Tag Archives: right to be forgotten

Living in Interesting Times – Three Key Debates in Information Politics

Libraries and the politics of information in 2019

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

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

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

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

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


Privatisation vs Public Availability of Knowledge

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

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

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

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

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

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

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

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


Protecting Privacy vs Giving Access

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

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

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

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

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

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

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


Protecting Free Speech vs Tackling ‘Dangerous’ Content

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

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

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

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

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

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

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

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


What Implications for Libraries?

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

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

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

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

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

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


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

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.

What’s On Online? Current Issues for Libraries in Internet Governance and Policy

The core mission of libraries is to provide people with access to information. With flows of information increasingly taking place online, our institutions have a major interest in the way the Internet works.

In December of this year, the world will celebrate 50/50 – the point at which the share of the world’s population with Internet accesses passes 50%. This will be a success to celebrate, but also a reminder of how many people remain unconnected.

Moreover, serious concerns remain about the way in which the actions of governments and private actors can affect this access, and whether people themselves are equipped to make best use of the possibilities.

In short, if people do not have access, or if this access is subject to restrictions, then the mission of libraries cannot be achieved. This blog lists a few of the issues currently on the agenda.


Delivering Access – New Tools?

As highlighted in the introduction, the celebrations around giving half of the world’s population access to the Internet will be clouded by the fact that the other half remain offline. While the unconnected are concentrated in developing countries, there are still minorities in richer countries who are cut off.

New technologies and techniques are emerging for getting people online. Major Internet companies have their own projects for giving access, through satellites, balloons and other tools. While Facebook, for example, has apparently given up on its plans to use drones, it is now investing in satellites.

One technology is TV White Space (TVWS), promoted by its supporters as a particularly smart means of bringing Internet to remote areas. It works by using frequencies which currently are not being used for television, and dedicating them to WiFi. A number of projects using this approach are at work in the United States and Colombia.

There are also efforts by cities and wider communities to set up new networks. Sometimes these are run by local governments who recognise the value of faster connectivity (‘municipal broadband’). Sometimes, it’s residents themselves who come together to establish ‘community networks’.

In both cases, they bypass traditional Internet Service Providers (ISPs), often accused of doing too little to invest in higher speeds.

However, such projects need favourable regulation to work. With radio spectrum usually ‘owned’ by government, there are ongoing questions about who can access this for TVWS projects. There are also stories of restrictions on use of telegraph poles being used to prevent municipal fibre projects.

In addition, there have been some signs of renewed interest in Universal Service and Access Funds (USAFs). These collect funds from taxes on telecommunications providers in order to support connections to poorly served areas and populations.

However, they are frequently under-used, and can be subject to the same risks of corruption and bureaucracy as other parts of government. A recent report from the Alliance for Affordable Internet (A4AI) underlines how, if properly deployed, they could make the difference for women in Africa for example.

Libraries are both beneficiaries of better connectivity, and potentially drivers of new projects. To do this, they will need the right regulations and financial support to be able to give their users – and their communities – effective access to information.


Delivering Content – New Threats?

Yet not all connections are equal. Even when the cables are laid, or the masts turned on, what a user can see online will depend on the rules and practices in place.

The role of government is a key concern. Governments continue to engage in complete or partial shutdowns, as well as in focused censorship.

AccessNow’s monitoring of shutdowns shows that these are depressingly frequent, with everything from national security to school exams offering an excuse. The collateral damage caused by these moves – to businesses, to medicine, to citizens’ daily communications, is significant.

Censorship continues to be a problem. At the end of April, the anniversary of Turkey’s ban of Wikipedia was marked. Freedom House’s 2017 Freedom on the Internet report showed record levels of online censorship and blocking. Steps in Tunisia, for example, to oblige bloggers to ‘register’ are also worrying.

Meanwhile, concerns about ‘fake news’ have served as an excuse for some governments to take dramatic action against both writers and websites. Cambodia, Azerbaijan and Vietnam provide some recent examples. In parallel, as Freedom House (mentioned above) underlines, governments are also more than ready to share disinformation themselves using the same tools.

Yet it would be a mistake to focus only on government. As technology advances, and with it the possiblity to use data to make new connections and offer new services, the risk to personal information grows.

The Cambridge Analytica scandal, as well as other cases of dubious practice by major Internet firms, have shown what can be done with personal data. Data ethics has become a new area for discussion, closely linked to the explosion in the volumes of information collected online (including by the Internet of things).

