Transcript Slide 1

The shape of things to come –
from the ‘Age of Frustration’ to the
‘Modern State in Control of Life’
International copyright challenges for
libraries & archives
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What is a library when 'everywhere is here'?
http://youtu.be/asYUI0l6EtE
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Will be mainly digital
 E-books & e-journals, film & sound recordings plus new
formats
 Special collections will be digitised and put online
 Remote user access will predominate
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The challenge for libraries is
 How to continue their intermediary role in the information
chain – ‘making available’ information goods – access,
use, lending – impartially to all, regardless of ability to pay
▪ When information producers (those who create and publish) can
now sell or lend direct - doing all the ‘making available’ themselves
▪ What can libraries do that the producers can’t?
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Permanency & public good
 Libraries & archives are public institutions integral to the life scientific and
cultural - will always be there in some form
▪ No one can own/pay for access to every information product themselves
 Creators and publishers are transient
 Libraries & archives take responsibility for information management
▪ Preserve information and make it available for future generations
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Impartially advance society and economies
 Make information available to everyone – regardless of status in life and
ability to pay
 Teach information literacy skills – Google is no substitute!
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Libraries should digitise special collections and put
online
 Open up access - ‘make available’ more widely
 Public libraries are major cultural institutions
 They too hold important collections of world significance
▪ Local studies
▪ Specific authors, artists, musicians, inventors and discoverers
▪ Historical collections
▪ E.g. Papers of the poet John Clare at Northamptonshire Libraries,
Photographic collections such as that about Buffalo Bill at
Birmingham City Library
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The challenge here is Orphan Works (OWs)
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OW’s can have immense cultural, historical & research
value
 OWs are out-of-commerce (OoC) - commercial life of
most literary publications about 10 years
 Many never published by mainstream publishers
 OWs are old – works published as early as 1850s
 OWs are young – works published as late as 1990s
 More OWs are being created daily because ©
registration not required by the Berne Convention
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Studies* indicate
 Around 30% of cultural institution collections are orphan
 A manual diligent search to clarify copyright status, identify &
locate rightholders & request permissions takes 0.5 days
 Of which locating rightholders & seeking permissions for OWs
takes on average 2.75 hours per book
 It would take one researcher 1,000 years to manually clear
rights in 0.5m books
*British Library/ARROW study ‘Seeking new landscapes’ (2011)
*JISC ‘In from the cold’ (2009) survey
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ARROW system assists rights clearance of published
literary & dramatic works only
 BL/ARROW study showed that it took less than 5 minutes
per title to upload the catalogue records and check the
results on ARROW
 Results corresponded with findings of manual ‘diligent
search’
▪ But ARROW is no better at identifying anonymous rightholders, or
locating rightholders whose works aren’t currently in-commerce, or
who aren’t members of collecting societies (CMOs) – and it can’t
negotiate!
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Europeana the driver for change
OW Directive intention supposed to be to make European
culture more widely available to citizens & to encourage
commercial enterprise
Intention clearly to address ‘large-scale digitisation’ by public
institutions (Recital 1; impact assessment SEC (2011) 615).
Despite objections from ‘beneficiaries’, including Europeana
itself, JURI committee adopted a compromise text of the OW draft
by a clear majority on 1st March 2012
Next step is EP plenary vote week beg 21stMay 2012.
National consultations on Directive currently in Lithuania,
Denmark & Poland
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Provision for licensing solutions inadequate - cross-border
licensing needed to avoid duplication of rights clearance effort
across Europe
Purposes for which an OW can be reproduced are too restrictive
– no future-proofing
Disclaimer recital needed to ensure OW Directive does not
amend substantive provisions of Information Society Directive
2001/29/EC
Diligent search requirements onerous, impractical and
unnecessarily restrictive and include all embedded works
Record keeping requirements overly bureaucratic raising data
protection and privacy issues.
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“The Directive will do little, if anything, to address the issue of
the digital black hole of the twentieth century that has been the
subject of such EU political focus over the past seven years.”
Since 2005, we’ve had
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A Green Paper
Other public consultations
A High Level Expert Group
Stakeholder dialogues, and
The Comité des Sages, yet
“it is no exaggeration to say that the effect of the proposed
Directive will be negligible for all practical purposes”
“an immense waste of time and resource, not to say a huge
missed opportunity”
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Commission brokered stakeholder MOU signed Sept 2011
Provides for licensing schemes for digitisation & making
available of of ‘out-of-commerce’ (OoC) © works
Signatories include EBLIDA, LIBER, CENL, FEP, STM, IFRRO
OoC MOU complements OW Directive
 May end up being the only vehicle that flies at all
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MOU only covers books and learned journals – not film, games,
music or sound recordings
MOU not legally enforceable so no legal certainty without
statutory backing
 Recognises need for legal basis in each MS for presumption of CMOs’
management of non-members’ rights, e.g. statute backed Extended
Collective Licensing (ECL)
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But © system based on territoriality – inappropriate for the
Internet
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MOU recognises that cross-border rights clearance and making
available of © works is needed
 Currently even if there is statute backed ECL in one MS covering non-
members of CMOs this measure would have no effect in other countries.
