Tag Archives: open access

Restitution with a Catch? The Copyright Perspective on the Sarr-Savoy Report

The Sarr-Savoy report on the restitution of African cultural heritage, published in November 2018, proposes to recontextualise the presence of African artefacts in French heritage collections.

The objective of this report is to develop, in view of the role of the French state in colonisation, recommendations to update relevant laws around restitutions, as well as to encourage bilateral agreements with countries following requests for restitution.

Among its recommendations, the report suggests that collections which are returned should be subject to digitisation beforehand, with the digitised files then made available for use under free and open access to everyone.

This recommendation is easy to miss in the report, as the paragraphs which concern it are discreet. Nonetheless, it raises questions on two essential questions:

Who owns the physical and digital collections and who has the right to choose the policy of digitisation and openness of these artefacts?

This blog looks at the report’s approach, and presents some of the concerns expressed by this, in particular through a letter drafted by Mathilde Parvis and Andrea Wallace.

First of all, the suggestion to digitise and make collections accessible may seem an interesting initiative in the context of outreach by heritage institutions. For a number of years now, it has been clear that giving access to digital collections is a key mission for cultural institutions, as the report mentions briefly.

However, there are questions about whether this should be subject to the decision of the French state, or be a pre-condition for restitution. The term ‘restitution’, as defined in the report, is strongly connected to the question of legitimate ownership of the object. This cannot be brushed aside when it comes to digital collections.

Arguably, the legitimate ownership by African governments of returned items should give them the right to take decisions regarding the appropriate policy to be put in place on digital collections. Can it be appropriate for the government of a former colonial power to set out such demands in a restitution agreement when talking about heritage that arguably should never have been in its possession in the first place?

Indeed, as Mathilde Parvis and Andrea Wallace’s response perfectly underlines: it should rather be up to the communities to make decisions concerning the artefacts of their heritage. Indeed, suggesting or imposing in bilateral agreements a policy of digitisation and open access to collections appears to be at odds with the principle of recognition of spoliation.

Moreover, the report’s proposals concerning free and open access to and use of images does not seem to match the policy around images in French collections. Indeed, French policy on openGLAM is not based on a centralized ministerial incentive but on the will of cities and organisations independently of each other (whereas German GLAM institutions are far more organised and supported).

The request made to African governments regarding the opening of access to digital collections of collections seems, therefore, to be antithetical with the policy it applies to the digital collections of France’s own institutions.

Clearly, openness is to be welcomed in general as the best way of giving the biggest number of people possible the opportunity to engage with heritage, where other concerns (privacy or indigenous rights for example) do not stand in the way. Nonetheless, in these conditions, it risks being seen as an imposition, not a virtue.

Therefore, Parvis and Wallace’s reply defines several ways to reframe the recommendations of the Sarr-Savoy report, such as:

– Clearly define the scope of Open Access – commercial, non-commercial, public domain, possibility of reuse.
– Clearly define who owns the digital image reproductions.
– Carry out research on the conformity of these recommendations concerning the laws of African countries.
– Do not separate digital reproductions from returned objects because the reproductions are also subject to cultural appropriation.

With plans now underway to reform France’s Heritage Code, we will follow closely how this debate is reflected in any proposed amendments.

“What is in the public domain should stay in the public domain!” – Article 14 of the EU-DSM Directive

by Timotej Kotnik Jesih, Intellectual Property Institute, www.ipi.si and Dr. Maja Bogataj Jančič, Intellectual Property Institute (IPI), www.ipi.si

The new Digital Single Market Directive (hereinafter the DSM Directive)[1] addresses works of visual art in the public domain in its Article 14, which reads “Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.”

This article was introduced by the European Parliament as an amendment during the legislative process with the intention of enhancing cultural heritage preservation by relying on the legal concept of public domain. Its aim is to ensure that works of visual art that are in the public domain in analogue form remain in the public domain also in digital form, by not granting copyright protection to faithful reproductions of such works. Reproduction of visual works in the public domain can, pursuant to Article 14 DSM Directive, be granted copyright protection only when they fulfil the originality threshold themselves. The rationale for this provision is explained in the DSM Directive’s Recital 53, as “[t]he expiry of the term of protection of work entails the entry of that work into the public domain” and “the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage“, whereas in the digital environment, “the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works“.

Article 14 DSM Directive increases the level of legal security for libraries and other cultural heritage institutions (CHIs) when they use public domain works of visual art in cultural heritage preservation activities, as faithful reproductions of such works sometimes otherwise enjoy protection by related rights, even if they do not meet the copyright-required originality threshold. Article 14 enables libraries to be able to make visual works from their collections (that are in the public domain) available online and in a digital format, without the fear of such works having to be taken down. With the good implementation in national legal systems, Article 14 will hopefully provide the tool for libraries to expand and facilitate the access to works in the public domain and improve cultural heritage preservation across the whole of EU.

Despite Article 14 being one of the most unambiguous provisions in the DSM Directive, there is still some leeway for libraries and CHIs to try and ensure the best possible implementation of this provision.[2] While Article 14 explicitly applies only to works of visual arts, there is nothing preventing the member states from implementing a broader provision, covering any type of works. Such implementation would further improve cultural heritage preservation, as the issue of appropriation of public domain works and protecting non-original reproductions is certainly not limited only to visual works.

