Handbook on Copyright and Related Issues for Libraries

Foreward
The Relationship between Copyright and Contract Law: Electronic Resources and Library Consortia
Technological Protection Measures - the "triple lock"
Copyright, the Duration of Protection and the Public Domain
Orphaned works
Collective Rights Management
Public lending right
The Database Right - Europe's Experiment
Creative Commons: an "open content" licence
Open Access to Scholarly Communications
Copyright and Trade Agreements
International Policy Making: a Development Agenda for WIPO
National Policy Making: Advocating for Fair Copyright Laws


FOREWARD

We are living in a knowledge society. Knowledge empowers people in their everyday lives and facilitates good governance and the development of democratic societies. Knowing your legal rights as a citizen, being well informed about a medical condition or having access to the latest travel, weather or leisure information enables people to take control, make informed decisions and to exercise choice. It encourages innovation, creativity and a competitive economy.

Libraries organise, collect and preserve all types of information, knowledge, cultural and learning resources for the purposes of making them available to library patrons and the general public of today and tomorrow.

Information technologies have provided libraries with opportunities to improve and develop innovative services and to serve our communities in new ways. Resources previously available only to those who could travel to the library can be accessed electronically by library users in the remotest areas. Scientists and students can benefit from access to world-class scholarly information and research data. Through digitising their collections, libraries are opening their treasures to the world.

The barriers to accessing knowledge, especially in developing and transition countries, are formidable. Financial, technological and legal “firewalls” hinder the development of the knowledge society with all its benefits. This Handbook is a practical guide to topical legal questions affecting the information work of libraries in the fast-moving digital environment. The range of issues illustrates the complexity of the world in which the digital librarian operates. Librarians should have some knowledge of the key areas, so that the library community can defend their position and can continue to fulfil their mission in the digital age. Each topic is described briefly, the main policy aspects for libraries are outlined, and there are links to library policy statements for further reading.

eIFL.net is grateful to the following people for drafting and reviewing advice: Harald von Hielmcrone (Denmark), Dick Kawooya (eIFL-IP Uganda), Ján Kovácik (eIFL-IP Slovakia) and Melissa Hagemann (USA) for reviewing Open Access to Scholarly Communications. Editorial policy and any errors or omissions rest with eIFL.net.

We hope that you find the Handbook useful. If you do, please share, distribute, translate and build upon it!

Teresa Hackett
December 2006


THE RELATIONSHIP BETWEEN COPYRIGHT AND CONTRACT LAW

Copyright law and contract law

A law is an enforceable set of public rules that govern society. When laws are being made, they are usually debated by the legislature and there may be opportunities for stakeholders to put forward their views. Copyright law should reflect a balance between the rights of copyright owners and those of users of copyright material, such as individuals and libraries. As such, they may contain special provisions to allow libraries to undertake preservation activities or to make fair use of material in their collections. Printed material, such as books, journals, pamphlets, etc. are usually governed by copyright law. So when a library buys a book, it knows that the rules under national copyright law apply.

A contract, on the other hand, is a private legally binding agreement between parties who are free to negotiate the terms and conditions. A licence, which is mostly regulated by contract law, is a formal authority to do something that would otherwise be unlawful. Licences came into widespread use as a means to govern access and use of electronic products such as software, computer games, online film and music and databases. This means that most electronic material purchased by libraries is subject to a licence.

There are different types of such licences. A “shrink-wrap“ licence is commonly used for off-the-shelf consumer products e.g. software or computer games on CD or DVD. A ”click-wrap“ licence is also a user licence, but for content downloaded from a website where the licence terms are accepted by following a "click to accept" procedure. Both types of licences are usually non-negotiable i.e. the user must accept the terms offered by the rights owner in order to access the product. (In return, there may be statutory protections to protect consumers from agreeing to unfair licence terms).

While a library may have off-the-shelf electronic products in their collections, the majority of a library’s electronic resources are usually large collections of databases, electronic journals, books and newspapers, etc. purchased through commercial suppliers. All are usually subject to a licence agreement with the copyright holder (often the publisher), who will send their standard licence to the librarian. In contrast to the off-the-shelf products described earlier, it is important to note that this is an invitation by the publisher to negotiate the terms and conditions under which the product may be accessed and used. The librarian should read the licence carefully, amend as appropriate and return to the publisher. In other words, the librarian should negotiate the terms and conditions with the publisher. This may not always be easy to do, but it is very important because ignoring or failing to understand the terms and conditions may not stop them from applying and the library may be bound by them.

Practice

The use of licences for electronic products introduced a host of new issues for libraries.

•    Contract law usually takes precedence over copyright law, so anything that the library agrees to in a licence is usually binding regardless of what the copyright law says.

•    Parties to a licence agreement, in this case, the library and the publisher, are free to negotiate the terms and conditions. This means that the library may negotiate extra provisions over and above what is allowed in their copyright law, or conversely, they may waive their rights granted under copyright law.

•    This principle of “freedom of contract“, however, often puts libraries at a serious disadvantage. Firstly, the position of the parties is unequal because the publisher has an exclusive, monopoly right over the material. Publishers, who are often international, can afford to employ lawyers to draft their licences, which are often highly technical and written in English. The licence is usually governed by the law of the country most favourable to the publisher, rather than the law of the country in which the library is situated.

•    For printed material, the library and its users have potentially unlimited access. There are no restrictions placed by the copyright owner on the length of time the library may keep a book on the shelf or where the user reads the book after it is borrowed. If a library cancels its subscription to a journal, it may keep the previous issues for future use. In contrast, the licence usually provides access to the electronic material for a specific period of time and under the conditions as specified in the licence. This means that the library must negotiate each and every use that they wish to make of the material.

The response of libraries has been to co-operate in order to increase their bargaining power and to share knowledge and costs by forming library consortia. As well as negotiating the price and terms and conditions for electronic resources, consortia in many countries have evolved to provide other programmes and services such as training, e-portals and leadership in advancing digital libraries. The increased availability of internet-based digital material in the late 1990s led to the establishment of Electronic Information for Libraries (eIFL.net) to negotiate licences and to support the growth and development of library consortia in developing and transition countries. Consortia can be national e.g. National Electronic Information Consortium in Russia (NEICON), regional e.g. NELINET, a U.S. network or they can represent similar types of libraries, such as university libraries e.g. Coalition of South African Library Consortia (COSALC).

One of the outcomes has been the development of model licences which set out the terms and conditions which are acceptable to the library or consortium. Some model licences have been jointly developed by publishers and librarians, thus easing the negotiation process. There are model licences available to cater for a variety of situations e.g. single academic institutions, academic consortia, public libraries or special libraries. Most are publicly available online, and are a recommended starting point for any negotiation.

Policy Issues for Libraries

It is the responsibility of the librarian to ensure that the licence agreement contains everything that the library requires and that it caters for all its users, whether a member of a consortium or where the resources fall outside those on offer by consortium. The library must also ensure that it meets its obligations – which should not be too onerous - under the terms of the licence.

•    The library should ensure that gets the best deal for its users in terms of access and use and for its funders in terms of price.

•    The library should ensure that it understands and meets the terms and conditions of each and every licence agreement that it signs. If in doubt, it should seek advice.

•    The library should consider joining or forming a consortium to negotiate better deals and to assist with training, management of electronic resources, fundraising, etc.

In brief, a library should avoid a licence that:

•    isn't governed by the law and courts of the country where the institution is located
•    doesn't recognise the statutory rights for usage under copyright
•    doesn't grant perpetual access to the Licensed Material that has been paid for
•    doesn't include a warranty for IP rights and an indemnity clause against claims
•    holds the Library liable for each and every infringement by an authorised user
•    has a non-cancellation clause
•    has a non-disclosure clause
•    has reasonable and best effort clauses for obligations on the Publisher
•    has clauses with ambiguous periods of time
•    hasn't got a licence fee that is all inclusive

Source: Licensing Digital Resources: How to avoid the legal pitfalls
http://www.eblida.org/ecup/docs/licensing.htm

Library Position Statements

EBLIDA Position on User Rights in Electronic Documents (1998)
http://www.eblida.org/ecup/docs/policy21.htm

ICOLC Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information (1998)
http://www.library.yale.edu/consortia/statement.html

IFLA Licensing Principles (2001)
http://www.ifla.org/V/ebpb/copy.htm

Model licences and resources

eIFL.net model licences
http://www.eifl.net/services/services_model.html

eIFL.net resources for consortium building
http://www.eifl.net/resources/resources_consortium.html

Liblicense Standard Licensing Agreement
http://www.library.yale.edu/~llicense/modlic.shtml

UK JISC model licence
http://www.jisc-collections.ac.uk

Model standard licenses for use by publishers, librarians and subscription agents
http://www.licensingmodels.com/


TECHNOLOGICAL PROTECTION MEASURES - THE TRIPLE "LOCK"

What is a technological protection measure (TPM)?

