UKOLN Universities as publishers: competitors or partners in the digital revolution?

A paper prepared by Emanuella Giavarra, LLM, following MODELS 10

The 10th MODELS workshop on Rights Management organised by UKOLN, opened the discussion on the changing role and perception of the academic library, the justification of library exceptions under electronic copyright and the benefits of strategic partnerships with rights holders and other players in the digital environment. It was in this context that this discussion paper was prepared with a view to stimulating further discussion.

Context

New technologies are altering the way in which information is prepared, stored and disseminated. It enables libraries to be publishers and publishers to be libraries. However, there are less restrictions on publishers wanting to set up an electronic library than there are for academic libraries to set up as an electronic publisher. The stumbling block is copyright. As both publishers and libraries serve the same scientific and professional communities, copyright is an important instrument for rights holders to regulate the new digital opportunities.

Copyright

Copyright provides the framework upon which publishers can licence library activities. Alternatively, copyright also provides an opportunity for academic libraries to become rights holders in their own right. An examples of this is the copyright in the production of databases and self-publishing activities. The introduction of licences was embraced as a means of providing certainty in a legal vacuum. To avoid giving too much of their future services away, rights holders have allowed academic libraries to deliver electronic services within their university community on a non-commercial basis. This was perceived to be a controllable environment which likewise could serve as a testing ground for future services.
In the meantime, rights holders have tried to convince governments that there is no justification for library exceptions in electronic copyright and that licensing has proved to be a satisfactory solution for both parties. An argument often used in this context, is that by giving special rights to libraries under copyright law, libraries would be given an unfair economic advantage. This argument has been fuelled by several academic libraries and library related institutions starting to express the wish to set up commercial electronic delivery services or to engage in self-publishing activities. This has made the library exceptions under copyright even more difficult to justify and defend.

WIPO Copyright Treaty

The legal justification for the library exceptions for print and digital material can be found in the 'three step test' in Art. 9 (2) of the Berne Convention and Art. 10 (1) of the WIPO Copyright Treaty of 1996. Art. 10 (1) reads as follows:
"Contracting Parties may, in their national legislation, provide for limitations and exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with the normal exploitation of a work and do not unreasonably prejudice the legitimate interests of the author."
This means that the UK government is only allowed to provide for library exceptions for services which are not in direct competition with (future) services provided by rights holders. This Treaty was due for implementation in the Copyright Act in 1997. Before the UK government made a start on this, the European Commission published on 10th December 1997 the draft EU Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society (Com 97-628 final). The overall aim of the draft Directive is given in the Explanatory Memorandum - 'to present harmonising measures in order to bring about a coherent and favourable environment for creativity and investment in the framework of the Internal Market'.

Draft EU Copyright Directive

It seems to become inevitable that this Directive will replace the existing library privileges provided under Art. 28-76 (Acts Permitted in Relation to Copyright Works) of the UK Copyright Act 1988, with a closed list of mandatory and optional exceptions which apply both to the print and digital environment. The exceptions are listed in Article 5. The Commentary on Article 5, states that 'Member States will not be allowed to provide for any exceptions other than those enumerated'. The exceptions have been reduced to:
Exceptions for right of reproduction:
1. transient and incidental acts of reproduction (mandatory)
2. reproductions on paper (not sheet music), fair compensation (optional)
3. reproductions on audio, visual or audio-visual recording media, analogue and digital, only for private and strictly personal use, for non-commercial ends, fair compensation (optional)
4. reproductions for archiving or conservation purposes by libraries, archives and other teaching, educational or cultural establishments (optional)
Exceptions for right of reproduction and the right to communicate to the public:
1. illustration for teaching and scientific research, for non-commercial purposes, fair compensation (optional)
2. uses for the benefit of people with a disability (optional)
3. use of excerpts in connection with the reporting of current events (optional)
4. quotations for purposes such as criticism or review (optional)
5. for purposes of reporting of an administrative, parliamentary or judicial procedure (optional)
The Commission justifies the limited list in applying the 'three step test'. The activities listen in Article 5, according to the Commission, do not cause (not severely at least!) unfair competition with existing and planned activities of the copyright industry. At least not for the foreseeable future.
The legal solution for other activities that academic libraries want to undertake can be found in the Explanatory Memorandum to the Directive. The Memorandum states 'with respect to the use of digitised material by libraries, on-line as well as off-line, initiatives are on-going in a number of Members States, notably the UK, where library privileges are most developed, to arrive at more flexible contractual solutions'.
This shift in the focus of attention from a bundle of exceptions which has developed over many years in the print-on-paper environment towards contractual licensing solutions, especially accompanied with a broad protection of the rights of the rights holders is one that should make universities wary. In the information age, there is every indication that the legal ordering concept of contract is being used to sustain a society based on the commodification of information [1]. There is scope for the State to play a major role in providing legal safeguards for access to information and specific services within the HEI community.