In Slovenia, the DSM Directive implementation process started in March 2020 when the Ministry of Economic Development and Technology (hereinafter the Ministry) invited interested stakeholders to convene and conduct a public debate. After the COVID-19 pandemic prevented any in-person consultations, the Ministry called upon interested stakeholders to provide written submissions on how to best implement the DSM Directive in Slovenian legal order by April 30, 2020, which were then published online and all stakeholders were invited to submit a second round of comments by 30 June 2020. We are now waiting for the publication of second-round comments and publication of the first draft of the legislative proposal.

Many public interest institutions in Slovenia participated in this process: research institutions, educational institutions, NGOs and CHIs. Several libraries and CHIs across Slovenia submitted their comments addressing also the Article 14.[3] In their submissions, they emphasised Art 14’s importance as a public domain safeguard and called for implementation that encompasses all types of works, not only those of visual art, and that would ensure that copyright protection is not granted to faithful reproductions notwithstanding whether they were made before or after the original work was already in public domain.

Stakeholders have not disputed such position on Article 14 implementation so far, which may showcases that in Slovenia there is a high level of awareness of importance of public domain works for cultural heritage preservation and that broad implementation of Article 14 is desirable and necessary in order for libraries and other CHIs to perform their cultural heritage preservation functions adequately. While it remains to be seen which route the Slovenian legislator, which usually provides for an expansive and strong protection of stakeholders, will take when implementing Article 14 CDSM Directive, the early signs are encouraging for libraries and other CHIs, and they can reasonably expect to be able to rely on works in public domain in a broadest possible way.

[1] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, https://eur-lex.europa.eu/eli/dir/2019/790/oj; last visite July 2020;

[2] see also Communia Guidelines: https://www.notion.so/Article-14-Works-of-visual-art-in-the-public-domain-eb1d5900a10e4bf4b99d7e91b4649c86 and Transposing the Directive on Copyright in the Digital Single Market: A Guide for Libraries and Library Associations (LIBER): https://zenodo.org/record/3552203#.Xx_hjy2B3OR, last visited July 2020

[3] Positions of stakeholders are available here (in Slovenian)https://www.gov.si/novice/2020-06-05-prenos-direktiv-s-podrocja-avtorskega-prava/, last visited in July 2020;

Advoc8: Now and Next Part 2 – What Might a Library Advocacy Agenda for the Post-Pandemic World Look Like?

In our first ‘Now and Next’ blog, we explored a number of potential trends that are likely to shape the library field as it – and the communities it serves – emerge from the restrictions imposed during the COVID-19 pandemic.

Just as in the first blog, it is clear that we are still in the midst of the crisis. Even as some countries are able to relax controls on people’s lives and activities, others are prolonging them. In some cases, we have seen decisions to re-impose them, as the disease has returned. It will likely be a long time until we can talk about a post-pandemic world.

Nonetheless, as calls grow for clarity about how governments plan to go about returning to normal, it will make sense to engage with governments. Indeed, this is likely to be particularly necessary in the light of the serious economic impact COVID-19 is already having.

As institutions which do depend on the financial health of the governments, institutions or other organisations that support them, it will be as important as ever to ensure libraries – and their values – are understood as having an essential role in the recovery, or even in creating better societies and economies in future.

We can only do this by reaching out and making the case. This blog therefore looks to explore potential advocacy agendas in the immediate, medium and longer-term. In this, the short-term is defined as now – with libraries in many countries physically closed. The medium-term is the situation as libraries start to re-open and restrictions are lifted. The long-term refers to the time when the pandemic can be declared over, and only minimal if any rules are in place to address the spread of the disease.

For each, the blog suggests eight key possible messages. Do you agree? Have we missed anything? We welcome your comments!

 

The Short-Term: Provide Relief, Support Research

  • Copyright should not become a barrier: it should not be the case that just because a library has closed its doors, its users cannot draw on its resources. Governments should make it clear that at a time that physical access is often impossible – for everything from research to storytimes – digital alternatives can take its place.
  • Licensing terms should not override the public interest: where the terms of licences under which libraries access content prevent their use, rightholders should be ready to introduce necessary flexibilities to allow libraries to carry out their missions. Where this does not happen, libraries should be able to bypass licensing terms in the course of their work where this does not cause unreasonable harm to rightholders.
  • Libraries need to be enabled to support their communities: faced with increasing demand for digital content, some governments have already been ready to increase acquisitions budgets. More broadly, other restrictions – such as on offering public access to WiFi, or on lending library equipment or materials to vulnerable groups – should be relaxed if these create problems.
  • COVID-19 must not become an excuse for bad government: many countries have adopted a state of emergency in order to allow steps to be taken against COVID-19. However, the application of these powers should not lead to decisions in other areas being taken without proper scrutiny, and all decision-making needs to be properly documented for future accountability.
  • Restrictions on free expression and access to information must be kept to a minimum: some governments have moved to limit free expression as part of their response, while social media companies are also increasing their efforts to close sites disseminating deliberately false information. Such restrictions should be avoided if other means of achieving the same goals are available, and otherwise applied carefully and proportionately. It is better to promote positive interventions such as media and information literacy.
  • The cultural sector needs support to avoid disaster: while some in the cultural field are benefitting strongly from increased demand for their work (especially digital content), others – especially those who rely on performances or physical visitors – are suffering. Faced with ongoing costs, these require support if they are to avoid having to give up and close their doors for good.
  • Greater dependence on online tools cannot come at the expense of rights: there has been an explosive rise in use of digital tools to work and communicate. However, we need to be vigilant to ensure that this does not increase the risk of cybersecurity breaches or other losses of personal data.
  • Open science should be the default: there have been welcome moves to adopt open science practices in research specifically around COVID-19, with the National Library of Medicine in the United States creating the COVID-19 Open Research Dataset (CORD). These should be expanded and supported by governments, and reach out to related disciplines in order to help ensure better informed responses to the pandemic.

