European Copyright Directive Lacks Adequate Protection for Libraries
While spending some quiet time at home one evening, I decided to do a little pleasure reading. My first mistake was opening my briefcase, for "pleasurable" reading rarely, if ever, comes out of it. I paid for my mistake when I read the title of the first document I touched: "Proposal for a European Parliament Directive." I then remembered that I needed to give this baby a third reading in order to summon our profession's objections and concerns. This column is the fruit of my labor.
The European Union's (EU) directive on copyright for digital works is a 67-page document that is replete with history, explanatory notes, and ultimately, the directive itself. In true European form, the explanation precedes the actual proposal. So, when I actually got to the point of reading what the EU would like to do for its member nations on the matter of digital copyright, I was barely able to keep my eyes open. Here, however, is my best shot at explaining to you what it does and - more importantly - does NOT do.
The directive starts with three sections that outline the rights of reproduction (Article 2), communication to the public (Article 3), and distribution (Article 4). Fair enough. After all, copyright owners do have the right to do these things with their works. From there, however, it gets rather interesting.
Article 5 lays out exceptions to the protection of copyright set out in Articles 2 and 3. Right off the bat, it explicitly provides that copies made through a "technological process for...enabling use...of a work" are exempted from Article 2. This means that, when your computer makes a RAM copy while you're viewing a copyrighted work on the World Wide Web, Interpol won't drop by and cuff you. That would seem to be a good thing. Unfortunately, the directive considers browsing the World Wide Web and viewing images or documents on it a "communication to the public." Libraries would not be allowed to let users browse or view digital material, not even for private or educational use. The presumption here is that licensing between parties will resolve such matters. It doesn't get much better.
Article 5 provides three exceptions to the restricted acts found in the reproduction right. The first is very unclear, but essentially allows member states to provide exceptions for photo and print reproduction. The second exception provides that audio and/or visual works are excluded, so long as such reproduction is done for private use or for "non-commercial ends." The third exception concerns reproduction in public places, specifically in public libraries, that is "not for direct or indirect economic or commercial advantage." Member states will not be allowed to provide exceptions for all acts of reproduction. They will be required to identify certain special cases.
The problem with this set of exceptions is that only copying of printed information would be allowed in libraries. Because the directive considers digital copying to be a "communication to the public," print copies of digital information are not allowed as an explicit exemption. The explanatory notes of the directive suggest that licensing between parties should address this matter This issue requires further debate, and librarians across Europe should be participating. …