Tag Archives: copyright exceptions and limitations

Copyright: a driver of internet fragmentation?

It can often feel like governments are playing catch-up with the internet.

As digital technologies play an increasingly indispensable role in everything we do, the risks that they also bring are becoming clearer. As a result, there is pressure on decision-makers to ‘do something’, in order to respond to increasingly widespread concerns.

The problem is that the internet is, by its nature, a global infrastructure. Much of its value and potential to support education, research, understanding and more comes from the possibilities it offers to access information across borders.

When decisions are taken nationally, they often differ. This can be for reasons of political priority, legal tradition, or simply the capacity that governments themselves have to design and implement legislation.

This runs counter to the logic of the internet as a unified infrastructure. Where there are different rules, there are barriers and uncertainties, not least for those sharing ideas and content online who understandably do not want to face legal liability.

This is called internet fragmentation, and has been highlighted as a key issue in recent efforts to intensify global work on internet governance, not least in the UN Secretary General’s work on Digital Cooperation, the ongoing Global Digital Compact, and most recently, as the first key priority of the Internet Governance Forum (IGF) Leadership Panel for this year’s IGF in Kyoto, Japan.

Typically, concerns about internet fragmentation focus on the way in which rules around data transfer (for example, prohibiting flows outside of borders), or forms of privacy or platform regulation that tend to discourage offering services across borders given the risks faced.

However, one driver of fragmentation not necessarily so often talked about is the way that international copyright works today.

The unseen divider?

In some ways, this is ironic. The original logic behind regulating copyright internationally – through the Berne Convention and the texts that have followed – was that for it to be possible for authors (or more likely, publishers) to be able to sell books into another country, they needed to be sure that they would receive a good measure of protection there.

As such, the argument is made that copyright is essential for markets to work across borders, and indeed the IGF Leadership Panel’s contribution to the Forum this year underlines the value of respecting intellectual property rights.

However, copyright as a whole is made up not just of rights, but also the limitations on them. In addition to the length of time they last, there are exceptions allowing for activities such as quotation, news reporting, education, preservation and research.

These offer a safety valve, helping to ensure that the monopoly rights created by copyright are balanced by public interest concerns. Otherwise, the logic of profit-maximisation risks prevailing, and the benefits of learning, innovation and safeguarding heritage are forgotten or discounted.

However, while international copyright law is prescriptive about what minimum rights should be guaranteed, it leaves far more flexibility when it comes to exceptions, and is silent around cross-border working. As a result, there are as many sets of copyright exceptions as there are countries in the world.

The impact of this is just the same sort of uncertainty and caution about cross-border working as characterises other drivers of internet fragmentation.

Variance in copyright exceptions not only holds back librarians, as well as archivists and museum workers from cooperating across borders, for example in the context of research collaborations or online and distance learning, but can also be a driver of inequality. If researchers are expected to travel to access a unique source or collection, only the wealthiest are likely to be able to do this.

The result is just another example of internet fragmentation, and a particularly serious one in that it most directly affects key wider drivers of sustainability – education, research and cultural participation.

What solutions?

It is not impossible to imagine how work at the international level can combat internet fragmentation when it comes to copyright. We already have an example in the Treaty of Marrakesh, which removes unnecessary barriers to making and sharing accessible format copies of copyrighted books and other materials, including across borders. In essence, this was a response to a form of internet fragmentation that was leaving people with print disabilities in many parts of the world facing a book famine.

This is a strong pointer to what is possible when we take as serious approach to enabling internet-enabled research, education and cultural participation as we do to creating markets.

The two are not in contradiction of course – in many countries, including among the richest and most innovative – rights co-exist with modern and flexible exceptions. Replicating this experience globally is likely also to help give copyright more legitimacy, ensuring that there are legitimate channels for meeting needs, rather than resorting to piracy as many current feel forced to do.

While the home of the Marrakesh Treaty is the World Intellectual Property Organization, a strong impulsion for this was the UN Convention on the Rights of Persons with Disabilities. It is not unreasonable, then, to expect that ongoing work around the need for a unified and unfragmented internet should lead to a new drive for a truly balanced international copyright framework.

The 2023 Internet Governance Forum, alongside the ongoing process around the Global Digital Compact and work towards WSIS+20 offer a great opportunity to push for this to happen.

