European Commission copyright consultation/Archives

Limitations

European Commission copyright consultation Access to content in libraries and archives

Teaching

The European Commission is considering modernizing European copyright laws. To get feedback and input on this modernization, the Commission has published a series of questions, and is looking to interested stakeholders (like our community) to answer them. This is a vital opportunity to participate in a dialogue that could have a major impact on copyright laws and the future of the free knowledge movement. More background is available from the European Commission. We would like to prepare a draft response here, as a collaborative experiment. If we wish to respond, it will need to be finalized before the end of January 2014 (see the proposed timeline). Welcome to the discussion! Please help by answering the questions below. Return to the table of contents.

Access to content in libraries and archives

Directive 2001/29/EC enables Member States to reflect in their national law a range of limitations and exceptions for the benefit of publicly accessible libraries, educational establishments and museums, as well as archives. If implemented, these exceptions allow acts of preservation and archiving and enable on-site consultation of the works and other subject matter in the collections of such institutions. The public lending (under an exception or limitation) by these establishments of physical copies of works and other subject matter is governed by the Rental and Lending Directive.

Questions arise as to whether the current framework continues to achieve the objectives envisaged or whether it needs to be clarified or updated to cover use in digital networks. At the same time, questions arise as to the effect of such a possible expansion on the normal exploitation of works and other subject matter and as to the prejudice this may cause to rightholders. The role of licensing and possible framework agreements between different stakeholders also needs to be considered here.

Preservation and archiving

The preservation of the copies of works or other subject-matter held in the collections of cultural establishments (e.g. books, records, or films) – the restoration or replacement of works, the copying of fragile works - may involve the creation of another copy/ies of these works or other subject matter. Most Member States provide for an exception in their national laws allowing for the making of such preservation copies. The scope of the exception differs from Member State to Member State (as regards the type of beneficiary establishments, the types of works/subject-matter covered by the exception, the mode of copying and the number of reproductions that a beneficiary establishment may make). Also, the current legal status of new types of preservation activities (e.g. harvesting and archiving publicly available web content) is often uncertain.

Question 28

28) (a) [In particular if you are an institutional user:] Have you experienced specific problems when trying to use an exception to preserve and archive specific works or other subject matter in your collection?

(b) [In particular if you are a right holder:] Have you experienced problems with the use by libraries, educational establishments, museum or archives of the preservation exception?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes, please explain, by Member State, sector, and the type of use in question.

• ...

Proposed Foundation answer

Based on the Creativity4Copyright suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 01:57, 31 January 2014 (UTC)

The existing exception for preservation is not implemented consistently across the EU. As a result, most EU countries do not allow the making of copies for crucial activities like format shifting and structural digitization of collections. They may also put a variety of artificial constraints on digitalization. This severely limits how an organization like ours, which aims to put all of Europe's treasures online for education and reuse by the entire world, can reliably archive and publish preserved materials.

Question 29

29) If there are problems, how would they best be solved?

Responses

[Open question]

• Public institution that buy works by private companies or individuals should be allowed to distribute those works on Internet with no extra charges. --NaBUru38 (talk) 14:33, 11 January 2014 (UTC)
• ...

Proposed Foundation answer

I propose to have no Foundation answer to this question. Creativity4Copyright's solution would explicitly have a non-commercial restriction, and without more detail, I think the commission would create the same thing from NaBUru38's answer. Open to better proposals, though. —LVilla (WMF) (talk) 01:59, 31 January 2014 (UTC)

Question 30

30) If your view is that a legislative solution is needed, what would be its main elements? Which activities of the beneficiary institutions should be covered and under which conditions?

Responses

[Open question]

• ...

Proposed Foundation answer

I propose the Foundation decline to answer this question. —LVilla (WMF) (talk) 02:00, 31 January 2014 (UTC)

Question 31

31) If your view is that a different solution is needed, what would it be?

Responses

[Open question]

• ...

