Tag Archives: Limitations and exceptions to copyright for libraries

Making Progress: Welcome Vote in South African Parliament on Copyright for Libraries

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.

As it currently stands, there are very positive provisions for libraries and other cultural heritage institutions, some of which are particularly positive. There are significant improvements such as the adoption of fair use, strong exceptions and limitations for libraries, archives, museums, galleries and educational institutions, provisions on Marrakesh and orphan works and a national open access policy.

These very positive results would not have been possible without the constant advocacy work by many librarians in the country, among which Denise Nicholson, expert advisor of the Copyright and Other Legal Matters Committee at IFLA. They engage with decision makers to insist on the need for adequate provisions for libraries to fulfill their missions, and to bring down unfair allegations against these provisions.

Here’s an overview of the most relevant provisions for libraries, archives, museums and research and education institutions:

  • Fair use: non-exhaustive list of uses (research, criticism, reporting current events, teaching, comment, parody, preservation, etc.) and four relevant factors (nature of the work, amount and substantiality of the part of the work affected by the act, purpose and character of the use and substitution effect of the act upon the potential market for the work)
  • General exceptions for libraries, archives, museums and galleries, for non-commercial purposes:
    • to lend a work in a tangible media
    • to provide temporary access to a work in an intangible format accessed lawfully, to a user or to another institution
    • to undertake preservation and web archiving (copies for back-up and preservation of works in the collection, and preservation of works in publicly accessible websites)
    • to combine the preservation exception with making the work available when it has been withdrawn from public access after having been communicated to the public
    • to get copies from other institutions for incomplete works
    • to format-shift
    • to make copies when permission from the copyright owner cannot be obtained
    • to make copies to lend them to other institutions for exhibition
    • to supply documents
    • a limitation of liability for any library, archive museum or gallery employee working within the scope of his or her duties

*none of these provisions limit the fair use provision

  • Marrakesh provision, allowing the making and supplying of accessible format copies to a person with a disability (or a person who serves him or her), including across borders, with no commercial availability check and no remuneration provision. A compensatory sum of money is deposited in a particular account and can be collected by the copyright owner at any time, but there is also a process allowing the authorised entity to recover the amount
  • Contract override provision applicable to all the provisions in the act
  • Licenses for orphan works. Before use, there is a requirement to publish the intention to register the work as orphan in certain sources, followed by an application to a government body, which will grant a non-exclusive license if the procedure has been duly followed
  • Specific exceptions from copyright protection applicable to all works, among which:
    • Quotation (up to an extent “justified by the purpose”)
    • Use of illustrations in publications, broadcast, sound or visual record for the purpose of teaching (up to an extent “justified by the purpose”)
    • Translation of works for non-commercial purposes and limited to specific uses (personal, educational, …)
  • A temporary reproduction and adaptation exception, for transient or incidental copies or adaptations of a work that are an “integral and essential part of a technical process”
  • Reproduction exceptions for non-commercial educational and academic activities, including:
    • Making copies of works for the purposes of educational and academic activities
    • Including these in course packs (by educational institutions) both in physical and virtual learning and research environments
    • when there is no license available to incorporate the whole or a substantial part of a work, this will fall under the exception
    • Reproducing a whole textbook if the work is orphan, out of commerce or out of print
    • Incorporating portions of works in an assignment, portfolio, thesis or a dissertation for submission, personal use, library deposit or institutional repository (by a person receiving instruction)
  • A national open access policy: the author of any scientific work resulting of a research activity that received at least 50 per cent of its funding from the state has the right, despite granting the publisher or editor an exclusive right of use, to make the final manuscript version available open access.

 

1 Day to Human Rights Day: Bringing Rights Together

Image for Human Rights Day -1In the last of our series of blogs in the run up to Human Rights Day, we’re looking at situations where different human rights risk being in tension with each other. We argue that in a number of key areas of potential clash, the work, professionalism and ethics of librarians offer a valuable response. 

Over the last week, our blogs have looked at just some of the different ideas contained within the Universal Declaration of Human Rights, which will turn 70 tomorrow.

They are ideals – and indeed should be, as no country or society should ever feel like they have fully implemented the Declaration, and can now relax. Defending and promoting these rights is a constant effort, not least for libraries.

A complicating factor in this work is the fact that rights can, sometimes, collide. Because it is possible that one individual’s exercise of freedom can restrict that of someone else.

