Inforum 1999 Praha 20 May 1999

Tuula Haavisto

CECUP Project Manager, Helsinki

e-mail tuulah@fla.fi

Copyright is a complex matter, and therefore often considered to be boring, too. It takes energy to try to understand what it is about. But especially libraries should not give up in front of this complexity – it is one of the most important elements in their future work. We are dependent on copyright legislation. It is not all the same, what is written in these laws.

Copyright legislation is very actual just now, because two new documents, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, were signed in 1996 in a worldwide conference in Geneva. It includes such new elements that every country has to re-write their copyright laws at least in some degree. Now the question is, how to write the changes. In Europe the European Union has a strong role in this process because it is giving a directive to serve as the basis for national copyright legislations.

It is clear that the author must have the right to say what can be done with his/her work. This is called the moral right. The author also needs a remuneration for the work done by her/him. There money comes to the stage. Also a new actor is coming here to the stage, the producer. The producer can be a book or journal publisher, a record or film producer etc – always a person or company who has specialised in publishing, delivering and marketing works in one or an other form. The author and the producer agree with each others how to share the economical benefit if the work will make profit.

From the library point of view authors and producers are rightowners, when libraries are users.

If the copyright would be a 100% exclusive right, it would lead to very strange situations. Neither citations in journals would be allowed nor article copies could be done in the schools without the permission of the author. No library use of documents would be allowed without agreements between every author, producer and library.

Therefore the copyright laws have always included certain exeptions, based on:

These exeptions are also mentioned in the international agreements as in the Berne Convention and in the WIPO Copyright Treaty. Every country which signs the international treaties, has to include these exeptions in their copyright laws in some form.

The copyright is in most languages called "the author's right". It treats a very special branch of human activities: products of intellectual work. They differ greatly from physical goods. The greatest difference is that new creatures and products of intellectual work are coming out as a result of accumulation. To create something new, the author needs to know the tradition and works done before him/her.

Intellectual works have a special position also among the general public. In every society a big part of socializing of an individual (meaning here ”making a social human being”) is based on culture, let's only speak about schools.

Therefore access to intellectual works is a vital element in societies. The balance between the different intrests of the right owners (authors and producers) and the users (e.g. libraries and their users) has since 1886 been based on an international framework, the Berne Convention. It gives the minimum standards for national legislations. The two documents mentioned before, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty from 1996 are addenda to the Berne Convention.

Libraries are a typical way to organize access to the cultural heritage and information, parallel to e.g. museums on one side and to mass media on the other. Libraries are needed in any literate society. In other words, societies are making an input to libraries to guarantee to their citizens a certain amount of equality on information and culture branches.

It has to be added in this ”market thinking” connection, that libraries also serve as a large marketing system for intellectual products and maintain the habit of reading.

Internet, the worldwide electronical network, has raised new elements in the copyright matter. First, it is a media where everyone can do 100% copies which are of as high quality as the original document – compare with e.g. a video or music cassette copy quality. Secondly, Internet is worldwide, every document is available much more largely than it has been possible before. One can be copied and cited on the other side of the world without knowing it her/himself at all.

For libraries the big change is that a they cannot any more buy all the documents to their ownership. In most cases they can only buy access to or right to use electronic documents, not the documents themselves.

Therefore new rules have to be agreed. The 1996 WIPO Copyright Treaty is the recent up-dating of the Berne Convention. It has been written especially for administering the copyright in electronic documents.

Copyright is one of the areas where the European Union is giving its' own legislation, meaning it is making a directive. The copyright directive will then be the second frame for national legislation in the European Union member states, between the new WIPO Treaties and the national laws.

The European Commission published its' draft directive in December 1997. Since that the draft has been discussed both on national level and in the European Union institutions like in the European Parliament and in the Council of Ministers. Many NGO's, non-governmental organizations like libraries' EBLIDA (European Bureau of Library and Documentation Associations) and industrial lobby organizations have actively participated the discussion. Since now, libraries have been the most active, in many cases the only speaker for the paying party. Some consumers and teachers organizations have joined the discussion: a common platform called European Fair Practices in Copyright Campaign (EFPICC) was created in 1998.

