Wiped out by WIPO


Subject: Wiped out by WIPO
From: Roger Bowes (rbowes@aslib.co.uk)
Date: to 05 joulu  1996 - 16:38:22 EET


Dear list members,

"Wiped out by WIPO" article in Aslib's Managing Information magazine,
December 1996 issue, as sent to all WIPO delegates, MEPs etc., is
attached for your information.

Yours sincerely,

Roger Bowes
Chief Executive
Aslib, The Association for Information Management

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WIPED OUT BY WIPO!

Too extreme? No - not if the WIPO (World Intellectual Property
Organization) proposal for the Substantive Provisions of the Treaty
on Intellectual Property in Respect of Databases is adopted.

How many of you know about this proposal? I suspect not many, and
yet this proposal, if adopted at the Diplomatic Conference in Geneva
from 2 to 20 December 1996, will have a fundamental impact on our
professional community and on the world's knowledge base in general.

If you do not know what the WIPO protocol is, send for a copy from
us or look it up on the WIPO Web site
http://www.wipo.org/eng/diplconf/6dc_sta.htm.

There is no doubt that there is an essential need for intellectual
copyright data protection to be harmonized but the problem with this
protocol is that it is being driven by publishers and governments
to everyone else's disadvantage. Of course Aslib makes databases and
is a publisher too, but Aslib's wide constituency makes us
concerned for freedoms as well as protection of rights and moreover
the balance between the two.

In the next few pages you will see submissions from Aslib, from
FID, from ECIA, from ECUP and some commentary we picked up from the
States. The gist of it is that there has not been enough
consultation and discussion, almost amounting to a conspiracy. We
all need more time to ensure that we are not creating something that
could endanger the development of the world's knowledge base.

Some experts say that the protocol is the 'least balanced and most
potentially anti-competitive intellectual property rights ever
created.' The suggestion is that the database treaty is being pushed
by large publishing companies in response to the 1991 US Supreme
Court decision in Feist Publications Inc v. Rural Telephone Services
in which the court rejected a claim of copyright on data from a
telephone directory's white pages on the basis that the collection
of data was not sufficiently creative to qualify for copyright
protection. Coupled with this are the increasing number of legal
actions building up behind the McGill decision which upheld the
rights of anyone to access and publish programme information held by
the media owners.

Although the British Patent Office invited Aslib to comment, which
Dr Ray Wall did on our behalf, and attend a meeting, at which we
were represented by Elspeth Scott, a quick poll of members of the
European Council of Information Associations and FID showed that few
knew about it. Many Americans have complained there have been zero
public hearings before Congress on this far-reaching proposal. A
response by an independent citizens organization in the US called
Public Domain can be obtained from http://www.public-domain.org and
a primer by James Love can be reached on
http://www.essential.org/cpt.

The key issues that he brings out are that the amount of time in
which this protocol has been prepared is wholly insufficient to take
account of the complexities and dangers in creating a new property
right for data. The protocol appears to cover just about any
database available or otherwise to the general public.

The treaty requires a minimum term of pro-tection of either 15
years, proposed by the EU or 25 years, proposed by the United
States, but it would be possible to recreate databases to ensure
that protection is permanent. Apparently it would allow the US
government, for example, to refrain from releasing documents under
the Freedom of Information Act which may be another reason why their
government is pushing it through. Retro-active protection will also
apply. Fair use rights are under threat because the sui generis
does not include them. And beware! There are penal prohibitions on
technologies to defeat protection!

Allow me to quote from an open letter to Michael Kantor, US
Secretary of Commerce, from the National Academy of Sciences, the
National Academy of Engineering and the Institute of Medicine:

'We believe that these changes to the intellectual property law, if
enacted in their present form, would seriously undermine the
ability of researchers and educators to access and use scientific
data, and would have a deleterious long-term impact on our nation's
research capabilities. Moreover, the proposed changes are broadly
antithetical to the principle of full and open exchange of
scientific data espoused by the US government and academic science
communities, and promoted internationally.

'...very few individuals at the science agencies or in the academic
community appear even to be aware that such changes are about to
take place, nor has there been any effort made to solicit their
views.

