Copyright
Why, when and how has copyright become an important issue for li- brarians and other cultural institutions staff? How is it connected to libraries and librarians? There is no doubt that copyright has become extremely impor- tant in the digital environment, mainly because digital material is easy to re- produce and disseminate and authors fear that their works will be used for commercial purposes and they will receive no reward. Cultural institutions, libraries included, are encouraged to digitize their materials and digitization is an act of reproduction and an act of making a work available to the public and for both acts the author's permission is needed.
Copyright is the right of an individual creator to be acknowledged as the author of his/her work and to be asked for permission every time someone wants to reproduce or otherwise use his/her work. Copyright is not eternal and copyright protection lasts during an author's lifetime and 70 years after
89 his/her death (at least in Europe). In practice this means that a number of works which originated in the second half of the 20th century are still pro- tected, while older works are free to use and belong to the so-called public domain. In fact many works that originate today are also free, for instance news, official publications, statistical and similar sets of data, or works of folklore are not protected by copyright.
Terms to keep in mind
Copyright → a term is used in the English speaking countries, while the
European countries apart from the UK, use the term → author's rights. Both terms can be considered as synonyms although the former emphasizes the work, while the latter is focused on the author.
Protected work → a work protected by copyright legislation. For every
use permission has to be obtained from the author
Public domain → when the term of protection has expired a work is in
public domain; also some works are not considered to be authors' works and are in public domain
Author → always a rightsholder
Rightsholder → does not need to be an author; author's rights can be
inherited, bought, or otherwise transferred Author's rights
Author's rights are of two kinds: moral or personal rights and economic rights. The author's moral rights include the right
9 to decide how and when to publish, 9 to be acknowledged as the author,
9 to object to any changes or to any other action that might harm his/her reputation,
9 to retract (take back or withdraw the work).
9 The author's economic rights include the right of the author
9 to obtain remuneration every time his or her work is reproduced, dis- tributed, communicated, made available to the public, translated or adapted.
Recently some new rights have been instituted, such as:
9 the right to the remuneration for reproducing for private use and public lending right.
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These new rights are managed by the collective rights management or- ganizations.
Actors, singers, performers, etc. also have rights to their contributions. These rights are called neighbouring or related rights. Apart from performers, phonogram producers, radio-diffusion organizations and publishers also have related rights.
Rights of the public
When dealing with copyright librarians have to bear in mind that the author's rights are guaranteed by the Constitution and by the national law on copyright. Cultural institutions ought to respect the national legislation. But copyright legislation is not the only legislation they have to act in accordance with. Wider public – the users of cultural institutions services - also have their own constitutional right to free access to information which includes free ac- cess to various artistic, scientific and literary works. Often libraries and other cultural institutions will be confronted with two different rights, namely they have to respect both the right of the public to access different kinds of works and the right of the authors of those works to allow that access or not.
Copyright development in brief
Copyright originated in the 18th c. Before that time creative works were considered to be a property of their owner, just like any tangible property. A per- son who had a manuscript in his possession was its owner and could do with it whatever he wanted. The Statute of Queen Anne, adopted in Great Britain in the beginning of the 18th c. is considered to be the first national copyright law. By the end of the 19th century national copyright legislation was adopted in a great number of countries. Since copyright is a very international phenomenon (crea- tive works appeal to many and easily and quickly cross the borders), bilateral and multilateral treaties were soon concluded by individual countries in order to help authors protect their works when used in foreign countries. The most famous such treaty is the Berne Convention for the protection of artistic and literary works, adopted in 1887 and revised and updated several times since then.
At the time of its introduction copyright was justified by a need to help au- thors earn their living from their creative work. Strangely enough the same argu- ment is used today, although poor authors who need to be supported are rarely met. More often when trying to clear the rights one has to address corporations and other legal persons that appear to be the majority of rightsholders today.
In general, one can say that copyright today tends to last longer and new kinds of rights have been introduced in recent years.