A technological protection measure (TPM) is a means of controlling access to and use of digital content by technological means i.e. through hardware or software or a combination of both. A common use of TPMs is to prevent or restrict copying. A TPM can manifest itself in many ways e.g. a DVD player that won’t play a DVD bought in another part of the world because of region coding, the inability to transfer legally purchased music to a third party MP3 device. Digital Rights Management (DRM) is often used interchangeably with TPMs, although there may be some differences in definitions. To its detractors, DRM is known as “Digital Restrictions Management .

Librarians and other users began to take notice when TPMs acquired their own special legal protection in the 1996 WIPO Copyright Treaty (WCT). This means that there is an international treaty provision making it illegal to circumvent or break a TPM “used by authors in connection with the exercise of their rights” . Anti-circumvention provisions are being implemented into the national laws of countries that have signed the WCT. Amongst the first to do so was the US in its 1998 Digital Millenium Copyright Act (DMCA), followed by the 2001 European copyright Directive .  Both implementations are generally regarded as strict interpretations of the WCT provisions. Circumvention is illegal, regardless of the purpose. In the US, circumventors are subject to civil and criminal penalties.

This means that right holders have been given a new tool with which to enforce their copyrights. Using technology, they can set the rules by which content is accessed and used, effectively bypassing copyright law and any provisions that may exist for the benefit of users e.g. exceptions and limitations. Together with the prevailing use of licences to govern access to digital content, and the propensity of licences to override copyright law, rights holders find themselves in a very powerful position in the digital world, placing users in a “triple lock“. (See also The Relationship between Copyright and Contract Law: Electronic Resources and Library Consortia).

There is widespread concern amongst consumer advocates that while TPMs/DRMs are poor at preventing commercial copying, they are good at restricting consumer use, including normal expected uses such as format and time shifting. Consumer choice may be split into different pricing models for restricted functionality versus a wider choice. TPMs block assistive technologies used by people with disabilities. Lack of interoperability e.g. locking consumers into one platform, can lead to anti-competitive behaviour, price discrimination and market segmentation.

Concerns about privacy and security were realised in the now infamous “Sony rootkit” story which broke in November 2005 . Sony BMG Music Entertainment distributed a copy-protection scheme with music CDs that secretly installed a rootkit (commonly used by malware) on their customers’ computers. The software tool was run without the knowledge or consent of the computer owner and it created a major security flaw in the computer’s operating system leaving it vulnerable to computer viruses. So great was the outcry, that Sony was forced to remove copy-protected CDs from shops in the run-up to the lucrative Christmas season. Not before an estimated half a million networks worldwide were infected, however, followed by a rash of class-action lawsuits in the US. For people with fast broadband internet access and the ability to download fixes easily to their computer, perhaps this was a major inconvenience. For a primary school in a developing country with no internet access, who is liable for the costs of fixing their broken computer in such situations?

Practice

Legislators are aware that such powerful provisions may need to be checked in some way.

The US Register of Copyrights has the authority to make rules in response to proposals by affected parties. In the most recent ruling in December 2006, persons who engage in non-infringing uses of copyrighted works in six classes of works will not be subject to the statutory prohibition during the next three years. These include audio-visual works in a third-level educational library or media studies department and, to enable the Internet Archive to legally preserve software and video games, computer programs and video games on obsolete formats .

The European legislator takes a different approach. The copyright Directive says that Member States must intervene to enable beneficiaries to avail of certain exceptions for TPM-protected content (e.g. the library exception ) and has discretion to intervene for others (e.g. reproduction for private use ). However, these safeguards do not apply to works subject to “click-wrap” contracts, effectively leaving the user at the mercy of the rights holder with regards to circumvention for online content. Otherwise, the Directive encourages right holders and users to reach voluntary agreements, a piecemeal solution that naturally favours the stronger party.

The US-based digital civil rights organisation, Electronic Frontier Foundation, documents how the anti-circumvention provisions of the DMCA have been used to stifle a wide array of legitimate activities, rather than to stop copyright infringements. It illustrates how they are being invoked against consumers, scientists, and legitimate competitors, rather than pirates .

Policy issues for libraries

The success of the Information Society depends on digital content being accessible. The legal protection given to TPMs/DRMs creates a conflict with copyright exceptions. At a hearing of the UK All Parliamentary Internet Group in 2006, the British Library warned that TPMs might  “fundamentally threaten the longstanding and accepted concepts of fair dealing and library priviledge and undermine, or even prevent, legitimate public good access” .

Libraries have a number of concerns.

•    Libraries must not be prevented from availing of their lawful rights under national copyright law. TPMs cannot distinguish between legitimate and infringing uses. The same copy-control mechanism which prevents a person from making infringing copies of a copyright work, may also prevent a student or a visually impaired person from making legitimate copies under fair use/fair dealing or a legal copyright exception.

•    Long-term preservation and archiving, essential to preserving cultural identities and maintaining diversity of peoples, languages and cultures, must not be jeopardised by TPMs/DRMs. The average life of a DRM is said to be between three and five years. Obsolescent DRMs will distort the public record of the future, unless the library has a circumvention right.

•    The public domain must be protected. DRMs do not cease to exist upon expiry of the copyright term, so content will remain locked away even when no rights subsist, thereby shrinking the public domain.

Libraries are strong opponents of anti-circumvention provisions that enable rights owners to override exceptions and limitations in copyright law. Libraries must be allowed to circumvent a TPM/DRM to make a non-infringing use of a work.

Library position statements

American Library Association, Libraries and Copyright in the Digital Age
http://www.ala.org/ala/washoff/WOissues/copyrightb/copyright.htm#LnC

eIFL/IFLA Joint Statement WIPO SCCR/14, Draft Basic Proposal for the WIPO Treaty on the Protection of Broadcast Organizations, May 2006 http://www.eifl.net/services/ipdocs/sccr_14_written.pdf

IFLA Committee On Copyright And Other Legal Matters (CLM)
Limitations And Exceptions…In The Digital Environment: An International Library Perspective http://www.ifla.org/III/clm/p1/ilp.htm

References

Digital Restrictions Management http://www.drm.info/

Digital Rights Management: A failure in the developed world, a danger to the developing world, Cory Doctorow http://www.eff.org/IP/DRM/drm_paper.php

Electronic Frontier Foundation, Unintended Consequences: Seven Years under the DMCA, April 2006 http://www.eff.org/IP/DMCA/unintended_consequences.php

eIFL at WIPO International Seminar on Intellectual Property and Development, 2005 http://www.eifl.net/services/ipdocs/isipd_eifl.pdf

European Commission, Directive 2001/29/EC (copyright Directive) http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-infso_en.htm

US, Digital Millennium Copyright Act (1998)
http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281:

World Intellectual Property Organization Copyright Treaty (WCT) (1996)
http://www.wipo.int/treaties/en/ip/wct/

COPYRIGHT, THE DURATION OF PROTECTION AND THE PUBLIC DOMAIN

Copyright and the public domain

Copyright gives legal protection to creators of “works of the mind” by granting an exclusive right to a creator to control production and use of the work by others. The creator has the right to control the reproduction (making copies), distribution of copies, public performance, broadcast and translation of their work. It covers literary, dramatic, musical or artistic works. To qualify for copyright protection, the work must be original and “fixed” in some tangible or material form e.g. written down or recorded.

In addition, a set of rights, known as related rights, subsist in sound recordings (for the person who undertakes the musical arrangements), in film and video (the film producer), in broadcasts and cable transmissions (the service provider), and in some countries in typographical arrangements of a published edition (the publisher).

Copyright is an economic property right, in other words, it is not a personal or human right. This means that copyright may be assigned or licensed to a third party e.g. an author may assign the copyright in a book they have written to a publisher in return for payment. The publisher then owns the copyright and controls the use of the book e.g. distribution and translation. Copyright can also be inherited by the heirs of a deceased author.

The purpose of copyright is to enable creators and entrepreneurs to receive financial reward for their works or for the works of others. This is an incentive to encourage further creativity and innovation and a thriving artistic and cultural environment which in turn benefits society. This purpose is borne out in the title of the world’s first copyright law, “An Act for the Encouragement of Learning” (1710), also known as the English Statute of Anne. The Statute of Anne also recognised another important principle; that the exclusive right given to creators should be limited in time (in this case, fourteen years from the date of first publication). After this time, the works were no longer protected by copyright and so fell into the public domain.

The public domain is considered to be part of the common cultural and intellectual heritage of humanity and can be a source of inspiration, imagination and discovery for creators. Works in the public domain are not subject to any restrictions and may be freely used without permission for commercial and non-commercial purposes. For example, a publisher can produce special low-cost editions of a book in the public domain, a songwriter can parody a well-known ballad without fear of being sued, a teacher can distribute copies of a poem for students in their class, a library can digitise a set of public domain photographs for their online local history exhibition.