 

The Medium-Term: Returning to Not-Quite-Normal, Safely

  • Official approaches to re-opening need to take safety into account: the news of libraries being able to reopen will be both a source of encouragement and worry for many. Often small, not necessarily set out to allow people to maintain social distance, and offering a lot of direct personal support, it should be clear that libraries are high social-interaction spaces. Where reopening does happen, it should be based on a sound understanding of how libraries really work.
  • Exceptional measures on access to content should not be lifted until the need for them is over: many of the special measures put in place, for example, by publishers to offer remote access to books and articles, or online story-times, are time-limited. While some have noted that their application can be extended, it will be important to keep up the pressure to maintain them until all library users are able to make use of library services again as before.
  • There needs to be meaningful investment in helping learners to catch up: the internet has allowed far more teaching and learning to take place during the pandemic than could have been imagined even a few years ago. However, many have underlined that it is still not the same as being in class, and it will be necessary to help learners catch up, especially those in more vulnerable situations. Governments need to have a plan for this.
  • Insofar as they affect access to government information, states of emergency should be lifted as soon as possible: states of emergency should never be indefinite, given the threat they pose to fundamental rights. In particular, it is important for information about government responses to the virus to be made open, in order to inform researchers as well as journalists.
  • Ensure that efforts continue to help those who will need to be subject to restrictions for longer: the loosening of restrictions is likely to move at a different pace for different groups, with already marginalised populations – older persons, those with disabilities, or prison populations to name just a few – likely to need to wait longer. As the rest of society moves back as close to normality as possible, we cannot forget those for whom this isn’t the case.
  • Ensure that libraries are supported to take on the upcoming rise in demand: it seems likely that not only will libraries welcome back people who have missed their resources, services and spaces, but also those needing to use them to get their lives back on track after losing jobs and even homes. Libraries have a proven track record here, but scaling this up will require continued support.
  • Ensuring that lifting restrictions on movement doesn’t mean new restrictions on privacy: the potential use of tracking apps to contribute to the safe lifting of limitations has received a lot of limitations. If these are introduced, it will be important to protect privacy, ensure that users consciously opt in, and to ensure that no more information is collected and retained than strictly necessary.
  • Continue to promote open science, and invest in discoverability and interoperability: managing the lifting of restrictions is going to require extensive use of research, drawing on a variety of disciplines. We will need to strengthen the infrastructures and resources for open science, allowing researchers to work globally, and across different areas of study, with meaningful tools for discovery and analysis.

 

The Long-Term: Build Back Better

  • Ensure copyright and competition laws are truly fit for the digital age: the crisis has brought into very stark relief the difference between what copyright laws permit as concerns digital and non-digital uses, and the degree to which libraries have had to rely on rightholder goodwill – rather than the law – in order to continue to fulfil their missions. This should not continue. Moreover, the fact that access to and use of digital content tends to be shaped by the choices of rightholders, rather than the law, has also helped underline the need to look at these markets from a competition angle.
  • Mobilise libraries in the wider effort to rebuild lives, societies and economies: over recent years, libraries globally have worked to realise their potential as a key part of the social infrastructure of their communities. In addition to all they do to promote wellbeing as cultural spaces and centres, they can also act as platforms and partners for efforts to support employment, entrepreneurship and education. As such, they need to be part of relevant government strategies at all levels.
  • Ensure proper scrutiny of decision-making during the crisis: governments at the moment are taking crucial decisions about societies and economies, which may have significant and long-lasting effects. In order to be able to hold them to account, we will need to ensure that researchers, the press, and the public have the access they need to information to allow them to participate fully in a healthy democratic life.
  • Learn from the experience to promote inclusion and well-being for all: the pandemic has helped underline the vulnerability of many groups, whose living conditions, livelihoods or other characteristics have made them more susceptible to the pandemic and/or harder hit by its consequences. These should lead us to design policies and programmes in general that are truly inclusive and pro-equity in future.
  • Achieve universal meaningful connectivity: having access to the internet made it possible to continue with more aspects of life during the crisis that previously could not have been imagined. However, this has only been the case for the half of the world which enjoy connectivity. Even those who are online do not necessarily have the skills and confidence necessary to make the most if it. We need to invest in helping everyone become active and capable internet users.
  • Invest in effective public (health) information systems: one key lesson from the crisis has been the importance of developing a meaningful infrastructure for providing access to information to people. This is not just a case of transmitting information, but rather being able to listen and adapt messages to ensure they have most impact, as well as to build literacy skills for all. Libraries can be part of this.
  • Move to a new level in open science and collaborative research: the potential of open science to inform better policymaking has been clear in the current crisis. It should become the norm, with meaningful investment in platforms, reforms to assessment and recognition frameworks, and careful efforts to ensure that researchers and readers do not risk being locked into any individual providers’ products. Cross-border research should be enabled by appropriate international action on copyright reform.
  • Don’t forget other challenges!: clearly COVID-19 is the focus of attention at the moment. Nonetheless, there are other challenges facing the world at the moment, not least climate change, and the rest of the United Nations 2030 Agenda. Clearly, the way we address these may change, but the underlying priorities remain if we are to ensure that we don’t just return to normal, but to better.