Beneath the surface: reflections on some of the themes underpinning debate at SCCR42

Last month’s 42nd meeting of the World Intellectual Property Organisation’s (WIPO) Standing Committee on Copyright and Related rights (SCCR) was, at the same time, a breath of fresh air, and a return to the norm.

It was certainly welcome to be able to engage, once again, with delegates in person. Fora like WIPO offer great opportunities to interact with government representatives in order to understand more clearly their priorities and concerns, and to share the experiences of libraries.

There was also, thanks to the initiative of the African Group, the first Member State-led effort in many years to define and drive forwards the agenda on exceptions and limitations to copyright for libraries, archives, museums, education and research.

While only a part of the proposals made it through this time around, it is very positive news that libraries and their users can count on some governments at least to defend their interests.

This same point is, at the same time, also a reason for some disappointment. Despite the extreme caution in the proposals to adhere to consensus positions previously stated in the Committee, some groups – notably richer countries, continued to look to emaciate any effort to move SCCR in the direction of work that would bring benefits to libraries and their users.

While the rest of the African group proposal remains on the table for the next meeting, it was only a proposed information session on cross-border working, as well as a toolkit on preservation that had already been in the works, and a scoping study on a research toolkit that made it through this time around.

In their resistance to progress, developed countries could cite the support of rightholder organisations that looked both to warn against any extension of limitations and exceptions (L&Es), and which suggested that the status quo – at least as concerns L&Es – is adequate.

So why was this the case? This blog looks to explore some of the underlying themes which can help explain this situation.

We are not always talking about the same thing when we are talking about copyright: during exchanges between Member States, observers and experts, it became clear that two definitions of copyright were in use.

The narrower one sees copyright as being only about the exclusive rights given to rightholders, for example to reproduce, translate, or use works. The wider one – used for example by Professor Raquel Xalabarder – looks at copyright as a wider system, incorporating both rights and exceptions and limitations to them.

The argument for a latter approach is based on the core goals set out in texts such as the Berne Convention and beyond – i.e. that copyright should serve to support the production and dissemination of new ideas. Given how important access to and use of existing works is to the production of new ones, it makes sense that copyright needs to be seen as including the L&Es that allow this.

This wider approach is welcome, representing a more enlightened and constructive approach that of course takes account of the contribution of libraries. It also helps us get beyond the tired and blinkered cliché that any non-remunerated use of works is tantamount to stealing.

There remains, in some quarters, a refusal to accept that the public interest should be considered: a revealing statement was made by one observer from a rightholder lobby during discussions, when he argued that the public interest should never come at the expense of that of rightholders. This explicit argument for an unbalanced copyright system is something that you rarely hear spoken out loud.

This highlights the need for spaces like WIPO where governments can indeed take into account arguments from different perspectives on the way in which copyright systems should be designed, if they are to achieve their goal of delivering the best outcomes for societies as a whole.

This is not of course to say that protection of the interests of rightholders is not in the wider public interest. It is, up to a point. However, when the marginal benefits of protecting these private interests are outweighed by the costs to society of denying access and usage possibilities, governments need to act.

There is an assumption that while access concerns should be balanced by rightholder concerns, rightholder concerns should not be balanced by access concerns: closely linked to the previous point, the structure of the research report presented during the information session on the first day of SCCR is telling.

The first half of the report focused on the experience of rightholders during the pandemic, and how in particular the shift to digital had impacted the revenues of different categories of creator and intermediary. This underlined the hardship that many in the book sector had studied, but then presented, uncritically, the steps taken by some publishers at least to facilitate access.

The second half talked about libraries, archives, museums, educators and researchers. Beyond a tendency to indicate that the real problems lay outside of copyright, for example in funding (a point which is partially true, but does not take away from the need for copyright reform), the report felt the need to suggest that enabling libraries to do their jobs better in a digital world nonetheless should not come at the expense of rightholder interests.

This is revealing, sadly underlining a presumption – a prejudice even – that somehow the interests of libraries and their users need to be balanced, but those of rightholders do not.

There is a challenge around the supply of digital content, but is freezing work on L&Es the answer?: a fundamental question raised by both ‘sides’  of the debate – and which the WIPO Secretariat to their credit has certainly recognised – is that an key underpinning issue is the fact that there simply isn’t enough affordable, accessible, digital content out there.

