Libraries and copyright

Horvat, Aleksandra and Živković, Daniela. (2012). Libraries and copyright. Hrvatska sveučilišna naklada, Zagreb. ISBN 978-953-169-261-8 (epub), 978-953-169-262-5 (mobi), 978-953-169-263-2 (pdf)

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Abstract

Contemporary libraries are seen as educational, cultural and information institutions that contribute to the growth of knowledge and democracy in a society. Their main task is to provide free access to information resources for their users who need information in their work, learning or recreation. Libraries support the development of active citizens and help individuals to form their opinion on a variety of topics. They offer equity in access to all categories of citizens and have to provide varied and diverse information which can be accessed and used by various means. The word information as used here is to be understood in its generic meaning encompassing all kinds of library materials and information resources, including works with copyrights. Author’s rights to exploit his/her work and be rewarded for it has been guaranteed in Croatia and in some other countries by the Constitution. This means that the author’s rights belong among the basic rights guaranteed to an individual and that this right is equal to the right of freedom of expression. Therefore, it is imperative that a proper balance is maintained in society between the rights of authors and the rights of individuals to obtain free access to the information they need. In the last few decades the interests of authors and right holders to protect their works has been strengthened and the copyright term extended. Strengthening of copyright legislation has been supported by the developed countries, since intellectual property has become a central feature of their economy. It has been claimed that one-quarter of the United States’ total exports rely on intellectual property rights. Intellectual property contributes to the international trade and has, since 1994, been regulated by an important international agreement known by its English acronym TRIPS (Trade-Related Aspects of Intellectual Property Rights). However, developing countries complain that the present strict copyright legislation harms their ability for further development. The issue has recently been brought to the World Intellectual Property Organization (WIPO) and WIPO has initiated a new Development Agenda programme, which should take care of the needs of the developing countries. Together with other non-governmental organizations and consumer groups IFLA is lobbying in WIPO for the adoption of an international set of exceptions and limitations for libraries which would allow libraries throughout the world to take care of the needs of their users. Apart from TRIPS there is a number of international conventions which regulate the field of intellectual property including the Berne Convention for the Protection of Literary and Art Works, the Universal Copyright Convention and the Rome Convention. The WIPO Copyright Treaty and WIPO Performances and Phonograme Treaty, known as the Internet treaties, are of special significance for digital works. The EU Directive on the harmonization of certain aspects of copyright and neighbouring rights in the Information Society and other EU Directives which guide the national copyright legislation of European countries have been introduced and described in brief. A short outline of the development of copyright since its inception in the 18th century till the present time has been provided. The main arguments for its introduction have been brought up and it has been emphasized that in spite of the great changes in the way intellectual works have been created, produced and distributed in the last few decades, the same arguments to justify copyright have been used up to the present. Copyright has been introduced as an enticement to authors which would encourage them to create new works. Following the technological changes in the production, distribution and use of intellectual property legislation has also been changing. The invention of phonograph, gramophone, cinema, radio and television, photocopiers, microfilm readers, and computers have instigated adaptations and changes in copyright legislation and the introduction of new neighbouring and other rights such as rights of performers, database producers, phonograph producers, and rights of organizations for radiodiffusion. An author’s work has been explained as an intellectual creation characterized by its originality and subjectivity. Originality pertains only to the form of the work and not to its idea or topic, which does not have to be original. The work should be an original expression of its author and not the imitation of another person’ s work. The work does not need to have an artistic or literary value to be protected by copyright legislation. Examples of various types of works which can be protected according to the Croatian Copyright and Neighbouring Rights Act (2003) are enumerated and works which do not obtain protection, such as daily news, official publications and folk tales are mentioned. The concept of domaine public payant has been described. It has been emphasized that original and distinct titles of works have also been protected. The following chapter deals with an author’s rights which are classified as moral (personal) and economic rights. Moral rights are characteristic of the continental law system and comprise the right of disclosure, the right of attribution, the right of integrity and the