 MOU Principle 3.3 provides that the presumption of representation set out in
Principle 2.4 should also apply to licensed uses of the work occurring in an
MS other than the MS in which the licence was given.
 MOU Recital 11 calls upon the Commission to legislate for cross-border
uses (the whole point) – yet the OW Directive has failed to adequately do
this
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MOU needs implementing - task force being set up by signatories
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Public libraries - unprecedented scale of brutal budget cuts
Cheap e-books & branch closures = dwindling of borrowings
Library patrons want remote e-book ‘loans’
 In time e-books may replace most hard copy loans and reference use of
books
 Already happened with journals and newspapers – people expect to be
able to download the articles remotely from their libraries or buy direct
online
 To survive public libraries can not ignore technological change -will have to
provide e-book ‘loans’ remotely
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Challenge is that ‘e-lending’ is not really lending & now
anyone can “a lender be”
Commercial e-rental services competing with library lending?
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Publishers had been moving towards large-scale ebook publishing for last decade
Arrival of good reading devices – Kindle, Kobo, iPad &
other tablets allowed e-books to take off big-time
Many new authors self-publish in e-books – selling on
Amazon Marketplace
Amazon U.S. now sells more e-books than hard copy
Long b4 Kindle, the New York Public Library had for
many years successfully ‘loaned’ e-books for remote
download to both sighted & print-impaired patrons
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Yet publishers seem to be in a state of flux –
 Unprepared in their business models to deal with the uses
that customers, including big customers like libraries, want
to make of e-books
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No excuses – music biz has already been there - had
to adapt business models post-Napster to consumer
demand
 Publishers should have learned better from them – ‘the
customer is always right’
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Publishers must now see more profit in e-book sales not ‘loans’
They want control – fear any limitations to their monopoly
 They fear offsite e-loans to the wide community of public library patrons
will undermine sales model
 Universities, colleges and schools are not in firing line (have good
information security & closed communities)
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Publishers can’t prevent library loans of hard copy books
 European & other national PLR schemes merely provide for author (and
sometimes publisher) remuneration for loans to the public
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But they can prevent e-book loans because these are subject to
licensing
 Publishers voting with their feet – Harper Collins, Macmillan and Penguin
all do not allow public library e-book ‘loans’
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In UK context 1/3 public libraries offer e-book lending
 But some library e-lending systems were hacked from China
in 2010 – problem was identified and quickly fixed
 Other public libraries allowing new members from outside
their normal residential or work locality without checks
 UK Publishers Association (PA) reacted by claiming that
"untrammelled" remote lending of digital books could pose
a "serious threat" to publishers' commercial activities.
 PA’s ‘solution’ is to recommend their members only licence
e-book ‘loans’ collected in person from library premises, i.e.
no remote downloads
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There is in most countries no ‘right to lend’ – nor any
impediment to lending hard copy books in the original
covers
 The act of a library issuing an e-book to a reader is not
in fact a ‘loan’ but is copying the work to the reader for
a limited period of time
 Library e-books are subject to licences – licences very
difficult to understand and costly to negotiate
 Licences are contracts that can allow wider uses than
the exceptions do but can also impose greater
restrictions undermining the exceptions
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IFLA and EBLIDA are both drafting policy
 EBLIDA will discuss its draft policy at Copenhagen conference in May
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Publisher e-book licences should not be allowed to exclude
‘e-lending’ remotely or otherwise
Governments should broker public library-publisher
agreement or even legislate
Lending is core to public libraries - library bodies need to ask
the IPA & FEP – do they really want to destroy public
libraries?
Libraries need to campaign to change publisher attitudes &
harness consumer support
Look at growing success of Open Access journals movement
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National copyright law revision in Europe
 UK, France, Ireland, Netherlands & Norway
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UK example - Hargreaves Review of IP 2011
 Established by PM - David Cameron, Nov 2010. Led by
Prof Ian Hargreaves, Chair of Digital Economy, Cardiff
University
 Report published May 2011 - 10 Recommendations that
support and go beyond findings of Gowers Review 2006
 UK govt accepted Hargreaves report in its entirety - should
be implemented 2013-14 – 1st consultation on
implementation closed 21st March
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Supported creation of European cross border copyright
licensing framework
Supported legal requirements for greater transparency in
CMOs - they should operate to agreed standards adopting
codes of practice, approved by the IPO and the UK
competition authorities
Supported creation of new UK exception for non-commercial
text & data mining and an EU exception for commercial text
and data mining to permit ‘text and data analytics’.
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Establish cross-sectoral Digital Copyright Exchange by the
end of 2012 “to boost UK firms’ access to transparent,
contestable and global digital markets.”
