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.

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