COPYRIGHT, LIBRARIES AND THE EUROPEAN UNION Libraries in EU Conference, Lodz, 24 June 2004 Charles Oppenheim

PROBLEMS Easy to copy m/r data, or convert hard copy into m/r form Copies are high quality/perfect Copies can be easily put on an Intranet or the Web and/or sent to large numbers of people Copying costs little or nothing Copying can be done extremely fast Difficult to police

OWNERS’ RESPONSE Develop technical measures to prevent copyright abuse (and have laws to protect such measures) Technical measures include dongles, encryption software, payment mechanisms using credit cards…. (what Laurence Lessig calls “code”) Lobby for strengthening of copyright law (focus of this talk) Tie users into contracts

1. Copyright / Database Right 2. Contract and Licensing 3. Technological Protection Systems E-Content E-Content Protection: The Triple Lock

WHERE IS THE PRESSURE TO CHANGE THE LAW BEING APPLIED? International - World Trade Organisation Regional - EU National - USA

WHO IS APPLYING THE PRESSURE? Music companies (e.g., against Napster) Software companies Film and video companies And also the publishers

MAIN CHANGES TO THE LAW Length of term from 50 years post mortem to 70 years post mortem Protection for databases Protection for software EU Directive - the focus of this talk

MAJOR FEATURES New civil/criminal offences to by-pass or de-activate copyright management information or to by-pass or de-activate TPS, with the intention of infringing, or concealing infringement New restricted act of “communicating information” (e.g., placing on Intranets, Internet)

EXCEPTIONS Mandatory exception - certain temporary acts of reproduction incidental and part of a technical process; for intermediate or lawful purpose; no independent economic value at all Many optional exceptions – applied inconsistently by the various Member States

OPTIONAL EXCEPTIONS INCLUDE…. Copying for private, non-commercial purposes Reproduction by publicly accessible libraries, educational establishments or museums, or by archives, which are not for commercial advantage Copying broadcasts by hospitals, prisons Illustration for teaching or scientific research For benefit of people with a disability Copying articles on current economic, political or religious topics

MORE…. Criticism or review Administrative, parliamentary, judicial proceedings Political speeches and public lectures Individual members of the public using dedicated terminals on the premises of publicly accessible libraries of works not such to purchase or licensing which they have in their collections

Technological Protection Measures legal protection for technological measures, e.g., ID/password, encryption systems, used to protect copyright, related rights and database right protection against acts designed to circumvent technological measures where a person does so intentionally with the intention to infringe or conceal infringement protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services, where the intention is to enable circumvention of technological measures for the purpose of infringement

TECHNOLOGICAL PROTECTION SYSTEMS Directive provides a remedy where TPS prevents exercise of permitted acts by a lawful user UK implementation of this part of the Directive has been particularly poor

WHY IS THERE CONTROVERSY OVER TECHNICAL MEASURES? Directive requires that people should be able to enjoy exceptions to copyright In practice, difficult to see how an TPS can be intelligent enough to do this; therefore rights-holder should be forced to drop TPS on demand

RIGHTS MANAGEMENT INFORMATION Legal protection for rights management information: –prohibiting removal or alteration of rights management information –acting against persons knowingly involved in distribution, importation for distribution, broadcasting, communication or making available to the public of protected works from which electronic rights-management information has been removed or altered without authority rights management information is: “any information provided by rightholders which identifies the work, the author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.” For example, “All rights reserved. © Charles Oppenheim 2004”.

SUMMING UP Users’ needs are simple – they want information delivered to the desktop wherever they are, even on the move They want user friendly search software and a single entry point for all their searches One ID and password Current awareness and retrospective searches, filtering, choice of output formats Hyperlink, annotate, copy, forward, amend And all of this at no cost!

THIS IS A NIGHTMARE SCENARIO FOR PUBLISHERS And this is why they have lobbied so hard for changes to the law Changes to technology have made things easier for users, harder for publishers Libraries are caught in the middle, and changes in the law have not helped their traditional role of helping the patron

THE EUROPEAN UNION’S ATTITUDE Thriving, vigorous and profitable publishing industry To counter-balance US domination, to ensure relevant information is available to all interested users in the EU, to create employment But by doing the industry’s bidding in changes to the law, the EU has upset the traditional balance between owners and users

IN MY OPINION Changes to the law have now gone far enough Rights owners, users and librarians need to open a dialogue Users should be represented on the boards of Reproduction Rights Organisations, which should see their primary role as facilitating the market rather than policing and charging high rates

Users get realistic, affordable access to e information Traditional exceptions to copyright should be maintained Present state of law is not totally satisfactory

THREE EXAMPLES What if a rights-owner refuses to remove or deactivate a TPS if a user requests it for a bona fide reason? Licences should never be able to take away any exception to copyright (see Belgian, Irish law) Licences should always allow subscribers to retain materials already paid for, even if licence ends

FINALLY The EU has totally failed to harmonise copyright law across member states Lobbying CAN influence – especially EBLIDA So become knowledgeable about copyright and get involved!