Tag Archives: Limitations and exceptions to copyright for libraries

The Good, The Bad and (Avoiding) the Ugly: A Way Forwards on the Copyright Directive

Discussions around the European Union’s draft Directive on copyright in the Digital Single Market are as tense as ever. Strong divisions have emerged between and among Member States and Members of the European Parliament around controversial proposals for a new press publishers’ right (Article 11) and an (effective) obligation on internet platforms to filter content (Article 13).

These disagreements stand in contrast to the consensus that has emerged around other provisions in the Directive, which will help libraries and cultural heritage institutions in their work to promote innovation, support education and enable preservation and access to heritage.

Such measures, in line with the EU’s own international obligations, cause no unreasonable prejudice to rightholders, and indeed will support creativity and discovery.

The fear must be that a failure to find agreement on Articles 11 and 13 will lead to calls for the rejection of the Directive as a whole. This would be a huge loss for innovation, education and heritage in Europe, and would be hard to explain to Europe’s voters, given the public support for such measures received from all sides of the debate so far.

This blog offers more detail on the situation so far, and sets out the case for avoiding this worst-case scenario.

 

The Good, The Bad and the Ugly. ACJ1, CC-BY-NC-SA https://www.flickr.com/photos/ajc1/4684652569The Good – Achievements So Far

The draft Directive already contains a lot of good. Starting from a reasonably positive base in September 2016, discussions among MEPs and Member States have led to improvements in provisions around text and data mining, teaching, preservation, and out-of-commerce-works – Articles 3-9.

If these elements of the Directive pass, EU citizens will:

  • Be able to engage much more easily in text and data mining. This will provide a significant boost to research into Artificial Intelligence in particular, at a time when Europe risks being left behind other countries who have been far more ready to update their legislation.
  • Have more opportunities to learn using digital tools, including in libraries. This will further democratise education, and help ensure that everyone can continue to learn throughout life.
  • Continue to enjoy access to Europe’s cultural heritage into the future, thanks to changes that will give libraries and cultural heritage institutions the clear right to take digital copies of books and other materials for preservation purposes.
  • Gain new access to works which are in-copyright but out-of-commerce, and so otherwise can only be found within the walls of libraries.

This is a good result, in and of itself. It will offer important clarity to libraries and cultural heritage institutions and allow them to fulfil their missions in the digital age. It will break down one of the most significant barriers to realising the potential of text and data mining, a Commission priority since 2012.

Moreover, given the EU’s own international obligations under the Berne Convention, it will not cause any unreasonable prejudice to authors. Instead, today’s authors will benefit from wider discovery of their work, including the rediscovery of works which are no longer in print. The authors of tomorrow will find it easier to read, study and innovate.

This is not to mention other elements of the text on the table that will provide additional rights to authors, including the possibility to reclaim rights and to benefit from greater transparency about revenues made on the basis of their work.

These provisions have enjoyed a large degree of consensus, with agreement relatively early on in discussions between Parliament and Council. Stakeholders from all sides of the discussion have been ready to signal their support for these steps, or at least their readiness to accept them.

 

The Bad – Sticking Points

However, it has long been clear that not all of the Directive is consensual. The two most contentious elements – Articles 11 and 13 – look to create new rights or rules for situations which are arguably specific to individual markets, and indeed individual providers – the situation of newspapers faced with GoogleNews, and of record companies faced with YouTube.

As has been argued repeatedly, the proposals on the table – a new right over very short fragments of text from newspapers, and an obligation on all online platforms to filter content uploaded by users – are likely to make the problem worse.

Not only will they strengthen the hand of the existing dominant players (who are best placed to negotiate with content producers, introduce filters or make payments), but they risk causing major collateral damage, for example to educational and scientific repositories run by libraries.

It is therefore unsurprising that there is so much disagreement about these articles.

Most recently, and just days after the agreement of a new Treaty between the countries, France and Germany disagreed about whether smaller internet platforms should be excused from the obligation to filter all user content for potential copyright infringement.

Even though this particular dispute has been agreed, there are many more still open, underlining how flawed the approach to these articles currently is.

In short, while there is support for effective ways of sustaining high quality journalism and curtailing illicit uses, the proposals on the table are not the answer.

