Written evidence submitted by the National Library of Wales

September 2011

Summary

  The National Library of Wales supports all ten of the Hargreaves Review’s recommendations and the Government’s proposals for their implementation.

  The response focuses on the five recommendations that are relevant to The National Library of Wales’s current activities, namely 1, 3, 4, 5, and 9.

1. About The National Library of Wales

1.1 The National Library of Wales is the largest library in Wales and holds over 6.5 million printed volumes. It is one of the five legal deposit libraries in the UK and approximately 67,000 books and 100,000 periodical and newspaper issues are added to the collection annually.

1.2 The National Library of Wales’s collections also include:

  Around 1,900 cubic metres of archival material;

  The most comprehensive collection of paintings and topographical prints in Wales, totalling over 60,000 works;

  Wales’s largest collection of portraits (c.15,000 paintings and portrait pictures);

  The largest collection of photographic images in Wales (c.1,000,000 images);

  Wales’s largest cartographic collection (c.1,000,000 maps)

  The National Screen and Sound Archive of Wales, which contains over 5.5 million feet of film, more than 250,000 hours of video, and over 200,000 hours of sound recordings.1

1.3 The Library welcomes people of all interests to access the collections on-site. As well as four Reading Rooms, the building has eight public exhibition spaces used for internal and touring exhibitions and a theatre where events are held regularly. In 2010, we welcomed over 85,000 people through our doors.

1.4 We also provide online access to digital reproductions of items in our collection and we have for many years promoted the use of digital technologies as means of widening access. Millions of digital objects are displayed on the website, and our digital collections (which consist of born-digital objects as well as reproductions of physical items) continue to grow apace. Nearly 960,000 unique users visited the Library’s website in 2010.2

2. General comments on the Hargreaves Review of Intellectual Property and Growth

2.1 The National Library of Wales’s response to the Hargreaves Review’s Call for Evidence highlighted five ways in which the current intellectual property framework inhibited libraries and archives’ role in preserving and providing access to works that could stimulate innovation and creativity.3 These were:

2.1.1 Contractual agreements overriding statutory exceptions to copyright law

2.1.2 Digital Rights Management

2.1.3 Barriers to long-term digital preservation

2.1.4 Barriers to the use of digital data for research and innovation

2.1.5 Barriers to the use of works whose authors are unidentifiable or untraceable (‘orphan works’)

2.2 The National Library of Wales welcomes Professor Ian Hargreaves’s report Digital Opportunity: A Review of Intellectual Property and Growth as a thorough and balanced assessment of the current UK intellectual property framework and its impact on innovation and growth. The Review broadly addresses all but one of our concerns and makes recommendations that would go a long way towards remedying them. We were therefore exceptionally pleased to hear that the Government had accepted all of the Review’s recommendations and had made proposals for their implementation.

2.3 Of the ten recommendations made by the Review, five are more directly relevant to The National Library of Wales’s current activities. Our response to this inquiry will refer only to those five recommendations, namely 1, 3, 4, 5 and 9.

3. Recommendation 1: Evidence

 

3.1 Such is the importance of the intellectual property system to the UK economy that it is vital that its development is driven as far as possible by ‘objective evidence’. Failure to do so in the past has resulted in too much emphasis being placed on enforcement, thus threatening the balance between the interests of rights holders and consumers.

3.2 The Review states that ‘much of the empirical evidence on copyright and designs is privately held and enters the public domain when it is used to support the arguments of lobbyists’.1 It is hoped that the commitment to ‘openness and transparency’ will address this issue. It order to measure success in achieving this aim, terms such as ‘objectivity’ and ‘fairness’ will also need to be defined and should be included in the proposed guidance on what constitutes ‘open and transparent’ evidence.2

3.3 The ‘impacts on the consumer and other interests’3 mentioned in the Review’s recommendation may be difficult to quantify and we agree that the evidence of smaller businesses and organizations, many of which may not have measures in place to gather evidence to support their position, will need to be viewed sympathetically.4 When responding to the Review’s Call for Evidence, we were unable to supply statistical evidence of our impact on the economy, yet we are certain that our services play an important role in facilitating research and that our collections, accessed both within the building and on-line, inspire new creative works.

3.4 The quality of a corpus of evidence will depend on the range of sources consulted as well as the reliability of the data. Efforts are made to give a stronger voice to libraries and archives in discussions regarding the future of intellectual property law in the UK. The Libraries and Archives Copyright Alliance has a wealth of knowledge and experience and represents the interests of the sector on matters relating to copyright. Libraries and archives often work in close collaboration with Higher Education Institutions (HEIs). The Joint Information Systems Committee (JISC) is also particularly active in raising awareness of issues affecting HEIs and, next year, the Arts and Humanities Research Council will fund the establishment of a Centre for Copyright and Business Models in the Creative Economy.5 It is hoped that this new Centre will generate the type of ‘objective evidence’ that will be used to drive the development of the intellectual property system in the future.

4. Recommendation 3: Copyright licensing

4.1 The National Library of Wales supports the recommendation that a Digital Copyright Exchange be established as a single, publicly accessible register and common platform for licensing transactions. The notion that the proposed Exchange could become ‘the best copyright licensing system in the world’6 may seem ambitious, but, as the report states, it is an opportunity that others are likely to seize unless the Government acts swiftly.7 The National Library of Wales is currently discussing its strategy regarding e-commerce services and the Digital Copyright Exchange could possibly be a suitable platform for making items from our collections available for licensing.

