1. Legal issues involved in digitisation
Toby Bainton Secretary of SCONUL

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

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unpublished material

4. 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

5. 3 fundamental rights for authors
1 Reproduction right
2 Right of communication to the public
[3 Distribution right]

6. 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’

7. 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’

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

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

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

11. 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

12. Denmark:
digitisation for preservation already permitted by law

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

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

15. 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’

16. 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)