 A network of interoperable databases of standardised data and other
info about copyright works and licensing providing a common
platform for licensing transactions
 To include public sector copyright material from the start
 Incentives for participation in the DCE and disincentives for nonparticipation by rightowners
 Governance should reflect the interests of participants, working to an
agreed code of practice.
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1st stage of Richard Hooper’s consultation on DCE closed Feb
2012
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The Government should legislate urgently to enable
licensing of orphan works.
 To establish extended collective licensing permitting the mass
licensing of orphan works for mass digitisation
 To establish a clearance procedure for use of individual work licensed
by Government agency at a nominal fee
 In both cases, a work should only be treated as an orphan (and
licensed by the collecting societies) if it cannot be found by search of
the databases involved in the proposed Digital Copyright Exchange.
 Unclaimed licence monies should be used to support the DCE or for
cultural purposes
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Government should realise all the opportunities permitted
by the EU copyright acquis by implementing all the copyright
exceptions within the EU framework at national level
 private copying exception for personal domestic use including format
shifting
 exception for parody
 extending fair dealing for non-commercial research to all works, and
extending library and archive preservation copying aka ‘library
archiving’.
▪ ‘we may well find that this public digital archive turns out to have
considerable economic as well as social and cultural value’
▪ but an enhanced preservation exception will not permit remote
access
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The Government should firmly resist over-regulation of activities
which do not prejudice the central objective of copyright,
namely the provision of incentives to creators.
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The Government should legislate to ensure that these and other
copyright exceptions are protected from override by contract.
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NB. The recent Irish copyright law review has supported this
view and calls for a strengthening of Ireland’s existing
prohibition of contract override of the copyright exceptions
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InfoSoc Directive’s exhaustive list of copyright
limitations & exceptions is blocking innovation
 E.g. orphan works, text & data mining exceptions now
needed
 UK should lead the development of a new EU copyright
exception designed to build adaptability of the exceptions
to new technologies into the EU framework
▪ to allow uses enabled by technology of works in ways which do not
directly trade on the underlying creative and expressive purpose of
the work.
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Hargreaves had said in his Review
 "We urge Government to ensure that in future, policy on
Intellectual Property issues is constructed on the basis of
evidence, rather than weight of lobbying."
 "On copyright issues, lobbying on behalf of rights owners has
been more persuasive to Ministers than economic impact
assessments.”
 "Much of the data needed to develop empirical evidence on
copyright and designs is privately held. It enters the public
domain chiefly in the form of ’evidence’ supporting the
arguments of lobbyists ('lobbynomics') rather than as
independently verified research conclusions."
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As happened with Gowers, implementation
of Hargreaves risks being watered down by
rightholder pressure
 War of words started this week – letters to the press
 Rightholder reaction is to attack the report & govt’s
Intellectual Property Office
▪ We just want the Digital Copyright Exchange and nothing else licensing solves everything doesn’t it?
 UK library community needs to win hearts and minds –
campaign publicly in support of the recommendations
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“Unprecedented opportunity for libraries and
archives” created at WIPO
 Copyright Committee (SCCR) work programme
includes copyright limitations & exceptions for
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 Print disabled people - discussions started 2008
 World Blind Union seeking treaty to allow cross-border
uses - ‘TVI’
 Libraries & archives - discussions started Nov 2011
 IFLA, ICA, eIFL & Innovarte seeking treaty - ‘TLIB’
 African Group has proposed education & library treaty
 Education & research discussions start July 2012
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IFLA working group developed a proposal for a
"Treaty on Copyright Exceptions and Limitations for
Libraries and Archives” to inform the discussion of
Ls & Es for libraries and archives at WIPO
 Wide consultation with librarians, representatives of
WIPO Member States and copyright experts
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Copyright law is territorial within global treaty framework, yet
Digital environment - the Internet & digital information goods are global
Libraries & archives are an international cooperative network
 Need cross-border provisions in digital age
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WIPO report on library & archive exceptions (Crews, 2008)
showed that a number of countries have no copyright
exceptions for libraries
 Except news reporting (compulsory) and basic analogue preservation
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Libraries & archives need minimum global floor of Ls &
Es to
 Void licence and contract terms and technological protection
measures that undermine Ls & Es – otherwise there is no public
policy space in © since statutory Ls & E’s have no force
 Permit preservation of library and archive materials of all kinds
and in all formats - making as many copies as needed for
preservation and onward migration to new platforms
 Permit cross-border supply of digital documents & data between
libraries and archives for patrons’ research/study needs or
private use
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 ‘TLIB’ 3.0 launched in The Hague, April 2011
 Current African Group treaty proposal for includes text from
TLIB 3.0
 Comments received from profession and rightholder
organisations
 Reviewed by international panel of law professors
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‘TLIB’ 4.1 launched @ WIPO SCCR/23, Nov 2011
 All its separate provisions are ‘on the table’ as official
proposals from either Brazil or Ecuador
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The end of the beginning…. support the campaign &
watch this space! http://www.ifla.org/copyright-tlib
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