'...we request that no precipitous action be taken at the planned
WIPO Diplomatic Conference before the range of consequences of the
proposed changes is fully understood and appropriate modifications
are made.' You see what I mean by extreme!

As far as I can tell just about everyone, bar the publishers of
course, want the proposal withdrawn from the WIPO Conference and
properly discussed throughout the world before it is resubmitted in
an acceptable form to all parties.

Although the Conference will be sitting when you read this, a call
to your country's repre-sentative and UNESCO PGI, who have told us
they are extremely concerned, would not go amiss. Read on.

Roger Bowes
Chief Executive, Aslib, The Association for Information Management

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Proposed WIPO Protocol - Aslib response

Dr Ray Wall

Selected points from CRNR/DC/4 on 'literary and artistic works' and
CRNR/DC/6 on 'databases'.

Both CRNR/DC4 and 6 appear to reflect the most unfortunate -
indeed, at times incredible - lack of understanding of some elements
of the publishing world in relation to users needs and information
services: that is, their main markets, no less. The entire nature
and content of both documents could benefit from further study, this
time with adequate collaboration of information professionals, in
order to avoid the publisher-bias which seems always to appear in
documents produced at this level.

CRNR/DC4

Art 7(2) It is not clear whether this could be taken to include
electronic browsing, for example in circumstances wherein printing
out could be barred by the system. Browsing, preferably on a much
cheaper basis from in-depth study or printout, is naturally of great
importance to all users, not least to information services desirous
of selecting the more relevant sources.

Art 10 Suggest ask for addition of words to the following effect:

As soon as the communication of written or printed (including
electronic forms of) copyright materials of any kind to the public
has been authorized, any person shall have a right of access to the
materials; and any library may hold such materials and make them
available at least for reference, without prejudice to protection
against copying; and this provision may not be overriden by
contract.

Art 12 (1) 'Limitations and exceptions'. This is of course in
itself in accordance with Berne Art 9(2). However, the tone of DC4
would seem to suggest a danger of over-strict interpretation of the
words 'certain special cases'. It is essential that the UK's fair
dealing should continue as at present, applicable to any kind of
research.

Increasingly urgent information service needs cause the
resurrection of another matter. Past pleas which made strongly for
'non-voluntary licensing', as it is now cosmetically known, were
unsucces-sful. Could there be another attempt? Rights owners ought
to understand that such a provision should open up their work to
much more use, for example in databases, with payment being due at
each stage. Hence this provision could surely not be taken as
'prejudicing legitimate interests,' but rather as improving the
economic benfits. Such licensing could, however, be limited to
re-use for non-competitive purposes and to non-copyright material.
However, the content (but of course not the published layout) of all
abstracts should be entirely unprotected by copyright, rather than
the conditional protection of author abstracts as a present
(CDPAs60).

Users - and information/library professionals on their behalf -
already well understand the need for such a provision, in order to
open up access to materials and prevent rights owners unreason-ably
'sitting on' works which should be generally accessible and
communicable for the sake of education, research and culture
generally, not to speak of other creators of intellectual property.
That certain (eg US) publishers oppose non-voluntary licensing in
order to work towards what they call total control of the flow of
information is beyond doubt, for they have so stated such control as
a major aim in development of the Superhighway.

Leaving decisions on limitations and excep-tions to national laws
is believed inadequate, for global harmonization is needed, if that
be achievable at all in the foreseeable future.

CRNR/DC6

Art 1(3) This would seem to be an example of the kind of confusion
which beset various drafts of the EC Directive until copyright (at
collection/compilation level) became separated from sui generis
protection against extraction. Notes 1.10 and 1.14 are of interest
because of the parallels with the EC Directive. It is noted,
however, that the US intends neither to target 'non-competitive
uses' nor to confer, 'any monopoly on facts', and these features
would seem desirable for CRNR/DC6.

Surely Article 1 should begin by specifiying that Contracting
Parties shall protect by copyright any database (not just those
resulting from the vague 'substantial investment.' proviso) at
collection/compilation level?

