http://europa.eu.int/comm/dg15/en/intprop/intprop/copy2.htm

General
1. The Library Association is the main body in the UK representing the library and information profession. It has over 25,000 members most of whom are personal members whose working environment includes libraries in higher and further education, industrial and commercial organisations, the health sector, professional and learned societies, government and local government departments and agencies, schools, voluntary organisations and national and public libraries. Among other activities The LA lobbies on behalf of its members to ensure equality of access to information, ideas and works of imagination.

2.  The Library Association has always supported strong intellectual property protection and will continue to do so. We firmly believe that the economic and moral interests of authors and rightholders must remain adequately protected in the new digital environment. However, the harmonisation of European copyright law must also aim at ensuring access to information and knowledge to all. We are still not convinced that this amended proposal has achieved the right balance.

3.  The amended proposal has taken account of some of the great concerns expressed by The Library Association and many other associations on the original text and on many of the proposed amendments by European Parliament. The improved provisions made for the benefit of people with a disability and the amended wording concerning temporary copies are especially welcomed. We also appreciate the special attention given to public establishments such as libraries and archives and other teaching, educational or cultural establishments which serve the public interest.

4.  However, further improvements are needed to enable everybody, irrespective of financial or other constraints, to benefit from and fully participate in the information society by using the services offered by libraries and other related public institutions.

Specific comments
5.  In the light of the continuing debate on this draft Directive especially in the Council of Ministers, we would like to draw special attention to the following issues and concerns.

6.  The list of exceptions should be flexible and more open. Article 5 of the amended draft Directive sets out a list of permitted exceptions, which is exhaustive. Member States will therefore not be allowed to provide for any exceptions other than those enumerated. This means that not only will exceptions for the digital environment be extremely limited, existing national exceptions covering the analogue environment will also have to be reduced to the listed few. This is in contrast to the WIPO Copyright Treaty 1996, where Member States are given permission "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". The EU Directive which is implementing the WIPO Copyright Treaty must not be more restrictive than international treaties in order to ensure that there are no barriers to the Internal Market.

7.  Whilst we agree that the Internal Market should not be distorted (Recital I), there is absolutely no proof that an open list of exceptions will upset the balance of trade. There is no evidence that the present UK exemptions, for example, which have been devised strictly in accordance with the three step test have distorted competition in any way. The Library Association therefore maintains that Member States must be given the option to determine themselves which traditional exemptions can be retained and appropriately extended according to the three-step-test.

8.  An exception needed for viewing on a screen. Although the potential offering of a work on a publicly accessible site would require the authorisation of rightholders, the actual calling up of an image for viewing by the library user is an act of temporary reproduction and thus subject to the exception given in Article 5.1. It is of crucial importance regarding access to information to state explicitly that visitors of a library can view, read or listen to electronic materials on the premises of a library without having to ask for rightholders’ permission or having to pay any extra charges. Based on the wording of the original WIPO proposal for Article 7 (2), The LA recommends that simple viewing of digital information in a library is explicitly excepted in article 5.1.

9.  Clarification of Communication Right and lawful use needed. At present, experts’ opinions are divided over the exact interpretation of the new "making available right" which is introduced as a specific part of the communication to the public right to address interactive on-demand transmissions. The many differing interpretations of this right demands clarification. Librarians are unsure whether having paid to access a work which is made available to the public whether they and their users may be allowed to access such works freely. If so, then such lawful uses should be protected from any contractual clauses to the contrary. There is specific provision in the Database Directive (Recital 34 and Article 6.1) whereby lawful users are given assurance that they may access and use a copyright work even if a contract specifies to the contrary. This is now acquis communautaire and so a specific provision should be introduced to ensure that "lawful users" can access and use a copyright work made available to the public.

10.  Exception for libraries and archives is far too prescriptive. In Article 5.2. (c) of the original draft Directive, Member States were permitted to exempt certain acts of reproduction from the reproduction right for the benefit of establishments which are accessible to the public, such as public libraries. The provision did not define those acts which may be exempted by Member States but requested that they would have to identify certain special cases which are in line with the three step test. In the amended draft Directive this provision is restricted to "archiving and conservation" purposes. This is far too prescriptive and narrow and would not cover the essential user services covered by the present UK library copyright regulations and prevent libraries from playing an active part in the digital environment. The LA maintains that it is not the role of a European Directive to specify in detail all certain special cases but to provide the legal framework for Member States to define the details. We therefore recommend deleting the words "for archiving or conservation purposes" in Article 5.2. (c).