The Declaration, in its Article 29b, recognises this risk: ‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others’.

At the same time, it warns that no part of the Declaration ‘may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein’.

There is clearly a tension, and not necessarily an easy one to manage. These tensions also exist in the work of libraries, requiring careful judgement and attention.

As the last in our set of blogs in the run-up to Human Rights Day, this post will look at three examples of where achieving the best result requires balance, and how libraries – uniquely – can help provide this.

 

Access to Information vs Privacy: the Right to be Forgotten

Libraries have long had a mission to collect material about the world today – newspapers, magazines, books and other documents. They then make this available to users in order to support research and understanding about the present and past.

Such materials have always contained information about people, from simple factual data to information about political views and personal characteristics. The fact that such materials place limits on the right to privacy has been generally accepted, given the contribution made to research and learning, and the fact that researchers needed to visit a library to read them.

With the coming of the internet, far more information is available, from a growing number of websites (of which only a very small share belongs to libraries), more quickly and easily than ever before. This makes it more difficult for past mistakes to be ‘forgotten’.

Following a case brought to a Spanish court, the Court of Justice of the European Union therefore developed the concept of a ‘right to be forgotten’, or at least a right to be delisted from search results. Meanwhile, the General Data Protection Regulation has strengthened the ‘right to erasure’ – the right of individuals to ask that information about them be deleted.

This brings into focus a first clash of rights – between the right to a private life (Article 12), and the right of access to information (Article 19).

For libraries, this is a relevant question. Citing Article 12 in its Statement on the subject, IFLA has acknowledged that some information may be unfairly damaging, where it is ‘untrue, where it is available illegitimately or illegally, where it is too personally sensitive or where it is prejudicially no longer relevant, among other possibilities’.

However, it has also underlined that the possibility to limit access to – or erase parts of – the historical record need to be the exception, not the rule. Such provisions can too easily be used to hide information that can support decision-making, or whitewash reputations. Any restrictions implemented therefore need to be transparent, managed by the courts rather than private actors.

This is not to say that libraries themselves do not have a role to play in this. They can ensure that access to information is provided in a way that is respectful of the interests of the subject, as well as of the reader. This provides a more nuanced way of managing this tension, as well as leaving space for future generations to make their own judgements.

In this, the approach is similar to that with access to indigenous cultural expression, where applying professional ethics to questions of whether, and how, to give access to works represents a much more nuanced way of achieving goals than laws.

 

Freedom of Expression vs Freedom from Discrimination

The response to hate speech is a frequent subject of discussion in the media.

It is clear that there have always been voices promoting the rejection of the other. The internet has, however, made it easier for such voices to spread, strengthening their power.

There are legitimate fears about the links between hate speech and harm to the groups targeted. Indeed, Article 7 underlines that ‘All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination’.

At the same time, there is also the right to free expression set out in Article 19 of the Declaration, a key principle for the work of libraries and others. This speaks in favour of keeping restrictions on speech to the absolute minimum necessary.

It is clear that judgements about where unpleasant speech becomes dangerous will vary. Neither banning all disagreeable speech (disagreeable to whom?), nor taking no steps to stop efforts to promote violence, are desirable.

Once again, there is a potential clash. How can we find the balance between the two rights?

Again, this is not a new issue. There are many laws which look to establish where the line between unpleasant and dangerous speech lies. Such laws should be clear and transparent, and of course proportionate in the limits they place on free speech.

A recent trend is the growing pressure on major internet companies to do more to prevent the spread of dangerous messages. Some are already acting to downgrade search results, or to slow the spread of this content.

However, this does imply leaving key decisions to private companies, with all the issues around transparency and oversight that this implies.

Meanwhile, libraries also have something to add to this discussion. Through their professionalism, and their ethics, they can make valuable judgements made about the way in which access is offered. For example, texts which do clearly incite discrimination and violence may not be suitable for pubic consultation, but could rather be restricted only to researchers.

At the same time, librarians may also need to defend books which others try to remove for a variety of reasons, in order to ensure that collections serve all of the community, not just the most vocal. Courage and careful reflection are both needed.

 

Cultural and Scientific Participation vs Creators’ Rights

Finally, there is the ongoing question of how to balance the right of everyone to participate in cultural life and benefit from scientific progress (Article 27a), and the right of creators to the moral and materials interests resulting from their work (Article 27b).