Art 2 (vi) This definition of 'utilization' is not the only one to
cut across other matters already dealt with by EC, such as rental
right, thus suggesting a need to base CRNR/DC6 more closely on the
EC Directive. However, this should naturally be sought only after
the UK has achieved some national modifications to approximate to
fair dealing which should in any event be proposed as models for
global use.

Art 5 There is no attempt to exemplify 'rights' of a legitimate
user of a database, nor permis-sions such as those in the EC
Directive. This is considered quite inadequate if harmonization
globally is sought. However, it is still strongly recommended that
non-voluntary licensing for non-competitive uses be sought in order
to cause expansion of the EC Directive's scope in this respect
(please see above note on CRNR/DC Art 12(1). At present, producers
of large databases tend more often than not to refuse licences to
small databases, such as interdisciplinary ones set up by a
university department or by a university library covering prescribed
reading as an 'intranet' for the campus, or by a business for
internal use only; or by a public library for local industry's
'product information' needs. Unless all relevant major-discipline
databases can be continually tapped, no such 'intranets' can be
reliably developed. It is quite wrong of publishers to believe that
only they should have full control, and that they themselves can
provide custom service of the type required. It is absolutely
essential that local control be applied. However, an alternative
option, additionally or instead of non-voluntary licensing, could be
compulsory availability for purchase of records at a price
desirably not more than the production cost invested by the database
producer.

It should be further noted that access would be severely limited,
to the disadvantage of rights owners, without non-voluntary
licensing. A plethora of variant forms of contract, sought with
varying delays and reasons for refusal at the whim of
poorly-informed rights owners, is no substitute at all for the
certainty of being able, through an information service, to access
any source and re-use data in a non-competitive manner.

Among exceptions which could be listed is one for national deposit
of electronic databases, as under study currently by the British
Library.

Art 8 It is thought undesirable to support any term other than the
EC's agreed 15 years. However, it should be noted that presenting a
continuously updated database with perpetual copyright makes it even
more important that non-voluntary licensing should be available.

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FID STATEMENT

The International Federation for Information and Documentation
(FID) has members in over 80 countries in all regions of the world
and devotes its attention to the Modern Information Profes-sional
and user of information. At its General Assembly in October in Graz,
Austria, the national members for these countries drew up a
statement regarding the proposals by WIPO for a possible protocol
for the Berne Convention and recom-mended that the proposals
concerning articles 5,7,10,12 and 13 should not be voted upon, and
sufficient time be given to produce more balanced proposals. The
statement in full is as follows:

The comments are confined to the proposals related to CRNR/DC/4
concerning the strengthen-ing of the rights and responsibilites of
both the owners and users of intellectual property in a digital
environment.

In the digital age international harmonization of intellectual
property laws is essential. However, this harmonization should also
aim at ensuring access to information and knowledge to all. To make
this possible, it is important that the rights and responsibilties
of both owners and users be spelled out with greater precision and
clarity.

We want to emphasize the importance of the statements concerning
societal values contained in Note 12.09: 'When a high level of
protection is proposed, there is reason to balance such protection
against other important values in society. Among these values are
the interests of education, scientific research, the need of the
general public for information to be available in libraries and the
interests of persons with a handicap that prevents them from using
ordinary sources of information.'

The proposals put forward 30 August 1996 by the Bureau of the World
International Property Organization (WIPO) are not clear enough.
The implications of Articles 7, 10 and 12 have not been given
sufficient debate either in the WIPO Committee of Experts or
nationally.

Article 5 - Collections of Data (Databases)

Many serious issues have been raised concerning the definitions of
compilations and collection in the digital environment. The matter
is far too complex for immediate resolution. More time for
sufficient input and deliberations from concerned parties is needed.

Article 7 - Right of Reproduction

We disagree with the expansion of the definition of the right of
reproduction to include indirect reproduction (Article 7.1) caused
by incidental digitization of a work. Such expansion of the
definition could prevent users from reading or browsing material. We
are similarly questioning the proposed limitation in Article 7.2,
according to which 'Contracting Parties may limit the right of
reproduction in cases where a temporary reproduction has the sole
purpose of making the work perceptible or where the work is of a
transient or incidental nature.'

