Tag Archives: #Copyright4Libraries

Report on status of Copyright Amendment Bill by Denise Nicholson

Over the past few years, the International Federation of Library Associations and Institutions (IFLA) has been engaged in the reform of copyright laws in South Africa. Indeed, IFLA has submitted on many occasions comments and proposals on draft amendments.

This reform contains ambitious provisions which could have an extremely positive impact on libraries and heritage institutions, enabling the latter to benefit from legal provisions similar to the fair use provision as in the United States. It will also provide a positive example for neighbouring countries.

There is strong opposition, however, from other groups, notably collective management bodies, and from the academic publishing sector, even though.   

Despite the reforms being approved by Parliament, they have yet to be signed by the President, who faces both loud opposition internally, and, more recently, a threat from the US Trade Representative to try and remove South Africa’s Generalized System of Preferences (GSP) trade privileges with the United States.

As part of the week on Fair Use and Fair Dealing, we therefore welcome an update from Denise R. Nicholson, Scholarly Communications Librarian, University of the Witwatersrand, Johannesburg, South Africa.

 

REPORT ON STATUS OF COPYRIGHT AMENDMENT BILL

by Denise Nicholson, BA HDip Libr (UNISA); LLM (WITS) Scholarly Communications Librarian, University of the Witwatersrand, Johannesburg, South Africa

Denise.Nicholson[at]wits.ac.za

In terms of Section 79 of the Constitution, President Ramaphosa must either sign the Bill within a reasonable period, or, and only if there are constitutionality issues, he must return it to the National Assembly to address those concerns.  The Bill has been on President Ramaphosa’s desk for 10 months (far beyond a ‘reasonable period’).

There has been a lot of support for the Bill internationally, regionally and locally.  However, there has also been strong opposition to the Bill mainly from rights-holders, collecting societies, musicians, some authors and creators (under the umbrella of the Copyright Coalition of South Africa) and international publishing and entertainment conglomerates and collection management organisations.

The International Intellectual Property Alliance (IIPA), a lobby group for 5 large entertainment corporations in America, petitioned the US Government last year to review Generalised System of Preferences (GSP) agreements like AGOA and others with South Africa. They claimed that the exceptions in the Bill are too broad and that American rights-holders would be prejudiced if the Bill is passed. They want the US Trade Representative (USTR) to withdraw the preferential trade benefits that SA currently enjoys.  Apparently, R35 billion in South African exports to the USA are at stake if such a review goes ahead. Ironically, the SA Bill has adopted fair use provisions from the US copyright law, and other provisions enjoyed by other developed countries.  It is also premature for such a review to be considered as the Bill has not been enacted, so there is no possible evidence that American rights-holders’ interests are at stake.  The law would need to be in place for a while before any evidence could be collected in this regard.

In response to the IIPA petition, the US Trade Representative’s Office called for public submissions on this matter and held public hearings on 31 January 2020.  Forty-two submissions were lodged with the USTR. Thirty-two submissions called on the USTR to withdraw its review on trade agreements and the majority supported the Bill, whereas ten submissions opposed the Bill and supported a review of trade agreements.  Stakeholders can still make further submissions until late February 2020.  The Minister of Trade and Industry has met with officials in the US to discuss this matter.   It is not certain whether the USTR will take action in this regard. Asked if she believed South Africa would change the two laws (Copyright Amendment Bill and Performers’ Protection Bill) to meet US concerns, the new US Ambassador to SA, Lana Marks (SA-born) said the laws “must be within every aspect of the Constitution of South Africa”.  The Daily Maverick reports that Marks is confident that South Africa is not going to lose either its GSP or its AGOA access, directly or indirectly.  “It’s not going to happen,” she says, firmly.

Various international and local organisations have written to the President asking him to sign the Bill as a matter of urgency.  BlindSA has written a strong letter to him pointing out he has a constitutional duty to act on the Bill, and that if he does not act by the anniversary of the passing of the Bill by Parliament (i.e. 28 March), then BlindSA will consider taking him to court on this matter.

