AIB. Vita dell'Associazione

28 November 2008
Prot. 275/08

Founded in 1930, AIB, Associazione Italiana Biblioteche, is the general library association in Italy, the only national association member of the International Federation of Library Associations and by far the oldest and largest association in this field in Italy. AIB has more than 3,500 members, mostly librarians, but membership is also open to libraries and other persons or bodies interested in the information field. Corporate bodies account for some 15 % of total membership. AIB is member of EBLIDA, European Bureau of Library, Information and Documentation Associations.

AIB is strongly committed on matters of copyright. In 2007, an AIB delegation participated to a special Government's Commission aimed at conducting an enquiry for the reform of the Italian national law on copyright. In December 18, 2007, there was a ceremony during which the results of that enquiry were delivered to the Italian Minister of Culture. In 2008, the AIB National Board established a Working Group on Copyright and Open Access.

AIB supports the need for an explorative action intended to shed light on the issues of copyright applied to the knowledge field. AIB welcomes the Green paper on Copyright in the Knowledge Economy and the timeliness of its delivery, which responds to the needs of the libraries, the academic community and the broad knowledge industry.
AIB considers that this need emerged from gaps in the 2001 Directive on copyright in the information society and, in particular, by an approach that was too overtly medium-related and did not take into account the needs of the professionals of the distinctive segments of the knowledge chain.
AIB welcomes the approach chosen by the Commission centred on the knowledge economy and the emphasis stressed on the "public" actors involved in this chain.

In the following document, comments have been arranged according to the numbering of the 25 questions in the Green Paper.

At the end, some general comments are given.

The Green paper : questions and comments

(1) Should there be encouragement or guidelines for contractual arrangements between right holders and users for the implementation of copyright exceptions?

No.
Encouragements, guidelines, and licence models do already exist, and they are normally used in the market. But issues which involve public interest, long-term strategies and the protection of fundamental rights (right to social inclusion and to equal opportunities, right to education and learning, freedom of research and teaching, freedom of expression, and so on) should not be subject to negotiations without previously establishing the legal framework aimed at the right balance of different interests.

The fact itself that the Directive defines them "exceptions" to copyright confirms that it is not possible to entrust their regulation to private initiative.

The intellectual property is protected for the sole purpose of promoting the dissemination of ideas and the active participation of everybody in decision-making, granting recognition to the author and those investing in knowledge production, to ensure their independence and to encourage their creativity. Exceptions, or – as AIB suggests to define them –, free uses are in this sense an essential element of copyright laws. If this was limited solely to the protection of intellectual property, without identifying the limits posed by users' rights and social needs, the entire copyright system would be meaningless and would no longer be justified in the light of the "Fifth Freedom" of market in 21st Century.

Free uses must therefore be identified by clear, simple, precise and unambiguous juridical rules, compliant with rapid technological evolutions and not dependent on specific formats or technologies.

Technology is densely applied in the knowledge economy and is not neutral; the balance in any copyright legislation decides whether it is an impediment, or a catalyzer for further progress.

(2) Should there be encouragement, guidelines or model licences for contractual arrangements between right holders and users on other aspects not covered by copyright exceptions?

Even on this point, AIB wishes to reiterate that licensing models, guidelines and encouragement can not fill a regulatory void.

Currently there are gaps to be filled, in the Directive and even more in national copyright laws.

These gaps contribute to enforce unbalanced power relations. Unbalanced power relations among right holders, and between right holders and users do not contribute to establish an environment which allows the emerging of best practices for negotiation.

Guidelines, encouragement and model licences could be an effective tool only in the presence of adequate legislation to ensure all the interests at stake, and not just for some parts.

So, first of all, Par. 5(2) and (3) of the Directive must be reformed in order to

• make the exceptions mandatory for all member states;
• clarify some exceptions whose meaning is unclear (see answers below);
• include some exceptions currently not provided (see answers below);

Moreover, par. 5(5) should be amended in order to make lawful all utilizations which are complying to the three-step test, including those not specifically listed in par. 5(2) and (3).

(3) Is an approach based on a list of non-mandatory exceptions adequate in the light of evolving Internet technologies and the prevalent economic and social expectations?