It would appear that the limitation would still have to be
authorized by the author or allowed under national legislation. As
it cannot be guaranteed that all nations will implement an exception
to authorize temporary reproduction in the digital environment,
there appears to be a contradtion to the purpose behind the
accom-panying notes 7.14 and 7.15 which attempt to justify Article 7
by reasoning that the interpretation of the right of reproduction
should be 'in fair and reasonable harmony all over the world'. The
opposite is likely to be the case.

Article 10 - Right of Communication

Note 10.08 states that the proposal made by the European Community
and its member states received a positive reaction from many
Govern-ment members of the Committee. However, according to reports,
many other Government members had reservations.

Note 10.14 indicates that the liability of an Information Service
Provider (ISP) does not occur within the Right of Communication
unless a copy is made available to the public by the ISP.

The consequences of Article 10 are difficult to assess. For
example, the combination of Article 10 and Article 7 seems to make
ISPs potentially liable for the users transmissions. It is essential
that a definition is given on what is 'public'. It is not enough to
leave it to national interpretation.

Article 12 - Limitations and Exceptions

This article is vital, but lacks precision. Note 12.09 is of such
importance that it should be incorp-orated in Article 12. It is not
sufficient to keep it as a note. The exceptions and limitations of
the exclusive rights of authors should be harmonized
internationally. Leaving limitations or exceptions to intellectual
property rights to national legislation, will create unfair and
unreasonable disharmony all over the world with respect to the
interpretation.

Article 13 - Obligations concerning technological measures

We have serious reservations about the way in which the proposed
Article 13 is formulated. The definition of 'protection-defeating
device' appears to be so broadly worded that it might encompass even
a device that incorporates a mechanism designed simply to expedite
uses that have been authorized under licence. We do not endorse a
proposal that is so prohibitive.

Conclusions

There are reasons to believe that the proposals from WIPO will
upset the balance between the protection of rights and
responsibilities of both the owners and the users of intellectual
property. Implicitly, this means that the role of society's
collectors and disseminators of knowledge (such as libraries,
archives, museums and other information operators) might be
destroyed. The very important rights and responsibilites (such as
fair use, protection of the public interest etc) of users of
intellectual property must be protected in the digital environment.

FID recommends that the proposals concern-ing Articles 5, 7, 10, 12
and 13 should not be voted upon in the Diplomatic Conference in
December. A sufficiently long period (no less than six months) of
deliberation and discussion with the users, especially the library,
information and scholarly communities, must be provided, so that
more balanced proposals can be developed.

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ECIA

The European Council of Information Associations (ECIA) represents
some 15,000 information professionals and users in the European
Union and wishes to express its concern at the proposal of WIPO to
be heard at the diplomatic conference on copyright in Geneva from
2-20 December 1996, for possible protocol to the Berne Convention.

The preparation of the proposal has not taken into account the
wishes of the majority of database users. Very little consultation
has taken place and many are completely oblivious to its existence.
Whilst applauding the intention to harmonize database protection
rights the ECIA is dismayed that this proposal is clearly biased in
favour of the publishers to the detriment of our member countries'
scientific, cultural and educational development. We recommend that
the proposal is withdrawn at this time for a more balanced proposal
to be developed. We recommend also that a broader consultation of
the different groups of professionals concerned by the project
should be rapidly organized.

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EUROPEAN COPYRIGHT USER PLATFORM

The Steering Group of the European Copyright User Platform (ECUP)
has recently finalized its Position on User Rights in Electronics
Publications. The Position was presented for discussion to
representatives of authors' organizations, publishing houses,
collecting societies and subscription agents on 24 September 1996 in
London. During the first half of 1997, the Position Paper will be
taken around for consultation amongst librarians in the 15 countries
of the EU and Norway.

