Tag Archives: #Copyright4Libraries

Libraries mean Business : IFLA to celebrate World IP Day on 26 April

In four weeks’ time, the World Intellectual Property Organisation (WIPO) is inviting representatives of governments and civil society to celebrate World Intellectual Property Day, under the theme “Small and Medium-sized Enterprises: take your ideas to market”.

IFLA will be taking the opportunity to celebrate the importance of the work done by library professionals to support and accompany small and medium-sized businesses.

Whether they are family businesses, start-ups or otherwise, small and medium-sized enterprises often have limited resources, and do not always have the opportunity to receive professional and strategic advice on how to work with intellectual property.

As a result, access to curated information, resources and services such as coaching, training and guidance provided by library professionals can be crucial for these businesses. This can help them understand how to support the development of a business model related to intellectual property, such as patents, trademarks, trade secrets or copyright.

As OCLC has reported, in the United States alone, public libraries were used 2.8 million times each month to support small businesses.

On World Intellectual Property Day 2021, IFLA and its partner EIFL are therefore pleased to present a webinar on 26th April at 16:00 CET entitled: Libraries mean business.

This webinar will allow us to highlight the work of three library organisations working to support small and medium-sized enterprises in particular on intellectual property issues, through three speakers:

Jeremy O’Hare, Information Expert: Intellectual Property, Business and IP Center, British Library in United-Kingdom.

Tara Radniecki, Head of DeLaMare Science & Engineering Library, Patent and Trademark Resource Center Librarian, University of Nevada, in the United-States of America.

Bernadette Cogan, Divisional Librarian, Central Library Services, Dublin City Council, in Ireland.

If you are interested in this event, join us thanks to the registration link.

The costs of non-access (part 2): why it matters when uses of works are prevented or complicated

In a post last week, we looked at the importance of being able to explain why non-investment in libraries matters.

As highlighted, in difficult budgetary times, governments are faced with the challenge of how to make cuts while causing least pain.

Being able to explain the harm that reducing or freezing library spending can create is therefore an important part of advocacy.

But as set out in another blog, decisions about funding are often just one side of the same coin as decisions about what libraries can do with their funding, notably as regards copyright.

A generous budget with highly restrictive rules on how resources are used can lead to a library having the same impact as one with a much smaller budget, but one where there are much broader possibilities to use works.

So just as we need to be able to talk about the cost of not investing financially in libraries, we should also learn to set out the harm done when library users are not able to use works.

There is a particular need for such arguments when it comes to copyright, given that the argument will often be made that the sorts of exceptions and limitations that allow library users and libraries to carry out such activities come at the cost of sales, or at least licensing revenues.

Such arguments are even used in the case of books that are no longer on sale at all, on the premiss that they may at some time in the future come back into commerce.

Of course, the evidence of such library activities actually causing harm is limited. The European Commission’s impact assessment on the draft Directive on Copyright in the Digital Single Market made clear that allowing libraries to preserve works, or library users to carry out text and data mining would not cause any significant damage.

This does not mean that there is no cost to rightholders from such acts. It isn’t possible to prevent a reader from borrowing a book or copying a couple of pages just because she or he could also buy it – this would be to turn against the universalist mission of libraries.

Similarly, there will often be a collective management organisation ready to invent a licensing offer for a new type of use, and so claim that copyright exceptions cost revenue.

To convince decision-makers to legislate in favour of copyright exceptions and limitations, we therefore need to be show that the cost of denying or complicating access is higher. So what arguments can be used?

Lending: when libraries are not able to lend books, this effectively condemns those who are not able to buy them to exclusion from access to culture. It can also choke off a means for new authors to be discovered by readers. Preventing digital lending will tend to exclude readers who are not able to get to a library, for reasons of disability, health, distance, or – obviously enough – COVID-19 restrictions.

Research (TDM): allowing uses of works for text and data mining improves the quality of the results of mining activities, thereby advancing science. Preventing such uses will have the inverse effect. In particular in the case of machine learning, there is growing awareness that limiting the range of works that can be used for learning can lead to biases and problems.

Education: teachers and learners benefit from being able to use the best suited materials for the context and situation, in order to achieve the best results. When teachers are obliged to take time to find works they can use – or rely on a limited offer – then they are less able to do their jobs. Similarly, a lack of adequate exceptions can restrict the production of open educational resources.

Preservation: this is a core function of libraries, ensuring that the works of yesterday and today are available into the future, recognised in international law. Where it is made more difficult, fewer works can be preserved. Ironically, the imposition of restrictions on preservation copying, motivated by a desire to sustain revenues, can risk reducing the chances of the work itself surviving into the future.

Document Supply: while a traditional activity of libraries using physical works, not all copyright laws allow for digital document supply. This has an obvious impact on those whose research is facilitated by being able to access often unique books held far away. Without this, the scope of research is unnecessarily limited to the works that are available on site, defeating the object of research in the first place.

Access for People with Print Disabilities: the challenge tackled by the Marrakesh Treaty was the book famine – the tiny share of books worldwide which are available in accessible formats. A failure to allow exceptions left the choice (and responsibility) for making such copies available in the hands of rightholders, often themselves unable to make the switch. The failures caused by a lack of reform led to violation of the right of people with print disabilities to education, and to participation in scientific and cultural life.

