Beyond the Beginning: The Global Digital Library

COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS: AN INTERNATIONAL UPDATE

PROFESSOR CHARLES OPPENHEIM [97]

De Montfort University, UK

ABSTRACT

This brief paper analyses the current position in the field of copyright. After a perspective giving the basis for copyright legislation, it discusses current reactions to the challenges posed by digital media. The paper concludes with a description of recent and current developments.

WHAT IS COPYRIGHT?

The concept of copyright is a manifestation of a fundamental tension between the producers and consumers of intellectual works. Around the world, copyright laws protect the producers, while allowing for that tension by means of exceptions such as "fair dealing". What is relatively new is that many owners of copyright are becoming increasingly concerned with several aspects of digital networks, namely:

• the ease of copying;
• the perfection of digital copies;
• the impossibility of policing copying;
• the internet culture of copying materials regardless of copyright.

OWNERS’ REACTIONS

We can observe a variety of reactions to these concerns from copyright owners:

• They sue infringers. Partly, this is to establish precedents, in order to act as a deterrent. This approach is acknowledged to be risky, as the copyright owner may lose the case. A recent example is the Shetland Times case, which concerned links between the Web sites of two rival newspapers in the Shetlands. At time of writing, a preliminary injunction has been granted to the plaintiff.
• They attempt to strengthen legislation and other protection. The best example is perhaps the attempts to amend the Berne convention in December 1996. Owners of copyright tried to add a "transmission right" concept and Electronic Copyright Management Systems (ECMS) concepts to the convention. However, the user community reacted vigorously and achieved several significant concessions.
• The development of ECMS as a way to protect copyright owners’ interests. ECMS approaches include digital watermarks, charging using smart cards, and hardware or software systems which limit access. To date, there is no comprehensive ECMS in existence. Indeed, some observers argue that it is not possible to use ECMS approaches in the general case, because individual charges for accessing protected materials will (at least in some cases) be too small to be managed cost-effectively. An additional hurdle for ECMS is the potential they hold to threaten individual privacy, as they can allow copyright owners to track users’ access patterns.

HOW TO PROCEED?

This inevitably leads to the question: how can this position be advanced constructively? One answer is by means of negotiations between representatives of producers and users, such as the JISC/Publishers’ Association meetings. This forum has recorded three successes to date:

• an agreement has been reached for the definition of "fair dealing" in an electronic environment,
• ground rules have been established for clearance mechanisms and central bodies for clearing;
• a standard form of contract has been agreed for use in any UK Higher Education library, with agreed definitions and standard terms.

The documents resulting from the above are due to be published soon.

WHAT DOES THE FUTURE HOLD?

A few years ago, the majority of publishers were unreceptive at best, antagonistic at worst, to approaches about the issues relating to digital publishing. Recent years have seen a sea change. Now, most publishers, in most cases, are prepared to talk. These developments give us cause to be fairly – though not very – optimistic for the future.

[97] This account was produced for this report by the Marc Fresko Consultancy. It is based on notes taken during the presentation.