Tag Archives: copyright

How HathiTrust Emergency Temporary Access Service (ETAS) supports Libraries in pandemic times

By Sara R. Benson, Copyright Librarian, University of Illinois at Urbana Champaign. Check out Sara’s podcast titled Copyright Chat at https://go.illinois.edu/copyrightchat

It’s Fair Use/Fair Dealing week and that means it is once again time to let folks know about exciting developments with the HathiTrust Digital Library. Last year on Fair Use Week I highlighted the ability of researchers to engage with copyright protected materials for text and data mining through the HathiTrust Research Data Capsule. This year, I would like to make readers aware of the HathiTrust Emergency Temporary Access Service or ETAS.

What is the ETAS? It is a portal allowing affiliated libraries to permit their patrons to access in copyright works remotely. Why is the ETAS available? COVID 19 has caused many libraries, such as my own (the University of Illinois at Urbana Champaign Library) to temporarily limit physical access to library materials. Almost half of our collection, however, has been digitized and is available in the HathiTrust corpus. Normally, users can only perform searches for how many times a given term appears in copyright protected works in the HathiTrust corpus. However, due to COVID 19, the ETAS allows users to view (but not download) entire copyright protected works remotely. Libraries participating must have the physical book in their collection and agree not to lend out the physical book. Thus, the book is being lent remotely on a one-to-one ratio to the Library’s physical collection on the basis of fair use. This type of lending is made possible because it is non-commercial, educational in purpose and justified due to the emergency nature of the pandemic virus. As noted by April Hathcock in a public statement created by copyright specialists and available at https://tinyurl.com/tvnty3a, “fair use is made for just these kinds of contingencies.”

So, as you celebrate Fair Use/Fair Dealing week this year, note that the pandemic has brought with it many challenges, but Fair Use has enabled libraries to keep lending their works digitally so that researchers and the public can continue to create, thrive, and produce . . . even during a crisis.

Celebrating flexibilities provided by fair-use and fair-dealing

This week is Fair use and Fair dealing week, organised by the Association of Research Libraries! It is a week to celebrate these doctrines implemented in many countries all around the world and the copyright provisions that allow libraries to benefit from flexibility to continue their missions.

Although libraries have similar missions around the world, trying to serve the best interests of users, they operate under very different laws.

As libraries have seen their doors closed and physical services interrupted or adapted due to the COVID-19 pandemic, the qualities and flaws of the varying legal provisions of each country concerning access to and use of content have been thrown into relief. The results are concrete: disparities result in significant divisions between the capacities of access to library resources by citizens around the world.

These varied laws reveal areas for improvement which in the midst of a global pandemic are only becoming more glaring.

Why and how have fair-use and fair-dealing been able and continue to support the needs of libraries during the pandemic? 

While many countries are subject to very detailed, prescriptive rules, tied to specific interpretations and technological supports, and even sometimes forgetting the spirit of the initial law, fair use and fair dealing have undoubtedly enabled libraries to obtain greater flexibility, thereby supporting the delivery of their missions.

To determine what is fair use, there are typically several criteria which are explored. These include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. These criteria are applied with reference to the objectives of the uses and not by the materiality of the medium on which the contents will be delivered, avoiding limiting library uses to specific formats of works.

Libraries that operate in countries with fair use and fair dealing benefit from an important advantage – the ability to continue their missions online to a greater extent, in order to meet the needs and expectations of users.

This is because fair use and fair dealing offer a more flexible framework, allowing for the taking into account of societal technological evolutions and therefore, consequently, the evolution of library practices. When a copyright law uses the term “analogous” in its legal vocabulary, this provision will, if not already, become obsolete as we move to other forms of media.

Fair use and fair dealing, an international doctrine

When we talk about fair use and fair dealing, it can seem that this is a doctrine whose scope is only applicable to North America. Certainly, opponents of more flexible laws try to claim that they can’t work elsewhere.

However, the reality of copyright implementations is much more complex than this, demonstrating the possibilities and compatibilities of fair use and fair dealing under current global regulations.