Proposed Foundation answer

I propose the Foundation decline to answer this question. —LVilla (WMF) (talk) 02:01, 31 January 2014 (UTC)

Off-premises access to library collections

Directive 2001/29/EC provides an exception for the consultation of works and other subject-matter (consulting an e-book, watching a documentary) via dedicated terminals on the premises of such establishments for the purpose of research and private study. The online consultation of works and other subject-matter remotely (i.e. when the library user is not on the premises of the library) requires authorisation and is generally addressed in agreements between universities/libraries and publishers. Some argue that the law rather than agreements should provide for the possibility to, and the conditions for, granting online access to collections.

Question 32

32) (a) [In particular if you are an institutional user:] Have you experienced specific problems when trying to negotiate agreements with rights holders that enable you to provide remote access, including across borders, to your collections (or parts thereof) for purposes of research and private study?

(b) [In particular if you are an end user/consumer:] Have you experienced specific problems when trying to consult, including across borders, works and other subject-matter held in the collections of institutions such as universities and national libraries when you are not on the premises of the institutions in question?

(c) [In particular if you are a right holder:] Have you negotiated agreements with institutional users that enable those institutions to provide remote access, including across borders, to the works or other subject-matter in their collections, for purposes of research and private study?

Responses

[Open question]

• Yes. There are two groups of problems:
  • Periodicals (newspapers, magazines). Each issue normally contains works by many authors, some of them forgotten, anonymous or pseudonymous. A magazine then becomes a legal nightmare because to comply strictly with the copyright (70 years after the death of the last author), a library would need to research many personal records before they would be able to publish a digitized copy on the internet. In practice, they are more flexible (some making an arbitrary cutoff e.g. in 1890, others even showing issues up to the end of 1943), but it would help everybody if the law was more clear - specifying that a library can publish a digitized copy online a certain time after the year of original publishing. This "protection" time could be e.g. the 70 years (easy) or perhaps even shorter because (I believe) there is not much market value in the copyright to old news. I would consider this issue as critical for Wikipedia/Wikimedia community because old news and magazines are a very useful source for writing articles, and it can make a big difference to the project if both wikipedians and readers can access them from their homes (to write articles and verify their contents against source).
  • Less critically and more controversially, the same rule could apply to books. The issue here is, that many old works have a high market value and right holders may argue (more than for news) that online publishing by libraries destroys it. So, realistically, I could imagine a hybrid rule where libraries would have right to publish a digitized copy of a book after a certain nr of years from original publishing (e.g., 70 or 95) unless the rights holder opts out (enters it into a register). This could open the way for digitizing many lesser known titles, long out of sale, with low market value and no prospects of reprint, without angering the few "classics" that keep being reprinted and sold at premium prices.
  • These two proposals would, from a user perspective, effectively shorten copyright protection of many old works with respect to casual readers. I would think that it is more realistic to achieve it through exceptions like these than to try to reduce the number of years outright - which could lead to legal challenges (see my response to term of protection). After all, in Wikipedia, it should be enough for us to be able to read a text, reword it into an article and then credit it as a reference with a hyperlink. We do not need to copy it verbatim (except perhaps pictures...) or use it commercially. So, the exceptions shown above should make us happy, if the "cutoff year"/"term of full protection" is reasonable. Or not?
  • Let's also mention orphaned works (where no right holder is known). There is already an EU directive, so I believe no further action is needed - but let's just keep it in mind that there may perhaps be a way to make these more easily accessible. --Sapfan (talk) 18:25, 17 January 2014 (UTC)
• One more potential area: school works (such as theses, dissertations and other papers submitted by students to receive academic degrees). Should there be an exception that a school can / must publish these on the web? Again, these can be a very useful source of information while usually not having a high market value. --Sapfan (talk) 19:02, 17 January 2014 (UTC)
  • That doesn't need an exception, it only needs the institution to care: build an infrastructure (like DART) and add that clause to their programs. In theory, if you add an obligation to publish the thesis under a free license, a student could appeal to it using the constitutional right to education (and free teaching), but it's unlikely to ever happen and I'm not aware of any such case in Italy. Even if it happened, I don't think copyright is a constitutional right in itself anywhere, hence such an appeal would likely fail. --Nemo 17:52, 18 January 2014 (UTC)
• I had a problem when I want to order public domain content (scanned old book from library in their online archive). They wants an inadequate charge for every page. It wasn't even possible to download it. Dominikmatus (talk) 16:44, 22 January 2014 (UTC)
• Funny that C4C says "Preventing institutions from doing so means that users will look for information elsewhere (on platforms such as Wikipedia or Google)." I wish we could provide all the information which is locked in cultural institutions! --Nemo 15:54, 28 February 2014 (UTC)
• I think we should stress more that, if only online lending as provided e.g. by the Internet Archive, or intra-library e-loan for all the other kinds of works, was allowed, then our editors would be greatly benefited. Infrastructure already exists, but is limited by nonsensical copyright restrictions which don't benefit any copyright holder and greatly disadvantage the public. --Nemo 22:41, 1 March 2014 (UTC)

