Copyright and the Networked Environment
By Sandy Norman, Copyright Consultant, on behalf of EARL, the Library Association and UKOLN
Copyright was identified in New Library: the People's Network  as being an extremely important aspect of the network that needed to be considered carefully when planning the content. The report made it clear that the success of the People's Network depended on the content being accessible to the public and whether the owners of the copyright in the content were willing to license its use. What the report said regarding copyright and licensing is still valid. All the copyright in material not owned by the libraries themselves will have to be cleared for inclusion, and access is likely to be subject to payment and strict conditions specified by the rights holders in order to protect their intellectual property. This is no easy task. How the problems of copyright were to be overcome was only touched upon. There is no doubt that addressing the problems of copyright will bring many challenges to the People's Network. The issues behind the problems are discussed in this paper together with a brief outline of what copyright is.
What is copyright?
Copyright is an intellectual property right which is given to all creators of works of the mind for a specified period of time during which they have legal protection against unauthorised exploitation of their works. Unauthorised exploitation is not only making illegal copies, it also covers unauthorised publication, adaptation, public performance and broadcasting or inclusion in a cable programme service. Attached to copyrights are moral rights, notably the right to be identified as the author of a work (paternity right) and the right not to have a work treated in a derogatory manner (integrity right).
Works of the mind include: literary, dramatic, musical and artistic material; sound recordings, films, broadcasts and cable programmes. Literary works include computer programs and databases.
Who owns copyright?
Copyright is owned in the first instance by the author (creator). However, in order to exploit their works, authors frequently assign or license some or all of their copyright to a publisher to exploit for them. So, a publisher manages the copyright on the author's behalf and will expect to gain a return on the investment in the work either by sales of copies or licences to use. A publisher also owns a separate copyright in the typographical arrangement of the words on a page.
Anything created by employees as part of the work they are contracted to do on a daily basis is automatically assumed to be owned by the employer. So, for instance, the library catalogue will belong to the public library authority and not the employee(s) who created it.
Works in digital form
All the rules of copyright which apply to printed material also apply to works in digital form. The exclusive right of reproduction given to authors includes storing the work in electronic form. The contents of works which are 'published' in electronic format are thus protected in the same way as their printed equivalents. Any kind of electronic copying or transmitting which involves storage of a copyright protected work is part of the restricted right of reproduction. Even storage which is of a transient or incidental nature is regarded as a reproduction.
Databases and Database Right
The People's Network will be a collection of databases so the rules regarding databases need to be grasped. Databases were the subject of a change in the law in 1998 . Full copyright protection is now given only to those databases (compilations) which by virtue of their selection and arrangement of the contents constitutes the author's own 'intellectual creation'. A compilation which does not meet the originality criteria for copyright protection is protected by a new intellectual property right called database right. However, any database may qualify for database right as long as a substantial investment has been made in the obtaining, verification and presentation of the contents by the database maker. So, although a database must be original to qualify for copyright, it need not necessarily be original to qualify for database right. All this is regardless of the actual contents which may or may not have copyright protection in their own right.
Exceptions and limitations
Copyrights are not absolute rights and most countries recognise the need to limit the exclusive rights given to authors in certain specific circumstances. These exceptions ensure that access to information to further the public interest in research, education and other important policy goals are not subject to unnecessary copyright restrictions. Exceptions for fair dealing and the privileges given to libraries and archives are good examples of this . Whether these exceptions translate into the digital environment and can be relied on by librarians and users is a big issue and the subject of much debate and controversy within the countries of the European Union. Librarians and other education and consumer groups believe that the exceptions are still valid in the digital environment and are essential to ensure equal access to information . The need for exceptions was endorsed in the 1996 WIPO Copyright Treaty and new uses which are more in keeping with the digital environment were allowed . If the People's Network is to achieve its aim of enabling people of all ages to have equal access to the benefits, then it is essential that some statutory privileges in line with fair practice such as browsing, reading and copying small amounts are given to all members of society and these should not be overridden by any contractual conditions imposed by rights holders.
In 1997, the European Union put forward a proposal for a Copyright Directive to cover the Information Society. Included in the Directive are proposals to limit existing and future exceptions across EU Member States. The Directive is very controversial and is causing concern amongst LIS professionals. If adopted in its present draft, it is likely to change the UK Act radically and upset the balance of the network in favour of those who can afford to pay only . At the time of writing, it has not yet been adopted by Member States so its effects are not likely to be seen in the UK until sometime after 2002.
Who owns copyright on the library network?
Any collections of works acquired by the library for the People's Network and arranged in an original manner (i.e. not simply A to Z order will qualify for copyright and database right protection.
The copyrights in websites (which are in effect databases regardless of content) are owned by their makers. It is essential for the copyright in a library website to be owned 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 can then safely exploit the site as it wishes. The same applies to the actual network.
The content is another matter. Any content placed on a website should either be owned entirely by the library or organisation or be cleared by obtaining permission to use. Once works have been cleared for inclusion on the network, the library as compiler of the database will be the owner of the copyright in the database although some or all of the rights to the works included will belong to others.
Clearing works for inclusion on a website
Using works already published in electronic form on a library network will have to have clearance in the form of a permission or licence from rights holders, usually publishers.