The entry into force of the General Data Protection Regulation in the European Union offers a response, but much will depend on how effectively people take up the new possibilities it creates. Similar rules appear to be spreading to California and Brazil, and data protection is an increasingly high-profile issue in trade discusisons.

Furthermore, net neutrality remains on the agenda. In the United States, the resistance to moves by the government to allow companies to discriminate continues at federal level. Individual states are passing their own laws to guarantee equal access to all content as far as possible.

Elsewhere, the news is better, with India underlining its support for net neutrality, and steps in some countries at least to do away with zero-rating offerings (i.e. allowing users to access some services without this counting towards their data caps).

An additional issue arises where private companies are pressured to take steps that governments themselves cannot.

As highlighted by the UN Special Rapporteur on Human Rights, platforms are not independent. They can be pressured, for example, to block certain types of content (‘fake news’, explicit content, extreme content), or apply rulings such as the European Union’s right to be forgotten principle.

In doing so, they take on similar powers to governments or courts, but with less oversight or control. Moreover, when governments pass laws that only create incentives to block content, there is no guarantee that legal content will be defended. Laws such as FOSTA and SESTA in the United States and anti fake-news laws in Germany and France risk doing just this.

For libraries, this is an issue of growing importance. The content to which libraires give access is increasingly online, rather than on-the-shelf. And libraries are committed to broader access to information as a driver of development.

While there is a case for acting against specific content that genuinely poses a threat, indiscriminate restrictions imposed by governments or companies, including the chilling effect that surveillance and data-collection can create, are bad news for libraries.


Delivering Skills – New Focus?  

A final area of focus is on individuals themselves. Even where there is connectivity, and the connection is not subject to unjusitified restricitons, citizens themselves need the skills and confidence to get online.

As Pew Internet Centre research showed recently, a falling share of people see the Internet as only having brought benefits for society. Other surveys suggest growing levels of distrust and concern about about the risks encountered on the Internet.

There is a risk, when faced with such worries, that governments will feel empowered to take more restrictive stances (i.e. banning non-mainstream content). As a result, the need to give citizens themselves the confidence to deal with what they find online themselves is growing.

Digital skills training, however, remains minimal in many cases. This can be down to a lack of equipment, a lack of capacity among teaching staff, or simply a failure to update teaching. Moreover, digital skills cannot only be a task for formal education.

Meaningful digital skills training, as highlighted in IFLA’s statement on digital literacy, needs to be about more than just coding (important, but for now unlikely to be relevant to everyone in their future lives), and focus on a broader range of competences.

This should include, notably, an updated version of media and information literacy, adapted to a digital age. It may well also require a renewed focus on some of the ‘soft skills’ which are also important in the offline world.

A number of countries are adopting more holistic curricula, and the OECD is already incorporating concepts such as ‘problem solving in a digital environment’ into its own work. But we are likely to see more moves among governments to develop more comprehensive packages of skills and training in coming years.

Libraries are natural partners for delivering such skills, at least when they are suffficiently equipped and staffed. As welcoming places open to all of the community, regardless of age, they can complement the work of formal education.

With a focus, also, on providing the information (and information literacy) to meet real life needs, they can play a real role in shaping digital skills training for all.


The Internet’s potential to accelerate development is high, but not inevitable. As this blog indicates, there is a regular stream of questions, of doubts. How to make full use of all possibiities to get more people connected? How to avoid overreacting to ‘fake news’ and concern about certain content? How to give people the confidence they need to use the Internet effectively?

All are questions with a real importance for libraries, and to which libraries can help provide solutions.

Copyright for Libraries in 2018 – Part 2: New and Ongoing Issues

While the bread and butter of copyright – issues around copying, lending and preserving works – continue to be at the heart of discussions on the topic, it is worth thinking about some of the other questions which are likely to make regular appearances in debates over the rest of the year. Many of these are not new but may be the subject of laws in 2018 which are likely to shape decision-making elsewhere. Of course this is just a selection – we invite further suggestions in the comment box!


Unbundling Rights: with the shift from physical to digital, copyrighted works are increasingly provided as ‘services’, instead of ‘goods’. Rather than acquiring a hard copy, users pay for access to material that is often stored elsewhere. This is notably the case with streaming services. For libraries offering eBooks and other digital content, collections policy can be as much about signing contracts for access as purchasing hard copies.