 

The Ugly – The Nuclear Option

There are crucial meetings due in the coming days which aim to find a way forwards. Steps have been made to create some minor flexibilities in Articles 11 and 13, for example to reduce the burden on small platforms, as well as limited protections for the educational and scientific repositories that support open access and open educational resources.

Friends scene. Source: https://devrant.com/rants/1546587/this-will-happen-in-java-when-you-declare-the-class-with-wrong-nameHowever, there are already complaints from some who had previously supported Articles 11 and 13, who are unwilling to accept anything less than the highly flawed original proposals.

Most worryingly, these calls are accompanied by demands to reject the entire Directive.

This would be the worst of all worlds. All of the progress already made to date on Articles 3-9 would be at risk, despite already having been subject to consensus. The years of work that have gone into these would potentially be lost, and with it an opportunity to support clear public interest goals in Europe.

As an election approaches, it would be difficult to explain to voters why a flagship piece of legislation has been sunk, merely because there was disagreement on one part.

It is therefore time to reflect on the value of delaying those parts of the Directive which are clearly not yet mature, and proceeding with those that are. This would allow the European Union to chalk up a useful ‘win’.

Instead of rushed discussions now, a full and holistic discussion on how to achieve these goals, reviewing all relevant policy tools, is needed, and could be a useful job for the next Parliament.

Trends in copyright for libraries: what’s coming up this year? (Part 2)

Graphic for Day 5 of Copyright Week 2019

We started Copyright Week 2019 with a blog post on Monday about specific copyright reforms that are ongoing and upcoming in 2019. These copyright reforms show some common trends, so today we are closing the week by looking into that.

In the framework of Copyright Week 2019, we also explored some specific topics more in depth: on Tuesday, Libraries, eBook ownership and Lending; on Wednesday, the Public Domain, Privatised Knowledge, and Libraries; and on Thursday, Safe Harbours and Libraries. You can also have a look at what other organisations have been writing about during copyright week.

There are many interesting matters worth talking about, but since the list would be too long, we have picked six highlights to get you ready for a 2019 full of copyright for libraries. Feel free to share your thoughts on top trends for this year using the comments box.

  1. The Marrakesh Treaty in practice

After its adoption in 2013, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled has been ratified or acceded to in 48 countries. Many countries – but far from all – have also made changes to their national laws to effectively implement Marrakesh Treaty provisions. It will be important for libraries to maintain the momentum in national reform.

With that in place, we are hopeful that 2019 will be the year in which we will start to see the dream of the Marrakesh Treaty realised: more access to knowledge for people with print disabilities, notably through cross-border exchanges of works in an accessible format.

To help with questions that will arise around the practicalities of the Treaty, IFLA has created the Getting Started Guide. It seeks to assist librarians in countries where Marrakesh provisions are in place on key questions around the production and exchange of accessible format copies. The guide is meant to be adapted to national legislation, which colleagues from Spain and Croatia have kindly already done. You can access the existing versions and translations on the IFLA website, and of course don’t hesitate to offer your own!

IFLA is also keeping an up-to-date overview of which countries are moving towards effective implementation of the Marrakesh provisions in their national law, including through allowing cross-border exchange of accessible format copies.

  1. The value gap

The European draft copyright directive’s Article 13 has brought copyright concerns closer to the end user: some have suggested that it will change the internet as we know it. Article 13 would make platforms directly liable for infringing content uploaded by users unless they implement prior filtering obligations to prevent such content getting online (even terrorist legislation gives platforms an hour to spot illicit content). It also aims to force the signature of blanket licence agreements with rightholders for online use of their content.

Although IFLA’s main focus is to ensure that library repositories and other not-for-profit platforms are not negatively affected, IFLA does not remain silent vis-à-vis the threat that it represents to freedom of expression and freedom of access to information.

With this copyright reform still to be concluded, rightsholders elsewhere are pushing for similar policies. However, is there enough evidence of such a gap? Is a solution based in copyright the best option? Are there not risks of weakening safe harbour provisions? If it mainly targets YouTube, will it be fit for purpose on other platforms? Is it not better to address competition issues with competition policy?

With several copyright reforms coming up in 2019, it is worth questioning the adequacy of such a system, in case decision-makers consider it elsewhere.

  1. 2019: Year of indigenous languages

The United Nations declared 2019 the Year of Indigenous Languages. It is a unique opportunity to bring interested parties together and raise awareness of the cultural and historical value of indigenous languages, as a key part of indigenous knowledge.

