ACLIS response to IPA statement


Subject: ACLIS response to IPA statement
From: ACLIS (aclis@nla.gov.au)
Date: pe 01 marras 1996 - 18:24:00 EET


LIBRARIES, COPYRIGHT AND THE ELECTRONIC ENVIRONMENT

A response by ACLIS to the Statement adopted by the International Publishers
Association

In April 1996 the International Publishers Association (IPA) adopted a
statement on Libraries, Copyright and the Electronic Environment which made
a number of comments about the changing role of libraries and publishers in
the electronic information environment, and the consequences of such changes
for copyright law. The issues raised in that statement are of great
interest to Australia's libraries.

The Australian Council of Libraries and Information Services (ACLIS) is the
national, cross-sectoral industry body for libraries and information
services and has almost six hundred members, including every large library
in Australia and a large number of smaller libraries. ACLIS' mission is to
achieve effective access to information for all Australians through
cooperative action among libraries and information services in all sectors.
 ACLIS believes that a dialogue between authors, publishers and other
copyright owners on the one hand and libraries on the other hand is critical
if a new and far copyright regime is to apply in the digital era. ACLIS is
issuing the following response to the IPA statement with a view to
furthering that dialogue.

1 The changing environment

The IPA statement contains several references to the changing nature of the
information business. Many of these changes are being driven by new
technologies of information storage and transmission. The IPA observes
that:

The technology provides new services, new products, and new roles for
information providers. Further, the fact that the electronic environment is
both developing and constantly changing requires the various players to
continually readjust their roles while still managing their basic jobs...
 And through it all ... the marketplace is changing too. It makes for
unsettling times.

Libraries agree strongly with these observations. There is no question that
things are changing. The challenge is to find the most constructive way of
dealing with these changes.

2 Cooperation

Having noted the unsettling nature of the changing information environment,
the IPA goes on to stress the need for cooperation.

Both publishers and librarians are faced with the need to redefine the way
we provide service to patrons and customers.... These changes will
necessitate cooperation between publishers and libraries - cooperation
publishers are pleased to provide.

Again, libraries agree strongly with the need for cooperation between
different participants in the information business, particularly as regards
the introduction of new technologies and the development of modern copyright
laws and licence agreements. It could be argued, however, that the IPA
statement does not move the cooperative dialogue forward.

3 The true role of copyright

Any effort to bring copyright up to date must take account of the true role
of copyright laws. Unfortunately, in its statement, the IPA fails to give
an objective account of why copyright laws exist:

It is essential that while planning for the electronic environment of the
future everyone ... recognise the role of copyright in encouraging
creativity and the related publication of valuable information content.

Libraries have never questioned the important role of copyright in
encouraging authors, publishers and others to invest time, money and effort
in producing and distributing creative works. Libraries accept that
copyright protection must be such that appropriate incentives exist for
creative output.

What is more important, however, and what the IPA statement fails to
acknowledge, is that the true role of copyright is to promote learning,
culture and the free flow of information, knowledge and ideas in the
interests of all members of society. Encouraging creativity is a means to
this end, but it must be balanced against the need of the community to have
reasonable access to copyright material. The true role of copyright is to
serve the public interest. It can only do this by striking a balance
between the needs of copyright owners and the needs of copyright users.

Libraries have always accepted that publishers and other copyright owners
have rights under copyright laws. If there is to be a serious dialogue
about cooperation between publishers and libraries, it must be based on a
mutual understanding and respect for the rights of both parties.

4 Respect for the law

The IPA states that:

Respect for copyright and compliance with the copyright law is ... a
necessary building block without which no meaningful, vibrant content will
be available.

...changes in the nature of publishing will also necessitate changes in
behaviour by libraries if copyright is to be respected and fulfil its role.

Libraries agree strongly with the IPA that respect for copyright is
important. The implication of these statements, however, is that libraries
are in some way seeking to undermine respect for copyright. This is simply
not true. Libraries have long sought to promote respect for copyright by
explaining to their users what reasonable uses of copyright material are
lawful and what uses are not. As an interface between producers and users
of copyright works, libraries have developed a keen understanding of the
interests of both, and it for this reason that libraries have long supported
balanced copyright laws.

Respect for copyright will come from laws that fairly and reasonable balance
the interests of all parties, not from the repeated assertion that
'copyright must be respected' no matter how restrictive or inappropriate it
may seem.

5 Publisher rights

The IPA statement appears to take the view that, notwithstanding the many
changes going on, 'the traditional rights of authors and publishers must be
maintained'. It could be argued, however, that the views expressed in the
statement do not reflect an accurate understanding of what those traditional
rights actually are. It is asserted that:

copyright owners have long retained the exclusive right to authorize the
dissemination of their materials to remote locations.

This is not the case. Copyright owners have a bundle of exclusive rights
giving them control over certain acts of 'dissemination' but not others.
 Thus, for example, copyright owners have no right to stop libraries from
disseminating works by way of lending. Similarly, certain types of
transmission do not infringe copyright. To assert otherwise is to
misrepresent the facts and seems contrary to a genuine commitment to
cooperation.

