Library and the implementation of the European Copyright Directive
Comparative approach in selected countries
My paper is based on the French situation and on a small questionnaire sent to the members of the EBLIDA Copyright Group.
In France, we needed such a comparison in order to support our lobbying actions.
A first survey has been conducted in July 2005. We decided to select three exceptions among the 21 exceptions proposed by the directive:
- exception to the reproduction right in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage;
- exception for the purpose of illustration for teaching or scientific research, (…) justified by the non-commercial purpose to be achieved;
- exception for use by communication, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments like public libraries (..) of works not subject to purchase or licensing terms which are contained in their collections;
But we rapidly noticed that a mere analysis of the way those exceptions have been implemented was not sufficient because :
- we didn't present the exceptions that have been already given to libraries before the implementation of the directive
- it didn't give any information about the compensations that could be added afterwards.
Before a short presentation of the situation in various countries, as indicated by the results of the second questionnaire, I'll remind some aspects of the French legal background.
The situation in France
In March 2006, three countries have not yet implemented the European Copyright Directive. France is one of them.
The French " droit d'auteur"
The aim of the French droit d'auteur is first to protect the author as a natural person. In the XIXe century was established in France :
- a strong concept of moral rights asserted by an author on his work,
- the legal definition of copyright as a right attached to a person,
- the protection of the author against publishers.
If copyright is based on a balance, we don't find in France some rights specifically attached to users. We don't have, for instance, an exception for libraries or educational establishments.
Users rights exist only in an indirect way thanks to a list of exceptions to the exclusive rights and the limited term of the copyright.
But the field of the limits is more and more restricted. Therefore it was necessary to act in order to restore the balance.
The French Copyright Bill
In France, a Draft Law has been prepared by a Commission created by the Ministry of Culture.
It was adopted by the government the 12th November 2003. But it was only examined by the "Assemblée nationale" just before Christmas 2005.
After very hot discussions, the Bill has been adopted the 21st March 2006 and transferred to the Senate for a first and last examintion.
We can remind that the European directive intended to harmonize the various European laws. This would involve that each State would accept some compromise and would change some preconceived ideas.
But if the European Copyright Directive proposed 21 exceptions, in France only two new exceptions would be added to the existing exceptions.
One of them is compulsory, the exception that applies to incidental reproductions that have no independent economic signification.
The second exception concerns people with disability. But on that point the French Bill implements the text of the Directive on a lightened way, with very strict limits as regards the nature of the disability and the nature of the establishment that would be allowed to make those reproductions.
On the other hand, and it's a more positive aspect, some exceptions have been provided for three establishments in charge of the legal deposit. They could make the reproductions linked to their mission of preservation. It is also written that the researchers - but only those that are duly accredited - could consult the works on site. But the three establishments are located in Paris. On this point too, the exceptions should have been widened.
On the other hand, the exception for the illustration of teaching and research has not been retained.
But in the Bill adopted in March 2006, there are two new exceptions :
- exception 5.2c (exception to the reproduction right for specific acts of reproduction made by publicly accessible libraries, museums, or archives) in which educational establishments are excluded;
- an exception for journalists, in fact a mix between 5.3 h ("use of works, such as works of architecture or sculpture, made to be located permanently in public places") and 5.3.c ("reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics (…)").
We can also notice that the exception for uses for the benefit of people with a disability is given also to libraries, information centers and archives. It's the first time that libraries are mentioned in the French Intellectual Property Code.
Now we hope to get :
- that these exceptions will be maintained by the Senate ;
- the exception 5.3.n for a communication on site ;
- the possibility to circumvent technical measures of protection in order to benefit from the exceptions.
Protection of technological measures
As regards the protection of the technological measures, an other cause for concern, in the French Bill they are protected in the same way as in the directive.
If it is written that the exceptions couldn't prevent the use of allowed exceptions, this possibility has only been managed for two exceptions: private copy and reproduction for the benefit of people with disability.
As regards the private copy the limits are more and more restrictive. It was even said, during the discussions, that they could be equal to …. zero.
In case of conflict, it is planned that arbitrators would interpose. This is a procedure that could be unwieldy and complicated.
We will add that in France, as in many other countries, private copy is allowed when there is a fair compensation, applied to blank supports. Thus if technical protections are added to this system it could involve a double payment.
Besides, technical measures of protections ask a question of interoperability that librarians could face to.
A mere conversion of a protected file downloaded from a specific website could be termed as an offense for counterfeit. And the dissemination of the source code that allows such a conversion could also be forbidden.
It is true that the French Bill adopted in March 2006 puts the stress on the interoperability. It's a positive aspect but its implementation could be difficult. How to conciliate the necessity to give the source codes and the necessary protection of DRM?
The three-step-test must be interpreted not only as a test that one should use in order to define the exceptions to the exclusive rights but the judge himself could use it during a case.
Thus, in the framework of a trial about private copy, the French Supreme Court, very recently, the 28th February 2006, reminded that private copy is not a user right but a mere exception. To be admitted this exception should respect the three-step-test that appears in the Bern Convention. In this trial about the copy of a DVD legally bought by a consumer, in his decision the judge said that the copy of a movie on a digital support prejudices " a kind of exploitation essential for this work, essential for the paying off of the production costs and that the payment of compensation for private copy on blank supports don't compensate the consecutive losses ". Private copy is a concept that has disappeared.
A clear preference for contracts
In France, the Ministry of Culture encourages the resort to contracts. It stands out from all the press releases and interviews. A new agreement, in February 2006, should cover some uses for the illustration of teaching, the remuneration of which has been evaluated according to the presumed uses. But the uses given are very restricted.
