Digital Isn’t Different: Learning the Lessons of the Pandemic at SCCR

This week’s 41st meeting of the World Intellectual Property Organisation’s Standing Committee on Copyright and Related rights (SCCR) will take place in hybrid form.

With all but a few delegates attending online rather than in person, we are likely to see little in the way of concrete decision-making.

However, as the only meeting of the Committee this year, there is nonetheless the opportunity to deepen understanding of the situation that copyright law-makers – and those affected by their decision – face today. Through this, they can help lay the foundations for more normative work in future.

Crucially, as this blog suggests, the experience of the pandemic suggests that, more than ever, digital isn’t different, or at least shouldn’t be.

Analogue, but only by omission

Unfortunately, copyright laws have traditionally been designed in ways that do not take account of how digital technologies work. For example, when reading a physical book, copyright does not come into play. However, when you read it on your computer, a local copy is being made, and so copyright.

The same can go when delivering a copy of a book to someone, for example to support research or the right to participate in cultural life. Digital delivery raises many more questions under copyright than physical.

Storytimes too have raised the same concern. Reading to children aloud in a library is, in most countries, uncontroversial, accepted as a key part of promoting reading and intellectual development. However, filming a storytime for remote access implies rights of performance, and communication to the public or making available if put online. Technological measures exist to prevent the widespread sharing of works, allowing

It is by no means clear that the additional complexity associated with digital uses – especially by public interest institutions such as libraries – was intended. Rather, simply, the way in which digital technologies function was not imagined when laws were created.

And given that it can take time and effort to change these laws (and that copyright rarely wins or loses elections), they have all too often stayed the same.

The costs of inadaptation

For as long as physical access to library collection and services was possible, the costs of not adapting laws to allow for digital uses fell mainly on only the share of the population who would struggle to travel.

This of course already had a strongly discriminatory effect against people living far from major institutions, or persons with disabilities.

With the pandemic, and the obligation on libraries to shut-down physical services, whole populations have found themselves in this situation. Access to research, to storytimes, to educational materials needed to take place digitally, or not at all.

Yet copyright laws have not always permitted this, for the reasons set out above. As such, libraries have been prevented from letting their communities use works in the ways they are used to, for example to help students prepare for examples, researchers review existing knowledge, or others seek wellbeing in books.

The brightest spots have been in those countries with more flexible copyright laws, such as in the United States. Elsewhere, there has been some welcome flexibility from rightholders, but this is often uneven, and arguably the ability of libraries to carry out core functions should not depend on goodwill alone.

A bad good idea

Increasingly intensive use of digital technologies has, by bringing about situations of a lack of clarity, opened the door to new efforts to offer licences which ‘give’ the right to make uses of works, such as those set out above.

Licences of course do arguably have a place in giving original access to many digital works, as long as this is not under unduly restrictive terms. For example, a licence that imposes high costs, limited possibilities to grant access, or prevents preservation should be questioned.

However, elsewhere, just because it is possible to offer a licence, it doesn’t mean that this is necessarily the right thing to do from the perspective of maximising public benefit. In other words, in the case of many library activities, these are rights that should – arguably – be given by law, not by whoever manages licences.

For example, licensing storytimes, text and data mining, or ad hoc resource sharing can end up excluding many, leading to a much higher cost to the public interest than gain to whoever is managing the rights.

 

What does this mean for SCCR? Already, work in 2019 (pre-COVID), summarised in a report published last year, underlined the challenge that an inadaptation to digital technologies posed to the ability of copyright laws to achieve their goals.

COVID has only underlined the need to move towards action here, offering libraries and their users a situation that is not only clear, but also fair. An obvious solution is to promote technological neutrality in laws, ensuring that regardless of whether a use is analogue or digital, as long as it takes place under the same terms, it should be treated in the same way.

We hope that, in the case of core library functions, from preservation to the provision of access for education and research purposes, the committee will accelerate its work to provide the legal frameworks and guidance governments need to be able to bring laws into the digital age.

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