We hope that the President will act on the Bill soon.

See IFLA’s contribution to the US Trade Representative hearing.

Opening up collections in Libraries supports creativity

More and more libraries are working to open data from heritage collections. Many institutions (the Library Brasiliana Guita e Jose Mindlin in Brazil, the Auckland Libraries – Heritage Images in Australia or the Library Centrală Universitară “Lucian Blaga” in Cluj-Napoca for instance) are turning to digital, in line with the OpenGLAM principles, to realise the potential of the public domain: to promote access, use, re-use – including for commercial purposes – knowledge and skills of materials in the public domain.

Yet at the same time, funding for cultural institutions is declining in Europe and North America. With their means reduced, the development of strategies is dependent on the economic model of the institution.

In order to reconcile these two goals – opening data and collections, and ensuring financial sustainability – libraries and other cultural institutions are reflecting on ways to allow their reproductions to be opened. This means that heritage institutions are exploring different economic models in order to develop models that generate funding and that do not create additional barriers to knowledge from collections in the public domain in particular. In doing so, by opening up data collections from the public domain for commercial reuse, libraries also have an impact on the overall economy of the country.

This is not always easy. While large heritage institutions are committed to opening up heritage collections in public domain  (offering the possibility to download in good quality with extensive information on the use that can be done with the reproduction), this digital strategy is struggling to develop in smaller institutions

Still today, requests for the use of reproductions of images are handled manually by agents of the institution. This mission involves a considerable labour force and time to verify the status of the work (the rights applied to the artefact) and the status of the reproduction of the work. This is meticulous work which requires having a team trained in these issues.

In parallel with this situation,  where libraries have developed platforms which allow users to download reproductions of objects from library websites, it has been clear that investment is essential to building such a digital infrastructure. It also means investing human resources on missions related to collection datasets to clarify the status of artefacts.

In short, it appears that in both cases, human resources are needed to clarify the status of the objects and their reproductions, and then either add data and carry out the development of a platform, or deal with requests on a case-by-case basis.

However, several points seem interesting to take into account:

_ the time and  work of the employees

_ the initial presumption that the user will / must ask the institution for the image

_ the promotion and outreach of the collection

First, time. Time that agents spend responding to requests for images and other materials is relative to the size of the institution and the size of the collections. However, whereas agents can repeat the same action for several years on the same item, data integrated into the website relating to this item can be reused repeatedly, and is likely to be easier to use on other platforms also.

This means that even though providing clarity on the artefact data and the status of these objects is a long and precise job, once this job is done, there is no need to do it again. In the same way, an updated database filled with all the information will have little change over time.

Secondly, there is an assumption that users will ask the institution to use an image. While users affiliated with research institutions may well be experienced in making requests, but what about other users, such as:

_ Heritage institutions, start-ups, non-profit organisations and companies that aggregate heritage data in the public domain.

_ Students who must consult heritage sources in the public domain to facilitate referencing and reproductions in academic research.

_ Designers, artists, graphic artists and creators in general

Users’ digital practices show that they will not take the time to make an official request. In the best of cases, they will quickly seek a reproduction whose rights are free and in the worst case, they will use a copy which is not in the public domain.

Therefore, if libraries wish to enhance and promote their collections by promoting the re-use of materials in the public domain, it is necessary to facilitate access to users. This again speaks in favour of moving to easy-to-use platforms, rather than assuming that the possibility to request access is enough.

Finally, there is also evidence of the possibility to development of economic models based on the public domain, without violating fundamental principles of free access within cultural institutions.

For instance, the Rijksmuseum offers to its users the possibility to download collections in the public domain for free in high quality, but if the user wishes to have a poster, frame, reproduction in aluminium, it is possible to place an order for a fee. This decision reflects a desire to support creativity while developing an economic model.

From this example, it seems relevant to think about what a gift shop can bring in this direction primarily on the realisation of prints on objects (T-shirt, cups, bags for instance) or paper works on place, within the library.

