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