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The shape of things to come – from the ‘Age of Frustration’ to the ‘Modern State in Control of Life’ International copyright challenges for libraries &

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Presentation on theme: "The shape of things to come – from the ‘Age of Frustration’ to the ‘Modern State in Control of Life’ International copyright challenges for libraries &"— Presentation transcript:

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 1

2 What is a library when 'everywhere is here'? 2

3  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  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? 3

4  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  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 ! 4

5  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  The challenge here is Orphan Works (OWs) 5

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7  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 7

8  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 8

9  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! 9

10  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 1 st March 2012  Next step is EP plenary vote week beg 21 st May 2012.  National consultations on Directive currently in Lithuania, Denmark & Poland 10

11  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. 11

12  “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  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” 12

13  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  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) 13

14  But © system based on territoriality – inappropriate for the Internet  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  MOU needs implementing - task force being set up by signatories to identify suitable countries and projects 14

15  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  Challenge is that ‘e-lending’ is not really lending & now anyone can “a lender be”  Commercial e-rental services competing with library lending? 15

16  Publishers had been moving towards large-scale e- book 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 16

17  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  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’ 17

18  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)  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  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’ 18

19  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 19

20  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 20

21  IFLA and EBLIDA are both drafting policy  EBLIDA will discuss its draft policy at Copenhagen conference in May  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 21

22  National copyright law revision in Europe  UK, France, Ireland, Netherlands & Norway  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 – 1 st consultation on implementation closed 21 st March 22

23  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’. 23

24  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 non- participation by rightowners  Governance should reflect the interests of participants, working to an agreed code of practice.  1 st stage of Richard Hooper’s consultation on DCE closed Feb 2012 24

25  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 25

26  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 26

27  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.  The Government should legislate to ensure that these and other copyright exceptions are protected from override by contract.  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 27

28  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. 28

29  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." 29

30  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 30

31  “Unprecedented opportunity for libraries and archives” created at WIPO  Copyright Committee (SCCR) work programme includes copyright limitations & exceptions for  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 31

32  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 32

33  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  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 33

34  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 34

35  ‘ 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  ‘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  The end of the beginning…. support the campaign & watch this space! 35

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