New copyright challenges New copyright challenges for the users digital worksfor the users digital works

Dragutin NemecDragutin Nemec

Library of the Faculty of law in Library of the Faculty of law in ZagrebZagreb

LIBRARIES IN THE DIGITAL AGE (LIDA) 2007

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Some issuesSome issues

Copyright Copyright as we know itas we know it Have the standards changed in the Have the standards changed in the

digital environment?digital environment? Legalising technical locks Legalising technical locks Databases and licensingDatabases and licensing Open access to...what? Open access to...what? What’s the future for users and What’s the future for users and

libraries? libraries?

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Digital IS differentDigital IS different

EU leaves little doubt :EU leaves little doubt : ...... differences between digital and differences between digital and

analogue private copying and a analogue private copying and a distinction should be madedistinction should be made.... ....

IFLA warns about terms and IFLA warns about terms and conditions of the licensesconditions of the licenses

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Copyright Copyright as we know it –as we know it –general overviewgeneral overview

civil lawcivil law system of «author’s right”, droit system of «author’s right”, droit d'auteur vs. “copyright” - d'auteur vs. “copyright” - moral rightsmoral rights

difference between copyright and difference between copyright and ownership: ownership: barrieresbarrieres or or limitations / limitations / exceptionsexceptions from from copyright holder's exclusive copyright holder's exclusive rightrightss to reproduce the copyrighted work in to reproduce the copyrighted work in copies, to distribute them, display in public copies, to distribute them, display in public and give permissions ;and give permissions ; «fair use» (US) or «fair use» (US) or «fair dealing» (UK) «fair dealing» (UK)

exceptions from permission given to users exceptions from permission given to users are NOT “rights”...consequences?are NOT “rights”...consequences?

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

When permission is not needed When permission is not needed for general publicfor general public

educational - scientific research, educational - scientific research, personal studypersonal study

quotations for criticism or reviewquotations for criticism or review reporting news reporting news parodyparody for special needs of disabled persons for special needs of disabled persons

(transferring works from media to (transferring works from media to media)media)

public security and proceedings etc...public security and proceedings etc...

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

How much to copyHow much to copynon-commercial, private purposes non-commercial, private purposes

parts of the books and databases, whole articles, parts of the books and databases, whole articles, public display of the copies in the teaching public display of the copies in the teaching processprocess

fair usefair use doctrine - more flexible? doctrine - more flexible? case to case approachcase to case approach guidelines for institutionsguidelines for institutions, based in case law, based in case law circulars from the US Copyright office on guidelines circulars from the US Copyright office on guidelines

with minimum recquirementswith minimum recquirements

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

LibrariesLibraries& archives& archives

oneone copy of copy of allall the the published published works works from their collectionfrom their collection, as well to , as well to distributedistribute copies to the users copies to the users

BUT, BUT, making works available through making works available through an online database without the an online database without the permission of the copyright holderpermission of the copyright holder,, might might be anbe an infringing public display infringing public display

Public display usually allowed in Public display usually allowed in teaching processteaching process

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Have the standards changed in Have the standards changed in the digital environment?the digital environment?

new kinds of works new kinds of works in digitalized in digitalized formatsformats (e-books, (e-books, CD/DVDs, CD/DVDs, databases, databases, Internet, Internet, softwares..)softwares..) inin the the librarieslibraries - business - business as usual?as usual?

right holders right holders arguments:arguments: more difficult more difficult

controlcontrol rreproductioneproduction is is

easy, as the easy, as the production of production of illegitimate copies illegitimate copies of the exact quality of the exact quality

distribution of distribution of digital copies over digital copies over networksnetworks is easy is easy

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Right holders vs Users – new Right holders vs Users – new legal weaponslegal weapons

LLibraries and usersibraries and users still generally enjoy still generally enjoy exceptions in laws, BUTexceptions in laws, BUT

could be could be technollogically dimmed from technollogically dimmed from legitimate use -legitimate use - and legally, and legally, by by prohibition to circumvent technological prohibition to circumvent technological protection protection

right holders avoidance ofright holders avoidance of copyright copyright laws laws and abrogation of fair use / and abrogation of fair use / exceptions exceptions through licensingthrough licensing agreementsagreements

