:

  1. Rules around permissible security measures in text and data mining (Article 3(3)): the Directive underlines that rightholders are allowed to take security measures in order to protect their works. At the same time, this should not lead to the cancelling out of the TDM exception in the first place. Finding the right balance here – and preventing overly restrictive approaches – will be important if the exception is to have its full effect.
  2. Rules around opting out of text and data mining for all individuals and institutions (Article 4(3)): as highlighted above, a major step forwards was the mandatory TDM exception for the benefit of people and organisations outside of research centres, libraries and cultural heritage institutions (if they have legal access to the works mined). There is a catch here, in that rightholders can explicitly state that they do not want their works mined. It will be important to work with Member States to ensure that the rules around this are specific enough to mean that opting out is the exception, not the rule.
  3. Definition of who can benefit from the education exception (Recital 20): despite our efforts, the education exception formally still only applies to educational establishments, although it can be used (under the authority of a formal education institution) in libraries and cultural heritage institutions. There is, nonetheless, a possibility to ensure that libraries (or groups that offer training and support to people in libraries) are recognised as educational establishments in national law. This would open up useful new possibilities for libraries to fulfil their potential as places for learning.
  4. Application of the opt-out from the education exception (Article 5(2)): as highlighted above, there is the possibility for Member States to decide that the new education exception does not apply in situations where there are licences adapted for educational uses on offer. There is likely to be extensive rightholder lobbying in favour of excluding broad categories of works from the exception. It will be up to libraries and educators to ensure that the conditions laid down by the Directive (that licences are ‘suitable’, ‘cover the needs and specificities of educational establishments’ and are ‘easily available’) are fulfilled.
  5. Application of the exceptions in the out of commerce works exception (Article 8(3)): a major area for work will be how to define where cultural heritage institutions need to ask for licences, and where they can benefit from the exception in order to digitise and make available out-of-commerce works. It will be up to member states to decide what it means for a collective management organisation to be ‘sufficiently representative of rightholders in the relevant type of works or other subject matter and of the rights that are the subject of the licence’.
  6. Application of rules to out-of-commerce works by third country nationals (Article 8(7)): one weakness of the Directive is the focus on trying to ensure that works by people from outside the European Union are not covered by new rules on out of commerce works. For many European countries, this will be difficult, given that they use major world languages, and so telling the difference between a French and a Quebecois work, for example, may be difficult. Member States will need to take a sensible approach to this point.
  7. Application of the definition of a good faith search on whether a work is in commerce (Article 8(5)): the Directive suggests that before a work can be declared out-of-commerce, a ‘reasonable effort’ must be made to ensure that it is not available to the public through normal commercial channels. Given the difficulties already encountered around the Orphan Works Directive, it will be important to ensure that national implementation does not create disproportionate obligations on cultural heritage institutions.
  8. Definition of which works can be preserved under the preservation exception and of the activities and purposes covered (Article 6, Recital 27): the Directive’s preservation exception, as set out above, does allow for copying for preservation purposes, while leaving the possibility for Member States to pass other exceptions and limitations for internal uses. There is, therefore, a key opportunity to ask for exceptions that allow for any core library uses of works to be covered.
  9. Management of the dialogues planned for the text and data mining exception, the out of commerce works provisions and the upload filters provision (Articles 3(4), 11, 17(10)): a number of articles provide for dialogues between stakeholders on how the rules should be applied. It will be necessary to pay attention to the composition, terms of reference and other aspects of these discussions in order to ensure that the results reflect the interest of libraries and their users. This will, in particular, be the case around protection of freedom of expression under the provisions on platform liability.
  10. Protecting the quotation exception (Article 15): The press publishers’ right creates a worrying precedent for protection being given to ‘short extracts of a work’. This risks affecting how legislators and courts think of the concept of quotation in general, as well as criticism and review. While the scope of the Article in the Directive is narrow, the precedent is certainly worrying.

For more, see our resources page about the European reforms. You can also see analysis and reaction by our partner organisations:

LIBER: New European Copyright Directive: A Detailed Look

EBLIDA: Long Read : Final stretch for the Digital Single Market Directive

SPARC Europe: A new Copyright Legislation for Europe. How will this impact Open Access?