The European Parliament voted about the directive on February 10, 1999. In the voting the line of the directive got still more in favor of the rightowners than it was in the original draft – libraries and other user groups have reacted here strongly. The Commission shall now give a new version for the second reading of the European Parliament. There it will include at least some of the changes made by the Parliament in February. Because of the resigning of the Commission this has delayed. The last stage to accept the directive will be the Council of Ministers, which consits of national representants of the EU countries. Still, the Council of Ministers has to agree about the content of the directive with the European Parliament, because copyright belongs to the so-called co-decision matters. This might indicate disagreements in the process.

It might take a long time before this directive will be implemented.

No doubt that in the electronic environment the allowed and non-allowed library use of electronic material must be redefined. The copyright legislation will give the general framework for this.

European libraries see that the draft directive, and especially the version accepted in the European Parliament, is too much in favour of right-owners. It is protecting their rights far beyond the limit which was agreed in the WIPO Copyright Treaty. It would cause unbalance between the right-owners and the users: e.g. only the right-owners rights are harmonized on the European level, but the users rights are left to be regulated on national level. Libraries are saying that the access to information and culture is in danger. According to the draft directive such rejections can made on national level that access to information and culture would be the priviledge of only those who can pay.

In its official position on the draft directive, EBLIDA stated in March 1998:

"A sufficient level of access and affordable use of copyrighted information in a digital environment would be safeguarded by ensuring the following fair practices by statutory provisions that should apply to all types of libraries, not only public libraries, as well as to archival institutions:

• the viewing, browsing, listening to and copying of digital material for private, educational and research purposes in libraries and archival institutions;
• the making of a digital copy for archival and preservation purposes by libraries and archival institutions;
• the copying of a limited number of pages on paper or on diskette of a digital work by libraries and archival institutions for their users;
• the making of a copy on audio, visual or audio-visual recording media by private individuals for personal use and for non-commercial ends."

A series from citations from different directive documents shows the content of the conflict in more details. It also describes how important is the wording of the exeptions in copyright legislation.

In the citation from the EBLIDA position paper on proposed Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society sentences directly from the original draft directive and the respective EBLIDA critics have been included (A). After those quotations you can read as an example the formulation of two articles after the European Parliament voting, EBLIDAs alternatives to those wordings, and one addition suggested by EBLIDA (5.2 (d)) (B):

(A) 'The proposed Directive would unnecessarily restrict all exceptions by its proposed wording:

- "establishments accessible to the public" (Article 5.2 (c)) which includes public and national libraries but which may exclude some academic, school or special libraries;

- "use for the sole purpose of illustration for teaching or scientific research" (Article 5.3 (a)) which excludes other educational purposes and other non-scientific research;

- "for uses for the benefit of visually-impaired or hearing-impaired persons" (Article 5.3(b)) which excludes people with other disabilities like learning or other physical problems.'

The following citation from EBLIDAs position paper describes the consequenses the directive could have, if the wording of exeptions will not be changed:

"…in the absence of a licence, libraries, universities, documentation centres and archives could not:

• display electronic copyrighted material on a screen on-site
• enable on-site users to view, listen and browse electronic copyrighted material for private or educational purposes
• enable on-site users to make a digital copy for private or educational purposes
• provide access to digital material to remote users for private or educational purposes
• make a digital copy of a work for preservation or archival purposes
• send copyrighted material via FTP or by email to another library
• send copyrighted material via FTP or by email to students or staff within an institution "

EBLIDA makes a remark, too, that all these activities are normally performed in libraries on a non-commercial basis and the use can be controlled.

EBLIDA Position paper on proposed Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society: http://www.eblida.org/posharmo.htm

- contains good information about licensing, too

CECUP (Central and Eastern European Copyright User Platform): http://www.eblida.org/cecup/

ECUP (1994-95) ECUP+ (1996-98) and CECUP (1998-99), are copyright projects coordinated by EBLIDA and funded by the European Union DG XIII. Their objectives have been to raise copyright awareness among librarians and Europe-wide library co-operation, to get contact between libraries and rightowners, and to reinforce the position of libraries in discussions about copyright.

ECUP stays for European Copyright User Platform.

CECUP stays for Central and Eastern European Copyright User Platform.