Seminarium EBLIDA, 30 marca 2006, Biblioteka Uniwersytecka w Warszawie
- Spis treści -
Harald von Hielmcrone
Head of Research and Special Collections, State and University Library of Aarhus.
The Development of Copyright within the European Union
The efforts of the European Union to harmonise copyright are caused by two factors
These efforts have resulted in several copyright directives. For libraries the most important directives are the directives on rental- and lending rights, on harmonising the term of protec-tion, and on legal protection of databases. These directives strengthen author's rights. In the spring of 2001 a new important copyright directive has been adopted. This directive, on the harmonisation of certain aspects of copyright and related rights in the Information Society, attempted to set new standards for author's rights to control the use of their works in respect to reproductions, communication to the public by electronic means, and distribution of hard copies.
Heavy lobbying by the library community had the effect of saving present user and library privileges. However, the list of exceptions to author's rights is now a closed list. No new ex-ceptions are allowed for works on digital media. Therefore, in the future new developments on users access to information in digital formats have to be dealt with within the framework of licensing agreements. The Commission now contemplates whether there is a need to regu-late the activities of the collecting societies.
The changes in copyright legislation reflect the fact, that the means for mass production of literary and artistic works are now digital.
Originally different kinds of copyrighted works were made available to the public on different media. Literary works were typically printed on paper and sold as books or journals, music was recorded on gramophone discs, movie films were shown in cinemas, and radio- and tele-vision programmes were broadcasted.
Books, journals and gramophone discs are published, i.e. sold or lent to the end user, whereas copies of movie films and radio and televison programmes used to be unavailable to the end user. The copying of printed material and music recordings was time consuming and difficult and always implied a loss in quality.
The copyright protection differed according to the different needs for protection.
With the technological convergence of the means for mass production all these different kind of works now have the same technological basis. They may be (and are to an increasing ex-tent) distributed in the same manner, e.g. via Internet, and the end user may actually acquire a copy of the work. This copy may be re-copied indefinitely with practically no loss of quality.
As a result of this the copyright protection of different kinds of works is harmonised, and the types of works with the greatest need for protection, the products of the entertainment indus-try, sets the standard.
The Internal Market
The other urge to harmonise copyright is the creation of the Internal Market within the Euro-pean Union.
The European Union started originally as an European Economic Community. The objective was to establish a free internal market for capital, goods and labour within the member states.
One aim of the EEC was to stimulate the European information industries in an attempt to counter US dominance. A strong copyright protection was seen as a necessary means to achieve this goal. Cultural policy was originally excluded from the EEC- treaties, so copy-right was seen only from an economic point of view. The objects of copyright, the literary and artistic works, the "information products", were regarded as tradable commodities.
This starting point has deeply influenced the development of copyright thinking within the Community, and it has not significantly changed since. The reason for this is that the member states do not share the same cultural and democratic values concerning citizens right to access information. They share some values concerning freedom of speech, but only Sweden has a strong and long standing legal tradition of protecting citizens rights to information.
Democratic countries provide legal protection of citizens freedom of expression, but when it comes to the question of access to information, it is more a question of lofty ideals than real politics. The conception of freedom of information is often expressed in the official informa-tion policy in relation to libraries, and these ideals certainly form an important part of the pro-fessional ethics of librarians. But this does not mean that outside the library community there are shared standards specifying citizens right to information.
This has serious implications on the development of copyright in the digital age. When there are no shared cultural or democratic values concerning citizens' right to be informed, there is nothing to counterbalance the interests of authors.
The only quasi legal basis to support citizens rights to information is the Declaration on Hu-man Rights (art. 19):
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
But this is not a strong basis when it comes to fighting the economic interests of the enter-tainment and information industries.
After these introductory remarks I will proceed to describe the copyright directives that di-rectly relate to the operations of libraries and the question of freedom of information. Of spe-cial interest to libraries are four directives.
