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Response to the EC Green Paper on Copyright and Related Rights in the Information Society |
We welcome the opportunity to comment on this important document which will have far-reaching implications for the library and information profession.
We believe that the role of librarians and other intermediaries will evolve in the digital age. They already play an important part in controlling access to copyrighted material and we expect that this role will become greater when the information superhighway becomes a reality. Librarians and other information professionals are highly skilled in managing information, information retrieval and training end-users and will be an invaluable resource.
The creation of new intellectual works depends largely on access to information and ideas. Access must not be limited to certain sectors but be available to all, otherwise it could lead to a stagnation of our heritage and create a division between the information rich and information poor.
Last year EBLIDA was granted financial support by DGXIII-E3 to set up the European Copyright User Platform (ECUP). Fifteen workshops have been conducted in 14 Member States of the EU and in Norway to raise awareness on copyright amongst librarians and other information professionals and to identify the problems with copyright and electronic copying. A Steering Group was formed and discussions on the library position with representatives of the larger publishing houses have started.
This Green Paper, comprehensive in so many ways, fails to consider the role of the information intermediaries in the main body of Chapter I. The failure to consider adequately this sector can, and will, seriously damage the credibility of any subsequent proposals made by the European Commission based on this document. The only reference in this Chapter is a remark in paragraph 34 to public libraries which form only a section of the total library environment. It should be emphasized that libraries are not users of information per se, but only act as intermediaries for individual users whose needs are many and varied. The longer exploration of the role of the library as an essential link in the information chain in Chapter II on page 59 is welcomed, but this role needs to be explored in other sections of the Green Paper apart from Section V: Digital dissemination or transmission right.
1. A number of areas of uncertainty are identified in point II.A. Do you know of anything which might help to clarify the questions raised there regarding the development of the market and of new services?
A serious omission is made in paragraph 46 in not listing libraries as a main area in which the new services will be used and promoted. Traditionally libraries, by lending a variety of new media, encourage sales. If the new services are available in libraries, this will not only encourage consumer support but will provide an essential bottom-line service for all members of society.
The area "information and education" listed in paragraph 46 is too vague to be helpful. What is meant by "information"? At one level almost all of the services provided can be termed "information". It would be better to define this term more precisely or at least indicate its scope better.
2. Of the factors affecting copyright and related rights, which ones seem to you most likely to evolve, and consequently to merit special attention?
Efforts by database compilers and service providers to protect their investment may lead them to seek payment for every use of their material. That requirement has never subsisted in the world of print publishing, even when investment is large (users have not had to pay each time they consult a printed encyclopedia). Payment for every use would jeopardise the interests of education and research. The present development on pricing and licensing is a real threat for libraries and subsequently for the use of the information.
The balance of the rights of rightholders versus the rights of the users, the intermediaries and the public domain, upon appearance of a work in a digital environment, should merit special attention.
4. What do you think is the most appropriate level for dealing with questions of intellectual property in the information society: national, Community or international?
Ideally, the question of intellectual property in the information society should be dealt with internationally, as the issue is of global importance i.e. from the outset wider in scope than the EU. Nevertheless, it is sensible to make a start with harmonisation at a Community level.
5. Does the creation of multimedia products based on elements of the cultural heritage mean that specific new legislative provision, taking account of the necessity of protecting the cultural heritage, is needed? If so, what provision?
It is essential that legislation should provide for the legal deposit of certain electronic media. Collecting and archiving print-based material for our national research and cultural heritage has always been an important part of the role of the librarian and archivist. The responsibility to preserve information in comparable electronic formats belongs also to the library and information profession. Full use of technology to assist in this role is essential. A role with respect to the archiving of electronic files can be played by national/royal libraries.
6. Most of the works and services to be supplied on the information superhighway are protected by property rights. To what extent, and according to which criteria, do you think that it is possible to measure the overall economic value of these copyrights and related rights?
Librarians and other information intermediaries have for many years been trying to prove the value of information and information services in order to obtain appropriate financial resources. No satisfactory way has emerged of evaluating information or the information service in monetary terms. For example, information like news can only be described as such if it is not previously known to the searcher; secondly there is no means of ensuring that a user will read, understand and apply the information, or that he/she will cause benefit to result from it; and thirdly, that a user will be prepared to accord credit to or even remember the source service. The only sensible possibilities which have been put forward have been studies on specific research projects over a sufficient period of time to assess the likely economic damage of having done without the information available which is relevant to a project. However, even with this study, no general conclusions could be expected.
8. Would you say that stronger laws on copyright and related rights would be an advantage for SMEs, and, if so, in which sector in particular?
If easier access and use of copyright protected material will only be achieved by stronger laws, then yes. However, there still needs to be a relaxation of strong laws in the form of permissions given to librarians.
9. In what ways do you foresee employment being affected by the development of new activities protected by copyright and related rights within the context of new services to be diffused along the information highway?
