Tag Archives: copyright

Copyright and Sustainable Development – Part 2: Applying the logic of sustainability to copyright

As highlighted in the first part of this blog, the United Nations 2030 Agenda represents a new approach to overall development policy.

That set out how the Agenda focuses on the full range of policy areas and countries (rather than a subset of each), and the interconnections between them. This stands in contrast to the Millennium Development Goals that ran from 2000 to 2015, underlining how every part of government, in every part of the world, has a responsibility to act. This of course includes copyright policy-makers.

In addition to this broader policy and geographical focus, the 2030 Agenda also emphasises the importance of cross-cutting principles in policy-making. Two examples of these are the importance of sustainability itself, and on the right of everyone to be able to fulfil their potential.

This second part therefore focuses on how these principles can apply in the making of copyright policy.

Sustainability: acting now, without prejudicing the future

At the heart of the idea of sustainability is the notion that the way we live today should not compromise the way we live tomorrow. It is most readily applied to the environmental field, where excessive use of resources now risks meaning that future generations live in a poorer, more polluted world.

Similar ideas apply in the economic and social fields. Economic expansion can be unsustainable, while allowing inequalities to deepen causes rifts which threaten social cohesion, as well as being associated with lost capacity to produce overall.

How does this apply to copyright? One side of the argument is that it is the protection that copyright provides that enables future creativity to take place. Without it, investments cannot be recouped, and new projects cannot be launched. When a company produces (publishes) a wider range of materials, the greater success of one (a bestseller) may help compensate for the fact that others will do less well.

At the same time, there is also the fact that the future health of the creative industries depends on there being a literate population, interested and engaged in buying what they have to offer. This, comes from having a strong education system with teachers well placed to develop skills among students, as well as institutions such as libraries which can instil a love of books and reading.

Similarly, the possibility to produce innovation tomorrow depends on students and researchers being able to access knowledge and work together today. This is particularly the case in countries currently experiencing lower levels of development, often accompanied by low literacy and innovation outputs.

Copyright reforms can support this all, freeing up teachers to use materials more freely, and enabling libraries to support them, as well as researchers, effectively.

As such, it is important, when developing copyright policies – including at WIPO – to ensure that the generation of additional revenues in order to recoup financial investments in creative content does not reduce the investment in the future represented by education and research.

The capabilities approach: delivering on the right to access information

Another concept close to the heart of the 2030 Agenda is that of the right of every individual to the capabilities necessary for development. Based on the thinking of Amartya Sen and Martha Nussbaum, this looks at whether people have the means to realise their own well-being, rather than simply having rights but no means of acting on them.

Arguably, part of this is the possibility for everyone to access the information that they need to improve their own situation, be it to gain new knowledge or skills, for health, or in order to innovate.

Schools, research institutions, libraries, archives, and museums have a key role here, turning the broad right of access to information into something actionable. Libraries indeed often have a mandate to serve everyone, providing possibilities for all, regardless of wealth, social status or other characteristics.

For example, libraries and schools which are enabled under copyright to carry out their work will be better able to serve their communities, including at distance. In turn, members of communities are better placed to take decisions, on their own behalf and on behalf of those around them.

While this access may not always be as simple as making a direct purchase of a book or other resource, it does help to ensure that no-one need be excluded from learning or research for want of money.

Crucially, for policy-makers, the challenge is to ensure that decisions taken around copyright law do not lead to doors being closed for individuals to access the information that can help them achieve their own well-being.

 

These two blogs have looked, from two different angles, at how the UN 2030 Agenda can feed into the way discussions about copyright, and in particular exceptions and limitations, are approached at WIPO.

As the first underlined, the breadth of the Sustainable Development Goals, and the interconnections between them, mean that not only do copyright policy-makers have a duty to act, but in doing so, they need to consider consequences on progress across the Agenda.

The second explored how cross-cutting ideas behind the Goals – in particular of sustainability itself, and the capabilities approach – are also relevant to the way we design copyright policies.