Initially, however, a few words on the decision making bodies within the European Union:
On both national level and European level the library associations try to influence the political process. The views of the European libraries are put forward by the libraries' lobby organisation, EBLIDA, European Bureau of Library, Information and Documentation Associations. (http://www.eblida.org/). The Nordic library organizations are deeply involved in EBLIDA.
The Directive on Rental- and Lending Right
The Lending Directive specifies the terms for public lending. Traditionally in copyright the so-called "distribution right" is "exhausted" when the book is put for sale. The reason, as mentioned above, is obvious: When the books are sold the author can in fact no longer exert control over them.
The novelty of the Lending Directive is Article 1(4) stating that the author's right to control distribution in the form of rental or lending of copies of their works, is not exhausted when the work is sold or otherwise distributed.
This might have been the end of public libraries, if article 1(4) were not counterbalanced by article 5(1) stating, that member states may restrict author's rights to control public lending, provided authors are remunerated. Member states are, however, free to set up different remu-neration schemes, and they might exempt certain types of libraries from the obligation to re-munerate. Usually this exemption clause it applied to university and research libraries.
So the result is that within the European Union authors have a right to be remunerated for the public lending of their books. How this right may be exerted in practice is another matter.
The Directive harmonising the term of protection
Within the Community member states had different rules relating to the terms of protection. These obviously needed to be harmonised. The main rule now is that literary and artistic works are protected during the lifetime and 70 years after the death of the author.
Some authors associations protested against the extension of the period of protection, arguing that this would favour descendants of authors rather than the living ones. The implicit but realistic premise is that there is in every country a lump sum for remuneration purposes to be divided among the rightholders, and the more they are to share this sum, the less everybody gets.
The Directive on Legal Protection of Databases
Databases are important products of the information industry. Often databases contain unpro-tected information, collected and sorted according to certain principles. Traditionally data-bases like directories, bibliographies &c. were published in the form of printed books. There-fore it was of no importance if information contained in the book was unprotected and avail-able to the public via other sources. If you wanted to take advantage of how the information was collected and presented in the directory, you had to buy it.
If database production is to be stimulated, database producers need to have their investments protected. To achieve this the European Commission was inspired by Nordic copyright legis-lation. Since 1961 databases have been protected in the Nordic countries, and these rules were more or less copied in the Directive. What is protected is the compilation and sorting of the data, not the data per se. The duration of protection of the database is 15 years after the pro-duction or a substantial update.
This Directive stirred a lot of controversy within the European library community, and when the European Commission tried to have it incorporated in the WIPO Copyright Treaty of De-cember 1996, the library associations became active opponents. The result at the WIPO con-ference was that the proposal for protection of databases was postponed. It has on several oc-casions been discussed at the meetings of the WIPO Standing Committee, but there seems to be no serious interest outside Europe to adopt a treaty on this issue.
The main argument against the Directive was that it creates a new protection of otherwise unprotected data. This argument rests on a misunderstanding. It is not the data that are pro-tected, but the collection of the data. If the data are publicly available everybody is free to collect and compile them in their own database. The Database Directive does not prevent that.
The main problem is that databases
It may be difficult to decide under what heading a database is protected, copyright or sui generis. This problem is aggravated by the fact that the level of protection and the permitted exceptions differ in the two cases.
Another problem may arise if the database producer has an exclusive right to collect and dis-tribute the data. This may happen when the institution or firm, who generates the data, gives or sells them to one database producer only.
In the first draft of the Directive there was an article specifying that if a database producer would unduly exploit a monopoly situation compulsory licensing might be enforced. This was later deleted, perhaps because there are other rules to secure free competition and cope with firms who abuse a dominant position.
The Directive contains one novelty of great interest to libraries: Article 15 specifies, that contractual agreements which extend the database producers rights beyond the rights granted in the Directive are null and void.
A rule like this ought to be standard in all copyright law. User privileges granted by law should be minimum standards and not to be overruled by contracts. This might be the best weapon against information vendors trying to abuse a dominant position
The directive on the harmonisation of certain aspects of copyright and related rights in the Information Society
Since December 1997 the Proposal for a Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society has been on the political agenda. It was finally adopted in May 2001.
