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j oumal of Intellectual Property Rights Vol 6 janualY 2001 pp 18-26

Copyright on the Internet *

Benoit Muller

International Publishers' Association 3, av.de Miremont, 1206 Geneva (Switzerland)

(I~eceivecl 7 November 2000)

This discussion paper on legal aspects of the dissemination of works in the digital environment outlines some basic principles of copyright. It discusses problems arising from different uses of literalY work on the Internet, providing an excellent orientation in this complex field. An attempt is made to set different types of uses of works in the digital environment in their respective context and to explore possible ways of legal analysis.

Executive Summary 4. Contracts in most cases provide a more appropriate mechanism than copyright law to regulate permissible uses of a work.

l. Access to a work and the uses directly related to the access to a work should always require the authorisation of the rights-holders, whether it requires payment of a fee or not.

2. Exceptions and limitations to copy- right should not imply a right to ac- cess, which would authorize the beneficiary of the exception to circum- vent technological measures of protec- tion.

3. Exceptions and applicable law should be harmonised as far as possible.

'Reproduced with permission from LASP Newsletter, V2000

5.

6.

Exceptions in the public interest allow- ing to review a work for criticism or parody, to quote from a work, to use a work to report on current events or for public security or judicial needs, could apply in the digital environment.

An exception for the benefit of digital archives should be restricted to activi- ties corresponding to the legal deposit of print material. The right to store should otherwise be subject to con- tract.

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7. Copying for personal use should be analysed by differentiating the acts of making digital copies of digital mate- rial, printing digital material on paper and digitising print material.

8. In general, exceptions for digital copy- ing of digital material for personal use, so-called inter-library loan and course- packs are inappropriate in the digital environment.

9. With the individual agreement of the rights holders, the digitisation and re- use of some print material could be sub-licensed, on their behalf, by collec- tive administration organisations.

10. With the individual agreement of the rights-holders, the printing on paper of digital material could be sub-licensed, on their behalf, by collective admini- stration organisations.

11. The reproduction of a work in a format for handicapped people and the access to a work in such format could be per- missible, in specific circumstances, without the individual authorisation of the rights-holders.

12. Multi-media rights clearance does not require legislative amendments and will be facilitated by Electronic Copy- right Management Systems.

Access to and Uses of a Work

Discussions of possible exceptions and limi- tations to copyright often neglect the funda- mental difference, which exists between the notions of 'access' to and 'uses' of a work.

The Institute for Information Law, Amster- dam, persuasively emphasised that gran ting user access should not be confused with limiting the exercise of copyrights in favour of users. Indeed, a copyright owner may decide not to give access to his work on the

information highway or to give access to the work only for a fee (The Institute for Infor- mation Law, Amsterdam, Contracts and Copyright Exemptions, IMPRIMATUR, De- cember 1997, 8).

Access to a Work

Whether in the traditional or digital environ- ment, the access to a work by a user is the first step required for any subsequent uses of the accessed material.

Among possible uses, the person or organi- zation who accessed the work may wish to further distribute the work, thereby grant- ing other users access to the work.

Access may be open or controlled. Control- led access prevails in any situation where the rights-holders only make a work available on-line, provided they have means, both technological and legal, to control access to the material.

Open Access

Many works are and will continue to be freely accessible to the public on-line.

Websites comprise an ever-increasing amount of material protected by copyright, which their rights-holders wish to dissemi- nate widely and without direct payment (al- though perhaps compensated in other ways, e.g. by advertising or access to customer information). Contributing to an exb'aordi- nary flow of information, it is foreseeable that freely accessible Websites will continue to grow at rapid pace in the near future. By posting a work on a freely accessible Website, the rights-holders authorise access to the material by anyone. In the absence of a specific license or technological measures of protection, such authorisation could pos- sible imply certain acts, which a user may legitimately undertake, such as printing on

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20 J INTELLEC PROP RIGHTS, JANUARY 2001

paper, storing on a hard disc and referring to the work through a link from another Website or an e-mail. However, the determi- nation of permissible uses of freely accessi- ble digital material is still controversial and raises several questions, e.g. with regard to different forms of caching, browsing and linking (see Forum Report, IMPRIMATUR Consensus Forum, Rights, Limitations and Exceptions: Striking the Proper Balance, 30/31 October 1997, Amsterdam, 36). Pro- vided the material is legitimately made avail- able by the service provider with the authorisation of the rights-holders, the re- gime of implied licenses, which seem to pre- vail on the Internet, should continue to be compatible with copyright.