91 Exceptions and limitations
Copyright laws include some exceptions and limitations which allow users of protected works to access and use them. In fact exceptions and limi- tations provide the legal basis for most of library services. If there is an ex- ception for a certain kind of use or users in the national copyright act, there is no need to ask for the author’s permission, although for certain uses authors have to be compensated. The Berne Convention for the protection of literary and artistic works, for instance, among exceptions includes quotations, use of works in education or for a news reporting. This means that such uses are permitted and legal. Many national copyright laws include similar provisions. The European Union Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society from 2001 allows certain permitted uses of protected works. For instance works can be repro- duced for:
9 private use of an individual,
9 libraries, archives, educational and research institutions can repro- duce works in their possession in order to preserve them,
9 handicapped persons, 9 educational purposes, 9 the needs of the courts, 9 news reporting,
9 parodies, caricatures, etc. 9 quotations.
However, these exceptions were offered as options, and European na- tional copyright laws modeled after the Directive included some, but rarely all of them. Therefore, in the present digital environment libraries can hardly provide all the services needed by their users based on present exceptions and limitations. Voices are heard that a new set of exceptions and limitations is needed for cultural institutions. IFLA (International Federation of Library As- sociations and Institutions) has recently compiled a proposal of a new treaty for libraries and archives to be presented for adoption at WIPO (World Intel- lectual Property Organization). The proposal states clearly what the present needs of libraries and archives are and suggests solutions which would allow libraries and archives to serve their users properly and adequately. The pro- posal can be accessed at http://www.ifla.org/en/node/5856.
Collective rights management organizations
For libraries which want to clear the rights before digitization the iden- tification and location of a rightsholder might present a serious problem.
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Rights clearance is required because digitization is an act of reproduction and at the same time it is also an act of making a work available to the public and for both those acts the author's permission is needed. It is not strange then, that the first works digitized by many libraries were the works in the public domain. But in the long run, such approach is not sustainable. Works that originated in the 20th c. are an integral part of the world heritage and most important for our understanding of the present social and political situation and they cannot remain inaccessible to the public. Collective rights manage- ment organizations may help cultural institutions in clearing the rights. It has already been said that they are relatively new organizations; the first such or- ganizations were established in the '70s. They normally represent certain types of authors, e.g. composers, music performers, etc. or certain categories of works, e.g. music, films, etc. and are capable of providing permissions for their use. This means that they are a kind of one-stop shop for licenses. Such organizations may save time and effort to libraries which want to clear rights.
Licenses and licensing
Digital resources are mostly licensed. This means that a library for in- stance, obtains a license from a vendor or publisher for the use of certain ma- terial. Licensing appears to be a common way of managing digital resources. However, libraries might sometimes meet with difficulties when negotiating a license. Librarians should keep in mind that the license conditions should not be contrary to the national copyright legislation. Difficulties arise when a vendor of a digital resource comes from another country with a different leg- islation.
A take-down policy statement
A library which wants to digitize some works has to proceed carefully in order not to infringe the copyright law. It is advisable to undertake the fol- lowing steps:
9 check if the work is still protected,
9 attempt to contact and get permission from the rightsholder,
9 if the work is a part of a donation check the conditions under which it has been donated,
9 document all decisions and mount them on the website,
9 provide a take-down policy statement, in case a rightsholder puts out a claim of copyright.
A take-down policy statement should be mounted on the library’s web- site and should contain at least the following statements:
93 “This collection is available for purposes of education and research. We have taken care to indicate what we know about copyright. We are eager to hear from any rights owner so that we may obtain the accurate information. Upon request we’ll remove material from the public view while we address a rights issue.”
Recommended literature:
1. IFLA Manifesto for digital libraries. Available at: http://www.ifla.org/ publications/IFLA-manifesto-for-digital-libraries
2. Draft treaty for libraries and archives. Available at: http://www.ifla.org/ files/clm/publications/tlib.pdf
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