With this directive, the European Commission attempted to harmonise author's rights to con-trol
The Commission also tried to have the main elements of this directive included in the WIPO Copyright Treaty at the Diplomatic conference in December 1996.
The rights specified for authors of intellectual and artistic works do normally also apply to related rights, i.e. the rights of performers, producers of phonograms and films and broadcast-ing organizations. But in order not to complicate matters I will disregard related rights here, as they are usually of no special importance to libraries.
Reproduction rights Reproduction rights are dealt with in Article 2 of the draft Directive and the related excep-tions in Articles 5(1) and 5(2). Article 2 states that:
The European Commission tried to have this article incorporated into the WIPO Copyright Treaty. However, telecommunications companies and library associations lobbied heavily against this. The telecommunications companies claimed that this would mean that cache cop-ies would be prohibited and the whole functionality of the Internet would thereby be severely impaired. They also feared incurring liabilities if network traffic passed through a country which had no exceptions for cache copies. The library lobby argued that prohibiting tempo-rary reproduction would prevent any browsing or viewing of protected material on the Inter-net.
The proposal was eventually rejected at the WIPO Conference. It has now re-emerged in this Directive. However, the obligatory exception as specified in Article 5(1) seems to deal with this problem. Article 5(1) makes an exception for:
This exception, however, is the only obligatory exception to the author's right to authorise any kind of reproduction. Other exceptions to the reproduction right are optional, and whether they are implemented is to be decided at national level.
One obvious consequence of this is that copyright laws will not be harmonised to any great extent within the European Union. The library lobby have argued that the optional exceptions should be obligatory minimum exceptions, allowing member states to extend user privileges even further if they wish. This view has not been accepted, neither by the Council nor the European Parliament.
The optional exceptions to the reproduction right have changed quite substantially since the first version of the proposal. For libraries, the most important limitations to the author's ex-clusive right to control reproduction are the following from Article 5(2):
Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
Comments to 5(2)(a): Sheet music appeared for the first time in the amended proposal prepared by the Commission in spring 1999. The sudden appearance of sheet music in this article demonstrates the powerful influence of the music industry. It will present libraries, researchers and musicians with a problem, albeit a minor one, provided that the national im-plementation of Article 5(2)(c) will allow libraries to make safety reproductions of rare items, for example, for lending purposes.
Comments to 5(2)(b): Before the second reading by the Parliament the wording of this article was: "in respect of reproductions on any medium made for the private use of a natural person and for non-commercial ends, on condition that the rightholders receive fair compensation ..."
Note the difference between the two versions:
The normal interpretation of this change would be that patrons should have to do the copying themselves. However, the Commission has made it clear that - the change of wording not-withstanding - this was not intended. Art. 5.2.b. does not preclude library staff in making digital copies for the private use of patrons.
However, digital copies made by the library may not be used by the library in Inter Library Loan. e.g. by being sent by e-mail. The reason for this we find in Recital 40.
In consequence libraries may only send paper copies via surface mail or fax machines until the problem may be solved by some form of collective agreement with the rights owners. Not all member states allow for collective licensing. In that case this recital may present libraries with a serious problem indeed.
Communication to the public
Article 3 states that:
A paragraph of similar content was proposed and accepted into the WIPO Copyright Treaty. The consequence is that all signatories of the WIPO Copyright Treaty are now obliged to in-corporate this article into their national law upon ratifying the Treaty.
The consequences of this article should be seen in conjunction with the related exceptions as stated in Article 5(3):
This list of exceptions demonstrates that, in reality, the Communication to the Public Right is not harmonised at all, giving member states the option to maintain their existing exceptions.
Apart from the exceptions not being obligatory i.e. being optional, libraries should welcome this development. Instead of the very restrictive first version of the proposal, we have ended up with a text which is decisively more liberal. This may even result in more liberal amend-ments to national legislation.