The duration of copyright protection

The duration, or term, of copyright protection has been extended many times since the Statute of Anne. The international legal standard, as set out in the Berne Convention (1886) which establishes the ground rules for national copyright protection, is now life of the author plus fifty years after the death of the author. This duration also applies in the more recent WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (1995), known as TRIPS.

There are exceptions to this basic rule for certain categories of works. For film, the term is 50 years after the work has been made available to the public, or if it has not made available, then 50 years after the making of the film. These terms also generally apply to anonymous works or where the author or rights owner is not a “natural person” e.g. an institution or a publisher. For photographs and works of applied art, the term of protection is 25 years from the making of the work.

However, under Berne, it is possible for a country to exceed the term of life of the author plus fifty years, and for members of the WTO bound by the TRIPS agreement, life plus fifty years is a minimum standard to which all countries must adhere. The majority of countries in the world adhere to the rules under Berne i.e. life of the author plus fifty years post mortem, followed by a large minority who have chosen to extend the term of protection to life of the author plus seventy years post mortem.

Practice: extending the term of protection

Life of the author plus fifty years after their death was considered in the Berne Convention and in TRIPS, both internationally negotiated treaties, to constitute a fair balance between the interests of authors and rights owners and the needs of society. It provided a monopoly right to most creators to benefit not only themselves during their lifetimes, but to benefit the heirs of their estate as well e.g. their children and grandchildren.

During the 1990’s however, the term of protection was extended in many countries by a further twenty years i.e. to life of the author plus seventy years. This was accelerated by two of the world’s two largest trading blocs, the European Union and the United States, who in the global economy both have influence beyond their shores. In 1993, the European Union (EU) “harmonised” the term of protection of copyright and related rights which meant that most EU member states were required to increase the term of protection to life of the author plus seventy years. In 1998, the Copyright Term Extension Act extended protection in the United States to match for general copyrights and to ninety-five years for works made for hire (related rights). As copyright came increasingly within the realm of trade agreements, and as trade agreements between the EU/US and third countries typically required the longer term, the dye was cast for many other countries around the world. (For more information, see Copyright and Trade Agreements).

Observers from many quarters think that life plus seventy years is excessive and that the original purpose of copyright, to provide an incentive to creators, has been lost sight of.  One notable feature of the current policy-making environment is the presence of big business and the influence of the “copyright industry” on global and national copyright laws. In fact, the US Copyright Term Extension Act (1998) became known as the “Mickey Mouse Protection Act” while opponents, who launched a challenge to the Act in the US Supreme Court, adopted “Free the Mouse” as an unofficial slogan. The copyrights on Mickey Mouse, Donald Duck and their other Disney world-character friends were due to run out in the following years and they would have entered the public domain. The Walt Disney Company, ironically built on adaptations of public domain works such as Snow White, threw their weight behind the extension to protect their profitable business interests for another two decades. The result affected tens of thousands of works of all kinds which were poised to enter the public domain in the US, but instead remained under private ownership until at least 2019.

In the US, the extension was retroactive for all works still under copyright. In Europe, the extension was retroactive not only for works still in copyright, but also for works that had passed into the public domain within the previous twenty years. In other words, some works in the public domain were re-protected, representing a windfall for the estates of deceased creators. This led to a number of European court cases such as the dispute between a music publisher and a publicly funded theatre over performance rights in the Puccini masterpiece opera La Bohème , and famously, an emergency amendment to the Irish copyright act to ensure that "Rejoyce Dublin 2004", a festival to celebrate the centenary of Bloomsday, the day on which James Joyce's novel Ulysses was set, could go ahead as planned. Copyright in the works of James Joyce published during his lifetime had expired in 1991, fifty years after his death. For three and a half years, they were in the public domain. As a result of the 1993 European legislation, copyright was revived until 2011, leading one to ask how this can be an incentive for James Joyce, deceased since 1941, to create new works.

Policy issues for libraries

Libraries have long been concerned about the erosion of the public domain, which provides a fertile source of content upon which creators can build new works, as well as enabling libraries to provide public access to the world’s great artistic and literary masterpieces e.g. through digitisation projects. However, the public domain must be nurtured and protected from encroachment. As custodians of the world’s cultural and scientific heritage, librarians should be advocates for the public interest, should educate users on the value of the public domain and provide leadership to policy makers.  This includes advising on the hidden costs to libraries of copyright protection such as extra fees for licensing and document supply, book and journal prices, equipment levies and the time consuming and frustrating process of copyright clearance, as well as the benefits of a rich public domain for education and society to flourish.

For developing and transition countries, where the issue of accessing information is a key determinant in their development, term extensions mean that information that traditionally belonged to everybody is removed from collective ownership with grave consequences for education and innovation. Furthermore, the extension of the term disproportionately benefits rights owners and their estates in developed nations, at the expense of users of information and potential new creators in developing countries, reflecting the information flows from North to South.

“A rich public domain and fair access to copyright protected material enhances creativity and the production of new works. It is often assumed that economic growth benefits from ever-stronger intellectual property rights while some concession must be made to copyright exceptions for purely social reasons. In fact this is a false dichotomy. Many industries require access to copyright material for the purposes of research and development, education, software or hardware interoperability. A lack of reasonable access can actually hurt economic growth.” IFLA Committee on Copyright and other Legal Matters
http://www.ifla.org/III/clm/p1/ilp.htm

Library position statements

Importance of the Public Domain, Special Libraries Association (SLA)
Information Outlook, Vol. 5, No. 7, July 2001
http://www.sla.org/content/Shop/Information/infoonline/2001/jul01/copyright.cfm

Joint statement by IFLA and Electronic Information for Libraries (eIFL.net)
on the proposal by Chile for WIPO to undertake an appraisal of the public domain (2006)
http://www.eifl.net/services/ipdocs/pcda1_chile.pdf

Proposal by Chile to WIPO on the public domain (2006)
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=55592

Limitations and Exceptions to Copyright and Neighbouring Rights in the Digital Environment: An International Library Perspective (2002) IFLA Committee on Copyright and other Legal Matters http://www.ifla.org/III/clm/p1/ilp.htm

References

Legislation

Berne Convention for the Protection of Literary and Artistic Works (1886)
http://www.wipo.int/treaties/en/ip/berne/

US Copyright Term Extension Act
http://www.copyright.gov/legislation/s505.pdf

European Council Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights
European Commission Official Journal L 290, 24/11/1993 P. 0009 – 0013
http://ec.europa.eu/internal_market/copyright/term-protection/term-protection_en.htm

Articles

Bloomsday: Copyright Estates and Cultural Festivals, (2005) 2:3 SCRIPT-ed 345 by M Rimmer
http://www.law.ed.ac.uk/ahrb/script-ed/vol2-3/bloomsday.asp

Calson Analytics profile: duration of copyright http://www.caslon.com.au/durationprofile.htm

The case against copyright creep. Sonny Bono: A warning from history by Chris Williams
http://www.theregister.co.uk/2006/11/29/jonathan_zittrain_interview

How do I find out whether the book is in the public domain?
http://onlinebooks.library.upenn.edu/okbooks.html#whatpd

The Mouse That Ate The Public Domain: Disney, The Copyright Term Extension Act, And Eldred v. Ashcroft by Chris Sprigman. Findlaw Tuesday, Mar. 05, 2002
http://writ.news.findlaw.com/commentary/20020305_sprigman.html

List of countries' copyright length
http://en.wikipedia.org/wiki/List_of_countries%27_copyright_length

Note: sources listing the term of protection in different countries may not always be complete or accurate

ORPHANED WORKS

What are orphaned works?

Orphaned works are any copyrighted works where it is difficult or impossible to identify and/or locate the rights holder. This means that it is impossible to obtain the necessary permissions for any uses that fall outside of statutory provisions in national copyright law (and where therefore permission is not required).

The US Copyright Office has stated that "the public interest may be harmed when works cannot be made available to the public due to the uncertainty over its copyright ownership and status, even when there is no longer any living person or legal entity claiming ownership of the copyright or the owner no longer has any objection to such use ."  It goes on to acknowledge that "the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts or making such works available to the public."

The Center for the Study of the Public Domain at Duke Law School estimate that orphaned works probably comprise the majority of the record of twentieth century culture . This impacts on creators and users. Creators of new works often wish to use existing material, but cannot locate the copyright owner despite reasonable efforts to find them.  This is especially true of preservation projects, including digitisation projects, or historical publications that seek to provide access to photographs, letters, sound recordings, film footage, etc., that have clear educational and cultural value, yet no identifiable owner from whom to seek permission.

Because the cost of finding the rights owner can be so high, creators are deterred from building on orphaned works and institutions such as libraries cannot use them, even when they are willing to pay for the use. In many cases, the works may be abandoned because they no longer produce any income for the rights holder. Sometimes rights holders, once found, are pleased to have their work used and may only require minimal compensation.

There are several reasons why it may be impossible to locate a rights holder e.g.

