Tag Archives: Copyright week 2019

Copyright Week Day 4: Save the Messenger! Why Libraries Should Care about Safe Harbour

Graphic for Day 4 of Copyright Week 2019Discussion about questions of free speech and access to information is traditionally based around a divide between creators and users – or authors and readers in the case of books.

When something goes wrong – an author goes beyond the limits of acceptable free speech or plagiarises, or a reader pirates a work – it makes it easy to ascribe blame.

Of course, there have long been many other players in the chain, helping works get from the one to the other, from publishers or record companies to distributors, bookstores and libraries. These are essential as connectors between authors and readers. Without them, there is no connection, no exchange.

All of these actors are, in principle, established in order to promote and make legitimate uses of works. Of course, they may risk making mistakes – it is clear that the boundaries of fair uses of works, as well as of free speech, are unclear.

This makes it more difficult to establish what happens when something goes wrong. To what extent should those through whose hands a work has passed be held responsible for the acts of others? What should they do when mistakes happen?

It seems appropriate that these actors should enjoy the benefit of the doubt. A publisher – who of course knows a book inside out – should not be prosecuted when a book they publish can legitimately be seen as free speech.

Libraries and bookstores, which will have an idea of their stock without necessarily having been able to read everything, should be held to a lower standard. If they act in good faith, and act rapidly when due process leads to the conclusion that a mistake has been made, should also not be held accountable.

And of course distributors, who cannot be expected to read the content that sits in the back of the van, should logically be exempt.

This is, in effect, the concept of safe harbour. It ensures that actors which are essential to making the connection between writer and reader are able to use their skills and best judgement in order to go about their jobs.

They can take risks, and thanks to this, innovate and bring new ideas and services which benefit society as a whole. Crucially, one mistake should not come at the expense of all of the legitimate services and support provided.


New Actors, Old Issue?

The internet adds a new element to this – the wires, servers, hosting services, and platforms that have massively facilitated the distribution of books, articles, and other works.

Again, with some limited exceptions, these are established in order to promote and facilitate legitimate uses. They often serve other purposes too, such as communication as well as the personal sharing of original works.

They have become as essential to the connection between creators and readers as the delivery van once was (and of course still is in some markets). For libraries also, maximum access to information over the internet is a key means of providing services.

So what to do when something goes wrong? When someone writes something dangerous or unjustifiably discriminatory? When a reader makes an illegitimate copy of a work, or access something illegal?

The concept that emerged with the WIPO Copyright Treaty of 1996 was the same safe harbour. The idea that when someone acts in good faith, and acts rapidly when a mistake is pointed out, then they should not be held fully responsible.

The standard varies from service to service. Just as it varies between publishers and delivery vans, the same goes with the difference between the editors of news sites or blogs and the hosting services or internet service providers, or the many other actors involved in getting information from keyboard to screen (including, in the case of library computers, the screens themselves!).

While technical tools exist that can indicate potentially illegal activity, these cannot be relied upon, with growing evidence (here, here, here) of automatic filters creating havoc with legitimate speech.

However, there is increasing pressure to restrict the idea of safe harbour and create liability (for copyright infringement, dangerous content etc).

This is driven in part by a frustration at the fact that finding, catching and prosecuting the person or organisation at the origin of the illegal behaviour can be difficult. Unlike platforms, ISPs or libraries, they may not have a clear physical address and legal existence.

In part, it doubtless also comes from the fact that some of these intermediaries have grown very rich, or enjoy a position in the market that allows them to dictate terms, more or less, to others.

Neither of these arguments, though, justify an attack on the concept of safe harbour itself. This is all the more so given that such restrictions risk not only hurting commercial platforms, but also other actors such as Wikipedia, libraries and others.

Trying to draw a line between platforms that benefit and platforms that don’t is fraught with difficulty. It brings the risk that all platforms and services will feel the need to implement more restrictive policies that will hurt most innovators and risk takers.


Libraries therefore have a major interest in protecting safe harbour if they are to be able to fulfil their missions – both inside their walls and on the wider internet.

Copyright Week Day 3: Public Domain, Privatised Knowledge, and Libraries

Copyright Week Day 3 Image1 January 2019 saw a greater than usual focus on the importance of the public domain. For the first time in 20 years, new works started to go out of copyright in the United States, following a 20 year hiatus.

There was a lot of celebration – and performances of ‘Yes, We Have No Bananas’. But there was also reflection on the importance of the public domain itself.

One piece, a couple of weeks earlier by James Boyle in The Economist but revisited for the occasion, highlighted the idea that there was a tragedy of the digital commons.

The author referred back to the idea that without a form of government (or privatisation), common resources would quickly disappear as individuals seek to maximise their own gain, at the cost of others.

Villagers would allow their cows to eat all of the grass on the common land. A farmer would take all of the water. A logging company would cut down all of the trees.

The author worries that the same arguments are being used to close off the digital commons, under the pretence that without this control (either by government, or by private rightholders), nothing would be created.

Starting in the 90s, he argues, this has led to rules on digital content which have risked rewarding the ideas of the past at the expense of the ideas of the future.

He suggests that open initiatives, such as open source software, the Human Genome Project, or Creative Commons have shown what can be done when knowledge is shared.


Libraries, the Commons, and the Not-100%-Private

For the time being, openly licenced work remains just one model under which works are shared. The retention of rights – the privatisation of knowledge – remains common. This is where the limitations and exceptions to copyright that laws often give to libraries come in.

These allow for some limited access and use possibilities, in the case of libraries for a public interest goal. They don’t make works ‘common’, but they make them a little less private. They allow readers to analyse, to copy or quote short sections, to critique and parody, and to use for research amongst other things.

