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6 Copyright
& licensing issues

Introduction

6.1

The success of the UK Public Library Network will depend crucially on its ability to make substantial amounts of material ('content') accessible via the network. This in turn will depend on those who own copyright in content (including their licensees - for example, publishers) being willing to permit its inclusion on an agreed commercial basis in the databases to which the network will be connected.

6.2

In the vast majority of cases, the digitisation of content and its incorporation into the databases connected to the library network, and its subsequent accessing (and possibly copying) by users, will require permission from the copyright owners. In some cases it may be possible to obtain permission through relatively uncomplicated negotiations with the copyright owners (see paragraphs 6.29 and 6.30). In many other cases, however, permission may be harder to extract.

6.3

This permission will be granted in the form of licences - preferably based on a standard licence or on a set of standard licences prepared in advance to set the agenda for negotiations with copyright owners. There is a lot of work taking place by various interested parties to point the way forward.

6.4

In responding to any request for permission, most copyright owners will be predominantly influenced by two considerations:

1. Will their rights be adequately protected, given the current state of copyright law and the procedures for rights administration and enforcement proposed for the network?
   
   
2. Will they obtain a satisfactory return for granting permission to download content on to the network?
   
   

6.5

Having determined who should be approached on behalf of copyright owners - and also whether they are entitled to grant the rights required and whether warranties and indemnities should be obtained from them - the agency responsible for managing the content on the network will have to address these questions in reverse:

1. Can adequate assurances be given in relation to protection of copyright, and what steps should in principle be taken to protect the copyright owners' rights?
   
   
2. Will the network generate the sums necessary to offer a return to those copyright owners that demand one?
   
   

6.6

The UK public library sector benefits from certain special privileges (see paragraph 6.23). Although these cannot easily be transposed into the electronic domain, they should not be neglected in the search for an equitable balance between the UK Public Library Network and copyright owners.

Protection of rights on the network -
summary of the copyright position

6.7

UK law in this area - the Copyright, Designs and Patents Act 1988 (as amended) - is further developed than that of many other countries. It provides that copying a literary, dramatic, musical or artistic work includes 'storing the work in any medium by electronic means' (although this provision omits sound recordings and films). It also states (Section 17) that copying in relation to work of any description includes making 'copies which are transient or are incidental to some other use of the work'. Both 'electrocopying' and 'digitisation' are therefore included in the concept of copying.

6.8

The unauthorised downloading into a computer of electronic copies of material or extracts from databases accessible via a network will therefore infringe copyright under UK law, subject to 'fair dealing' and other exceptions to infringement (see paragraph 6.23). The printing out of such material from screen would also amount to an infringement of copyright.

6.9

Transmission of copyright works via telecommunications systems and therefore via networks is also generally considered to be an infringement of copyright.

6.10

The law itself, as it stands in the UK, therefore:

1. requires the agency managing content on a library network to obtain licences from the copyright owners; but
   
   
2. allows copyright owners to grant a licence to make their content available on the network in the knowledge that remedies are in principle available in the UK against infringements.
   
   

6.11

It does need to be acknowledged at the same time that the copyright issue is not restricted to the UK but is a global one. Copyright owners will own rights in other countries, and the UK Public Library Network, if delivered via the Internet, will be accessible to users around the world. This creates the possibility of infringements occurring overseas or involving overseas rights. A number of initiatives are being taken to attempt to harmonise laws internationally to deal with some of these problems, although legislation is still some years away. A first step has been taken with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, agreed by the World Intellectual Property Organisation in December 1996.

6.12

The existence of similar initiatives in other sectors - such as the site licensing model developed jointly by the Publishers Association and JISC - will serve to reassure copyright owners. In the non-profit sector, networks such as SCRAN (the Scottish Cultural Resources Access Network) point the way to the creation of networks with primarily educational content aimed at schools, and in the commercial sector there are numerous examples of databases being set up which charge for access and downloading.

Protection of rights on the network -
administrative procedures

6.13

Copyright owners who are invited to contemplate the possibility of licensing material for the network will need to be reassured by the agency responsible for managing the content that:

1. procedures will be in place whereby infringements of copyright occurring on the network can be monitored and, when identified, the relevant copyright owners will be informed;
   
   
2. appropriate steps will be taken to restrain instances of unauthorised copying of material from the network.
   
