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Does Copyright Exist in a Digital World
Digital technology has changed the way people create, distribute and use copyrighted works. People want to use new technology that is easily and readily available, but many uses of technology, such as transferring old LPs to MP3 for ease of listening, constitute civil or criminal offences.
Traditionally, distributors and publishers acquired rights from authors and then passed them on for retail, since physical copies were hard to reproduce and the distributors had a high level of control. However, digital technologies have altered this process, since authors can now publish directly in the online world and consumers have an enormous quantity of content and technologies at their fingertips. However in using such technologies, it is almost inevitable that, they will violate copyright. So, does or should copyright exist in a digital world?
In this regard, over the last ten years there has been a number of initiatives (from the European Community's Green Paper on exception of copyright to the UKIPO's paper on copyright in a digital world) trying to understand and align all the different requirements of the copyright affected community.
On one hand, libraries, archives and Universities favour the “public interest” approach, calling for a more permissive copyright system. In their view, certain exceptions were more important for the knowledge economy than others. They wanted a mandatory set of core “public interest” exceptions to facilitate “access to knowledge”.
On the other hand, publishers, collecting societies and other right-holders argued that, the best way to improve the dissemination of knowledge and provide users with increased and effective access to works, was through appropriate licensing agreements.
As I see it, there are two core issues:
a) the production of digital copies of materials held in the libraries’ collection for preservation purposes and
b) the electronic dissemination of these copies to users.
Currently, the digitisation of library archives or Universities collections requires prior authorisation from the right-holders:
Libraries argue that, this system of “prior authorisation” entails considerable transactional burdens, as publishers do not often have digital rights and the cost of individual right clearance is too high. Libraries also want to make their collections accessible online, particularly works that are commercially unavailable and argue that, this should not be limited solely to access on the physical premises.
Publishers and collecting societies, on the other hand, advocate the continuation of the existing system of licensing schemes and contractual agreements to digitise and increase online access to works. They claim that, easing the current exception to allow libraries to provide online services to users, would undermine the position of right-holders, create unfair competition to publishers and discourage them from investing in new business models.
Libraries, Universities, archives and some commercial users advocate a legislative approach at the European level, to allow different uses of orphan works.
Publishers and other rights-holders regard orphan works as a rights-clearance issue and are sceptical about introducing a blanket exception to use orphan works.
Published results of publicly-funded research, should be available to the entire scientific community and to the public. A typical European University is required to sign a hundred or more licences, governing the use of digital research material supplied by various publishers. They also argued that, transnational licensing within the EU is difficult or impossible, as there should be one central organisation to grant a wide range of online rights, with respect to digital material. They also called for mandatory teaching and research exceptions, which should include a reference to distance learning.
Publishers argued that, licensing solutions provide the required flexibility to cater to the requirements of teaching and research, including distance learning. They provide extensive electronic access to their databases, journals and books to libraries and educational and research institutions, through licensing agreements. In making works available for distance learning or home-use, publishers and licensing agencies stressed the importance of ensuring that, access is limited to the non-commercial and educational purposes, for which the material is intended.
It seems that, a distinction between commercial and non-commercial use is a step forward in reducing confusion in the digital environment. Whereas, a case can be made for a broader, better-defined exception to copyright, that allows personal, use of legitimately obtained copyright works without explicit permission. This might apply not only to the reproduction of works, but also to creating derivative works and/or to sharing with family and friends; an expanded exception for commercial use could impact on revenues for rights-holders. An element of fair compensation for any loss would be required.
Currently, the best way to address the digitisation process and on-line distribution is by modernising the licensing process and for relevant parties to work with IP and contract experts to devise various flexible solutions. Some help is also offered to right-holders by the Digital Economy Act 2010.
In this regard, two cases are relevant. One is the Infopaq and DDF case and the other is the Google books project that I am reviewing in the next article.
Anassutzi & Co offers business strategy advice putting legal advice into context and offers high quality expertise for fixed feeswww.anassutzi.com
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