4.2 In addition to making items from their collections available for licensing in the Digital Copyright Exchange, libraries and archives should contribute to the discussion regarding its delivery and management. Organisations such as The National Library of Wales often act as an interface between rights holders and consumers, and have much to offer in terms of knowledge and experience in the field of information management.

4.3 Though we accept that collecting societies currently fulfil an important role in licensing markets and should play a central part in the implementation of a Digital Copyright Exchange, we also agree that they should be required to comply with set standards of practice and transparency that are subject to independent review. This would be key to achieving and maintaining a balance between the interests of rights holders and consumers.8

5. Recommendation 4: Orphan works

5.1 The National Library of Wales has, through our digitisation activities, become very aware of the problems associated with the use of orphan works and we are able to relate to several of the Review’s observations on this issue.9 A solution to the issue is greatly needed and it is hoped that, supported by recent developments on the EU level, the Review will finally lead to unlocking this ‘national treasure trove’.10

5.2 The Review acknowledges the challenges of clearing rights even for relatively recent material, citing as an example the British Library’s project to digitise 4,000 hours of sound recordings and make them available online. 11 A significant proportion of the works in our archival collections contain little, if any, information that would lead to the current rights holder. In assessing their eligibility for digitisation, these works must either be condemned to obscurity or the Library must face the risks of associated with copyright infringement. We agree with the Review’s view on the need for changes to enable the use of orphan works.

5.3 We broadly agree with the Review’s recommendation that an extended collective licensing for mass licensing of orphan works should be established as well as a separate clearance procedure for use of individual orphan works. The details of this scheme would be key to its success or failure in unlocking orphan works. Bearing in mind the high percentage (as much as 40 per cent12) of orphan works in the collections of cultural organisations whose budgets may already be under pressure, the cost of obtaining licences will need to be considered carefully if the primary aim of this scheme is to enable the use of such works. As suggested, the fee structure for licensing orphan works should also take into account whether the materials in question were created for commercial purposes. 13

5.4 The criteria for diligent searching should also be considered carefully and clear guidance on what constitutes a ‘diligent’ search will be needed. We agree that this should involve diligent searches of relevant rights registries14 and that the orphan works solution could be tied to the Digital Copyright Exchange as a means of determining whether a search is sufficiently ‘diligent’.15

6. Recommendation 5: Limits to copyright

6.1 The National Library of Wales agrees with the recommendation that Government should ‘resist over regulation of activities which do not prejudice the central objective of copyright’ and that it should deliver copyright exceptions at UK level ‘to realise all the opportunities within the EU framework’.16 We welcome the Government’s intention to bring forward proposals in autumn 2011 for a substantial opening up of the UK’s copyright exceptions regime.

6.2 Technological advances in recent years have posed new challenges to libraries and archives. The opportunities arising from our capacity for digitisation and the new demands of preserving and providing access to born-digital archives are two significant developments that the current intellectual property framework does not adequately support. In order to fulfil their role effectively in the digital age, libraries and archives need exceptions in place that will enable them to make the most of these technologies for the purpose of preservation and future access. As well as introducing an exception to enable ‘library archiving’,17 we therefore urge the Government to include in its reforms an exception that would permit libraries and archives to carry out any activities regarded as essential to the preservation of collections and the retrieval of digital material.

6.4 Libraries and archives play an important role in facilitating and supporting research. We welcome the proposal to widen the exception for non-commercial research, particularly with regard to text-mining and data analysis. Emerging technologies have created opportunities that allow data to be explored and analysed in new ways. While we accept the argument that access to data in this way could generate commercial streams, we believe that it is outweighed by the social and economic benefits of introducing an exception permitting this data to be used for non-commercial purposes.

6.5 Appreciating the limitations of the European system of specific exceptions to copyright, we support the recommendation that the Government should explore with our EU partners a new mechanism in copyright law to create a built-in adaptability to future technologies.18 As advances in technology continue apace, we believe that this is an opportunity not only to address existing barriers to innovation and creativity, but also to identify ways in which the intellectual property framework could be made more responsive to change in the future.

6.6 Robust exceptions are important to balancing the interests of rights holders and consumers. We emphasised that contracts should not be permitted to undermine exceptions to copyright law in our evidence to the Review and we welcome the recommendation, and the Government’s agreement, that copyright exceptions should be protected from override by contract. Unless this is addressed, efforts to open up the UK’s copyright exceptions regime could be undermined from the outset.

7. Recommendation 9: Small firm access to IP Rights

7.1 The Review’s recommendation that the IPO should draw up plans to improve accessibility of the IP system to smaller companies is particularly timely from our perspective. The National Library of Wales is in the final stages of applying for European Regional Development Funding towards (ERDF) four-year Digitisation for Business project. The project aims to create a sustainable platform to enable and encourage opportunities for growth by supporting companies (primarily SMEs) in the use of digital technologies. While preparing the application, we have identified intellectual property as an area in which we may be able to assist SMEs and we have held initial discussions with the Welsh Assembly Government’s Innovation, Knowledge Transfer & Commercialisation Department regarding the possibility of setting up a patent information centre (PATLIB) at The National Library of Wales. The Review’s findings confirm this need for better provision of IPR advice for smaller companies and, if our ERDF application is successful, we may be able to support the IPO in its efforts to achieve this.

8. Conclusion

 

8.1 In conclusion, The National Library of Wales would like to reiterate our support for the recommendations made by the Hargreaves Review and the Government’s proposals for their implementation. We firmly believe that these proposed changes to the intellectual property framework will be an important step towards addressing barriers to growth and promoting innovation and creativity in the UK. We shall therefore look forward to the White Paper that is scheduled for Spring 2012 and to following the latest developments in the Intellectual Property Office’s annual reports.