European Commission Consultation 2014 Professional

You are a librarian or information professional

Libraries, archives and museums have the important mission to conserve and provide access to culture and knowledge. This role has become increasingly more complex in the digital environment primarily due to obstacles raised by copyright legislation. Mechanisms needs to be put in place that allow the digitisation of cultural goods in order to allow their conservation and transmission.

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To prepare your response, we recommend that you read the following proposals:

4. Library and archive rights to make available orphan works free-of-charge and with wide use rights

For years, we have known what is the right solution for giving back to our common heritage the very many orphan works. One has only to put in place an extended collective licence mechanism, giving libraries and archives as well as any other player whose mission it is, the freedom to make orphan works available in digital form, and to every person the freedom to access them and use them at least without commercial aim. This scheme would not require payment by users, but could be associated with a guarantee fund (financed by the State or parafiscal resources) which would protect users against claims of reappearing right holders (in general publishers or heirs of deceased artists). In no case should there be any compensation for use prior to the reappearance of right holders. Scandinavian countries have put in place schemes of this type, and their compatibility with the European legal framework does not raise any doubt.

A European directive proposal presently in legislative process institutes (as it stands) an imperfect regime for orphan works. On the bright side, it aims at making possible for libraries and archives to make them available to the public. However, the present text has severe flaws. It requires a "diligent search" before an user can consider a work to be orphan. This entails a significant legal uncertainty, and may lead libraries (often risk-adverse) to abstain from exerting their rights. It puts in place compensations for use of works before the reappearance of right holders. This risks leading to ambush behaviour, where some right holders would let use develop and when it it becomes significant ask for compensation (see point 12). It lists limitatively the permitted uses, including forms of use that are not subject to copyright such as indexing and cataloguing. Finally, the list of possible beneficiaries is limited.

Despite these flaws, the European text is infinitely preferable to the French law on out-of-print works, that is entirely focused on commercial exploitation rights under a collective management scheme, despoils authors by leaving them only with an opt-out possibility, de facto forbids non-market uses, and deprives the public from the access to orphan works. Orphan works should be treated completely separately from out-of-print works. For the latter, it is authors who must be empowered, through the imposition of a separate contract for digital publishing and through a systematic return to authors of rights in case a paper book is no long in print (see point 7).

5. Freedom of non-market collective use

Besides non-market activities of individuals, non-market collective activities play an essential role for access to knowledge and cultural life. They take place for instance in libraries, museums and archives. Typical activities are the free-of-charge public performance of copyrighted works in sites accessible to the public; the use of digital versions of copyrighted works by non-profit organizations; providing reproduction means to users within non-commercial organizations; and libraries or archives giving access to digitised resources they have in their possession.

Today, such collective use takes place within constrained, heterogeneous and ill-adapted legal frameworks. Prejudiced views according to which in the digital world, collective use would harm sales to individuals lead right holders to use their prerogatives to prevent libraries from letting users access digital works. In a context where the non-market exchanges between individuals would be legalized, it would nevertheless be paradoxical if we do not recognize extended collective use rights in parallel.

To this effect, one needs to put in place the following measures:

• Non commercial performance of copyrighted works: creation of a non-compensated exception, through the transformation of the exception for public performance within the family circle into a non-commercial public performance exception.
• On-line non-market use of copyrighted works: moral persons developing not-for-profit activities must benefit from the same access rights than individuals within non-market sharing.
• Provision by libraries of reproduction means (including lending digital reading devices) to users: such use must be assimilated to private copies, even when there is a transmission to a distant facility.

Finally, the role of libraries in making available digital versions of non-orphan copyrighted works (beyond lending reading devices) raises important questions. A wide set of solutions can be considered, from libraries becoming the source and provider of a reference copy of all works to an exception with compensation to right holders.

14. A positive statute for the public domain and the voluntary commons

These last 30 years, the most important debates on culture and innovation regarded the respective definition of what can be made an object of private property or exclusive rights, and what must be considered as common. Examples of such debates were:

• the definition of the scope of patentability,
• the delineation of the use rights that must be recognized to everyone even for copyrighted works,
• the enforcement of exclusive rights and the burden of proof of either infringement or the legitimacy of use,
• the ability to share voluntarily one own'w works without being punished by losing some resources.

Such conflicts arise in an unequal playing field. Exclusive rights invoke property rights, identifying intellectual rights with physical property despite all evidence of their different nature. They are also powered by the thick wallet of right holders. In contrast, the rights of each of us are dispersed interests, which can invoke fundamental rights, but without the public domain and communs being granted per se a legal standing.

For these reasons, researchers and legal scholars formulated the project of a positive statute for the public domain, voluntary commons and essential user prerogatives towards works, including the prerogatives of creative workers who need to access and reuse existing works. The aim is to revert, or at least rebalance the situation where the public domain is at most considered as residual or as a market failure, the commons are considered as a territory that one has not yet been privatized, and the user prerogatives are considered as a tolerance that one has consented to because one had not yet found ways to annihilate them. On the contrary, as soon as a positive statute for these common entities will be in place, one will have to consider the impact of any measure on their perimeter, their growth, their maintenance and their effective accessibility.