While the Universal Declaration does not make intellectual property rights a human right, it does provide a basis for this. What is certain is that an industry has developed around copyright, which provides a revenue to creators (although questions remain about how effectively it achieves this).

Meanwhile, there is the right to participate in cultural life. For those without the disposable income to buy books, or other cultural goods and services, there is a risk of being left out. For them, access needs to be free for it to be effective.

Once again, there is a tension – how to ensure that everyone can have access to culture and the results of research and innovation without limiting the revenues of creator?

Clearly, the work of libraries is only part of the picture here. The fairness of the distribution of revenues to creators is likely a bigger issue. And of course for scientific articles, the author is rarely paid at all, living rather off their institutional salary.

It is nonetheless true that, once libraries have bought works, they do then lend them out. Yet, there is no conclusive evidence suggesting that they reduce sales, but rather signs that they promote the discovery of new writers, as well as acting more generally to strengthen reading culture.

In this way, and as part of a broader cultural and research policy which ensures that authors themselves are primary beneficiaries (in line with Article 27b), libraries can also help resolve any potential conflict of rights here.

 

Guaranteeing human rights is not a simple task. This is both because of resistance from those who do not believe in them, but also because they do not always sit easily together.

Finding balance, as the Universal Declaration suggests, must be done carefully and proportionately, ensuring that any restrictions are as limited as possible.

Given that laws risk being a blunt instrument, and private solutions can lack legitimacy, the potential of libraries to find this middle way, at least in the examples given in this blog, should not be ignored.

This week, tweet about #Copyright4Libraries: join our efforts at WIPO remotely

Help make libraries heard by using the hashtag #Copyright4Libraries

IFLA representatives are currently in Geneva at the World Intellectual Property Organisation (WIPO). They will take part in week of international discussions about copyright, alongside representatives of many of the United Nations Member States. There will be a particular focus on exceptions and limitations to copyright for libraries.

This, the 37th meeting of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), will offer an important opportunity to shape actions planned around exceptions and limitations. After talks about broadcasting on the first two days of the meeting, Wednesday 28 November is likely to be the day where they focus on libraries. Member states are exploring what our institutions need to do their jobs, and how to move forwards.

We expect to hear Member States take positions on the topic, as well as receive presentations by renowned scholars to illustrate the issues. You can follow the discussion live here: http://www.wipo.int/webcasting/en/.

We published a call for action ahead of the meeting, but more can be done now: let your government representatives know that their citizens, and the libraries that serve them, care about the outcomes of the discussions. Ask them to support progress at the international level.

Post on social media using the hashtag #Copyright4Libraries.

Here are some examples of tweets or posts on other social media platforms:

Librarians in [country] need better #Copyright4Libraries, and exceptions and limitations are key to ensure this. We call upon our government @[twitter handle of the country’s copyright office] to support us at @WIPO #SCCR37

Cultural cross-border cooperation needs an international set of exceptions and limitations to #Copyright4Libraries. We call upon our government @[twitter handle of the country’s copyright office] to support us at @WIPO #SCCR37

Librarians shouldn’t have to face legal challenges for lending books and preserving our heritage. We call upon our government @[twitter handle of the country’s copyright office] to support progress on the topic of #Copyright4Libraries at @WIPO #SCCR37

 

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Here’s an overview of positive things that WIPO member states said about libraries at the last meeting.

For a clear idea of what can come out of SCCR, it is the body that adopted the Marrakesh Treaty. This international instrument is proving to be very successful and it has been ratified faster than any other treaty in WIPO’s history.

Reflexiones tras el webinar con FEBAB: la IFLA ante la OMPI y perspectivas ante la Unión Europea

[Versión en inglés disponible aquí]

Hace unos días participé en un webinar organizado por comisión brasilera de derechos de autor y acceso abierto FEBAB, la Federação Brasileira de Associações de Bibliotecários. Es el primero de cuatro webinars, una serie que busca acercar al sector bibliotecario al ámbito del derecho de autor en Brasil y a nivel internacional. Fue moderado por Sueli Mara Ferreira, de la Universidad de Sao Paulo, y contó con la colaboración de Anderson de Santana, también de la Universidad de Sao Paulo, y de Walter Couto, doctorando en ciencias de la información en la misma institución.

