Subject: UK Copyright Rights in Databases implementation
From: Norman, Sandy (NormanS@la-hq.org.uk)
Date: ke 17 syys 1997 - 12:19:32 EEST
(The following has been written mainly for UK colleagues and
applicable to UK copyright legislation. However, you may find it
useful in your own countries for lobbying purposes.)
Dear colleagues,
Please take some time to read this and to take any appropriate action.
We could be under threat of losing some of the statutory rights and
privileges currently enjoyed in the print environment. There is a call
from certain copyright owners (mainly publishers) to curtail or even
abolish fair dealing in the electronic environment. Our first
challenge is the EU Directive on Databases which is about to be
implemented into the UK. Our concern is to make sure that the
exceptions to copyright and the exceptions to the new database right
are adequate. I attach a document which I have prepared to highlight
the issues on this implementation.
The Government is committed to keeping as much of the status quo as
possible but is obliged to follow the EU line which limits any fair
dealing copying for research to that which is non-commercial. Under
the present Act research is not defined at all. The draft S.I.
contains exceptions but the consultation document indicates that if
there are good reasons to leave them out then this will be considered
by the Government. I attended an open meeting at the Patent Office on
Thursday where there was a call to abolish fair dealing. Fortunately
this had little support from others present. The user community was
well represented. However, we must not be complacent.
If we were to lose the battle with this Directive then a precedent
will have been set for another forthcoming EU Directive which is
looking at a new right of Communication to the Public and extending
the Right of Reproduction. (For those of you who followed the WIPO
Diplomatic Conference last December, the proposals are likely to be
similar.) This Directive will also be looking to harmonise the
exceptions. We have been waiting for this Directive for months and the
latest date given is now end of November.
Feel free to use any of the material attached to write to the
Government and to your MPs and any other effective way. The deadline
for consultation on the Database implementation is the end of
September. It will be laid in the House by mid-October and implemented
by 1st January next year.
Please contact Tony Scott at the Copyright Directorate at the Patent
Office for copies of the consultation documents:
anthony.scott@ukpats.org.uk
Sandy Norman
Information Manager (Legal and Parliamentary)
The Library Association
Normans@la-hq.org.uk
The case for Exceptions in the Database Directive Implementation
1. The library and information community shares the Government's
commitment to an Information Society and the use of information
technology to deliver information in electronic form. This will not
happen, however, without balanced copyright laws.
2. The library and information community is concerned that the
economic rights of information providers are balanced with the need to
gain access to information. Libraries and information units provide a
range of services to thousands of researchers, students and members of
the public. These services are supplied in strict conformity with UK
copyright laws. The library and information profession has always
taken copyright seriously and is the profession which plays the
greatest role in educating the general public on copyright law.
3. Librarians are aware of the advances in digital technology and wish
to take advantage of the efficiency which digital technology offers to
their information services. They are equally aware that digital
technology poses a threat to copyright protection and are sympathetic
to the needs of copyright holders who are concerned to prevent their
works from being abused and to ensure an adequate return on
investment. We are not so sympathetic to the call by some rightholders
to abandon the traditional concept of fair dealing which would
severely curtail the use of copyright works for the purposes of
research and scholarship. We want a commitment, therefore, from
Government that fair dealing and similar exceptions to the exclusive
rights of copyright will be protected in the information society.
4. In the future much information generated is likely to be collected
into a database and be controlled digitally. What was once just a fact
will become an item of data and be contained in a database and be
protected by copyright. What was once an out of copyright literary
work can be collected by an enterprising publisher and be given an
extra copyright life by becoming part of a multimedia product. What
was once government information can be given added value by being put
in a database.
5. Librarians fear that without a statutory right to extract ideas and
information, plus likely technical forms of control and contractual
obligations, there is a danger of total protection leading to total
control. Total protection means that all access to ideas will be part
of a package and will have to be paid for. The traditional principles
behind copyright protection did not intend that all acts of
consumption or reception should fall under copyright law. Copyright
was not intended to protect ideas, only the expression of ideas, but
if all ideas are protected by statute, contracts and technical
controls and accessible only to those who can afford them, this is, in
effect, what will happen. The information have-nots will continue to
be disadvantaged.
6. Databases are protected by copyright and because of their dynamic
nature are never likely to go out of copyright. Similarly, many of the
new sui generis compilations will also be protected indefinitely. In
the future information society, the public domain may cease to exist.
Those that hold the rights in the information will have unlimited
powers of control. It is essential, therefore, that safeguards are put
in place to ensure that information and ideas should be freely
accessible to society at large and not just for the privileged few who
can afford to pay.
The importance of exceptions to the copyright balancing act
The "fair dealing exception to infringement to copyright is, and
always has been, squarely based on recognition of the paramount public
interest in the copying or reproduction of copyright material for
certain purposes such as research and study, criticism or review, news
reporting, court proceedings and the provision of legal advice" Sir
Anthony Mason, former Chief Justice of Australia. The Australian
Library and Information Association Library Week Oration, State
Library of NSW, (1996) The Australian Library Journal pp.8-91.
"The whole of human development is derivative. We stand on the
shoulders of the scientists, artists and craftsmen who preceded us. We
borrow and develop what they have done; not necessarily as parasites,
but simply as the next generation. It is at the heart of what we know
as progress... borrowing and developing have always been acceptable.
Justice Laddie. Copyright: over-strength, over-regulated, over-rated?
European Intellectual Property Review 18(8) 1996, pp. 429-430.
