"There are many supporters of strong intellectual property rights today. Media companies and their trade associations view ever increased rights for copyright owners as the best way to maximize their potential revenue. It is somewhat harder, however, to find equally prominent defenders of the other half of the copyright balance, namely the needs of the public to have reasonable legitimate access to copyright material. This can be attributed to some degree to the fact that many advocates of stronger rights for copyright owners have a financial interest in such an outcome. The wider public interest in being able to access this material is more diffuse and usually has no direct economic motive and so is less likely to attract professional advocates. The library sector, however, is proud to view itself as a custodian of the public interest in this regard.
Libraries are major purchasers of copyright protected works, both analogue and digital, and make such works available for patrons to browse, read and use. Librarians and information professionals do, where possible and to the best of their ability, protect against copyright abuse of library material in collections....
It should not be forgotten that copyright is a monopoly right. Without exceptions, copyright owners would have a complete monopoly over learning, and thus control access to knowledge in the digital age....
Technological copyright protection measures are a significant issue for the world’s library and education communities, because they can override and effectively eliminate any copyright exceptions. This is because such technological measures do not distinguish between uses which are not authorised by the copyright owner but are permitted by law, on the one hand, and those uses which are not authorised by the owner and also infringing. For example, the same copy-control mechanism, which prevents a person from making infringing copies of a copyright work, may also prevent a student or a visually impaired person from making legitimate fair use/fair dealing copies....
In addition to intellectual property laws and the increasing use of digital rights management technology, contractual licensing also shapes the digital environment and is being used to limit user rights. ‘Unlike paper materials, digital information generally is not purchased by consumers or the library; rather it is licensed by the library from information providers....
However, there is a growing problem that such agreements are being used as ‘unilateral legislation’; that is, license agreements frequently override copyright exceptions and set a level of usage that is more restrictive than the law allows. Licenses can involve a wide range of terms and conditions, but, unlike copyright law, licensors are not statutorily obliged to consider the public interest in accessing information when setting such terms and conditions. As most digital information is distributed by license, public policy considerations such as fair use, fair dealing or exceptions to the author’s rights are likely to become null and void. It is therefore essential that limitations and exceptions are carefully considered in the digital realm to protect access to information.
Some examples of the types of restrictions that license agreements often impose include:
- restrictions on users printing or downloading or emailing copies of (parts of) the material;
- restrictions on the number, location, and organizational affiliation of users;
- restrictions on libraries performing inter-library loan/document supply;
- restrictions on libraries copying the work for preservation purposes;
- restrictions on the use of a work beyond a certain date;
- restrictions on libraries networking the work across the premises of the library;
- restrictions on lending or otherwise disposing of a digital work.
- restrictions on the right to quote, analyze and even to index a work
Most copying of print-based material in libraries is for educational, research or private study purposes or for preservation. The reasons usually given for copying are because users are unable to read the material in the library (material is in demand or reference only) or because the user wishes to read it at a more convenient time (time shifting). Despite rights owner concerns about loss of sales there is no evidence that copying reasonable amounts from copyright protected works displaces sales. Those who copy would not necessarily buy a work if prevented from copying it. There is no reason to believe that this pattern will not also be true of copying from digital works.
IFLA believes, therefore, that not only must traditional copyright exceptions be preserved both in the print (analogue) environment but also in the digital environment, and that this must be addressed at the same time as the issues of the increasing use of copyright protection technologies and contractual license agreements. It is of little use for national legislatures to guarantee fair use rights if these rights are promptly overridden by non-negotiated click-through licence agreements or technological protection systems in almost every case....
For works in digital format, without incurring a further payment or seeking permission, all legitimate users of a library should be able to:
- browse publicly available copyright material;
- read, listen to, or view lawfully acquired publicly marketed copyright material privately, on site or remotely; (including material which has to be adapted for those with a learning disability or translated into a different language)
- copy, or have copied for them by library and information staff a reasonable proportion of a digital work in copyright for personal, educational or research use.
Libraries are, in effect, catalysts for the sale of information in all of its formats. Therefore, any legal or contractual restraints put on lending would be to the disadvantage of rights holders as well as to the libraries themselves. Unfortunately a precedent has been set with the European Union when lending was made a restricted act under copyright even though it is not an international requirement.
IFLA believes that the lending of published materials by libraries should not be restricted by legislation and that contractual provisions, for example within licensing agreements, should not override reasonable lending of electronic resources by library and information staff." [IFLANET]