There will also be many non-digital works in the library collection which are considered ideal for inclusion on the network. Although the library may be the sole owner of the physical work, it may not necessarily own the rights. Many of these works may still be in copyright and so will need to be cleared for digitisation and networking first. For example, if the library has a valuable local history collection most of which has been donated to the library, the library should obtain authorisation from the authors or their estates before using the material on the network. Those works which are out of copyright may be safely digitised.
Tracing Rights Holders
One must never underestimate the difficulties of identifying and tracing rights holders. Things to bear in mind are: whether the work is in copyright or not; whether it has been published or not; and who holds the rights. The owner of the copyright could still be the original author if the work has never been published, or if copyright has reverted to him or her; the author's estate; the author's agent; or the publisher. Copyright subsists for 70 years following the death of the author for published works; for those works which were unpublished and in copyright in 1988, copyright expires in 2039 but it could be longer depending on when the work was created . If tracing rights becomes impossible, the library will have to consider whether it is worth taking the risk and putting the work on the network. If after a reasonable attempt at searching it can be assumed that the work is out of copyright or the author(s) have been dead for 70 years then copying may take place. If one cannot make this assumption, then the library should consider making a disclaimer as well as putting some money aside against the copyright owner appearing. Otherwise the work should not be used.
Overcoming Rights Holder Resistance
One of the main problems will be to overcome the resistance of rights holders, usually publishers, to allow their works to be digitised. Libraries will have to convince them that their works will not be abused or misused and that they will not lose out financially. Their main concern is piracy. Many rights holders are therefore reluctant to allow their works to be stored in digital form as it is difficult and sometimes impossible to control or detect the movement of works electronically. Once digitised and stored in a computer, works can be transferred unseen. 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. Another concern is the potential for violation of an author's moral rights. Works can be manipulated easily while in electronic format which infringes the author's right of integrity and increases the risk of plagiarism.
The People's Network is likely to be a source of tradable information. As well as ensuring access is given to all members of society, some of the uses will be outside what is acceptable under fair dealing or the library regulations or other authorised uses agreed in a licence. In these cases, the library may need to work out methods of passing royalties on to rights holders for uses of their works. The library too will be a rights holder and will need to be involved in trading its information. How to deal with electronic trading or electronic commerce will have to be considered. Research is being undertaken into the most appropriate methods of managing rights. One such project is the INDECS metadata scheme .
Negotiating licenses and contracts: the liability issue
There are many problems which a library could face when dealing with publishers . A knowledge of contract and copyright law is therefore essential if both parties are to negotiate on an equal footing. The library must understand and agree to the terms and conditions set by rights holders in a contract or licence. If the library fails to operate within the terms of the licence then the library as party to the contract will be liable. Therefore, any terms which are going to be difficult to adhere to will need to be considered very carefully. Terms and conditions are as important as the price. For example, libraries should be wary of some rights holders who may try to control all uses by contract. It is important that they should not be given the opportunity to prevent contractually those acts which are allowed by copyright legislation i.e. the exceptions . If it is allowed by statute then it should not be denied by contract. It would be unwise to accept conditions, therefore, which forbade users to access the works, browse to ascertain relevance and make fair dealing copies of extracts.
Copying for Commercial Purposes
Clearly, those who work in the for-profit sector will need to access the People's Network at some time, either on site in the library or remotely. However, 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. Will there be an easy way to distinguish between commercial and non-commercial uses? Not all copying by 'commercial' users is for direct gain in any case. There is no distinction in the UK CPDA 1988 between making fair dealing copies for commercial or non-commercial research purposes, apart from when the copying takes place from a database . As most collections on the People's Network are likely to be defined as databases, this becomes a major issue. The trend in the European Union is not to allow exceptions for copying for a commercial purpose. The UK law did not distinguish between academic, scientific or commercial research in the original 1988 Act. But, since 1998, any research which is for a commercial purpose is not considered to be fair dealing.
Will archiving be allowed?
Archiving and preservation is another act which must be considered within any licence to digitise protected works. However, it is likely that, when the Copyright Directive is adopted in Europe and implemented into UK law, there will be an exception which will allow librarians to archive materials in their collection . Depending on if and when this takes place, licences should allow libraries to make archival copies.
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. Many national consortia groups have joined forces to share licensing information and to produce a set of licensing principles. The International Coalition of Library Consortia (ICOLC)  was formed. In March 1998, ICOLC published a Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information.
Examples of other networks
SCRAN is an excellent example of a network which has managed to overcome resistance by rights holders to the digitisation of their works so that both sides win. This has mainly been the result of offering a guarantee to rights holders that their works are protected and that all uses are licensed. Rights holders are persuaded to allow the digitisation of their material without payment. In return, SCRAN undertakes the digitisation and returns a copy to rights holders for their use. Educational users are allowed to access the SCRAN network of images for free for non-profit educational purposes. Users have to be licensed and agree to strict conditions of use. In addition, works are protected with a watermark which can be traced in the case of misuse. SCRAN also acts as an intermediary and licenses commercial uses and forwards collected royalties to rights holders. Rights holders are thus able to benefit from allowing use of their works .
Checklist of suggested actions
If you wish to comment on any issues raised in this paper, please use the Feedback option on the main Networked Services Policy Task Group web site.