Both, hopefully, offer a fresh perspective on why balance matters in copyright, and what we need to bear in mind when working out what this looks like.

Copyright and Sustainable Development – Part 1: How a balanced copyright framework supports delivery of the 2030 Agenda

The United Nations 2030 Agenda and its 17 the Sustainable Development Goals set out a comprehensive policy roadmap towards a new, more sustainable model of development. It is designed to steer not only the work of the United Nations and its agencies, but also those of governments, and of all other stakeholders.

In contrast to the Millennium Development Goals that preceded it, the 2030 Agenda does not just focus on a sub-set of policy areas – the tasks of any one single ministry or agency – but on all of them.

Moreover, it highlights how essential it is to consider interlinkages – how actions taken in any one area may affect the achievement of policy goals elsewhere, for better or for worse.

This implies a responsibility. When taking decisions, broader consequences need to be taken into account.

The Agenda is also global, rather than concentrated only on the developing world, recognising the fact that the fates of countries are just as interlinked as different policy areas. This is not only clear in areas such as climate change or pandemic health, but also in wider questions of trade or tax policies.

As such, decisions about copyright, such as those discussed at the World Intellectual Property Organisation, should be based on consideration of the potential impacts on policy outcomes across the board, not just in any one single area.

Moreover, they should also reflect the interconnected nature of the world, avoiding the costs of misalignment and realising the potential of stronger coordination.

This blog – the first part of two – therefore looks at the different goals on which copyright policy decisions may have an impact, and in particular where balance between rights and exceptions (or even setting elements of copyright aside through open licensing) is important. The second part then considers how some of the cross-cutting themes present in the 2030 Agenda as a whole could apply in the way that we think about copyright in general.

Innovation (SDG9): perhaps the most obvious area where copyright – and intellectual property – is seen as having an effect is around the promotion of innovation. Clearly, innovation has a vital role. At its best, it offers new ways of doing things, requiring fewer resources. It is also essential to come up with solutions to new challenges (not least COVID).

The argument for intellectual property rights is that they enable investment in innovation by creating a means of ensuring a return. In other words, if someone cannot make money from inventing or creating things, they may not be able to do it in the first place.

However, as the global shift towards open science underlines, downstream innovation – in terms of new products or ways of doing things – can in fact benefit from greater openness upstream. When the sharing of research findings and data is restricted or slowed, so too is the pace of new discovery, be it for products, or for responding to grand challenges such as climate change or pandemics.

Education and Skills (SDG4, 8): another area where there is already focus on the role of copyright is in access to education. There are strong efforts to argue that easier possibilities to licence content, as well as the development of local copyright industries, will overcome inequities faced.

At the same time, teachers, both in the formal and informal/non-formal education systems often rely not on specifically created educational outputs, but rather materials from everyday life that are freely available online in order to help students learn. The rise of the open educational resources movement is creating new possibilities for teachers themselves to create and share tools among peers.

Such uses do not imply any loss of sales, while educators are better able to focus on instruction when they benefit from rules that do not add complexity or cost. Crucially, they do contribute to improved educational outcomes, in turn supporting wider economic development and so the market for copyrighted products.

Sustainable Consumption (SDG12): an area less frequently talked about, but where copyright law could contribute, is around reducing waste. In particular, there has been the  rise of calls for a ‘right to repair’, focussing on the value of making it easier to fix products, without needing to risk infringing copyright, for example through correcting software, or even accessing repair manuals. In short, making it easier to repair goods is likely to give them a longer life, reducing the demand for new production.

Open Government (SDG16): the SDGs emphasise the importance of openness and transparency in government as a means of enabling citizen participation and improving outcomes. A central pillar of this is the open publishing of public sector information, from legal texts to budgets and beyond.

This is also an area for copyright, given that unless exempted, government texts too are covered. When such texts or databases are be kept behind paywalls, citizens face barriers – insurmountable for some – to exercise their right to democratic participation.