This paper focuses on the access to, and uses of works which rights-holders do not and will not make available on-line, unless they control access to, any to some extend, usage of the material.

Controlled Access

Access to a valuable work has to be author- ised by the rights-holders and secure a legiti- mate remuneration to the investment-both intellectual and material-required for its creation.

In the print environment, except for a strictly limited number of copies made available to national libraries for legal deposit purposes, books and journals are always sold to the first user. Exceptions and limitations to copyright (e.g. to quote, to photocopy lim- ited excerpts, etc.) do not authorise a user to steal a book or a journal form a bookstore or a libraIy.

This principle should continue to apply in the digital environment. Moreover, consid- ering the easiness of duplicating and dis- seminating an unlawfully accessed digital

copy, legislation should provide rights-hold- ers the means to control access through technical measures of protection.

Technological Measures of Protection

Rights-holders need to be able to rely on available technological measures to control on-line access to a work: 'The answer to the machine is in the machine' (Charles Clark, The Copyright Environment for the Pu blish- er in the Digital World, 25th IPA Congress, Barcelona, 22-26 April 1996). In December 1996, this was recognised by the Member States of the World Intellectual Property Or- ganisation (WI PO) , who adopted two new copyright treaties - the WIPO Copyright Treaty (WCT) and the WIPO Performances and Pbonograms Treaty (Wpm - which contain provisions on the legal protection of technological measures used by rights-hold- ers to control the dissemination of works. Commenting on the EU Draft Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Infor- mation Society, which is aimed at imple- menting the WCT and the WPPT in the European Union, EBLIDA - the European Bureau of Library, Information and Docu- mentation Associations - suggests that 'the circumvention of technical measures should be allowed for activities authorised by the copyright owners of permitted by law, as should the production and marketing of de- vices designed to circumvent technical measures to facilitate the making of non-in- fringing copies'. (EBLIDA Position Paper on the Directive on the Harmonisation of Cer- tain Aspects of Copyright and Related Rights in the Information Society,

IID .

If, as suggested by EBLIDA, the production of circumvention devices would be legal as

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the law would authorise some of their pur- poses, the digital environment would move from an exploratory environment without technological and legal securities indispen- sable to attract creativity and investment to a situation where the producers of commer- cial hacking devices would be encouraged by law, to the detriment of creators and rights-holders. As a consequence, the devel- opment of valuable content on the networks and the trust of creators and users in the digital environment would be severely ham- pered.

Just as the exercise of exceptions and limita- tions to copyright in the pririt environment does not allow a user to steal a book or a journal, users should neither need nor be able to hack technological measures of pro- tection.

Copyright and the Right to Infonnation

To ensure that citizens have access to infor- mation is a highly legitimate preoccupation recognised in any democratic society. Inter- national conventions such as the Universal Declaration of Human Rights and the Euro- pean Convention for Human Rights recog- nise the right to information as a necessary preliminary condition to the freedom of ex- pression. However, it is doubtful whether it is appropriate to refer to these legal sources in the context of copyright, since fundamen- tal rights are aimed to protect citizens against unjustified measures of controlling access to information by governments, such as politically oriented censorship, and are in principle neither meant nor appropriate to regulate relationships between individual creators and users.

Users do generally not wish publishers to simply digitise text, but request to take full

advantage of the new technologies allowing innovative applications such as hyperlinks, inter-activity and the combination of various media. To make works available in such en- hanced digital formats requires creativity and investment.

Systems to identify works distributed over the networks (the Digital Object Identifier System) and to authenticate rights-holders and users, as well as Electronic Copyright Management Systems are being developed. These systems will facilitate the distribution of and searching for information, as well as the conclusion and enforcement of licenses granting access and regulating permissible uses.

The production of valuable content has its costs. Free circulation of information should not be confused with information for free.

Uses of a Work

The Need for Harmonisation

Considering the global nature of the digital environment, it is in the interest of both rights-holders and users that exceptions and limitations to the exclusive rights of repro- duction and communication to the public and provisions on applicable law be hanno- nised as much as possible. For an optimum development of the Internet, harmonisation should occur at the international level. Spe- cific situations in various countries have to be taken into account. Unforeseeable or con- siderably divergent exceptions under differ- ent legislation or insecurity with respect to applicable law would compromise or at least severely hamper, the development of valu- able content on the networks.