7. Exceptions to copyright are a fundamental part of Berne. The
digital environment does not affect this principle. Exceptions should
apply to digital works. This was endorsed by WIPO last December.
Provision was included in these treaties for signatory nations to
allow new exceptions and limitations in their copyright laws which are
appropriate to the digital environment as well as affirming that
existing exceptions apply to both print and electronic environment.
"...Contracting Parties to carry forward and appropriately extend
into the digital environment limitations and exceptions in their
national laws which have been considered acceptable under the
Berne Convention. Similarly, these provisions should be understood to
permit Contracting Parties to devise new exceptions and limitations
that are appropriate in the digital network environment". WIPO
Copyright Treaty, Geneva 1996.
8. Copyright is both an economic and an ideological concept - it
rewards creators but equally it is supposed to encourage creativity.
In reality, it is a system for rewarding investors in the creations of
others and becomes an indirect means of controlling access. A workable
balance has to be found between protection and access. Fair dealing
and copying by librarians is essential to this process.
9. It is in the public's interest to have access to information (in
all formats) which is widely accessible and which may be freely
communicated. This leads to a better informed and educated society
which, in turn, leads to the creation of more intellectual property.
10. There is absolutely no scientific proof that having exceptions
actually harms the economic rights of rightholders. It is more likely
that providing greater access to their works by libraries contributes
to the promotion of the author and the author's works and/or the
service provider.
11. Much of the information generated which is likely to be used comes
from the academic and scientific community and is paid for out of
public funds. These authors assign their copyrights to publishers for
no financial reward. The academic and scientific community, as well as
the public, should therefore benefit from their works.
12. The recent Dearing Report National Committee of Inquiry into
Higher Education, Higher Education in the Learning Society, HMSO,
1997. expresses the view that "there must be provision for the free
and immediate use by teachers and researchers of copyright digital
information (13.34). It goes on to recommend that there should be a
review of copyright legislation and consideration be given to how it
might be amended to facilitate the use of copyright materials in
digital form. (43) If there are no exceptions to copyright this will
cut right across these recommendations.
13. Fair dealing actually supports the economic argument that
copyright provides incentives to potential creators to create new
works. Potential authors need to carry out research for a work and
this process often results in copies being made. If there are barriers
to access (being refused, or having to pay a high price to access and
clear rights to copy), the costs of producing a new work will be
higher and could be a disincentive to create.
Current situation
14. Electronic databases are supplied in libraries under a
subscription contract (online bibliographic and textual databases) or
conditions of purchase (CD-ROMs and multimedia products). The
conditions of supply differ from one provider to another. Librarians,
especially in educational institutions, are having to become licence
negotiators, contracting with each and every database publisher to use
databases. This is costly administratively even with model licences
and consortia agreements and stretches the library resources.
15. If there is no fair dealing or library exception, all copying and
use will be subject to the conditions of each contract or licence. No
two contracts are alike so librarians/users will have to be aware of
and abide by hundreds of different rules. This will be
administratively burdensome, besides being impractical and costly to
institutions, especially those funded out of the public purse. From
the user point of view, it would be far simpler and easier to
understand and comply with for the majority of contracts to do away
with conditions and provide a statement saying that copying and use
are governed by copyright law and stating simply what that implies.
16. Without exceptions, society will be at the mercy of rightholders
who will be able to charge what they like for every use of the
database and its contents, especially if there is a niche market. The
following gives an idea of what the Information Society may be like
with and without exceptions to copy and use databases.
Scenario for the Information Society without exceptions
17. Rightholders will have total control over information and will be
able to charge what they like for their data. Librarians will have to
negotiate for every use of the data by users and will be forced to
pass on extra costs to their users, some of whom may find it difficult
to pay. The traditional way of cost saving efficiency in libraries
(resource sharing and inter-library lending) will be prohibited.
18. Basic science needs access to abundant, unrestricted flows of both
raw and elaborated data. When data become too expensive, scientific
research suffers irremediable harm. Scientific research and discovery
and education will be severely damaged and there will be a significant
deterrent to commercial research. Future literary creativity could be
stifled. This will have a knock-on effect on the nation's economy.
19. Collection development suffers. To give an example, when HMSO
awarded a contract to Taylor Nelson in 1992 to publish UK Markets,
not only were severe copyright restrictions put on what was previously
Government (publicly funded) data but the price charged rocketed with
the result that many libraries were not able to afford to purchase the
compilations.
20. Academic and scientific authors may be reluctant to assign their
copyrights to publishers and to share data among themselves. To gain
access, librarians will have to negotiate with authors as well as
publishers thus exacerbating the issue.
Scenario for the Information society with adequate exceptions
21. Libraries will continue to purchase printed databases and
databases on CD-ROMs and subscribe to online databases. Libraries will
be able to access these databases freely and search and retrieve data
for their users. There will be no restrictions on use other than those
which are governed by copyright law. Copying over and above what is
fair or allowed can be dealt with on a transactional basis.
22. Users (students, the general public, researchers) searching for
themselves will be allowed to download or copy for research and
private study. Those wanting to copy over and above what is fair and
for copying for commercial gain may deal directly with database
publishers.
23. Data should flow freely and librarians and users will be confident
that what they are doing is fair to both sides thus removing the fear
of prosecution.
Conclusion
24. An unbalanced totalitarian copyright regime would restrict access
to the Information Society and lead to a monopoly of owner interests
and prevent other players playing a meaningful role, whereas if the
legitimate interests of all players are considered this will result in
a healthy flow of information to all consumers.
(c)The Library Association September 1997
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