Memorandum submitted by the British Library
INTRODUCTION
1. The British Library welcomes the opportunity
to contribute to the Culture, Media and Sport Committee's inquiry
into New Media and the Creative Industries. The British Library
plays a vital function in the life of the nation by managing,
preserving, and ensuring access in perpetuity to the UK's national
published archive and the national repository of sound both as
a cultural heritage resource and also in support of research and
innovation. The Library is fast becoming the first choice provider
of content, navigation and research services for the creative
industries: the BL contains a vast array of inspirational material
and expertise that support the creative industries and, through
our Business & Intellectual Property Centre services, we support
creative people in developing, protecting and exploiting their
ideas. We operate at the fulcrum of the creative economy and we
recognise that the ongoing digital revolution in production and
distribution technologies is causing fundamental shifts across
industry business models and consumer patterns, and is raising
broader questions about the traditional balance of rights in intellectual
property, between the rights holder and the public good. From
this perspective we believe we have a unique and valuable contribution
to offer the Committee in its inquiry.
THE BRITISH
LIBRARY AND
ITS ROLE
IN THE
CREATIVE ECONOMY
2. The British Library was established by
statute in 1972 as the national library of the United Kingdom.
The BL is one of the world's greatest research libraries. It benefits
from legal deposit and is the main custodian of the nation's written
cultural heritage; it is also the national repository for recorded
sound and its collections contain much image material. The Library's
incomparable collections have developed over 250 years; they cover
three millennia of recorded knowledge, represent every known written
language, every aspect of human thought and a considerable sound,
music and recordings archive.
3. Sir Isaac Newton said: "If I have
seen further it is by standing on the shoulders of giants".
This is what the BL seeks to assist its users to do. In 2004-05,
more than 5.25 million British Library collection items were consulted
by, or loaned to, academic researchers, business researchers,
and private individuals. The Library is an integral component
of the UK's national research infrastructure and it plays a correspondingly
significant role in ensuring the research excellence of the UK
and in supporting creativity and innovation.
4. The Legal Deposit Libraries Act 2003
has extended the Library's legal deposit entitlement to digital
items. The British Library has an ex officio seat on the Legal
Deposit Advisory Panel which was established in 2005 to advise
the Secretary of State on the content and timing of Regulations
under the Legal Deposit Libraries Act. The Library has also played
a leading role, in anticipation of Regulations, in the work of
the Joint Committee on Legal Deposit (whose members include all
six legal deposit libraries and seven trade associations representing
publishers) in testing the technical infrastructure, mechanisms
and procedures relating to the deposit, storage and preservation
of electronic publishing formats. Sound recordings do not come
under the provisions of the Legal Deposit Libraries Act 2003 but
are collected under voluntary arrangements with the British Phonographic
Industry and the Mechanical Copyright Protection Society. These
arrangements work well, and the Library estimates that it receives
in excess of 90% of commercially-produced audio recordings, mostly
on CD. The BL has also been instrumental in the establishment
of the UK Literary Heritage Group, a working group of key UK stakeholders
led by the Rt Hon Lord Smith of Finsbury to develop and implement
a national strategy to benefit the UK cultural and intellectual
environment by ensuring that archives of pre-eminent modern and
contemporary authors are retained and made accessible to UK audiences.
5. The Library has decades of practical
experience of operating within the library privilege and fair
dealing provisions of the current copyright legislation and hence
it has a keen appreciation of the complex balance of rights in
copyright law. The Library's Chief Executive, Lynne Brindley,
was a member of the commission that produced the RSA Adelphi Charter
(www.adelphicharter.org) and intellectual property. The Library
welcomes the Charter for raising the profile of intellectual property
issues, for stimulating debate, and for articulating clearly the
public interest, and commends it to the Committee. The British
Library sits on the advisory panel of the Creative Archive Licence
at the BBC, and is involved in looking at the issues of extending
creative works into the public domain under a "one size fits
all" licence. The Library has commissioned a paper with the
Institute of Public Policy Research (IPPR), along with the BBC
and Microsoft News International amongst others, on the topic
of "Intellectual Property and the Public Sphere."