Striking the Proper Balance

Any legal exception to the exclusive rights has to respect the three-step-test unveiled by

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22 J INTELLEC PROP RIGHTS, JANUARY 2001

the Berne Convention (Art. 9.ID, recently recalled by the WIPO Copyright Treaty (Art.

10) and enforceable against any State signa- tory to the GATT (Art. 13 TRIPS), according to which exceptions mllst (i) be limited to certain special cases, (ii) not conflict with the normal exploitation of the work, and (iii) not unreasonably prejudice the legitimate inter- ests of the rights-holders.

From Law to Contract

As opposed to the print environment, where a tangible copy of the work is sold, on-line access is made technically possible, e.g. by granting a password subsequent to agree- ment with the terms and conditions of a license determining which uses are implied in the contract. These may vary according to the needs of the users and the form and content of the information.

When a book or a printed journal is sold, the simple sales contract between the seller and the buyer does not address what uses may be made of the book or the journal. This is governed by copyright law. In the digital environment, rights-holders or authorised service providers also provide access and permit certain uses through licenses.

Contracting parties to these licenses are no longer in the simple vendor-buyer relation- ship, where the contract could not appropri- ately regulate permissible uses. In the digital environment, licenses are indispensable to regulate specifically tailored and fast :evolv- ing products and services. In many ways, contractual schemes are in the interests of both contracting parties. Exceptions and limitations which cannot be overridden by contract can quickly become inappropriate in situations unforeseen by the legislator.

Various Categories of Uses

The debate on limitations and exceptions to copyright is both legitimate and complex with respect to the different nature and yet unfulfilled development of the digital infor- mation infrastructure. When considering which uses the law should generally author- ise, it is essential to consider the implica- tions, which the particular exceptions to copyright would bear in various situations.

Different Uses of Literary Works in the Digital Environment

By al/ Individual User

Communication to the Public

The making available of a work in digital form to be accessed by multiple users at a time and place individually chosen by them should unambiguously require the individ- ual authorisation of the rights-holders.

Public Interest Uses

In the print environment, limitations to copy- right allow secondaty uses such as review- ing for criticism or parody, quoting, reporti.ng of current events and public secu- rity or judicial needs. These limitations are in the public interest and could be ca;ried onto the digital environment.

However, these exceptions should not give their beneficiaries a right to access a work, just as the right to quote from a book or a journal does not imply the right to receive the book or the journal for free.

Digital Copying of Digital Material for Personal Use

Electronic copying of a digitally available work for personal use may threaten the ex- clusive right to control further distribution

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of the work and should therefore not be systematically allowed. At the velY least, the exception would have to be a default rule, which may be overridden by contract.

This is essential to take into account the legitimate interests of the rights-holders in the case of distribution of works with an important economic value, which are distrib- uted on a limited scale and are particularly vulnerable to piracy, as well as to authorise services which do not involve downloading on end user terminals.

In many cases however, it will be appropriate to give trusted and duly authenticated users the right to store the information, e.g. to avoid telecommunication costs associated wilh subsequent access. But an exception provided by the law could not differentiate between situations where such storage should or not be allowed. Licensors will compete in providing services according to the users' needs and should allow, whenever possible, the right to store for personal use.

Unconditional supporters of a free-flow of information argue that the right to copy for private use should continue to fully apply in the digital environment. It is however useful to recall that exceptions for copying for per- sonal use were established in other limes, when copying was performed by handwrit- ing. Photocopying greatly facilitates the ex- ercise of the personal use exception, rind is more likely to threaten the economic inter- ests of the rights-holder, particularly if per- mitted to be peliormed by third parties on behalf of the individual. Digital copying al- lows the identical replication of a work and may undermine the market for its distribu- tion, while not being always essential to us- ers of distributed digital libraries.

As persuasively stated by Shira Perlmutter, U.S. Copyright Office, at an IMPRIMATUR

consensus forum, 'One particular area where there is a lot of tension is the concept of private copying exceptions. What private means in the digital environment may be quite different from what it has meant in the traditional environment. It cannot simply be said that evelY act done in the privacy of one's home is exempted, or copyrights will cease to have value.' (Forum Report, IM- PRIMATUR Consensus Forum, Rights, Limitations and Exceptions: Striking the Proper Balance, 30/31 October 1997, Am- sterdam, 49).

Digital Copying of Print Material for Personal Use

Should be individual user be allowed by the law to digitise (scan) a printed work for per- sonal use?

