By Jessica Coates, Copyright Adviser, Australian Libraries Copyright Commitee, and member of the IFLA CLM Network

As we continue the good fight for copyright reform, it isn’t uncommon to be asked – why would libraries get involved with something so political?

But the truth is, in the debates surrounding copyright reform internationally, libraries have for decades been one of the most consistent voices. In fact, in pre-internet days, before the rise of intermediaries, social media and Silicon Valley, librarians and teachers were often the only voices you could find to argue against expansion of copyright.

Copyright advocacy relates directly to our core values as librarians – free flow of information and ideas through open access to recorded knowledge, information, and creative works.  We truly believe that knowledge has the power to transform lives. This core value aligns closely to Article 9 of the Universal Declaration of Human Rights which establishes the right of access to information for all human beings (amongst others). But sometimes copyright gets in the way of this ideal.

As hubs for culture and learning, libraries have a better understanding than most that copyright has two sides – it needs to take into account both the rights of creators to make decisions about their creations, and the rights of citizens to access knowledge. There are several reasons why this balance is particularly important to librarians.

First, there is the most obvious reason – practicality. Overly strict copyright can and does present a significant barrier to librarians doing their jobs. The defaults of international copyright law are set to maximum protection – in most systems, every act of copying is illegal unless it has been made legal through a legislative exception or with written permission from the copyright owner. This applies even to the fundamental activities of libraries, including preservation of cultural materials and supplying material for library users and researchers.

For most libraries, permissions are so impractical as to be impossible – the national collections of Australia, for example, have hundreds of kilometres of unpublished manuscripts, most of which have no known or contactable author. For these and other ‘orphan’ works, permissions are not an option. So that just leaves exceptions.

The digital revolution has only made matters worse. Where once conservation was the main game for many institutions – fighting against the ravages of age on pages and films, modern technologies mean that any institution with even an ounce of resources now focuses on digitally preserving as much as their collection as possible, so that the content remains available even as the object itself declines. And digital preservation requires copying. In a similar vein, where once supplying to a client meant getting a book from the stacks or perhaps mailing it to their local library, it now more often than not means scanning and emailing. Or better yet, pro-actively reaching out to the public through online digital archives and exhibitions.

Thus new technologies have vastly increased the reach of libraries and their ability to meet the needs of even the most isolated members of the public. But it has also put them head to head with copyright laws that tend to assume that any copying without permission – even if non-commercial, private or in the public interest – is unjustified.

And so librarians have pushed for balance – and in most (but not all) countries won – reasonable exceptions to let them do their job. Exceptions for preservation, for the provision of material to researchers, to make older and inaccessible material available online, to run exhibitions. Or flexible exceptions broad enough to cover all these activities.

But exceptions for libraries only do half the job. What is the point in libraries spending millions of dollars getting their collections online, if those collections can be used for little other than passive reading? This is why librarians have also long been strong advocates for the rights of others – researchers, teachers, their clients, creators – to be able to make reasonable use of the materials they provide them. Australia’s amazing Trove resource makes over 18.5 million pages from the national collection of newspapers from the first newspaper published in 1803 to selected titles from the 1980’s available online for anyone to see. But at the moment it’s illegal for the public to do much beyond reading these – family historians can’t legally use snippets of them in blog posts, academics can’t reproduce them in published papers, and authors can’t quote them in books – without the author’s permission.

Librarians of course love creators and want to support them to achieve as much financial success as they can – librarians and creators are part of the same eco system which facilitates access to knowledge and ideas. You’ll be hard-pressed to find a librarian who didn’t start as a book-geek, reading themselves to sleep every night, and libraries spend hundreds of millions of dollars a year on new book purchases, e-resources, subscriptions etc. But they also recognise that an academic quoting 3 lines from a letter to a famous figure is not going to cause financial hardship to a creator or rights holder. They see that the rights of authors, important though they are, need to be balanced against the public goods of free speech and access to knowledge. And yes, even the rights of other creators, so that future authors can build on the past, and our cultural lives aren’t smothered by laws that only look at part of the picture.

This is why around the world you’ll find librarians at the forefront of advocacy for more reasonable and flexible copyright exceptions. They are fighting for the rights of us all – to access and use the knowledge and culture that surrounds us.

The concept of exclusive author’s rights has undoubtedly shaped the creative economy of today. By turning creativity into an investment good, it has reduced reliance on rich sponsors to cover costs, as used to be the case in the art market for example. Instead, the focus of efforts to cover costs is on charging for access to, or use of, a work. On the back of this, an industry has emerged, built around the management (i.e. making money from) of rights, with a view to recovering costs and maximising profits.

