Bielefeld 11th February 1998
Information Manager (Legal and Parliamentary), The Library Association, UK. Former Copyright Adviser to IFLA.
Good afternoon ladies and gentlemen!
I am delighted to have been asked to give a paper on electronic copyright and libraries. Copyright is an extremely emotive issue for us as well as for the right holders because librarians are the ones who have to abide by and work within copyright laws set by national governments. To librarians, the topic of copyright generates a whole range of different emotions from confusion and incomprehension, through to frustration and incredulity!
Copyright compliance has had a major effect on library services. Librarians, especially in the UK, frequently refer to it as a minefield. I would like to share with you how copyright compliance is taken seriously in libraries. I will describe the effects on library services of increases in protection and the necessity of having appropriate exceptions to these copyrights to enable the smooth running of libraries. This is an opportune time with all the discussions following the recent publication of the ECs draft directive on copyright for the information society. I will talk about this as well. I would also like to take this opportunity to highlight the importance of the library service and the role of the librarian in maintaining the copyright balance. My paper will be received by some as controversial but I hope I will also generate a greater understanding of the concerns about copyright from the library point of view.
The digital revolution has made a great impact on libraries. This has created expectations that we will be able to use the technology to improve services to users and so, potentially, be of benefit to all members of society. Although efforts are being made, this has not yet been resolved to the satisfaction of all parties in the information chain. The promise of the Information Society will not be fulfilled until, and unless, a careful balance is maintained between both economic and public interests. It will not be achieved if the rights to packaged information are in the hands of, and tightly controlled by, those with only the economic incentive to make as much money out of these new opportunities as possible, regardless of societys interests. Without the appropriate safeguards to society, such as statutory exceptions, a greater divide will be created between those who have the ability to find and pay for information - the information rich, and those who do not have these advantages - the information poor, at a time when the opportunity exists to narrow or even close this gap.
Librarians fear that with more and more rights given to creators, publishers and producers, access to all packaged information will be confined to those who can pay for it. Those who cannot afford to pay will be effectively disenfranchised and it would be impossible for librarians to provide equitable access to resources needed for education, creativity and the advancement of knowledge. Librarians advocate international harmonisation of the laws but maintain that exceptions to the exclusive rights should remain to ensure, at least, that permitted uses apply equally to information in electronic form as they do to information in print.
Judging by the copyright laws they adopt, there are very few lawmakers who really appreciate exactly what librarians do, so this is an opportunity to explain. The practical day to day reality of abiding by copyright laws is rarely appreciated. Librarians are responsible members of society. We are not pirates. We respect copyright and take it seriously. We have to, as practically all the material handled in libraries is protected by copyright. We also recognise and respect the need for right holders to obtain a fair return on their investments. Librarians, especially in the UK, familiarise themselves with copyright laws and take reasonable precautions against any inadvertent infringement which may take place on the library premises. This is not an easy role to sustain as we are frequently accused by library users of being obstructive in preventing copyright abuse or misuse, while at the same time we are often accused by right holder representatives of encouraging copyright infringement. Also, it is often stated, especially by publishers, that librarians are always trying to obtain something for nothing: to avoid having to pay for information. When librarians talk about free access to information, this is literally taken to mean information for free, whereas what is meant is that we want access to information which is flowing freely, i.e. unrestricted, packaged information which is purchased by libraries and made available by the quickest possible methods to users. We are not trying to ruin publishers. On the contrary we need them to continue to provide quality products for the information society.
Librarians have idealistic aims but then so do most professions. Our aim is to facilitate access to education and knowledge by collecting and making these collections available to those who need them, whoever and wherever they may be. We preserve collections as part of a nation's heritage. We spread the knowledge of our collections and share our resources both nationally and internationally. We have learned skills in searching and retrieving information from internal and external sources and can greatly assist in the learning process. We turn information into knowledge which can be used for personal, education, research or commercial purposes. Our role is, therefore, to help users to identify, obtain and use the information they need. We are part of the flow of information in the information society. However, if this system is not to break down resulting in a loss to society, this vital role needs to be recognised and backed up by governments when formulating copyright laws.