We could imagine the possibility of imagining an online store based on a Print and Read model (linked to the Print and Play concept for games). It would be possible to produce objects publish works which are no longer issued for economic reasons with pictorial covers.

Some examples of re-use:

Items sold on Etsy from the Rijksmuseum collections: https://www.etsy.com/ca/pages/rijksstudio

On the Society6 site, Public Demesne offers items made from heritage collections in the public domain: https://society6.com/publicdemesne

In the Public Interest? Promoting the Public Domain

1 January was Public Domain Day.

Around the world, advocates for access to culture celebrated the possibility to share books and other materials more broadly, and to make creative new uses of them.

Libraries were well represented. For our institutions, entry into the public domain means that there are new opportunities to allow users to enjoy and draw on works held in our collections.

Yet as the recent extension of Uruguay’s copyright term shows, the question of how long it is necessary to wait until a work enters the public domain remains a hot topic. There are loud voices calling for further delay.

This blog explores the main arguments on both sides:

 

The Case for Delay

Recouping Investment: a key initial reason for introducing copyright was to ensure that it was possible for creators, and others who had put effort into producing books and other works, to cover their own costs.

By ensuring that creators (or their publishers) could set the price of a book and then collect money, it would pay for advances, printing, editing, and other costs. As the argument goes, the longer a work stays out of the public domain, the more possibility there is to recoup investments (including on successful works in order to cover the costs of less successful ones).

Of course, many works which fall under copyright are not commercial – for them this argument makes little sense. Moreover, the idea of the success of one book cross-subsidising other less successful ones already takes us away from the more philosophical idea of copyright as something protecting individual works towards a logic of investment and speculation.

Finally, and most critically, work by the Australian Productivity Commission (p127-131 of the 2016 Intellectual Property Review), bringing together research from elsewhere, has noted evidence that almost all works have no commercial life after only five years. In effect, extending copyright beyond this will not help recoup any investments save in very exceptional circumstances.

Funding Future Creativity: linked to this first argument, a case for long copyright terms (and so the revenues that come from exploiting it) is that it provides the money necessary to fund future work. Once again, the longer the term, the longer one work can help fund the time to produce new ones.

Again, it is certainly true that there should be the possibility to earn a living from creativity, and so to spare the time in order to produce further works. Of course, this is also why cultural policies exist, with a specific focus on encouraging new and diverse voices to emerge.

However, the fact remains that most works will only earn an income for a short period. Furthermore, this argument provides no support for copyright terms that last beyond the death of the author, given that there is clearly no more creativity at that point.

Recognition: another important argument for copyright terms is the recognition it offers to authors. It is true that a lot of work will go into a book, and this is something to be respected and valued.

Even when rights do not (or no longer) make commercial sense, it is nonetheless a powerful thing for an author to be able to claim ‘parenthood’. Economic rights (such as over copying or distribution of works) provide an economic tool for ensuring that a creator (or publisher) has a tool for preventing many uses with which they may not agree.

In effect, the argument runs that longer copyright terms represent a greater recognition for the work of creators. At the same time, the logic of ‘parenthood’ is less powerful when economic rights are signed away, and of course moral rights remain, providing a means of challenging ‘misuse’ of works.

 

The Case for Speed

Democratic Access to Culture: While some countries focus more on this than others, the specific role of culture in promoting well-being and other goals is the subject of broad consensus. It follows that any government committed to promoting equity should wish to promote equal access to culture.

The importance of democratic access is of course a major argument for libraries in general, especially in the case of works which are still subject to copyright. By buying works, libraries support creativity, and then give access in a way that carefully looks not to harm rightholders’ interests.

But as set out in the introduction, this job is much easier when works have entered the public domain, making it possible, for example, to place them online and so let people access them wherever and whenever they want. In effect, the longer works stay out of the public domain, the longer they are less available.

Supporting Creativity and Re-Use: Going one step further, entering the public domain removes barriers not just to access, but also to the re-use of works. At a time where it is increasingly easy to engage with books, music and other materials to create and share new ones, there is a strong demand for the ‘raw material’ for this further creativity.