Back in 2014, IFLA already underlined the “intrinsic value and importance of indigenous traditional knowledge and local community knowledge, and the need to consider it holistically in spite of contested conceptual definitions and uses” in its statement.

Libraries’ involvement is key through preservation and access to such information. That is why IFLA will be celebrating the Year of Indigenous Languages through monthly blog posts exploring the topic from several perspectives. Stay tuned for more on this blog!

In the meantime, the World Intellectual Property Organisation’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore is working towards text-based discussions for international instruments both on the topic of traditional knowledge and cultural expression.

We look forward to further engaging on the matter throughout 2019.

  1. Open Access and Open Science

Libraries subscribe to more and more digital content, while at the same time, the cost of subscriptions seems to be going up in many countries around the world. Library budgets are therefore tightened, and consequently reduce the freedom that librarians have in the choice of collections.

In 2018, we saw universities and consortia in many countries cancel big subscription deals with publishers. An international group of research funders released Plan S, which “requires that, from 2020, scientific publications that result from research funded by public grants must be published in compliant Open Access journals or platforms”.

Many more initiatives around the world are moving towards the direction of full open access. We are hopeful that we will see much more of these initiatives throughout 2019. A key priority will be to make the library voice – and interest – heard in the discussions.

  1. Librarians as advocates

Access to information is fundamental, and more, or a stricter copyright, risks harming it. Librarians need to raise their voice and have an active role in copyright discussions.

It might seem obvious that in any copyright reform, decision-makers should be careful not to harm, and should even enhance, access to information, which is in the interest of all. However, there is a lobby arguing to the contrary (as recent research from Corporate Observatory Europe has shown) with a strong influence in copyright policies. As a negative unintended consequence, the possibilities for libraries to preserve and give access to knowledge in the digital age, and the interests of users, may be hampered.

In many countries, librarians are already involved in working groups with the ministries or government offices responsible of copyright. In others, they are coming together through library associations and campaigns to have a say in copyright changes.

We should reach a situation in which librarians are consulted by default when copyright is to be amended, and in which librarians are confident to speak in this regard.

The interests we defend are legitimate, and we should not wait for someone else to defend them. If we do not say it, no one will.

  1. Getting the facts in order

Very linked to the previous points is the fact that in copyright reforms, we hear all kinds of arguments to defend positions that will restrict or harm the interests of libraries and their users. Librarians need to have the facts and the arguments at their fingertips.

In the South African copyright reform, which is close to an end, librarians and other user rights defenders have had to make an important effort to fight misleading arguments against fair use. In the Canadian copyright reform’s recent consultation, there has also been a need to argue why fair dealing is not causing a loss of revenue to the publishing industry.

Some other examples of recurrent arguments are: Licensing (and collective licensing) offers a solution to all problems; library lending has a negative effect on book sales; flexible copyright is harmful to authors, and more protection is the answer; and exceptions and limitations to copyright lead to piracy and deprive creators from adequate remuneration. We need to be able to respond.

 

We hope the above ideas are helpful guides – do share your own below, we look forward to reading them!

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

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

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

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

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

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

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

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

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

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

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

 

New Actors, Old Issue?

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

 

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

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

Read more about IFLA’s work on copyright.

Out of Hand? Libraries, eBook ownership and Lending

Libraries, eBook ownership and Lending

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

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

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

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

 

From Anecdote to Hard Evidence

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

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

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

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

 

Buy Me If You Can?

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

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

 

Responding to Demand?

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

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

 

The Bigger, the Tougher?

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

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

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

 

A Lack of Transparency

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

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

 

Implications

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

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

 

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

Living in Interesting Times – Three Key Debates in Information Politics

Libraries and the politics of information in 2019

Information has long been political – who has it, who should have it, and how can it be used to shape decision-making. However, it is only relatively recently that this has been recognised.

On the philosophical side of things, much comes from the work of thinkers such as Michel Foucault, who explained the power that comes from organising information in specific ways (‘knowledge is power’). On the more practical side, the emergence of the internet has given a practical focus to broader reflections on how information is created and shared.

It therefore makes sense to think about the politics of information – the discussions and disagreements that take place around key issues. These questions are particularly key for libraries, as central stakeholders in how information is accessed, shared and governed.

