Copyright is regularly held up in public debates as both a barrier to, and a pre-condition of free speech.

Given the emotive power of human rights arguments, as well as how readily they are used, it is worth exploring these claims. The answer, to both, is ‘not necessarily’.

 

Foe?

Taking the Universal Declaration of Human Rights as a starting point, free speech and copyright appear to sit in different places. Article 19 explicitly guarantees Freedom of Expression, while it is Article 27(b) that is usually given as the human rights justification for copyright.

Article 27(b) comes alongside the right in Article 27(a) to participate in cultural life, enjoy the arts, and share in scientific advancement and its benefits. The implication is that Article 27 has dual goals – to ensure the rights both of the community as a whole, and those of creators.

This same idea of dual goals is also visible in the Berne Convention of 1886, which established the international copyright framework. As well as giving rights for creators, it also set out a range of exceptions to these rights that allow the community to use works – books, newspapers, other forms of creativity – in support of free speech in the press, education institutions, and broader public life.

For libraries, these provisions and other exceptions such as lending and copying, are vital to their work of promoting literacy, research and creativity, from villages and schools to the biggest cities or universities.

Nonetheless, these exceptions, both for libraries and more generally, are not universally applied. Copyright need not be opposed to free speech, but when it is applied in an unbalanced way, it can be harmful.

The situation is not necessarily getting better. For example, in Europe, the proposed press publishers’ right – a move that is justified as a means of creating a market for small snippets of articles – risks making it more difficult to bring together and share news.

The justification is the idea that rights are needed in order to create a market for the licensing of such content. The position taken by libraries, up to now, is that such a provision has no place in a balanced copyright system.

 

Friend?

While it is easy to dismiss this argument as based on purely monetary concerns, there is a counter-argument that makes the case for copyright (and related rights, such as the press publishers’ right) as being at the heart of free expression.

The logic? It is copyright that allows money to be made from creativity. Without it, then there would be no professional expression or creativity. In short, no free expression without copyright.

The argument is initially attractive – and has the advantage of being a model that is familiar. However, as indicated above, the fundamental human right given to artists – to enjoy protection of the moral and material interests of their labour – does not specify how this is to be achieved.

It certainly does not pick out copyright as the way of achieving it, a point made by Farida Shaheed in her 2014 report as UN Rapporteur on Access to Information.

What is true is that copyright has proven, in the past, to be a useful financing mechanism. At least in theory, by turning creative works into tradable ‘goods’, it offers a way of making investments recouping returns over a limited period. It also offers moral rights – attribution, protection against distortion or misappropriation – which may give creators useful reassurance in their work.

How effective copyright is as a means of ensuring that money ends up in the hands of authors and other artists – its original goal – is up for discussion.

While many creators enjoy positive relations with their publishers or record companies, others voice concerns how well they are faring from contracts. Many creators are exploring alternative ways of earning from their creativity. Nonetheless, we are a long way from a world where copyright loses its place as the dominant tool for financing creativity and bringing it to the public in many sectors.

 

 

Copyright, therefore, is a tool for realising a human right, rather than an end in itself.

While it has an ongoing role in generating the revenues that allow professional creators to do their jobs, it should not stand in the way of fair uses.

Legal provisions – exceptions and limitations – are necessary to permit works to be used for the purpose of free speech and access to information, where this does not do unreasonable harm to creators. So too are institutions such as libraries which help avoid the market failure that would result from access to knowledge and culture – a necessary pre-condition for informed debate and a healthy society – being dependent on ability to pay.

In the interests of freedom of expression and broader creativity, copyright should be respected where it works. But where it doesn’t, it should be challenged.

The development of libraries around the world is the result of an understanding that societies are stronger, more creative and more productive when they are literate and informed.

The public domain – the sum of works which are no longer subject to the economic rights included in copyright and so freely available to use and re-use – makes a major contribution to this goal.

While copyright has a de facto role in financing the production and dissemination of professional culture, it is essentially an exception, limited in time and scope, to public domain status. The implication is that in the long-term, free access to and use of works is the default setting for a healthy society.

Libraries work with, and complement, the public domain in many ways – here are just a few:

Making it to the Public Domain: Preservation

A first key role of libraries is to ensure that works survive long enough to make it into the public domain.

Life plus fifty years – and often more – is a long time (more on this below). Libraries have long experience of ensuring that works are collected and preserved for future generations. This is a key public interest activity, repeatedly recognised in law, and one that cannot be left to markets.

IFLA is working at all levels to support copyright reforms that will facilitate copying for preservation, in particular through digitisation. This will require not only permission for ‘format shifting’ – the right to copy works using supports to the original – but also the relaxing of rules on how many copies can be taken.

The explosion of digital content poses a particular challenge. As we underlined in our contribution to the GISWatch report 2016, launched at the Internet Governance Forum in Mexico in December, action is needed to ensure that ‘born-digital’ works are not condemned to early disappearance.

The right to take copies of such works, technical challenges linked to changes in file formats and supports (who can read floppy disks anymore?) and even guidance on how to choose which materials to preserve are all priorities.

Why Wait? Promoting Access to Orphan and Out-of-Commerce Works

Libraries are active in pushing for policy choices that do not turn copyright into a jail sentence.

As the Australian Productivity Commission has recently underlined, there is no correlation between the length of copyright protection and the market life of the vast majority of works. In addition, reforms over the years have created new rights – for authors, illustrators and publishers, for example – meaning that one work can have a number of different rightholders.

The consequence is that when a publisher decides to stop selling a particular work, it does not become openly available to the public – and so a candidate for possible rediscovery and re-use – for many years. This is the problem of out-of-commerce works.

Moreover, getting permission to do this – especially when one or more rightholders cannot be identified or contacted, making the work an ‘orphan’ – can be expensive in terms of time and even resources. This prevents all but the best resourced libraries and cultural heritage institutions from rescuing such out of commerce and orphan works from obscurity.

A first response is to resist any efforts to extend copyright term durations. But in the interests of not turning copyright terms into prison terms, there also need to be simpler, more practical ways of ensuring that works that have come to the end of their market lives can be made available to the public.

 

Outside of the Public Domain: Ensuring Ability to Pay isn’t a Criterion for Access to Knowledge

The regular flow of newspaper articles about how libraries are lending things like tools to their users – besides their value as ‘and finally’ stories – provides a useful reminder of a fundamental role of libraries as concerns books that are still on the market.

In effect, libraries allow for access to knowledge and culture to be open to everyone, without upsetting the balance of copyright. They buy books (often using taxpayer funds), but then allow the community as a whole to read and borrow them. In this way, they ensure that everyone can have access to information, innovation and creativity, regardless of background or resources.

Given the widespread acknowledgement of the importance of access to information, science and culture, but also the fact that copyright is unlikely to disappear as a means of financing the creation and dissemination of knowledge and culture any time soon, the role of libraries seems as important as ever.

 

 

Libraries are natural partners, on both the practical and political level, not only in protecting and enhancing the public domain, but also in pursuing the broader goal of universal and equitable access to knowledge and culture. Follow IFLA’s work to hear more!