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Legalizing technical locksLegalizing technical locks

CSS (Content Scrambling System); DRM CSS (Content Scrambling System); DRM (Digital rights managent) etc...(Digital rights managent) etc...

despitedespite the exceptions in favor of users: the exceptions in favor of users: general pgeneral prohibitrohibition in all laws to circumvention in all laws to circumvent

technical protection of digital workstechnical protection of digital works, as well as , as well as ban on distribution of softwares/tools to ban on distribution of softwares/tools to circumventcircumvent

WIPO Treaty and EU Directive - countries WIPO Treaty and EU Directive - countries should take should take ““measuresmeasures”” in enabling users in enabling users to still enjoy exceptions – so far, dead endto still enjoy exceptions – so far, dead end

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

DatabasesDatabases

database rightdatabase right of the creator - EU directive of the creator - EU directive 1996 1996

prevents copying of substantial parts of a prevents copying of substantial parts of a database (including frequent extraction of database (including frequent extraction of insubstantial parts), distribution, public insubstantial parts), distribution, public displaydisplay

exceptions: teaching, science researchexceptions: teaching, science research in US - most effective means of database in US - most effective means of database

protection are contracts, user agreementsprotection are contracts, user agreements grounds for development of licensinggrounds for development of licensing

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Licences and their effectsLicences and their effects

Click yes to agree!

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Licences and their effectsLicences and their effects

contractual agreement, provider/institution contractual agreement, provider/institution relationship parties are relationship parties are agreeingagreeing upon upon

purposely introduced with occurence of purposely introduced with occurence of digital works and databases in digital works and databases in ’90’90

right ownersright owners can can restrict the user restrict the user however however they wantthey want, often with foreign law as , often with foreign law as applicable applicable

freedom of contracting, abovefreedom of contracting, above copyright lawscopyright laws terms of use terms of use often often more restrictive than more restrictive than lawlaw shrinkwrapshrinkwrap / EULA licences .... / EULA licences ....

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Licensing database, example of Licensing database, example of LexisNexisLexisNexis

contrary to some exceptions, IFLA contrary to some exceptions, IFLA principles:principles: storage longer than 3 months is forbidden storage longer than 3 months is forbidden printing restricted to a single copy, printing restricted to a single copy, only only in the in the

form of so called «form of so called «Authorized PrintoutsAuthorized Printouts““; ; downloading as welldownloading as well

solely solely insubstantial portions insubstantial portions displaying retrieved material to no more than displaying retrieved material to no more than

one person at a timeone person at a time access issuesaccess issues

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Open access to...what?Open access to...what?

initiative oninitiative on open online repostiories open online repostiories of of digital digital works works ((scholarlyscholarly, scientific), scientific)

free and unrestricted online accessfree and unrestricted online access to the to the publicpublic

EU recommendations, US proposed EU recommendations, US proposed Public Public Access to science Act Access to science Act bill bill

self archiving, permissions, contractsself archiving, permissions, contracts consent of the consent of the authors / copyright holders? authors / copyright holders?

publicly funded works not publicly funded works not to be to be subjected to subjected to copyright protectioncopyright protection??

publishers views differ, but...publishers views differ, but...

LIBRARIES IN THE DIGITAL

AGE (LIDA) 2007

Future? Future?

Scenario 1Scenario 1 increasing restrictionsincreasing restrictions further privileging of further privileging of

technological lockstechnological locks Expanding of contracts, Expanding of contracts,

ousting of exceptionsousting of exceptions

Scenario 2Scenario 2 More state activity in More state activity in

recognition of public recognition of public interest: legislation, interest: legislation, compensationscompensations

Sofisticated softwares Sofisticated softwares which can distinguish which can distinguish types of userstypes of users

business schemes with ISP business schemes with ISP providersproviders

negotiating skillsnegotiating skills better enforcement of better enforcement of

existing solutions existing solutions