We foresee that there will be an increasing demand for intermediaries such as librarians and information professionals. With the proliferation of information, not everyone will have the expertise, the time or the facility to retrieve relevant data. For example, SMEs, not being able to afford an information unit or library staffed by professionals for their information, will turn more and more to outside information agencies for their requirements. These are as likely to be in public libraries as well as in academic libraries and also specialised independent consultancies. Librarians will be in a major position to add value to information by packaging it to suit clients.
10. Have you other comments to make on questions which are not raised in this chapter?
Though section 34 makes a brief mention of 'preserving a balance' there has been no discussion of the public interest advantage of maintaining a relatively high availability of freely-consultable information over networks. An information society is not worthy of the name if most of the important information is held by monopoly providers who insist on payment every time it is consulted. This could lead to "escapism" in the electronic environment if regulations on use and payment are regarded as unfair.
1. Do you think that the digitization of works and other protected matter should be covered by a reproduction right? Would exceptions to the exclusive character of this right be justified? If so, what exceptions and why?
Digitization is a form of reproduction and should be covered by this area of rights. Exceptions to this exclusive right should be brought into effect in the case of library/archive preservation processes. It is becoming essential for many different reasons for libraries/archives to be able to digitise material in their collections for preservation, storage and user requirement purposes. This should be a statutory exception to the right of reproduction provided that certain limits on the subsequent use of such digitised copies be included, e.g. networking between libraries, reformatting for publication and undue interference with the original text should not be allowed.
2. Do you think that private copying and reprography of digitized works, other protected matter, or both, other than computer programs:
Copying for private use, electronically or on paper, on site should be an exception to the reproduction right. A single copy for personal use of a reasonable proportion of a digital work in copyright for the purposes of education, research or private study should be allowed in the same way as it is allowed for non-digital copies.
We do not consider that the right of reproduction extends to the display of digitized works on a screen which we feel is analogous to reading the contents of a book. We consider that browsing and reading from a screen should not be restricted acts as well.
1. Under what conditions do you think that the following acts can be considered as forms of private use:
Transmission over the network between two private persons is definitely private use. Transmission using a bulletin board service could only be considered as private use, if it is a closed user group. Transmission over the network between a private person and a firm would not be private use. Transmitting over the network within a firm (as a closed user group) could constitute private use but transmitting between independent firms would not be private use.
2. In the case of transmission over the network between more than two private persons, do you think that the fact that the people concerned know each other or belong to the same family should play any part in the definition of communication to the public?
No. It should not matter if the persons know each other.
3. If transmission is point-to-point, how does the nature of the persons communicating - private persons, firms, public bodies etc.- affect the classification of the act as communication to the public?
It is not the nature of the persons but the openness of the network that affects the classification of the act as communication to the public. The future needs of distance learning over public networks must be carefully considered in this context.
The service of the library to the client should not be seen as communication to the public. The third party/rightholder who makes data or makes the contents of a database available to the public, by doing so, communicates to the public.
4. Do you think that copyright and related rights apply to the act of connecting a server which holds works protected by copyright to the network? If so, which rights apply? Do you know of any legislation which takes a position on the matter?
The Spanish Law on Intellectual Property of November 11, 1987, explicitly mention 'public access to computer data bases by means of telecommunication, where such data bases incorporate or constitute protected works' as an act of communication to the public.
5. What other tests or acts do you think should be looked at to determine whether or not there is communication to the public?
The purpose of the communication should be considered, i.e. if there is an intent to make a work available to the public.
1. The Computer Programs Directive (91/250/CEE) and the Rental Right Directive (91/250/CEE) could be applicable by extension to electronic transmission from point-to-point. Given that possibility, do you think that certain elements should be adapted? If so, which ones?
The equation of the act of online consultation - basically the viewing, reading or listening to a work in a library - with a loan, is an interesting point of view which we do not entirely agree with. Lending is the temporary transfer of exclusive access for a limited period of time which is not quite the same as consulting an online database. We feel that a far more appropriate right would be a right to authorise or prevent access to electronic documents. Exceptions to this right could then be allowed for agreed purposes.
4. Do you think that a tightening up of the reproduction right in the private sphere, which could be strictly enforced by means of technical arrangements preventing copying by receivers, would be sufficient to avoid problems of large-scale copying?
We believe that it would be unlikely that further restrictions on copying by individuals will solve the problem of large scale copying.
1. Do you think that the differences between the laws of the Member States are such that the rules on moral rights should be harmonized? Would harmonization be justified in the present situation?
Yes. It is important to protect the integrity of the work. Changing the contents and meaning of documents in electronic form is dangerous as well as an infringement of moral rights. How is the user to know which is the original work? Another point which has been missed is that moral rights enable an author to be identified with their ideas as they change over time. We may be in danger of losing our intellectual history if earlier versions are discarded when material is updated.
