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Copyright protected materials (Summary)
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Copyright and preservation
Copying in order to archive or preserve a work in a library collection is considered to be the responsibility of the library and information profession. It is essential, as well as being in the public interest, that librarians are given an exception to copy in order to preserve the original and to be able to make the preserved copy available for consultation and other uses in the same way as the original format. In the EU Copyright Directive, EU Member States have the option of being allowed to archive and preserve specific works and make them available subject to strict conditions. If such an exception is not included in national law, authorisation has to be sought. (See article 5.3n of the Copyright Directive, op cit). (See also digitisation.) This could hinder national objectives to preserve cultural heritage as such clearance could be administratively burdensome and costly. 

The effects of copyright on public lending
Non-commercial public lending is not an activity that has traditionally been controlled by copyright law. Public lending has always been essential to give access to culture and educational materials and should be available to all. Information packaged in all formats has and will become part of the lending stock. However, following the EU Directive on Rental and Lending, Europe’s libraries are governed by lending regulations. (See Council Directive 92/100/EEC on Rental and Lending Right and on Certain Rights related to Copyright in the field of Intellectual Property). These stipulate that material lent by public libraries has to be authorised or licensed. This means that for some materials, authors may demand some remuneration. 

Copyright and technical protection systems
Rights holders are concerned that, in the digital environment, their works are not fully protected by law. They are endeavouring to tighten up the protection of their works using technological solutions. Technical protection, intended to control or prevent copying and/or movement of their works, could be a digital rights management system (DRM) or an electronic control management system (ECMS). 

These technical protection systems have been given protection against unlawful circumvention in the EU Copyright Directive (article 6). However, this causes concern to those who wish to copy a work under a lawful exception. For example, if an exception is given to allow a visually impaired person to be able to reformat a work in order to read it, this will be impossible if the work is protected by an ECMS, thus preventing any copying and reformatting without authorisation. The exception therefore becomes worthless. This has been addressed in the Directive by allowing Governments to intervene if there is a problem. Librarians and other user groups will need to monitor its effects closely. 

GOOD PRACTICE GUIDELINES 

Guidance on planning a library network
The success of a library network depends on the content being accessible to the public. There will be many non-digital works in the library collection which are considered ideal for inclusion on the network.

• It is important to note that although the library may be the sole owner of the physical work, it may not necessarily own the rights. It is highly unlikely that the law will allow an exception for libraries to digitise a work in print in order to make it available to users on a public access network. 

• The copyright in protected works needs to be cleared prior to digitisation and networking. Librarians will, therefore, have to be prepared to negotiate with whoever holds the rights for authorisation. This could be the publisher, a collecting society, a licensing agency, or maybe even the author or the author’s estate if the author is dead.

• Librarians will also have to negotiate to purchase access to existing works in digital form. A knowledge of contract and copyright law is therefore desirable if both parties are to negotiate on an equal footing. 

• There are many pitfalls which libraries could encounter when dealing with contracts and licensing which could put the library at risk of expensive litigation so it is essential that library negotiators familiarise themselves with proposed terms as well as costs. See Giavarra, Licensing Digital Resources: How to avoid the legal pitfalls 2nd ed. 2001. 

Before considering a public access network, public libraries should ideally: 

• Be aware of current and any forthcoming copyright legislation and seek legal advice. (General information on copyright and related rights may be found on the WIPO www.wipo.int web site and details of national copyright legislation covering most nations may be found on the UNESCO web site. See also the EU Copyright Directive) 

• Devise a copyright policy outlining aims and objectives of the service. What uses are allowed should flow from these aims. E.g. establish who will have access and for what purposes, decide about network security and how copying and use will be controlled. Will there be a technical protection system or will access be monitored by identification, registration and password controls? Will remote access be offered to protected works?

• Decide on content to include and identify who owns the copyright in protected works. Those works where the copyright is not owned by the library will have to be cleared for inclusion. Some works could already be published in electronic form and so a licence will be needed from the publisher to provide linked access. 

• Establish clearance mechanisms and negotiate licences as necessary. If possible involve legal advisers. 

• Consider negotiating access to existing electronic works via a consortium. Librarians can be in a better position to improve deals with publishers if they pool information and knowledge and form consortia. Consortia licensing is being seen by many librarians to be the answer to the might of publishers and other rights holders. In some countries it may be possible to persuade governments to fund such consortia deals. Many national consortia groups have joined forces to share licensing information and to produce a set of licensing principles. (See ICOLC statement and IFLA Licensing Principles under Relevant further reading - International.)

• Publishers are becoming used to dealing with consortia but they are wary of requests for “model licences”. Nevertheless such model licences do exist. See LIB-LICENSE under Best practice links - International - and also NESLI, under UK Best practice links - UK. 

• Be aware that one of the main problems will be to overcome the resistance of rights holders, usually publishers, to allow print works to be digitised. They will have to be convinced that their works will not be abused or misused and that they will not lose out financially. An author or a publisher will be reluctant to give carte blanche permission for a work to be electronically available without some guarantee that it will not be misused, or sent around the network where (they fear that) it could be accessed by countries with inadequate copyright protection. Therefore, careful consideration has to be given to such concerns before considering network uses. For example, if remote access by users is to be given to the website, consideration has to be given on how will this be controlled. A good example is SCRAN. See under UK Best practice links. See also the TECUP project under Best Practice links - European.

• Be aware of contractual limitations and library liability. Contracts may forbid certain uses. Frequently a contract may state that only non-commercial copying by users may take place. If the library agrees that this is reasonable, it will have to consider carefully how to adhere to such a term and what are the risks of non-compliance. Those who work in the for-profit sector may need to access the library network at some time, either on site in the library or remotely. Will there be an easy way to distinguish between commercial and non-commercial uses? 

• The copyright in a library website should ideally be owned outright by the library. So, if the site is being developed by some other person or organisation, it is extremely important that all the relevant authorisations (assignments or licences of copyright works) are obtained from the developer before the site goes live. The library is then free to exploit its copyrights as it wishes. Any digitised library collection will also be a database and will be protected by copyright and database right, and will also be owned by the library. This is regardless of the rights in the contents which are protected in their own right and may or may not belong to the library. See European Council Directive No 96/9/EC on Legal Protection of Databases.

Home | The Public Interest in Access to 
Copyright protected materials (Summary)
Full Text: Page 1 | Page 2 | Page 3 | Page 4