Compromise?

After nearly two years of discussions, the EU Council Working Party on Copyright is still far away from consensus over the scope of the exceptions listed in Article 5. There is a clear indication in a draft for a new Art. 5.3 (k) that governments may be allowed to provide for exceptions which were traditionally allowed. The draft reads:
"Use in certain other cases of minor importance where exceptions already exist under national law provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the exceptions and limitations contained in this Article."
A status report on the discussions will be presented at the Internal Market Council on 7th December 1999. The Portuguese presidency plans to reach a political agreement/ common position in March 2000.

Licensing issues

The increasing importance of contract law in regulating the use of digital resources has brought the question of the necessity of copyright exceptions to the fore. Contract law is dominated by the concept of freedom of contract - that is to say the parties to a contract are free to negotiate the terms of use of copyrighted materials or indeed waive the rights that the copyright law grants them. This is all fair and good where negotiations are conducted by equal parties. In the case of copyright works it should not be forgotten that one party has an exclusive right (monopoly) right. Particularly in these cases, copyright exceptions are an essential tool to guarantee access to information and library services in a contractual environment.

Self-publishing

As a reaction to licensing restrictions, existing pricing models and severe price increases for acquiring electronic resources, universities are more and more discussing the possibilities of retaining or sharing copyright with publishers in publications published by in-house researchers. This would introduce a whole new set of opportunities, problems and business models. This is one particular area where publishers and libraries have complementary expertise which should be explored. As database and copyright owners in their own right, academic libraries would be able to enter into partnerships on a more equal footing.

Co-operation

In the recent STM White Paper on Publisher/Library Relationships in the Digital Environment [2], the call for co-operation and partnership is summarised as follows:
"Scholarly information is at the cross-roads. Publishers, intermediaries and librarians exist in a state of mutual inter-dependence. The extent to which we co-operate in developing and delivering products and services to academic and professional readers and, indeed, to society in general will determine the future of our professions. We have to revitalise our dialogue on the many issues and matters of mutual concern to the entire community of research and scholarship."
The discussions in the PA/JISC working groups has indisputably enhanced the understanding and co-operation between academic libraries and publishers in the UK. There is a case to open up these discussions to authors' representatives, especially in the light of the recent judgement in Tasini v. New York Times Inc.[3]. Moreover, as universities wish to embark on self-publishing activities, good relationships with authors are of prime importance.

Issues for further discussion

Copyright exceptions/licensing

It is claimed that wide exceptions under copyright have the potential to undermine the development of new models, and make electronic information prohibitively expensive. Publishers are calling for a detailed analysis of the economic consequences of copyright exceptions. This raises important questions:
Can academic libraries still justify their need for special privileges under electronic copyright law for teaching, education and research?
Can one devise a rule of thumb test to discern "competitive activity" from "non-competitive" activity under the "three step test"?
How should universities and academic libraries respond to "ring fencing" practices whereby rights holders adopt or purport to adopt activities to extend the areas of "competition" with academic libraries?

Co-operation and partnership

Is there scope for the creation of a "talk shop" to enable discussions between the academic libraries, author representative organisations and publishers over the new issues and opportunities that arise from the new technologies?
Should universities and academic libraries be made more aware of their assets and where should academic libraries' strategic partnerships of the future lie?

EMANUELLA GIAVARRA, LLM
Chambers of Mark Watson-Gandy
30 November 1999

References

1. Prof. Gail Evans, Professor of Law South Cross University Law School, NSW Australia, Opportunity Costs of Globalising Information Licences: Embedding Consumer Rights Within The Legislative Framework for Information Contracts, April 1999.
2. Publisher/Library Relationships in the Digital Environment, An STM White Paper, prepared by John E. Cox, April 1999.
3. Tasini v New York Times et al, 27 September 1999 (http://www.nwu.org/tvt/9909vic.htm).

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