No.
Exceptions should be mandatory and practices established on this basis would set the "precedent", the case laws for further progress in the light of future Internet technologies and social / economic expectations.

The full balance of interests of equal importance, the full harmonization of national laws, as well as the fundamental purpose of the Directive, namely the affirmation of an open and competitive european market, will be realized only when the exceptions will become mandatory, and they will be clarified and/or enlarged to prevent misunderstandings or narrower implementations.

(4) Should certain categories of exceptions be made mandatory to ensure more legal certainty and better protection of beneficiaries of exceptions?

Yes, they should.

(5) If so, which ones?

All, and particularly those listed in the Green Paper:

• benefit of libraries and archives;
• dissemination of work for teaching and research purposes;
• people with a disability;
• user generated contents.

So far, the three-step test was used to restrict and not to expand the permitted uses. Instead, AIB proposes to consider it as a general rule allowing whatever utilization compliant to it.

Moreover, AIB would like to suggest the European Commission being a catalyzer for an initiative aiming at adding a further step to the three-step principle. The fourth step should be that the legitimate interests of the right holder should not be detrimental to the world-wide progress of knowledge and to the information needs of the public.

(6) Should the exception for libraries and archives remain unchanged because publishers themselves will develop online access to their catalogues?

No.
Exceptions for libraries and archives should be clarified, enlarged and enforced in order to be adapted to technological developments and to ensure that libraries and archives are able to:

1. work in such a way that people and society can truly benefit from the cultural heritage they detain;
2. take full advantage of technologies to improve services to local and remote users and to attract new people;
3. facilitate access to digital collections, especially those on-line, rather than hamper with additional legal restrictions even beyond those required for traditional collections;
4. ensure technical accessibility of documents;
5. ensure long-term preservation.

Question (6) seems to misunderstand the role and functions of libraries and archives. Increased commercialised on-line works and products in the market do not ensure alone access to knowledge, nor do they guarantee their long-term preservation.

Libraries serve people who choose not to – or cannot afford to – purchase an extensive collection. Union catalogues maintained by libraries offer a highly diversified range of information, while publishers' catalogues per definition do not represent the variety of positions and viewpoints around a specific subject. Therefore it is instrumental and biased to level out libraries' mission statement to that of publishers.

It is worth reminding that libraries and archives are tools of participatory democracy. Collection development, conservation, cataloguing, the organization of knowledge and its dissemination, programs in support to information literacy and e-learning activities, all this aims at ensuring long-lasting access to cultural heritage and freedom from social, ideological, political, religious, ethnic or linguistic prejudices or discrimination against users or documents.
Libraries' and archives' autonomy in relation to commercial interests represents a benefit for the market as a whole. Libraries promote all published works, including the less advertised ones; they widen the range of potential users, support research and learning, facilitate the creation of innovative works and stimulate the production of added value technologies and services.

Exceptions for libraries and archives are fundamental not only for public, but also for private actors. Digital printers, software consultants, service providers are now discouraged to enter the business of content dissemination because of general constraints and the strict rules on copyright, especially for derived products. Content services based on format shifting, scanning, compilations remain undeveloped and are not carried out by publishers themselves, as the latter do not have interest in such investments. In many respects, hard protection of copyright create market failure.

(7) In order to increase access to works, should publicly accessible libraries, educational establishments, museums and archives enter into licensing schemes with the publishers? Are there examples of successful licensing schemes for online access to library collections?

Licensing is only a form of contractual agreement; exceptions and limitations should be mandatory and a pre-requisite for any form of licensing.

Then, recalling also what said above in relation to question n. 2, in some cases, exceptions must be supplemented by agreements in order to be effective.

Examples for such cases are:

1. access to digital works deposited within the network of legal deposit libraries: the Directive should provide a special exception for deposited works and allow access to them, leaving to agreements between the interested parties the setting of concrete arrangements;
2. access to orphan works and out-of-print works, from the place and at the time individually chosen, after a certain delay from the last edition: in this case, a special limitation is needed, leaving to agreements between interested parties the setting of concrete arrangements;
3. technical procedures and response times for the removal of technical protection measures, when removal is necessary to ensure a legitimate use of works: guarantees in art. 6(4) of the Directive should be strengthened in the sense that licences should be clear about rightholders' obligation in removal when needed, and that any agreement excluding their responsibility for removal is not valid;
4. definition on how to ensure permanent access to on-line works for which libraries etc. have signed a subscription or otherwise have legitimately acquired the right of use: the Directive should establish the invalidity of any agreement designed to exclude access to content previously accessible in case the subscription is not renewed, or to exclude the liability of suppliers as a result of any transfer of exploitation rights, leaving to agreements between interested parties the setting of concrete arrangements for ensuring permanent access;
5. in cases of scanning of entire collections, definition of rights and obligations between rightholders, libraries, educational establishments, museums and archives, and eventually third parties such as private service providers: see below.

