Memorandum submitted by The Libraries
and Archives Copyright Alliance
This response is sent on behalf of LACA: The
Libraries and Archives Copyright Alliance, which monitors and
lobbies in the UK and Europe about copyright and related rights
on behalf of its member organisations and all users of copyright
works through library, archive and information services. LACA
is convened and supported by CILIP: the Chartered Institute of
Library and Information Professionals. A list of LACA member organisations
appears at the foot of this page. Some of our constituent members
may also be making their individual replies to the call for evidence.
LACA also works closely with the Museums Copyright Group (which
I understand is also responding to your Inquiry) on issues of
common interest affecting the libraries, archives and museum community.
We thank the Select Committee for the opportunity to participate
in this Inquiry.
LACA and its member organisations and the library
and archive professionals that we represent, believe in the value
of copyright and neighbouring rights and support their protection
to the extent that such protection is properly and fairly balanced
against the public interest which includes the minimisation of
entrenched monopolies of information and the provision of fair
access to all for the purposes of study and research, the upholding
of free speech in the media and otherwise and the due processes
of democracy. Our members work at the interface between users
of copyright works and copyright right holders and work to uphold
right holders' rights, arrange for licensing for the copying of
copyright materials both analogue and digital, and otherwise manage
the use of copyright works within both public sector institutions
and commercial enterprises.
LACA is responding to the issues raised by the
Inquiry in respect of how copyright impacts on the mission of
libraries and archives to facilitate library users' access to
knowledge.
1. The impact upon creative industries of
recent and future developments in digital convergence and media
technology
The digital environment offers immense opportunities
for public sector and not-for-profit research and educational
establishment libraries and archives to make their content much
more widely available to the public from £multimillion public
sector digitisation projects such as the proposed European Digital
Library[34]
and the Google Book Search Library Project[35]
to local success stories such as the Bath Record Office's Georgian
Newspaper Project which recently digitised 30 years of the Bath
Chronicle between 1770 and 1800.[36]
It is important that works in the public domain
(ie which are out of copyright or which are copyright waived and
placed in the public domain by their creators) are digitised by
such public sector projects as this ensures their availability
in digital form to the public in perpetuity. It is also important
to think to the future and ensure that copyright works in digital
form will be accessible in the public domain when all the layers
of rights in digital works expire at the end of their terms. This
means taking a very long view well into the next century given
the extensive and often complex terms of different copyrights
and neighbouring rights.
Public domain works in the digital environment—digital
preservation and conservation
As we stated in evidence to the recent APIG
(All Parliamentary Internet Group) Inquiry into DRMS (Digital
Rights Management Systems),[37]
the preservation and conservation requirements for digital works
are impacting adversely upon libraries' role as the world's custodians
of human memory. Works that are digitised in commercial databases
are not only subject to licensing regimes, which for smaller subscriber
organisations with little bargaining power are often non-negotiable,
but also in the UK licences and contracts are allowed to override
copyright exceptions and limitations.
Moreover, if the digital content is not otherwise
available in an open access repository, it risks being locked
up in perpetuity by DRMS which include TPMs (technological protection
systems) which by law may not be circumvented without permission
under any circumstances. These devices are increasingly present
in commercially produced digital materials in order to enforce
the licence terms. Thus rare public domain material might possibly
not be made available in the digital environment except in a commercial
database protected by a TPM. Alternatively, the copyright content
of commercial databases using TPMs may not be freely usable, as
it should be when it enters the public domain upon expiry of all
the rights in the digital work which due to the long terms of
copyright protection could be more than a century later.
The world's great research libraries and archives
comprise national, university, public and learned society libraries
and national, local and private archives—some large, some
small. A large number of these are located in the UK. Such libraries
and archives not only should be participating in projects to digitise
works in order to make them widely available in our information
society, but they also must seek to keep the digital works they
hold in perpetuity and be able to transfer them to other formats
and platforms in order to preserve them for the public domain.
Only then can they make the content fully accessible and usable
once all the rights in the digital work have expired.
In the UK legal deposit libraries now have a
legislative mandate to collect and preserve digital materials.[38]
Yet the average life of a TPM or DRMS is around three to five
years. If the digital information product is no longer made, there
will be no new TPM compatible with new operating systems and no
key available to allow libraries to migrate content to new platforms.