 

As in our first blog on the costs of non-access, such arguments should be used relatively sparingly. It is important to be positive as well, focusing on how reforms could lead to better services to – and support for – communities. Yet being able to underline costs can be helpful in making it clear that there is a problem that needs to be addressed.

As part of your advocacy, you are therefore encouraged to gather stories of problems – of the costs of non-access.

A quick word about an exceptional exception (you should get to know or start to consider using)

As part of the fair use and fair dealing week, IFLA is delighted to welcome Eric Chin, from the General Counsel at the National Library Board of Singapore, to share his views on the importance of making the best use of the flexibilities provided by the fair use and fair dealing provisions.

 

  1. Your mission as a librarian is to enable teaching, learning and research.  How much you can achieve depends on the extent to which libraries can collect, preserve, give access, present and exhibit library materials.  This in turn depends a lot on copyright laws that govern how library materials can be used.

 

  1. For example,  one of the exclusive rights of a copyright owner is the right to make a copy.  This impacts your day to day work ranging from the request by a teacher to make a copy of a photograph for a lesson, to whether the much used book that is deteriorating and is out of print (but still in copyright) can be digitised to preserve the content from being totally lost, to whether a video in an obsolete format (but still in copyright) can be migrated to a new digital format;  and to whether the non-profit museum down the road can make a copy of part of a map for an exhibition.

 

  1. Before we go further, it must be said that there is nothing wrong about the principle that copyright owners have exclusive rights for a period of time as just reward for endeavours and ability and it is beneficial to society because, among other things, it does create incentives for the production of more library materials.  It is not often said but it is not unfair to say that copyright is partly the lifeblood of a librarian’s job!  The question is about how this is balanced against what rights or exceptions there are to also ensure that exclusive rights do not act as unintended and undue barriers to progress in science, in the preservation of heritage and culture and the dissemination of knowledge.

 

  1. So copyright laws typically include a set of provisions that act as exceptions that will  allow for your mission as a librarian.  I say “typically” because copyright law is territorial in nature and each country has its own set of copyright laws. This means the scope of exceptions can vary (very) widely from country to country.  To see where you stand in the wide spectrum of copyright laws, it is useful to look at this study covering 191 countries: https://www.wipo.int/edocs/mdocs/copyright/en/sccr_35/sccr_35_6.pdf (the Study on Exceptions).

 

  1. Starting by knowing where you stand allows you to consider if you need to advocate for copyright exceptions that fellow librarians in other parts of the world can already use but you simply cannot.  What you cannot do will have a negative impact on the amount of teaching, learning and research that can be done in your own country. In an ideal world for librarians,  all countries will learn from one another and all will level up until all countries share the most useful exceptions in common. However,  it must sometimes start with ground up advocacy to the right powers that be in our countries, which is partly in our own hands.

 

  1. Looking at the range of exceptions in each country in the Study on Exceptions, you will see a fair few countries that do not list what is called “fair dealing” or “fair use” (collectively Fair Use) among the exceptions. Fair Use is a general exception that anyone can use and is not a specific exception available only to libraries but libraries can benefit greatly from it.  Each country will of course have an argument to make for its own copyright traditions and doctrine that their society may be comfortable with, but in my own view,  countries that do not have this exception may be missing out on an exceptional exception.

 

  1. Most library specific exceptions are generally prescriptive in nature with fixed criteria that must be met in an unchanging way in order to become applicable and this oftentimes can make it challenging for us especially in the fast changing digital era. On the other hand,  Fair Use is special because it is normally stated in a flexible way.  Certain broad factors (that are also usually not exhaustive) are set out as matters to be considered in a fair use analysis such as whether there is transformative use (i.e. use of the original library material or part of it in a beneficial way to society that is different from the intended use of the original) and whether the amount of the original library material used is appropriate in the circumstances including bearing in mind whether it would unfairly eat into or destroy the livelihood of the owner of the copyright.  Those who have had the benefit of using Fair Use will know that these broad factors for fair use analysis are such that the law in Fair Use can automatically adjust to new, evolving and challenging situations that you will face in your daily work.

 

  1. Around the world, in countries that have the Fair Use exception, it has been crucial in allowing for the use of library materials (including copying to an appropriate extent only) for research or study, criticism or review, reporting of news, to support teaching and learning,  to publicise library programmes, to create exhibitions, to preserve at risk items, to enabling use for those who are disabled and to making a record of ephemeral but culturally significant matters posted on the internet.

 

  1. This short piece cannot hope to set out all the details of what the best practices and exemplars are for Fair Use that gets the balance right between your mission and the rights of creators and publishers,  but urges you, as a librarian, to see where you stand in the spectrum of copyright laws that may be available across the world to support your mission.  As it is Fair Use Week,  and if you are one of those that does not have the benefit of Fair Use or actually do have the benefit of such an exception but have not used it,  go find out about it through the lawyer or other experts supporting your library and see how it can be fairly used.  If you then think it is useful, consider how you can advocate for it to be introduced or used as part of your workplan in the not too distant future.

 

  1. In the meantime,  it is Fair Use week and time to use those research skills to discover and read more about an exceptional exception that is not a fair weathered friend to librarians!

 

Eric Chin

General Counsel (and would be librarian and archivist)

National Library Board, Singapore

 

Note:  The views set out here are personal and do not represent the official view of any organisation I am associated with.

 

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.

 

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.

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.