 As frequently set out in the news page of IFLA’s own Advisory Committee on Copyright and other Legal Matters (CLM), and many other blogs, websites and other fora, there is a long-standing tension as to how to achieve the right balance, in the short- and long-term, between rightholders and users. Specialists in the exploitation of rights play a key role in these discussions, usually to defend the primacy of copyrights over exceptions. On questions such as copying, lending, and making works available online, this is a valid discussion.

 However, there is also frequently a tendency to try to use copyright to ‘solve’ other issues. Given the broad scope of copyright – all but the most basic forms of expression – it is necessary to take extreme care in applying it outside of its original purpose. In short, and as the rest of this blog will suggest, there are many questions whose solutions definitely should be out of copyright. 

Fake News: The economic situation of the ‘quality’ press has been one of the most dramatic stories of the last few years. While some have established paywalls, others are now competing for attention, and so advertising revenues with websites which knowingly share stories which play to populism, regardless of facts. This shift to the attention-grabbing is, arguably, one of the reasons behind the ‘fake news’ phenomenon.

 So what does copyright have to do with this? In Europe, press publishers (and some MEPs) have argued that awarding new rights could provide an income boost that would help pay for quality journalism. The target? News aggregators such as Google News and other smaller companies, in the hope of claiming a share of the spectacular revenues they are earning.

 The problem is that new rights would not only create revenues for the ‘quality’ press, but indeed for any news website, regardless of how well researched its content is. By attacking news aggregators in general, a vital means of allowing readers to understand the different perspectives taken on a given issue would be under threat. Difficulties in enforcing legitimate rights could be solved by a presumption of representation, saving time in proving the legal standing of the publisher. An imbalance in power between commercial operators should be a competition issue. Copyright is certainly the wrong tool.

Privacy: a bizarre connection was made in the context of discussions about Cambridge Analytica in the European Parliament. A blog on this subject has already appeared on this site, but in short, the argument was that the sort of illicit use of personal data harvested from Facebook users seen in this case could have been avoided if publishers were allowed to claim revenues for licensing text and data mining.

 There is much to be said for individuals understanding how their data may be used when signing up for services such as Facebook, and recent EU legislation promotes ‘data ownership’ – i.e. the right of individuals to decide what happens with their own data. But this is not a copyright question. 

 Indeed, zealousness in monetising and protecting copyrighted works may even pose a threat to privacy. New technology creates the possibility to monitor how individuals use works, for example which pages or chapters of a book they are consulting, what analysis they are performing (in the case of text and data mining), and even the speed at which they read different elements. In effect, copyright is used as an excuse to look over a readers’ shoulder in order to harvest data that can be monetised.

 As set out in IFLA’s response to the call for contributions on privacy in the digital age, such monitoring can have a chilling effect on free access to information. Copyright should not be used as an excuse to invade privacy.

Piracy: the Internet has certainly changed people’s expectations as to how easy it should be to access works. Where this access is seen as too expensive, or too complicated, users have often turned to piracy. This is undoubtedly illegal in and of itself. Much progress has been made where those managing rights have understood the need to provide easier access, for example through platforms such as Spotify or Amazon, or through maximising options for free access (see Clarivate’s purchase of Kopernio).

 In parallel, there are legal efforts to crack down on those who make money from pirating goods. The concern comes when the focus of these efforts is less on those committing piracy, and more on the platforms that they use to do these. Where these platforms are also massively used for legitimate purposes, such efforts risk causing significant collateral damage.

 In many countries, ‘safe harbour’ provisions offer protection to platforms, ensuring that they do not face liability for the actions of their users, as long as they respond to requests for content to be taken down. Yet these provisions are under attack, with calls for the conditions allowing sites to benefit from ‘safe harbour’ rules to be tightened, with, for example, an obligation to filter all uploads to check for infringement. The potential impact, for example on scientific or educational repositories, most of which will not have the funds, or the inclination to vet everything uploaded by users, could be disastrous.

 Where there is piracy, the focus should be on better enforcement of existing rules, not on creating new ones. Once again, new copyrights are not the answer. 

Text and Data Mining: digital technologies – and in particular the ability of computers to understand data and text – have opened up the way to far quicker analysis of scientific research, as well as any other digital materials (photos, Tweets, news stories…). Whereas a human reader needs time to read, understand, and extract meaning from an article, a computer can do this almost instantaneously, making it possible to draw on a much greater range of materials.