Nor does the TPM cease upon expiry of copyright, so the content
will remain locked even when no rights subsist. By then the ownership
of the rights may be impossible to trace, rendering the product
orphaned and without a key. Obsolescent TPMS render digital content
inaccessible to future generations of researchers. For libraries,
charged with creating and maintaining a patrimony of public domain
works in the digital environment, this is serious.
We believe that the CDPA (Copyright, Designs
and Patents Act 1988) needs amendment to provide an exception
to copyright for librarians and archivists to be allowed to circumvent
DRMS as trusted intermediaries in order to make copies which are
permitted under existing copyright law. That libraries can be
regarded as trusted intermediaries by rightholders is evidenced
by our constant insistence in our lobbying on a fair balance in
copyright for all members of the information chain—both
users and rightholders—and our role in managing copyright
within institutions in a manner which enforces respect for rightholders'
rights. This would make provision for addressing access to knowledge
allowed by the statutory exceptions and provide for that access
in the future when works enter the public domain by providing
one means to allow for digital preservation and conservation of
our cultural heritage.
We also would like to see, in tandem with the
above, that publishers who digitise public domain works for commercial
databases accessed from a library's collection be required to
furnish any library that provided access to the analogue copy
of the work, with a clean digital copy which the library can not
only copy in order to preserve the digitised work for posterity
and migrate it to new platforms, but also can make it freely available
forthwith to the public on library servers or in not-for-profit
public sector online databases. Commercial multimedia publishers
(including producers of film and recorded sound) should also be
required to entrust major legal deposit and research libraries
stipulated by national legislation with clean copies of their
electronic products for the purposes of conservation and preservation
so that the content is not lost when the rights in the product
expire.
Users' access to and use of works in the digital
environment
Libraries already have experience of how TPMs
in e-books, e-journals, databases and multimedia products such
as film, broadcasts and sound recordings, remove users' rights
to avail themselves of statutory exceptions and limitations to
copyright, including the rights of visually impaired people to
have accessible copies made or to deploy read-aloud software.
For example a TPM interfering with fair dealing uses may prevent
a user from printing out a journal article or extracts from other
digital works under fair dealing for research or private study,[39]
extracting digital excerpts from it in order to quote under the
exception for fair dealing for criticism and review or for the
reporting of current affairs.[40]
Additional exceptions cover prescribed[41]
library copying for users, the provision of accessible copies,
analogue or digital, to visually impaired people, and parliamentary,
statutory inquiry and judicial administration.[42]
These devices can thus interfere with the public's ability to
use our cultural heritage to the extent allowed by copyright law.
In our view it is furthermore regrettable that
the protections regarding TPMs' interference with exceptions and
limitations to copyright offered by the UK's implementation of
the provisions of the Information Society Directive Article 6(4)
are seriously deficient. Article 6(4) is of great significance
to users of copyrighted works, and it provides the only safeguard
where voluntary agreements cannot be reached. However, in our
view CDPA s.296ZE fails to implement Article 6.4 of the Directive
in a manner meaningful to the users it is intended to assist.
The process to be followed serves to chill complaints since it
is both vague, likely to be time consuming and likely to be expensive
to the complainant. The user's need to access works in a timely
fashion will not be met. Two years since its introduction, the
Patent Office has not introduced any procedures for implementing
s.296ZE.
It would be sensible if regular government reviews
of DRMS/TPMs were established in the UK with a view to determining
exceptions to the prohibition against circumvention in order to
enable the enforcement of the UK's statutory exceptions and limitations
to copyright. This could be achieved through deployment of The
Patent Office and the Copyright Tribunal. A proactive approach
on these issues from government such as this, is preferable to
the rather passive and negative approach implementing Information
Society Directive Article 6(4) taken by CDPA s.296ZE
Access to knowledge in the digital environment
is crucial to educational and cultural development of society.
We believe that it is unacceptable that these provisions for complaint
by users to the state can be overridden by the licensing terms
imposed by the rightholder, (as provided for by the Information
Society Directive Article 6(4) para 4, Article 9 and Recital 53).