Given the size of the internet, this may seem like an odd claim, but for many in schools and research centres, it is the case, with materials either stuck behind unscalable paywalls, not available in relevant languages, or simply not existing on topics and contexts that matter.

Advocates for rightholder organisations suggest that a key factor in this undersupply is a fear that if works are made available in digital format, they will be pirated, and demand for them will evaporate. As a secondary argument, they also claim that digital-adapted L&Es will also suppress the market.

Of course, the first question is one of enforcement, not basic copyright laws, while the second goes back to the arguments above about the degree to which the work of libraries strengthens or weakens markets for books and other materials.

The counter-argument here of course is that libraries offer an excellent means of providing access to digital content in a way that can be better controlled, using effective tools, and of course that the work of libraries represents a guarantee of research, innovation and creativity in the future, not a threat to it.

Indeed, we can argue that this is rather a failure of the market to respond to demand, driven perhaps by a lack of capacity, but also perhaps by fear and uncertainty among actors who more or less control the market.

This is not the first time that WIPO has addressed the issue of the under-supply of content in formats that work for readers. It’s exactly the challenge that the Marrakesh Treaty looked to overcome.

While international legal action around L&Es remains only one of the options on the table for now to resolve this failure (although arguably, there’s no other way of dealing definitively with challenges around cross-border working), it would undoubtedly have a strong triggering effect on national legislation.


This blog has looked to provide insight into some of the assumptions and understandings that explain position taken, and outcomes achieved, at SCCR. Addressing them, and finding solutions, will need to be part of any ongoing strategy to achieve progress.

As a final point, of course, it is worth noting that copyright can of course tend to polarise, whereas on most issues, the interests of rightholders, libraries and their users converge. Setting aside pure profit motives, we all, deep down, work towards a situation where there is a rich production of relevant materials, and literate, curious populations that are eager to read and apply knowledge. Despite the various points of disagreement in fora like WIPO, it is good to remember that we are all there for the same ultimate purpose.

WIPO SCCR/42: Why broadcast matters

This 9 – 13 May, I attended the 42nd meeting of the World Intellectual Property Organization’s Standing Committee on Copyright and Related rights (WIPO SCCR/42 for short). For a week, national delegates, expert panels, and observing civil society organisations (CSOs) like IFLA and rightholder groups discussed the impact of COVID-19; the WIPO African regional group’s proposal for a workplan on limitations and exceptions; broadcast rights; and other odds and ends for some 40+ hours’ worth of meetings, coffee breaks, and side discussions. Conversations advanced and  some commitments were made – including items on studies and toolkits on copyright limitations and exceptions.

It was my first trip to Geneva, so it was the first time I experienced the process. WIPO is the World Intellectual Property Organization, and indeed ‘IP’ is the general framing of Why We’re All Here. Creative outputs and patents are primarily considered valuable because they’re monetizable. The affective dimension (whether you ‘like’ a book) or the work’s value for humanity as a whole occasionally peaks through when civil society organisations (CSOs) or expert panels re-frame the issues, or (as happened twice, by my count) one of the invited artists on a panel delivers an a Capella performance.

By contrast, imagine a framework that began with ‘art and information are good, and people should have better access to those things’. It would be a very different conversation, for example, than that presented by WIPO’s expert report on how COVID-19 affected rightsholders and cultural institutions. There, the ‘Cultural Heritage Institutions, Education and Research’ section contained language about balancing access with rightholders’ interests that were largely absent the other way around from the rightholder sections.

In the observer section of the main room, CSOs sit alongside industry organisations. We’re there to represent our constituents’ interests and have our views heard, but it’s up to the delegates to make the votes.  The ‘rightholder’ side tends to represent publishers, record labels, and other aggregators and content distributors moreso than creators directly. The tension could be felt, for example, during Thursday’s presentations on streaming music in which expert presenters underlined that compensation was scarce for non-featured artists.  This tracks with online discussions I’d followed, along with standard-issue rock-n-roll lore about bands’ conflicts with their labels.