For example, other countries such as Israel, Malaysia, Singapore and South Korea have fair use provisions.

In 2007, the Israeli government updated its copyright regulations to include a fair use exception. It did this by creating an open-ended list of permitted purposes of use, with fairness being determined using a set of four factors similar to the US criteria for determining whether the use is fair.

In 2012, South Korea decided to add a fair use exception to its copyright regulations. Once again, the four determining factors are included as in the US. The same applies to Malaysia (2012) and Singapore (2004).

As far as fair dealing is concerned, in addition to the countries traditionally identified as fair dealing countries such as Canada, Australia and the United Kingdom, there are many other countries that still use these principles today. A list of 40 countries using fair dealing provisions has been compiled, including India, Antigua and Barbuda, Bangladesh, Barbados, Canada, Cyprus, Gambia, Namibia, Nigeria, Saint Lucia, Guyana, Jamaica, Vanuatu, Sierra Leone and Zimbabwe.

The fact that legal provisions on fair-dealing are implemented on all continents, in industrialized countries and countries in transition, is of considerable importance in demonstrating that there is no reason to limit these doctrines geographically. Moreover, given how long-established they are, without challenge, they are arguably also compatible with trade agreements and international copyright law.

We look forward to sharing further posts this week both about the benefits of fair use and fair dealing, and the practical implications for libraries.

 

(Pre)Conditions for Success: What Governments Need to Do to Fulfil Libraries’ Potential

Much library advocacy at the moment is focused on how libraries can contribute to the response to, and recovery from, the COVID-19 pandemic.

In previous blogs here, and from libraries and library organisations around the world, there has been a focus on what our institutions can do to build back better – through wider and more meaningful access to information, stronger connectivity, better competences, more rapid innovation, and making the most of culture and heritage.

We promote the importance of school and public libraries in building foundational literacy skills from a young age. Of public and community libraries in promoting inclusion, offering internet access and training, and providing a portal to new opportunities for those at risk of being left out or left behind. Of academic and research libraries in supporting more open science and scholarship, and helping the researchers of tomorrow. Of national and heritage libraries in ensuring that documentary heritage can both inform decision-making today and build identity and community cohesion.

In short, the library vision of the future is of more literate and better informed people, and fairer, more inclusive and more engaged societies.

As before, our staff, services and spaces will be at the heart of this.

Yet these are things that cannot be taken for granted. While libraries and library staff – with the support of organisations like IFLA and other library associations – work to deliver the best possible support in the circumstances, they also rely on the actions of governments and other decision-makers – policies, laws and funding – to fulfil their potential.

This blog sets out five ways in which governments and other decision-makers can support libraries:

1. Ensure that librarians working in frontline roles should benefit from the same vaccine priority as other frontline workers: there is a clear value in ensuring that if libraries are to re-open to provide in-person services, staff should be able to benefit from the protection that vaccination can offer. Of course, this also is a plus for users, who will be able to make use of better staffed institutions, although precautions seem likely to remain necessary until a much larger share of the population is vaccinated.

2. Ensure that libraries benefit from adequate internet connections and hardware: the pandemic has made clear the importance of connectivity in enabling at least some elements of life to continue despite lockdowns, accelerating an existing trend towards digital tools and services. With the need for continued care to limit infections, the ability of libraries to make full use of the internet will remain important for some time to come. Stronger connectivity also opens up possibilities for extending internet access out into communities, for example through TV Whitespace technologies or community networks, allowing users to make more use of library content and beyond, helping to combat digital exclusion.

3. Ensure that libraries are involved in planning: as governments and other decision-makers look to define plans for ongoing response and future recovery, we cannot take for granted that they will understand the specific nature of libraries and the services they offer. Outdated perceptions of our institutions can make things worse, often ignoring the rich programmes of activities and support offered by libraries of all types in the pursuit of their missions. The best solution to this is to make the case to be part of committees or groups which are planning ahead. This can help not just ensure that the rules applying to libraries are relevant, but also open up possibilities to engage in wider programmes and projects.