6. The Library is also a leader in digitisation,
seeing this as a critical means of enhancing, increasing, and
extending access to its collection materials in the interest both
of research and public understanding and engagement, without compromising
their conservation. Two major digitisation projects are currently
under way in the British Library, focused on sound and newspapers,
and with £3.1 million funding from the Joint Information
Systems Committee (JISC). The first project will digitise up to
two million pages from 19th-century British newspapers and the
second nearly 4,000 hours of recordings from the Library's Sound
Archive. In early November 2005, the BL and Microsoft announced
a strategic partnership to digitise 25 million pages of content
from the Library's collections in 2006-07, with a long-term commitment
to digitise still more in the future. The British Library is also
a significant publisher in its own right. Our list includes sound
and music (a recent example being The Essential Shakespeare Live
CD, a collection of live Shakespeare recordings, the result of
a joint project between the British Library and the Royal Shakespeare
Company), bibliographies and large-scale bibliographic products
published electronically, reference works, and general and illustrated
books.
7. The British Library contains a vast array
of inspirational material and expertise that supports the creative
industries. The Library's collections constitute an incredibly
rich resource, particularly for those working in graphic design,
product design, the performing arts, architecture, advertising,
TV and radio, and fashion. The Library recognises that it also
has an important role to play in helping people turn their creativity
into commercial success. The Library has a proven track record
of supporting design-led entrepreneurs, including Trevor Bayliss
(the inventor of the clockwork radio), James Dyson (inventor of
the brand-leader Dual CycloneTM vacuum cleaner), and Mark Sheahan
(Innovator of the Year 2003, designer of Simply Squeeze to Open
packaging) and, through our Business & Intellectual Property
Centre services, we support creative people in developing, protecting
and exploiting their ideas.
8. We have received an award of £1
million from the London Development Agency to transform our Business
& Intellectual Property Centre (based in our St Pancras building)
from a successful pilot project to a permanent resource. The Centre
offers arguably the largest collection of market research reports
in the world, free access to on-line subscription databases giving
up-to-the-minute company information and financial news, and access
to the Library's extensive intellectual property resources, including
its collection of 50 million patents. The service is targetted
at SMEs, entrepreneurs and in London and beyond. This first phase
of the Centre is due to be complete in spring 2006.
9. The British Library adds value to the
Creative Industries as follows:
— Enabling inspiration, protection
of creative capital, and business development.
— Encouraging innovation and inspiring
creativity.
— Helping users develop, protect and
commercialize their ideas/business.
— Providing world class information
services and business advice in dedicated space.
— Providing access to experts in creative
disciplines.
— Enabling research across subject
and organisational boundaries.
— Adding commercial value so businesses
can become more competitive.
THE CURRENT
DEBATE
10. Copyright law has traditionally sought
to strike an appropriate balance between the rights of creators
to be recognised and rewarded for their work on the one hand;
and on the other, the public interest in ensuring access to information
and ideas as the basis for developing new knowledge. The purpose
of intellectual property law has been—and should be in the
future—to balance the sharing of knowledge and the rewarding
of innovation; such balance being essential to sustain a healthy
creative economy and an informed citizenry.
11. Under the current legislation, the creators'
right of ownership (copyright) is assured until a period after
their death, when their work passes fully into the public domain.
During the copyright period, further opportunities are available
for legitimate public good access through "fair dealing"
and "library privilege". The British Library believes
that "digital is not different" and that same principal
of balance should be sustained regardless of format of work for
the digital age.