But, as regards contracts, librarians fear that they will not be enough strong to negotiate. If library consortia have been created in France too, satisfactory results are hard to obtain and they must be renegotiated at regular intervals. Journals remain expensive, especially for the small libraries that should however still be able to propose an access to the information at their users.
By another way, a study realized for the Ministry of Culture gives some perspectives when it proposes that works that are no more commercially available would belong to a belt called grey and could be available on payment of a fair compensation and with the agreement of the publishers. It is also proposed to widen the number of the libraries that would be allowed to communicate the works to the public as allowed to the three establishments in charge of the legal deposit, including also the main library of each French region.
If these proposals are more interesting, we take note that they are also based on contracts and that the limits of the " grey belt" described in this report are blurred. Besides it's only a report and not law.
A different choice in other European countries
It's a little bit difficult to present in a comprehensive way the situation of the various European countries. It implies to know the set of laws of every country and not only the law that implements the directive.
As it was underlined, if there was a will to harmonize the various copyright laws in Europe, the European Commission had to give up. Finally what was presented is a long list of options, each of them corresponding to the legal tradition of each Member State.
In order to present some aspects in several countries I will first use an analysis I had done for a previous communication in which I selected two countries - Germany and Belgium - because these countries have a legal system that is very close to the French one.
Germany and Belgium
A Belgian Law has implemented the directive in May 2005. It presents some "extensions" much more important than the French Bill, though this country has the copyright system that is - without any doubt - the closest to the French system.
What strikes when we examine the Belgian revised copyright law, it is the longer list of exceptions. In a Law of 1994, the use for the purpose of teaching and scientific research has been already mentioned. This use has been widened in the revised Law but adds some provisions with one or two parts of the three-step test and generally corresponds to a legal license.
If quotation was allowed in words very close to the French Law, it is now widened because we don't find any more the condition of shortness but only a condition of proportionality to the aims in view.
We also noticed that libraries, educational establishments, museums and archives are allowed to copy works in order to preserve them, as the directive allows it. Besides, the communication on site is allowed also for private use and not only to researchers as it would be in France.
Germany is an interesting case because this country uses the Human Rights to give some rights to the users.
There was already an exception for the use of teaching and research in the German Law. As regards teaching, the system is a little bit complicated but allows some uses in primary and secondary schools.
The exception for the use of scientific research is more interesting. We especially can find the " big quotation" that, in certain cases, allows to copy the whole work.
To give some explanations about the German situation, I remind you that the quotation rights has been admitted by the Constitutional Court.
Germany has also an interesting specificity because the exceptions are justified by the social function of the copyright. As soon as the work is communicated to the public, the link between the author and the work progressively dissociates and becomes an element of the collective heritage. There is a strong link between the copyright and the fundamental rights, and this should have attracted the attention of France.
In regard to Germany I must also recall the case that opposes at the moment libraries that provide an on-line delivery service of articles called SUBITO and several publishers. It seems that they try to get the substitution of a service given in return of a mere compensation by contracts duly negotiated.
Nine countries are presented on the table. First comment: some exceptions are given to the libraries but there are many differences in the existing situations.
To-day one country seems radically opposed to every exception: France. Nevertheless, if the Bill would be adopted, new exceptions would be given to French libraries too.
Some comments now about the situation related to 3 selected exceptions:
Specific acts of reproduction made by publicly accessible libraries
In this case, two kinds of reproduction have been proposed: preservation and copies that are made for the public in libraries. (I fear that the question was not correctly asked ; we don't have an answer for both acts for all the countries).
Preservation: it's an exception that is willingly given. 4 countries out of 9 indicate this possibility (Belgium, Poland, Spain and United-Kingdom) and France should get it soon
Copies in library.
France and Germany present a similar situation. No specific exception but a remuneration to be paid to collecting societies.
In the United-Kingdom, copies are allowed for private uses and when made by non-profit-making establishments.
Denmark has this exception but with precise conditions;
Austria makes the difference between analog and digital copies, the second being allowed only when limited to non-commercial uses.
In Poland, rights are required only when copies are sold.
In Italy, there is a difference between the works that are on the market and those that are out of print.
Illustration for teaching and research
Now it's France and Belgium that present a similar situation. Collective agreements for limited uses with a financial compensation.
United-Kingdom only allows a private use.
Austria, Poland, Germany and Italy have accepted such an exception.
And if Denmark accepts an exception for research activities but not for teaching, Spain accepts an exception fro teaching but not for research.
Communication on site
As in France, United-Kingdom didn't retain this exception.
Austria and Germany will decide later on.
Denmark, Belgium, Poland, Italy and Spain provide for this exception but with some restrictions : out of print works for some, research for others.
Library. A mission to maintain
It is the access to information, the knowledge transmission but also the preservation of cultural heritage that we defend.
Why a stress on the exceptions? Because they are tools essential for the balance between the authors and the users interests. They represent the introduction in the copyright of the main freedoms and the main interest of the society. The exceptions for the use of teaching and research allow a fair access to information and are essential to nurture education and stimulate innovation.
It's important to read the uses conditions not only in an economical direct view but to include cultural concerns and the public interest. We fight for the voice of the users be recognized and for all the access to the information not be restrained for financial reasons, for the solutions that will be proposed whatever they are - exemptions, legal license, compulsory resort to collecting societies, be reasonable and allow us to fulfill the mission given to the library and the information centers.
In the same way we militate also in favour of the Open access. We have several irons on the fire. Copyright is flexible and the answers can be very different.
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