Technology is available to improve library services, but more often than not, depending on a nation's laws, full advantage cannot be taken because of copyright considerations. Library and information professionals are committed to make works available for all to access. The 4th Law of Library Science is Save the time of the reader(1). Librarians and their patrons, become frustrated, therefore, if access is hampered. For example, many would like to digitise and network parts of their printed collections in order to offer as wide an access as possible to their readers. There are other obvious advantages to this as well: the information can be safely preserved, and is free from the dangers that exist in its printed form - pages ripped out, defaced, stolen etc. This is not material which is already in digital form so it can be argued that it is not competing with the normal exploitation of the work. Access and use could be restricted to registered users of the library so an element of security is offered. However, obtaining authorisation, if no statutory right exists, is time consuming and may even be impossible: many publishers do not respond promptly to permission requests, if at all; some are difficult to trace; some demand prohibitive fees and/or tight licensing conditions; and some refuse. Added to this is the question of whether the publisher holds the rights or whether it should be the author one has to approach. Multiply all of these requests by the number of authors and publishers and the scale of the problem can be appreciated.
The hopes and expectations of librarians in being able to use the new technologies to enhance their services have clashed with the fears of rights owners about the use of copyright protected material. Rights owners fear that, once their intellectual property is in digital form, it will be appropriated by some of the less scrupulous nations, or those with inadequate statutory protection, causing wide-spread piracy. This is an understandable fear, although no research has been undertaken to prove that these fears are valid. Some publishers have reported that putting the full text of their works on the Web has actually increased sales.(2) The library profession maintains that given certain rights and safeguards, piracy will not happen to materials under its care, although they cannot be held liable for all acts of infringement in the library premises. They are not, and should not be expected to be, copyright police.
Right holders believe that digital is different as uses of their works can be monitored using digital solutions. It is true that digital technology has the potential to enable rights holders to track and charge for every instance of electronic access. This has had a cautious welcome from the library profession. Although technical controls - electronic copyright management systems - can be valuable in guaranteeing the integrity of a product, we are concerned about the their effects when used to underpin copyright protection especially for text-based scientific and technical information. Such controls, designed to prevent copyright abuse, could also be used to demand a high price for information access. Used in this way, it could mean an abuse of a monopoly besides being dangerous to have total control over any information. Added to this is the threat that, circumventing technical controls put in place for copyright protection, even for copying and using under a statutory exception for lawful users, will be illegal under the new EC draft directive on copyright.
In the view of many right holders all access and use of works whether in printed, analogue or digital form should be licensed and paid for. This is a dangerous argument as having such market power gives them the mandate - the green light - to impose monopoly prices and potentially oppressive terms on users, including libraries, academic and research organisations, and to ignore the social consequences that follow from the inability of such organisations to make payments for every access. Where is it written that right holders should be entitled to a maximum return on investment? An equitable return to encourage the creation of new works is all that should be expected. Statements coming from some publishers which assert that, because all digital copying has the potential to be tracked and controlled, there is now no need to apply any exceptions for uncontrolled copying and use, demonstrate the one-sidedness of their argument. What they appear to have forgotten is the other side to copyright: the needs of society. This cause is taken up by the library profession as there is no other profession which is upholding the consumer interest on copyright.
The precedents being set by the European Union are a worrying factor for libraries. Over the past few years, librarians in the EEA have had to contend with the various changes to copyright such as the extension of the term of protection; public lending having to be licensed; and a new form of database protection with strict rules on extraction and reutilisation. Now the European Commission has issued another directive which is increasing protection while at the same time severely limiting the scope for member states to provide limitations and exceptions. We are not happy with this. The EU is tipping the balance more and more in favour of owner interests.
It is clear from the EC Follow-Up Green Paper,(3) and the response of the subsequent consultation, that the views of the leisure and entertainment industry prevail in the new directive on copyright in the information society. However, although plugging the gaps to preserve exploitation potential of entertainment and leisure works is important, it is unfortunate that education and research uses may be caught up in this protective net.