•    the author may be unknown, or if known, may be deceased leaving no known heirs, the date of death may be unknown;

•    where a publishing company holds the rights, it may have gone out of business with no legal successor or it may have merged with other company (mergers in the publishing industry are commonplace), records of authors whose works were published over the years by the company may not have been kept.

Orphaned works can include published and unpublished literary works, photographs, illustrations, films, musical scores and many other categories of works.

Practice

The problem of orphaned works has come to the fore for a number of reasons.

No formalities

The Berne Convention (1886), the international treaty on copyright, prohibits any formalities for the “enjoyment and exercise” of copyright. The absence of formalities means that the author is not required to register their copyright or to formally notify any authority. In other works, copyright protection automatically accrues from the moment the original work is “fixed” in a tangible or material form e.g. written down or recorded. In some countries, such as the US, there is a voluntary system of registration for authors to publicly claim ownership of their work, but it is not a condition to receiving copyright protection.

This means that the burden of finding the rights holder lies entirely with the user of the material. With no formal or centralised way of checking ownership, this can prove impossible, especially for international works. It can be a significant deterrent to users such as libraries from making the work available to the public and to creators in incorporating such works into new works e.g. photographs in a new book, old footage in a documentary film.

Extension of the duration (term) of copyright protection

Each time the duration of copyright protection is extended, so the difficulties in locating rights holders and obtaining permission for older works increases. The less works in the public domain, the more works there are which require permission. Under the international standard, as set out in the Berne Convention (1886), an author receives copyright protection for their life plus fifty years after their death. For example, the estate of an author who wrote a book in 1920 on life as a soldier in the trenches during World War II and who died in 1958 aged 70 years, would receive copyright protection until 2008. A library wishing to digitise a poem from the work in 2006 for an exhibition on the 90th anniversary of the Battle of the Somme would need to get permission from his estate (assuming copyright rests with the author). For those countries which have extended the term of protection to life of the author plus 70 years, the work would be in copyright until 2028, a full 108 years after the book was written. The chances of locating the heirs or finding the administrator of the estate after such a time are clearly diminished, with the result that the library probably has to abandon the idea of using the poem for the exhibition.

The US Copyright Office has reported concerns that the extension of the term of protection will exacerbate problems in preservation of fragile, older films where the copyright owner cannot be identified, but where transfer onto another medium is essential for its continued existence. Does the film archive take a chance that the rights holder will not pop up with a lawsuit in hand in order to save an important piece of cultural history, or does it err on the side of caution and accept that the work is lost forever?

For more information on the duration of copyright protection, see “Copyright, the Duration of Protection and the Public Domain”.

Increased access to works online

The problem of orphaned works does not lie solely with older works, however, but manifests itself in contemporary digital material as well. The internet offers new opportunities to find and share creative content, but this may tantalisingly be out of reach if permission is required for a usage and the copyright owner cannot be contacted e.g. the email address on the website is no longer working. With potential users scattered all over the globe, locating a rights owner in India, Europe or South America may prove insurmountable.

Initiatives such as Creative Commons, which encourages creators to license their work for specified uses and which includes rights information in the metadata, may alleviate the situation, but it will not address the underlying problem which is real and must be resolved.

Some possible solutions

Legislators and authorities in several countries have already proposed possible solutions.

Examples:

In Canada, the Copyright Board may grant non-exclusive licences for the use of published works when the copyright owner cannot be located. Anyone seeking such a licence must complete an application form describing all efforts made to try to locate the copyright owner. If the Board determines that “reasonable efforts” have been made, it will set terms and fees for the proposed use. Fees will go to the relevant copyright collective society if the copyright owner does not surface to collect them within five years. However, the Canadian system deals only with known, but unlocatable copyright owners, it does not deal with unknown copyright owners. Since these provisions were enacted in 1990, only 125 such licences have been issued.

The European Commission, in its 2006 Recommendation on digital libraries , is aware that the development of licensing mechanisms in close cooperation with rights holders should be encouraged in areas such as orphaned works and works that are out of print. The Commission therefore recommends that European Union Member States improve conditions for the digitisation of orphaned works by promoting the availability of lists of known orphaned works, as well as works in the public domain.

The United Kingdom has a more limited statutory provision stating that copyright infringement does not occur if it is not possible by reasonable inquiry to ascertain the identity of the author and where it is reasonable to assume that copyright has expired or that the author died 70 years or more before the time the work is used. This provision, however, only covers a small subset of orphaned works i.e. older works that have unidentifiable copyright owners. Like the Canadian law, it does not provide guidance as to what constitutes a “reasonable” inquiry or assumption. The Gowers Review Report of Intellectual Property (December 2006) recommended that the the UK Patent Office maintains a voluntary register of copyrighted works and that the UK government works within the EU for legal provisions concerning orphaned works .

In the USA, the Copyright Office issued a report on orphaned works in January 2006. This recommends that would-be publishers of orphaned works first conduct a "reasonably diligent search" to locate the owners of the works. If an orphaned work is re-published (e.g. digitised) and the owners of the material surface and demand payment for the use of their materials, they are entitled to a "reasonable compensation", but not compensation for infringement of copyright.

For more information on Creative Commons, see “Creative Commons: an “open content” licence.

Policy issues for libraries

The problem of orphaned works poses significant harm to libraries and may even jeopardise their principal role in preserving the world’s cultural heritage and in making it accessible. The most effective, and many times the only possible way of making works accessible, is to digitise their collections. However, in creating digital collections that include orphaned works, the library may have to go to extraordinary and expensive lengths to establish confidence that it is not violating copyright laws. In some countries, libraries may have a statutory right to reproduce works in their holdings e.g. for preservation purposes and this may include digitisation rights. However, the library is not usually permitted to provide remote access without permission from the rights holder.

The default response of archivists, librarians, film restorers, artists, scholars, educators, small publishers and others who cannot afford the risk of potential liability or even of litigation, is to avoid digitising significant resources for scholarship, unless clearance can be conclusively obtained or until the work is clearly in the public domain. Publicly funded institutions such as libraries and universities, as well as small businesses, are risk averse and may not have access to specialist legal advice in order to assess the risk and they may not be able to afford the potential costs of litigation.

The result is that orphaned works are not being used in new creative efforts or are not being made available to the public due to uncertainty over their copyright status. This uncertainty undermines an important public policy of copyright; to provide incentives for the creation of works and to promote dissemination to the public. Libraries, together with other stakeholders and legislators, should find workable solutions to this growing problem.

Library position statements

Association of Research Libraries
http://www.arl.org/info/frn/copy/orphanedworks/

American Library Association
http://www.ala.org/ala/washoff/WOissues/copyrightb/orphanworks/orphanworks.htm

References

Center for the Study of the Public Domain, Duke Law School
http://www.law.duke.edu/cspd/orphanworks.html

Copyright Board Canada Unlocatable copyright owners
http://www.cb-cda.gc.ca/unlocatable/index-e.html

European Commission Recommendation on the digitisation and online accessibility of cultural material and digital preservation
http://europa.eu.int/information_society/activities/digital_libraries/index_en.htm
http://europa.eu.int/information_society/activities/digital_libraries/doc/
recommendation/recommendation/en.pdf

The Library of Congress, US Copyright Office
http://www.copyright.gov/orphan/


COLLECTIVE RIGHTS MANAGEMENT

What is Collective Rights Management?

Under copyright law, authors, performing artists, photographers and other rights owners have the exclusive right to authorise the use of their work. They may transfer the administration of their rights to organisations known as “collecting societies” or “collectives”, to manage their rights on their behalf. They may do this by a voluntary agreement or by statutory regulation. In effect, the rights are channelled through the collecting society, aiming to reach the end-user more efficiently than by contacting individual rights holders.

There are different collecting societies for different rights. In general, performing rights collectives provide licences to play lyrics in live and recorded music in public places such as radio and TV stations, restaurants and shops. Playing music in a public place, such as a bar, also requires a licence from a phonographic performance collective on behalf of the rights holder, usually record companies, for sound recordings. Collectives for “mechanical copyright” license the recording of music onto different formats, such as cover versions of songs that have already been released, sound tracks for wedding and home videos. Artist and designer collectives license the works of cartoonists, architects, animators and others. In addition, there may be collecting societies for specialist areas such as Christian music, TV and radio broadcasts for educational use, etc.

In general, the role of the collecting society is to:

•  license the use of protected works to users when this is not otherwise permitted by the law e.g. individuals, libraries, broadcasting organisations, photocopying agencies, etc.;
•  collect royalties and distribute the monies to their members, the rights owners;
•  enforce the rights of their rights owners;
•  establish reciprocal agreements with collecting societies in other countries to enable cross-border licensing.

No two collecting societies are exactly alike. They can vary in the legal framework by which they are established, in structure and operation, in the rights that they grant. Some collectives don’t license at all. Instead, they collect revenue from the sale of copying devices such as photocopy & fax machines and computer hard disks, known as a “machine levy”. Collecting societies are usually not-for-profit organisations and are owned by their members, the rights holders, whom they represent.