   

6.14

Rapid action taken in sustainable cases will dissuade others from infringing copyright material accessed via a library network. Who should take these steps, however, will be a subject for negotiation between the content management agency and the copyright owners.

6.15

Given the cost involved in enforcing copyrights, it is recommended that it should be a term of the standard licence proposed by the content management agency that it is the copyright owner's responsibility to take action in respect of any infringement which comes to light (see paragraphs 6.34 and 6.35). However, copyright owners are likely to be persuaded of the merits of this approach only if the agency agrees to take practical steps to minimise the risk of infringements. The agency's responsibility could be limited to monitoring and informing copyright owners of infringements, while making the terms on which users can access material from the network very clear (see paragraphs 6.37 and 6.38).

6.16

The problems of enforcement of copyright and indeed of identification of unauthorised copies or copying should not be underestimated. However, there are various practical and technical means of protection to buttress the existing protection afforded (at least in the UK) by copyright law. There are many experiments currently under way involving the use of encryption and security-key technologies to allow access only to authorised users - for example, those who have paid the requisite fee or can prove their right to access - as well as electronic copyright management systems such as COPICAT, COPEARMS, COPYSMART and IMPRIMATUR. Some of these technologies are now being used in connection with electronic banking and other commercial activities on the Internet.

Can copyright owners be offered
an attractive return?

6.17

Most (though not all) copyright owners can be expected to demand some return in exchange for permitting the digitisation of their material and its incorporation on to the network.

6.18

One initial project for Public Library Networking Agency should be to investigate the categories of copyright owners for whom a non-financial (or very modest financial) return would be adequate. These are most likely to be found in public-service and non-profit sectors. Foremost among them will be other libraries, but they will include other groups and bodies for whom public access and education are policy objectives as important as generating revenue:

1. local libraries and library networks;
   
   
2. educational and academic institutions;
   
   
3. charitable trusts;
   
   
4. museums and galleries.
   
   

6.19

These groups will own copyright in material which will be a vital component on the national network. There may well be scope for negotiating licences with such bodies in return for non-financial benefits or a relatively modest licence fee, although they can be expected to seek a commercial return for commercial exploitation generated by the network (see paragraph 6.21(e)).

6.20

It will take time to accumulate content on the UK Public Library Network.There are clear advantages in building critical mass in the early stages by acquiring content that is both quantitatively and qualitatively credible from sources in the public-service and non-profit sectors. However, as time progresses, libraries will need to widen their scope and embrace content from the vast array of commercial sources.

6.21

For copyright owners who license content commercially, the expected return for the grant of a licence will be largely financial. It will typically take the form of a royalty, but should take account of the following (accepting that these are all matters for negotiation):

1. the limits on affordability imposed by the amount of revenue generated from funding sources and charging (see Chapter 5);
   
   
2. some level of discount to reflect the primarily non-commercial nature of the library network, and the possibility that users - or certain users such as educational users, students, etc. - may be able to access it free of charge;
   
   
3. a discount to reflect the exemptions afforded to libraries under copyright legislation in the UK (see paragraph 6.23);
   
   
4. whether the royalty should be a one-off fee rather than a continuing liability (supplementary fees could be offered on digitisation of new editions or revised editions of works), or whether the fee should be based on usage measured by 'hits' on the system or on some other pricing model (e.g. printing fees or subscription payments);
   
   
5. to the extent that there are any commercial spin-offs from the library network, then commercial rates or near-to-commercial rates could be offered in relation to these;
   
   
6. any possibility of ancillary benefits - such as publicity - accruing to the copyright owners as a result of their works being incorporated on the network could be factored into the royalty calculation;
   
   
7. any precedent set by the payments made under the Public Lending Right scheme.
   
   

6.22

It must be a fundamental premiss for the agency seeking the licences that all rates are negotiable. Opportunities for royalty-free or low-royalty licences from copyright owners in the business sector should not be ignored. Databases containing commercial information, for example, might be licensed for a modest return that reflects the promotional/advertising benefits of inclusion in the national network (see (f) above).