One of the fundamental principles of copyright is that it should foster creativity and development of knowledge which in turn benefits society. It is in the publics interest to have access to information in all its formats which is widely accessible and which may be freely communicated. This leads to a better informed and educated society which, in turn, leads to the creation of more intellectual property. No-one would argue that this has changed. We still need exceptions and limitations to fulfil this principle. Exceptions are not provided just to annoy publishers, or because at one time it was not possible to collect payments. At the recent Imprimatur conference in Amsterdam, Mr Bernt Hugenholz described exceptions as being essential instruments to copyright law and not as exceptions to a rule. They should be regarded as fundamental rights.
An exception which allows copying for research actually supports the economic argument that copyright provides incentives to potential creators to create new works, it does not negate it. Although existing authors need protection to stimulate the digitisation and dissemination of their works, potential creators also need encouragement to carry out research for a work. If there are barriers to access (being refused, or having to pay a high price to access and clear rights to copy), the costs of producing a new work will be higher and this could be a disincentive to create. Scientists and academic researchers especially need easy access to data at prices they can afford. Also, much of the information generated which is likely to be copied and used comes from the academic and scientific communities which is paid for out of public funds. Researchers as well as the public should therefore benefit from their output.
The new right of communication to the public adopted by WIPO in the recent treaties and included in the EC draft directive poses a threat to library services. Of especial concern, are activities such as browsing and viewing from a computer screen which are likely to fall under this right. We do not believe that there should be authorisation to browse or view. The definition of browsing and viewing in this sense is akin to looking among the bookshelves for something which catches the eye and examining it to see whether it is appropriate for a purpose. It is accepted that users can browse and view works in printed form so there should be no difference in looking at an electronic version. If browsing and viewing have to be authorised, the public is, once more, at the mercy of right holders who could charge whatever they like. This would mean, in effect, that users would be paying for reading. This is totally unacceptable. It was never intended that copyright protection should extend to reading. Rights holders should not be given the opportunity to control the right to read, view, listen or receive or inappropriately monitor the use of information.
There needs to be greater flexibility on copyright, rather than a tightening up, if the ideals of the information society, being promoted by many governments, are to be achieved. It is accepted by all players that harmonising the exceptions will not be easy in the EEA because of the different copyright traditions, legal systems and languages. We accept that traditional exceptions do not translate easily from some laws into the digital environment - but this does not mean that they should be abandoned altogether.
Let us examine the differences: many of the continental civil law countries have exceptions for private copying; whereas the common law countries of the UK and Ireland have what is called fair dealing; the UK also has a whole bundle of specific exceptions for other special purposes including regulations for copying by librarians. Whilst not advocating that the UK should adopt private copying or the civil law countries adopt fair dealing etc., in the interests of balance the concepts behind fair dealing, copying by librarians and for education and research must be preserved. They should be rethought and adapted to meet society's needs.
The fair use concept which is used in the USA has been suggested as a desirable solution but this is, I understand, not a term which is recognised or which can be translated easily into some European languages or legal systems. Perhaps the less emotive term fair practice should be considered. The term fair practice is already used in the Berne Convention so the concept should be familiar to all(4). Examples of what is fair could be given and in any dispute a test of fairness could then be judged by a court of law, case by case. It should be fair practice, for example, to copy and use reasonable amounts from certain materials by individuals for their own private study.
With the arrival of the digital revolution, the worlds collection of knowledge is potentially available for all to access. To be able to share the worlds vast collection of knowledge with all nations, not just for the developed world would be the fulfilment of a library ideal. We want governments to recognise our important role and to give us special treatment in order to be able to use the new technology lawfully in our services and fulfil this aim.
Most of what librarians (public, school, university, special) do is, and always has been, in the best interests of their users. These users are all members of the public and, provided there are barriers to the information flow, will contribute in different ways to the wealth and culture of a nation. Despite some who forecast that there will be no need for libraries in future, librarians will nevertheless endure and will play an important role in ensuring that there is no stratification in society between those who have the means to obtain access to knowledge and those who have not.
© Sandy Norman December 1997
(1) Ranganathan S. R. Library Manual for Library Authorities, Librarians and Honorary Library Workers. Asia Publishing House, 1962.
(2) The Stationery Office in the UK
(3) Follow-up to the Green Paper on Copyright and Related Rights in the Information Society. CEC COM(96) 568 final.
(4) Article 10 for example.