right to withdraw or retract. Economic rights encompass an author’s right to allow the reproduction, distribution, rental, communication to the public, making available to the public and adaptation of his/her work for which s/he is entitled to remuneration. Neighbouring rights include the rights of performers, the rights of database producers, the rights of producers of sound and video recordings, and the rights of radio diffusion organizations on their programmes. Publishers have rights on their editions. When an author’s work is published a contract is signed between the publisher and the author. Examples of such contracts have been provided. The issue of copyright holders of works for hire has also been dealt with. Exceptions and limitations to copyright are dealt with in the next chapter. The three-step test of the Berne Convention is said to offer a common basis upon which national copyright laws can develop their own sets of exceptions and limitations. The Croatian Copyright Act has been modelled according to the EU Directive on the harmonization of certain aspects of copyright and related rights in the Information society, but not all exemptions offered by the Directive have been adopted. Exceptions and limitations included in the Act, which are of interest for libraries and library users, include citation, private use, informing the public, a provision for persons with disabilities, a provision for posters and catalogues of exhibitions and auctions, a provision for libraries, archives and similar institutions and provisions concerning technological protection measures. Collective societies which represent authors, performers, etc. and help them realize their rights, have been described. Collective societies established in Croatia have been identified and their work described in brief. Various kinds of licences (click-on, shrink-wrap, volume, access, site, general public and creative commons) and licence agreements (licence to publish agreement) have been explained. The contribution of EBLIDA in helping librarians understand and handle licences has been acknowleged and the establishment of ECUP described. A separate chapter deals with the public lending right (PLR). The concept of PLR has been introduced in the Croatian Copyright Act, but has not yet been implemented in libraries. The different systems of PLR applied in various countries have been described and the pro and contra arguments given. IFLA position on PLR has been introduced. Libraries collect special types of material such as printed and recorded music, films, computer software, and databases. Basic copyright guidelines for librarians have been given. Digitisation is the topic of a separate chapter. It has been explained that digitisation is a process which consists of both reproduction and communication to the public. Cases in which libraries do not have to ask for authors’ permission, such as private use and preservation have been described. It has been shown that digitisation may also be allowed by licencing. The process of digitisation of library material has been explained step by step. Experience of libraries abroad in the digitisation of newspapers and journals has been described. Orphan works and out-of-print works are said to require a diligent search for the right holders. E-reserves as a special type of collections used by universities have been described and guidance on how to secure copyright clearance has been provided. The issue of copyright on the Web has been raised. It has been stated that the right of communication to the public includes the author’s right to display his/her work on a website. Linking, deep linking, inline linking, and framing have been described as acts that might cause copyright infringement. Conditions under which trademarks, logos and labels can be used as links have been identified. Rights to photographic works and images have been discussed. Advice on how to use the images of bookcovers and bookjackets for the library’s website has been given. Guidance has been provided regarding the use of screenshots in promoting library services or in e-learning and general instructions regarding the protection of works on the web have been given.Web 2.0 services often apply Creative Commons licences. E-learning has been discussed because it includes the acts of reproduction, adaptation, distribution and communication to the public. Changes in legal deposit legislation starting in the nineties and related to the digital works and the use of technologically protected electronic publications in depositary libraries have also been discussed. It has been said that the harvesting of an Internet space has raised new issues related to copyright. A great number of personal data appearing on the Internet is likely to incite changes in the personal data protection legislation. Open access has been discussed, its historical development outlined and recent international initiatives supporting OA described. Initiatives in Croatia, such as making available all Croatian journals supported by the Ministry of Education and Science freely on the Web, have been mentioned. Copyright in works deposited in repositories of universities and research institutes has been explained and the practice in Croatian universities described. An example of an author’s permisssion to have his/her dissertation deposited in a university repository has been added. The last part of the book provides questions and answers that would hopefully allow librarians to obtain quick answers to FAQ.

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