Looking Ahead on Copyright in 2022

Even as it has added new complexity to law-making, the COVID-19 pandemic has shone a new light on the way that copyright regimes work, and how well able they are to flex to match an uncertain and changing world.

That they need to accommodate digital is clear, but there is still resistance to reproducing the sort of exceptions that already exist in the physical world. In some countries, worryingly, there is a growing readiness to attack libraries publicly around copyright issues (even on the basis of weak misunderstanding), something that perhaps betrays new levels of fear about the future. At the same time, there are new ways to enforce rights, stronger than those that existed previously, which in turn have their own potential consequences for libraries. Finally, there is the ongoing concern that zeal to regulate major internet platforms may have major negative consequences for non-commercial operators – both libraries themselves, and the platforms they rely on.

These issues will be felt first and foremost in public debate, but in particular in those countries where reforms are underway. In particular, this is the case in Australia, Nigeria, Namibia, Hong Kong (China), South Africa and Brazil, and we await the results of consultations in Canada. The European Union will also advance work on digital platforms, which is likely to shape approaches elsewhere, not least discussions in the United States with strong implications for how copyright is enforced on platforms.

It looks set to be another busy year.

Onsite vs Online Access: the combination of a pandemic that has forced the physical closure of libraries and laws that do not allow for remote access to library collections has proven frustrating over the last two years. Libraries, despite having legitimately acquired books and other materials, have been prevented from allowing their communities to use them. In many countries, digital access is still limited to computers on library premises – a complete non-solution in COVID times.

However, there are moves in a number of countries to extend the way in which we understand libraries (or other institutions, such as schools) to include remote access. In some cases, this is limited to those people who are affiliated in some way – for example, the European Union’s Directive on Copyright in the Digital Single Market proposes that access can take place through secure networks. Proposals in Australia only talk more broadly about taking reasonable steps to avoid infringements, with restricting use to registered library users mentioned as one means of doing this.

The possibility for libraries are able to give access to their collections digitally is certainly something that we can hope see advanced in 2022, drawing on the lessons of the pandemic. The traditional argument that the need to visit a library represents a sort of ‘friction’ that means that libraries do not compete with the market was already questionable, firstly because this ‘friction’ would be felt more by some than others (not people living far from a library, or with disabilities), but also because the substitution effect of library lending for sales still has not been conclusively demonstrated (and indeed, lending may well support sales).

Tensions grow: the state of relations between libraries and publishers has swung back and forth in recent years, with the low point of the embargo imposed by Macmillan rapidly replaced with much more positive news as the world entered lockdown, and wider and cheaper access was offered. However, and perhaps inevitably, special offers have not necessarily lasted, and the old challenges – refusals to license, restrictive terms, and high prices – have returned to the scene. With libraries likely to continue doing a lot of work digitally, the costs and terms associated with digital content will only become more important.

There has been notable success on both sides of the Atlantic in the past year, with a number of states in the US passing laws enforcing the right of libraries to licence eBooks under reasonable terms, while a similar proposal made significant progress in Germany before elections got in the way. However, these efforts have faced angry and frantic opposition, leading the Governor of New York state to veto a bill there. In Germany, a public campaign was even launched by rightholders, opposing calls for reasonable access to eBooks.

In the meanwhile, we have also seen strong opposition (including an anthology) to a move that would have allowed access to books that the National Library of New Zealand would otherwise have had to divest, effectively placing the principle of copyright over books that were long out of print ahead of their ongoing retention or access.

Sadly, these campaigns seem often to be built on a misleading presentation of what is being called for by libraries, and a disregard for the importance of equitable access to information. It has to be hoped that 2022 will be a year of greater readiness to step back from dramatic arguments, and to focus more on finding an optimal situation for all.

