New copyright challenges

for the users digital works

Dragutin Nemec
Library of the Faculty of law in
Zagreb
LIBRARIES IN THE DIGITAL AGE (LIDA) 2007
 Some issues
 Copyright as we know it
 Have the standards changed in the
digital environment?
 Legalising technical locks
 Databases and licensing
 Open access to...what?
 What’s the future for users and libraries?

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
 Digital IS different
 EU leaves little doubt :
 ... differences between digital and analogue
private copying and a distinction should be
made....
 IFLA warns about terms and conditions of
the licenses

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
 Copyright as we know it –
general overview
 civil law system of «author’s right”, droit
d'auteur vs. “copyright” - moral rights
 difference between copyright and ownership:
barrieres or limitations / exceptions from
copyright holder's exclusive rights to reproduce
the copyrighted work in copies, to distribute
them, display in public and give permissions ;
«fair use» (US) or «fair dealing» (UK)
 exceptions from permission given to users are
NOT “rights”...consequences?

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
When permission is not needed
for general public
 educational - scientific research, personal
study
 quotations for criticism or review
 reporting news
 parody
 for special needs of disabled persons
(transferring works from media to media)
 public security and proceedings etc...
LIBRARIES IN THE DIGITAL AGE
(LIDA) 2007
 How much to copy
non-commercial, private purposes
 parts of the books and databases, whole
articles, public display of the copies in the
teaching process
 fair use doctrine - more flexible?
 case to case approach
 guidelines for institutions, based in case law
 circulars from the US Copyright office on guidelines
with minimum recquirements

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
 Libraries
& archives
 one copy of all the published works from
their collection, as well to distribute copies
to the users
 BUT, making works available through an
online database without the permission of
the copyright holder, might be an
infringing public display
 Public display usually allowed in teaching
process
LIBRARIES IN THE DIGITAL AGE
(LIDA) 2007
Have the standards changed in
the digital environment?
 new kinds of works in  right holders arguments:
digitalized formats (e-  more difficult control

books, CD/DVDs,  reproduction is easy,

databases, Internet, as the production of

softwares..) in the illegitimate copies of
the exact quality
libraries - business as
 distribution of digital
usual? copies over networks
is easy

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
Right holders vs Users – new
legal weapons
Libraries and users still generally enjoy
exceptions in laws, BUT
 could be technollogically dimmed from
legitimate use - and legally, by prohibition to
circumvent technological protection
 right holders avoidance of copyright laws and
abrogation of fair use / exceptions through
licensing agreements

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
 Legalizing technical locks
 CSS (Content Scrambling System); DRM (Digital
rights managent) etc...
 despite the exceptions in favor of users:
 general prohibition in all laws to circumvent technical
protection of digital works, as well as ban on
distribution of softwares/tools to circumvent
 WIPO Treaty and EU Directive - countries
should take “measures” in enabling users to still
enjoy exceptions – so far, dead end

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
 Databases
 database right of the creator - EU directive 1996
 prevents copying of substantial parts of a
database (including frequent extraction of
insubstantial parts), distribution, public display
 exceptions: teaching, science research
 in US - most effective means of database
protection are contracts, user agreements
 grounds for development of licensing

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
 Licences and their effects

 Click yes to agree!

LIBRARIES IN THE DIGITAL AGE
(LIDA) 2007
 Licences and their effects

 contractual agreement, provider/institution

relationship parties are agreeing upon
 purposely introduced with occurence of digital
works and databases in ’90
 right owners can restrict the user however they
want, often with foreign law as applicable
 freedom of contracting, above copyright laws
 terms of use often more restrictive than law
 shrinkwrap / EULA licences ....
LIBRARIES IN THE DIGITAL AGE
(LIDA) 2007
 Licensing database, example of
LexisNexis
 contrary to some exceptions, IFLA principles:
 storage longer than 3 months is forbidden
 printing restricted to a single copy, only in the form of
so called «Authorized Printouts“; downloading as well
 solely insubstantial portions
 displaying retrieved material to no more than one
person at a time
 access issues

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007
 Open access to...what?
 initiative on open online repostiories of digital
works (scholarly, scientific)
 free and unrestricted online access to the public
 EU recommendations, US proposed Public
Access to science Act bill
 self archiving, permissions, contracts
 consent of the authors / copyright holders?
 publicly funded works not to be subjected to
copyright protection?
 publishers views differ, but...
LIBRARIES IN THE DIGITAL AGE
(LIDA) 2007
 Future?
Scenario 1 Scenario 2
 increasing restrictions  More state activity in

 further privileging of recognition of public interest:

technological locks legislation, compensations
 Expanding of contracts,  Sofisticated softwares which

ousting of exceptions can distinguish types of users

 business schemes with ISP
providers
 negotiating skills

 better enforcement of existing

solutions

LIBRARIES IN THE DIGITAL AGE

(LIDA) 2007