As such, the rules applying to services, and notably streaming, are going to continue to be a major issue, not least as it may not be considered that there has even been a ‘first sale’ of the work, the step that traditionally leads to the exhaustion of rights in many countries.

In particular, by making access to copyrighted works into a service, it becomes possible to ‘unbundle’ different potential uses. Rather than simply buying a book, and then having the right to do what you want with it, it may be necessary to pay to read, then pay again to copy, to lend, to share with a friend, or to perform text and data mining. Contract terms (which in most cases are considered more important than copyright exceptions set out in law) and technological protection measures (which also often benefit from legal protection) help make this possible.

A first challenge associated with this is the risk to limitations and exceptions, adopted in most countries as a means of protecting the rights of users to access information. Just because a use of a work can be licensed, it does not mean that it should, rather than happening under an exception. There are important discussions taking place as to whether contract terms which override copyright exceptions should be made unenforceable. A number of these, notably in the EU and South Africa, may lead to law this year. The example they set will be important.

Secondly, such rules only work when there is a clearly identified rightholder who can manage these rights. A large share of the works owned by libraries – and found on the Internet – either have no clear rightholder, or it is impossible to identify them. As set out in IFLA’s work on the Limits of Licensing, this is an area where the focus on making it possible to unbundle rights makes no sense. In Nigeria and Colombia, proposed legislation tackles the question of such ‘orphan’ works, while the EU is looking to find a way of allowing access to out-of-commerce works more broadly. Again, important examples may be set or confirmed.


Copyright and AI: the case of Naruto the Macaque (the monkey selfie) is now over, and with it the latest attempt to extend the possibility to claim copyright away from natural or legal persons. However, it comes in the context of broader questions about who – or what – can claim copyright. The main focus is on artificial intelligence (AI), and the question of who should collect revenues from works which, for example, have been written by computer.

While this may seem far off, it is already the case in journalism, where simple news stories can be compiled automatically. Should it be the programmers behind the AI, even though they may not understand how it works any more? Should it be the computer itself?

It is also worth noting that just as traditional creation depends extensively on using previous works for inspiration, AI also uses analysis of existing works in order to ‘learn’. Google Translate has benefitted from working through a huge amount of existing works in order to improve. Doing this implied the right to ‘mine’ the text for meaning, the subject of ongoing copyright discussions in Europe. So while it is not clear whether AI itself may lead to copyright, it is clear that the development of AI benefits extensively from the right copyright laws.

While we are still at a very early stage in discussions around the policy implications of AI, copyright is likely to be part of this. Whoever makes the first move is likely to shape the response of others.


Unwaivable Remuneration: this is, again, not a new idea. However, it regularly appears in proposals for legislation, and even international trade deals. The idea is initially attractive – that regardless of the deals signed by creators (who are often not in a strong position vis-à-vis others), they maintain the right to remuneration for their work. The concept is increasingly also applied to publishers, notably in the case of press publishers’ rights to a return when their materials are used by news aggregators.

However, the concept of unwaivable remuneration places a fundamental limitation of the right of authors to decide what to do with their creations. The creators between the 1.4bn works licensed under Creative Commons, as well as many others using other open licences, have clearly taken a conscious decision not to charge.

Of course, such an unwaivable right would make life easier for those bodies which collect revenues on behalf of creators by removing the need to check the licensing terms around any given book, photo or song before charging money to use it. Creators of openly licensed works are, understandably, unlikely to be members of the collecting societies which pool these revenues, given that they do not expect remuneration. Use of money, otherwise, will be determined by the rules that govern collecting societies.


Deal-Making with the Bigger Players: when the Digital Millennium Copyright Act (DCMA) in the US, and the e-Commerce Directive in the EU were passed into law, they created the possibility of ‘safe harbours’. The goal at the time was to ensure that the development of new Internet companies would not unduly be held back by facing liability for the content uploaded to them by users and others.

The rules have certainly allowed for the emergence of the platforms and search engines that have made the Internet what it is today. The start-ups that the laws were supposed to support, at least a small number of them, have grown very rich, and those owning the rights in the content that they host have an interest in taking a greater share of this revenue. A central element of campaigns here have been efforts to redefine what platforms must do to benefit from safe harbour provisions.

While efforts for reform – often backed up by arguments around the existence of a ‘value gap’ – are not new, there are some signs of a greater readiness from the bigger companies to cut deals. From Facebook’s Instant Articles or Google’s payments to support the French media sector, the biggest names can easily afford to pay a small share of their revenues to rightholders. They can also deal with requirements to check uploaded content for potential copyright infringement, as is currently proposed in Europe.