This is all also to say that delegates are engaged in a delicate push and pull between interests, and from the rightholders (and to some extent, us CSOs), like shoulder angels and devils, there can be an adversarial tendency to avoid wanting to lose any ground. So, with regard to limitations and exceptions to copyright – which enable libraries and individuals to lend, share, and make use of all kinds of material – the ‘opposite side’ can sound a bit like Groucho Marx laying out his platform on ascending to the university presidency in Horse Feathers – ‘whatever it is, I’m against it.’

(Side note: while I was unable on a quick search to locate the copyright status of Horse Feathers, the Marx Brothers were once themselves fined $1,000 for copyright violations; Groucho also responded to Warner Brothers’ fears that the then-forthcoming A Night in Casablanca [1946] would infringe on their film Casablanca [1942] by jokingly threatening a counter-suit over the word ‘Brothers’. Copyright has never been easy to sort out, or straightforward.)

Back to the Statute of Anne (1710), the first copyright law, copyright was intended to be a broad ecosystem that protects rightsholders’ right to compensation, and the public interest in having access to and working with materials. This includes the right to quote (on an obligatory basis), as well as possibilities to make a copy of a chapter, to use in the classroom, to offer commentary, to remix in ways not in competition with the original work. A robust copyright system enables different interests to be represented.

In respect to these positions, there are many good reasons for strong limitations and exceptions – including with respect to the broadcast rights, which came to the fore on the Tuesday and Wednesday in discussion of the Broadcast Treaty, which aims to protect broadcast signals (the medium, not the content). It has been under discussion since the late 90s.

Going forward, IFLA plans to highlight the importance of limitations and exceptions to preserve the right to archive and preserve broadcasts. Preservation shouldn’t have to be the sole responsibility of increasingly conglomerating commercial entities most immediately concerned with short-term profits. Cultural institutions are well equipped to collect, curate, and make available – if they don’t face dissuasive economic and administrative barriers to doing so. Here, archives and rightsholders have slightly different, but complementary & related interests. A key question, if you’re making content is: do you want your work to be accessible a few decades down the road?

One need only look to how much things have changed SINCE the broadcast treaty entered onto the agenda in the late 90s. For consumers,staring at screens in their homes, this period saw changes from standard definition to high definition, and from VHS to DVD (with detours into VCD in Asia) to Blu-Ray to streaming. Once-ubiquitous CRT monitors are currently a fad for retro gaming, as graphic designed for their slightly blurry displays and can look disconcertingly jagged on a modern 4K OLED, where every single one of the 8,294,400 pixels can show a different colour from its neighbour. Radio stations consolidated or went out of business. Long-running shows end, inevitably – and have to find archival homes for their collections or junk them. You’re lucky today to find equipment today that plays old consumer, professional and semi-professional storage formats, or to access files on the editing hardware and software from eras past.

This is all living memory, and underscores how difficult it is for people to  ‘watch’ TV like they did 25 years ago. To preserve that content and experience, archives play a key role – and need broad flexibility to capture, store, back up, and engage with content amid these changes. Sometimes, cool discoveries are made – like the recent find of a Minnesota TV station in their archives of a video of the musician Prince, at age 11. We can share that this discovery happened, beyond a local TV station, in part due to broad access rights.

As these discussions continue, support libraries! Please don’t create new barriers to preservation through new rights and impositions, but rather support proper exceptions and limitations to help libraries, archives and other institutions do their jobs preserving content and making it accessible.

Matt Voigts, Copyright & Open Access Policy Officer

COVID-19 Impacts on Cultural Industries and Education and Research Institutions: Key Questions from the WIPO Report

Tomorrow, the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) will hold an information session on the impact of COVID-19 on the cultural and creative industries, on the one hand, and on education and research on the other.

This follows requests from Member States at the previous meeting, conscious of the need to make sense of the experience of actors affected by copyright – either as owners, or as users, of relevant materials. While the meeting formally takes place outside of the SCCR agenda, its place at the beginning of the week will mean that it has the potential to shape discussions over the following days.

To support this, WIPO has published a commissioned study, based both on a series of responses to a call for evidence, and interviews with experts in different countries. The terms of reference for the study have not been shared, but it looks both to tackle the broader question of experiences (as mandated by the last meeting), and to cite case studies of initiatives taken (which goes beyond the mandate).

Ahead of this session – which will be available on WIPO’s webcasting service – this blog looks at some of the questions and issues raised by the report (intentionally or otherwise), and which the meeting tomorrow can hopefully address.