Proposed Foundation answer

Based on the comments above and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:02, 31 January 2014 (UTC)

For members of the Wikimedia community, research is not just a key part of our mission, but a passion. Finding, and then linking to, online research is something we do literally millions of times a year. It is obvious how our activity supports the public good, but it should also be obvious how it supports the goals of these publicly-funded institutions: by sharing their knowledge to all citizens, not just those who can physically access those institutions.

These restrictions are particularly galling when these institutions restrict access to works that are no longer commercially available (or in the case of theses and dissertations, that have never been commercially available). Where there are safeguards that protect the normal exploitation of works in the collections, these institutions should be explicitly allowed to make the collections available online for research and linking by the general public.

Question 33

33) If there are problems, how would they best be solved?

Responses

[Open question]

• ...

Proposed Foundation answer

Based on the comments on question #32 above, and particularly Sapfan's, and the Creativity4Copyright suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:03, 31 January 2014 (UTC)

Perhaps the best solution for the problem is a consistently-applied broadening of the scope of the exception currently provided for in article 5(3)(n) of the Copyright Directive in order to ensure that anyone can make their collections available on-line for scientific and educational purposes without restriction to on-site terminals. However, other approaches could be taken as well, such as specific exceptions for public access and research use of periodicals more than 50 years after publication.

Question 34

34) If your view is that a legislative solution is needed, what would be its main elements? Which activities of the beneficiary institutions should be covered and under which conditions?

Responses

[Open question]

• Yes, I believe a legislatory solution is required - an introduction of a clearly defined copyright exception. A reasonable one seems to me:
  • Periodical print can be digitized and published on the web "as is" (i.e., without cutting and reassembling individual copyrighted articles) by a non-profit library (I think they are already somehow defined in the law - they already have some exceptions) if they passed a certain number of years (70? 50? 25?) from publishing. (Unless the original publisher or his descendant opts out??)
  • Books can be digitized and published on the web under the same conditions if they passed a certain nr of years (higher, such as 70 or 95?) unless the rights holder opts out.
  • Full text search in all books and magazines should be allowed (it may be already - not sure).--Sapfan (talk) 18:41, 17 January 2014 (UTC)
• I like the opt out system imagined in the C4C proposal partly reproduced below. We still lack any proposal on how to deal with orphan works etc. in a way compatible with free licenses and public domain, though. Exceptions and fair use, however broad, are not considered enough for our standards. There should be some intermediate middle-ground proposal other than much quicker copyright expiration. --Nemo 15:59, 28 February 2014 (UTC)

Proposed Foundation answer

Based on the comment above and the Creativity4Copyright suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:04, 31 January 2014 (UTC)

A legislative solution does appear to be necessary. The main element would be a broadening of the existing exception in article 5(3)(n) of the copyright directive. Instead of limiting the making available to dedicated terminals on the premises of the institutions it should apply to making the works available online via public networks such as the internet. The scope of the exception should further be expanded to not only include ‘the purpose of research or private study’ by ‘individual members of the public’ but should apply to linking and reference.

It also seems reasonable to limit the scope of the exception to works that are not in commercial circulation anymore and to allow rights holders to opt out of the exception. This would ensure that the legitimate interests of rights holders would not be harmed while allowing cultural heritage institutions to bring large parts of their collections online.