2018 has seen a number of key debates come into focus, with further developments expected in 2019. These relate to whether information should be privatised or made publicly available, where privacy should triumph over access, and where free speech should give way to public order concerns.

This blog will offer a short introduction to each question, and relevant examples of legal and policy discussions which will shape information politics in the coming year.

 

Privatisation vs Public Availability of Knowledge

Knowledge – at least in the form of books or other documents – was long subject to constraints both on producers and users. These helped avoid widespread copying, but at the same time allowed users some flexibility in what they did with the written knowledge they held.

The expense of owning a printing press meant that the number of people who could publish was limited (although of course not enough to prevent calls for copyright to be invented in 1709). At the same time, once a book or newspaper had been sold, it was easy enough to share it with others or use it for research or other purposes.

Therefore, while the concept of copyright was intended to give the writings contained in books and other documents the same status as physical objects (in terms of the possibility of owning them), it was only ever an imperfect solution.

Digital technologies have weakened these constraints. It is far easier to publish (or copy) and share works than ever before, but also to place limits (through a mix of legal and technological means) on their uses. In other words, it has never been easier to provide universal access to knowledge, but at the same time, it is also simpler to make the knowledge contained in a book or other document private, with all access and use subject to licences.

These new possibilities have created a gap in legal provisions in many countries, given that there had, previously, been no cause to make rules. With this has come a sense that laws also need to be updated, rather than leaving things up to the market or the courts. This is the underlying reason for the ongoing European Union copyright reform, but also elsewhere.

Specific questions raised in this reform, as elsewhere, include whether people involved in teaching should be able to use materials to which they have access, whether researchers and others should be allowed to carry out text and data mining, and whether libraries should be allowed to take preservation copies.

There are also questions about whether the platforms which allow users to share materials should place the protection of intellectual property above the right of their users to free expression.

2019 is likely to see some sort of conclusion to discussions on these subjects in the European Union, South Africa and Nigeria, as well as key steps forwards in Canada, Singapore, and Australia.

 

Protecting Privacy vs Giving Access

The idea of ‘ownership’ of information is not only associated with intellectual property rights. Increasingly, it also comes up when we talk about personal information – anything that says anything about a person.

Once again, the idea that people have an interest in information about them is not new – there have long been laws on libel which allow individuals to act against writings that are unfair or defamatory. Rulers have also been prolific users of laws against sedition or lèse-majesté. However, such provisions have tended to be limited to the wealthy and powerful.

Here too, digital technologies have changed things by allowing for a much greater potential to collect and use information about people, be it for advertising, security or other purposes. They have also – for example through search engines – made it much easier for ordinary people to access information that might otherwise have been forgotten or too difficult to find.

With this, the idea of a right over information about you has emerged in a number of privacy and data protection laws around the world. The primary focus tends to be on data gathered by companies, with justifications running from a desire to understand advertising choices to enabling customers to shop around between service providers.

In parallel, security concerns have tended to see greater powers given to governments in the types of data they can collect and use, as well as limitations on the transparency obligations they face.

2018 saw the entry into force of the European Union’s General Data Protection Regulation, and similar rules emerge in a number of US States and Latin American countries. There have also been new security rules applied giving governments new powers to gather data on suspected terrorists (as well as many others).

2019 may well see more similar efforts, as well as new efforts to take advantage of new powers over personal information.

 

Protecting Free Speech vs Tackling ‘Dangerous’ Content

A key way in which the political value of information has long been recognised is through the efforts made to control free expression. Ideas and writings deemed to be dangerous to political, economic or social goals, for example through calling for insurrection, infringement of copyright, or simply because it is criminal, have long been the subject of attention by governments.

It is true that the right to free speech is a crucial one, but it is not absolute. The Universal Declaration of Human Rights notes that all rights can potentially be limited when this is necessary to fulfil the rights of others. As regards the right to equality, there is explicit mention of the importance of combatting incitement to discrimination.

More recently, the way the internet has developed has both made it easier for people to share and spread ideas (dangerous or otherwise). It has also involved relatively well defined actors and channels – search engines, social media platforms, internet service providers – with key powers over what is shared. Through their own actions – or actions they are obliged to take – there is a possibility to exert much greater control over what can be said and shared than when someone opens their mouth.