Public spending needed… but on what terms?

A consistent message from the report is the sense that governments need to step in to provide financial and other support, to institutions, businesses and individuals working with copyright where these would otherwise risk disappearing or disengaging. The report underlines in particular that the pandemic has represented a major shock to those actors depending on in-person engagement and activities, such as concerts, author events, or museum visits, as well as events where much business is done, such as book fairs.

Some – but not all – governments have of course taken action to help otherwise viable businesses from failing. The report underlines that more could and should have been done however, with independent authors in a particularly tough situation.

Looking forwards, however, this does raise the question of how to ensure that this support has maximum positive impact. Beyond the preservation of employment, how can this serve to support public interest goals, such as access to education, research and culture?


Digital here to stay, but how?

The report is clear about the fact that the shift to digital is going to be a lasting phenomenon, raising the question of how to ensure the sustainability of digital activities. It underlines components of a response, including efforts to get more people online, training and support for digital maturity, and new policy approaches in general.

A crucial point made is that libraries themselves have invested significantly in digital content – often paying again for the same material that they had already bought in physical format. Clearly, it cannot be sustainable for libraries to pay twice for the same things.

In terms of recommendations, the report does highlight the need to ‘provide clarity to institutions and organizations regarding the copyright implications of moving towards a digital world, and to evaluate appropriate means and innovative ways to make digital uses easier’.

Of course, this could be read either as a case for providing more flexible exceptions and limitations that adapt to needs, or for facilitating licensing. It is to be hoped that COVID will not be used as an excuse to extend the reach of licensing at the expense of the sort of free exceptions that libraries have traditionally relied on extensively, draining their resources.

More worrying is the suggestion that copyright for digital works should be tighter than that for physical ones (i.e. have weaker limitations and exceptions) in order to protect investments. This is to argue that there is less need to protect possibilities for education, research and cultural participation online than in person.

This of course flies in the face of the argument that rights offline should also be protected online, and indeed the case made by the UN Secretary-General that more effort is required to ensure that it is not only the decisions of private companies that should determine what we can and cannot do digitally.


An under-supply of digital content

A persistent issue is the lack of digital content available, especially in developing regions. The report suggests that this is sometimes due to a lack of capacity, but can also be the result of a conscious choice by rightholders not to make works available in digital form, for example due to apparent fears of piracy.

This raises a serious issue about the functioning of markets, and whether it really serves societal interest for works not to be sold in a form that works for people who may not be able to access libraries or bookshops, or even work with physical copies of books. The report suggests more licensing, but this has been a possibility for a long time, and does not seem to have delivered.

Instead, it’s worth remembering that it was the under-supply of accessible format works that underpinned the Marrakesh Treaty, which opened up the possibility to carry out format-shifting of works to make them accessible.

A parallel argument is that the ability of creators themselves to use digital platforms could be a useful area of focus. This is an area where libraries, through providing public access, can indeed help, although to do so need to have the necessary resources to offer such services.


Impacts are varied

At least terms of market impacts on different sectors, the story varies. For example, while extensively citing European research suggesting that the publishing sector there suffered strongly, it notes that publishing in the United States continued to grow. The US of course is characterised by a very flexible copyright regime – fair use – while another country whose model is celebrated, Canada, is also under regular attach from rightholders for the flexibility of their education exceptions.

In addition, the pandemic is reported as having been particularly hard for authors who, in addition to the impacts of falling sales (where sales actually fell), also missed out on other opportunities to earn, such as book fairs and signings. The same goes for performers, and people working as freelancers or on temporary contracts. This does raise questions about terms of employment, and what can be done to ensure fairer distribution of revenues to those missing out.


Anecdotes and rules

A point alluded to in the title is that the focus on examples of initiatives in the report goes beyond what was in the mandate proposed by Member States. This is of course valuable in terms of providing illustrations, but can also lead to the impression that everything is going well.

Furthermore, the report fails to reflect the view of many libraries that these initiatives, while welcome, were often hard to implement and were withdrawn well before the end of the pandemic – see IFLA’s own report on libraries, copyright and COVID-19 for more. Indeed, there is the argument that they were often intended as marketing exercises, aimed at building use of and reliance on services which could then be charged for.