The ECUP project is a Concerted Action supported by the European
Bureau of Library, Information and Documentation Associations
(EBLIDA) and funded under the Libraries Programme of the European
Commission (DGXIII/E-4). The Platform consists of the library
associations of Europe. The goals of the Platform are to enhance
awareness and stimulate discussions on copyright issues, to draw up
model licensing clauses for the use of electronic information and to
set up a Copyright Focal Point on the World Wide Web (WWW). The
services of the Copyright Focal Point are: a moderated discussion
list on European copyright issues, access to documents related to
copyright issues and European and national copyright legislations
and a help desk for questions related to copyright and advice. To
join the ECUP discussion list, send a message to
majordomo@kaapeli.fi and write in the message box: subscribe
ecup-list. The Web-site can be found at
http://www.kaapeli.fi/eblida/ecup. For more information, please
contact: Ms Emanuella Giavarra at the ECUP secretariat:
ecup.secr@dial.pipex.com. Comments to the ECUP Position are more
than welcome.

I. Introduction

This Position Paper is a result of the discussions by the Steering
Group of the European Copyright User Platform (ECUP) regarding the
user rights in electronic copyright. The European Copyright User
Platform consists of the 37 Library Associations which are full
members of the European Bureau of Library, Information and
Documentation Associations (EBLIDA).

The purpose of this document is to outline and justify the lawful
uses of copyrighted works by individuals and libraries in the
electronic environment. It is intended to open the discussion with
copyright owners and serve as a reference document for information
professionals.

(C) A balance should be preserved

Each year, libraries in Europe provide a range of services to
millions of researchers, students and members of the public. These
services are performed in conformity with the national copyright
laws. The new technologies have made it possible to provide these
services even more efficiently. Libraries recognize that the new
technologies and especially the possibility to copy copyrighted
material with such ease, poses uncertainties for an economic return
to the copyright owners.

The uncontrollability of electronic information is a fear which
libraries share with the copyright owners. However, this should not
mean that the reaction to these uncertainties lead to an overly
restricted use of electronic information by users and information
professionals. It should not be forgotten that libraries provide a
uniquely control-lable environment through which publishers can make
their products available to the public at large.

The nightmare future for libraries is one in which nothing can be
looked at, read, used or copied without permission or payments.

When one takes into account that the cost of scientific books and
journals have increased by 10 per cent or more annually, this does
seem unreasonable. Also the fees charged for electronic information
licences are generally higher than prices for the equivalent books
or periodicals and most of the time these are only provided under
the condition that the hard copy is being purchased as well. In an
evolving electronic environment this could mean that information
resources are purchased and accessible only to those libraries and
members of the public who are able to pay. The public information
systems that libraries have developed would be replaced by
commercial information vendors and a diminished scope of public
rights would lead to an increasingly polar-ised society of
information haves and have nots.

Since the last century carefully constructed copyright guidelines
and practices have emerged for the print environment to ensure a
balance between the rights of the users and the rights of the rights
owners in copyrighted materials. This balance should remain in the
digital environment. As more information becomes available only in
electronic formats, the user's legitimate rights to use copyrighted
material must be protected. The benefits of new technologies should
be available for all - the public, libraries and the copyright
owners.

II. Principles

The following principles have served as a point of departure for
drawing up this Position.

Guiding principle

The user has the right to have access to copyrighted material and
to make a copy for private use and research or educational purposes.
It is the duty of the library to provide access to copyrighted
material and the library should have the possibility to do so
without infringing the principle of the 'normal exploitation of a
work'.

In an electronic environment this means that:

Without infringing copyright, the public has a right to expect

to read or view publicly marketed copyright material, on-site or
remotely;
to copy a limited number of pages electronically or on paper for
private use and research for educational purposes.

Without infringing copyright, libraries should be able

* to use electronic technologies to preserve copyrighted materials
in their collections;
* to provide on-site access to electronic copyrighted material;
* to provide off-site access to registered users;
* to provide on-site copies of copyrighted material in electronic
form or in paper form.

Users and libraries have a right to expect

* that government publications and public domain material in
electronic format is available without copyright restrictions;

* that the digitization of public domain material can be performed
without copyright restrictions;

* that the terms of the licences for copyright materials are
reasonable and do not restrict the principles laid down in the
national copyright laws concerning the lawful activities by
libraries and users;

* that copyright control systems are able to differentiate between
legitimate and illegitimate usage;

* that the licensors put a licensing system in place which will
enable the library to manage its collection of licences efficiently.