We, like other authors, would benefit from this, because it would broaden the scope of materials available for us to draw knowledge, research, and ultimately inspiration from.

Question 35

35) If your view is that a different solution is needed, what would it be?

Responses

[Open question]

• ...

E – lending

Traditionally, public libraries have loaned physical copies of works (i.e. books, sometimes also CDs and DVDs) to their users. Recent technological developments have made it technically possible for libraries to provide users with temporary access to digital content, such as e-books, music or films via networks. Under the current legal framework, libraries need to obtain the authorisation of the rights holders to organise such e-lending activities. In various Member States, publishers and libraries are currently experimenting with different business models for the making available of works online, including direct supply of e-books to libraries by publishers or bundling by aggregators.

Question 36

36) (a) [In particular if you are a library:] Have you experienced specific problems when trying to negotiate agreements to enable the electronic lending (e-lending), including across borders, of books or other materials held in your collection?

(b) [In particular if you are an end user/consumer:] Have you experienced specific problems when trying to borrow books or other materials electronically (e-lending), including across borders, from institutions such as public libraries?

(c) [In particular if you are a right holder:] Have you negotiated agreements with libraries to enable them to lend books or other materials electronically, including across borders?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes, please explain with specific examples.

• ...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU and C4C suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:07, 31 January 2014 (UTC)

We are committed as an organization to supporting the rights of our users to read and access information wherever they go, and to access from whatever device they would like to, including through FLOSS software. As noted throughout this response, we also believe firmly in the applicability of exceptions and limitations to copyright as key ways in which the rights of readers, researchers, and authors are protected.

Unfortunately, the frequent use of Digital Rights Management software to "protect" e-lending materials cuts against all of these goals, by restricting access far more tightly than the law requires. For example, DRM frustrates the ability of users to make personal copies for educational use, a copyright exception which has been upheld repeatedly in a variety of court cases in the EU and the US. It also typically prohibits the creation of open source tools to read and create content, which further restricts access and creativity.

Question 37

37) If there are problems, how would they best be solved?

Responses

[Open question]

• ...

Proposed Foundation answer

Based on the Free Knowledge Advocacy Group EU and C4C suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:08, 31 January 2014 (UTC)

As a technical matter, we believe it is impossible to construct DRM systems that allow for the exceptions and limitations that are necessary for an ethical and creativity-enhancing system of copyright. As a result, we believe that as an ethical and practical matter DRM should be prohibited for e-lending from public institutions like libraries.

Should that approach prove impracticable, EU law should make clear that it is legal to create and distribute tools that allow educators, researchers, the blind, and others to remove DRM when that is necessary to exercise their legal rights.

The following two questions are relevant both to this point (n° 3) and the previous one (n° 2).

Question 38

38) [In particular if you are an institutional user:] What differences do you see in the management of physical and online collections, including providing access to your subscribers? What problems have you encountered?

Responses

[Open question]

• ...

Proposed Foundation answer

Based on the C4C EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:10, 31 January 2014 (UTC)

We work intensively with cultural heritage institutions, like galleries, libraries, archives, and museums, to provide access and visibility to their digital collections. The differences between the no-cost, simultaneous, global access provided through the internet, and the high-cost, local access provided through physical collections, are so vast that it makes essentially no sense to compare the two. An institution that provides access through Wikipedia has provided it to half-a-billion readers every month, something no physical collection could ever hope to match in a lifetime. This change has the potential to radically improve the ability of publicly funded cultural heritage institutions to carry out their public mission to provide access to knowledge and culture.

Unfortunately this enormous potential is currently being held back by copyright rules that unnecessarily restrict how cultural heritage institutions can exercise their mission in the online environment. Under the current EU copyright rules cultural heritage institutions are dependent on permission from rightholders in order to make protected works in their collection available online. This makes no sense, particularly since the majority of works held by these institutions are not commercially available because of their age or lack of commercial interest.

Question 39

39) [In particular if you are a right holder:] What difference do you see between libraries’ traditional activities such as on-premises consultation or public lending and activities such as off-premises (online, at a distance) consultation and e-lending? What problems have you encountered?