 

Developing partnerships to achieve global library goals: an interview with Jason Evans, Wikimedian in residence at the Wales National Library.

What do you do as a Wikimedian in residence?

Traditionally a Wikimedian in Residence focuses on increasing the quality and quantity of content on Wikipedia and its sister projects, such as Wikimedia Commons (for openly licenced media) and Wikidata (for linked open data). When I first started as a Wikimedian in Residence at the National Library of Wales the goal was pretty simple. Firstly I would run events and workshops aimed at improving the quality of content about Wales and its people on Wikipedia, in English and Welsh. Secondly, I was tasked with sharing the library’s digital assets on an open licence via Wikimedia Commons so that they could be used to illustrate Wikipedia articles.

As the project evolved we began to collaborate with the Welsh Government on thematic projects aimed at increasing the availability of information in Welsh on Wikipedia, as part of their long term strategy for the language. We have worked to improve content about health and medicine, pop music, Welsh people and literature, and we are currently working with the education department to identify and develop Welsh language content needed by school children to support their studies.

We have also increasingly engaged in sharing our catalogue data via Wikidata as linked open data.

 

How did you get interested in this job?

Before I took on my role as a Wikimedian I worked as a research assistant in the maps and manuscripts department. My first experience of editing Wikipedia came after an article I had published was used as the bases for a Wikipedia article. I was really impressed by the speed, efficiency and accuracy of Wikipedia editors in taking reliable peer reviewed information and making it available to all on Wikipedia. And I was amazed at the ease with which I was able to edit and make improvements to the article. It was shortly after this that the Library, in partnership with Wikimedia UK, advertised for the post of Wikimedian in Residence.

 

What are the biggest challenges in your work?

I’ve been incredibly lucky to have great support from the National Library. However, any disruption to long established norms will obviously present challenges. The public engagement side of my work doesn’t really present any major problems but sharing data openly definitely requires care.

Wikimedia projects all follow an ‘open’ ethos. All the content created on Wikipedia, or media, and data shared on these platforms must be openly licenced in order to remove barriers to reuse. ‘Open’ in this instance means more than simply making something available for free, it means removing restrictions on reuse. Content must be downloadable and licenced for free use for any purpose including commercial reuse. It’s a fantastic approach, which is being adopted by more and more cultural institutions in order to give their users the best possible value, to simplify work streams and to encourage maximum engagement with their content.

But we need to be careful about what we share. If an item contains 3rd party copyright of any kind we don’t actually have the right to share it openly. To minimise risk, we have focused on sharing public domain content (digital versions of items which we know are out of copyright).

Another challenge, as a publicly funded institution of finding the balance between giving our users the best access and meeting targets for income generation. We try to identify where there is commercial potential in collections and share those in a different way, or often we share screen resolution images openly and retain the highest quality digital images for commercial licencing. The current trend though seems to be to simplify these processes by simply giving unlimited access to all digital versions of public domain works

 

Why did the National Library decide to open this position?

About a year before the library appointed a Wikimedian in Residence they made a policy decision not to claim any rights to digital reproductions of out of copyright works. This was the first step towards ‘Open Access’, but they recognised that a policy decision alone would have resulted in very little impact or change. So one of the main aims with the Wikimedia residency was to use Wikimedia Commons to actively share our public domain content on an open licence in order to encourage reuse and engagement.

The position was also fully supported by our local Wikimedia chapter – Wikimedia UK. They initially helped to fund the position and provided training and logistical support. This support obviously reduced the risks for the National Library and made the idea of hosting a Wikimedian in Residence more appealing.

 

What are the impacts of your work in the Library?

Before we started, we knew from similar residencies at the National Library of Scotland and the British Museum, for example, that collaborating with Wikipedia could lead to some big impacts, but I think we were all surprised by the benefits of our early activities.

When it comes to digital images there are few platforms better than Wikipedia for getting your content seen. We are talking about one of the world’s top 10 websites with 18 billion page views a month. We shared a handful of photographs and prints in the first couple of months and the content was quickly added to Wikipedia articles leading to 20,000 views in one month. Now we have shared about 20,000 images to Wikimedia Commons. Thousands of these are used in Wikipedia articles in over 150 languages leading to over 15 million image views every month. As of January 2020 articles containing National Library of Wales images had been viewed 781,121,633 times! It would take us nearly 400 years to get that many views of our own websites. The use of our content on Wikipedia and other 3rd party platforms is now recorded as a key performance indicator and fed back to our funders.