While many of these re-uses are purely playful, some are of course commercial. This can be seen as distasteful in some cultures, and give rise to calls for the sharing of revenues with the creators of the original. Of course, once a work enters the public domain, this possibility disappears, even if the use is unoriginal. Other cultures are less concerned, seeing commercial re-use as a means of generating value.

Furthermore, re-use also provides an opportunity to re-discover the vast majority of works which are no longer commercially available after a short period. As the Australian Productivity Commission report highlights, just because one publisher has decided no longer to sell a book, it doesn’t mean that it doesn’t have value.

Given that this is the case for almost all works after only a few years, facilitating re-use provides a great way of saving books from oblivion. The longer we have to wait for a work to enter the public domain, the longer it risks remaining hidden – often without even a clear idea of who to contact in order to seek permission for use (Orphan Works).

 

Balancing the Arguments

Determining the right length of copyright – and so when works should enter into the public domain – will in the end be a balance between the arguments set out above.

In the short-term, copyright clearly is at the heart of the modern creative industries, providing a means of funding a large part of commercial culture. It has also become seen as a key ingredient in the recognition of artists.

However, in the longer term, economic and even more philosophical arguments lose their power, while the cumulative costs – in terms of missed opportunities to access, re-discover and re-use works as facilitated by their entry into the public domain – rise.

 

Of course, the arguments will apply differently for different creators and different works. It will always be possible to find works which are still earning copyright revenues many years after the death of an author. But this is clearly the exception not the rule.

 

This is why it is so valuable to celebrate – and remind ourselves of the importance of – the public domain.

Costs Cost: Key Considerations when Making Choices about Remuneration for Uses of Copyrighted Works

Modern creative industries have, to a large extent, built themselves on the basis of copyright. Their business models depend on having – or acquiring – rights to sell or use content, which they can then sell in exchange for remuneration.

These rights are what lies behind the need to pay for initial access to a work. They are also the reason why, once a library or other user has legitimately bought or licensed a work, they may also need to pay extra in order to make certain uses of it.

For example, restaurants often need to get a licence in order to play music which they have already bought, schools and universities may have to pay to be able to copy legitimately acquired works for students, and libraries can be asked for money to put copies of works in their collections on the internet.

These payments can represent a source of revenues for creators and publishers. However, they also represent a cost to users.

As such, when thinking about whether obliging such payments is a good idea – for example in the context of a copyright reform – it is important to think about whether they are really desirable from a public policy perspective. This blog sets out some of the key questions that policy-makers need to bear in mind.

 

How High are the Transaction Costs? Making a payment isn’t necessarily free – ‘transaction costs’ refer to the costs that are linked to how a seller and buyer (or in our case, rightholder and licensee) are connected.

For example, a library may incur costs simply to count the number of times a certain use was made, or how much was used. This will almost always require an investment in people’s time and may require financial investment in technical infrastructure to do the monitoring. Administering the sourcing and distribution of payments also costs money, both in terms of staff and operational costs. All of this represents an inefficiency that reduces the overall sum of money that goes to authors and publishers.

Clearly in many cases, it is possible to limit the costs of collecting information – for example by using simpler tools – and by reducing the costs of administering the scheme it will make it fairer . However it is also possible that the costs of running a licensing system are too high be worth it.

Recommendation 1: Governments need to ensure that, when designing copyright systems, the relative costs of administering payments are not so high as to make it pointless.

 

Is there a Way of Controlling Moral Hazard? Collecting societies and other intermediaries like publishers who are responsible for distributing money collected for the uses of in-copyright work have a duty to work hard to identify and pay out revenues to authors.

When the rightholders are stronger – for example publishers who are members of such collecting societies – they can work to ensure that they receive payments. However, where rightholders – such as authors – have fewer resources, they may find this more difficult.