The more systematic examples come the US, where the flexibility provided by fair use is underlined as having enabled initiatives like the Hathi Trust Emergency Temporary Access Service. These arguably provide better pointers for how to build resilience than individual stories that may depend on a wide variety of other factors which are potentially not replicable.


And an old cliché about lending and sales…

The report does touch a number of times on the relationship between library activities and sales. There are unsubstantiated claims about the impact of higher levels of library lending and use. The one reference given is to a speculative conclusion in a German study about future impacts of eLending. This same study also underlines that cutting back on library lending is unlikely to lead to any increase in the purchasing of eBooks.

These arguments also do not sit well with the report’s conclusion that increased spending by libraries on digital content raises sustainability concerns for our institutions. In this case, the question needs rather to be ‘where is the money’?

Going further, unfortunately, it also repeats old tropes implying that the work of libraries is not significantly different to copyright piracy. These betray a fundamental misunderstanding of what copyright is about and how limitations and exceptions work. It also suggests an inability to differentiate between the interests of one particular lobby group, and of society as a whole. It is of course a shame that such claims are repeated in a WIPO-branded report.


Follow the discussion on WIPO’s webcasting service, from 11:30-16:30 Geneva time, for more!

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.

From the 17th to the 21st centuries: Copyright, Creativity and Access

Who should pay for creativity and how?

And who should be able to access creative works and how?

These are questions to which the answers have varied over time, leading to different business models, and different outcomes.

Of course, at the heart of this discussion is copyright – a set of exclusive rights awarded to creators allowing them control over copying and many forms of use of the works they have created.

As this blog will set out, copyright is often portrayed as a form of progress compared to what came before. However, the shift from patronage to a free market cannot be the end of the process if we are to reflect the understanding of human rights that has emerged over the 20th and 21st centuries.

From the 17th to the 19th centuries

The traditional model of supporting creativity and the arts is often characterised as being about patronage, i.e. where wealthy individuals or organisations simply provide the money up front for a new book, painting or other work.

For a long time indeed, monarchs, aristocrats, wealthy merchants and businesspeople, and religious institutions tended to be the ones paying the bills, in highly unequal societies where most people were illiterate and struggled to survive.

Under this model, the only works that would get created were those that could find a wealthy backer.

We can see this as a 17th century model (or at least the model that dominated up until the 17th century) – i.e. before the first copyright laws came into force in the early 18th century, and were internationalised with the Berne Convention in the 19th.

In effect, by creating a property right, copyright made it possible to turn works into commodities that could be bought and sold on the market. In doing so, it ensured that it wasn’t just the richest people and institutions that determined what would be paid for, but rather the wider buying public

Of course, it is not as if the patronage model has gone away. Patronage by wealthy backers is still a big thing in the visual arts sector, and government cultural policies can often be key in helping emerging talents and minority voices break through.

Moreover, in the scholarly sector, copyright has little if anything to do with whether researchers get paid – university salaries and grants rather account for this.

Nonetheless, those arguing for stronger copyright often focus on the importance of the shift from a (17th century) patronage model to a (19th century) market model as progress.

Under this discourse, copyright is a democratising influence, allowing the decisions of millions of consumers to determine what gets produced, rather than a small number of powerful and/or wealthy individuals.

From the 19th to the 21st centuries: from charity to guarantees

The promotion of the idea of copyright as a far-reaching exclusive property right created a new issue however – how to facilitate uses of works that contribute to broader public interest goals.

With the 20th century, the notion of universal human rights came into focus with the Universal Declaration of 1948. In the 21st century, the logic of ‘no-one left behind’ and a ‘right to development’ have come into the mainstream, accentuating the idea that everyone has a right to a basic set of possibilities to fulfil their potential.

In this context, there is the question of how to meet the needs of people who might need books and other works, but cannot otherwise afford them. In other words, what would happen when the free market doesn’t deliver?

The 19th century approach was, arguably, through charity. The generous rich would provide support for the less fortunate, on a discretionary basis. In effect, they filled a gap that many governments were unwilling to fill, although doubtless in doing to encouraged the idea that there was no need for governments to act at all.

We still see the legacy of this approach, not least in the case of libraries with the construction of many institutions by people like Andrew Carnegie.