Whilst we half expected big numbers from sharing images, we hadn’t counted on the value of public events. Wikipedia is a ready made crowdsourcing platform with great infrastructure and a massive community of editors. Holding ‘Edit-a-thon’ events to improve content about our collections, about welsh people, history and culture has helped us to engage with new audiences in new ways. Events and projects have directly led to over 15,000 new Wikipedia articles but events are also about building communities, teaching new skills and growing confidence. Events aimed at improving content on the Welsh Wikipedia also provide a forum where Welsh speakers can get together chat and to create content in their native language, whilst improving access to Welsh language information for all.

Another emerging area of impact for use comes from our use of the Wikidata project to share our collection data openly. Wikidata allows us to share open data without having to invest in our own internal infrastructure. Wikidata already has a query service and a raft of tools for analyzing and visualizing the data. By converting out data to linked data in the Wiki ecosystem we can actually enrich our own data by drawing on additional data from Wikidata, like map coordinates, external authority records and biographical data. And because Wikidata is multilingual – data can be described in any language – we are able to convert much of our English language data to Welsh or any other language, thanks to existing user contributed Welsh language descriptions.

We have seen great engagement with our data since we began this work and now hold regular Hackathon events to promote reuse. We are also starting to round trip this rich data to improve services on our own websites. We now pull in links to VIAF records and Wikipedia articles from Wikidata to our Dictionary of Welsh Biography website, and will soon add an interactive timeline to the site, powered entirely by Wikidata and openly licensed images from Wikimedia Commons.

All this work has really helped to raise the profile of the library in Wales and internationally and we have formed some great partnerships as a result of interactions around our work with Wikimedia.

 

What would be your recommendations for smaller or medium size Libraries?

I know not all libraries manage digitized collections, but if you do, using Wikimedia projects to give access to that content can be a really cost effective way of reaching big audiences. The Wikimedia Foundation is currently setting up a ‘GLAM’ (Galleries. Libraries. Archives & Museums) team, to give more support to cultural institutions looking to share their content through the projects, so the support and the tools available to smaller libraries is only going to increase.

Wikipedia’s goal is to give free access to the sum of all human knowledge so there is always more work to do. Notable gaps in content include a lack of articles about women, who currently make up less than 20% of biographies on the site. The global south, traditional and local knowledge are also poorly represented and I believe libraries are the perfect partners to help tackle these issues. Libraries are the keepers of knowledge but they are also community hubs. Empowering those communities to improve subjects important to them on Wikipedia can be massively rewarding and editing Wikipedia has never been easier.

I would definitely recommend that any library interested in engaging with Wikimedia reaches out to their local Wikimedia chapter or user group, or the Wikimedia Foundation directly. Often they can arrange for training, provide logistic or technical support, and they have a grant program for those looking to host larger events or programs.

 

Knowledge for Development: Libraries and the Global Sustainable Development Report

Image: hourglass shape with image of the sky and earth. Text: Why knowledge is critical for sustainable developmentThe Global Sustainable Development Report was released last week in time for discussions around progress on the United Nations 2030 Agenda at the UN’s General Assembly. The result of a collaboration between experts from different disciplines, from different parts of the world, is arguably the most complete knowledge contribution to work on the SDGs.

It is an effort to make the most of ideas and insights in order to build an understanding of where we stand in the effort to promote sustainable development. Crucially, and in coherence with the SDGs themselves, it aims to look across the board, and identify cross-cutting actions that are necessary to accelerate success.

As the prologue by Gro Harlem Brundtland underlines, it was by bringing together knowledge that it was possible to develop the concept of sustainability in the first place, and put the world on the way to the SDGs. And, as this blog sets out, the new report stresses that the role of knowledge is as great as ever.

 

Sustainability Insights

Thanks to the variety of perspectives brought by its authors, the report offers insights into the threats and opportunities which will determine whether we achieve the SDGs. Alongside climate change – the subject of the summit that ends today – loss of biodiversity, and increase in both waster and inequalities are particular concerns.

In response, coordinated policies focusing on human capacities and well-being, sustainable and just economies, food systems and nutrition, energy access and decarbonisation, urban and peri-urban development and the global environmental commons.

In all of these areas, as highlighted by IFLA’s Library Map of the World and Development and Access to Information report, libraries have much to contribute.

The Report stresses that underpinning the success of work in these areas will four levers –governance, economic and financial policies, individual and collective action, and science and technology. If used effectively, these can accelerate progress. The key to effectiveness, the authors argue, is having the knowledge and understanding of how our societies are working at all levels:

‘Decision makers need to act based on current knowledge and understanding of the linked human-social-environmental systems at all levels. That knowledge also needs to be more widely available to all countries and actors, motivating innovative coalitions and partnerships for success’.

 

Knowledge Matters

This emphasis on the importance of knowledge serves to underline the contributions that libraries can make. The need to gather, organise, give access to and apply information is as great as ever.

This is true, first of all, in the research context, where the report underlines concern that academics in developing countries too often cannot access the same range of materials as those in richer countries. This makes them less able to support local development, risking deepening global inequalities.

It also makes it harder to take the findings of research and apply them to real-world situations. As the report suggests, there is a need to intensify the science-policy interface, but this is made more complicated when paywalls stand in the way.

The authors therefore make a clear call on libraries, alongside governments, universities and research consortia, to take additional steps in order to provide open access not only to research, but also to underlying data (Recommendation A15). This, it argues, is a key way of addressing inequalities.