Research Cooperation (SDG17): in addition to the emphasis on innovation in SDG9, SDG17 focuses on partnerships for the goals, and in particular the possibility for research and knowledge cooperation across borders.

While specific agreements to transfer IP, or to give access to copyrighted materials to institutions in developing countries may help, they are necessarily narrow, and risk leaving many left out, also then limiting scope for cooperation. Broader possibilities to share materials in the context of cross-border research, without the uncertainty that unaligned copyright laws create, would expand the scope for new collaborations.

Digital Inclusion (SDG5, 9, 17): the 2030 Agenda recognises the importance of technology as an enabler of development, not just in dedicated targets concerning connectivity, but also when looking at data around usage. Clearly, an important determinant of how useful being online is to someone is whether they are able to access digital content and services.

Among the varieties of content available, online learning is a clear example, as is the possibility to access the collections of libraries and museums. During the pandemic, indeed, digital access has been the only means of doing this for many who cannot afford to buy content directly. Copyright laws can have a determining impact on the possibilities that providers and users have to benefit from these possibilities.

Safeguarding Cultural Heritage (SDG11): finally, the SDGs highlight the importance of safeguarding cultural heritage. This is of course a core function of libraries, archives and museums, which increasingly use digital technologies in order to preserve materials for the future.

However, digital preservation involves copying, and so copyright itself. Unless there are possibilities in law to make copies, the preservation decisions of these institutions are likely to be guided more by what implies least risk or least cost, rather than what is most important.

 

These represent just some areas where the way in which governments strike a balance in copyright, at the national and international levels, can make a difference to development outcomes. Indeed, the SDGs arguably provide a structure, a checklist even, for thinking through the merits of the decisions that are taken.

In part 2, we turn away from individual SDGs, and to a couple of the principles that underpin the entire 2030 Agenda, notably sustainability and the right to development.

Hammer Time (or not): Breaking Free from the Law of the Instrument at WIPO

When all you have is a hammer, everything looks like a nail.

This – the law of the instrument, or Maslov’s hammer – refers to a situation where someone’s actions are more determined by the tool that they have at hand than by consideration of what the best response might be.

The consequence is likely to be ill-suited solutions to problems faced, or even leaving things more broken than when they started. This can be the case at any level, from the individual to the governmental.

The response, of course, is to take the time, when facing an apparent challenge, to reflect first on which tool from a selection may be most effective.

How is this relevant to the work of the World Intellectual Property Organization?

Many of those engaged in discussions at WIPO, and in particular in its Standing Committee on Copyright and Related Rights (SCCR) spend their time focusing on creating, managing, or enforcing intellectual property rights.

When this is what you are used to, it is perhaps normal that, when you are faced with a new situation, the automatic response is to think about how you can create a new right.

Currently on the agenda of SCCR are new rights for broadcasters, theatre directors, authors (for public lending), and potentially though work on copyright in the digital environment, streaming.

This of course will make sense for anyone involved in managing rights. But are these all situations where more rights really represent the most effective way of achieving stated goals? What risk is there that they, in fact, end up doing more harm than good?

 

Maslov’s hammer at work: the proposed study on Public Lending Right

A first example of a drive to push new rights as a response to a challenge is the proposed study on public lending rights (PLR). This document, in summary, calls for an investigation of the benefits of PLR (disregarding potential costs), and effectively mandates work to set up a road map for rolling this out in developing countries.

IFLA of course has a strong position on PLR in developing countries, where libraries are often poorly funded, if at all, and the need to build literacy and reading culture is high. Yet at the same time, it is undeniable that many authors incomes that are barely, if at all, sufficient to support them in their work.

Therefore, before (uncritically) doing work in support of PLR, there is a case for avoiding the law of instruments, and thinking first about what tools are available, before then exploring which ones might work best.

