Why should libraries care?
The Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market is a once-in-a-decade reform that will have a strong impact on the functioning of libraries and cultural heritage institutions by setting out rules for exceptions limitations to copyright.
Copyright exceptions and limitations “play an essential role in enabling the delivery of library services to the public and in achieving the copyright system’s goals of encouraging creativity and learning” (WHITE, Benjamin, Guaranteeing Access to Knowledge: The Role of Libraries, in WIPO Magazine, 4/2012, see here). They are essential for core library activities such as preservation, lending, or making copies of works.
European Directives on Copyright have tended to focus more on harmonising protections offered to rightholders than on the rights given to users of works. As such, the choice of whether to apply most exceptions and limitations to copyright is left to the Member-States. The result is an uneven patchwork across the EU, which not only disadvantages users in countries with narrower exceptions and limitations, but also makes cross-border cooperation complicated.
With a progressive reform, libraries across Europe would benefit from a more harmonized set of exceptions and limitations allowing them to better carry out their work in an increasingly cross-border and digital environment. However, and in view of the latest developments, this reform could also become a missed opportunity that would set Europe and its libraries back by preventing the free circulation of knowledge.
Our position in brief
Article 3 – Text and Data Mining
We are concerned that in focusing on an exception on the mining of scholarly journals by research institutions, the Commission’s proposal accidentally makes all other mining activities – for example by library users, journalists, and other citizens, of other content, notably the open Internet – illegal, unless there is some way of signing a licence. This is unfeasible, in particular in the case of the Internet. The easier, pro-market solution, would be to provide a simple exception, and then allow that the potential value to be ‘extracted’ through mining be factored into the contracts rightholders sign with users to access content legally. Such an exception would be compatible with open markets.
Article 4 – Illustration for Teaching
We share the Commission’s goal of making things clearer for teachers either using digital tools in the classroom, or teaching remotely. However the current proposals will mean different rules for digital and non-digital uses, and do not reflect the priority given to informal and life-long learning in the Education and Training 2020 Strategy. By extending this provision to all uses (rather than discriminating between them), and allowing the 85% of libraries in Europe who are already offering skills training to enjoy their benefits, it will be possible to expand opportunities for learning across the continent. We also need to be careful about allowing licences to come before exceptions. When uses of work are fair (for example, taking multiple copies of a whole textbook would not count as such), or when licensing options are inadequate, this should not be allowed to happen.
Article 5 – Public Interest Copying, Dedicated Terminals and Document Supply
The Commission’s move to make it clear that preservation copying should fall under an exception is good news for libraries and cultural heritage institutions, and opens the way to much more efficient and easier ways of safeguarding Europe’s cultural heritage. The European Parliament should extend this exception to other necessary, non-commercial copying, for example for cataloguing or insurance purposes.
However, the main reason for preserving works is to be able to give access to them, now and in the future. In line with reasonable user expectations, and without destabilising markets, libraries and cultural heritage institutions should enjoy wider possibilities. These include, notably, sharing individual articles or chapters for personal or research purposes across borders, upon request, or to let people access their digital collections on the premises using their own devices, not just ‘dedicated terminals’. In order to ensure that these rules are effective, we need to ensure that these activities cannot be prevented by the terms of contracts or technological protection. measures.
Articles 7-9 – Out of Commerce Works
The Commission’s proposals put too much faith in the ability of Europe’s current collective management infrastructure to deliver representative and effective extended collective licensing of uses of out-of-commerce works. Unless there is a ‘fall-back’ possibility – an exception allowing libraries and cultural heritage institutions to make out-of-commerce digitised works available online – much of Europe’s heritage, especially in smaller countries, will continue to be locked away, benefitting no-one. The JURI draft report authored by Ms Comodini addresses these concerns and we would hope that this can serve as a basis for the final report.