 Text and Data Mining (TDM) is already leading to new discoveries, spotting connections and trends that would only have been possible before with an army of researchers. It also underpins artificial intelligence, one of the most promising fields of technological progress today.

 What’s the link with copyright? Doubtless realising the potential value to researchers and others of TDM, publisher organisations are resisting efforts to clarify that mining activities should not be subject to copyright. This flies in the face of the Berne Convention, that underlines that mere facts – data – should be excluded from intellectual property protection.

 As library organisations have frequently underlined in discussions in Europe, once there is legal access to a work (i.e. because it is freely available online, or where a subscription has been paid), there should be the right to analyse it. In short, the right to read should be the right to mine. Datasets created for the purposes of TDM need to be preserved in order to ensure that others can verify the results of analysis.

 Where there are questions about privacy, data protection laws should apply. Where information has not been accessed legally in the first place, anti-piracy laws exist. TDM itself should be out of copyright. 

Free Speech: the right to review – and critique – underpins free and open public debate. By discussing ideas, and taking them apart, it becomes possible for new ones to emerge. From formal news programmes to individual blogs and Twitter, quoting and reusing copyrighted works is essential not only to democracy, but also innovation and satire.

 Yet there are documented cases of copyright being used to stifle free speech. Setting aside the clearly fraudulent, there are worrying cases of companies and others claiming infringement when their works are cited in the context of critique or review. For libraries encouraging users to move from being consumers to creators, for example by producing book reviews, research, or remixes, there is the real possibility of facing copyright restrictions.

 This should not be the case. If criticism is unfairly harmful, there are defamation laws. Copyright should have nothing to do with free speech. 

Amazon’s Dominance: Finally, it is certainly true that Amazon has caused immense disruption on the book market, and shifted a large share of sales away from traditional booksellers. That ‘bricks and mortar’ bookshops retain their relevance has been underlined by the fact that the same company is setting up its own physical outlets.

 In parallel, Amazon was also quick to move into the eBook market, capturing a large share of sales, and also offering its services to people wanting to self-publish. With its own eBook tools, it has also been able to capture a large share of the value of eBooks from other publishers.

 The result is a highly mixed picture – of harm to booksellers, but also the empowerment of new authors to reach readers. What is clear is that copyright is, again, not a solution to the position of Amazon. As with fake news, if one player in the market is so big that they can force others to do what they want, this is a competition issue, not a rights one.  

A cancelled plane provided the opportunity to attend Day 3 of the Creative Commons Global Summit, and a great chance to hear about what the movement is doing to build on the 1.4bn works already under CC licences, as well as some of the threats bad policy can pose to this.

The challenge faced – how to help people find and make use of this wealth of content – is familiar to libraries. And many of those most active in the discussions worked in libraries, both in organising knowledge, but also in helping users build new ideas and innovations on top of this.

This work is timely. Cultural heritage institutions are increasingly under pressure to show the impact of their work and collections. Digital humanities techniques allow researchers to uncover meaning and spot trends in heritage documents. There are new possibilities to draw on (remix) works to create new ideas. And as IFLA underlined in the Development and Access to Information Report (in partnership with TASCHA), meaningful access includes the ability to apply, share and create.

Creative Commons’ latest efforts focus on developing both a catalogue, and a search function that will enable users to immediately find works that they can use – and re-use – freely – a major effort. The idea of an Open GLAM (Galleries, Libraries, Archives, Museums) platform will be one to follow.

Wikipedia is also working on similar projects – notably through encouraging cultural heritage institutions to upload information about their collections. And of course every digital library project, notably DPLA and Europeana – is involved in this same mission. There are also efforts to understand the difference they make – their impact – and we’re looking forward to a session on this subject at WLIC.

Other sessions provided a reminder that for all of the positivity and proactivity of Creative Commons, the need to engage on legislative reform is still pressing. These reforms can provide both an opportunity – and a threat – when it comes to possibilities to preserve, copy and re-use works.

A particular concern is efforts to make compensation for rightholders obligatory. While this may be intended to protect artists from losing their rights to publishers or record companies, it also makes open licensing effectively impossible. For Creative Commons this is a big concern.

These provisions can appear in domestic reforms, or through trade deals. While there is some evidence that copyright reforms are beginning to take account of the need to support access and use, trade deals (often informed by discussions only with industry groups) often remain harmful. Progress at the World Intellectual Property Organisation could help halt the erosion of rights at the global level.