For example, the European Union, in the Digital Single Market Directive, introduced both new provisions on fair remuneration, transparency around revenues, and the potential for rights to revert to authors after a period of time.

In Australia, The Author’s Interest has also underlined the potential of rights reversion as a way of empowering authors.

Meanwhile, the Racine Report in France set out 23 recommendations, highlighting the importance of direct and indirect support for authors, as well as social security. Importantly, it highlights imbalances in the relationship between authors on the one hand, and intermediaries and collecting societies on the other. Indeed, the report does not mention exceptions to copyright at all.

In short, this suggests that any sincere effort to address the incomes of authors – in particular in the case of developing countries where public resources are scarce – can draw on a wide variety of experiences. Simply looking at just one solution – without considering its merits in relation to others – offers a poor service to governments. And for authors themselves, the uncertain promise of PLR money may offer less of a support than more meaningful solutions to support incomes.

An open question: understanding the impact of COVID on the copyright sector

As hinted on the first day of SCCR, there is the possibility that WIPO will launch discussions on the topic of the impact of the pandemic on the copyright sector.

The question is a fair one, given the intensification of the shift to digital tools for sharing and accessing culture. There has, undoubtedly, been a huge impact on performing artists, hit by the closing of venues, as well as for bookshops.

In the meanwhile, those able to operate online have done a lot better. This includes not just streaming platforms, but also those able to sell physical goods such as books over the internet. Clearly, of course, platforms have benefitted in particular from higher numbers of users and so of data gathered.

This situation has accentuated questions about the division of revenues from such services, not least as concerns whether compensation from streaming and other uses on digital platforms is fair – the ‘value gap’. This is the same concern that underpinned the drive for Article 17 of the EU’s Directive on Copyright in the Digital Single Market.

How to address the challenges faced is a great example of an opportunity to think hard about the different tools available, rather than immediately reaching for new rights.

For example, the traditional means of addressing situations where one player is in a much stronger position in a negotiation than another is through competition law. It may also be possible to use contract law, especially in the case of individuals, which of course may also help ensure that authors receive a higher share of any revenues earned.

Fully considering these alternative options would make it easier to assess whether rights – which are likely to be best used by those with the resources to make the most of them – are the best response.

 

A clear case for action: cross-border exceptions

There is one situation at WIPO, however, where there is more clarity – the need for an international instrument to allow for cross-border cooperation for preservation, education and research.

Meetings held throughout 2019 explored various options for supporting these activities (see the report), but no credible alternatives to action emerged.

For example, while cross-border licensing is possible, there is no justification for obliging a user (or an institution supporting users like a library) to pay to do something across borders which they can do without compensation or permission at home.

Preservation is a perfect instance of this – a clear public interest activity for which few would argue for compensation domestically. Yet without an international instrument making clear the possibility to share works and copies – for example through preservation networks, or to allow for cloud storage of copies, there is no other solution giving legal clarity.

The same goes for core forms of access – for example to supply documents on an ad hoc basis, for text and data mining, or to support basic teaching activities. While more extensive uses may of course justify licensing solutions, minimal (or purely technical) ones do not.

Without a clear possibility to work across borders, learners, educators and researchers face uncertainty and frustration. This is an area where the other available tools have been reviewed, and the value of an international instrument is clear.

 

As argued in this blog, the law of the instrument provides a good analogy for an approach that sees new rights as a response to emerging challenges. While in some cases, they may be appropriate, in many cases they are not.

Indeed, the accumulation of new rights (i.e. offering someone a share of potential success, rather than simply offering those involved in the creation of a work a decent contract) causes significant challenges to those who need to clear them. While the work of collective management organisations does allow a simplification of the process, simpler still would be to seek alternatives which avoid this complexity in the first place.

In their work this week, we hope that delegates will break free of the law of the instrument, and be ready to consider the whole toolbox.

Caught in the Backwash? Six things worth retaining from the time of the pandemic

When IFLA’s Trend Report was released in 2013, the strapline was ‘Riding the Waves or Caught in the Tide’.