However, philanthropists and their fortunes come and go, and goodwill alone does not provide a strong foundation for guaranteeing fundamental rights.

Over the 20th century, the importance of exceptions and limitations to copyright, as a means of avoiding market failures and guaranteeing possibilities to deliver education, research, parody and beyond, emerged, not least through doctrines such as Fair Dealing and Fair Use.

However, these exceptions have increasingly been bypassed in the 21st century with the rise of digital tools for providing access to content. With the terms of contracts often priming over law, and few libraries or users in a position truly to negotiate terms, rightholders have an immense ability to determine what can and cannot be done with books, returning to a model of unlimited rights.

In the case of libraries, this means control over what our institutions can buy, whether they can lend it, copy it for education or research purposes, or even preserve it for the future.

This is not, arguably, an adequate way to enable libraries to carry out activities that make a reality of these key activities. Relying on a combination of the market and the discretionary generosity of private actors is not enough.

We have seen, during the COVID pandemic, that depending on goodwill offers of access to materials by rightholders has led to a highly uneven level of access, which often stopped well before the need for this disappeared (indeed, this need is continuing).

This is where the importance of a modern, balanced copyright system comes in, ensuring that institutions like libraries, as well as schools, research institutions and others, are able to deliver on these key rights, independently of the goodwill of private actors.

If we are to ensure that the rights of access to education, research and culture are realised in the 21st century, we need copyright laws that take a positive approach to delivering on these rights.

Clearly, of course, this needs to be done in a way that does not jeopardise the creation of works in the first place, but there is evidence enough that empowered libraries constitute an asset, not a threat, to the sustainability of the book sector.

In particular in fields where governments already play a key role in paying for creativity and publishing, the importance of ensuring that these investments deliver on public interest objectives is particularly strong.

In short, a modern copyright system requires not just a shift from patronage by the wealthy to a greater freedom to create and earn a living from creativity – i.e. from the 17th to the 19th centuries – but also a shift from fundamental rights of access to information depending purely on goodwill to being guaranteed in law – and so from the 19th to the 21st centuries.

A Right to Be Remembered: A Task for Copyright Laws

Ever since the decision of the Court of Justice of the European Union to allow people to request the removal of articles that violate their right to a private life from search results about them, the notion of a ‘Right to be Forgotten’ as entered the language.

It is not uncontroversial. Supporters highlight the possibility it offers for people to leave past minor misdemeanours behind them (especially once they have served their time), or to protect themselves against damage to their reputation, for example from allegations or charges which were never proven to the true.

Opponents worry that such provisions can be used to make it more difficult to find out about the past activities of people in power, and even the deletion of records (not just their removal from search results). The fact that decisions as to who has this right are effectively left to private companies also worries some.

In parallel, however, some commentators have pointed out the relevance of thinking about a ‘right to be remembered’.

This blog starts by exploring some of the different ways in which this has been talked about already as an idea, before underlining its relevance in a digital age, and finally setting out how this could manifest itself in copyright laws. In doing so, it covers much of the same ground as the UNECO 2015 Recommendation on Documentary Heritage.


From Forgetting to Remembering

Soon after the idea of the ‘Right to Be Forgotten’ appeared, that of a ‘Right to Be Remembered’ also popped up.

For some, the concept was an excuse to justify the collection of data about customers in order to offer them an ‘improved’ customer experience on websites.

However, already in 2015, Irina Raicu from the Markkula Centre for Applied Ethics at Santa Clara University in 2015 talked about being remembered as a  ‘privilege’, raising the idea of the importance of ensuring that individual stories are not lost. In particular, she highlights the importance of ensuring that the names of Holocaust victims where known, in order to promote awareness of what happened.

An article published by people involved in the High Atlas Foundation went further, suggesting that creating a right for communities to protect and preserve their heritage, and have autonomy over its safeguarding should be added to the Universal Declaration of Human Rights.

In this, it made the connection with the practices of many Western institutions in the past in appropriating elements of heritage from other cultures (often seen as inferior), and supported efforts at restitution.

This work does also highlight the issue, increasingly recognised in the library field, of the need to reconsider practices that risked treating knowledge and experience from much of the world and its populations, consciously or unconsciously, as inferior. In doing so, this has led to a situation where some groups’ lives have been more easily forgotten, allowing our image of the past to be distorted.