12. The Library fully recognises that there
is need to modernise copyright legislation. The digital revolution
is fundamentally challenging many of the old certainties, and
anomalies and inefficiencies in the current legislation need to
be addressed. However the Library's fundamental concern is to
ensure that the principle of fair dealing and library privilege
for print is suitably re-interpreted and sustained for the digital
age in such a way that an appropriate balance is struck between
the interests of the rights holder and the public good. Much of
the debate at the moment is being dominated by extremes; the British
Library considers that it is uniquely placed to offer a balanced
contribution to the Committee's inquiry.
13. There are a number of specific issues
we believe the Committee should be aware of in conducting its
inquiry:
— The impact of new industry business
models on the public good: The Napster case has led to a fundamental
re-definition of the music industry's business model, and the
other creative industries are now also seeking to redefine and
reposition for the future. A number of related recommendations
for legislative change are now emerging. For example, an extension
of the copyright period to 95 years for rights of recording and
limitations on library privilege could all serve to marginalise
the important principles of fair dealing and the public good.
The British Library is concerned to ensure that the important
public good elements in the existing law are maintained.
— Complexity and expense of rights
clearance:
— Clearing the rights of existing works
for use in further works (for example compilation CDs or public
sector digitisation projects) presents many problems and represents
a major cost in such a project, as has been born out on the British
Library's JISC-funded audio digitisation project Typically, different
individuals or collecting societies hold the rights in different
kinds of original works, both published or unpublished and many
are untraceable or fail to respond to enquiry at all. Significantly,
a Congressional Research Service report for US Congress, Copyright
Term Extension: Estimating the Economic Values (1998) estimated
that 98% of works have no commercial value after 50 years; that
is, they generate no royalties after this period.
— The time consuming and expensive
administration of rights clearance for digitisation has become
a major obstacle to projects funded by the public purse. It is
in the public interest for there to be some statutory provision
which will have the effect of simplifying procedures and of indemnifying
users of affected works.
— Orphan works: These are works
that are still in copyright but where the rights holder cannot
be traced. After 50 years, over 50% of works are believed to be
orphan works. The British Library believes there would be a tangible
economic benefit for the UK economy if a provision were established
to streamline the process of seeking rights clearance to deal
with the use of orphan works.
— Digital Rights Management (DRMs):[30]
The emergence of DRMs—software that can be embedded in a
work to limit and control the use of that item—are now a
powerful tool at the disposal of the creative industries. DRMs
are given total protection under EU Directive, with no exceptions
for legal circumvention in the interests of disabled access, long
term preservation or where the DRM prevents fair dealing use.
DRMs do not have to expire, and can effectively prevent the work
reverting to the public domain at the expiry of the copyright
period. In addition, as we prepare for legal deposit of digital
items we are discovering that DRMs can pose a real, technical
threat to our ability to conserve the nation's creative output
in perpetuity.
— Licences emerging as the key transaction
method: Licenses are emerging as the key transaction method
in many of the new business models being developed by the creative
industries. Digital media and DRMs in particular allow for temporary
licensed access to be given to consumers (as opposed to outright
sale) in a way that was previously impossible. Many of these licences
deliver lower-level access and copying rights than would have
been available under fair dealing in copyright law. Unchecked,
this trend will drastically undermine public good access in the
longer term.
MAINTAINING THE
BALANCE FOR
THE DIGITAL
AGE
14. In conclusion, the Library would underline
the critical significance of this issue for research, scholarship,
and innovation and for the creative economy of the UK. The Library
recognises that there is need to modernise copyright legislation
for the digital age. In that context the British Library attaches
enormous importance to ensuring that the principle of fair dealing
and library privilege—which have long existed in the analogue
environment and which in its view strike an appropriate balance
in the public interest between the rightsholder and user for print—is
now re-interpreted and sustained for the digital age. This will
be a key point that the Library will seek to emphasise in its
evidence to the Gowers Review of Intellectual Property.
February 2006
30 The British Library submitted written evidence
in December 2005 to the All Party Parliamentary Internet Group's
inquiry into Digital Rights Management and gave oral evidence
at a hearing held on 2 February 2006. Back
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