Linked to this, it also calls for efforts to promote cross-border research collaboration between countries in order to support knowledge flows, and suggests that development agencies should invest more in building science and research capacity in beneficiary countries. Libraries, inevitably, are a key part of this.

 

Among the many reports and papers released around the SDGs – and in particular the discussions at the General Assembly – the Global Sustainable Development Report is to be welcomed for its clear advocacy for the role of knowledge, and those who produce and give access to it.

Not Victims but Vectors of Change: Libraries, Climate Action and Peace

Climate change, if left untackled, risks not only being felt in an an ever-more-frequent series of extreme weather events, but also in a growing pressure on our socieites.

These pressures – less land, fewer resources, higher migration – have in the past been the cause of conflict. Without action, there is a justifiable fear that this could happen again.

As the United Nations Secretary-General sets out in his introduction to this year’s International Day of Peace, this is why it is important to address climate change in order to increase the chances of peace.

For libraries, both conflict and climate change can all too easily be seen as externalities – things that happen to our institutions without any possibility to respond. It is certainly true that it is hard to forget images of roofs blown off – by winds or bombs – and collections waterlogged or burnt.

However, libraries are far from powerless. For the reasons set out in this blog, they are not victims, but rather vectors of progress, helping to tackle climate change, and so preserve peace.

 

Better Prepared: Supporting the Reseach that Saves Lives

Clearly a core role of libraries is to support the production of, and access to, research. It is only thanks to the possibilty for experts to draw on evidence from the past, and to work together, that we have the understanding we have today of climate change and its impacts.

Libraries have of course done this for centuries, making it possible for scientists to take the work of those who have gone before, and go further. This has happened at a giant scale in climate science.

There is also a realisation that a complete understanding of climate change will also rely on bringing research in different disciplines together. Knowing what is going on is not just a question of meteorology, environmental science or any other single field, but will require insights from many different areas.

Libraries are already looking to do this, for example through their support to public health, or in realising the potential of old travel reports and maps in showing how our world is being altered over time. Open access will facilitate this significantly, as highlighted in the UN Global Sustainable Development Report.

Through this work, governments are better able to see what action is needed in order to relieve or reduce the pressures that can lead to conflict.

 

Behaviour Change, not Climate Change

Of course the fact that governments know they should be doing something does not mean that they will do it. A key means of ensuring that they do – as well as of reducing the factors that can drive unrest within communities – is by acting at the local level also.

Libraries have a key role to play here also. As set out in IFLA’s paper on libraries and sustainability, two key roles of libraries are as examples and educators, building understanding of the issues among citizens, and helping them to learn how to change their own behaviour.

This can be a key trigger, and support, for government action. Meanwhile, the support the libraries provide for the development of new technologies and new ideas will feed into the creation of new businesses and new jobs in future, as well as offering new ways of carrying out more traditional professions – such as farming – in a changed world.

This complements other work that libraries carry out to create a culture of peace, as highlighted in our previous work in this area in 2017 and 2018.

 

Libraries, therefore, are far from powerless faced with climate change and conflict. Instead, through acting on the one, they have a real contribution to make to efforts to reduce both, and in doing so, to build a more peaceful, more sustainable world.

The EU Copyright Reform: Battles Won, Bullets Dodged, and the Questions that Remain

The text adopted yesterday at the Council, after the Parliament’s vote on 26 March, comes after years of discussion.

The Commission’s proposal released in 2016 has been reviewed and voted upon in five parliamentary committees, at the plenary of the European Parliament, at several levels within the Council, and through trilogue discussions among the Council, the Parliament and the Commission.

IFLA and its partners have engaged in every step of the process to ensure the best results possible for our sector. There are also a number of very good analyses out there, not least those produced by our partner organisations.

This blog, rather than looking to give a comprehensive overview of the legislation, looks at the battles that libraries have, together, won, the bullets we have dodged, and the questions that remain. These last will be important, with the effort to ensure the right rules for libraries now moving to the national level. You can access the final agreed text here.

 

TEN BATTLES WON

First of all, the battles won – those areas where we have seen a significant improvement on the text originally proposed by the Commission in September 2016. Through the work of a number of committed Members of the European Parliament, and supportive Member States, there have been important steps forward in some key areas:

  1. Extension of the mandatory text and data mining (TDM) exception to all libraries and cultural heritage institutions (Article 3): originally, the Commission proposed that only research organisations could benefit. However, research libraries may have faced a lack of certainty, and other libraries and cultural heritage institutions would have been excluded, forced to seek licences in order to carry out analysis on the works they hold. Now they can.
  2. A second and broader mandatory TDM exception, applicable to any individual or institution (Article 4): the first version of the TDM provision created extensive uncertainty by trying to distinguish between types of mining which would and wouldn’t be allowed. The final version of the Directive makes TDM exceptions mandatory in all Member States, for all users with legal access, albeit with some smaller limitations. See below for more.
  3. Clarity on cross-border networks of collaboration for preservation (Recital 28): while the need for cultural heritage institutions to work across borders in order to make the most of digitisation equipment was mentioned in the original impact assessment, the first version of the Directive failed to make it clear that such networks were possible. Now it does.
  4. Application of contract override to preservation (Article 7(1)): libraries can be prevented from carrying out preservation activities when the terms of the licences under which works are accessed state otherwise. The original Directive did not address this issue. Now it does.
  5. A wider number of purposes acceptable under digitisation for preservation (Article 6, Recital 27): preservation does not only imply taking a copy of a particularly vulnerable work. Cataloguing, insuring and even lending to another institution for preservation work may also require copies to be made. Improvements to the Directive have offered a greater indication that these are possible under an exception, although libraries will need to work at the national level to ensure these are covered.
  6. A fall-back exception for out-of-commerce works where no collective management organisation exists for a specific category of work in a given country (Article 8(2)): the grand plan in the original Directive was to allow for extended collective licensing of out-of-commerce works? But what about the many sectors and countries where there isn’t a representative, well-governed collecting society to run this, or they don’t have the right mandates? Thanks to the new exception, libraries can now also find a way to digitise and make available works which aren’t available on the market.
  7. Stronger conditions on when a country can opt out of the education exception (Article 5(2)): the original proposal left a lot of scope for Member States to disapply the new education exception and allow licensing to prevail. However, it is clear that many educational licences are not fit for purpose. The final version of the Directive puts the onus on Member States to ensure that before an exception is taken away, licences have to offer a realistic solution.
  8. Protection of the public domain (Article 14): recent cases have seen actors take simple photos of works which have long been in the public domain and claim copyright. This can represent a barrier to their spread, as key texts and images risk being subject to infringement proceedings. The final version of the Directive makes it clear that straightforward reproductions of works in the public domain cannot themselves claim copyright.
  9. A clear possibility to have broader limitations and exceptions (Article 25): the tendency in international copyright law is to favour higher levels of protection of rights, rather than greater scope to pursue public interest goals through exceptions. However, in the final version of the Directive, it is made clear that Member States should feel able to go further if they want.
  10. Extension of education exception to uses by educators in other settings (Article 5(1)): the original version of the directive allowed for teachers to use digital works in the classroom, or online. This potentially restricts the ability of educators to offer courses in libraries and elsewhere. The final version of the Directive clarifies that this is possible under the exception (or licences if applicable).

 

10 BULLETS DODGED

In the course of the discussions, a number of ideas emerged which would have seriously limited the effect of the new rules, and indeed have created dangerous precedents both for Europe and the rest of the world. Fortunately, they didn’t stick:

  1. Obligation to delete datasets created for text and data mining (Article 3): a number of MEPs tried to argue that if copies of articles and other materials were made in machine-readable formats for text and data mining, these needed to be destroyed afterwards in order to prevent against misuse. This (once again) makes the lazy assumption that exceptions are more or less the same thing as piracy (wrong), and would have meant that experiments carried out with TDM could not be reproduced.
  2. Scientific publications in the scope of the new rights for online press publications (Article 2(4)): in one European Parliament committee, there was an to extend the new planned press publishers right extended to scientific publications. This did not make sense, given the very different market conditions there (not least the fact that authors are not paid for their work). Fortunately, MEPs saw sense and rejected this proposal.
  3. Continued over-protection of technological protection measures (Article 7(2)): the original Directive took the refreshing step of arguing that technological protection measures (TPMs) which prevent the enjoyment of exceptions (for example copying for preservation) should not themselves enjoy legal protection, even for licenced (as opposed to purchased) works. The European Parliament tried to reverse this, leaving any work accessed under licence potentially tied up in TPMs. This proposal did not make it to the final version.
  4. No possibility to cumulate exceptions and limitations (Article 7): a further effort sought to overturn the (highly restricted) TU Darmstadt ruling. This established that it is possible to combine exceptions, as long as these continue to respect the three-step test. Despite this obvious safeguard, rightholders tried to add in a new clause that would prevent ‘stacking’, but which would have at the same time had a huge impact on disciplines such as digital humanities. It didn’t make it.
  5. Automatic right for publishers to benefit from public lending right at the expense of authors (Article 16(2)): one often-overlooked article in the Directive served to protect collective management organisations who had been paying out shares of copying revenues to publishers. Following the Reprobel case in the Court of Justice of the European Union, they risked having to pay this money out to authors instead – the Directive therefore underlines that publishers can claim a share. There were efforts during the negotiation of the Directive to extend this to public lending right, which would have seen authors in a number of countries lose revenue to publishers. The final version leaves the choice to Member States.
  6. Library repositories being covered by new rules on platform liability (Article 2(6)): the first version of Article 13 (now 17) would have meant that any site hosting large volumes of user uploaded content would need to implement filters to check for infringement, or face liability. This would have placed a huge burden on scientific and open education repositories, which play a vital role in giving access to materials. Thanks to extensive work, there is now a clear exception for these, alongside sites such as Wikipedia.
  7. Libraries and individuals being obliged to pay for uses of short snippets of press publications (Article 15(1)): while clearly aimed at GoogleNews, the original version of the Directive gave very broad application to the Press Publishers Right, with non-commercial users such as libraries potentially liable to pay. This would have potentially had a major impact on research work done by librarians for users, as well as catalogues and libguides. Fortunately, the new Directive is clear that non-commercial users are not affected.
  8. Works can only be declared out of commerce when all versions, manifestations and translations are no longer on sale (Article 8(5)): the original version of the Directive indicated that a work could only come under the new provisions when all versions, manifestations and translations were no longer on sale. This would have seriously limited the impact of the Directive, given that different language versions are not necessarily interchangeable, and that researchers may well need a specific edition, and so cannot complete their work with a substitute that is still on sale.
  9. 20-Year duration for press publishers’ rights (Article 15(4)): the first version of the Directive gave press publishers a right for 20 years, despite any evidence of this being proportionate or justified. This would have seriously limited the work of libraries working with the press, as well as research into recent history. In the end, the duration of the right was limited to two years.
  10. Retroactive effect of the new press publishers’ right (Article 15(4): at first, a lack of clarity in the text could have implied that even existing publications would benefit from the new possibilities. This would have put into question work already done using this material, bringing major new uncertainty. The final version of the Directive is clear that there is no retroactive effect.