The Report focused on long-term trends affecting the way we live, work, interact and learn.

Today, libraries are of course faced with the very immediate question of how to provide services during a pandemic, and manage a recovery that is likely to be uneven and slow.

In particular, there will be key questions about when special measures taken in the context of the pandemic should be withdrawn.

This applies, of course, to restrictions on travel, on the opening of libraries, schools and businesses, and to the huge focus of resources into boosting medical capacity.

Finding the right time to return to ‘normal’ (insofar as this is possible) is a hard question, and decisions will need to take account of many factors, not least risks to health.

However, there are arguably some measures and practices which shouldn’t be withdrawn at all. In effect, as the wave recedes, how can we avoid these good things being caught in the backwash?

This blog offers a few suggestions of things we might want to keep from the time of COVID-19, building on our own experience and ideas shared by others.

Better deals for digital content: 2019 was marked, in particular, by tensions around the decision by some publishers to enforce embargoes on eBooks before making them available to libraries.

With the beginning of the crisis, not only was this position lifted, but there were welcome steps by a number of publishers to offer discounts on electronic content, helping to meet major increases in demand. As Publishers Weekly noted, increases in library use have gone hand-in-hand with increases in sales, and sales and profits have increased for many individual companies.

Of course, we are far from a perfect situation. Some special deals have lapsed, and eBooks remain expensive for libraries in comparison with the prices paid by consumers. In the academic field, there have been particular concerns about high and rising prices.

As positive sales figures for publishers are reported and analysed, we can at least hope that there will be a greater readiness to accept that library lending of digital content is not a harm, but rather a support to digital reading in general.

Awareness of the Need for Open Access and Copyright Reforms: a further impact of the crisis, at least in some countries, has been awareness of the need to ensure that copyright laws keep up with technology, in particular by ensuring that libraries can pursue their missions just as well through digital means as through analogue ones.

Linked to this is the drive to increase the share of research published open access, by-passing the need to rely on copyright exceptions in order to access and use work. Millions of educators, learners and researchers will now have their own experience of  whether materials are available to them online or not.

Bringing together this experience in order to sustain the momentum could see important progress, replicating the progress we are seeing in the proposals for reform made in Australia and Japan. At the international level, reiterating and underlining that existing global rules allow such steps will also be helpful.

Improved Services to People with Mobility Issues: during the pandemic, whole populations have discovered what it is like having to live life without having access to the physical premises of libraries. However, this was already the case for many – those living in remote areas, with limited mobility, in care homes or in prisons.

In response to lockdowns, there has been a wave of innovation in the provision of content and services, both to wider user groups and targeted on individuals most in need.

When safe re-opening is possible, there will clearly be a limit on resources – providing services offline and online can require much more effort and investment than providing just one of the two. However, we can hope that lessons from the crisis are learned and those without the possibility to access a library physically will benefit from lasting improvements in provision.

More regular, shorter meetings: pre-COVID, the possibility of physical meetings – conferences, seminars and other events – tended to a large extent to structure the rhythm of cooperation and communication between professionals. Where there were electronic meetings, these tended to be smaller, serving mainly to keep things moving.

However, without the possibility to meet in person during the pandemic, we have seen mush more exploration of the scope of digital platforms to bring people together. For example, in Ireland, regular town hall meetings have brought together all librarians in the country on a regular basis – something that would previously only have been thought of as something for conferences.

Similarly, many of IFLA’s own sections have moved from coming together twice a year for longer periods to more frequent, shorter sessions. These have allowed greater responsiveness to events, and new possibilities for participation. This feels, certainly, like a good practice to maintain.

Bringing in new voices: linked to the above point, with physical meetings not possible, we have hopefully seen a lasting weakening of the idea that it is necessary to travel in order to be able to participate. While it is clear that poor connectivity remains a major challenge, it is certainly easier to address than that of finding the money, time and visas to attend meetings in other countries or continents.