Strong regulation can help ensure that collecting societies and publishers pay out royalties to authors where these are due. However, where such regulation is lacking, there is a risk that money will be used for other purposes, for example lobbying or payments only to the more influential or famous members, there is a risk to the legitimacy of the system as a whole.

Recommendation 2: Governments need to ensure that there is effective regulation to ensure that the distribution of royalties and fees is efficient and legitimate.

 

What is the Impact on Users’ Decision-Making? When anyone makes conscious choices, they are carrying out a form of cost-benefit analysis – i.e. is it worthwhile to do something, or at least more worthwhile than doing something else.

In digitisation projects, for example, it is rare that there are sufficient resources to do all that you might want to, and so a project manager will need to select what to prioritise. Questions such as the importance of a work, or the risk of it being lost will favour digitisation, but the need to pay for a licence can undermine this.

Indeed, this may lead to project managers choosing to spend resources on digitising works which are less important, or less vulnerable, simply because this is cheaper. Effectively, mis-judged licencing obligations can skew priorities. It is important to ensure that imposing costs does not lead to sub-optimal decision-making in heritage institutions.

Recommendation 3: Governments need to ensure that the introduction and design of remuneration systems do not lead to distortions in decision-making which harm the public interest.

 

Does it Even Make Sense? Ordinarily, it would make sense to impose costs on a user – such as a heritage institution – when their actions in turn impose costs on a rightholder. This can happen, for example, if library copies substitute for sales of works, and so reduce income.

This is why, for example, the ‘Three-Step Test’ in international law underlines that exceptions should only apply where there is no conflict with normal market uses, and where there is no unreasonable impact on the legitimate interests of rightholders.

The key question then, in deciding whether to impose costs on users, is whether there is an unreasonable  impact on rightsholders. This is keenly debated of course, as we have seen in Canada, where a Parliamentary Committee dismissed claims that an expanded education exception had led to a sharp decline in sales, and instead suggested that more credible research was needed.

But there are other areas, such as preservation, where the actions of heritage institutions do not harm markets, but rather provide a valuable service by ensuring the survival of works into the future. This is essential if works are to be available in the medium to long term.

In this case, it can seem absurd to want to impose costs, when in fact it is the heritage institution taking on a responsibility on behalf of rightholders.

Recommendation 4: Governments need to ensure that they do not introduce remuneration obligations for uses where there is no clear impact on markets, and indeed where this may end up working against the interests of rightholders. 

 

As highlighted at the beginning, copyright lies at the heart of the dominant business model for today’s creative industries. Beyond payments for access in the first place, there are ongoing discussions about where and whether to ask for further payments for use.

In trying to draw the line between where such payments are desirable or not, policy makers need to take considered decisions, based on the reality of the situation they are in. Transaction costs, managing moral hazard, the potential to skew decision-making, and simply good sense should all be borne in mind.

The Wrong Target: Resistance to Exceptions to Copyright for Libraries and a Sustainable Book Chain

The Wrong Target? Why opposition to copyright reform won’t guarantee the future of the book chain

Copyright reforms introducing or updating exceptions and limitations to copyright can easily become a lightning rod.

Recent examples have regularly seen apocalyptic claims about the collapse of the book chain – understood as all those involved in writing, editing, publishing, distributing and reading books – and the demise of creativity in general.

In a sector marked by concern about falling author incomes (despite overall growth in the sector), fears for the future sustainability of the publishing industry, and worry about the role of major internet platforms, it is understandable that there is a desire to take action.

It is true that policy reforms seem to allow this, given the possibility to engage politicians, make statements and get involved in the media debate. Many have done this, claiming that by preventing libraries from enjoying new rights, it is possible to secure the future.

However, just because it is possible to take a position , it does not mean that it is sensible or correct to do so.

This blog explains how in the short term, modern copyright exceptions and limitations for libraries do not pose a threat to the future of the book chain. Instead, it argues, a healthy library sector, enabled by such exceptions and limitations, is a key guarantor of future success and viability.

 

A Complex Challenge Deserves Better Than a Simplistic Response

A number of questions are at play in determining the health of the book chain.