Rights owners can expect

* that libraries strive to ensure:

- the implementation of legal and technical safeguards to comply
with contractual limitations;
- the notification to rights owners of infringe-ments by users,
although they cannot be held responsible for the intentions of the
end-users once they have acquired the information;
- that their users are informed about the copy-right restrictions
in electronic information.

III. Lawful library activities concerning copy-righted material

The point of departure is by four types of library, open or closed
user groups, registered or unregistered users and on-site or
off-site access.

1. Definitions

Libraries

* National library
* University library
* Public library
* Other libraries (special libraries)

Internal library activities

Activities necessary in order to preserve and organize information
and publications in printed or electronic format efficiently.

Open user group

An open user group is defined as a group of unidentifiable
individuals: the general public.

Closed user group

A closed user group is defined as a clearly defined group of
individuals who have a formal relationship with the organization.

Registered users

A registered user is defined as an individual who is a member of a
library or who has received a password.

Unregistered users

An unregistered user is defined as an individual who is not known
to the library.

On-site access

An on-site activity is defined as every activity within the
premises of the building that provides the information or within a
controllable environment.

Off-site access

An off-site activity is defined as every other activity outside the
premises of the library or outside a controllable environment.

Allowed

An activity is allowed when it is not perceived as a copyright
infringement. This means that the library does not have to ask for
permission for the activity from the copyright owner, i.e. it does
not require a licence.

Licensed

The use of material which is obtained in electronic format from the
publisher.

Viewing

This activity includes accessing, browsing, searching, retrieving.

2. Activities

Internal library activities

To meet the demands of the users, libraries should be allowed to
digitize, permanently store and index material which cannot be
obtained in electronic format from the publisher. Libraries should
also be allowed to permanently store, index and make an archival
copy of the electronic publications provided by the publisher.

Open user group registered on-site

This user group refers to an unidentifiable group of people who
become identifiable once they have registered themselves with a
library and who are accessing the library electronic collection from
the premises of the library or from within a controllable
environment.

National, university and public libraries should be allowed to
provide these users with the possibility to view full text
electronic material and to copy a limited number of pages
electronically or on paper of material, digitised by the library, or
material obtained in electronic format from the publisher. The
"other libraries" category is perceived as not giving access to
persons other than their staff or a defined group of people.

Open user group unregistered on-site

This user group applies to a library with a public library function
where people can walk in and out without identifying themselves.
These libraries should be allowed to provide this user group the
possibility to view full text electronic material and to copy a
limited number of pages on paper of material digitized by the
library and material obtained from the publisher.

Open user group registered off-site

This user group refers to an unidentifiable group of people who
become identifiable once they have registered themselves via a
password or by signing an electronic form and who are able to access
the library collection from outside the library premises or outside
a controllable environment.

Libraries should be allowed to provide these users with the
possibility to view full text, copy a limited number of pages
electronically or on paper of the material they digitized
themselves. Royal-ties should be paid to the rights owners for
Electronic Document Delivery services. These services should be
provided on a pay-per-use basis.

For the electronic product obtained from the publisher, libraries
should be allowed to provide this user group with the possibility to
view one page of the requested copyrighted material. Under licence,
the library should be able to provide this user group with the
possibility to view the full text and copy the material
electronically or on paper. For Electronic Document Delivery
services, libraries should charge the user on a pay-per-use basis
and forward the royalties to the rights owners.

Open user group unregistered off-site

Libraries will not provide access to the electronic copyrighted
collection to remote unregistered users.

Closed user group on-site/off-site

Libraries should be allowed to provide these users with the
possibility to view full text and to copy a limited number of pages
electronically or on paper of the material that they have digitized
themselves. For the electronic product obtained from the publisher,
University and Other libraries should be able to provide to users
under licence the possibility to view full text and copy
electronically and on paper on-site and off-site and to make use of
the Electronic Document Delivery service of the library.