4. Ensure that libraries are funded and staffed to offer support: while the need for adequate funding to support the work of libraries is nothing new, it is likely to be necessary to make the case as strongly as ever now. This is both because of the pressure on funding that is likely to result from the economic consequences of the pandemic, but also because providing services in a pandemic may simply be more expensive. For example, digital resources can cost a multiple of the price of their physical equivalents, while implementing services under restrictions can prove more staff-intensive. In such situations, innovation and efficiencies alone are unlikely to be enough if a good level of service is to be maintained.

5. Ensure that libraries benefit from flexibilities to carry out their missions: connected to the question of resources is that of what libraries can do with them. It is essential that the public or institutional funding that goes into libraries is not made less effective because of laws and regulation. A key example is around copyright, which determines what uses libraries – and their patrons – can make of works they have acquired or accessed. But other restrictions may also limit what libraries can do, for example by preventing the extension of library card privileges to refugees or others in the community, or by preventing the formation of partnerships.

The subject of how libraries can realise their potential in the context of the response to, and recovery from, COVID-19 will be at the heart of a series of side-events organised at UN regional sustainable development fora in the coming months – watch our website for more, and share your own ideas below!

Celebrating the Public Domain 2021

2021 has finally arrived, and as always, the new year brings another celebration: Public Domain Day.

This is a big deal. Why? Because the public domain means that works can be used and modified by anyone without authorisation. As such, this enriches the range of books, articles, art and beyond that brings us pleasure, inspiration and insights without copyright-related restrictions.

This matters for libraries, as institutions focused on maximizing access to information, in particular of works which have been carefully preserved for years.

Why the Public Domain?

All works that reflect the original expression of the mind of an author are protected by copyright law as soon as they are created, for a long time.

Copyright protection has been regularly extended through time. The key international law on the matter – the Berne Convention – establishes protection for the life of the author plus a further 50 years. Yet countries can go further. In 1998, the United States agreed via the Copyright Term Extension Act to extend copyright protection to 70 years after the death of the author. This decision has been followed by additional countries, delaying the entry of works in the public domain, with some offering as many as 100 years of protection after death.

Until these works enter the public domain, they are still subject to restrictions on use, despite that fact that the commercial value of works is generally only in the first few years after publication. As a result, plenty of works are not easily available, and therefore subject to oblivion.
As a result, any extension of protection limits libraries’ ability to provide wide access to works.

Further risks come from the fact that the public domain too often does not exist as a concept in legislation (it is rather implicit, resulting from the lapsing of protections). This can create uncertainty, leaving open the possibility to create new restrictions.

What is Public Domain Day?

Public Domain Day falls on is the first of January of each year and is celebrated during the whole month. It is about celebrating the public domain, recognizing the importance of protecting it, and fostering the use of materials by all communities.

This date was chosen because calculating copyright protection can be complicated. As a result, many countries have decided to simplify it by choosing the 1 January following the anniversary of the death of the author as the release date for works entering the public domain.

As a result, in countries with a copyright term of life plus 70 years, the works of authors who died in 1950 are now in the public domain. Thanks to earlier reforms in US law, books and films released in 1925 have also now lost copyright protection.

What are the next steps?

Are you willing to celebrate the public domain and make the most of it with your Library?

Whether you are in an academic library, a heritage library, or a public library, this is an opportunity to showcase works newly in the public domain. The library can highlight works via a conference, communications on blogs and social media, a wiki edit-a-thon to add these new works in Wikisource or to complete Wikipedia pages.

Several approaches are available:

Pick a specific work that is now in the public domain. Who is the author? Why is this book unique and what did it tell us back in time? And now? Make a thread on social media or share it on your blog!

Build understanding about copyright: this is also a good time to share more about copyright laws, and library issues. Use Public Domain Day to discuss the public domain, common goods and the importance of unrestricted access.

If you are interested in more information, a few articles might be interesting: here, here, here (US), here and here (France), here and here (Spain), here in Colombia, here in Portugal.

Here is the Wikilist of works entering the public domain in 2021.