Yes.
The wording of paragraphs 5(2)(c) and 5(3)(n) of the Directive need to be clarified and enlarged. Format shifting of part of works, entire works, or entire collections in libraries, educational establishments, museums and archives must be allowed at anytime it suits to fit users' needs. The number of copies should not be specified; it should be "fair", "reasonable" in order to respond to users' needs. Scanning of entire collections should be allowed, so that knowledge-oriented collections can be created to compensate market failure.

Libraries, educational establishments, museums and archives disseminate contents for non-profit purposes; private enterprises would carry content selection on a commercial basis. Library action starts where market fails; therefore Directive should not indicate either "which format", or "how many copies", or "how many works" can be reproduced: it should only indicate that reproductions and change of formats complying with libraries' mission and services are authorized.

Here is a non exhaustive list of libraries' objectives that typically may require change of formats:

• ensuring technical accessibility and usability of formats, to encourage reading and to improve access by disadvantaged people;
• ensuring interoperability between different systems and standardization of formats, to facilitate storage of works as well as their harvesting and retrieval through knowledge discovery systems;
• providing document delivery and/or interlibrary loan;
• disseminating knowledge about orphan and out of print works, saving them from the risk of disappearing from circulation;
• support to distance learning activities;
• preservation.

Change of formats would also be greatly beneficial for the development of a "derivative" industry, where content is assembled in accordance to territorial and community-based needs and ad hoc users.

Since these exceptions are merely optional for Member States, they have been implemented only partially and in a very narrower way in several national legislations. In Italy, for example, there is a tendency to recognize, as "specific acts of reproductions" permitted to libraries exclusively reproductions aimed to preservation. Moreover, the wording of Italian exception isn't clear about the lawfulness of format shifting for certain categories of works (eg, printed materials), when even only for conservation purpose!
The result is that actually any change of format, whatever the purpose, exposes libraries to the risk of legal disputes with the rightholders.

(9) Should the law be clarified with respect to whether the scanning of works held in libraries for the purpose of making their content searchable on the Internet goes beyond the scope of current exceptions to copyright?

Yes.
To prevent different interpretations in EU countries, the Directive should explicitly clarify the lawfulnes of scanning for the sole purpose of indexing and content search in books taken from libraries' collections. Such activities, in facts, could increase dissemination of information about available works, and subsequently support the interests of right holders. They do not seem in any respect adverse to publishers' interests.

With regard to access to full-text of protected works, different solutions are needed to define rights and duties of libraries, content providers and, if any, third parties responsible for scanning. In particular:

• referring to orphan works, see answers n. 10-12;
• referring to out-of-print works, see answers n. 7-8;
• referring to in-print works, see answers n. 7-8 and, for scientific and educational works, 19-23.

(10) Is a further Community statutory instrument required to deal with the problem of orphan works, which goes beyond the Commission Recommendation 2006/585/EC of 24 August 2006?

Yes.

EU instrument/s is/are needed.

Such instrument/s should include:

• a precise definition of "orphan work" (AIB suggests the following: "work whose current owners have not been identified or located after a reasonably diligent research in good faith");
• the possibility for libraries, archives, museums, and educational establishments to reproduce and make available orphan works for registered users, in the place and at the time individually chosen;
• a reference to extended collective licences, in order to define and to collect a reasonable fee for uses which require remuneration in favour of owners;
• in case the legitimate owner does not reappeare at a later stage, a provision should allow the reallocation of a partial amount of copyright-derived royalties to the libraries and the other institutions that are responsible for work digitization and dissemination;
• in case the legitimate owner shows himself at a later stage, a provision should allow libraries, archives and educational establishments to make available the digital copy to their registered users.