Reproduction rights organisations (RROs)

Libraries may need to acquire licences from any of the above collectives during the course of their work. However, the collective that the library will usually have the most dealings with is a reproduction rights organisation (RRO). An RRO typically licenses photocopying for books, journals and other material in the print and publishing sectors, and may also license for digital copying.

An RRO, like other collectives, is an intermediary between rights owners and users. Rights owners such as authors and publishers mandate the RRO to administer their reprographic reproduction (photocopying) rights on their behalf. The collecting society may then issue licences to individuals and institutions for certain uses of the copyrighted material. The RRO collects the licensing fees, deducts administration costs and passes the remainder as royalties to the rights owners. There are RROs in approximately fifty-five countries in Europe, Asia/Pacific, Latin America and the Caribbean, and Africa. Many RROs negotiate bi-lateral agreements with each other so that they may license works from each other and pass the royalties to the “sister” RRO in the other country e.g. fees for photocopying from an American work under licence in a South African university will be paid to the American collecting society .

Practice

There are usually three main types of licences on offer. Some licences are non-negotiable with standard price lists based on the size and type of organisation and the extent of the copying. Licences for whole sectors, such as higher education, can usually be negotiated.

Individual licence. This is a licence that relates to a specific work used by an individual in a certain way, in other words, a one-off situation. For instance, a library may want to digitise an article from a print journal for an online student reading list.

Blanket licence. A blanket licence comprises works by all the rights owners in a certain category. For instance, a broadcasting company may obtain permission to use a certain genre of music for a specified period e.g. rock ‘n’ roll for a 1960’s music celebration.

Legal licence. In some countries, a licence to copy is given by law and the rights holder is entitled to a payment, which is collected by the RRO. In this case, no consent from the rights holder is required. If the royalty rate is set down in the law, this is called a “statutory licence”. If rights holders can negotiate the royalty rate with users, this is known as a “compulsory licence”.

Extended collective licence. Normally a collecting society can only enter into licence agreements on behalf of the rights owners who are members of the collecting society. An extended collective licence extends the effects of a copyright licence to also cover rights holders that are not represented by the collecting society. This provides users with security to legally copy materials without the threat of individual claims from rights holders who are not members of the collective from which they have the licence. Adopted originally by the Nordic countries, it is now used in a small number of other countries.

Over time, the role of collecting societies has evolved to include compliance and enforcement of copyright. For example, the Copywatch campaign of the UK Copyright Licensing Agency entices members of the public to report unlicensed copying with rewards of up to €30k ($40k) . The International Federation of Reproduction Rights Organisations (IFRRO) has a co-operation agreement with the World Intellectual Property Organization (WIPO) to “promote the protection of intellectual property rights throughout the world”  and includes worldwide seminars and training programmes.

Policy issues for libraries

For users, such as libraries and educational institutions, collecting societies can offer a number of benefits:

•    they enable users to legally undertake copying, which is otherwise not permitted by the law. In other words, they allow libraries and their users to copy more than is provided for by statutory exceptions (for a fee, of course);

•    they ease the burden of rights clearance for libraries, who do not have to contact individual rights holders to acquire a licence for a work. In many cases, this might be impossible (see Orphaned Works);

•    they address the increased complexity of rights clearance as even a literary, not to mention a multimedia work, can contain a whole bundle of rights. Without an effective rights clearance process, legitimate access by well-intentioned users would be cumbersome or even denied;

•    they usually provide libraries with indemnity from unintentional infringement in relation to the licensed works.

In reality, however, the practice is not always the same. Although libraries are often the biggest customers of RROs, the relationship is not always easy. Authors and publishers are represented within all RROs, but users seldom are. An RRO functions as an intermediary between rights owners and users, but it is not a neutral party. The purpose of an RRO is to obtain maximum financial reward for its members (authors and publishers)  and to ensure that their interests are paramount .

Librarians have experienced a number of concerns regarding collectives:

•    lack of efficiency. Sometimes collectives can be very slow in responding to library requests for licences;

•    lack of transparency. It may be unclear according to which principles prices are calculated and administration costs may seem disproportionate, eating into the amount paid to the rights holder;

•    libraries are in a weak bargaining position, in a similar way as when negotiating access to electronic resources with publishers. The RRO holds the monopoly rights on behalf of the rights holder and the library may have to pay the asking price in a “take it or leave it” fashion;

•    the licence may include clauses unfavourable to libraries e.g. removing statutory exceptions under copyright law, thus requiring the library to obtain a licence and pay for such uses.

See also The Relationship between Copyright and Contract Law: Electronic Resources and Library Consortia.

To address some of these concerns, libraries support a code of conduct to ensure that collectives are open, accountable, transparent and efficient and demonstrate fair practice when dealing with all stakeholders. There should be easy procedures for handling complaints e.g. independent dispute resolution and a fair mechanism for their external supervision.

Libraries should:

•  create or join a library consortium to acquire more bargaining power when negotiating licences;

•    never sign a licence for anything you don’t need to. A licence is only necessary for copying over and above what is permitted by the law. If the photocopying practice in the library falls within uncompensated national copyright exceptions, a licence is not required;

•    never sign a licence that overrides statutory rights for usage under copyright law;

•    insist that the library, not just the legal signatory, is party to any negotiations;

•  insist that the internal administration, collection and distribution of funds are transparent and efficient.

The number of collectives involved in the licensing of a single economic use of a protected work is problematic. Certain categories of works, and even certain rights holders, may be excluded from the licence. Libraries may have to deal with multiple RROs for different categories of material e.g. books, maps, printed music, photographs. The RRO may not hold the digital rights, which may lie with the rights holder. Libraries would therefore benefit from a one-stop-shop collective for all types of works and rights, including digital rights.

Challenges in developing countries

At its centenary meeting in 1996, the International Publishers Association (IPA) passed a resolution calling for the creation of an independent reproduction rights organisation (RRO) in every country of the world. IFRRO has established regional committees for Asia/Pacific, Africa and the Middle East, Latin America and the Caribbean, whose mandate is to assist in the development of a legal framework, to set up and encourage RROs and to combat all forms of illegal copying in the region.

IFRRO is aware that emergent RROs are being set up in countries with fewer resources and with many political, economic and social problems . This makes it surprising that the first market sector to be targeted by emergent RROs is usually the education sector. This is partly because schools and universities may be heavy copiers of copyright material, but mostly because the decision-maker is easy to locate. As the goal is to generate the maximum return in the shortest time, publicly funded bodies, government departments, libraries, cultural and research institutions are also targeted.

Access to information and knowledge is critical to the education and training needs of poor countries, whose human capital is central to their development. It is vital that scarce funds are not diverted from basic educational needs, front-line activities or the purchase of primary resources by libraries, upon which students almost entirely depend.

Another factor is that regions, such as Africa, are net consumers of copyright goods, leading to a concern that African collecting societies might become “foreign revenue collectors”  i.e. sending more money out of the country than they receive in return. Although special bi-lateral licensing arrangements for emergent RROs may exist, vigilance is needed to ensure that negotiations with librarians, as well as the collection and distribution of royalties to local creators, is open and transparent.

It would be, however, more equitable if emergent RROs began their activities in the commercial sector such as financial services, pharmaceutical companies and the professions (law firms, accountants, architects, etc.), instead of targeting the poorest and most vulnerable in the non-commercial sector.

Library position statements

Australian Library and Information Association (ALIA) Copyright collecting societies: proposed code of conduct http://alia.org.au/advocacy/submissions/code.of.conduct.html

EBIDA Response to the European Commission Working Document on the management of copyright and related rights http://www.eblida.org/position/CollectiveManagement_Response_July05.htm

References

Collective Management in Reprography (2005) IFRRO/WIPO
http://www.ifrro.org/show.aspx?pageid=library/publications&culture=en

Gervais, Daniel (2006). The Changing Roles of Copyright RROs. In Press.  

Nwauche S. Enyinna (2006).  A Development Oriented Intellectual Property Regime For Africa www.codesria.org/Links/conferences/general_assembly11/papers/nwauche.pdf


PUBLIC LENDING RIGHT

What is Public Lending Right?

Public lending right (PLR) can apply to two separate concepts.

1.    Public lending right may fall under copyright as one of the time-limited monopoly rights granted to the copyright owner of a protected work. In this case, it grants the owner the right to authorise or prohibit the public lending of a protected work after the work has been distributed to the public e.g. after it has been published. The copyright owner may be the author or it may be a commercial enterprise to whom the author has transferred their copyright e.g. a publishing company. Public lending can be authorised through licensing schemes and payment through collecting societies (who manage rights on behalf of rights owners). In some countries, an alternative to PLR is set out in copyright legislation, this is known as the remuneration right.

2.    Public lending can also be a "remuneration right”.  This focuses more directly on the author. It is the right of an author (not necessarily the copyright owner) to receive financial compensation for the public lending of their work. In this case, a country may set their own criteria for who is eligible to receive payment and it may be designed in support of cultural objectives e.g. payments may be limited to authors who write in the national language in order to support the development of national culture.