Effective cultural policies supporting new and diverse voices, competition policies to prevent individual actors (such as Internet platforms) taking too powerful a position, and regulation of contracts between authors and publishers are all important. Other regulations, such around book pricing or taxation, as well as copyright enforcement, can also play a role.

There are also factors beyond policy – a shift to digital and the ability (or inability) of the sector to keep up, growing competition for readers’ attention, and changing trends in education and research.

In effect, the challenges and questions facing the book chain are multiple, as are the tools for responding to them. A short-sighted focus only on stopping copyright reforms is highly limiting, and will do nothing to increase authors’ shares of revenue from their works, provide targeted support for new voices, or address the dominance of digital platforms.

This has not stopped some from trying to argue that modern copyright rules will mean disaster. However, each time there has been a truly comprehensive effort to look at the evidence recently, this argument has been rejected.

In Canada, for example, where the Parliament’s Industry, Science and Technology Committee held a thorough review of the country’s 2012 copyright reform. However, despite intense calls for one particular reform (the extension of educational fair dealing, confirming decisions already made by the courts) to be repealed, it rejected the claims made:

“Despite the volume and diversity of evidence submitted throughout the review, the Committee observed a problematic lack of authoritative and impartial data and analysis on major issues. Multiple witnesses either overestimated how strongly the data they presented supported their arguments or failed to disclose its limitations”.

Similarly in Australia, the Productivity Commission, charged with making an independent assessment of the impact of different policy actions, found very little evidence to back up claims that fair use would cause any unjustifiable harm to the publishing industry.

As Deputy Commissioner Karen Chester noted in a speech, the claims made against reforms which would benefit libraries and users simply have evidence behind them. Moreover:

“It was claimed that fair use destroys publishing industries and has done so in Canada, and particularly their educational resource sector. That claim did not stand up to even modest scrutiny: the experience in Canada has been grossly misrepresented and ignores specific market factors there”. 

Similarly, impact assessments in the European Union and Singapore have also underlined that well-designed copyright exceptions are very much a positive sum game, with no harm to publishers or authors, and significant gains to researchers, educators and readers.

 

Sacrificing the Long-Term?

Of course in the long-run, it is not a case of there being two ‘sides’ to the debate – rightholders and readers. Today’s readers may well be tomorrow’s creators, innovators and researchers.

This is where libraries come in. Through promoting literacy and a love of reading, supporting responsive and innovative teaching, and helping students and researchers, they have a key role in ensuring a ‘pipeline’ of new talent.

Moreover, through giving access to heritage and existing ideas, they are spaces where new ideas can come to life.

They also have a key role in ensuring the legitimacy of the book chain, by ensuring that it does not simply become the preserve of the wealthier. The goal of the great library builders of the 19th Century to democratise knowledge is still relevant today.

Yet to continue to play this role, libraries need to benefit from a basic set of exceptions and limitations that work in the digital age. Preservation, lending and supporting education and research are core functions around which there should be little disagreement.

There is a growing body of evidence that underlines the costs to library users of rules that do not allow libraries to fulfil their missions. This contrasts – as set out above – with the lack of evidence that library exceptions and limitations actually do any short-term harm to the book sector.

 

In the light of this, it is perhaps time to look more broadly at the actions that can be taken to guarantee the future of the book chain. This may be hard – the questions are difficult ones, and the effort required will be higher. It also involves stepping away from old and comfortable assumptions.

Nonetheless, this would certainly be a more constructive approach than to spend time and energy opposing reforms that would in the short term be neutral, and in the long term be positive, for all involved.

Fail! How Copyright Risks Creating Market Failures, and How Exceptions Can Correct Them

At the end of a recent WIPO meeting, a suggestion was made that the Marrakesh Treaty – which removes the need to seek permission in order to make or share accessible format copies of books – was a response to a market failure.

Market failures happen when the impacts of a decision (to do something or not) are not fully taken into account by the person making it. These impacts are known as ‘externalities’.

