Legal issues involved in digitisation Toby Bainton Secretary of SCONUL toby.bainton@sconul.ac.uk

Principal issue: copyright Lawful practices important to cultural institutions ‘Respect for copyright’ important to relations with publishers and authors

Is the material actually ‘in copyright’? Complications: non-text material unpublished material

Fundamental law: The ‘Information Society’ Directive or ‘Copyright’ Directive of 22 May 2001 (Directive 2001/29/EC) Sets out rights for authors and some exceptions to those rights

3 fundamental rights for authors 1 Reproduction right 2 Right of communication to the public [3 Distribution right]

Reproduction right ‘The exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part’

Communication to the public ‘Any communication to the public by wire or wireless means, including making available in such a way that the public may access them from a place and at a time individually chosen by them’

Digitisation therefore needs the permission of the author (or other right-holder) it’s a reproduction accessing it is ‘communication to the public’

Relevant exceptions to the rights (1) specific acts of reproduction by… libraries [etc.], not for commercial advantage

Relevant exceptions to the rights (2) use by communication or making available… for research or private study… by dedicated terminals on the premises…

All laws in Members States must comply with the Directive The rights must be included in the laws of Member States But the exceptions are optional

Denmark: digitisation for preservation already permitted by law

Denmark: ‘commercially interesting’ digital material will be made available by usual publishers

Denmark: ‘extended collective licensing’ to meet the problems of large digitisation projects; law to be changed by summer 2008

France: Exception of 1 August 2006 allows libraries to reproduce a work to preserve it add to allow consultation on site Exception applies only to works in a poor state or in obsolete medium Discussions with government ‘in a poor state’ and ‘on site’

EC i2010 Digital Libraries Where a copy is permitted for preservation purposes, libraries [etc.] should be permitted to make more than one copy, as technically necessary (but no increase in the number accessible to the public)