SAVE FUTURE ACCESS TO INFORMATION NOW! EBLIDA Position Paper on the proposed Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society

EBLIDA functions as the umbrella association for library, information and documentation associations and all kinds of libraries throughout Europe. The organisation was founded in 1992 and has established itself as a vital link between the European institutions and library and information professionals. At the moment EBLIDA represents over 95.000 libraries throughout Europe. On behalf of the European library and information community EBLIDA would like to make the following contribution.

I. COPYRIGHT IN THE INFORMATION SOCIETY

The European library and information community strongly supports intellectual property protection. In the digital age international and European harmonisation of intellectual property laws is essential. EBLIDA firmly believes that the economic and moral interests of authors and rightholders must remain adequately protected in the new digital environment. However, the harmonisation of European copyright law must also aim at ensuring access to information and knowledge to all.

Whilst recognising the importance of finding solutions to problems that the digital technology may cause to copyright owners, the European library and information community believes that the proposed Directive is overstretching copyright to such an extent that it will eventually harm the competitiveness of the Member States of the European Union in their efforts to develop new information products and services, especially multimedia products. If restrictive copyright protection limits the use of information by making the obtaining of permission to use material both too difficult from a bureaucratic point of view, and too expensive from the point of view of cost, this will affect the potential for the emergence of a well-functioning and competitive market for new information products in Europe. A flourishing competitive market in this area is needed to boost demand for advanced communication technology and services in Europe. It will do so by providing programmes or services with information content that the public really wants to see or use. If new works are to be created, the protection of existing works must go hand in hand with making them reasonably accessible.

By seeking to regulate the market too tightly, the Commission runs the real risk of heavily restricting access to information and information products, which is in no-one's interests.

EBLIDA accepts that some regulation is necessary, and that a consensus is needed on what is and is not legitimate, but would urge the Commission to consider very carefully the likely consequences of the proposed legislation, which could have the effect of damming the free flow of information in the 'public' domain, on which educational services and economic enterprise have always depended; and of stifling the development of the new information products and services which the European Community has identified as a future source of economic activity and competitiveness for the Union.

Relevant in this context is Preamble A to the Parliament's Resolution on ' The information society, culture and education' (Morgan report, A4-0325/96) of 13 March 1997: "Whereas the European model of the information society must be driven by democratic, social, cultural and educational concerns and not dominated by economic and technological interest".

The success of the Information Society in the European Union is critically dependent on effective delivery of lifelong learning to all its citizens. Libraries play a crucial role in providing and maintaining free and ready access to knowledge for all citizens to support lifelong learning efforts.

EBLIDA fears a nightmare future in which nothing can be looked at, read, used or copied without permission or additional payment.

II. THE NEED FOR ADEQUATE EXCEPTIONS IN COPYRIGHT LEGISLATION

EBLIDA requests therefore that particular attention is given to its views regarding the importance of the need for adequate exceptions and limitations to keep the balance in copyright. In the information society, libraries have a crucial role as gateways to the information resources on the global superhighways. Our societies are dependent on democratic access to information. Copyright protects not only the rights owners of a work, but also public access to that work once it is published. Access to information must be regarded as a civic right, not simply as a piece of merchandise, a buy-and-sell item. There is a societal need to maintain a balance between the rights of authors and the public interests in particular for education, research and access to information. This was reflected in the Berne Convention of 1886 and the recognition of this need was confirmed by 157 nations in the Preamble of the recently adopted WIPO Copyright Treaty.

A sufficient level of access and affordable use of copyrighted information in a digital environment would be safeguarded by ensuring the following fair practices by statutory provisions that should apply to all types of libraries, not only public libraries, as well as to archival institutions:

• the viewing, browsing, listening to and copying of digital material for private, educational and research purposes in libraries and archival institutions;
  
  
• the making of a digital copy for archival and preservation purposes by libraries and archival institutions;
  
  
• the copying of a limited number of pages on paper or on diskette of a digital work by libraries and archival institutions for their users;
  
  
• the making of a copy on audio, visual or audio-visual recording media by private individuals for personal use and for non-commercial ends.
  
  

III. MAIN CONCERNS IN THE PROPOSED EU COPYRIGHT DIRECTIVE

1. The proposed Directive would not allow Member States to provide for any exceptions for libraries other than those explicitly listed in the text of the Directive (recital 22).
   
   
2. The proposed Directive would leave all exceptions that are listed except for one (Article 5.1.) purely as options to the Member States (recital 24). Therefore they would not only be entirely unharmonised but also without any guarantee that they will be implemented to preserve a fair balance in copyright.
   