Examples include pollution (which mainly affects people other than the ones responsible), or street lighting (which benefits everyone who passes by, regardless of whether they have paid taxes for it). These are ‘negative’ and ‘positive’ externalities respectively.

When there are externalities, a producer will make more, or less, of something than is optimal for society as a whole.

Talking about the Marrakesh Treaty as a market failure raises some interesting questions about the way copyright works.

All forms of intellectual property are, arguably, a response to another market failure. Traditionally, in the case of copyright, if an author and publisher have invested money in order to produce a book, but then anyone can copy and sell it for less, there is an externality.

The original author is not able to benefit from all of the positives associated with the book, and so may not produce again.

Copyright – under the ‘orthodox’ model of revenue generation that dominates today – helps correct this by giving exclusive rights to the author or their publisher.

However, as in the case of the Marrakesh Treaty, it is clear that the rights given by copyright can create their own problems. In effect, by leaving almost all decisions about who can do what, with what, in the hands of the rightholder, it places them in the same position as the producer mentioned above.

While Marrakesh did deal with a specific population – albeit one numbering into the hundreds of millions around the world – this is not to say that market failures do not exist elsewhere. This blog looks at four areas where they may appear and affect the work of libraries, and underlines how exceptions to copyright can offer a response.

 

Market Failures Linked to Types of User

This was very much the case with the Marrakesh Treaty, where the limited buying power of people with print disabilities in many parts of the world made them less interesting as a market.

This is not because there was not a value to people with print disabilities from gaining access. Indeed, for them, the possibility to read and enjoy works can lead not only to greater well-being, but also to new opportunities.

The same can be said for children and young families for example. Children can have a huge appetite for books, and most parents are unable to pay for all of the books they will read.

Publishers, however, cannot lower prices for individuals or groups without this threatening their profitability. We risk a situation of many children being left with only limited access to books – including arguably those who need it most.

The possibility to borrow books from the library not only ensures demand is met today, without costing sales, but also helps build the book consumers of the future.

 

Market Failures Linked to Types of Material

A second failure is linked to types of material. Many of the works held by libraries are ‘orphan’ – i.e. the author is either not known, or not traceable.

This is a common phenomenon, given the very long duration of copyright, as well as the fact that copyright also applies to works which were never made for commercial purposes (and so where fewer records have been kept).

The problem comes from the fact that by default, copyright locks these works away, as the (unknown) author is assumed not to have agreed to their work being used.

The consequence is that this leaves large parts of library collections locked away, despite a low risk of objections to their being shared online (indeed, many people who do come back are happy about it), and lost potential value for researchers and historians.

 

Market Failures Linked to Type of Use

A third category of market failure is linked to the type of use that is planned. This is an issue because copyright not only governs who can sell books and other works, but also what can be done with them afterwards.

There are arguably certain activities – quotation, basic educational uses, preservation – which are of clear public benefit. However, the last two of these are, by default, also left in the hands of rightholders.

To take the example of preservation, the benefits of this may only be felt in many years to come, or if something deeply uncertain, such as a disaster, strikes.

Yet this is not something that can easily be translated into money, or something that the rightholder taking the decision will necessarily take into account. Indeed, they may logically focus more on the idea of a lost sale (however unlikely this is), or the risk of hacking or loss. Again, by default, preservation is not permitted.

In effect, if the right to preserve works effectively is not covered in law, there is a real risk of books and other works being lost.

 

Market Failures Linked to Lack of Coordination

The examples of given up to here have been more focused on the decisions taken by rightholders, and represent market failures. But there are also failures associated with policy-making around copyright.

This is because when policies are decided – and in particular, when copyright exceptions are designed – the focus is on domestic interests. There is little if any consideration of how the choices make will affect researchers, teachers and libraries working across borders.

It seems unlikely that anyone would want to prevent libraries from working together across borders in order to carry out preservation, or to share works in a fair and regulated way. These activities are just too easily forgotten.

If these interests were taken into account, there would be a far stronger argument for convergence in copyright exceptions in order to support research, heritage and learning.

