Subject: Re: UK Copyright Rights in Databases implementation
From: Sally Morris (smorris@wiley.co.uk)
Date: to 18 syys 1997 - 21:14:54 EEST
It may be relevant to this discussion to know that a joint working party of
publishers and universities (librarians and others) has come up with draft
guidelines for what should be considered 'fair dealing' in the electronic
environment. Although the context was electronic 'publications' rather
than databases, the same general principles would probably hold good. I
think you'll find that this demonstrates a much more cooperative and
realistic attitude from publishers than readers might deduce from the LA
note. The document can be viewed at www.ukoln.ac.uk/services/elib/papers/pa/
Sally Morris, John Wiley & Sons Ltd
At 10:19 17/09/97 +0100, you wrote:
>
>(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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