Zero tolerance: copyright offers very extensive powers to those who hold it, both in terms of what they are allowed to control, and the duration for which they can do it. In a physical world, many of these powers were hard to enforce – traditional means of copying did not leave a trail, meaning that enforcement efforts focused on significant commercial infringement. Furthermore, the challenges involved with going through the courts similarly meant that it was not worth trying to pursue smaller players.

However, technological tools have long since brought in new possibilities to monitor use and potential infringements (even if the long discussions about upload filters in the context of the Directive on Copyright in the Digital Single Market made clear that such filters are far from able to determine whether a use is legitimate or not), leading to what was already described in 2018 as the ‘demise of toleration’. Added to this, the creation of ‘small claims’ courts in the US makes it easier, potentially, to pursue smaller operators.

Coupled with the rhetoric that every use of a copyrighted work requires compensation (which conveniently ignores both the emphasis on ‘free uses’ in the Berne Convention, and the establishment of rights of access alongside rights of compensation in the Universal Declaration of Human Rights), this potentially opens the door to increased efforts to penalise any infringement (or perceived infringement) of copyright severely. A key expression of this is likely to be in the types of platform relation increasingly being in different countries around the world, following the model of the EU’s Directive on Copyright in the Digital Single Market. The pressure will be on platforms to take on the sort of policing role usually left to public authorities, with the expectation that they use technological tools to spot infringements, even only very minor ones, or those carried out in good faith.

Crucially, in addition to having a chilling effect on decisions around using copyrighted works, this approach may well also serve to deepen inequalities, with only better funded players able either to take the risks, or to pay for broad licences which offer them adequate protection against liability. It will become all the more important to ensure clear rights for users, as well as protections for libraries and others when acting in good faith.

More blockchain: with new money flowing into ‘web3’ business models, we’re likely to see a resurgence of talk about how blockchain might be used. Clearly, web3 in general has its critics, ranging from those who question how novel it is, to those who ask what difference it is likely to make in reality, or who point out the risks of it concentrating power in the hands of those who already have it.

However, with potential investment funding available, as well as confused attempts to turn copyrighted works into non-fungible tokens (or at least to link the two), there remains the underlying concern that a shift to blockchain and a model focused on using technology, rather than law, to set out the rules of the game risks undermining the role of governments in ensuring fairness.

Of course, with many arguments for web3 based on a sense that institutions are untrustworthy – and indeed that we need to get rid of the need to trust, and instead be able to depend on things happening correctly – it is perhaps normal to want to exclude government. However, copyright in particular depends on achieving a balance that, it feels, blockchain and micro-contracts may struggle to achieve. The risk is that web3 applications rigidly enforce the ‘rights’ side of the picture, without considering the exceptions on which libraries and users depend.

Avoiding collateral: finally, and following a point already made above, the drive to regulate platforms will continue apace in 2022, with the European Union’s Digital Services Act and Digital Markets Acts scheduled to be agreed, ongoing drives to reform Section 230 in the United States, and the subject coming up regularly in reforms elsewhere.

Major internet platforms are tempting, and often well-justified targets, given their significant market power, and degree of control over so many aspects of people’s lives. Breaking them up, or imposing stricter rules that allow users greater freedom to move and choose, may well be positive outcomes for societies as a whole. Indeed, their power is one of the things driving interest in web3 mentioned above.

At the same time, in the excitement of efforts to regulate platforms, it can be all too easy to apply major new restrictions or liabilities on much smaller, non-profit entities which operate platforms, such as repositories or digital libraries, book review sites or similar. These are clearly not in any position to take on the same sort of responsibilities as multi-billion dollar companies – for example to implement filtering technology, or to respond to notifications within hours or even minutes.

The challenge is that those calling for reforms too often have little awareness of the risk of collateral damage, or even interest in preventing it. An important role for libraries and others in 2022 will be to make sure that the lawmakers involved in this work do understand the implications of the decisions they make, and ensure that in looking to regulate the power of platforms, they do not end up causing harm to education, research and culture institutions and infrastructures.

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