IV. Legal arguments

The legal justification for the ECUP Library Position can be found
in Article 9(2) of the Berne Convention. The Berne Convention serves
as the world-wide framework for international copyright protection.
All EU member states are signatories of the Berne Convention. The
Berne Convention sets certain minimum standards of copyright
protection. For the purpose of this paper, the most important
exclusive right under the Berne Convention is the right of
reproduction under Article 9(1).

'Authors of literary and artistic works protected by this
Convention shall have the exclusive right of authorizing the
reproduction of these works, in any manner or form.'

Article 9(1) refers to "the reproduction of these works, in all
manner and form". According to the WIPO Guide to the Berne
Convention, these words are wide enough to cover all kinds of
methods of reproduction, including all other processes known or yet
to be discovered. The ECUP Steering Group believes that this
includes the making of an electronic copy.

This reproduction right in Article 9(1) may be limited "in certain
special cases", in accordance with Article 9(2) of the Berne
Convention.

'It shall be a matter for legislation in the countries of the Union
to permit the reproduction of such works in certain special cases,
provided that such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably prejudice the
legitimate interest of the author.'

The national legal provisions which permit the photocopying for
private use and research or educational purposes are based on
Article 9(2). The most important part of this Article are the words
"normal exploitation of a work". The minutes of the Stockholm
Conference (1967) give no guidance on what "normal exploitation" is.
According to the report of the Drafting Committee, the making of "a
very large number of copies" for a particular purpose would
conflict with the normal exploitation.

The ECUP Steering Group recognizes that the term "normal
exploitation of a work" must be interpreted, when in an electronic
environment, as permitting a library service which does not compete
with a similar service or product obtainable from the publisher. In
this case, the "user rights" under copyright must apply. But, for
instance, if a library wants to digitize material which is already
obtainable in electronic form from the publishers, this activity
conflicts with the normal exploitation of the work. It also applies
in the case where the library delivers to a remote user an article
which the user could have obtained from the publisher. Being in
conflict with the normal exploitation of a work should not imply
that libraries cannot provide the service. The library should pay
royalties to the copyright owners for the material sent to the
users.

At the moment, publishers are experimenting with new technologies
to satisfy the needs of the market. The trend in publishing is for
"on demand delivery" of articles to individual users. Libraries have
conducted this service for several years and have delivered
articles to individual users by mail, fax and electronically. The
conflict with the "normal exploitation of the work" starts once the
same service for the same material is being offered by the
publisher. If it is not, the service can be continued and should be
seen as making a copy on demand for private user or
research/educational purposes.

V. Conclusions

The ECUP Steering Group believes that the new technologies and its
services do not require a major revision of international and
national copyright law at this time. Existing copyright laws provide
for a basis in which users, libraries and copyright owners continue
to be well served. The uncertain times ahead should be used by
libraries and publishers to experiment, within the controllable
environment of the library, with new products and new technologies
by way of pilot projects. Moreover, it is perceived as vitally
important that libraries and copyright owners continue to discuss
the challenges of the electronic society.

ECUP, 25 September 1996.

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COMMENT

The ECUP Steering Committee's position paper is designed to state
the case for a legal regime which enables both libraries and their
users to enjoy the benefit of electronic services with a minimum of
legal 'red tape' in the form of copyright restrictions. From a legal
dimension the paper concentrates its attention on copyright and
does not therefore address the problem that the main source of
restrictions and inhibitions upon use of works in electronic form is
not copyright law but the terms of those contracts by which those
works are obtained or made available. The paper's analysis of the
Berne Convention so as to justify the proposals in term of
international copyright law is also a little optimistic: for more
that a century the Berne Convention has been both interpreted and
applied for the purpose for which it was originally drafted, which
is to further the interests of copyright owners to the greatest
possible extent. The Berne Convention is administered by the World
Intellectual Property Organization, which exists solely to promote
owners' and creators' rights. In contrast, UNESCO has sought to
promote the spread of information even where that value conflicts
with pure copyright values - but UNESCO's role in ongoing copyright
law and policy reform seems to have been greatly reduced over the
past 25 years.

Jeremy Phillips
Aslib Guide to Copyright



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