Special attention should be given to Article 5(3)(n). The combination of Articles 5(2)(c) and 5(3)(n) will enable libraries to digitise their collections and provide access to these collections on the library premises. A similar exception in Danish copyright law has proved very valu-able, particularly for research libraries.
As a whole, the exceptions seem to cover most library needs. A library may provide access to a work, provided the library actually owns a copy of the work in question, unless the work is subject to purchase or licensing terms which prohibit access. But who would buy a work without being allowed to give access? This is hardly conceivable.
However, many libraries are making the move from "collections" to "connections". Instead of acquiring an electronic copy of a work and physically installing the work on the library server, the library simply subscribes to a service accessible via a gateway with an Internet address. This has obvious advantages, but it does remove access control from the hands of the library and places libraries and their patrons at the mercy of suppliers and authors.
It is reasonable to expect that if there is a commercial interest in a work it will remain avail-able. But use of a work may become so rare, that it no longer covers its costs. Many libraries try to overcome this issue by obliging suppliers to guarantee "eternal access". Such guarantees are worthless, however. In the first place, the supplier may not be able to fulfil these obliga-tions, for example, if the supplier goes out of business. Secondly, the author may enforce the communication to the public right and withdraw the work. This may happen, for example, when an author regards an earlier work as a youthful aberration whose contents or quality do not meet the author's present standards. If the work is published in print form, there is nothing the author can do. But if it is published electronically in a database, the work may simply be removed. The consequences for historical research are obvious.
To prevent such a scenario, the communication to the public right for author's must be bal-anced by regulations for legal deposit and public access on the library premises to deposited works. The first issue is taken care of by Article 9 and the second issue by Article 5(3)(n). It only remains for member states to implement legal deposit regulations for works published in databases, an issue of the utmost importance.
Finally it should be noted, that all exceptions have to pass the three step test, mentioned in art. 5 (4)
The wording of this article conforms with Article 10(2) of the Berne Convention, and so is in line with international copyright law. However, whereas the Berne Convention is open to ex-ceptions provided they pass this test, the list of exceptions of the Directive is closed.
The probable consequences of this is that the development of copyright in the digital age may come to a halt, and be replaced by licensing contracts.
This development presents libraries and their patrons with two major practical problems.
To solve the practical problems of managing copyright there must be developed
Otherwise libraries may not be able to utilise the new technology and rightsowners are not likely to profit from their copyright..
This may be the most important long term consequence of the Directive.
Throughout the negotiations, the question of technical protection measures, e.g. encryption, was an undecided issue. By introducing encryption, rightsowners could prevent users from taking advantage of lawful exceptions as specified in Article 5.
Article 6.4 deals with this issue. The text reads:
Note the different use of the words "shall" and "may". This means that member states may force rightsowners to allow digital reproduction of works in digital format, as covered by Ar-ticle 5(2)(b), but they don't have to.
This highlights the general thrust of the Directive, which leaves it to libraries and other inter-ested parties to argue their case at national level. Libraries should not regret this, after all, it is easier to influence national politicians.
It should also be noted, however, that license agreements may override the exceptions when it comes to on demand services:
That contracts override the exceptions is quite normal in copyright law. Even if we may regret this it is difficult to complain. The crucial issue here is that even click-on contracts are recognised as being "agreed contractual terms". The libraries fought this, claiming that the provider and the user are not on equal terms in a "click-on situation" - but without success.
The rules concerning distribution rights are different in the EU member states, and they must be harmonised. Otherwise there can be no Internal Market for copyrighted works.
Some member states have "national consumption" and others have "universal consumption" of distribution rights.
Small-language countries like the Nordic ones, have traditionally been in favour of universal consumption and large-language countries have traditionally favoured national consumption. The reason why is obvious if one thinks in terms of publishers interests. English, French or Spanish publishers clearly have an interest in dividing up the world market into separate countries. This gives them the opportunity of setting the price of their products according to the populations ability and willingness to pay. If this kind of division of the world market shall be possible national or regional consumption of distribution rights is necessary in order to prevent parallel import from countries where the price is lower.