In parallel, we also have more conscious efforts to eradicate the experience of individuals or groups from history altogether, either through the altering of existing records, or the deliberate destruction of materials that testify to people’s existence.

In short, we can argue that individuals and groups should have the possibility to be remembered, and their experiences and contributions valued by those who come after.

Indeed, this could be seen as an element of the cultural rights offered by international law; future generations risking seeing these rights jeopardised if the memory of those who have come before – their ancestors – is simply wiped away.


New Possibilities

The emergence of the internet, and its spread to a greater and greater share of the global population have meant that there are now more opportunities than ever before to share stories, ideas and experiences.

It is no longer the case that only those with access to a printing press and a distribution network can share their ideas, experiences, and knowledge widely, through websites, blogs, social media, and beyond.

However, the possibility to be heard today is not the same thing as the possibility to be heard in future. The internet is a poor preserver of material. Materials published there, or otherwise in digital form, can easily be lost, and so the knowledge and experience of their creators forgotten.

Ironically, in parallel, in a world so focused on digital access, the same fate also risks befalling physical works, which are less easily found and accessed. And in the meanwhile, the intensification of the consequences of climate change risk seeing whole collections of memory destroyed.

This is where libraries, archives and museums can step in, with a mandate to ensure as broad a preservation of the experience of today for the benefit of tomorrow. This is a key social function, an investment today in ensuring the possibility for future generations to learn, to carry out research, and to enjoy their cultural rights.

In other words, the right to be remembered depends on having libraries, archives, museums and other heritage actors and institutions, tasked with preserving the memory of all cultures, libraries, archives and museums, and giving access to it.

It is clearly not something that can be left to the market. We cannot put a price on the value of memory or of the cultural rights it supports, just as we cannot charge our future selves for the cost of this work today. We need empowered libraries, archives and museums to fil the gap.

Clearly, this is work that needs to be taken forwards in line with ethical principles, in particular as regards Indigenous peoples, with collections built and managed in a way that respects the interests of the groups affected. There is growing awareness of how this can be done, in parallel with wider efforts to ensure that collections practices reflect the communities our institutions serve.


Acting for a Right to Be Remembered

A number of the elements that need to be in place for a Right to Be Remembered are already covered above – heritage institutions with the resources necessary to safeguard the knowledge and experience of the present and past, as well as collections policies and practices that promote inclusion while also respecting the interests of Indigenous groups in particular.

Yet beyond this, there is also the question of how to ensure that copyright laws do not end up representing a barrier to the right to be remembered.

This is a distinct possibility. Copyright already applies to works regardless of whether there is any intention to exploit them commercially. Even for works which are produced with a market in mind, for all but a tiny minority the term of protection extends far beyond their commercial lifespan.

In fulfilling their mission to defend the right to be remembered, libraries, archives and museums do risk running into blockages, being forbidden to take preservation copies of in-copyright works, in the most appropriate format, unless they seek permission (which may be impossible) or pay remuneration (which diverts resources away from the work of preservation itself).

This is the case in the 70% of countries which do not offer libraries, archives and museums a guarantee of being able to preserve works using whatever technology is most appropriate. Only among the 27 countries of the European Union is there (supposed to be) a clear possibility to form cross-border partnerships for preservation, helping ensure most effective use of resources and expertise.

As highlighted above, simply leaving the Right to Be Remembered to the market is unlikely to be an effective strategy. We tend to discount the value of access to knowledge for future generations, and of course even just the potential of earning revenues on a work in the short-term may prove too strong a temptation for rightholders.

Importantly, the Right to Be Remembered cannot be effective if works containing memory are locked away. While, of course, the Right to Be Remembered should not in itself mean the loss of the right to exploit a work commercially, it is meaningless if it is not accompanied by the possibility for people to access this memory. Cultural rights do not only apply to works that are old enough to have fallen into the public domain.

As the UNESCO 2015 Recommendation notes as early as its title, preservation and access must go hand in hand.

In short, if we are to take the Right to Be Remembered seriously, we need to ensure that institutions charged with making this right a reality themselves are guaranteed the possibility under copyright law to do whatever is necessary to preserve knowledge and experience, and to provide access to this knowledge in ways that do not jeopardise commercial exploitation.