It seems that in adopting this statement the IPA may have become confused
between the rights copyright actually gives them and the rights they would
like copyright to give them. Underlying most of the IPA statement is a
belief that publishers should own the right to control all possible uses of
their work, subject only to the controls of 'the marketplace'. Thus:

...any legislation that interferes with a copyright holder's rights to
create and develop new forms of publications and new types of electronic
value-added resources will only harm the public by discouraging such
creativity. The marketplace is a powerful incentive for creators.

...Unfettered economic balancing and refinement of markets will assure
publisher experimentation, innovation, and exploitation of multiple access
channels for the public.

...The marketplace will provide the balance needed to insure that publishers
reach their intended audience. Such a goal can not be legislated.

These statements demonstrate a profound lack of understanding of the nature
of copyright. Copyright is a limited statutory monopoly granted to
copyright owners to provide an incentive to the creation and distribution of
works for society to enjoy and benefit from. As a monopoly, it is a
necessary evil that must be subject to legislative constraints and checks to
ensure that it is not used in a way that is inconsistent with the public
interest. It would be completely at odds with the public interest to give
unfettered control of all uses of copyright material to the copyright owner.
 It is also a nonsense to claim that monopolistic control leads to
innovation. Surely the contrary is true.

6 Library and user rights

Having laid claim to the exclusive right to control all uses of copyright
works, the IPA statement then takes the view that the traditional rights of
libraries in a print environment cannot possibly be retained in the
electronic environment.

Rather than accept that 'browsing' is a reasonable right for copyright users
to expect in appropriate circumstances, the publishers seek to equate all
browsing with electronic copying. It is then asserted that:

Electronic versions are often as good or better than the original. They can
be replicated an infinite number of times with no image degradation. They
can be distributed electronically, worldwide, in an instant. The impact of
unauthorized digital uses can destroy the value of a copyrighted work.

While unauthorised electronic distribution of copies can destroy the value
of a work it does not follow that all forms of browsing will have the same
effect. It is quite misleading to imply that any electronic browsing would
necessarily destroy the market for a work. Yet this seems to be what is
intended by the IPA when it asserts that digital browsing is:

...reproducing and transmitting to thousands of network users at myriad
locations, digital content stored on a single library's computer.

The IPA also claims that 'there is not and should not be a "private" or
"personal" use exemption from copyright.' Although it may be true that some
countries have no private use exemptions, there are countries that do. The
Rome Convention even makes specific provision for a private use exemption in
Article 15. It could be argued that, in its enthusiasm for an ideal world
for publishers, the IPA is losing sight of the real world.

A further claim of the IPA is that 'digital lending' and the digitisation of
library collections for resource sharing purposes will destroy publishers.
 Rather than accept that certain limited and reasonable forms of access have
long been provided by libraries, the IPA seeks to paint any attempt to
extend that role into the digital environment as destructive. The idea that
publishers rights might be balanced against reasonable and limited library
or user rights does not seem to be accepted.

While it is true that some libraries are in the process of or are
contemplating digitising elements of their collections, it should be noted
that such activity is carried out by libraries with a full understanding of
and compliance with copyright legislation. To ACLIS' knowledge, all such
projects relate to works which are either out of copyright or for which the
appropriate consent has been obtained.

One heading in the IPA statement reads as follows:

Unrestricted Library Document Delivery Violates Article 9(2) of Berne

Working on the false assumption that document delivery by libraries is
'unrestricted' the IPA claim might have some truth. But the simple fact is
that library document delivery is neither unrestricted, nor does it violate
Article 9(2) of the Berne Convention. In most countries, libraries offer
document delivery services only for particular purposes and subject to clear
copying limits. It is quite reasonable and lawful.

7 The international dimension

The IPA statement makes some reference to international copyright treaties
and international harmonisation. Unfortunately, these issues are not
addressed in a consistent fashion. On the one hand, the IPA claims that

...mature international standards of copyright protection are necessary.

On the other hand, the IPA states that it:

...opposes any national or international legislation that would artificially
limit how technology can be used or how copyright holders can provide their
works to their intended markets... The marketplace will provide the balance
needed to insure that publishers reach their intended audience. Such a goal
can not be legislated.

It is difficult to reconcile these two statements.

8 Conclusions

Overall, the IPA statement could be argued to be lacking both accuracy and
objectivity.
It seeks to defend or expand the rights of publishers, while denying any
rights to libraries in the digital environment. In ACLIS' view, it
demonstrates a misunderstanding of the role and intentions of libraries.
 The Australian library community seeks to uphold the law in good faith.
 ACLIS believes it is important that this fact be recognised and that the
library community's interest in copyright reform is not to alter the balance
between the rights of creators and the rights of libraries, but to seek a
copyright regime in the digital arena which will maintain that balance.

Adopted by the ACLIS National Council, September 1996.

Statement released by Gordon Bower, Executive Officer, ACLIS
<gbower@nla.gov.au>



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