   
3. The proposed Directive considers that "display on a screen" is part of a communication to the public. The proposed Directive does not provide for any exceptions under the communication to the public right for libraries. That means that libraries cannot enable users to view electronic material without a special license if this is done for private study or educational use, not even on-site the library. Simple private viewing of digital information in a library would need the authorisation of the author.
   
   
4. The proposed Directive would unnecessarily restrict all exceptions by its proposed wording:
   
   • "establishments accessible to the public" (Article 5.2 (c)) which includes public and national libraries but which may exclude some academic, school or special libraries;
   • "use for the sole purpose of illustration for teaching or scientific research" (Article 5.3 (a)) which excludes other educational purposes and other non-scientific research;
   • "for uses for the benefit of visually-impaired or hearing-impaired persons" (Article 5.3(b)) which excludes people with other disabilities like learning or other physical problems.
   
   
5. The Commission has suggested re-examination of the position on private copying in the digital environment (recital 26) which could lead to a complete removal of all private digital copying.
   
   
6. In the proposed Directive provisions are included for the legal protection of anti-copying and rights management systems (Article 6). There is concern among the library, information and archival institutions community about the impact of electronic copyright management systems on the viability of the exceptions under copyright and related rights. The circumvention of technical measures should be allowed for activities authorised by the copyright owners or permitted by law, as should the production and marketing of devices designed to circumvent technical measures to facilitate the making of non-infringing copies. Furthermore the privacy of citizens should be safeguarded.
   
   

IV. CONSEQUENCES FOR ACCESS TO INFORMATION

Without giving adequate exceptions, the proposed Directive will severely hamper the European Union's attempt at promoting lifelong learning for all as a basis of the information society. It will also hamper the European Union's attempt at connecting libraries, educational institutions including schools and other public institutions to the information superhighways to guarantee access for all.

The intention of the European Commission in the proposed Directive is to leave the future of access to information to licensing mechanisms. In an environment where information can be monopolised, citizens, libraries and archival institutions could be left in a nearly impossible negotiation position, mostly being subject to rightholders' standard contracts. It is therefore essential that there are statutory provisions made for exceptions applicable in all countries of the European Union to allow access to information and copying for private, educational and research purposes.

If these exceptions are not provided for, then, in the absence of a licence, libraries, universities, documentation centres and archives could not:

• display electronic copyrighted material on a screen on-site
• enable on-site users to view, listen and browse electronic copyrighted material for private or educational purposes
• enable on-site users to make a digital copy for private or educational purposes
• provide access to digital material to remote registered users for private or educational purposes
• make a digital copy of a work for preservation or archival purposes
• send copyrighted material via FTP or by email to another library
• send copyrighted material via FTP or by email to students or staff within an institution

V. NECESSARY AMENDMENTS TO THE PROPOSED DIRECTIVE

Recital (21)

Whereas a fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded; [...]

Whereas a fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded to ensure the balance between rightholders' protection and other important values in society, such as the interests of education, research and the need of the general public for access to information.

During the WIPO Diplomatic Conference 1996, the Preamble of the WIPO Copyright Treaty was amended in such a way that it now specifically reflects the prominent position deserved by these "other important values in society", as the new copyright problems of the digital environment are not merely the problems of the copyright industry but of society as a whole. This need for a balance must be put more to the fore. In recognition of that, the WIPO Treaty explicitly mentions "education", "research" and "access to information".

Recital (22)

Whereas this Directive provides for an exhaustive enumeration of exceptions to the reproduction right and the right of communication to the public; whereas some exceptions only apply to the reproduction right, where appropriate; whereas the list takes due account of the different legal traditions in Member states, while, at the same time, aiming to ensure a functioning Internal Market; whereas it is desirable that Member States should arrive at a coherent application of these exceptions, which will be assessed when reviewing implementing legislation in the future;

Whereas this Directive provides for a minimum mandatory list of exceptions to the reproduction right and the right of communication to the public; whereas some exceptions only apply to the reproduction right, where appropriate; whereas the list takes due account of the different legal traditions in Member States by offering them the option of including other exceptions to copyright which are traditionally authorised under national law, while, at the same time, aiming to ensure a functioning Internal Market; whereas it is desirable that Member States should arrive at a coherent application of these exceptions, which will be assessed when reviewing implementing legislation in the future;

Real harmonisation can only happen if the most important exceptions are mandatory, just as are the existing and very broad new rights, to keep the balance in copyright. EBLIDA therefore asks for a minimum mandatory list of exceptions and to leave room to the Member States for additional ones to take specific national conditions into account (see proposed new Article 5.2 (i)).