What do we talk about when we talk about access? 10 Suggestions to support library advocacy

We talk a lot about the importance of access to information in advocacy around libraries.

This access is at the heart of what libraries themselves do of course, helping users to find the information that they need to take better decisions, and participate in the life of the community.

Our institutions have been doing this for thousands of years, helping leaders, researchers, creators and other citizens to achieve their missions.

In advocating, we focus on why this matters so much, underlining how, in different policy areas – healthcare, innovation, democracy itself – access to information helps deliver goals, and in turn, how libraries deliver this access in an equitable way.

However, in doing this, it’s worth keeping in mind the different issues that access encompasses, and the different struggles this can imply, if only to be clear for ourselves.

This blogs therefore looks at just ten different aspects of access, and how this can play out in work on library advocacy.

1) Access as the possibility to find a work in the library: libraries have a key role in ensuring that ability to pay does not become a determinant of whether people can enjoy their right to information. This applies as much to those who would not be able to buy textbooks or children’s books, as to those who may only need certain parts of a book, and are not ready to pay for the whole book just to access extracts.

This is why it is so important that libraries can acquire all types of material, without barriers. Unfortunately, refusals to sell to libraries (or only to do so under very restrictive terms) make this difficult, and arguably require further investigation.

2) Access as preservation: access is an ongoing priority, and one that is threatened by the loss of materials due to decay, destruction or other reasons. It is particularly important – for researchers, for citizens – to know that todays information will be available into the future, in order to make it possible to support re-evaluation and accountability.

For example, government records need to be saved to allow for future study into decisions taken, while science itself is based heavily on the idea that research results should be reproducible – i.e. future researchers can access the same materials and reproduce the results of experiments.

3) Access as (reliable) connectivity: with so much information available online, including many materials that may previously have been produced in physical formats, internet access has become almost unavoidable as a form of wider access to information.

IFLA focuses strongly on this, underlining the need for libraries and users to benefit from high quality connections that are reliable – it is unlikely that people and businesses will be ready to invest in internet-enabled activities and approaches if they cannot be sure that it will stay on.

4) Access as a lack of barriers: access is not just about whether the library itself can add – and maintain – works in their collections, or whether they can connect meaningfully to the internet. Access is about whether library users can take advantage of this possibility. To do this, we need to work towards the absence of practical barriers to use, such as those felt by people who live far from a library, or who face challenges linked to physical mobility or other disabilities.

A number of tools can help in this regard – the internet is an important one of course – as can the sort of reforms promoted by the Marrakesh Treaty, that helps ensure that copyright does not pose an unreasonable barrier to creating and sharing accessible format works. With over 100 countries now signed up to the Treaty, we can aim for universal coverage in the coming years.

5) Access as literacies: access is also, crucially, about the skills of the person receiving information to understand and make sense of it. The skills involved can go from basic literacy to much more advanced forms, including critical thinking. Especially for those trying to work through the wealth of information online, being able to find the right knowledge is vital.

Basic literacy has long been an area of library expertise and experience, with increasing efforts to take information literacy training out of academic libraries and into public ones, to the benefit of the whole population. A priority here is to ensure that such support continues to be available to all, throughout life .

6) Access as use: access can imply a relatively narrow way of using information – for example being able to take, open and read a book. However, while for some library users this may be enough – simply taking pleasure or interest from the words on the page – for others it is not. They need to be able to quote, analyse or otherwise use works. For them, access without the possibility to use is pointless.

This is a core point around much work on copyright, with libraries arguing that once they have legally acquired a work, a core set of uses should be possible without restrictions or additional payment needed. These uses should be seen as part of the original price paid. Clearly this would not count uses that could cause unreasonable harm to rightholders, but trying to licence every single type of use is a recipe for market failure.

7) Access as the counterpart of expression: as set out in the previous point, a key ingredient of access is the possibility to use the information found in future work. As well as copyright issues, this can also implicate wider ones about freedom of speech. This is because the possibility to access and use information is less powerful if there are then limits on what can be done with it due to censorship or other controls.