Again drawing on IFLA experiences, there have been exciting new possibilities to attend meetings organised by colleagues around the world, learning from a wider and richer range of experiences. This has opened a door to a greater diversity in the voices heard within the library field.

While of course meeting again in person will be important, both personally and as a means of reenergising the wider community, there will be value in maintaining these wider possibilities for engagement which have brought so much to the debate within the field.

Seeing libraries as an investment: finally, it has been welcome, in the context of the pandemic, to see some governments at least see supporting libraries as a way of stimulating economies. Such investments, crucially, are designed not only to create jobs now, but also to create the foundations for stronger growth in future, and so repay themselves over time.

Examples have included support for stronger connectivity, enlarged collections, and building works, all of which make it easier for libraries to fulfil their mission of providing equitable access to information.

While stimulus packages will have an end date, the evidence of the recognition that investing in libraries is a way of building a stronger economy is one that will be worth working to maintain. Gathering data about the positive impact of this work, as far as possible, will help with library advocacy for years to come.

Libraries mean Business : IFLA to celebrate World IP Day on 26 April

In four weeks’ time, the World Intellectual Property Organisation (WIPO) is inviting representatives of governments and civil society to celebrate World Intellectual Property Day, under the theme “Small and Medium-sized Enterprises: take your ideas to market”.

IFLA will be taking the opportunity to celebrate the importance of the work done by library professionals to support and accompany small and medium-sized businesses.

Whether they are family businesses, start-ups or otherwise, small and medium-sized enterprises often have limited resources, and do not always have the opportunity to receive professional and strategic advice on how to work with intellectual property.

As a result, access to curated information, resources and services such as coaching, training and guidance provided by library professionals can be crucial for these businesses. This can help them understand how to support the development of a business model related to intellectual property, such as patents, trademarks, trade secrets or copyright.

As OCLC has reported, in the United States alone, public libraries were used 2.8 million times each month to support small businesses.

On World Intellectual Property Day 2021, IFLA and its partner EIFL are therefore pleased to present a webinar on 26th April at 16:00 CET entitled: Libraries mean business.

This webinar will allow us to highlight the work of three library organisations working to support small and medium-sized enterprises in particular on intellectual property issues, through three speakers:

Jeremy O’Hare, Information Expert: Intellectual Property, Business and IP Center, British Library in United-Kingdom.

Tara Radniecki, Head of DeLaMare Science & Engineering Library, Patent and Trademark Resource Center Librarian, University of Nevada, in the United-States of America.

Bernadette Cogan, Divisional Librarian, Central Library Services, Dublin City Council, in Ireland.

If you are interested in this event, join us thanks to the registration link.

The costs of non-access (part 2): why it matters when uses of works are prevented or complicated

In a post last week, we looked at the importance of being able to explain why non-investment in libraries matters.

As highlighted, in difficult budgetary times, governments are faced with the challenge of how to make cuts while causing least pain.

Being able to explain the harm that reducing or freezing library spending can create is therefore an important part of advocacy.

But as set out in another blog, decisions about funding are often just one side of the same coin as decisions about what libraries can do with their funding, notably as regards copyright.

A generous budget with highly restrictive rules on how resources are used can lead to a library having the same impact as one with a much smaller budget, but one where there are much broader possibilities to use works.

So just as we need to be able to talk about the cost of not investing financially in libraries, we should also learn to set out the harm done when library users are not able to use works.

There is a particular need for such arguments when it comes to copyright, given that the argument will often be made that the sorts of exceptions and limitations that allow library users and libraries to carry out such activities come at the cost of sales, or at least licensing revenues.

Such arguments are even used in the case of books that are no longer on sale at all, on the premiss that they may at some time in the future come back into commerce.