The public lending right applies only to works in material formats e.g. printed books, sound recordings. It does not apply to electronic material or extraction of information from a database, both of which are subject to a licence.

See “The Relationship between Copyright and Contract Law: Electronic Resources and Library Consortia”.

Practice

According to the PLR International Network , nineteen countries  have established PLR schemes and a further twenty-one countries have PLR systems in development .

It is important to realise, however, there is no international economic right for public lending, in other words, there is no international treaty or convention requiring any country to establish a PLR system. (In fact, it was decided to exclude PLR when the WIPO Copyright Treaty was being negotiated in 1996 because of the affect this might have on libraries and education in developing countries).

PLR in the European Union

There is, however, a legal requirement on members of the European Union (EU) to establish a PLR system. This is because the European legislator introduced a directive (a law binding on Member States) on rental and lending right in 1992. As well as the twenty-five Member States of the European Union (to become twenty-seven in 2007), directives must also be implemented by non-member countries that wish to benefit from the single European market, such as European Economic Area countries, Norway, Iceland and Liechtenstein.

In fact, PLR is a European invention, originating in the nineteenth century from literary authors who believed they were losing income from sales due to the availability of their books in the emerging system of public lending libraries. The first country to establish PLR was Denmark in 1946, followed soon after by Norway and Sweden.
In a nutshell, European law requires that authors of books, films and any other copyright works and (at Member States' discretion) other right holders, either have the right to authorise or refuse lending of their works by institutions such as public libraries, or that they are remunerated for such public lending. In other words, it accommodates both concepts of PLR.

The record shows that the majority of EU Member States have not taken to PLR with great enthusiasm. According to the 1992 directive, the European Commission should have issued a status report on implementation in 1997. Due to serious delays in several Member States, the Commission could not write its report until 2002, ten years after the Directive came into force. The Commission has taken thirteen of the original fifteen Member States to task including France, Greece, Ireland, Luxembourg, Netherlands, the UK. In some cases, it has initiated infringement proceedings at the European Court of Justice for either not implementing the Directive at all or for incorrect implementation (Belgium, Italy, Portugal and Spain have been successfully prosecuted). In addition, there were concerns that Scandinavian countries applied PLR in a discriminatory way, granted only for national or resident authors (Sweden) or for items published in the national language (Denmark, Finland).

This may in part be due to the nature of directives, a flexible instrument of European law, leaving room for Member States to unintentionally misinterpret the directive or the amount of leeway allowed by the directive. Indeed, one of the major problem areas was that,  although the directive allowed for certain types of lending establishments to be exempted,  several Member States exempted many types of lending institutions In the opinion of the European Commission, if in practice most lending establishments are exempt, there is a risk that PLR is not effective.

The other reason may be that for most countries, public lending right was not part of the national tradition and was an alien concept that required the establishment of new systems of administration and remuneration. Some Member States support authors by other means, such as generous tax breaks.

How are payments calculated?

Each country calculates the payments differently. In the EU, remuneration is for the “use” of the work (which means that it can include reference works not usually lent out by the library). Others calculate payments on the basis of the number of times the author’s books are borrowed, the number of copies held in library stock, the number of registered users or by direct grants to authors negotiated with representative organisations.

The rates of payment to authors are generally modest, and there may be a ceiling on the maximum amount that can be paid to an individual author. The cumulative amounts can be substantial, however. PLR costs Denmark approximately €20 million ($26.6) each year, about 5% of public library expenditure . In 2006, PLR in the UK cost over €11 million ($15 million) .

In all countries except the Netherlands, the remuneration payments and the cost of administration of PLR schemes are met by the state.

Policy issues for libraries

When a Danish author claimed remuneration for the public lending of his books at the first annual conference of the Danish Library Association in 1917, libraries and publishers opposed the idea, sparking a debate on whether library lending benefited or disadvantaged authors. An underlying assumption that lending from public libraries results in lost primary sales is unproven. Libraries are major purchasers of published works, often buying in multiple quantities. They enable borrowers to discover new authors through book promotions or serendipity, providing a platform for nationwide dissemination of an author’s work.

Where PLR has been established, public libraries are the bedrock of the system. Libraries supply data on book loans, stock holdings or numbers of registered users to PLR administrators for the annual calculation of payments. Library co-operation is essential to creating, maintaining and administering a PLR system. In countries with well-run PLR schemes and where librarians are closely consulted on the establishment and administration of the scheme, the experience for libraries has largely been positive. It creates new opportunities to forge partnerships with authors and to promote the role of the public library e.g. through author readings and public author support for libraries.

The International Federation of Library Associations and Institutions (IFLA) does not, however, favour the principles of lending right, which it believes can jeopardise free access to the services of publicly accessible libraries . Public lending is essential to culture and education and should be freely available to all. This position is based on a number of established principles including:

•   IFLA's core values;
•   the public library shall in principle be free of charge;
•  the lending of published materials by libraries should not be restricted by legislation or contractual provisions;
•  funds for the payment of public lending right should be provided by the state and should not come from library budgets.

It goes on to make recommendations concerning the introduction or modification of PLR systems, funding, the legal framework, legislative definitions, consultation and involvement of librarians in the establishment and running of PLR systems.

PLR and developing countries

IFLA also states that the public lending right should be rejected in the greater public interest in situations where a country cannot afford to fund PLR without diverting resources from more fundamental public services. In particular, it should not be established in countries that are not considered high or middle income by the World Bank.

The first priority is that monies allocated for cultural and educational purposes are used to provide wide access to education and the development of a good public library service and infrastructure. Libraries must be able to focus their budgets on improving literacy rates and addressing basic educational needs, providing students with access to modern learning resources, developing innovative services to bring needed information to rural or underprivileged communities e.g. healthcare, agricultural techniques and democratic participation.

Public lending right in the digital age?

PLR applies only to tangible material such as printed books. It does not apply to electronic books or online material. There is a question mark over the role of PLR in the digital age   where rights holders have more control over the access and use of electronic material through a combination of legal mechanisms (licences) and technological means (technological protection systems). For example, if a user borrows a book from a public library, the rights owner cannot control who reads the book or where it is read, whereas for digital resources, they can exercise such control. Librarians must be vigilant to ensure that these factors are taken into account in any move towards evolving PLR for digital material.

Library position statements

EBLIDA statement on the infringement procedures over Public Lending Right
http://www.eblida.org/position/PLR_Statement_March04.htm

IFLA Committee on Copyright and other Legal Matters (CLM)

Background paper on public lending right
http://www.ifla.org/III/clm/p1/PublicLendingRight-Backgr.htm

IFLA Position on Public Lending Right
http://www.ifla.org/III/clm/p1/PublicLendingRigh.htm

References

European Commission Rental and Lending Right
http://ec.europa.eu/internal_market/copyright/rental-right/rental-right_en.htm

PLR International
http://www.plrinternational.com/


THE DATABASE RIGHT - EUROPE'S EXPERIMENT

Databases: copyright and database right

A database is a searchable collection of independent works, data or other material arranged systematically. A database can be both electronic or non-electronic e.g. a library card catalogue. Facts and data per se, such as mathematical formulae or the ocean tides are not eligible for copyright protection, but collections of data are copyrightable. In other words, a database is copyrightable if it is “fixed“ in some tangible form and if it is original.

There are two thresholds for originality. In civil law countries with the “droit d’auteur“ tradition, an element of “intellectual creation“ is required. In common law countries, copyright protection is granted if the compilation required considerable skill, labour or judgement (known as “sweat of the brow“ copyright). This means that, in general, fewer databases in civil law countries are protected by copyright, because the higher threshold means that only so called “original“ databases are protected.

In 1991, the US Supreme Court (common law tradition) made it clear in the Feist  case, however, that unoriginal compilations of facts are not copyrightable. Requiring “originality” in the copyright sense rather than applying the sweat of the brow criteria, the Court ruled that an alphabetically ordered telephone directory did not qualify for copyright.

In the meantime, the European Commission considered that the European market was “fragmented by many technical, legal and linguistic barriers” . Database protection in Member States with a civil law tradition differed from that of common law countries (UK and Ireland). The Commission believed that this harmed the free movement of database products within Europe and observed that the UK alone, with its lower sweat of the brow standard, produced 50% of European on-line database services. (Of course, this could also be explained by other factors, such as the language in which the database is produced). The Commission believed that by increasing protection for databases in Europe, it would stimulate the development of the database industry and enable it to compete with the US.

In its 1996 Directive on the Legal Protection of Databases , the Commission tried to find a middle ground. It harmonised the threshold of “originality” to the higher standard that applied in droit d’auteur countries, meaning that copyright protection applied only to so-called “original” databases. In a second step, a novel new right was created to protect those “unoriginal” databases that had previously enjoyed protection under sweat of the brow copyright, but which no longer qualified under the higher standard of originality. Known as the database or “sui generis” right, it grants protection to makers of databases who have made a substantial investment in their production. Also referred to as a “publishers’ right” , it applies to databases that are economically important to the producer, but are nonetheless non-creative.