The special position of libraries
under UK copyright law

6.23

Sections 37 to 44 (inclusive) of the Copyright, Designs and Patents Act 1988 contain special provisions that relate to copying of copyright material by prescribed libraries and archives. Under these provisions it is possible for the librarians of prescribed libraries to do certain things which would otherwise be infringements of copyright:

1. to make and supply a copy of an article in a periodical; and/or
2. to make and supply a copy of a reasonable proportion of a published work
   
   

provided that certain conditions are complied with. These conditions are, broadly speaking, that the person requesting the copy confirms that it is required for the purposes of research or private study; that only one copy is supplied; and that at least the cost of making the copy is paid. Multiple copying is prohibited.

6.24

Nothing here militates in principle against the making of such copies, their supply, or the confirmation of fulfilment of the conditions, by electronic means. The conditions mentioned in the previous paragraph could be incorporated into the licence terms applicable to users of the network, or they could be included in special 'non-paying' licence terms.

6.25

There are certain practical difficulties, such as ensuring that only one copy will be made if it is transmitted via the Internet, and obtaining a signed declaration from the person requesting the copy. These are most likely to be addressed in the context of the technical forms of protection (for example, encryption, security technology) currently being developed.

6.26

As indicated in paragraph 6.21, these special provisions should be taken into account in any negotiations with copyright owners in relation to applicable royalties or fees.

Who should be approached on behalf
of copyright owners?

6.27

The number of copyright owners who will need to be approached will be very large. It will increase in proportion to the number, and type, of copyright works which are sought to be incorporated on the network.

6.28

The cost of negotiating with each of the copyright owners individually will be prohibitive, quite apart from the time involved. What will be required, therefore, is:

1. a collective approach on behalf of the entire sector - which is implicit in the idea of a managed network serving libraries throughout the country (see paragraph 6.32);
   
   
2. that, wherever possible, any approach is made to collective bodies empowered (or who may become empowered) to negotiate on behalf of entire groups of copyright owners. Examples of such bodies are the Authors Licensing and Collecting Society (ALCS), the Publishers Association, and Mechanical Copyright Protection Society Limited (MCPS). Other bodies could be approached, depending on the nature of the material which is sought to be included on the network and the way in which it can be exploited or used by users - for example, the Performing Right Society Ltd in relation to public performance or broadcasting of musical works, or Phonographic Performance Ltd in relation to public performance or broadcasting of sound recordings. There may also be scope for using the Public Lending Right scheme as a platform from which to approach authors or their estates, at least in respect of books eligible under the scheme, although this would necessitate amendment to the relevant legislation;
   
   
3. that, wherever possible, model licences are developed for groups of works, to avoid the need to seek clearance for every single work.
   
   

6.29

There might be a number of ways of dealing with the need to obtain licences from copyright owners via collective licensing bodies representing them. Either a licence could be negotiated with the body on behalf of its members (assuming that the body was or became duly empowered to grant such a licence), or a form of licence could be negotiated which the body could then recommend to its members.

6.30

In sectors which are relatively informally organised and have no collective body, attention could nevertheless be focused on bodies which 'represent' their sectors. In the case of museums and galleries, for example, the Museum & Galleries Commission and/or the Museums Association could be approached and a 'model' licence be negotiated for use with museums and galleries. A similar model agreement would need to be developed for use with local libraries/library networks.

6.31

The problem of how to deal with material where the copyright owners are difficult or impossible to trace will need to be addressed. It could be a contractual term applicable to users of the network wishing to copy such material (or even calling for it to be made accessible on the network, thus requiring someone else to copy it by putting it on the system) that they indemnify the networking agency against claims arising. However, enforcing such indemnities may not be cost-effective. Another solution to this type of problem would be for the networking agency to undertake a risk assessment of the likelihood of claims and then, based on this risk assessment, build a contingency for claims into its budgets. The possibility of obtaining insurance to cover the risk of claims should not be ruled out, although the premiums offered would have to be set at a feasible level for insurance to be a full answer.

Who should negotiate, and who should
hold the licences?