AIB stresses the importance of creating an European Copyright Clearance Centre, and follows with interest the results of the ARROW project (see HLEG Final Report. Annex 5, <http://ec.europa.eu/information_society/activities/digital_libraries/doc/hleg/reports/copyright/copyright_subgroup_final_report_26508-annex5-final.pdf>)

(11) If so, should this be done by amending the 2001 Directive on Copyright in the Information Society or through a stand-alone strument?

The treatment of orphan works comes with matters covered by Infosoc Directive, then it would be appropriate to provide amendments to this Directive. However, AIB is not opposite to alternative solutions (ie, an ad hoc Directive).

(12) How should the cross-border aspects of the orphan works issue be tackled to ensure EU-wide recognition of the solutions adopted in different Member States?

The entire field of copyright requires international rules to facilitate the circulation of works and prevent disputes from one region to another. In the case of orphan works, regulations are necessary at three levels:

• at EU Directive level, in order to establish uniform criteria for all Member States to facilitate the development of the European Digital Library;
• at bibliographic level, in order to support the creation of a shared and reliable international registry of works;
• at licence level, in order to facilitate their standardization and the application of best practices.

(13) Should people with a disability enter into licensing schemes with the publishers in order to increase their access to works? If so, what types of licensing would be most suitable? Are there already licensing schemes in place to increase access to works for the disabled people?

No.
Exception 5(3)(b) must be mandatory. It should be of immediate application in the exact wording in which it is formulated. It should be forbidden to Member States to formulate it in more restrictive terms.
Unfortunately, the art. 71-bis of the Italian copyright law (Law 22 April 1941, n. 633, as amended by the Legislative Decree 9 April 2003, n. 68) is formulated in such a way as to allow only reproductions made by people with disability themselves, preventing others (family, libraries, voluntary associations etc.) from making the reproduction in favour of them. The wording "per uso personale" (only for personal use) as provided in the par. 71-bis, is more restrictive compared to the Directive.

(14) Should there be mandatory provisions that works are made avaliable to people with a disability in a particular format?

No.
The choice of format varies not only depending on the type of medium, but also according to the particular disability. It cannot be fixed by law once and for all. A list should be updated constantly, according to technological development, and a list established by law would become obsolete very soon.

People with disabilities themselves should be allowed to make choice of the appropriate formats for their needs.

Finally, the adoption of open formats should certainly be made mandatory for publications of public agencies (eg, in Italy there are some specific rules for the web sites of public sector).
Instead, although private publishers could not be obliged to adopt accessible formats, they should be forced to grant at least a certain percentage of works available for people with disabilities, with the appropriate format, at the same time they produce and sell the works in the usual format for the whole market. Ecouragements and recommendations could be an effective measure for this purpose.

(15) Should there be a clarification that the current exception benefiting people with a disability applies to disabilities other than visual and hearing disabilities?

Yes, if there are doubts in this regard.
The exception 5(3)(b) does not make distinction between particular types of disabilities. Any different choice would constitute an unacceptable discrimination. If this exception was mandatory and was imposed in its exact wording, any different choice could represent moreover a valid reason to start an infringement procedure.

(16) If so, which other disabilities should be included as relevant for dissemination of knowledge?

All the disabilities that prevent or make difficult to access works.
It would be impossible to set a list: some diseases could be excluded, such as rare or newly discovered ones. Moreover, sometimes it is the combination of two or more distinct diseases to determine disability, even if not debilitating considered individually. Finally, if it was needed to wait for government lists of eligible disabilities, the exception would not be implemented until the establishment of such lists.

(17) Should national laws clarify that beneficiaries of the exception for people with a disability should not be required to pay remuneration for using a work in order to convert it into an accessible format?

Yes.
This is and must remain an exception to copyright, which doesn't require remuneration. For the purpose of this exception, no additional payment is needed for reproductions made by users, their families, their associations, libraries, archives, museums, educational establishments, other not-for-profit organizations.

Some Member States (including Italy) provide economic incentives and other solutions to encourage publishers to publish directly into formats accessible, and such initiatives are very welcome. But this matter must not in any way affect the scope and the width of the exception.

(18) Should Directive 96/9/EC on the legal protection of databases have a specific exception in favour of people with a disability that would apply to both original and sui generis databases?

