New copyright challenges for the users digital works Dragutin Nemec Library of the Faculty of law in Zagreb LIBRARIES IN THE DIGITAL AGE (LIDA) 2007

Some issues Copyright as we know it Copyright as we know it Have the standards changed in the digital environment? Have the standards changed in the digital environment? Legalising technical locks Legalising technical locks Databases and licensing Databases and licensing Open access to...what? Open access to...what? What’s the future for users and libraries? What’s the future for users and libraries?

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Digital IS different EU leaves little doubt : EU leaves little doubt :... differences between digital and analogue private copying and a distinction should be made differences between digital and analogue private copying and a distinction should be made.... IFLA warns about terms and conditions of the licenses IFLA warns about terms and conditions of the licenses

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Copyright as we know it – general overview civil law system of «author’s right”, droit d'auteur vs. “copyright” - moral rights civil law system of «author’s right”, droit d'auteur vs. “copyright” - moral rights difference between copyright and ownership: barrieres or limitations / exceptions from copyright holder's exclusive rights to reproduce the copyrighted work in copies, to distribute them, display in public and give permissions ; «fair use» (US) or «fair dealing» (UK) difference between copyright and ownership: barrieres or limitations / exceptions from copyright holder's exclusive rights to reproduce the copyrighted work in copies, to distribute them, display in public and give permissions ; «fair use» (US) or «fair dealing» (UK) exceptions from permission given to users are NOT “rights”...consequences? exceptions from permission given to users are NOT “rights”...consequences?

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 When permission is not needed for general public educational - scientific research, personal study educational - scientific research, personal study quotations for criticism or review quotations for criticism or review reporting news reporting news parody parody for special needs of disabled persons (transferring works from media to media) for special needs of disabled persons (transferring works from media to media) public security and proceedings etc... public security and proceedings etc...

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 How much to copy non-commercial, private purposes parts of the books and databases, whole articles, public display of the copies in the teaching process parts of the books and databases, whole articles, public display of the copies in the teaching process fair use doctrine - more flexible? fair use doctrine - more flexible? case to case approach case to case approach guidelines for institutions, based in case law guidelines for institutions, based in case law circulars from the US Copyright office on guidelines with minimum recquirements circulars from the US Copyright office on guidelines with minimum recquirements

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Libraries & archives one copy of all the published works from their collection, as well to distribute copies to the users one copy of all the published works from their collection, as well to distribute copies to the users BUT, making works available through an online database without the permission of the copyright holder, might be an infringing public display BUT, making works available through an online database without the permission of the copyright holder, might be an infringing public display Public display usually allowed in teaching process Public display usually allowed in teaching process

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Have the standards changed in the digital environment? new kinds of works in digitalized formats (e- books, CD/DVDs, databases, Internet, softwares..) in the libraries - business as usual? new kinds of works in digitalized formats (e- books, CD/DVDs, databases, Internet, softwares..) in the libraries - business as usual? right holders arguments: more difficult control reproduction is easy, as the production of illegitimate copies of the exact quality distribution of digital copies over networks is easy

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Right holders vs Users – new legal weapons Libraries and users still generally enjoy exceptions in laws, BUT could be technollogically dimmed from legitimate use - and legally, by prohibition to circumvent technological protection could be technollogically dimmed from legitimate use - and legally, by prohibition to circumvent technological protection right holders avoidance of copyright laws and abrogation of fair use / exceptions through licensing agreements right holders avoidance of copyright laws and abrogation of fair use / exceptions through licensing agreements

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Legalizing technical locks CSS (Content Scrambling System); DRM (Digital rights managent) etc... CSS (Content Scrambling System); DRM (Digital rights managent) etc... despite the exceptions in favor of users: despite the exceptions in favor of users: general prohibition in all laws to circumvent technical protection of digital works, as well as ban on distribution of softwares/tools to circumvent general prohibition in all laws to circumvent technical protection of digital works, as well as ban on distribution of softwares/tools to circumvent WIPO Treaty and EU Directive - countries should take “measures” in enabling users to still enjoy exceptions – so far, dead end WIPO Treaty and EU Directive - countries should take “measures” in enabling users to still enjoy exceptions – so far, dead end

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Databases database right of the creator - EU directive 1996 database right of the creator - EU directive 1996 prevents copying of substantial parts of a database (including frequent extraction of insubstantial parts), distribution, public display prevents copying of substantial parts of a database (including frequent extraction of insubstantial parts), distribution, public display exceptions: teaching, science research exceptions: teaching, science research in US - most effective means of database protection are contracts, user agreements in US - most effective means of database protection are contracts, user agreements grounds for development of licensing grounds for development of licensing

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Licences and their effects Click yes to agree!

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Licences and their effects contractual agreement, provider/institution relationship parties are agreeing upon contractual agreement, provider/institution relationship parties are agreeing upon purposely introduced with occurence of digital works and databases in ’90 purposely introduced with occurence of digital works and databases in ’90 right owners can restrict the user however they want, often with foreign law as applicable right owners can restrict the user however they want, often with foreign law as applicable freedom of contracting, above copyright laws freedom of contracting, above copyright laws terms of use often more restrictive than law terms of use often more restrictive than law shrinkwrap / EULA licences.... shrinkwrap / EULA licences....

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Licensing database, example of LexisNexis contrary to some exceptions, IFLA principles: contrary to some exceptions, IFLA principles: storage longer than 3 months is forbidden storage longer than 3 months is forbidden printing restricted to a single copy, only in the form of so called «Authorized Printouts“; downloading as well printing restricted to a single copy, only in the form of so called «Authorized Printouts“; downloading as well solely insubstantial portions solely insubstantial portions displaying retrieved material to no more than one person at a time displaying retrieved material to no more than one person at a time access issues access issues

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Open access to...what? initiative on open online repostiories of digital works (scholarly, scientific) initiative on open online repostiories of digital works (scholarly, scientific) free and unrestricted online access to the public free and unrestricted online access to the public EU recommendations, US proposed Public Access to science Act bill EU recommendations, US proposed Public Access to science Act bill self archiving, permissions, contracts self archiving, permissions, contracts consent of the authors / copyright holders? consent of the authors / copyright holders? publicly funded works not to be subjected to copyright protection? publicly funded works not to be subjected to copyright protection? publishers views differ, but... publishers views differ, but...

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007 Future? Scenario 1 increasing restrictions increasing restrictions further privileging of technological locks further privileging of technological locks Expanding of contracts, ousting of exceptions Expanding of contracts, ousting of exceptions Scenario 2 More state activity in recognition of public interest: legislation, compensations Sofisticated softwares which can distinguish types of users business schemes with ISP providers negotiating skills better enforcement of existing solutions