We come across this debate in discussions around concepts like ‘fake news’, terrorist content, hate speech, criminal content, and to some extent copyright infringement. In each situation, there is content that is clearly illegal and clearly legal. But there are also often grey areas, where judgement and nuance may be needed.

The problem is that the solution often proposed for identifying and blocking such content – automatic filtering, brings its own challenges. There are issues that go from the practical (are they good enough?), to the political (without incentives to protect free speech, do they risk ‘accidentally’ blocking legal content?), and human rights-related (should rights be given and taken away by a machine?).

At the same time, human moderation is expensive (in particular if done properly, by people with knowledge of relevant cultures), and can cause serious psychological damage to the people doing it. The costs are likely too high for smaller actors.

Clearly, this is a particularly difficult problem in information politics, not helped by cross-over with other areas of politics. This can make it hard to promote proportionate or nuanced approaches.

There is legislation in a number of jurisdictions which seeks to crack down on terrorist content and copyright infringement through (explicitly or otherwise) automatic filtering. Some have sought to ban ‘fake news’ (a highly dubious step), and others have put pressure on internet platforms to do the same, creating incentives to take an ever tougher line on content. With public pressure growing, major internet companies seem set to implement ever more conservative approaches in order to avoid blame.

 

What Implications for Libraries?

As highlighted at the beginning, libraries are key actors in information politics. They are central – both practically and symbolically – to the idea that everyone should have meaningful access to information.

A first priority is to defend this core idea. Too many are still offline, too many lack formal education or the possibility to learn throughout life, too many cannot find the information they need to live healthily, find work or start businesses, or to engage in public life.

Libraries are also unique, as public, welcoming institutions, with a clear social interest goal, rather than a focus on profit. Nonetheless, this status does not spare them from the effects of decisions taken in relation to the three major debates set out above.

They clearly depend on limitations on the privatisation of knowledge in order to do their jobs, but need a system that allows writers, researchers and others to keep on producing. They need to protect privacy (key to giving users the sense that they can seek and share information freely), but must also resist sweeping restrictions on what materials they can collect, hold and give access to.

And while they understand the need to act against dangerous speech, they know from long experience that managing information is complicated and requires skilled judgements based on expertise and values – something that a machine cannot replicate.

While it may not always be popular – or easy to explain – libraries will need to set out and defend the importance of a balanced approach, one that allows for meaningful access to information for all, not just in 2019 but long into the future.

 

This blog is based on a presentation initially given at the Eurolib conference in Brussels on 12 November 2018.

Fear, Friction and the Fastest Moving Treaty – Copyright for Libraries in 2018

Copyright and libraries in 2018

At the beginning of the year, we posted about copyright for libraries in 2018, looking into ongoing and upcoming copyright reforms in order to prepare our 2018 advocacy efforts. There were areas of promise, with helpful draft legislation on the table in countries such as South Africa or Japan. But there were also concerns, with trends towards placing greater limitations on uses of works by libraries in the digital world (read this post on trends in 2018).

We’ll open 2019 with two more blog posts: one similar to the overview on copyright for libraries in 2018, and one on trends for the upcoming year. But today, we close the current year, looking back at how far we’ve got in 2018.

 

Fear: Uncertainties Drive Increasingly Passionate Positions in Copyright Debates

2018 has been marked by continued intensification of discussions around copyright. Much of this is down to the development of new possibilities – and uncertainties – created by changing means of creating, accessing and sharing works.

For example, while photocopying is still key for access to information in many places, in others it is increasingly irrelevant. In its place, the value of data about how – and to what extent – works are used has encouraged greater tracking of behaviour.

These have combined with the unique nature of copyright, according to which any original work is protected, without any requirement for registration, for a very significant period of time, to create instabilities.

As a result, existing businesses have been forced to reposition themselves, and reallocate resources. Those who do not move risk becoming obsolete and disappearing. It is understandable that there is a desire to buy time in order to make the necessary changes.

However, this has also led to efforts to impose strict controls, often justified by the concern that a single copy of a work ‘in the wild’ could spell the end of a market. Efforts to promote individual user authentication to access scientific works, as well as questionable applications of blockchain could have some impact on piracy, but at significant cost to privacy and other use rights.

There are also a growing number of businesses looking at the potential of blockchain for copyrighted works, which raises important questions about user privacy, as well as the protection of exceptions and limitations to copyright.