Such an exception would inevitably bring along high risks of unauthorised uses. Digi- tisng a work is a necessary first step for acts which clearly require the rights-holders' per- mission, such as to make material available on a Website, sending it per e-mail to other users or adapting the digitised material to be part of a new work.

Considering the easiness and the high per- formance of digital copying bUl also the le- gitimate concerns of users to be authorised to scan limited portions of works, collective administration mechanisms which would re- spond to requests to scan material based on voluntalY assignments by the rights-holders start being explored. It should be avoided to give anyone a right to scan any work, be it for personal use only.

Print-an-Paper of Digital Material for Personal Use

Unlike for digital copying, the mechanisms developed to license photocopying in the

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24 J INTELLEC PROP RIGHTS,JANUARY 2001

print environment could possibly be applied to print-on-paper of digitally delivered works.

However, it should also be possible to de- liver information electronically for on-screen display only, whether the material is in the public domain or protected by copyright. In order to allow the market to respond to spe- cific needs of users and to take into account the form and nature of the content to be delivered electron ically, righ ts-holders should not be obliged by law to systemati- cally allow printing on paper.

Bya Collective User

Collective users comprise 'non-profit' insti- tutions, such as schools, universities, school and public libraries ('institutional users'), and corporate users, such as commercial organisations, corporate libraries and public administrations (,corporate users').

Exceptions applying in favour of collective users should generally be default rules, which may be overridden by contract, since collective users and rights-holders will enter into contractual relations.

O'Rourke persuasively recognises that, par- ties to a negotiated agreement are usually informed parties who understand the nature of the rights they are granting or obtaining, respectively, including the rights which the licensee agrees to forego.' (Maureen A.

O'Rourke, Drawing the Boundary between Copyright and Contract: Copyright Pre-emp- tion of Software License Terms, 1995, 45 Duke Law Journal 4 79-558, cited in the study on Contracts and Copyright Exemptions by the Institute for Information Law of Amster- dam, Imprimatur, December 1997, 29).

With the emergence of user consortia and with respect to large corporate users, com- pulsory rules aimed to protect one party to

the agreement are likely to be unfair, artifi- cial and cumbersome.

It seems legitimate to give access to collec- tive users on different conditions, depending on wh ether they are institutional or corpo- rate users. However, copyright legislation may not offer the best means to achieve such a purpose. Rather, experiments and nego- tiations between the publishing and the li- brary communities should continue to address the issue (see Publisher/Library Relationship in the Digital Environme::1t. A Presentation given by Dietrich Gbtze, Chair- man of STM, during the 64th IFLA General Conference in Amsterdam in August 1998 (librarians/ relationship/ goetze-IFLA-98. h tml) and The Relationship between STM Publishers and Libraries in the Electronic Environment, as STM 'white paper' on devel- oping a new working relationship, availabl from STM)

Communication to the Public

Licences covering access to content by col- lective users will usually specify the number and/or nature of affiliated end-users (e.g.

researchers, students, staff, employees, etc.).

Therefore, digital 'inter-library loan' should not JC the object of an exception to copy- right, since this would impede licensing schemes. The library making a work avail- able to another library would compete with the rights-holders, which would be inconsis- tent with the three-step-test prescribed by Berne, TRIPS and WCT. Moreover, as a con- sequence of such an exception, the number of institutions contracting with the rights- holders would be reduced. Digital material wou ld only be available at high costs and institutions with less resources would need to rely on the willingness of a small number of large institutions to grant them access to their digital collection.

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Archiving

The preservation of the cultural heritage is the traditional role of national libraries and should be maintained in the digital environ- ment.

For some institutions, storing is of interest only to enable other uses of the material, such as providing access to end-users.

EBLIDA, commenting the draft provisions of the EC directive on Harmonisation of Copyright dealing with archiving, states that 'libraries' and archival institutions might need to impose some sort of charge on their users to meet the costs that occur in connec- tion with specific acts of reproduction.' (EBLIDA Position Paper on Directive on Harmonisation of Copyright, ad Art. 5.2 c,).

The benefit of an exception for purposes of archiving digitally available material should only apply to a limited number ofState-librar- ies and should not imply the faculty to use the material for other purposes without the authorisation of the rights- holders.

With respect to institutions other than na- tional libraries or similar States-organisa- tions with an archiving mission, the right to store digitally available works should be dealt with by contract to provide a suffi- ciently flexible and reliable mechanism.