To remedy this the UK should seek changes in the Information Society
Directive to ensure that permitted acts cannot be prevented by
rightholder licences and TPMs or DRMS.
2. The effects upon the various creative industries
of unauthorised reproduction and dissemination of creative content,
particularly using new technology; and what steps can or should
be taken—using new technology, statutory protection or other
means—to protect creators
Copyright was created to endure for a limited
period of time and is supposed to foster innovation and creativity.
However a creative climate which benefits learning and innovation
can not be achieved by using the protection of copyright merely
to allow right owners to impose total control. Ideas and human
creativity can not operate in a vacuum but feed on and build from
the ideas of others. For this to happen a certain amount of copying
without having to undertake the often onerous task of clearing
rights is essential or the opportunity is lost. This point was
acknowledged by WIPO (World Intellectual Property Organisation)
at a meeting of Member States only last week (20-24 February 2006)[43]
during their discussions about the public domain.
The use of technology and statutory remedies
should not solely be about "protecting creators" but
be about the wider aim of fostering education and independent
learning to provide the bedrock for fostering creativity and innovation
and with it a sound economy. The UK Government has a duty to all
its citizens, not just to those engaged in the creative industries.
This duty encompasses the need to foster the growth of both the
knowledge economy and the information society and these have a
symbiotic relationship with each other as do creators with users
of their works. For copyright to function well, a proper and careful
balance between right holder rights and users' rights must be
maintained by legislation to ensure that society's social and
educational needs are met.
Proposals for a second European Enforcement Directive
and Council Framework Decision
Unlike the other forms of intellectual property
(patents and trade marks) copyright is very complex and is very
easy to infringe. There are currently proposals within Europe
for a second Enforcement Directive and Council Framework Decision.
The scope of the proposals as issued by the Commission in July
2005[44]
serves to increase the protection of IPRs to an unprecedented
level by introducing far more rigorous criminal penalties than
hitherto for each and every deliberate infringement on a commercial
scale regardless of the circumstance. We feel this is unnecessary
except in circumstances where public health and safety or organised
crime are involved.
LACA is concerned that these proposals (as issued
last summer) remove all discretion concerning whether or not an
IPR infringement "on a commercial scale" is a criminal
offence or not. A major concern to us is that the criminalized
acts in the proposals include some which are difficult to exactly
define: eg "attempting, aiding or abetting and inciting infringements".
Additionally it is unclear how national courts would interpret
infringement on a "commercial scale". These proposals
go far beyond the TRIPS Art. 61[45]
provisions for criminal procedures "at least in cases of
trade mark counterfeiting and copyright piracy", since they
cover all intentional infringements on a commercial scale
of intellectual property rights without regard to the actual circumstance
and the proposed Framework Decision introduces compulsory
standards into the penal codes of Member States. This is highly
unusual since Europe very rarely attempts to interfere in the
detail of the criminal law of Member States.
We do not feel it appropriate that "intentional"
infringements on a "commercial scale" of economic or
moral rights should be made criminal offences rather than civil
offences in each and every circumstance. We believe that these
proposals, if enacted, will inhibit the development of new methods
of information distribution. An example of this already is the
current contested legal action alleging copyright infringement,
by UK scientific, medical and technical publishers against some
German academic and research libraries involved in document supply
through Subito—an activity likely to be regarded as being
on a commercial scale, though it remains to be seen if it is found
to involve intentional infringement. If it had already been possible
to criminalize the Subito suit the prospect of punitive fines
for libraries might have arisen. Similar situations could arise
in future.
Criminalization to the degree set out by these
proposals will have a chilling effect on innovation in the development
of information services, both analogue and digital. This will
reduce choice, narrow the user's freedom of action and reduce
access to information. It is difficult to see how that will benefit
innovation, the economy, or the citizen's right to fair access
and fair use of information. We respectfully remind the Select
Committee that all innovators and creators of works protected
by intellectual property rights are also users of information,
and where the research is for a non-commercial purpose they rely
on the Government to robustly defend the exceptions and limitations
to copyright set out in international, supranational and national
law.