EUA: EU Copyright Directive: EUA cautious about adopted agreement

Canadian Flu? The Doctor will See You Now

Canadian Flu ImageDebates around fair use and fair dealing are often fierce. For some, they mark a step away from old certainties and bring new and unwanted risks. For others, they are a means of reducing the rigidity of strict, code-based legal systems that risk harming libraries’ ability to serve their users.

In the middle of this abstract debate, the case of Canada’s 2012 copyright reforms is frequently cited as a case study. In debates in Australia and South Africa, for example, there are references to ‘Canadian Flu’ – the idea that extending fair dealing to education has been disastrous. Of course it is worth noting that it was arguably a series of decisions by the Canadian Supreme Court that effected the change, and that the government merely confirmed this state of affairs.

Nonetheless, given that this is being presented as evidence in debates around the world, it’s worth a fuller exploration of the symptoms. What is actually going on, and what diagnosis can we make?

 

Doctor, Doctor! The Symptoms

The most obvious event in the last few years has been the significant fall in the revenues collected by Access Copyright, Canada’s collecting society for reprographic (photocopying) rights. This has, logically, led to a fall in the revenues paid out to authors and publishers through this particular channel.

It is also true that a number of companies have gone out of business, or international companies have reduced their Canadian operations. Nelson, a major Canadian publishing company, declared a form of bankruptcy, and Oxford University Press closed its division providing materials for schools.

At the same time, a proper diagnosis is not possible without looking at everything that is going on. A crucial point is the growth in sales of electronic content, and that these materials appear to be replacing the sorts of course-packs that formed a key part of Access Copyright’s revenues. In the university sector, library spending on publisher content has grown systematically since 2012. The share of digital vs physical has reversed between 2002/3 and 2015/6.

This has impacted the textbook market (including the market for taking copies of textbooks), alongside falling numbers of young people, greater use of individual books, and textbooks themselves lasting longer. Licences offered for whole eBooks are often indeed cheaper than licences for individual chapters.

Meanwhile, Canadian education is doing well, coming close to the top of the table in the OECD’s PISA study, while its publishing industry as a whole is growing at twice the speed of the United States. As for the educational sector, it is the cost of books compared to budgets that is cited as a reason for not using more Canadian content.

 

On the Couch: a Diagnosis

While the core observations – the reduced revenues of Access Copyright and the closure of some companies – are obviously true, some of the surrounding arguments are more dubious.

The idea that the reform has put companies out of business is undermined by the fact that Oxford University Press’s Annual Report for 2013-14, which notes the closure of its schools division, places the blame on a longer-term decline in the market that is cited as a reason (falls of 50%). Meanwhile, the company celebrates its continued investment in Higher Education and English language programmes. Nelson’s demise seems to be a delayed consequence of taking on too much debt in the years before the financial crisis.

The notion that there have been 600 million pages being copied without payment seems to be based on highly questionable assumptions, with many of the supposed copies actually having been paid for, and the 2005-06 baseline unlikely to be relevant. And as has been highlighted in submissions to the Canadian parliament, the impact of falling revenues from Access Copyright has affected revenues by as little as 1%.

Overall, if the patient is the publishing industry as a whole, it appears to be healthy, although of course there can be claims that it would be healthier still otherwise. Indeed, figures for 2014-16 for example show Canadian-owned publishers increasing sales while foreign-owned ones saw a fall.

But arguably, the most important patient is not the publishing industry, but Canadian education as a whole. Quality publishing does play an important role in this, and certainly schools and universities would be poorer without it. At the same time, it is vital to take account of the interests of students and educators, who have reported that the reforms have allowed them to teach – and learn – much more simply.

 

Conclusion

As highlighted at the beginning, the move to fair dealing for education in Canada, both through the actions of the Canadian Supreme Court and the government, has arguably had a very concentrated impact on one player – Access Copyright. This has had knock-on effects on publishers who, nonetheless, seem in many cases to have benefited from growing revenues from other sources.

Moreover, once a wider perspective is taken, and all symptoms and trends are taken into account – in particular the impact on learning – the Canadian patient is arguably in good health.