Storage of Digital Material for the Purpose of Intra nets of Corporate Users

There should be no doubt that a corporate user needs to be authorised by the rights- holders to archieve digitally available mate- rial for granting access, be it to a closed group of affiliated users. In some cases, rights-holders may wish to authorise inter- mediaries, e.g. RROs, to su b-license material on their behalf. In many cases, rights-hold- ers will contract individual licenses with cor- porate users granting access to as many

end-users as requested, as is. e.g. the case for the distribution of software.

Storage of Digital Material for the Creation of Course-Pakcs

Permitting a systematic unauthorised usage of electronic course-packs compiling ex- cerpts of digitally available material would be inconsistent with the three-step-test. Li- censes between publishers and educational and academic institutions are more appro- priate to establish regulations acceptable to all parties.

Moreover, course-packs may be inadequate in the digital environment, as libraries and publishers engage in licenses granting ac- cess to students. Professors may prefer to points to the on-line location of the material, rather than spending efforts on compiling documents, which are already digitally avail- able, into a 'digital course-pack'.

Digitisation of Print Material

Publishers started several initiatives to re- spond to the legitimate requests from collec- tive users wishing to digitise material that does not, and will not in a foreseeable future, be provided in digital format by the rights- holders.

In January 1998, the International Associa- tion of Scientific, Technical and Medical Publishers (STM) and the International Fed- eration of Reproduction Rights Organisa- tions (IFRRO) adopted a joint statement, according to which RROs should be entitled by the rights-holders to license the right to digitise journals (jcopyright/copy- righC_pu b/stm_infrro.html. Publishers, authors, RROs, institutional and corporate users have started to discuss the conditions according to which such licenses will be granted. Several questions need to be ad- dressed, in particular which uses (e.g. com-

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26 J INTELLEC PROP RIGHTS, JANUARY 2001

munication to researchers, students, staff or employees; incorporation into compilation databases, etc.) these licenses should au- thorise, possibly on an optional basis.

Alternative solutions, similar in scope, in- clude frame agreements between rights- holders and corporate users or the emergence of new intermediaries. E.g., the French publishers' association and the French national library entered into an agreement on the digitisation and on-site display of 100,000 literature titles. The frame contract, which further applies the photocopying regime for print-on-paper of excerpts, has to be ratified .by individual rights-holders (see Hubert Tilliet, Protocol between the National Library of France and the Syndicat national de I'Edition, Iiet.html). ]STORO, an initiative launched and sup- ported by the Mellon Foundation in the United States, aims to receive the authorisa- tion of the participating rights-holders to dig- itise back lists of journals, to be made available to librarians and scholars through a standardised and attractive licensing scheme.

The right to digitise a work should remain with the rights-holders. Initiatives fostering voluntary solutions should continue to be encouraged.

Print-an-Paper o[ Digital Material

Students, researchers, staff, employees and other end-users affiliated with a collective user should be allowed to print-on-paper ex- cerpts of digitally available works, on the same conditions according to which they may make photocopies of print material.

However, since some works delivered elec- tronically might not be printed, it is impor- tant to consider limitations to copyright for print-on-paper of digital works as default rules, which may be overridden by contract (see 11.1.5 above).

Uses by Handicapped People

The motivations in favour of allowing spe- cialised organisations to digitise printed works, or reformat digitally available works, for the sole purpose of responding to the needs of handicapped people, are obviously legitimate.

However, delicate issues, including appro- priate format requirements, may be better addressed by voluntary codes of conduct than by legislation.

Uses by a Multi-Media Producer

The' e-use of a pre-existing work in a new work using a different medium has been common practice well before the emergence ofthe digital environment (e.g. adaptation of a play or a novel to form the scenario of a motion picture). Digital multimedia works, such as video or computer games in many cases use original scripts, which are adapted to the new media.

Several initiatives, such as the Digital Object Identifier (DOl) System or EC-fundecl pro- jects (IMPRIMATUR, COPEARMS or IN- DECS) contribute to the development ofthe infrastructure for Electronic Copyright Man- agement Systems (ECMS), which will pro- vide flexible solutions to complex multi··media rights clearance requests.

Rights permissions should continue Lo be requested from the rights-holders, which in some cases might be the publisher, in other cases the author, an authors' agent or licens- ing society, a collective management organ- isation or another designated intermediary.

Licensers and licensees should be able to choose solutions and modalities corre- sponding to their interests and require- ments. Compulsory licenses are inappropriate. Alternative flexible and in- teroperable solutions should be encour- aged.

References

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