3. The extent to which a regulatory environment
should be applied to creative content accessed using non-traditional
media platforms
The WIPO Copyright Treaty 1996 (WCT)[46]
which the Information Society Directive 2001/29/EC implements
and with which UK law now complies, already provides for protection
of copyright and related rights and for the provision of rights
to users of digital works so that they continue to have statutory
rights of access to information by way of "exceptions and
limitations" to copyright in the same way as users of analogue
works. The CDPA does not need to spell it out further: in this
particular case "less is more."
UK law must of course comply with EU Directives,
and international treaties. However the constituency served by
copyright is not just that of the UK economy but is also that
of the UK's civil society. Thus in order to achieve a balanced
outcome between the needs of rightholders and users for the benefit
of the economy and of civil society it would be helpful if Members
of Parliament took a more active role in the debate concerning
the underlying issues surrounding copyright and also carefully
scrutinised the implementation of significant EU Directives and
international treaties into UK law with a view to questioning
when these increase and entrench monopolies in information. Too
much, including the Information Society Directive (Europe's most
lobbied and most controversial Directive to date) has been implemented
through secondary legislation without debate. Parliamentarians
can also actively lobby within their parties, in Europe and with
other countries to prevent unhealthy monopolies and the erosion
of existing exceptions and limitations to copyright.
It is important that international treaties,
EU Directives and UK legislation are implemented in the UK in
a way which gives the public interest primary consideration. Such
principles lie at the heart of the Adelphi Charter[47]
launched by the Royal Society of Arts in October 2005, which calls
upon governments, when making decisions about intellectual property
law, to adhere to these rules:
— "There must be an automatic
presumption against creating new areas of intellectual property
protection, extending existing privileges or extending the duration
of rights.
— The burden of proof in such cases
must lie on the advocates of change.
— Change must be allowed only if a
rigorous analysis clearly demonstrates that it will promote people's
basic rights and economic well-being.
— Throughout, there should be wide
public consultation and a comprehensive, objective and transparent
assessment of public benefits and detriments."
4. Where the balance should lie between the
rights of creators and the expectations of consumers in the context
of the BBC's Creative Archive and other developments. Whether
the UK should seek to bring about an extension to the term of
protection for copyright and performers' rights in sound recordings
within the European Union
One of the specific issues to be considered
by the Gowers Review[48]
will be to examine the current term of protection on sound recordings
and performers' rights.[49]
"The Review will fulfil the Government's commitment to examine
whether the current 50 year term of protection on sound recordings
and performers' rights in sound recordings is appropriate, in
the light of its extension to 95 years in a number of other jurisdictions."
(in particular the US). We are of the view that extension of term
would massively upset the balance between right holders and users,
making preservation of recorded sound for posterity, and hence
access for users to the wealth of recorded sound material held
in libraries and archives, immeasurably more difficult.
The UK and Ireland Branch of The International
Association of Music Libraries is a member of LACA and has made
a separate submission to you. In this regard IAML advises us that
although parity with the US is quoted as an argument for extension
the markets are not the same as each other: the US "fair
use" exception covers phonograms, whereas the UK has no fair
dealing in sound recordings; likewise the US has no equivalent
to the PRS (Performing Right Society) and hence right holders
receive no income from radio, restaurants etc.
To extend the term of protection for copyright
and performers' rights in sound recordings would cause grave problems
for libraries and archives. Historical recordings held in a number
of libraries and archives, including the British Library (BL)
Sound Archive, are increasingly important for research, the study
of performance history, and the promotion of interest in a variety
of interpretations. To require copyright clearance for such recordings
would seriously stifle advances in music research and education.
A blanket extension of term would result in 98% of recordings
being tied up in order to protect the estimated 2% of back catalogue,
which comprise reissues by the major recording companies. Small
independent producers are able to support a wide range of historical
and specialist recordings which add diversity and interest to
the market and help to fill the need of educational research.
An extension would prevent them from re-issuing many interesting
performances to the public as a whole. If re-issuing recordings
were left entirely to the original companies, many more valuable
and interesting recordings would lie unheard and the market would
reflect even further the current emphasis on a few popular artists.
