June 27, 2017

Making Creative Copyright Law | Peer to Peer Review

Kevin L. SmithOne of the most troubling attitudes I encounter when talking with librarians about copyright is a sort of fatalism. The general idea is that copyright is simply a monolithic, unintelligible barricade that prevents libraries from realizing their full potential.

While it is true that Mark Twain once wrote, “Only one thing is impossible for God: To find any sense in any copyright law on the planet,” things really are not that bad, even for us mere mortals. Copyright law is, after all, a creation of human society designed to serve specific social needs. When it fails to do what it is intended to do, it can be challenged and changed.

For libraries, it is important to remember that we are favored actors under copyright law. Almost every nation has specific exceptions in its copyright laws to assist library functions. In 2008, the World Intellectual Property Organization (WIPO) commissioned Kenneth Crews, then at Columbia University, to study and compile information about these far-flung library exceptions. In 2014, Crews, now with the firm of Gipson Hoffman & Pancione in Los Angeles, completed an update of that study. Together, the two documents offer a synoptic look at how important libraries are within the structure of copyright laws around the world, as well as multiple examples of how those library exceptions can be creatively crafted to facilitate the vital role of libraries in society.

The 2008 study can be found here, while the 2014 update is available here. These are long documents and perhaps not well suited to reading start to finish. But overall they provide a fascinating look at how libraries are treated under copyright worldwide, as well as an interesting resource to dip into regarding countries of special interest. There is a lot to be learned about copyright in these two reports.

On the macro level, these reports look at the laws of 186 of the 187 countries that are members of WIPO. Only the Federal Republic of Somalia is excluded from the study, because its statute was unavailable to the researchers. Among those 186 countries that were studied, 153 have some form of library-specific exception as part of their copyright law; only 33 do not. This gives us an idea of just how important libraries are to the overall purpose of copyright throughout the world.

One feature of the new 2014 report that is particularly interesting is the charts it provides for countries that have updated their laws and the specific library exceptions since the 2008 study. These charts are a glimpse at how laws are being updated to account for digital communications and for the new challenges and opportunities that face libraries. They also begin to suggest some creative approaches that we should keep in mind in the United States, especially if the copyright reform that is being talked about in Washington ever really gets off the ground. Thus it is worthwhile to look briefly, on the micro level, at some specific innovations that are working their way into copyright exceptions for libraries, especially in the recent reforms adopted in Canada, Great Britain, and the Russian Federation. Here are some of the specific provisions that have caught my eye:

  • The Russian Federation has included explicit recognition of the legal effect of open licensing schemes. The statute specifies that such licenses are effective even though they employ rather simplified terms and that the licensor has rights against a licensee who does not follow the terms of the license. This sort of provision can supply an extra level of reassurance if someone wants to use a Creative Commons or similar open license and has any doubts about the efficacy of those schemes and whether they adequately protect rights that are not licensed under the grant.
  • Also in Russia, there is new language about libraries and copying done to provide access for persons with visual disabilities. What struck me especially about this is that, according to the report, these copies can be made available, on a temporary basis, for users to use at their homes. We tend to think of this as an “in library” service, so it is nice to see a government recognizing that visually disabled people ought to have the same ability to do their reading at home as others have.
  • Thinking about access to digital copies both on-site and off is a broader theme in this report than just the Russian provision for the visually disabled. As Crews notes in the introduction to the 2014 report, a provision from a European Union directive about “the ability of libraries to make digital copies of works available for study at dedicated terminals on the library’s premises” has led to several additions to library exceptions in the laws of EU nations. At first glance it may look like the EU is merely catching up to U.S. law on this point, since two provisions in our library exception, section 108 of Title 17 of the U.S. Code, address digital copies made for preservation and suggest, by negative implication, that the dedicated terminal approach is acceptable. But the details matter here; the circumstances under which such copies can be made in the first place are sharply restricted in the U.S. law, and these EU provisions seem to permit much broader copying for the purpose. In Great Britain, for example, the only limitation on what can be copied for digital access at a dedicated terminal seems to be that the copying library must own the work in question. The reforms in Canada seem to go further, permitting digital copies to be transmitted directly to users who request them, with some limitation on how, and how long, they can be used.
  • In both Canada and the UK, provisions have been added to their copyright exceptions to help libraries avoid the most draconian effects of anticircumvention laws. In the UK the approach is to permit a government license for circumvention when the purpose of the circumvention is one that is otherwise permitted by the law. This is a more important provision for the British than it might seem initially, since, in the United States some courts have ruled in exactly the opposite way. In Canada, while there is no explicit exception to the anticircumvention rules in the new provisions, there is a limitation on remedies available to an aggrieved rightsholder, so libraries still have some protection if they circumvent technological protection measures for a permitted purpose.
  • Finally, the most important reform of any found in these reports, and the one the United States needs most critically, is a provision included in the UK’s new law that overrides contract provisions that purport to restrict rights that are granted to libraries by statute. In the provisions that authorize preservation copying and copies made for interlibrary lending, this language is included: “To the extent that a term in a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.” This is a clear recognition that copyright as public law is important to a nation and that library services are as well; private contracts, as flexible as they are, should not be given scope to override these core values.

There is a lot more to be found in these reports; they provide a panoramic snapshot of how libraries are treated under copyright. Again, it is heartening to see how important libraries are to the overall scheme of cultural and intellectual property. It is also fun to look and see what the laws of your favorite country—from Cabo Verde to the Holy See—have to say about library exceptions. But perhaps the greatest value of these reports is in the creative approaches they suggest to the problems that arise as copyright and libraries face the digital revolution. Our laws are not written in stone, taunting us with unalterable resistance to reform. Copyright laws serve social needs, and they can change as the needs change. These charts offer a glimpse of how such change can be accomplished, and they remind us that we can always make things a little bit better.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.