Of course, the evidence of such library activities actually causing harm is limited. The European Commission’s impact assessment on the draft Directive on Copyright in the Digital Single Market made clear that allowing libraries to preserve works, or library users to carry out text and data mining would not cause any significant damage.

This does not mean that there is no cost to rightholders from such acts. It isn’t possible to prevent a reader from borrowing a book or copying a couple of pages just because she or he could also buy it – this would be to turn against the universalist mission of libraries.

Similarly, there will often be a collective management organisation ready to invent a licensing offer for a new type of use, and so claim that copyright exceptions cost revenue.

To convince decision-makers to legislate in favour of copyright exceptions and limitations, we therefore need to be show that the cost of denying or complicating access is higher. So what arguments can be used?

Lending: when libraries are not able to lend books, this effectively condemns those who are not able to buy them to exclusion from access to culture. It can also choke off a means for new authors to be discovered by readers. Preventing digital lending will tend to exclude readers who are not able to get to a library, for reasons of disability, health, distance, or – obviously enough – COVID-19 restrictions.

Research (TDM): allowing uses of works for text and data mining improves the quality of the results of mining activities, thereby advancing science. Preventing such uses will have the inverse effect. In particular in the case of machine learning, there is growing awareness that limiting the range of works that can be used for learning can lead to biases and problems.

Education: teachers and learners benefit from being able to use the best suited materials for the context and situation, in order to achieve the best results. When teachers are obliged to take time to find works they can use – or rely on a limited offer – then they are less able to do their jobs. Similarly, a lack of adequate exceptions can restrict the production of open educational resources.

Preservation: this is a core function of libraries, ensuring that the works of yesterday and today are available into the future, recognised in international law. Where it is made more difficult, fewer works can be preserved. Ironically, the imposition of restrictions on preservation copying, motivated by a desire to sustain revenues, can risk reducing the chances of the work itself surviving into the future.

Document Supply: while a traditional activity of libraries using physical works, not all copyright laws allow for digital document supply. This has an obvious impact on those whose research is facilitated by being able to access often unique books held far away. Without this, the scope of research is unnecessarily limited to the works that are available on site, defeating the object of research in the first place.

Access for People with Print Disabilities: the challenge tackled by the Marrakesh Treaty was the book famine – the tiny share of books worldwide which are available in accessible formats. A failure to allow exceptions left the choice (and responsibility) for making such copies available in the hands of rightholders, often themselves unable to make the switch. The failures caused by a lack of reform led to violation of the right of people with print disabilities to education, and to participation in scientific and cultural life.

 

As in our first blog on the costs of non-access, such arguments should be used relatively sparingly. It is important to be positive as well, focusing on how reforms could lead to better services to – and support for – communities. Yet being able to underline costs can be helpful in making it clear that there is a problem that needs to be addressed.

As part of your advocacy, you are therefore encouraged to gather stories of problems – of the costs of non-access.

A quick word about an exceptional exception (you should get to know or start to consider using)

As part of the fair use and fair dealing week, IFLA is delighted to welcome Eric Chin, from the General Counsel at the National Library Board of Singapore, to share his views on the importance of making the best use of the flexibilities provided by the fair use and fair dealing provisions.

 

  1. Your mission as a librarian is to enable teaching, learning and research.  How much you can achieve depends on the extent to which libraries can collect, preserve, give access, present and exhibit library materials.  This in turn depends a lot on copyright laws that govern how library materials can be used.

 

  1. For example,  one of the exclusive rights of a copyright owner is the right to make a copy.  This impacts your day to day work ranging from the request by a teacher to make a copy of a photograph for a lesson, to whether the much used book that is deteriorating and is out of print (but still in copyright) can be digitised to preserve the content from being totally lost, to whether a video in an obsolete format (but still in copyright) can be migrated to a new digital format;  and to whether the non-profit museum down the road can make a copy of part of a map for an exhibition.