11.  Teaching and research exceptions should be left to Member States discretion and the three step test. In the ten years since the UK Copyright Designs and Patents Act 1988 was made law, there have been no legal complaints by rights holders that copying insubstantial amounts for commercial research prejudiced their legitimate interests or conflicted with a normal exploitation of their works. Therefore there is absolutely no reason why the words " to the extent justified by the non-commercial purpose to be achieved" are necessary in Article 5.3a. Users in the UK have always been allowed to copy reasonable amounts from copyright works for research or private study. Research was never qualified because it is difficult to do so. The UK Government has long been encouraging links between academic and scientific research with commerce and industry and it would be difficult to separate what is commercial and what is not. Copying for direct commercial gain is different and should clearly be authorised but any research involved with education or teaching is not likely to be for direct economic gain. This is an area which is best dealt with Member States themselves.

12.  Contracts should not be allowed to override an exception. The explanatory memorandum of the amended Directive states that recital 28 should encourage the development of contractual arrangements for activities not covered by the exception introduced for the benefit of establishments such as libraries and other cultural institutions. We have no problem with this. However this should also be reflected in the wording of the recital 28 introduced by the European Parliament. In its present wording the promotion of specific licences is linked to the mere existence of an exemption ("therefore"). Exemptions granted by law should neither need coverage in a contract nor should contracts be able to override any given exemption. The latter provision is also given in the database Directive (Article 15), and corresponds therefore with the acquis communautaire. The LA therefore recommends improving the wording to ensure that contracts are only promoted for activities which are not covered by any exemptions. In addition, contracts should not be able to override exemptions.

13.  No justification for harmonisation of fair compensation schemes. In the original draft Directive, Member States were allowed to maintain or introduce an exemption for reprography with or without remuneration schemes for rightholders. It was rightly stated that the differences in the existing schemes do not create major barriers to the Internal Market, and that differences will be further reduced with other Member States introducing such schemes. Consequently, it was rightly stated that there is no obvious need for a further harmonisation of this exception or remuneration schemes. The same applied to the exemption for private copying and the exemption for research and teaching.

14.  Especially in the light of different copyright regimes in Europe, there is no justification for requesting Europe-wide harmonisation of fair compensation schemes. The UK "fair dealing" provisions for authorised copying without remuneration cover the copying of a very limited part of a work and are also accepted in the digital environment by a number of rightholders. Multiple copying or unfair copying is covered by licences and so a remuneration is already being provided for rightholders. We therefore strongly recommend leaving the business of remuneration to the discretion of the Member States to define what constitutes "fair compensation" and to allow for zero compensation in certain cases.

15.  There should be no distinction between digital and analogue. According to experts from the consumer electronics industry, there are real practical and legal difficulties in distinguishing between analogue and digital technology. Many digital recorders actually make analogue recordings and vice versa. For example, existing analogue television sets have digital set-top boxes added to them. Digital is not a "product" but a process, a "language". Most products today can handle both languages, digital and analogue.

16.  The distinction between digital or analogue private copying, introduced by the European Parliament, is also not the solution to the problem of piracy. The Directive text clarifies that an exemption can only be given for recordings for private, strictly personal use and for non-commercial ends which is clearly not a definition of piracy (unlawful multiple copies for profit). It is difficult to understand why digital private copying will be treated in a more restrictive way than analogue private copying, especially as technical systems could give greater protection against unlawful copying. We therefore recommend that no distinction be made between digital and analogue private copying.

17.  Article 5.3(c-d) should be in line with Berne. The language of the Berne Convention has been considered adequate for many years. We do not believe that there is any justification for adding extra qualifying text.

18.  Technical protection should be circumvented for lawful use. The amended proposal for a Directive has taken on board the extremely important distinction between the circumvention of technical protection systems for lawful purposes and the circumvention to infringe copyright. Technical blocks must not stop legally permitted copying. The amended recital 30 recognises that circumvention should be prevented if done without authority but that the necessary authority could be either given by the rightholders or conferred by law. We recommend also that the corresponding Article 6 should be clarified to reflect this important principle.

Sandy Norman

Copyright Adviser to The Library Association July 1999