Publishers from small-language countries like Denmark do not care about the world-market, as the only market for Danish books is Denmark. On the other hand, having to rely heavily on foreign literature for research and higher education, small-language countries have a clear interest in being able to import books from wherever they are best and cheapest.
The European Commission opted for regional consumption. This means that if a book is pub-lished in any member state of the Community the distribution rights will be exhausted for the whole Community, but not for other countries. This is quite logical as national consumption within the Internal Market of the Community is a contradiction in terms. The European Commission, however, could also have chosen universal or international consumption, and thereby furthered free trade of information products, books and other copyrighted works. As it is the directive gives publishers a very strong position, and prevents consumers from neu-tralising unreasonable prices by parallel import. The interests of the consumers are disre-garded.
One should note that strictly speaking the wording of the article does not prevent anybody from importing copyrighted works. Booksellers may import books from countries outside the European Union, but they are not allowed to sell them, without the author's consent.
There are within the European Union many ethnic minorities who will be affected by this. Books and other culture products from their original homelands are seldom also published in EU member states, but must be imported directly from the country of origin. In these countries publishing is not organised in a manner that makes it possible to acquire the author's consent. Booksellers, music- and video shops may therefore have difficulties in legally supplying these type of customers. This seems hardly to be in keeping with the Declaration on Human Rights.
In sum: Author's rights to control distribution will de facto if not de jure hinder free trade with copyrighted works. As a result ethnic minorities may be discriminated against.
During the last decade, the European Union has launched several directives in an attempt to deal with copyright issues raised by the transition to digital technology and the creation of the internal market. This has resulted a considerable strengthening of author's rights with respect to:
In the political process the library lobby has concentrated its efforts on securing reasonable exceptions to the reproduction and communication to the public right with quite successful results.
The decisive factor, however, was that member states were not, in the final analysis, willing to give up exceptions contained in their national legislation. This is hardly surprising. Excep-tions to the exclusive right of authors do not usually come out of the blue. Instead, they are the result a long development process, of many years political bargaining and the careful bal-ancing of interests. No government can be expected to easily give up these national positions.
One can conclude that, except for distribution rights, the European Commission did not suc-ceed in harmonising the present laws on copyright. The Member States are allowed to keep their present exceptions.
The harmonising effect will be seen in the future, as no new exceptions are allowed. New uses and technical developments have to be dealt with within the framework of licensing contracts.
There will be a need for
Otherwise neither libraries nor rightsowners are likely to profit from the new technology. This may be the most important long term consequence of the directive.
 Council Directive 92/100/EEC of November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. (Official Journal L 346, 27/221992 p. 0061 - 0066).
 Council Directive 93/98/EEC of 29 October harmonizing the term of protection of copy-right and certain related rights. (Official Journal L290, 24/11/1993 p. 0009 - 0013).
 Directive 96/9/EC of the European parliament and of the Council of 11 March 1996 on the legal protection of databases (Official Journal L 077, 27/03/1996 p. 0020 - 0028).
 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (Official Journal L 167 , 22/06/2001 P. 0010 - 0019).
 Amended proposal for a Directive on copyright and related rights in the Information Society. 97/0359/ COD (21 May 1999).
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(C) 2006 EBIB
|The Development of Copyright within the European Union / Harald von Hielmcrone // W:Seminarium EBLIDA. Warszawa, 30 marca 2006 roku. - [Warszawa] : Stowarzyszenie Bibliotekarzy Polskich, K[omisja] W[ydawnictw] E[lektronicznych], Redakcja "Elektronicznej Biblioteki", 2006. - (EBIB Materiały konferencyjne nr 13). - ISBN 83-921757-4-3. - Tryb dostępu : http://www.ebib.info/publikacje/matkonf/eblida/harald.php|