EBLIDA on EU JURI Committee consideration of copyright

EBLIDA, the European Bureau of Library, Information and Documentation
Associations, has written an open letter to MEPs on the EU parliament legislative affairs (JURI) committee review of Manuel Medina Ortega's report on copyright last week. They are asking for the Ortega report to be rejected.

"Our reasons are that the Report contains assertions that are contrary to independent expert evidence, and that it take no account of the importance of lawful access by the public, through the exceptions to copyright, to the world of published information.

Libraries have traditionally striven for an equitable balance between the interests of the rightsholder and those of the user. The Ortega paper however is unbalanced, paying little attention to the important role of exceptions to copyright. Not only does it talk of libraries, with whom to our knowledge Mr Medina Ortega has sought no consultation, but also it misrepresents the fundamentals of the debates on Orphan Works, and contradicts the numerous submissions from the European library community to the Commission's recent Green Paper on "Copyright in the Knowledge Economy." [1]

EBLIDA respects authors' rights as the basic pillar of the copyright régime. However, the exceptions to copyright are equally part of the fabric of the régime. It is important that we have a strong copyright system that represents both the interests of the rights holders as well as the users - something Mr Ortega's report regrettably does not attempt to do. We need a viable exceptions regime, because exceptions guarantee broadly speaking human rights, access to knowledge, education and culture, and form the basis of a strong social contract of respect that will benefit all within our Information Society.

At first sight the Information Society Directive is reasonably accommodating to the exceptions to copyright. In quantity, the exceptions it potentially provides are more generous than those implemented by most Member States. However, some major defects fundamentally weaken its carefully enumerated list:

. The list of exceptions is exhaustive. It keeps the exceptions firmly in the twentieth century by limiting those available to provisions that have been found useful in the past. In a matter as important to Europe as the knowledge economy, the Directive shows a failure of nerve, in this respect, that can only be damaging for the future. No new exceptions may be added by Member States in national legislation. It is strange that an exclusive list can be thought to be adequate in the light of the evolving Internet technologies.

. It is also unfortunate that (apart from the first) the list of exceptions is optional. Member States have chosen different exceptions, with the result that harmonisation has not been achieved.

The assertion in Mr Medina Ortega's report that the Directive is 'satisfactory' takes no account of the independent and exhaustive study conducted by the Institute for Information Law at the University of Amsterdam in 2007 which concluded (p.169), 'In sum, it is fair to conclude that the Directive has at best only partly achieved its main goal of promoting growth and innovation in online content services. As our benchmark test has revealed, the Directive deserves particularly low marks for its lack of harmonising effect and its lack of legal certainty'. [2]

With regard to Orphan Works, the Ortega Report displays a regrettable lack of understanding around the issues, and disregards the positive work embarked upon by libraries and rightsholders with the InfoSoc DG. By definition an Orphan Work does not have a traceable owner and therefore, in contradiction to the Ortega statements, it cannot be digitised with the permission of the rightsholder. The inadequacy of the Information Society Directive is illustrated by the fact that the Commission's i2010 Digital Library Initiative includes no significant numbers of orphan works. This limit on its usefulness will remain because there are no proper exceptions to cope with the Orphan Works problem - unless new statutory solutions are introduced.

The goal of the Commission Recommendation 2006/585/EC of 24 August 2006 is to make the European cultural heritage online available to the public. The realisation of this goal requires mass digitisation. However, in the "Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works" and the "Memorandum of Understanding on orphan works" the question of mass digitisation is not addressed. Even within its limited scope, the Memorandum, which covers only the digitisation of individual works, does not provide libraries with any legal certainty. Legal certainty would require

. either that Member States have recourse to Recital 18 of the Information Society Directive and adopt extended collective licensing, like the Nordic countries,

. or that they introduce an exception, or other statutory solution, in order to allow the copying and making available of works (notably unpublished works) for which no appropriate licensing body exits.

Any innovation in national legislation to permit the use of orphan works would require either amendment of Directive 2001/29/EC or the creation of a new Community legal instrument to allow this.

This message is on behalf of the libraries of Europe, and also on behalf of Europe's citizens, who use their libraries to obtain much of the important information they need.

Yours sincerely

Andrew Cranfield
Director of EBLIDA"

Thanks to Barbara Stratton of the Chartered Institute of Library and Information Professionals (CILIP) for the pointer via the A2K list. CILIP, LACA (the Libraries and Archives Copyright Alliance), SURF (http://www.surf.nl/en/Pages/home.aspx); and SCONUL: the Society of College, National and University Libraries, UK (http://www.sconul.ac.uk) all co-signed the letter.