Sui generis means “of its own kind” or unique in its characteristics. Perhaps with a view to gaining a competitive advantage over database producers in the US, it granted legal protection in one fell swoop to non-original databases (such as alphabetical telephone directories), of a kind without precedent in any international convention. This means that the principle of national treatment, whereby imported and locally produced goods are treated equally, did not apply. This in turn meant that US database producers could not avail of the new right. Thus began Europe’s database experiment.

Practice

In a nutshell, the database right grants the maker of a database (usually the publisher), who has made a substantial investment in either the obtaining, verification or presentation of the contents, an exclusive right of extraction (similar to the right of reproduction in copyright), a right of reutilisation (like the right of communication to the public), plus a right of distribution. The term of protection is fifteen years, extended by a further fifteen years whenever a substantial change is made to the database. The Directive provides for a small number of exceptions and limitations.

Like copyright, the database right is automatic, and it may apply to all European databases irrespective of whether they are also protected by copyright. For copyright protection to apply, the database must have originality in the selection or arrangement of the contents. For the database right to apply, the selection and arrangement must be the result of a substantial investment . This means that it is possible to satisfy both requirements, whereby copyright and database right apply at the same time. The actual content of the database may or may not be subject to copyright, depending on the nature of the content.

This has caused a lot of confusion for users of databases, including libraries. The complexity of the two tier approach often makes it unclear what is protected or for how long. The exceptions and limitations do not accord with those of the later copyright Directive  and it is unclear which Directive prevails. Academics have claimed that the database right impedes research by limiting access to and the use of scientific data, which in itself may not be copyrightable. Vague and ambiguous terms such as “substantial investment“ have resulted in different interpretations by the national courts, leading to legal uncertainty.

Recent developments

There have been two important recent developments. In 2004, the European Court of Justice, supreme court for the European Union (EU), made its first ruling on the database Directive in four joined cases concerning fixture lists for football and horse-racing. In a decision reflecting public policy issues, the Court reduced the scope of the sui generis right by curtailing database protection for so-called sole source database providers. Under the ruling, the British Horseracing Board, which creates lists of horse-racing fixtures as an intrinsic part of its activities, is not granted sui generis protection, as this may create an undue monopoly and based on the database right, could otherwise limit the creation of downstream spin-off products. This means that alphabetical telephone directories, TV listings, etc. no longer enjoy sui generis protection. In addition, the scope of protection has been reduced, whereby the only test for infringement is whether what is taken from the database reflects the substantial investment of the database producer.

In 2005, the European Commission undertook an evaluation of the effects of the database right. In a somewhat unusual, but welcome, step, it conducted an empirical evaluation of whether the “experiment“ was succeeding. It concluded, “the economic impact of the “sui generis” right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases“ . The evaluation presented four policy options: repeal the whole Directive; repeal the sui generis right; amend the sui generis provisions or maintain the status quo. Following a public consultation in 2006, the Commission will provide a final assessment on whether legislative changes are needed or not.

Policy issues for libraries

Libraries collect, organise and preserve information and knowledge for the purposes of making it available to students, researchers and the general public in order to benefit society as a whole. In the digital environment, most content is stored in databases. In this regard, libraries have a dual role. Libraries are heavy database users, licensing access from publishers to electronic material stored in databases. Libraries are also producers of databases such as those resulting from digitisation projects, library catalogues and metadata registries created by libraries.

In principle, libraries oppose the introduction of new rights because it imposes an additional barrier on access to knowledge, particularly to content in the public domain. New layers of rights on information mean new layers of rights for libraries to negotiate or to clear, increasing costs and hindering access. The database Directive introduced a new right favouring database producers in order to stimulate investment in the database industry. At the same time, publishers have consolidated, occasionally invoking the attention of competition authorities , thereby placing more information in fewer hands. Database production in Europe has decreased, while the Directive has proved itself complicated to understand and interpret, even for experts.

From the library viewpoint, the information environment has seen many developments. Increasing co-operation between libraries has meant that local databases merge into regional and national resources; large scale digitisation projects are being undertaken between libraries and commercial partners; metadata has emerged as a valuable tool to aid and add consistency to cross-database and internet searching. Some libraries have started to make use of the sui generis right as a way of maintaining control over their databases, especially when entering into partnership arrangements with commercial entities. For example, it can enable a library to ensure that access to their database is safeguarded even when it becomes part of a proprietary database.

In this context, Electronic Information for Libraries (eIFL.net) called on the European Commission to radically improve the database Directive by amending the sui generis right, introducing compulsory licensing and to ensure that there is coherence between the database Directive and the Info Soc Directive.

The international dimension

The European Commission was trying for many years to introduce an international database treaty at the global policy making forum, the World Intellectual Property Organization (WIPO). As recently as 2002, the Commission championed the “success“ of its sui generis protection, while calling on WIPO member states to extend database protection at international level . The United States, the other major database producer, was sceptical. Since the 1991 Feist case, a few US database companies had been seeking a special database right. However, a greater number, supported by the US Chamber of Commerce, opposed the introduction of such a right believing that they could adequately protect themselves through legal means, such as contracts and technical means, such as password control. More importantly, they argued that strong database protection would make it harder to generate databases in the first place, reducing the incentive to create new database products and limiting competition in the provision of information . In other words, it would be counter-productive.

Given their own assessment of the database Directive, it is unlikely that the European Commission will re-introduce the idea of an international database treaty at WIPO in the near future. However, the Directive encourages the extension of the sui generis right to third countries on the basis of forced reciprocity . Any county negotiating a trade agreement with the EU, such as an Economic Partnership Agreement, should be aware of the EU’s own experience with the database right and should avoid incorporating this new right into their law. (See also Copyright and Trade Agreements).

Library position statements

Responses to the Commission consultation, March 2006

eIFL http://www.eifl.net/services/databaserules.html

EBLIDA http://www.eblida.org/position/Databases_Response_March06.htm

UK Libraries and Archives Copyright Alliance
http://www.cilip.org.uk/professionalguidance/copyright/lobbying/laca3.htm

References

European Commission. Protection of databases in the European Union: Database Directive, Evaluation of database rules, etc.
http://ec.europa.eu/internal_market/copyright/prot-databases/prot-databases_en.htm

Two database cheers for the EU. James Boyle, Financial Times, 2.1.2006
http://www.ft.com/cms/s/99610a50-7bb2-11da-ab8e-0000779e2340.html

Institute for Information Law, University of Amsterdam. The Database Right File. A unique collection of case law on the European (sui generis) database right
http://www.ivir.nl/files/database/index.html


CREATIVE COMMONS: AN "OPEN CONTENT" LICENCE

What is Creative Commons?

Creative Commons (CC) is a U.S. based non-profit organisation, founded by Lawrence Lessig in 2001, dedicated to expanding the range of creative works available, especially online. The internet offers new opportunities for distributing, sharing and re-using creative content. Much of this content is subject to copyright. Copyright protects a work as soon as it exists, giving the creator a set of exclusive rights over its reproduction, translation, public performance and recording. Creative Commons offers an easy way for authors, artists, musicians and other creators to choose how to make their works available and under what conditions, and for users to identify the conditions under which a work may be used.

Creative Commons uses easy-to-understand licences and a logo to help users identify Creative Commons licensed material. An electronic version of the licence contains machine-readable metadata that describes the licence and indicates the copyright status, enabling CC-licensed material to be found by search engines and other online discovery tools.

Creative Commons covers a wide range of creative content. This includes audio e.g. music, sounds, speeches; images e.g. photos, illustrations, designs; video e.g. movies, animations, footage; text e.g. books, websites, blogs, essays; educational material e.g. lesson plans, course packs, textbooks, presentations.

Several million pages of web content now use Creative Commons licences. Some well known websites that use CC-licensed content include the photo sharing website Flickr, the Internet Archive which maintains an archive of Web and multimedia resources, MIT Open Courseware, an initiative to put online educational material from the Massachusetts Institute of Technology courses.

Creative Commons is an “open content” licence, so coined to describe a family of licences that explicitly allow for copying and re-use. Other examples of open content licences, albeit with differing conditions, are the GNU Free Documentation License (used by Wikipedia) and the Free Art licence.

Practice – how Creative Commons licences work

Creative Commons offers a voluntary, flexible set of licence options chosen according to the level of protection and freedom that an author or artist wishes to have. The licences build upon the "all rights reserved" concept of traditional copyright to use across a spectrum from "some rights reserved" to dedication to the public domain known as "no rights reserved".