Article 5. Exceptions to the restricted acts set out in Article 2 and 3

Article 5.2 Exceptions to the reproduction right

Member States may provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:

Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:

The proposed Directive leaves all exceptions that are listed in Article 5.2. and Article 5.3. purely as options to the Member States (recital 24). Therefore they would not only be entirely unharmonised but also without any guarantee that they will be implemented to preserve a fair balance in copyright. Real harmonisation can only happen if the most important exceptions are as mandatory as are the existing and the very broad new rights in order to keep the balance in copyright. EBLIDA therefore asks for a minimum mandatory list of exceptions and to leave room to the Member States for additional ones to take national special conditions into account (see proposed new Article 5.2(I) below).

Article 5.2(c)

[Member States may provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

in respect of specific acts of reproduction made by establishments accessible to the public, which are not for direct or indirect economic or commercial advantage;

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

in respect of specific acts of reproduction made in or by libraries, archival institutions or educational institutions designated by the Member States, which are not primarily for direct or indirect economic or commercial advantage, including reproduction for the purpose of archiving and preservation.

The revision is less restrictive and includes all kinds of libraries and archival institutions established with public funds to serve the needs of the general public. Libraries and archival institutions might need to impose some sort of charge on their users to meet the costs that occur in connection with specific acts of reproduction. This must be possible without infringing the reproduction right. An explicit exemption for archiving and preservation is needed at Community level to safeguard this fundamental provision for the access of information by society and for preservation of our cultural heritage.

Article 5.2(d) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

use for education, learning, research and for private purposes as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;

The proposed listing in Article 5.3. of the Directive that combines both a reference to the reproduction right and to the communication to the public right, is ambiguous and might lead to confusing and restrictive interpretations. EBLIDA urges a listing of mandatory limitations to both rights in two separate articles. Already included in Article 5.2(d) and 5.2(e) are amendments proposed by EBLIDA.

The suggested amendments by EBLIDA are based on the Agreed statement concerning Article 1 (4) of the WIPO Copyright Treaty 1996: "The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form."[...]

Existing national copyright legislation includes the exemption of copying for "education and research purposes". The Berne Convention (Paris Text of 1971) states in Article 10 (2): "It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilisation, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilisation is compatible with fair practice." The reduction of this provision to the copying "for the sole purpose of illustration for teaching or scientific research" is too restrictive and, in our view, a wrong interpretation.

The texts of the national implementations of the EU Database Directive 1996 also suggest a different interpretation of this notion in the Member States. One example is Germany where the "illustration for teaching or scientific research" of the EU Database Directive is phrased as follows in the national text: "for the purposes of personal scientific use, if and to the extent that the copying for this purpose is necessary and the scientific use does not serve commercial purposes; for personal use in teaching, in non-commercial institutions of education and further education and in vocational training in a quantity required for one school class". EBLIDA's revision follows in parts the wording of recital 24.

It is of crucial importance for the future of library services to have copying (reproduction right) for private purposes covered by Article 5.2(d).

Article 5.2(e) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

for uses for the benefit of persons with a physical, mental or learning disability, which are of a non-commercial nature;

People with disabilities must be considered on an equal non-discriminatory position. Exceptions must ensure that the transformation from one platform to another (e.g. printed text into Braille) for the sole purpose of enabling the use of a work is considered a lawful act.

The proposed listing in Article 5.3. of the Directive that combines both a reference to the reproduction right and to the communication to the public right, is ambiguous and might lead to confusing and restrictive interpretations. EBLIDA urges a listing of mandatory limitations to both rights in two separate articles.

Article 5.2(f) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

use of excerpts in connection with the reporting of current events, as long as the source is indicated, and to the extent justified by the informatory purpose;

Article 5.2(g) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that the source is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

Article 5.2.(h) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

use for the purpose of public security or for the purpose of the proper performance of an administrative or judicial purpose.

Article 5.2(i) new

[Member States shall provide for limitations to the exclusive right of reproduction provided for in Article 2 in the following cases:]

where other exceptions to reproduction right which are traditionally authorised under national law are involved, without prejudice to points (a) - (h).

This new text is based on the Agreed statement concerning Article 10 of WIPO Copyright Treaty: "It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10 (2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention. "

The phrasing of Article 5.2(i) is based on Article 6.2. (d) of the Database Directive.

Article 5.3. Exceptions to the Communication to the public right

Member States may provide for limitations to the rights referred to in Article 2 and 3 in the following cases:

Member States shall provide for limitations to the rights referred to in Article 3 in the following cases:

The proposed listing in article 5.3. that combines both a reference to the reproduction right and to the communication to the public right, is ambiguous and might lead to confusing interpretations. EBLIDA urges a listing of mandatory limitations to both rights in two separate articles. As 5.2. should contain a complete listing to the reproduction right, Article 5.3. only refers to the communication to the public right.