 

As highlighted in the recent WIPO meeting, the Marrakesh Treaty is a response to a market failure – one that ensures that the wider interests of society can be promoted within the context of the copyright system. It is a means of dealing with a problem created by the way copyright works, with exclusive rights by default, and little consideration for cross-border working.

These failures are not the fault of rightholders either, who are acting rationally in the circumstances. They have a duty to maximise revenues in order to support themselves or their authors (and shareholders as appropriate), and are not being deliberately unhelpful.

Such failures can be addressed through exceptions to copyright. It is time to do so, both at the national and global level.

“But I don’t Speak Legalese…”: What Other Perspectives Can Tell Us about Copyright Exceptions?

Copyright can easily seem scary. One reason for this is the fact that so much discussion on the subject is highly legalistic. There are intense debates about individual articles, sub-articles, or even sub-sub-articles, and an abundance of terminology and technicality that understandably puts a lot of people off.

This is neither desirable or inevitable though. Perhaps more than any other intellectual property right, copyright affects us all.

We can all be (and likely are all) copyright holders. But we are all also liable to be in situations where we , and are also more likely to be in situations where there is a risk of infringement. It is particularly important for libraries, with the balance of rights and exceptions defining what a library can do for its users.

So this blog goes beyond the purely legal perspective, and suggests some other ways in which libraries – and others – can think about copyright laws, from an economic, a consumer protection, a social justice and a psychological point of view.

 

Economics: the economic perspective focuses on resource allocation, and in particular how to do this in a way that leads to the greatest overall benefits, now and in the long-term. It recognises the fact that monopolies such as copyright can be necessary in order to recoup investments and incentivise further creation.

However, it also underlines that monopolies in general tend to lead to an under-supply of works and excessive pricing as producers seek to maximise profits. This leads to negative consequences (‘externalities’), such as people missing out on the possibility to use works for learning or research. The producer does not bear these costs of course, as these fall to the user.

Exceptions and limitations, in economic terms, therefore serve as a means of correcting these problems, and ensuring that the interests of consumers are taken into account, alongside those of producers.

 

Consumer Protection: taking the wellbeing of end-users as a starting point, people involved in consumer protection focus on how to ensure that the comparatively weak position of individuals vis-à-vis companies does not end up being used against them.

While classical economics assumes that people are perfectly rational and fully informed, this is far from often the case. They often have little time, and may not completely understand what they are being offered. Faced with a much larger company with access to lawyers, they may have little – or no – chance to negotiate.

Exceptions and limitations, especially when protected from override by contracts, serve as a tool for protecting the rights of consumers in using works to which they have legitimate access.

 

Social Justice: the idea behind social justice approaches is the idea that everyone should be able to enjoy a decent standard of living, and realise their potential. Social justice advocates worry that money – and other barriers – can prevent this, locking-in privilege and disadvantage.

Copyright of course applies regardless of how much money a creator has, although it is true that those with more resources are usually better able to exploit it (for example by hiring rights managers).

As for exceptions and limitations, where these exist, they also benefit everyone, but proportionately are more important for those who rely on libraries to access and make use of books and other materials. For example, whereas rich students may be able to buy all of the books they need, a poorer one needs the library in order to complete their studies.

 

Psychological: Finally, and perhaps most importantly, laws are most effective (and most respected) when they are understood and supported by people. This also has advantages in terms of reducing enforcement costs.

At least in Western cultures, the broad idea of copyright is understood, as is the importance of supporting the work of creators. However, people also expect that once they have paid money for a book or other work, they should be able to choose what they do with it, at least within their private space.

The same goes for librarians or teachers, for example, who are simply pursuing their missions to support education, research or the preservation of the past. Copyright exceptions are what allow the law to make sense for them.

 

It is clear that there are a number of ways of looking at copyright, with different disciplines offering different angles. The ones above underline the importance of the sort of non-commercial exceptions that libraries rely on. It’s clear that copyright itself is a question of law, its design cannot only be left to the lawyers.