Responses

[Open question]

• ...

Proposed Foundation answer

Inspired by the Free Knowledge Advocacy Group EU suggestion, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:12, 31 January 2014 (UTC)

From an ethical perspective, the activities are the same: they are enhancing access to knowledge. The primary change is how much broader this access can be. Copyright law and policy should acknowledge that this broader access is a positive development and not something that should be prevented by DRM or other technological and legal measures. If copyright law does not begin to treat greater access as a positive good, the legislative framework will continue to lose public support, as it will remain at odds with the needs, expectations, and ethical intuitions of users — and the next generation of creators.

Mass digitisation

The term “mass digitisation” is normally used to refer to efforts by institutions such as libraries and archives to digitise (e.g. scan) the entire content or part of their collections with an objective to preserve these collections and, normally, to make them available to the public. Examples are efforts by libraries to digitise novels form the early part of the 20^th century or whole collections of pictures of historical value. This matter has been partly addressed at the EU level by the 2011 Memorandum of Understanding (MoU) on key principles on the digitisation and making available of out of commerce works (i.e. works which are no longer found in the normal channels of commerce), which is aiming to facilitate mass digitisation efforts (for books and learned journals) on the basis of licence agreements between libraries and similar cultural institutions on the one hand and the collecting societies representing authors and publishers on the other. Provided the required funding is ensured (digitisation projects are extremely expensive), the result of this MoU should be that books that are currently to be found only in the archives of, for instance, libraries will be digitised and made available online to everyone. The MoU is based on voluntary licences (granted by Collective Management Organisations on the basis of the mandates they receive from authors and publishers). Some Member States may need to enact legislation to ensure the largest possible effect of such licences (e.g. by establishing in legislation a presumption of representation of a collecting society or the recognition of an “extended effect” to the licences granted).

Question 40

40) [In particular if you are an institutional user, engaging or wanting to engage in mass digitisation projects, a right holder, a collective management organisation:] Would it be necessary in your country to enact legislation to ensure that the results of the 2011 MoU (i.e. the agreements concluded between libraries and collecting societies) have a cross-border effect so that out of commerce works can be accessed across the EU?

Yes

• Your name here

No

• Your name here

No opinion

• So far, I have not had any issue accessing e.g. Czech or Austrian library collections from the UK or Denmark. Let's keep it this way, but I am not sure if any action is needed.--Sapfan (talk) 18:43, 17 January 2014 (UTC)
• How does the MoU affect us, if it's only about orphan works? At any rate, it's important for mass digitisation projects to respect the public domain charter as well as the recommendation of COMMUNIA, avoiding the worrying practices being used e.g. in Italy (and probably France).[1] --Nemo 18:13, 18 January 2014 (UTC)

Comments

Instructions: If yes, please explain why and how it could be best achieved. If no, please explain.

• ...

Proposed Foundation answer

Based on the comments above and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:14, 31 January 2014 (UTC)

No opinion.

Because we are a global organization, we cannot specifically answer this question. However, our understanding (based on our research, as well as our observations of contributions from libraries to our projects) is that the MoU currently has no practical effect, with very few projects actually implementing it. We strongly suspect that a more comprehensive approach is needed, and indeed, should be required in order to help Europe's cultural heritage institutions fulfill their missions and return value to the taxpayers that fund them.

Question 41

41) Would it be necessary to develop mechanisms, beyond those already agreed for other types of content (e.g. for audio- or audio-visual collections, broadcasters’ archives)?

Yes

• Your name here

No

• Your name here

No opinion

• Your name here

Comments

Instructions: If yes or no, please explain.

• ...

Proposed Foundation answer

Based on the comments above and the Free Knowledge Advocacy Group EU suggestions, I propose the following answer for the official Foundation response: —LVilla (WMF) (talk) 02:15, 31 January 2014 (UTC)

No opinion.

The public has a legitimate interest in having online access to the collections of all publicly accessible libraries, museums and archives across Europe (see article 27.1 of the Universal Declaration of Human Rights). There is no good reason for limiting mechanisms that create such access to certain types of content, but we have no strong opinions on how that situation should be reached.

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