 

  1. Before we go further, it must be said that there is nothing wrong about the principle that copyright owners have exclusive rights for a period of time as just reward for endeavours and ability and it is beneficial to society because, among other things, it does create incentives for the production of more library materials.  It is not often said but it is not unfair to say that copyright is partly the lifeblood of a librarian’s job!  The question is about how this is balanced against what rights or exceptions there are to also ensure that exclusive rights do not act as unintended and undue barriers to progress in science, in the preservation of heritage and culture and the dissemination of knowledge.

 

  1. So copyright laws typically include a set of provisions that act as exceptions that will  allow for your mission as a librarian.  I say “typically” because copyright law is territorial in nature and each country has its own set of copyright laws. This means the scope of exceptions can vary (very) widely from country to country.  To see where you stand in the wide spectrum of copyright laws, it is useful to look at this study covering 191 countries: https://www.wipo.int/edocs/mdocs/copyright/en/sccr_35/sccr_35_6.pdf (the Study on Exceptions).

 

  1. Starting by knowing where you stand allows you to consider if you need to advocate for copyright exceptions that fellow librarians in other parts of the world can already use but you simply cannot.  What you cannot do will have a negative impact on the amount of teaching, learning and research that can be done in your own country. In an ideal world for librarians,  all countries will learn from one another and all will level up until all countries share the most useful exceptions in common. However,  it must sometimes start with ground up advocacy to the right powers that be in our countries, which is partly in our own hands.

 

  1. Looking at the range of exceptions in each country in the Study on Exceptions, you will see a fair few countries that do not list what is called “fair dealing” or “fair use” (collectively Fair Use) among the exceptions. Fair Use is a general exception that anyone can use and is not a specific exception available only to libraries but libraries can benefit greatly from it.  Each country will of course have an argument to make for its own copyright traditions and doctrine that their society may be comfortable with, but in my own view,  countries that do not have this exception may be missing out on an exceptional exception.

 

  1. Most library specific exceptions are generally prescriptive in nature with fixed criteria that must be met in an unchanging way in order to become applicable and this oftentimes can make it challenging for us especially in the fast changing digital era. On the other hand,  Fair Use is special because it is normally stated in a flexible way.  Certain broad factors (that are also usually not exhaustive) are set out as matters to be considered in a fair use analysis such as whether there is transformative use (i.e. use of the original library material or part of it in a beneficial way to society that is different from the intended use of the original) and whether the amount of the original library material used is appropriate in the circumstances including bearing in mind whether it would unfairly eat into or destroy the livelihood of the owner of the copyright.  Those who have had the benefit of using Fair Use will know that these broad factors for fair use analysis are such that the law in Fair Use can automatically adjust to new, evolving and challenging situations that you will face in your daily work.

 

  1. Around the world, in countries that have the Fair Use exception, it has been crucial in allowing for the use of library materials (including copying to an appropriate extent only) for research or study, criticism or review, reporting of news, to support teaching and learning,  to publicise library programmes, to create exhibitions, to preserve at risk items, to enabling use for those who are disabled and to making a record of ephemeral but culturally significant matters posted on the internet.

 

  1. This short piece cannot hope to set out all the details of what the best practices and exemplars are for Fair Use that gets the balance right between your mission and the rights of creators and publishers,  but urges you, as a librarian, to see where you stand in the spectrum of copyright laws that may be available across the world to support your mission.  As it is Fair Use Week,  and if you are one of those that does not have the benefit of Fair Use or actually do have the benefit of such an exception but have not used it,  go find out about it through the lawyer or other experts supporting your library and see how it can be fairly used.  If you then think it is useful, consider how you can advocate for it to be introduced or used as part of your workplan in the not too distant future.

 

  1. In the meantime,  it is Fair Use week and time to use those research skills to discover and read more about an exceptional exception that is not a fair weathered friend to librarians!

 

Eric Chin

General Counsel (and would be librarian and archivist)

National Library Board, Singapore

 

Note:  The views set out here are personal and do not represent the official view of any organisation I am associated with.