 

Friction: The Changing Environment for Library Advocacy Around Copyright

There has also been a crucial change in the lobbying and advocacy environment. Whereas previously libraries and other groups representing users were very much at the front of copyright debates in favour of exceptions and limitations, there are now highly profitable internet platforms leading the charge.

This has often left libraries stuck in the middle, between these new platforms, and more established companies in the publishing or music sectors. To escape from this trap, they have had to invest more time in fighting against myths and unfair accusations, often centred around the idea that they are working to protect the interests of major internet platforms.

They have had to offer reminders, time and time again, of their contribution to innovation and creativity through democratic access to information, as well of course through the billions they spend on content. Too often, they have had to face personal attacks.

Recent research in Europe, fortunately, has started to throw light on deliberate efforts to use association with tech companies to weaken the arguments of libraries and others working for the interests of users. They have also shown the far greater lobbying efforts made by those who wish to restrict access.

Thanks to the efforts of engaged librarians giving their time to advocate for libraries, copyright legislation which will enable libraries to fulfil their missions in a digital age is nonetheless advancing in many countries. Their perseverance in these passionate struggles has been key to achieving progress.

 

The Fastest-Moving Treaty: The Impact of Marrakesh

A high point of the year is certainly the progress towards universal implementation of the Marrakesh Treaty. This looks to facilitate access to books and other documents for people with print disabilities. With 48 countries having completed the process to become full members (including the European Union as a single signatory),  it has become the fastest-ratifying Treaty in WIPO’s history.

Crucially, Marrakesh shows the impact that an international instrument (on exceptions and limitations to copyright) can have on copyright legislation worldwide, as the only way to ensure cross-border collaboration, which is more and more needed and technologically possible in the digital world.

Worryingly, however, there are signs of efforts to spread untruths about what the Treaty says, which risk seriously restricting the impact that it will have at the national level. IFLA has therefore published a monitoring report from countries which have ratified the Treaty (or are in the process of doing so), and how (or whether) they have adapted their national laws. The overview is available on the IFLA website, and updates will be published regularly.

IFLA has also released “Getting Started”, a guide for librarians in countries where the Treaty has been implemented, helping them to make full use of its provisions. There is considerable hope that good laws and good implementation, as well as efforts to promote accessible publishing in the first place, will lead to real improvements for people with print disabilities.

What has happened since January 2018: legislative changes

Africa

Nigeria – The Nigerian copyright bill was approved by the Cabinet. We are still waiting for details on what it contains.

South Africa – After years of discussion, the South African copyright amendment Bill was adopted by the South African National Assembly on 5 November. The process is not completely over, as the Bill will now be sent to the National Council of Provinces for concurrence, which is likely to happen early 2019. More information is available in this blog post.

Kenya – The Copyright Amendment Bill was introduced in 2017. It contains provisions towards the implementation of the Marrakesh Treaty, provisions on the regulation of collective management organisations, fair dealing for the purposes of scientific research, private use, criticism or review of the reporting of current events, quotation, incidental inclusions, and an exception for the reproduction of works in libraries and archives, among others. It was subject to a vote in the Senate in October – we will provide further information when available.

Lesotho – A copyright law review was launched which should lead to the implementation of the Marrakesh Treaty.

Zimbabwe – Parliament ratified the Marrakesh Treaty in January 2018.

Asia-Pacific

Australia – A new copyright bill was passed at the end of June to extend safe harbour provisions to libraries and archives. These limit the damages that online service providers pay when their clients use their services to infringe copyright, as long as the service providers take steps to remove content that they know is infringing. Previously – ironically – safe harbour had only been available for commercial ISPs in Australia, not to others who provide the same services. Those left out included libraries and archives, universities, schools, and online platforms (e.g. local versions of YouTube, Facebook etc), which are now covered. For more information, check the ALCC’s press release.

Furthermore, the Government called for submissions on the Copyright Modernisation Bill. This time the government consulted on a few specific aspects of Australia’s copyright regime. The Government sought to understand whether there is general support for several provisions, namely flexible exceptions to copyright, access to orphan works and contracting out of copyright exceptions. More information is available here, together with all submissions sent. IFLA’s is available here and ALCC’s is here.

Taiwan – Taiwan, which already has a fair use provision in its law, has made a small amendment which will make it clear that fair use exists independently of additional, statutory exceptions to copyright.