Each licence contains certain baseline rights and a number of options chosen by the creator, depending on how they want their work to be used. The options are:

•    Attribution: this lets others copy, distribute, display and perform a copyrighted work including derivative works, but only if they give credit (attribution);

•    Non-commercial: this lets others copy, distribute, display and perform a work including derivative works, but only for non-commercial purposes;

•    No derivative works: this lets others copy, distribute, display and perform only verbatim copies of the work, and not derivative works based upon it.

•    Share alike: this allows others to distribute derivative works but only under a licence identical to the licence that governs the original work.

This results in six main types of licence plus a few others for specialised applications e.g. sampling licences. Each licence type has three versions:

•    a "Commons Deed" that explains in simple terms what is permitted under the licence and uses easy to recognise symbols;

•    a "Legal Code" aimed at lawyers which is the full text of the licence;

•    a machine-readable version containing RDF/XML metadata that describes the licence, enabling CC-licensed works to be located by search engines on the web.

Science Commons, an offshoot of Creative Commons, aims to remove unnecessary legal and technical barriers to scientific collaboration and innovation. Their long term vision is to provide more than just useful contracts, but to also combine publishing, data and licensing approaches into an integrated and streamlined research process.

Policy issues in considering Creative Commons licences

Creative Commons licences originate from the United States and so are based on U.S. law. This means that some of the concepts are not applicable to other countries of the world. Creative Commons International, another CC offshoot, is dedicated to the drafting and adoption of jurisdiction-specific licenses. This involves the literal and legal translation of the licences by volunteers to fit with the copyright law and legal system of a particular country. National Creative Commons licences have been adopted so far in thirty-four countries from Argentina to the UK, with a further 20 under development.

Before deciding to assign a Creative Commons licence to a work, there are a number of other factors to consider. The work should fall within a Creative Commons licence, the licensor must have the rights i.e. they must own the copyright in the work and they must understand how Creative Commons licences operate. One important point is that Creative Commons licences are non-revocable; this means that a creator cannot stop someone who has obtained the work under a Creative Commons licence from using the work according to that licence. Of course, they can stop distributing the work at any time they wish, but this will not withdraw from circulation any copies of the work that already exist under a CC licence. Furthermore, collecting societies, who manage rights on behalf of creators, in some jurisdictions may not permit members to CC-licence their works because of the way in which the creator assigns their rights to the collecting society.

Policy issues for libraries

Creative Commons licences hold two aspects for libraries.

Firstly, there is the creator aspect. By and large, libraries are users rather than creators of protected content. However, routine library activities may generate content protected by copyright which the library may wish to share with others e.g. conference presentations, library building photos on the website, the library blog, etc. (It is important to remember that the library must own the copyright in the work in order to license it. In this context, it may be necessary to check the terms of employment contracts with regard to ownership of work products).

Then there is the user aspect. Libraries can avail of the millions of items of CC content when producing their own documents. For example, finding a cool new logo for the library brochure, using extracts from a recent travel guide as local visitor information for the website or including book reviews in the library acquisitions bulletin.

In June 2006, it was estimated that approximately 140 million webpages had adopted CC-licences. The Creative Commons brand has become one of the best known open content licences and receives regular coverage in the mainstream press, as well as analysis by academics and observers. As information professionals, librarians should be informed about such developments and should be able to advise library clients on issues relating to the access and use of digital content. In some institutions, the librarian has attained an expertise in legal issues in the digital environment and can play a role in keeping colleagues abreast of fast-moving developments in this increasingly complex area.

References

Creative Commons website http://creativecommons.org/

Freedom fighter with a guilty conscience. Lawrence Lessig explains his mission to limit the cultural damage caused by copyright lawhttp://technology.guardian.co.uk/weekly/story/0,,1792117,00.html

Unbounded Freedom. A guide to Creative Commons thinking for cultural organisations
http://www.counterpoint-online.org/cgi-bin/item.cgi?id=618


OPEN ACCESS TO SCHOLARY COMMUNICATIONS

What is open access to scholarly communications?

In using the term 'open access', we mean the free (gratis) availability of peer-reviewed literature on the public internet, permitting any user to read, download, copy, distribute, print, search, or link to the full texts of the articles . There are two ways in which this can be realised: through open access journals and institutional or subject-based repositories.

An open access journal is a journal which is freely available to everyone online and which does not rely upon the traditional subscription-based business model to generate income. Instead, new business models including an article processing fee, sponsorship, advertising or a combination are used. Peer-reviewed, open access journals have been launched across numerous disciplines including biology and neglected tropical diseases from the Public Library of Science, while BioMed Central and Bioline International collectively publish over 200 titles. In addition, a number of major traditional publishers including Oxford University Press, Springer and Elsevier have converted selected titles to open access. The Directory of Open Access Journals (DOAJ) maintains a growing list of over 2,400 titles from agriculture to mining.

An institutional repository is a publicly accessible repository (archive) where the work published by authors affiliated with the university or institution is posted online. Using interoperable software, known as Open Archives Initiative (OAI) compliant, the deposited works can be searched and harvested. Examples of OAI compliant software are DSpace, E-Prints, and Fedora. The Directory of Open Access Repositories (OpenDOAR) is a searchable directory of academic open access repositories and their content.

The concept and economics of open access are subject to heated debate amongst academics and researchers, university administrators, librarians, funding agencies and commercial and learned society publishers. At the very least, the landscape of scholarly communications has been changed forever.

What is the driving force behind open access?

The driving force behind open access has been gathering pace for several decades. Scientists and academic authors strive for maximum impact for their work. The more their research output is cited and used, the better it is for their career and institution, future funding possibilities as well as the overall benefit of science and society. Spurred by the move from the paper to the electronic working environment, the structure within which researchers work has been changing rapidly. Despite new communication tools, they became increasingly aware of the restrictions and barriers to accessing their work, and the work of their peers, under the traditional system. This typically required authors to transfer their copyrights to the publisher, thus removing their control over distribution of the work e.g. an author could be prevented from posting it on their personal website or distributing it in class to their students.

The result was that research output was largely available only to those institutions or libraries with subscriptions to the journal in question. Apart from the fact that no library in the world can afford to subscribe to every journal, year-on-year increases in journal prices and decreasing library budgets led to what is called the “serials crisis”, where libraries meticulously study journal usage data and cancel subscriptions to non-essential titles . A recent study carried out on behalf of the European Commission shows that between 1975 and 1995, the price of print journals rose by 300% above the cost of inflation .

Funding agencies want to ensure that the research they fund has the greatest possible research impact (measured in the number of citations). Yet major agencies found that sometimes they could not access the results of research that they themselves had funded because their institution did not have a subscription to the journal in which it was published. In particular, debate on the right of public access to publicly funded research has led to new policies for grantees e.g. the U.S. National Institute of Health's Public Access Policy (2005) requests authors to self-archive their work, while the Wellcome Trusts' Position Statement in Support of Open and Unrestricted Access to Published Research (2005) requires self-archiving within six months.

In a nutshell, the work of academic authors cannot be seen by all their peers, researchers cannot access all the necessary literature and libraries cannot meet the information needs of their users. The global movement for change that has resulted from this dissatisfaction at all levels has garnered support from academics, prestige funding institutions, legislators and libraries.

Policy Statements and initiatives

The Budapest Open Access Initiative (BOAI) (2002) was the first major international statement of principle and commitment in support of Open Access. Launched following a meeting organised by the Open Society Institute, the BOAI offered the first definition of Open Access and sets out the strategies and goals for access to scholarly communications.

In 2003 the Howard Hughes Medical Institute (HHMI) and the Max Planck Society both organised meetings which addressed Open Access from a funders' perspective.  The HHMI meeting produced the Bethesda Statement on Open Access and the Max Planck conference crafted the Berlin Declaration. Both the Bethesda Statement and the Berlin Declaration provide definitions of Open Access which focus on the role of funders.

The Wellcome Trust in the UK was the first research funder to mandate Open Access to the research which they support.  Governments and legislators have also become interested in how to maximise access to publicly funded scholarly research.  In 2004, the UK House of Commons Science and Technology Committee recommended that all UK higher education institutions and government funded research councils establish free of charge online institutional repositories and called for support of open access journals. This important report contributed to adoption of Open Access mandates by five out of the eight Research Councils in the UK. In 2005, the Parliament of Ukraine recommended to mandate open access for publicly funded research, which has been followed by the establishment of a National Network of Open Access Repositories with ten institutions. In 2006, a European Commission funded study on the scientific publication markets in Europe recommended that funding agencies should establish a policy mandating European funded research publications be made available in open access archives. In the US, the proposed Federal Research Public Access Act (2006) aims to mandate Open Access to the research funded by the 11 largest governmental funding agencies (e.g. National Institutes of Health, National Science Foundation).

Open access and developing and transition countries

In a 2006 report, the Academy of Science of South Africa found that over the past fourteen years, one-third of South African journals have not had a single paper cited by their international counterparts. Fewer than one in ten of South Africa's 255 accredited journals has been cited enough to feature in the main international research databases, despite South Africa being the continent's