Yes.
The exception must be applied to all types of works and must be implemented in Directive 96/9.

(19) Should the scientific and research community enter into licensing schemes with publishers in order to increase access to works for teaching or research purposes? Are there examples of successful licensing schemes enabling online use of works for teaching or research purposes?

Licensing is only a form of contractual agreement; exceptions should be mandatory and a pre-requisite for any form of licensing.

Then, first of all, exceptions 5(3)(a) and 5(3)(d) need to be enlarged and enforced.

Relevant to the lawfulness of an utilization should not be the format of a work (traditional or digital) or where the content is located (on site or on-line), but the purpose and scope of that utilization. An utilization that is socially relevant, and does not affect in a significant way the interests of right holders, should be allowed.

The following utilizations should be allowed by law (without the need of licences):

1. to re-use and to produce derivative works for teaching and learning purposes ("in accordance with fair practice, and to the extent required by the specific purpose", see Paragraph 5(3)(d) of the 2001 Directive);
2. to reproduce works or parts of a work and make them accessible to a number of registered users during a lesson, a course, a seminar, a conference, and alia;
3. the exchange of articles or book chapters between individual researchers.

Scientific and research authors are different from those of the creative industries in their motivation, status and interests. They do not make their own living as writers with the remuneration they receive from copyright fees, but as tenured teachers and in the progress they make in their academic carrier. Moreover, provided they are quoted, they encourage re-use of their work.

A separate instrument would reflect the distinctive needs of scientific and research community.

For example,

1. not an exception, but a partial retention of the rights for non-commercial purposes should be given to the public when the work is the output of publicly funded researchs. In this respect:
   1. publicly funded bodies should be obliged to ensure open access to results of publicly funded researchs, within a reasonable period after their publication;
   2. the position of authors needs to be strengthened by prohibiting any agreement with publishers intended to prevent or circumvent the deposit of works in open access repositories;
2. alumni should be given access to digital subscriptions of an academic institution without the need of specific negotiations – agreements intended to prevent should not be valid;
3. third parties involved in research projects that are funded by an academic or research institutions should have access to the digital subscriptions of that institution without the need of specific negotiations – agreements intended to prevent should not be valid.

In the new technological environment, where forms of collective creation are possible and information explosion is everyday's reality in any discipline, content production is not the only form of added value in the knowledge economy. More added value is given by services such as content selection and research evaluation. The difficulty to access content in order to provide content-derived services is an entry barrier for newcomers and an impediment for a content-derived market to take-off. Moreover, permissions for re-formatting, re-versioning are often a limitation to the free flow of knowledge.

(20) Should be teaching and research exception be clarified so as to accomodate modern forms of distance learning?

Yes, see above, answer n. 19.
The distinction between an "old" form of teaching and research and a "modern" form of distance learning is obsolete. Distance learning is a continuation of traditional teaching and research; at their best, teaching and research are now communicated in a hybrid way: analogical / digital, face-to-face / distant. What is possible in the face-to-face environment, should also be made possible in a digital environment.

Quite correctly, therefore, the 2001 Directive on Copyright in the Information Society, at recital 42, expressly includes distance learning within the "teaching exception" as of art. 5(3)(a). Accordingly, this provision covers both rights of reproduction and communication to the public and refrains from imposing limitations as regards the extent and the nature of the works used. Some further clarification could be needed as to the "non-commercial" purpose of the teaching activity.

(21) Should there be a clarification that the teaching and research exception covers not only material used in classrooms or educational facilities, but also use of works at home for study?

Yes, see answers n 19 and 20.

(22) Should there be mandatory minimum rules as to the length of the excerpts from works which can be reproduced or made avaliable for teaching and research purposes?

No.
A restricted policy on copyright, in particular if extended to derivative works, is utterly detrimental for teaching and research. It is in the nature of innovative, original teaching and research not to stick to a single source – a handbook, for instance –, but to explore knowledge coming from different sources in order to define, and describe, original paths of thinking. To limit their scope, to define a precise length of the excerpts would be to undermine the potential of human creativity. Words like "fair", "reasonable" or "moderate" seem to be more equitable in the context of teaching and research.