Centré la presentación alrededor de la actividad de la IFLA ante la Organización Mundial de la Propiedad Intelectual (OMPI) y de los cambios en materia de derechos de autor que están teniendo lugar en la Unión Europea. La OMPI es una agencia especializada de las naciones unidas a cargo de patentes, marcas, derechos de aturo y otros temas relacionados. La IFLA está representada desde hace años en su comité de derechos de autor, el SCCR (siglas dadas por su nombre en inglés, el Standing Committee on Copyright and Related Rights), como organización no gubernamental. En este foro, la IFLA defiende la necesidad de avanzar hacia un instrumento internacional que garantice excepciones y limitaciones al derecho de autor adecuadas par el funcionamiento de bibliotecas, archivos y museos.

No estoy segura de si el webinar fue interesante para los participantes (¡aunque espero que sí!) pero ciertamente lo fue para mí. Hubo diversas preguntas muy interesantes que invitan a la reflexión. Las preguntas muestran la clara preocupación del sector bibliotecario por la falta de adaptación del derecho de autor al trabajo de las bibliotecas. No se trata de pequeñeces, y ya ni siquiera de adaptar la ley al mundo digital. Se trata de aspectos fundamentales como la preservación o el préstamo público. Mientras que determinados países cuentan con excepciones y limitaciones al derecho de autor que autorizan expresamente este tipo de usos de interés público, la ley de derecho de autor en Brasil no cuenta con ninguna excepción ni limitación al derecho de autor.

Esto deja a los bibliotecarios en un estado de indefensión y preocupación constante sobre los usos que se hace de las obras en bibliotecas. Aún y los muchos esfuerzos que hacen los bibliotecarios para explicar al usuario final cómo utilizar las obras, es incontrolable. Sin ninguna garantía, las bibliotecas temen ser responsables de malos usos por falta de información, especialmente dado que se puede llegar a discutir que todo uso lo puede ser, incluso siendo de interés público, sin una ley de propiedad intelectual adaptada que lo ampare.

Los avances ante la organización mundial de la propiedad intelectual dan cierta esperanza al sector bibliotecario en los países en los que los cambios no están teniendo lugar por falta de iniciativa a nivel nacional. El tratado de Marrakech y su rapidez en ser ratificado o adherido por los estados miembros de las naciones unidas es un muy buen ejemplo del efecto que tienen este tipo de instrumentos. Estos estados han debido hacer cambios a su legislación nacional que de no ser por el tratado probablemente no habrían tenido lugar. El mismo Director General de la OMPI Francis Gurry señaló en la última asamblea general de la OMPI que el tratado de Marrakech se estaba moviendo a una rapidez que excedía la de cualquier otro tratado de la organización.

A continuación intento responder a dos preguntas, en mi opinión muy relevantes, que planteó Walter Eller do Couto durante el webinar:

1. El Convenio de Berna establece el principio del “trato nacional”, según el cual los países deben aplicar su legislación a los extranjeros. Esto puede dificultar el trabajo del bibliotecario, que necesita conocer el derecho de autor de varios países. ¿Es posible vislumbrar algo parecido al Tratado de Marrakech en relación a las otras limitaciones excepciones para facilitar este tipo de actividades transfronterizas?

La IFLA ha venido insistiendo en la necesidad de un tal tratado precisamente para hacer frente a la difícil aplicación del derecho de autor de forma transfronteriza si no existen unos estándares mínimos a través de fronteras (perdiéndose muchas posibilidades de colaboración e intercambio cultural), y a la vez para forzar el cambio legislativo en países que de forma individual no están tomando la iniciativa, aunque sea posible bajo el Convenio de Berna.

Sin embargo, en el seno de la OMPI, determinados países se oponen (principalmente la Unión Europea, lo cual es sorprendente dado que ya cuentan con excepciones y limitaciones al derecho de autor para instituciones del patrimonio cultural e incluso las están adaptando al mundo digital). Alegan que los países ya tienen libertad para legislar, y no están a favor de un instrumento internacional con efecto vinculante.

El comité de derechos de autor de la OMPI ha definido un plan de acción, que tras varias reuniones regionales y un ejercicio de intercambio de ideas, finaliza con una conferencia internacional. Ésta tiene como objetivo “tomar en consideración los frenos y contrapesos de las distintas soluciones internacionales destinadas a hacer frente a los desafíos reconocidos, por ejemplo, arreglos contractuales, recomendaciones conjuntas, tratados u otras formas, según corresponda”.