It goes without saying, as well, that the fact that there is a variety of information to access in the first place depends heavily on the possibility for creators to express themselves and produce works in the first place. This is why libraries are encouraged to do what they can to champion intellectual freedom.

8) Access as relevant content: closely linked to the first point is the importance that people can find information that is relevant to them. This can be a question of finding books and other materials in the right language, and that tackle the issues that matter for the reader.

Clearly, the internet has created exciting possibilities for people without access to publishing houses, distribution networks or radio stations to share their ideas. However, it can also encourage a narrowing of horizons onto a single global set of materials. A key challenge then for libraries is to understand what materials users need, and to identify and provide access to this, including by promoting further creativity,

9) Access as feeling welcome: closely linked to the previous point, as well as those on skills and disability, the possibility to engage meaningfully with information can depend in large part on the possibility to relax and focus. This raises the question of how to ensure that people feel welcome and comfortable in libraries – and other places where information is accessed.

This can make a big difference for people who may feel otherwise excluded, For example, those with low literacy may feel intimidated by libraries, or those looking for information about very personal issues may feel awkward otherwise. It is therefore important, as part of all policies focused on access, to help people feel at ease, and avoid steps that could discourage information seekers.

10) Access as privacy: while linked to the previous point about feeling comfortable, the value of privacy in information access cannot be underestimated. Feeling that you have someone looking over your shoulder (literally or virtually, thanks to cookies or other digital tools) can have a chilling effect, limiting what a user is ready to look for.

This is why protecting privacy in the library environment, and doing what is possible to help users of third-party services to keep themselves safe, is such an important part of ensuring that access is meaningful for all.

 

We hope that these ideas are useful for you in thinking about the ways in which we talk about access, and welcome further ideas in the comments below!

 

Libraries as Consumers: Potential for Protection?

Earlier this year, we published a blog looking at the degree to which competition law and policy could provide a useful lens for analysing the current state of markets for electronic content for libraries.

As highlighted in the blog, the prices and terms that libraries face for electronic content raise serious concerns about the sustainability of current levels of service to library users.

The blog suggested that further analysis from a competition perspective could be helpful, not so much at the level of individual companies, but rather to address wider practices that can see libraries limited in their ability to provide services.

This is the task of broader market investigations or studies, such as those carried out by the UK’s Competition and Markets Authority. Indeed, the American Library Association has made a submission to an ongoing review on digital content markets, highlighting concerns about the behaviour of platforms and publishers alike

A parallel approach can be to look at libraries as consumers, and what consumer law can offer us in terms of arguments or angles to explore.

 

Normally, we think about consumer law as referring to the protections in place to ensure that individuals are not mistreated by companies that sell products or services to them, benefitting from a situation of grater market power or information.

It covers issues such as rights when such products are defective, or when a consumer has been misled about what they are buying. We benefit from consumer law when we have the possibility to change our minds, or when we receive compensation when something goes wrong. This is particularly powerful when contacts for services are effectively non-negotiable.

Yet, to the extent that consumer law tries to respond to situations where the seller has the upper hand in terms of information or power, there are ideas in consumer law which can certainly seem applicable to the situation of libraries.

This imbalance, combined with the extensive copyright protections offered to rightholders, mean that libraries often face a hard choice between unfavourable terms and no access at all.

For example, a number of common law countries introduce the concept of ‘unconscionable’ contract terms (for example, Australia), referring to provisions which are not just unfair, but against the norms of society.

It could be argued, here, that if norms of society are set out in limitations and exceptions to copyright (for example, the importance of educational uses, of preservation and of criticism or quotation), then contract terms that override these, building on an imbalance in negotiating power between rightholders and consumers, are indeed questionable.

Outside of the common law world, in the European Union, there have also been efforts to address the question of unfair terms, with a 1993 Directive already setting out that a contract cannot be considered fair when the supplier is allowed unilaterally to change the content of the product or service offered.

In this case, we can perhaps point to the evidence of eBooks and other materials disappearing from bundles to which libraries subscribe. This was studied in depth in 2015, but stories continue to circulate underlining that it may continue to be a problem.

