Digitizing protected work “Copyright law is making life difficult for libraries”

Woman in library
Woman in library | Photo (detail): Colourbox.com

Outdated copyright legislation is making it increasingly difficult for libraries to fulfil their mandates. Dr Arne Upmeier, former chairman of the legal commission of the German Library Association, believes that clear and generally applicable regulations are indispensable.

Dr Upmeier, to what extent is current copyright legislation making the work of cultural heritage institutions unnecessarily difficult?

The core role of libraries, archives and museums is to make the holdings entrusted to them available to as many people as possible in the best possible way. It makes little sense in economic or social terms to invest a great deal of money and care in establishing collections and then having outdated copyright regulations that make it hard or impossible for the general public to access them.

Can you give us an example?

One good example is the “orphan works”. Virtually every book, every document and every artwork created after roughly 1920 is potentially subject to copyright law. The problem is that a protected work can only be digitized with the consent of all its copyright owners.

Take for example a typical newspaper page: every image and every article has its own copyright owners, as indeed does the newspaper as a whole. It is impossible to all practical intents and purposes to track down and contact every copyright owner in order to request the necessary permission. Digitization is then only possible if we consciously accept a number of individual copyright infringements. Without digitization, however, many cultural treasures will be all but lost for the Internet age.

Regulations governing the digitization of orphan works

Does the EU directive on orphan works that was passed in September 2012 constitute progress?

It is certainly a step in the right direction. That said, the new EU directive only provides a framework that can be filled by national law-makers. We in Germany still have no regulation allowing the digitization of orphan works.

The ball is now in the Federal Justice Ministry’s court, which needs to draw up a proposal for the directive to be transposed into national law. A joint proposal was submitted some time ago by the German Publishers and Booksellers Association and the German Library Association.

Unlike the directive, this proposal assigns an important role to collecting societies. I will be very interested to see what decision is taken by the Federal Ministry of Justice here.

How would you describe the current situation for libraries?

The situation is annoying: libraries have no choice but to continue working below their full potential, and the public is not receiving the service it has a right to expect. It is also frustrating when science and research are hindered unnecessarily, for instance because law-makers do not permit remote lending of eBooks.

Library royalties: a successful model that could be transferred

What could improve the situation?

For one thing, there need to be generally-applicable regulations in place to ensure that eBooks can be borrowed according to the same rules as printed books. Incidentally, a general legal regulation of this type would not have to be at the expense of authors and publishers. Blanket regulations – like those covering usage – could and should be introduced to ensure that copyright owners are fairly recompensed.

We have been doing this successfully for many years with the library royalty fee, incurred when printed books are loaned. This successful model could also be transferred to other types of use.

What do you think about the fact that EU commissioner Neelie Kroes called in autumn 2012 for a rapid reform of the copyright directive?

That is indeed a very important step, and one that is long overdue. The copyright directive has remained unchanged since it came into effect in 2001. Much of what is offered by the Internet and digitization today – like the Web 2.0 and cloud computing – was still unknown back then.

Because of the directive, full advantage cannot currently be taken of these opportunities. Unfortunately, however, the EU commissioner has said very little so far about how the directive should be changed.

Complete overhaul of copyright law needed

Copyright regulations for libraries are being discussed on an international level, too …

Yes, library associations around the world are calling for international copyright regulations tailored to the specific needs of libraries. It is a major success that the World Intellectual Property Organization (WIPO) is currently engaged in very serious discussion of a global copyright agreement for libraries.

As a matter of fact, much of what is taken for granted in Germany is not allowed in other countries. A global copyright agreement would help considerably to make knowledge available where it is most urgently needed – such as in the countries of the “Third World”. In any case, it is likely to take at least another one or two years before concrete results are available.

Do you see any movement when it comes to amending German copyright law?

I firmly believe that we will see a legislative proposal for the orphan works in the spring of 2013. There may perhaps also be some movement in the area of secondary publication rights, which would allow authors of academic articles, after a certain period has elapsed, to disseminate their works independently of their original publishing contract. That would be a big step forward for science and research.

And perhaps, after the general elections [in the autumn of 2013], there will be another push to give our traditional copyright law a complete overhaul – this is really what is needed. Things remain exciting, whatever happens.