6.32

It is likely that the agency responsible for negotiating the terms of the licences will need to be separate from, though working under contract to, the proposed Public Library Networking Agency that will hold the licence (see also Chapter 4). The purpose of such a separation would be to reflect the following principles:

1. the content on the network should be managed by a professional agency chosen for its expertise in administering networks and in negotiating with third parties, and which is very likely to be either a commercial entity or driven (at least in part) by commercial interests; this agency may therefore need to be different from the public-interest-type body (a charity?) which 'owns' the network or on whose behalf the network is managed;
   
   
2. the content management agency may be retained under the terms of a management contract which may be terminated or expire, whereas the licences from copyright owners should (so far as possible) be perpetual or of long duration (see paragraph 6.35);
   
   
3. the content management agency will be capable of becoming insolvent, whereas the licences should be immune to any disappearance of this agency.
   
   

6.33

If this separation of functions is adopted, then any agreement between the content management agency and the Public Library Networking Agency will need to contain a grant to the content management agency of any rights needed to carry out the management function.

The terms of the licences

6.34

As indicated, the terms of the licences should be as standard as possible, on grounds of cost, ease of negotiation, and transparency.

6.35

In determining what terms the licences should contain, the following are among the issues that will need to be considered (acknowledging that these are matters for negotiation):

1. the rights granted, including:
   1. the digitisation of the relevant works or, if the works are accessible online, permission to access and/or download them (more sophisticated provisions would be appropriate in the case of licences to allow whole databases to become connected to the national network);
      
      
   2. the incorporation of the digitised content on to the network (or making it accessible via the network);
      
      
   3. the right to enable users to access this material and any rights to copy it, and in what circumstances or on what terms such rights may be exercised (see paragraphs 6.37 and 6.38);
      
      
   4. any ancillary rights to exploit the material commercially;
      
      
   5. the right to create hypertext links from content pages to other sites;
      
      
2. what works are covered by the licence;
   
   
3. the duration of the licence - preferably perpetual or of long duration;
   
   
4. the warranties sought from the copyright owner - in particular that:
   
   
   1. the copyright owner is entitled to grant the rights licensed;
      
      
   2. the content management agency will not be exposed to claims in defamation or for other unlawful statements made over the Internet (negligent misstatement, breaches of confidence or privacy, etc.) - these warranties will be important, because the content management agency will have neither the time nor the resources to vet content;
      
      
5. an indemnity against breaches of the above warranties;
   
   
6. which party bears responsibility to take action in respect of any infringements.
   
   

6.36

Specific model licences could be developed for use with public access/educational-type licences (see paragraph 6.18). These licences might contain reciprocal provisions benefiting the copyright owners - for example, by granting hyperlink access to their content on the national network fro m local library networks, university intranets, and museum or gallery Web sites.

End-user terms

6.37

Copyright owners will have an obvious interest in the terms on which end-users will be permitted to gain access to the network. These terms will almost certainly have to be agreed by or acceptable to the copyright owners, and will need to be drafted by reference to the technical gateways established for the network.

6.38

The terms applicable to end-users will be contractually binding even if imposed via the network, provided that:

1. the terms are brought to the reasonable notice of users before they communicate their acceptance of the service - perhaps on a screen which appears before the screen on which acceptance is communicated; and
   
   
2. a contract actually exists; this requires that consideration of some sort passes from the user. Consideration can taken the form of promises in return or of payment. The existence of such promises in return will be determined by the record of any communications between the parties.
   
   

Other rights

6.39

There will be material on the network in which the content management agency can claim rights because it will have been generated for the purposes of running the network:

1. explanatory material, screens, screen layouts and the like - care should be taken to ensure that whoever is commissioned to create these works should assign the copyright in them to the content management agency or to any other body holding the rights (see paragraph 6.33);
   
   
2. the act of compiling all the material for the network will (provided, of course, that such compilation is licensed) create databases which are currently protected as full copyright works in the UK - they fall into the category of literary works (as compilations). Following implementation of the European Directive on databases, the databases will probably attract the new form of protection provided in the Directive. Again, whoever is commissioned to compile the databases should assign the copyright in them to the content management agency or to the body holding the rights in the network.
   
   

6.40

In addition, as already indicated, local libraries/library networks will also have created material and databases in which they will own copyright, and which should merit special treatment as falling into the public access/educational category.

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