 

Clearly, as mentioned above, consumer law is primarily focused on individuals. As such, it can appear to be a bit of a jump to consider a library – as an institution – as a consumer.

Libraries themselves are in an odd position – they are not reselling anything, although clearly are giving users access, placing them somewhere between the situation of a business and that of an individual consumer.

The law in some countries does make clear that only individual people can count as consumers, given that anyone operating in a professional capacity can be seen as better able to defend their rights.

However, not all countries operate such an approach, with some extending consumer protections to cover small businesses, for example the Netherlands and Belgium. The same has also happened in Australia and New Zealand (for businesses with a turnover of up to $250 000).

These countries have recognised that an imbalance in negotiating power or information can affect an organisation just as much as individuals. The specific nature of libraries as neither businesses nor individuals makes this approach particularly interesting.

For example, the Belgian law makes it clear that small businesses can also raise doubts about contracts which allow sellers to change the characteristics of what they are selling unilaterally (recalling the situation of missing eBooks and journals).

The Australian law, also, allows for such unilateral changes to be counted as unfair, at least when the buyer is locked into the contract (a situation which may, de facto, be the case for a library acquiring content in order to serve students and faculty).

 

This blog, in looking at themes that emerge in consumer law, complements previous posts exploring the insights that competition law offers into the way markets for libraires do – or do not – function.

The previous post highlighted the issue that refusals to sell or licence (in particular where these seem designed to encourage the buying of big deal packages) create. It also noted concerns that libraries’ limited margin for manoeuvre faced with expectations from users and faculty put them in a weaker position, and left them susceptible to needing to pay more.

This post adds to this the risks around contract terms which prevent the fulfilment of recognised public interest goals (especially in the case of non-negotiable contracts), and around unilateral changes in packages offered.

There is certainly scope for looking further, from both the competition and consumer policy angles, in order to understand better the challenge facing libraries in a digital marketplace. Comments and links to further materials on the subject are welcome in the comments box below.

Building Capacity in Copyright: Gathering existing resources

In 2019, IFLA’s Advisory Committee on Copyright and other Legal Matters (CLM) and the Information Literacy Section represented by its former chair Lisa Hinchliffe, are exploring the theme of copyright literacy education in library associations. The presentation of the research carried out by Lisa Hinchliffe, Kaylen Dwyer and Jayde Rose is available here.

Building on this work, and in line with its mission to support its Members, IFLA continues to engage in the subject of copyright literacy and is putting together a collection of educational resources on this topic. We welcome submissions and suggestions.

Copyright, a legal area that remains crucial in libraries.

Whether this is about reproductions of collections in heritage libraries, scholarly communication in university libraries, controlled digital lending, or eBook licenses, many major issues in the field of libraries are linked to copyright.

Therefore, there is a necessity to continue supporting libraries in building copyright capacities on a regional, national and international scale, and to ensure that libraries are well-represented in these discussions.

The topic of copyright for library associations generally requires a national approach, given that the legal framework for copyright is primarily defined by national regulations.

Nonetheless, it is possible to look to the international level for materials to help understand copyright trends. Furthermore, IFLA and others’ work to advance exceptions and limitations to copyright internationally aims to provide leverage in discussions, but in turn, relies on the implication of libraries nationally.

The development of educational resources: key learning materials

There is an uneven distribution of expertise around the library field concerning copyright laws and ways of initiating changes with policy-makers.

To address this, many institutions and professionals continue to engage in learning activities on these issues. It seems helpful to encourage these initiatives and to continue to connect these professionals in order to build an active network.

IFLA is therefore looking at how best to support the development of educational resources on copyright in the field of libraries, and to facilitate training and strengthen the advocacy capacities of libraries.

Gathering educational resources on copyright

IFLA, therefore, encourages members to share existing educational resources on copyright, such as:

– Manuals and textbooks
– Documents and resources
– Courses
– Games
– Practical tools
– Videos and podcasts

We will gather them per country and languages to facilitate to identify resources in your country!

If you know of any copyright education resources in your country and would like to share them, contact camille.francoise[at]ifla.org