2. Hablando de asumir riesgos, la historia del derecho de autor tiene casos de bibliotecas que desafían la legislación, asumiendo riesgos para poder hacer su trabajo. Un ejemplo es el nacimiento de la Sección 108 en la legislación estadounidense, que surgió tras una disputa judicial entre una editorial y una biblioteca. ¿Cómo es el posicionamiento de la IFLA en relación a conductas de bibliotecas que desean asumir riesgos incluso sin salvaguardias legales?

La IFLA no tiene posición oficial al respecto, y es claramente una situación muy delicada. Sin embargo, recientemente la IFLA adoptó una posición sobre alfabetización y educación en materia de derecho de autor. Esta declaración insiste en la necesidad para el sector bibliotecario de tener un mínimo de conocimientos sobre el derecho de autor y hace una serie de recomendaciones. No resuelve el tema que plantea la pregunta, pero reconoce que la falta de conocimientos en este ámbito, y sobre todo la falta de legislación adaptada, puede ser muy problemático. Por otro lado, anima a más conocimiento como un primer paso para que el sector entienda de forma global la necesidad de cambio legislativo, y lo impulse.

Los bibliotecarios hacen esfuerzos para asegurar el cumplimiento de la ley, pero en algunas ocasiones, ésta está tan lejos de la misión principal de las bibliotecas de preservar y facilitar acceso al conocimiento, que se plantean situaciones imposibles de resolver a no ser que los bibliotecarios actúen sin tener la completa seguridad de estar dentro de la legalidad. Hay claramente una necesidad urgente de cambios a nivel legislativo.

Para más información, el webinar completo está disponible en la página YouTube de FEBAB.

Thoughts after the FEBAB webinar: IFLA’s work at WIPO and current perspectives in the European copyright reform

[Spanish version available here]

A few days ago, I took part in a webinar organised by the copyright and open access committee of FEBAB, the Brazilian Federation of Library Associations. It was the first of four webinars that seek to inform the library field about copyright in Brazil and at the international level. It was moderated by Sueli Mara Ferreira, from the University of Sao Paulo, and was co-hosted by Anderson de Santana and Walter Couto, from the same institution.

My presentation focused on IFLA’s advocacy work at the World Intellectual Property Organisation (WIPO) and on the European copyright reform. WIPO is a United Nations specialised agency in charge of patents, trademarks, copyright and other related matters. Since several years, IFLA has been represented in this institution’s copyright committee, the Standing Committee on Copyright and Related Rights (SCCR), a forum in which IFLA defends the need to advance towards an international instrument that guarantees exceptions and limitations to copyright suited to the functioning of libraries, archives and museums.

I am not entirely sure of whether the webinar was helpful to participants (although hopefully it was!) but it certainly was to me. There were many interesting questions that referred to key challenges for the library profession around copyright. These questions show the struggle that librarians face when dealing with outdated copyright laws in their work. And by outdated I do not only mean that they are not adapted to the digital world: in some cases, they simply do not allow for fundamental activities such as preservation or lending. While some countries have exceptions and limitations to copyright that expressly allow some public interest activities, copyright in Brazil, for instance, has no exception at all.

This puts librarians in a very difficult position, having to constantly worry about copyright law infringement. Also, even if librarians are careful in guiding the user in how to use works, they cannot control all their actions. With no guarantee, librarians are worried that they might be considered guilty of infringements by users, especially under a legislative framework where any use, even when it is part of public interest activities, can be considered an infringement.

Progress at WIPO gives hope to the sector in countries in which the necessary change has not taken place. The Marrakesh Treaty and its numerous ratifications and accessions by United Nations member states is a very good example of the impact of an international instrument. Changes are happening at the national level that wouldn’t otherwise have taken place.

Two particular questions raised at the webinar are worth exploring in this blog:

  1. The Bern convention establishes the principle of “national treatment”, according to which countries need to apply its own legislation to third party nationals. This may make librarians’ work difficult, as they need to figure out what copyright laws say elsewhere when working across borders. Would it be possible to adopt something similar to the Marrakesh Treaty regarding other exceptions and limitations that can facilitate cross-border work?

IFLA has been advocating for the need of an international instrument, precisely to face the difficulty in applying copyright law across borders where no minimum standards exist. This would also encourage legislative change at the national level.

However, several WIPO member states oppose such an instrument (mainly the European Union, which is surprising given the fact that it already has exceptions and limitations to copyright for cultural heritage institutions and that it is now adopting them to the digital world).