The same appears to be at hand in the academic field, with an agreement between some publishers and Research Gate to cooperate on giving free access to articles. In all these cases, part of the deal is likely to be the sharing of usage data by platforms. Given the interest shown by many publishers in data, this is a logical strategic step, but reduces the scope available to researchers to access and share content without being tracked.

The risk with this is that smaller platforms, including non-commercial ones such as scientific or educational repositories run by libraries, are not in a position to do this. While the explicit exclusion of libraries from tougher rules, as currently proposed in Australia, may remove the immediate threat to our institutions, it will still consolidate the position of the Googles and Facebooks of the world among commercial players. This, arguably, is not desirable.


Delisting Search Results and the Export of Copyright Rules: while the right to be forgotten is primarily a privacy question, a pair of cases, in Canada and the EU, show that there are common concerns about the territorial scope of copyright.

In the EU, the French Data Protection Agency is arguing that when a decision is taken to remove a certain article from search results, this should apply globally, rather than just in the country where the decision is taken. In Canada, courts in the Equustek case are also suggesting that the decision to delist search results concerning a company accused of violating trade secrets should also be applied globally.

Clearly these provisions are not easily enforceable. The logical end-point being a choice for the search engine of whether to restrict choice for users everywhere else in the world or give up on the market in question. Nonetheless, this raises the question of whether, if such decisions are confirmed by the highest courts in their respective countries or regions, it could lead to the export of copyright protections.

For example, a website may contain a work making a use of a copyrighted work considered fair in country A, but not be in country B. If the courts in country B decide that this website should be delisted globally, there is a threat to the right of users in country A to access this work. As such, it will be important to keep an eye on legal developments in this area.

Remembering and Forgetting: Finding the Right Balance

Freedom of access to information depends heavily on privacy. People will not feel comfortable in seeking and obtaining the information they need if they are under surveillance.

However, free access and privacy – both of which are human rights recognised in the 1948 Universal Declaration – can also enter into conflict, for example when information concerns an individual’s private life. Search engines, by making discoverable information that would otherwise have lain undiscovered, have both helped make the Internet what it is, and accentuated this tension.

Access, Expression and Privacy: IFLA’s Approach to the Right to be Forgotten

Navigating the conflict between the right of people both to access knowledge, and to remove that which unfairly prejudices them, represents an ongoing challenge for libraries, as well as for courts, governments, and private companies.

IFLA’s Statement on the Right to be Forgotten offers some background, and sets out our approach. It underlines the interest of library users in being able to access as complete a version of the historical record as possible. It also cites the rights of information producers, who risk in preventing legally published speech from being delisted (and so effectively disappear).

Yet it also acknowledges that some information can be ‘unfairly damaging to an individual’s reputation or security 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’.

As with any potential tension between fundamental rights, there are few easy answers. In its statement, IFLA stressed the need for judgements to be made on a transparent, case-by-case basis. It rejected both blanket refusals, and blanket acceptance of requests for delisting. In a subsequent open letter, it also underlined that such judgements would inevitably reflect local cultural preferences that would not be shared elsewhere. To this end, IFLA wanted against universal application of decisions.

Affirm or Upend: the Choice before the European Court

Two cases currently before the Court of Justice of the European Union could, however, have serious implications for the way right to be forgotten decisions are taken, and applied.

A first concerns an appeal made by four individuals against the decision of the French data protection authority not to uphold their request to have information about them delisted. The information in question concerned criminal proceedings and political beliefs, with the claimants arguing that any story containing personal information should be removed from search results on request. Such a position risks doing major damage to the freedom of the press, as well as transparency and accountability in public life.

A second opposes the same French data protection authority and Google, with the former arguing that right to be forgotten decisions should be applied globally, not just in the country where they are made. This case, the subject of IFLA’s open letter, risks seeing national courts effectively deciding what Internet users can view in other countries, regardless of the approach judges might take elsewhere.

The Need to Defend Balance

If it rejects these two cases, the Court will reaffirm the importance of taking a sensitive and thought-through approach to balancing human rights. It will also do a favour to information users and producers, as well as their own colleagues around the world.

This is not to say that the current set up is ideal – governments and regulators have doubtless been too ready to leave the task of responding to right to be forgotten requests to private companies, and transparency could be improved further. However, we can only progress on this front if the importance of finding balance is defended.