(23) Should there be a mandatory minimum requirement that the exception covers both teaching and research?

Yes.
The distinction between "research" and "teaching" for copyright purposes is nonsense. The purpose of the exception is to facilitate the growth of a learning society. Learning is a continuous process, involving students, teachers and researchers.

(24) Should there be more precise rules regarding what acts end users can or cannot do when making use of materials protected by copyright?

No.
It would be sufficient a clarification that user-created contents, and especially transformative works are allowed, according to the provision of par. 5(3)(d) and 5(3)(k) of the Directive.

(25) Should an exception for user-created content be introduced into the Directive?

No, see above.

General comment

Comments to the Introduction

1.1 The purpose

Page 3, 1^st paragraph: contribution to the European economy. Note n. 6 includes only figures provided by the publishing industry. It is worth reminding that the knowledge industry is in the first instance stimulated by creative ideas and innovative concepts elaborated by authors.

It should also be reminded that knowledge is by definition, non-rivalrous. Knowledge consumption is non exclusive, i.e. it does not prevent someone else from also consuming it. After all, no knowledge industry would be in existence today, and no cutting edge technology would be promoted, without the strong impulsion offered by initiatives strongly encouraging free access to content: World Wide Web, Google and, nowadays, Wikipedia.

1.2 Scope

Page 4, 3^rd paragraph: "strike a balance between ensuring ...". A knowledge oriented policy through copyright should well define its objectives, scope, and related instruments. In particular, it should aim at the greatest freedom, for the greatest number of knowledge suppliers, users, and brokers. It should monitor and correct any situation in which access control would raise market's entry barriers and consequently set out of balance the interests of all parties involved in the knowledge economy. State intervention should also take into account objectives of general interest, such as freedom of expression and the promotion of the European linguistic and cultural diversity.

In this respect, AIB would like to propose the following definition of knowledge economy:

Knowledge economy is the one whose content is acquired, recorded, processed and disseminated in cultural and educational institutions and points, such as universities, schools, museums, libraries, archives, and other licensed suppliers.

This definition would have the merit to link closely knowledge products and services to the already existing knowledge infrastructure, and in particular to those points of access where electronic products and services are consumed.

In a consumer-oriented policy the principle of mandatory exceptions to the copyright rules is the necessary counter-balance to what would be otherwise the overwhelming power of one of the actors of the knowledge economy chain: the publishing industries. The protection of intellectual property cannot become the bottle-neck through which content remains inaccessible. The 2001 Directive on copyright in the Information Society has restricted access to such a point that content is paradoxically not even accessible to the institutions that paid for it and where it was originated.

2.   General issues

Page 4, 4^th paragraph: "Authors ... and in particular performers, argue that they have not earned any significant revenue from the exercise of the "new making available" right". The Italian Library Association agrees with EBLIDA's position on this matter and strongly disagrees with a recent proposal [1] about the extension to 95 years of the term of copyright protection of sound recordings [2]. Directives and national legislations about copyright and related rights should aim to promote creativity and access to knowledge, balancing appropriately the interest of authors and other copyright owners with the interest of users and consumers; they should not favourite monopolies, they should operate in favour of competition and freedom of market.

AIB would also like to note that there is no mention of open access in any part of the Green paper, although it is well known that open access is a key component of the knowledge economy. More than one hundred universities among the most prestigious in the world have established policies for their researchers to deposit papers in institutional repositories and make them accessible world-wide.

It should be noted that general publishing and scholarly communication follow two distinctive paths: in scholarly communication, authors do not usually receive any remuneration for the rights they waive to publishers. Therefore, they do not draw any benefit from increased protection of scientific content. Scientists and researchers, students and disabled people, are interested instead in the principle of free flow of information. So, the philosophy behind the 2001 Directive on copyright in the information society should be reversed when applied to the research community. It is not copyright that should be protected and exceptions be established to the principle of copyright protection, but rather the other way round: the general principle should be free access to information and exception to this principle should be established for content-derived products, for special uses and prescribed practices.

Notes

[1] See the EU Commissioner Mr. Charlie McGrevy proposal, Brussels, 14 February 2008, <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/240>.

[2] See the AIB's President letter to some European Commissioneers, 1 July 2008 <https://www.aib.it/aib/cen/copyr0807.htm>.