Select Committee on Culture, Media and Sport Written Evidence

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 Back

35 Back

36   City history database goes online. BBC News 20/02/06; http:// Back

37 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). 

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. 

46   WCT 1996 Art.10. Back

47 Back

48 Back

49   Gowers Call for Evidence p7 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. Back

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