Given the lack of consensus, the SCCR has defined an action plan to advance discussions on the topic, which among other things, establishes several regional meetings, a brainstorming exercise, and finalizes with an international conference whose goal is “to consider the opportunities and challenges provided by various international solutions including soft law, contractual/licensing and normative approaches, as appropriate”.

  1. In the history of copyright, there have been cases in which libraries challenge legislation and assume risks in order to do their work. An example is at the origin of the creation of Section 108 in US legislation, which was created after a legal dispute among a publishing house and a library. What is IFLA’s position regarding libraries wishing to take risks to do their jobs even with no adequate legal guarantees?

IFLA has no official position on that matter, which is clearly a delicate situation. However, IFLA recently adopted a Statement on Copyright Education and Copyright Literacy. The document insists on the need for librarians to have a minimum knowledge of copyright and also makes a series of recommendations. While it does not solve the question, it recognises that the lack of an adequate legal framework in this area can be very problematic. It also encourages more knowledge as a first step for the library field in order to understand the need for change in copyright law, and to advocate for it.

Librarians make efforts to ensure that copyright law is respected, but in some occasions the legal framework is so far away from their public interest mission that they are put in difficult situations. There is clearly an urgent need for change in copyright legislation.

For more information, check the full webinar (in Spanish and Portuguese) on FEBAB’s webpage.

 

Copyright discussions at the LIBER Bookfair: public lending, unwaivable right to remuneration and much more

Copyright and more

IFLA recently took part in a session during the LIBER bookfair held in Barcelona from 3-5 October. LIBER, organised by the Spanish Association of Publishers’ Guilds, is a biannual event that alternates between Madrid and Barcelona.

The panel discussion was organised by FESABID, the Spanish Federation of Societies of Archivists, Librarians, Documentalists and Museologists, and focused on libraries and intellectual property and imminent challenges. A crowd of librarians, but also publishers and decisionmakers, attended and participated in the session with interesting comments regarding the “struggle” that libraries go through in seeking to give access to knowledge under outdated copyright laws.

Discussions during the panel had a strong focus on two aspects: the European copyright reform and public lending.

The European copyright reform

The first one promises to update certain exceptions and limitations to copyright that should make the above-mentioned “struggle” for libraries softer. Although not all exceptions might become mandatory (see the Council and the Parliament’s new article on text and data mining, or the second part of article 4 on illustration for teaching in the Commission’s proposal), which is to the detriment of harmonization within the Union, they all seem like a step forwards in adapting copyright to the digital age.

Public lending rights

Meanwhile, public lending in Spain has a tumultuous history and is far from having reached a status where stakeholders are satisfied. Collecting societies still claim that the current system is so inefficient that it ends up creating more cost than benefit. Moreover, after the preliminary ruling by the CJEU in case C‑174/15 regarding e-lending, there was also some expectation on whether the European copyright reform directive would bring more legal clarity to the topic.

Currently, digital lending in Spain works under the eBiblio platform, accessible to all users with a Spanish public library card. Contrary to public lending of physical books, libraries do not buy and lend the works, but they are accessed through this government-established platform.

Collective management in Spain

This LIBER edition was held at an interesting moment for Spain, as the Government has recently amended its copyright law to transpose the collective management Directive and the Marrakesh treaty Directive.

Collective management organisations in Spain are given an important role under Spanish law. They are for instance in charge of collecting and distributing money for remunerated limitations to copyright such as the private copy limitation or public lending. Even though they have such a big responsibility, there are still claims regarding their lack of transparency and fraudulent activities on certain occasions.

The important role that collective management organisations (CMOs) play in Spain is also underlined by a specific provision regarding unwaivable right to equitable remuneration for authors, subject to compulsory collective management. It has been adopted not only for the provision that transposed the SatCab directive, but also with regards to the remuneration in the limitation for illustration for teaching (art. 32.4 TRLPI), the limitation to make private copies (art. 25 TRLPI) and the neighbouring right for press publishers (art. 32.2 TRLPI).

Such provisions have received a lot of criticism (from the Creative Commons community, and from the library community) for their negative impact on the free circulation of knowledge. Even if the “intention” is to ensure remuneration to authors, it means that cannot decide to share their creation freely.

The hurry to transpose this directive meant that the Marrakesh Treaty Directive, which was transposed at the same time, was adopted by Spain faster than expected. It opens up possibilities of cross-border exchange within the European Union and from the Union to third party countries that have ratified the Treaty. Given the large number of Spanish-speakers around the world, it is certainly very welcome news.