This is important. Copyright is a monopoly power, and brings with it the problems associated with monopolies – under-supply and over-charging. This benefits the rightholder, but leads to costs for the consumer – usually those less able to pay.

The problem now is that these flexibilities are being increasingly restricted. Thanks to a mixture of technology (digital rights management) and a failure to update laws (in particular to account for the shift from paper to digital), the control enjoyed by rightholders has never been greater.

Add to this the growing pressure on platforms to pre-filter any uploaded content in case of potential copyright violation (likely also excluding large amounts of material making use of exceptions and limitations), and the possibility to privatise knowledge completely has never been greater.

This has been good news for rightholders, and has doubtless led to some new revenue streams. It has also created new possibilities for price discrimination (do you pay for read-only access? Can you copy elements? Can you carry out text and data mining?).

However, it risks creating greater costs to consumers and future than it creates benefits to producers, as monopoly powers become more complete, and there is little incentive, except among the more far-sighted, to allow those limited, public interest uses that are at the heart of what libraries do.


This is why the effort of libraries to encourage exceptions and limitations to copyright goes hand-in-hand with their support for open access.

The two efforts – to protect and expand the public domain, and ensure that other works are just public enough to contribute to further creativity (and in particular that libraries can fulfil their missions!), without undermining the business model behind their creation – are both necessary.

Read more about IFLA’s work on copyright.

Out of Hand? Libraries, eBook ownership and Lending

Libraries, eBook ownership and Lending

The rise of eBooks has led to some significant changes in the world of publishing. While they are clearly a long way from replacing their physical equivalents, eBooks do now enjoy a significant share of the market, and have allowed a lot of independent and self-published authors to emerge.

They have also brought questions about what it means to ‘own’ something to the world of books and reading.

Because while buying a physical book represented a pretty definitive transfer of ownership – the buyer could then read, scribble in the margins, share with a friend, give it away or resell it – it’s different with eBooks.

Libraries are of course also affected by this restriction on ownership. Not only are they not always allowed to buy eBooks (not a challenge when a library would stock up at a local bookshop or other vendor), but then their ability to lend books, and on what terms is different.


From Anecdote to Hard Evidence

This situation has led to a lot of frustration, but until recently, only limited and anecdotal evidence of what was going on. However now, thanks to an Australian team led by Professor Rebecca Giblin and drawing on a team of lawyers, data scientists and others, there is an impressive body of data about what eLending looks like for libraries. This is available at http://elendingproject.org/.

Professor Giblin’s work is in fact based on three smaller studies: 1) one looking across 546 culturally significant books across different platforms in Australia, 2) one looking at the same set of books on one platform across Australia, NZ, US, Canada and the UK, and 3) one looking across almost 100 000 eBooks available in at least one of the five countries, through one platform.

Throughout this work, the aim was to look at questions around availability (what eBooks could libraries buy), and accessibility (on what terms – cost/licences – they could buy them).

This blog summarises the information, and you can watch the presentation of the information at last year’s World Library and Information Congress.


Buy Me If You Can?

A first key conclusion is that the availability of eBooks is highly variable. In Australia, of the 546 culturally significant books, individual aggregators only had 62-71% on offer. Looking across the five countries, the figure went from 71% of these key books being available in the US, but only 59% in the UK.

Taking the larger study, 12% of books available in other countries were not in the US or Canada, but this figure rose to 23% in the case of the UK. There appears to be a link between price and availability of books, at least in Australia, NZ and the UK. Hachette has particularly diverse policies – around 90% of their electronic catalogue was available in the US/Canada, but only 3-4% (16 books) in the UK and Australia.


Responding to Demand?

Despite original suspicions that older books (the ‘backlist’) may not be available to libraries, the data seems to show that availability is in fact pretty good, including books from the first half of the 20th century. However, older books are not necessarily licensed in different ways to newer ones, despite the fact that they normally are subject to lower demand and usage.

For libraries, time-limited licences are highly unattractive for books which are valuable, but may not be lent out so frequently. However, they are still frequently used for such older books. Moreover, there is no evidence that prices are any lower either, making back-list books less interesting for libraries. Moreover, in 97% of cases, there is zero choice of licence for libraries, reducing choice.


The Bigger, the Tougher?

A key question at the IFLA level is to ensure that library users enjoy the best possible access to works. This is difficult when licensing and pricing practices vary, disadvantaging users in one country compared to those elsewhere.

Interestingly, this question of variation seems to almost entirely focused on the big five publishers. Looking only at books published by the same publisher in the five jurisdictions, 34% of titles from the ‘big five’ were subject to different licences in different jurisdictions, compared to 0.1% for other publishers.

The same goes for prices – these varied by 20% or more in almost half of cases for the big give, whereas other publishers barely varied at all, even on identical licences. Big five publishers are also more likely to use metered licensing (in particular in the UK), while others use one-copy-one-user in the vast majority of cases.


A Lack of Transparency

Finally, based on the Australian data, it became clear that platforms are not always getting the same deal. They are also unable to compete on price.

In Australia, 41% of titles were subject to different licensing terms from aggregator to aggregator, with serious differences in half of these. Prices varied also, although there was strong secrecy about how these were formed.



The findings offer an important opportunity to understand how libraries and their users are experiencing eLending. It brings welcome transparency to a market which has tended to be seen as fluid and evolving.

Clearly it doesn’t resolve all questions – for example the market impact of eLending (there is no clear evidence either way, although recent evidence from the promotion of one particular book suggests the consequences can be very positive). But it does highlight questions that deserve answers. Crucially, it implies that there are questions about how the market is working now, and raises the question of whether action should be taken.


While eBooks have offered valuable flexibility for readers (and authors), the same flexibility appears not always to benefit and enable libraries to carry out their missions.  eBooks provide a strong example of the risks around the shift from physical ownership to digital licensed access.