Article 11 – Ancillary Rights
We share the general concern about the situation of news media today, and the need for properly resourced, quality journalism. Libraries are active in promoting media and information literacy, drawing on their own collections. We are worried that the current proposals will make it more difficult (and costly) for libraries to do this work. They may also make it harder for library users to quote other works, create non-commercial guides to information resources, and impose costs retroactively on libraries with press collections. If, as the ITRE committee has suggested, the right is extended to academic publishers (who face no difficulty in enforcing their rights, given that authors usually sign these away), the harm could be much more extensive.
Article 13 – Content Filtering
As with Article 11, we are aware that there is a much bigger debate taking place around the creation and sharing of value over the short and longer term between creators, publishers and distributors. Libraries and research institutions are concerned that the current proposals will inadvertently also apply to repositories of Open Access content, managed by universities, libraries and other research institutions. Such repositories play a key role in facilitating the sharing of knowledge (the underlying rationale for open access in the first place). Under the proposals, these repositories would either need to implement expensive filtering technologies (which may not even be well suited to spotting permitted uses of works), or face legal liability each time a researcher uploads the wrong version of their paper. Repositories are not usually equipped to take on these burdens are likely to close.
New suggested article – eLending
The judgement of the Court of Justice of the European Union in November has seen little if any progress towards effective solutions to allow libraries to lend eBooks. Moreover, the decision does not clarify if libraries are allowed to override contract terms or circumvent technological protection measures which prevent them from lending legally acquired content, in line with the one-copy-one-user model established by the Court. European legislation in this area would reduce legal uncertainty and allow libraries both to respond to demand, and to bring new readers in touch with new writers.
Article 3 – Text and Data Mining [PDF]
Article 4 – Illustration for Teaching [PDF]PDF]
For article 11 and 13, please see the Open Letter EBLIDA, IFLA and LIBER signed together with an International Coalition of European academic, library, education, research and digital rights communities.
An updated list of signatories is available here.
We still have a chance to let Parliamentarians know about the copyright reform that will better serve European libraries and their 100M+ users.
Initially the vote in the JURI Committee was due 10 October, and is now postponed to a later date probably in November.
However, we encourage our members to arrange meetings with Members of the European Parliament who will be back to their home countries from the 18 to the 22 September (a.k.a. Green Week). The next MEP Green Week will be from 30 October to 3 November.
This provides a very opportunity to meet with them (for example in a library in their constituency), and exchange views on how copyright can work better for libraries. Many still lack an understanding of what libraries are doing, how they contribute to education, innovation and stronger communities, and how copyright can help. They are more likely to listen to a local voice.
We would like to provide you with some useful documents:
- A draft email that you can send to your representatives at their constituency offices to arrange a meeting (available here)
- An excel file with a list of all JURI members that you can sort by country (available here)
- A series of papers prepared by EBLIDA, IFLA, Europeana, Public Libraries 2020 and LIBER in which we express our position on several articles of the Directive Proposal (see our position in detail above).
- We also suggest you to call your MEP in using the automatic telephone directory of Mozilla here.
Other opportunities will come in the near future to contact your MEPs.
For further information, please contact:
14th September 2016 - EU Commission Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market
Since then, 5 Committees in the European Parliament give opinion on this dossier:
- Legal affairs (JURI) Committee, lead Committee - rapporteur Mr Axel Voss (EPP, Germany)
- Committee vote expected 10 October postponed to a later date probably in November 2017
- Internal Market and Consumer Protection (IMCO) Committee, associate Committee - rapporteur Ms Catherine Stihler (S&D, United Kingdom)
- Committee vote - 8 June 2017 - see IMCO opinion.
- Culture and Education (CULT) Committee - rapporteur Mr Marc Joulaud (EPP, France)
- Committee vote - 11 July 2017 - see CULT opinion
- Industry, Research and Energy (ITRE) Committee - rapporteur Mr Zdzisław Krasnodębski
- Committee vote - 12 July 2017 (text amended 01 August) - see ITRE opinion
- Civil Liberties, Justice and Home Affairs (LIBE) Committee - rapporteur Mr Michał Boni
- Committee vote expected 25 September 2017 05 October 2017 (probably during an extraordinary Committee session)
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