2. Could it be decided that problems of moral rights are to be resolved by contract? When material is placed on the network, for example, or even when it is digitized, the author might agree to certain types of modifications such as dubbing, subtitling, reformatting etc.
Although some changes such as dubbing, subtitling and reformatting could be agreed between the author and the intermediary, other changes which alter the content and meaning significantly of the work, rather than the format in which it is used, should be the exclusive right of the author.
3. Could the very fact that the author has agreed to digitization be taken to give rise to a presumption that he has agreed to certain modifications?
No, the fact that an author has agreed to one form of exploitation should not be taken to mean that he has agreed to any other. Technology is moving so fast that this could be prejudicial to holders of moral rights.
5. Do you think that solutions should be negotiated globally or sector by sector (cinema, newspaper publishing, libraries, museums, etc.)?
As each sector has different needs, solutions should be negotiated sector by sector even though it is time-consuming.
1. What form should be taken by centralized schemes set up by rightholders and managers? Would a "one-stop-shop" system be desirable or indeed sufficient to deal with the demands of the information society?
Essentially users and intermediaries in the information chain need as little bureaucracy as possible. Therefore the 'one-stop-shop' model is preferable. However, it may not be possible for one rights management organisation to provide a comprehensive repertoire of rights for the same work. Copying (in paper or quasi-paper format), digitisation, performance, recording and transmitting may require different organisations because of the very different ways these rights are managed and exercised. They may also be owned by different types of person (natural or legal).
However, the repertoire of works offered by any one organisation should be as comprehensive as possible. It is much easier to identify different actions which need to be licensed by different organisations than to identify which organisation has a specific work in its repertoire. It is already proving difficult in the paper environment to handle situations where different licensing agencies can offer the same rights for works with the same format.
2. Should these centralized schemes be confined to issuing licences for the creation of multimedia works, or should they become general mechanisms?
They should be general mechanisms for intermediaries and users.
4. Assuming that the information society will operate on a world-wide basis, do you think that the licences granted by a scheme or schemes of this kind will be or should be world-wide licences?
We think that a licensing scheme with less than worldwide scope would have limited or no value.
5. Do you think that licences for a more limited territory will continue to be a possibility?
Licences for a more limited territory should continue to be available, as well as licences limited for a particular purpose until such time as a world-wide scheme can function.
6. Do you think that alongside the existing competition rules the Community legislation should lay down guidelines for collecting societies or centralized management schemes? If so, what sort of rules are needed: a code of conduct regulating competition between societies or schemes, rules governing relations between societies or schemes and their members, or both?
Yes. This would be a very good idea. Guidelines should take the form of a code of conduct to
encourage good business practice. Clear pricing policies for different purposes, and encourage-
ment to recognise the needs of the non profit-making sectors, should be included. Above all they should be encouraged to be affording approachable information rather than being seen in the role of the rights police.
1. Do you think the Community, in co-operation with the Member States, should make provision for legal measures which guarantee compliance with:
What would be your view if these had been introduced and accepted by industry?
We agree that there should be some appropriate technical mechanism to prevent unauthorised copying and exploitation. This should be an international standard. It is good practice, in any case, to identify clearly in some way; the work and its constituent elements; the creator(s) and if different, the rights owners; and where to go to obtain clearance. There should be some method of allowing for copying for legitimate use.
There is concern by the user community that too much control could impede access to works which are out of copyright or which have been deliberately put into the public domain by rights holders wishing to waive copyright. Although it is essential that digital works must be protected from piracy, any attempt to gain total control will be counter-productive. There will always be a certain amount of illegitimate copying taking place which does not necessarily adversely affect, either the exploitation or the economic, rights of copyright owners. Too much technical copyright protection could therefore prevent creatively and/or lead to a disrespect and disregard for copyright.
2. What sort of information should the identifying contain:
All of these.
3. In your opinion, should works and other protected matter originating in third countries be prevented from entering the Internal Market if it does not incorporate systems of identification compatible with those recognized in the Community?
No. There should be nothing which prevents the free flow of information and the availability of this information in libraries.
6. Do you consider that the eventual effectiveness of technical systems of protection against private digital copying depends upon the creation of international standards?
Yes.
7. How should it be determined whether works and other protected matter are in the public domain? How could it be guaranteed that protection of works and other protected matter by intellectual property law does not hinder or restrict access to data in the public domain?
This must be carefully managed. It is suggested that public domain material could be left untagged or to be tagged in such a way as to allow free access. There should be some indication on the work about its copyright status; Eg. out of copyright, public domain, copyright waived for certain purposes. Another suggestion is that there should be a central system for each Member State containing details of the copyright status of works. Works for which records does not exist, could be regarded as being in the public domain.
EBLIDA The Hague, 30 October 1995