An hour was obviously too short to get into all these topics, which shows how there are a lot of areas that still require the library community’s attention. Their experience and engagement will be key in shaping the future of copyright law in the country.

 

 

 

Of Nuts and Sledgehammers: Why MEPs Should Choose their Tools Wisely in Copyright Reform

Graphic for sledgehammers and nutsThe European Parliament’s vote on the draft copyright directive next Wednesday is likely to be the last chance for transparent discussion on the substance of a reform that has been years in the making. It is also a last chance for libraries to reach out to and influence Members of the European Parliament.

A key message will be that European law-makers must choose wisely, and ensure that they are creating rules that are targeted, proportionate, and respect the public interest.

The Draft Copyright Directive

The last wide-ranging piece of EU copyright legislation dates to 2001. Since then, we have seen new technologies and expectations from users, dramatic evolutions in the market for music and media, and an explosion in the amount of copyrighted material produced every day online.

The draft Directive seeks to take stock of these changes, addressing questions around text and data mining, digital education, preservation, use of works which are no longer on sale, rights of press publishers and the obligations of content-sharing platforms, amongst other issues.

The debate has been intense, with a particular focus on Google and YouTube. It has, often, come across as a dramatic struggle between big technology companies and creators.

The problem with this approach is that tends to lead to dramatic solutions – sledgehammers to crack nuts. This blog illustrates just two areas where such dramatic solutions are being proposed, and the harm that they risk doing to libraries and their users.

 

Repositories are not YouTube

Perhaps the most contentious part of the Directive has been Article 13, which deals with the responsibility of content-sharing platforms to remove copyright-infringing materials uploaded by users.

While this covers commercial operations such as YouTube, other sites, such as educational and scientific repositories run by libraries and others also help people share their work. As such, they risk falling under the same rules.

For example, scientific repositories are a vital part of the infrastructure for open access. They host copies of research articles – often pre-print (i.e. not final) versions – allowing people who aren’t registered at the wealthiest universities or research institutions to have access. For doctors, individual researchers, and people in developing countries, this can be essential.

Educational repositories play a major role in spreading Open Educational Resources (OERs). These offer exciting possibilities for teachers to find and use materials which may be better tailored to their needs than traditional textbooks.

The repositories that host these materials are clearly working in the public interest, and are often hosted by libraries, education or research institutions. As concerns their size, resources, and objectives, they have little in common with YouTube.

However, the draft Directive risks treating them in the same way, placing the same regulations and responsibilities upon them. While YouTube can deal with this, it is hard to imagine repositories working on small budgets, and a strong aversion to legal risk, doing the same. See our blog on the risks around Article 13 and filtering for more.

 

Libraries are not Pirates

The desire to fight piracy of copyrighted content extends beyond Article 13. Elsewhere in the directive, organisations representing certain rightholders have made major efforts to impose restrictions on what libraries can do, claiming that this will help limit infringement.

For example, proposals on text and data mining (TDM) could make it very easy to restrict access to materials on the grounds of security, or force researchers to delete the datasets they create as part of the process. Such steps would create a major disincentive to invest time and effort in TDM.

Why do so when access to materials is uncertain, when the work that goes into structuring data will be lost, and when others will not be able to verify the results? Libraries already take care to respect copyright, and do not need further restrictions.

Similarly, there have been major efforts to prevent libraries from taking preservation copies of works held on third-party servers. In a digital world, this is the case for a growing share of what libraries offer their users. Excluding these eBooks, articles and other materials undermines a core mission of libraries, and increases the risk that these works in question being lost in future.

Finally, an amendment proposed to Article 6 of the directive would stop libraries using more than one exception at once. In practical terms, libraries would have to choose between taking a preservation copy of a work, carrying out text and data mining on it, or using it for teaching.

This would be a bizarre situation, with libraries forced to select which of their public interest missions they want to fulfil with works in their collections. It is also unnecessary, as whatever libraries do is still governed by copyright law, and in particular the obligation not to cause unjustified prejudice to rightholders. Libraries should not be forced to choose.

 

There are other areas where misguided rule-making risks doing more harm than good. Indeed, there is a strong argument that it is competition law, not copyright, that provides the best response to the market dominance of just a few major platforms.

While we will have to wait to see if Europe’s competition authorities act in this area. In the meanwhile – and particularly next Wednesday, it will be important to ensure that European law-makers choose their tools wisely.