Apart from the considerable extra costs of rights
clearance due to nearly doubling the term of protection, many
old recordings are often "orphaned works" ie the right
owners are unknown or disappeared which results in an often frustrating
and fruitless search for them to seek clearances since copyright
requires no registration and its term is already so long that
right owners vanish. Such sound recordings perish quickly and
it is essential that libraries and archives be able to copy, digitise
and migrate them to newer and flexible formats and platforms in
order to preserve the original carriers. It would become far more
difficult for such institutions to preserve or perform these recordings
or to bring them to the public through the issue of new copies.
Creative Commons and repository licensing
We support initiatives such as Creative Commons
(CC) and the BBC's Creative Archives since they have served to
encourage widening of access to content with minimal restrictions
through the use of licensing designed to promote as much access
to and re-use of works as possible at the level required by the
author (CC) or repository (BBC). CC licences are, in our opinion,
better suited to individuals. Therefore repositories or institutions
like the BBC Creative Archive, which have much broader remits
and a greater variety of material, have preferred to develop their
own licensing on broadly similar lines.
While flexible licensing such as this goes some
way to mitigate the situation and make works accessible to users
for free or at low cost while providing sufficient protection
to right holders, it can not provide all solutions to problems.
The WCT and the Information Society Directive addressed right
holders' fears of the potential for infringement offered by digital
technology by tipping of the balance of copyright too far in right
holders' favour. The balance now needs some redress to allow the
Information Society and a knowledge economy to flourish. A carefully
protected suite of user copying rights serves to foster innovation
and creativity through the ideas gained from the works of others.
User copying rights also serve to protect democracy and the free
flow of ideas and they place a healthy limit on monopolies of
information by both the commercial and public sectors. In its
recent i2010 Digital Libraries consultation, the European Commission
recognised that libraries, archives and museums are of great importance
and value to the knowledge economy and that access to information
is of critical importance as "a key factor to science and
innovation and... for economic growth and employment."[50]
For libraries, archives and also museums to be able to fulfil
their core role of maximising access to information or to their
content in the context of the digital information society, it
is however, essential that all the players—government, legislature,
rightholders and users, recognise and respect that balance is
essential in copyright.
28 February 2006
34 i2010 Digital Libraries http://europa.eu.int/information_society/activities/digital_libraries/index_en.htm Back
35
http://print.google.com/googlebooks/library.html Back
36
City history database goes online. BBC News 20/02/06 http://news.bbc.co.uk/1/hi/england/somerset/4732054.stm;
http:// www.bathnes.gov.uk/BathNES/lifeandleisure/leisure/localarchives/georgian/default.htm Back
37
http://www.cilip.org.uk/professionalguidance/copyright/lobbying/apig.htm Back
38
Legal Deposit Libraries Act 2003 Ch.28. Back
39
CDPA s.29. Back
40
ibid. s.30. Back
41
as defined by SI 1989 1212. Back
42
ibid. ss.45-46. Back
43
Provisional Committee on Proposals Related to a WIPO Development
Agenda (PCDA/1).
http://www.wipo.int/meetings/en/details/jsp?meeting_id=9643 Back
44
Proposal for a European Parliament and Council Directive on criminal
measures aimed at ensuring the enforcement of intellectual property
rights Proposal for a Council Framework Decision to strengthen
the criminal law framework to combat intellectual property offences
COM(2005)276 final, 2005/0127(COD), 2005/0128(CNS) dated 12 July
2005. Back
45
TRIPS: Trade Related Aspects of Intellectual Property Rights.
http://www.wto.org/english/tratop_e/trips_e.htm Back
46
WCT 1996 Art.10. Back
47
www.adelphicharter.org Back
48
http://www.hm-treasury.gov.uk/independent_reviews/gowers_review_intellectual_property/gowersreview_index.cfm Back
49
Gowers Call for Evidence p7 http://www.hm-treasury.gov.uk/media/978/9B/gowers_callforevidence230206.pdf Back
50
Commission of the European Communities. Commission Staff Working
Document Annex to the: Communication From The Commission
"I2010: Digital Libraries" [Com(2005) 465 Final] Brussels,
30 September 2005 SEC(2005) 1194. Para. 2.1.1 p4. http://europa.eu.int/information_society/activities/digital_libraries/doc/communication/annex1_en.pdf Back
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