The proposed Directive leaves all exceptions that are listed in Article 5.2. and Article 5.3. as pure options to the Member States (recital 24). Therefore they would not only be entirely unharmonised but also without any guarantee that they will be implemented to preserve a fair balance in copyright. Real harmonisation can only happen if the most important exceptions are mandatory as are the existing and the very broad new rights to keep the balance in copyright. EBLIDA therefore asks for a minimum mandatory list of exceptions.

Article 5.3(a)

[Member States may provide for limitations to the rights referred to in Article 2 and 3 in the following cases:]

use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved

[Member States shall provide for limitations to the rights referred to in Article 3 in the following cases:]

use for education, learning, research and for private purposes as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved

This revision is based on the Agreed statement concerning Article 10 of WIPO Copyright Treaty: "It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment. It is also understood that Article 10 (2) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention. "

In addition, the justification of Article 5.2 (d) also applies here.

Article 5.3(b):

[Member States may provide for limitations to the rights referred to in Article 2 and 3 in the following cases:]

for uses for the benefit of visually-impaired or hearing-impaired persons, which are directly related to the disability and of a non-commercial nature and to the extent required by the specific disability

[Member States shall provide for limitations to the rights referred to in Article 3 in the following cases:]

for uses for the benefit of persons with a physical, mental or learning disability, which are of non-commercial nature.

The provision does not extend to people with other disabilities such as learning or physical problems. People with disabilities must be considered on an equal non-discriminatory position. Exceptions must ensure that the transformation from one platform to another (e.g. printed text into Braille) for the sole purpose of enabling the use of a work is considered a lawful act.

The rest of the proposed Article 5.3. shall apply without changes.

Article 5.5. new

Any contractual provision contrary to Article 5 shall be null and void.

To ensure that contracts or licences can not override copyright exceptions, this article, which is in line with Art. 15 of the Database Directive, must be additionally included.

Article 6 Obligations concerning technological measures

1. Member States shall provide adequate legal protection against any activities, including the manufacture or distribution of devices or the performance of services, which have only limited commercially significant purpose or use other than circumvention, and which the person concerned carries out in the knowledge, or with reasonable grounds to know, that they will enable or facilitate without authority the circumvention of any effective technological measures designed to protect any copyright or any rights related to copyright as provided by law or the sui generis right provided for in Chapter III of European Parliament and Council Directive 96/9/EC.

2. The expression "technological measures" as used in this Article, means any device, product or component incorporated into a process, device or product designed to prevent or inhibit the infringement of any copyright or any rights related to copyrights as provided by law or the sui generis right provided for in Chapter III of European Parliament and Council Directive 96/9/EC. Technological measures shall only be deemed "effective" where the work or other subject matter is rendered accessible to the user only through application off an access code or process, including by decryption, descrambling or other transformation of the work or other subject matter, with the authority of the rightholders;

Member States shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by rightsholders in connection with the exercise of their rights under the WIPO Copyright Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorised by the rightholders concerned or permitted by law.

This revision is almost identical with Article 11 of WIPO Copyright Treaty 1996. It should only be unlawful to create a device with the clear intention to facilitate circumvention for purposes of infringement. The same applies to individuals, who should only be punished if they intentionally circumvent copyright protection systems for purposes of infringement. The circumvention of technical measures should be allowed for activities authorised by the copyright owners or permitted by law, as well as the production and marketing of devices designed to circumvent technical measures to facilitate the making of non-infringing copies.

With regard to copyright protection systems, the respect of privacy is a very important issue. Viewing information on the Internet is the digital equivalent of reading a book. Traditional copyright does not protect against acts of consumption or reception of information. Reading a book involves basic rights of privacy (Article 8 European Convention of Human Rights) ⁽¹⁾ and freedom of reception (Article 10 ECHR) ⁽²⁾ and are therefore not considered restricted acts. The same must be true for the digital environment. Copyright must not be extended to cover acts which amount to mere consumption of works.

VI. CONCLUSIONS:

The proposed Directive in its present form will harm the access to information for private use, educational and research purposes much more than foreseen. Libraries and archival institutions urge the institutions of the European Union to ensure that the proposed Directive is amended in such a way that citizens can fully benefit from the Information Society and that democratic values are preserved.

EBLIDA shares these concerns with other organisations like BEUC on behalf of the consumers, EACEM on behalf of the electronics manufacturers industry and EDF on behalf of people with disabilities, and supports their efforts to include fair practices and consumer use in the proposed Directive.

Libraries believe that all citizens have a right to expect that they can view and browse electronic material in their libraries and archival institutions just as freely as they can read a book.

EBLIDA, March 1998

(1) Article 8 ECHR reads:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

(2) Article 10 ECHR reads:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. [...].
2. The exercise of these freedoms, since it caries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity of public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.