 

TEN OPEN QUESTIONS

As is almost always the case with European legislation, a lot comes down to transposition – the steps taken to turn EU rules into national ones. An added factor in this is the lack of precision in many parts of the Directive. This is inevitable, and offers opportunities to ensure positive outcomes. At the same time, it also means that libraries will need to play close attention.

Here are ten more things to watch out for:

  1. Rules around permissible security measures in text and data mining (Article 3(3)): the Directive underlines that rightholders are allowed to take security measures in order to protect their works. At the same time, this should not lead to the cancelling out of the TDM exception in the first place. Finding the right balance here – and preventing overly restrictive approaches – will be important if the exception is to have its full effect.
  2. Rules around opting out of text and data mining for all individuals and institutions (Article 4(3)): as highlighted above, a major step forwards was the mandatory TDM exception for the benefit of people and organisations outside of research centres, libraries and cultural heritage institutions (if they have legal access to the works mined). There is a catch here, in that rightholders can explicitly state that they do not want their works mined. It will be important to work with Member States to ensure that the rules around this are specific enough to mean that opting out is the exception, not the rule.
  3. Definition of who can benefit from the education exception (Recital 20): despite our efforts, the education exception formally still only applies to educational establishments, although it can be used (under the authority of a formal education institution) in libraries and cultural heritage institutions. There is, nonetheless, a possibility to ensure that libraries (or groups that offer training and support to people in libraries) are recognised as educational establishments in national law. This would open up useful new possibilities for libraries to fulfil their potential as places for learning.
  4. Application of the opt-out from the education exception (Article 5(2)): as highlighted above, there is the possibility for Member States to decide that the new education exception does not apply in situations where there are licences adapted for educational uses on offer. There is likely to be extensive rightholder lobbying in favour of excluding broad categories of works from the exception. It will be up to libraries and educators to ensure that the conditions laid down by the Directive (that licences are ‘suitable’, ‘cover the needs and specificities of educational establishments’ and are ‘easily available’) are fulfilled.
  5. Application of the exceptions in the out of commerce works exception (Article 8(3)): a major area for work will be how to define where cultural heritage institutions need to ask for licences, and where they can benefit from the exception in order to digitise and make available out-of-commerce works. It will be up to member states to decide what it means for a collective management organisation to be ‘sufficiently representative of rightholders in the relevant type of works or other subject matter and of the rights that are the subject of the licence’.
  6. Application of rules to out-of-commerce works by third country nationals (Article 8(7)): one weakness of the Directive is the focus on trying to ensure that works by people from outside the European Union are not covered by new rules on out of commerce works. For many European countries, this will be difficult, given that they use major world languages, and so telling the difference between a French and a Quebecois work, for example, may be difficult. Member States will need to take a sensible approach to this point.
  7. Application of the definition of a good faith search on whether a work is in commerce (Article 8(5)): the Directive suggests that before a work can be declared out-of-commerce, a ‘reasonable effort’ must be made to ensure that it is not available to the public through normal commercial channels. Given the difficulties already encountered around the Orphan Works Directive, it will be important to ensure that national implementation does not create disproportionate obligations on cultural heritage institutions.
  8. Definition of which works can be preserved under the preservation exception and of the activities and purposes covered (Article 6, Recital 27): the Directive’s preservation exception, as set out above, does allow for copying for preservation purposes, while leaving the possibility for Member States to pass other exceptions and limitations for internal uses. There is, therefore, a key opportunity to ask for exceptions that allow for any core library uses of works to be covered.
  9. Management of the dialogues planned for the text and data mining exception, the out of commerce works provisions and the upload filters provision (Articles 3(4), 11, 17(10)): a number of articles provide for dialogues between stakeholders on how the rules should be applied. It will be necessary to pay attention to the composition, terms of reference and other aspects of these discussions in order to ensure that the results reflect the interest of libraries and their users. This will, in particular, be the case around protection of freedom of expression under the provisions on platform liability.
  10. Protecting the quotation exception (Article 15): The press publishers’ right creates a worrying precedent for protection being given to ‘short extracts of a work’. This risks affecting how legislators and courts think of the concept of quotation in general, as well as criticism and review. While the scope of the Article in the Directive is narrow, the precedent is certainly worrying.

For more, see our resources page about the European reforms. You can also see analysis and reaction by our partner organisations:

LIBER: New European Copyright Directive: A Detailed Look

EBLIDA: Long Read : Final stretch for the Digital Single Market Directive

SPARC Europe: A new Copyright Legislation for Europe. How will this impact Open Access?

EUA: EU Copyright Directive: EUA cautious about adopted agreement