Japan – A new copyright law has been adopted, allowing for the ratification of the Marrakesh Treaty implemented.

Thailand – The King of Thailand has approved the necessary laws for the implementation of the Marrakesh Treaty.

New Zealand – An issues paper was issued on a planned copyright reform, with submissions welcome until 5 April 2019. There will be separate legislation to allow New Zealand to ratify Marrakesh. The paper is very comprehensive, with a full section on libraries, and covers many other relevant issues. There is acknowledgement that introducing fair use could be a result of the consultation, but at this stage the paper requests a focus on how the current Act is functioning.

Singapore – There was a first public consultation in October 2016 with 16 proposals, including an expiry date for copyright protection of unpublished works, use of orphan works, educational exceptions to reflect digital education, facilitating the work of libraries and archives, museums and galleries, provisions for print-disabled users, among others. A second consultation took place in May 2017. A White Paper is due in the first months of 2019.

Europe

EU Copyright in the Digital Single Market – Discussions around the proposal for a Directive in the Digital Single Market are still ongoing, now between the three institutions involved: the Council of Ministers, the Commission and the Parliament. They are hoping that an agreement will be reached early next year. Member states will then have a period – likely just one year – to adapt their national laws. There are currently positive provisions for cultural heritage and research institutions (text and data mining, preservation, digital education, out of commerce works), but also worrying articles that might hamper access to information.

EU Directive and Regulation on Marrakesh – After the entry into force of the EU Directive and Regulation the instrument of ratification was deposited at WIPO, and several member states have transposed the Directive. See the Marrakesh overview for more information.

United Kingdom – The official start-date for e-PLR in the UK was the 1 July. The official government press release is available here.

Denmark – Denmark was the first country where PLR was paid based on eBooks & digital audio books.

Ireland – A draft bill was published in June 2018. This includes proposals to “allow libraries, archives and educational institutions to make copies of work in their collections for the purposes of preservation and inclusion in catalogues for exhibitions; extend existing copyright exemptions to: (i) promote not for profit research, including by introducing a text and data mining exception; (ii) widen the scope of the fair dealing exemption in the context of news reporting; and (iii) allow the creation of a voluntary digital deposit of books”. It is currently in discussion in committee (source).

Switzerland – A copyright working group reached an agreement in various issues related to the modernisation of copyright law in March 2017, and this has been discussed in committee in the Federal Parliament. It contains provisions relating to orphan works, cataloguing, extended collective licensing, research exceptions, and will allow for the implementation of the Beijing and the Marrakesh treaties. Proposals to introduce public lending right, as well as a right for researchers to publish their own works open access (regardless of contracts signed), and steps to make it possible to identify the IP addresses of people suspected of piracy were rejected.

Latin America and the Caribbean

Mexico – The Mexican Senate passed changes to copyright law that would allow for content to be taken offline even if there are only suspicions of infringement (i.e. without proof). More information is available at the Creative Commons webpage.

Colombia – The changes from the recent copyright reform were adopted. Some of the most relevant points for libraries: an orphan works provision, based on a mandatory search; a lending exception (with no explicit reference to digital lending, which does not necessarily exclude it). There are some negative additions, such as an extension of the term of protection (from 50 to 70). The Marrakesh provisions will be adopted through another reform.

Uruguay

Libraries and others have been active in setting out what changes they would like to see in the law. There has been a particular focus on taking the necessary steps to ratify the Marrakesh Treaty.

North America

Canada – The Canadian Parliament continues to carry out its review of the country’s copyright laws, taking evidence from different sides of the debate. Libraries are arguing for the current fair dealing provisions to be safeguarded, as well as engaging in discussions around copyright and indigenous knowledge, technological protection measures, and contract override. In parallel, legal processes involving Canadian universities, education ministries and the reprographic rights collecting society Access Copyright continue, as does a review of how copyright royalties are defined. You can read more on the pages of the Canadian Association of Research Libraries and the Canadian Federation of Library Associations. Results of the review are expected towards the middle of next year, and will inform policy choices made by whoever wins the elections due in October 2019.

United States – there was welcome progress on Marrakesh with Presidential sign-off for legislation ensuring that the Treaty can be implemented nationally. Further reforms considered questions about the situations in which technological protection measures can be removed (positive), and whether the Register of Copyrights should be a presidential appointment or left up to the Library of Congress.