Annex 5. Position on User Rights in Electronic Publications

I. Introduction

This Position Paper is a result of the discussions by the Steering Group of the European Copyright User Platform (ECUP) regarding the user rights in electronic copyright. The European Copyright User Platform consists of the 39 Library Associations which are full members of the European Bureau of Library, Information and Documentation Associations (EBLIDA).

The purpose of this document is to outline and justify the lawful uses of copyrighted works by individuals and libraries in an electronic environment. It is intended to open the discussion with copyright owners and serve as a reference document for information professionals.

© A balance should be preserved

Each year, libraries in Europe provide a range of services to millions of researchers, students and members of the public. These services are performed in conformity with the national copyright laws. The new technologies have made it possible to provide these services even more efficiently. Libraries recognise that the new technologies and especially the possibility to copy copyrighted material with such an ease, poses uncertainties for an economic return to the copyright owners.

The uncontrollability of electronic information is a fear which libraries share with the copyright owners. However, this should not mean that the reaction to these uncertainties lead to an overly restricted use of electronic information by users and information professionals. It should not be forgotten that libraries provide an uniquely controllable environment through which publishers can make their products available to the public at large.

The nightmare future for society is one in which nothing can be looked at, read, used or copied without permission or further payments. In an evolving electronic environment this could mean that information resources are purchased and accessible only to members of the public who are able to pay. The public information systems that libraries have developed would be replaced by commercial information vendors and a diminished scope of public rights would lead to an increasingly polarised society of information have's and have-not's.

Since the last century carefully constructed copyright guidelines and practices have emerged for the print environment to ensure a balance between the rights of the users and the rights of the rights owners in copyrighted material. This balance should remain in the digital environment. As more information becomes available only in electronic formats, legitimate practices in using copyrighted material must be protected. The benefits of new technologies should be available for all - the public, libraries and the copyright owners.

II. Principles

The following principles have served as a point of departure for drawing up this Position.

The user should be allowed to access copyrighted material at the library facility and to make a copy for private use and research or educational purposes. It is the public duty of the library to provide access to copyrighted material and the library should have the possibility to do so as long as it does not infringe the three step test of Art. 9.2 Berne Convention.

In an electronic environment this means that:

* to read or view publicly marketed copyrighted material;

* to copy a limited number of pages electronically or on paper for private use and research or educational purposes.

* to use electronic technologies to preserve copyrighted materials in their collections;

* to index and make one archival copy;

* to provide access to electronic copyrighted material to members of the institution, library staff and walk-in users;

* to make copies of a limited number of pages of copyrighted material for users in electronic form or in paper form.

Users and libraries have a right to expect

* that government publications and public domain material in electronic format is available without copyright restrictions;

* that the digitisation of public domain material can be performed without copyright restrictions;

* that the terms of the licences for copyrighted materials are reasonable and do not restrict the principles laid down in the national copyright laws concerning the lawful activities by libraries and users (fair practices);

* that electronic copyright management systems are able to differentiate between legitimate and illegitimate usage;

* that libraries will strive to ensure:

• the implementation of technical safeguards to comply with contractual limitations;

• the notification to rights owners of infringements by users, although they cannot be held responsible for the intentions of the end-users once they have acquired the information;

• that their users are informed about the copyright restrictions in electronic information.

III. Lawful library activities concerning copyrighted material

The point of departure is by four types of library and access by six types of user. Two matrices specifying the activities related to a specific type of user and library are enclosed.

* National library

* University library

* Public library

* Other libraries (company, special, school, etc)

Activities necessary in order to preserve and organise information and publications in printed or electronic format efficiently.

Members of staff employed by or otherwise accredited by the institution and students of that institution, who are permitted to access the secure network and who have been issued with a password or other authentication activities subject to negotiations. The site has been defined to mean the premises of the institution and other such places where members work and study.

A registered user is defined as an individual who is a member of a library or who has received a password but who is not a member of the institution.

An unregistered user is defined as an individual who is not known to the library.

Access from outside the library facility.

Non-negotiable (fair practices) activities granted by statutory provisions.

Activities subject to negotiations.

Articles and journals published prior to 1995.

This activity includes accessing, browsing, searching, retrieving.

To meet the demands of the users, libraries should be allowed to digitise non-current material and permanently store and index that material where it cannot be obtained in electronic format from the publisher. Libraries should also be allowed to permanently store, index and make an archival copy of the electronic publications provided by the publisher.

Libraries should be allowed to provide these users with the possibility to view full text and to copy a limited number of pages electronically or on paper of the material that the library has digitised. For the electronic product obtained from the publisher, libraries should be able to provide the members of the institution with the possibility to view full text and copy electronically and on paper. Members of the institution are allowed to access these material from within the site. The site has been defined as the premises of the institution and other such places where members of the institution work and study. This could be their lodgings and homes.

This user group refers to an unidentifiable group of people who become identifiable once they have registered themselves with the library and who are accessing the library electronic collection from the library facility.

National, University and Public libraries should be allowed to provide these users with the possibility to view full text electronic material and to copy a limited number of pages electronically or on paper of material, digitised by the library, or material obtained in electronic format from the publisher. The "Other libraries" category is perceived as not giving access to persons other than their staff or a defined group of people.

This user group applies to a library with a public library function where people can walk in and out without identifying themselves. These libraries should be allowed to provide this user group the possibility to view full text electronic material and to copy a limited number of pages on paper of material digitised by the library and material obtained from the publisher.

This user group refers to an unidentifiable group of people who become identifiable once they have registered themselves via a password or by signing an electronic form and who are able to access the library collection from outside the library facility.

Libraries will need to negotiate the provisions under which they are permitted to provide these users with the possibility to view full text, copy electronically or on paper of the material they digitised themselves. Royalties should be paid to the rights owners for Electronic Document Delivery services. These services could be provided on a pay-per-use basis.

Libraries will not provide access to the electronic copyrighted resources to remote unregistered users.

IV. Legal arguments

The legal justification for the ECUP Position can be found in the three step test of Article 9 (2) of the Berne Convention. The Berne Convention serves as the world-wide framework for international copyright protection. All EU member states are signatories of the Berne Convention. The Berne Convention sets certain minimum standards of copyright protection. For the purpose of this paper, the important exclusive right under the Berne Convention is the right of reproduction under Article 9 (1).

Article 9 (1) refers to "the reproduction of these works, in all manner and form". According to the WIPO Guide to the Berne Convention these words are wide enough to cover all kinds of methods of reproduction, including all other processes known or yet to be discovered. The ECUP Steering Group believes that this includes the making of an electronic copy.

This reproduction right in Article 9 (1) may be limited "in certain special cases", in accordance with Article 9 (2) of the Berne Convention.

The national legal provisions which permit the photocopying for private use and research or educational purposes are based on Article 9 (2). The most important part of this Article are the words "normal exploitation of a work". The minutes of the Stockholm conference (1967) give no guidance on what "normal exploitation" is. According to the report of the Drafting Committee, the making of "a very large number of copies" for a particular purpose would conflict with the normal exploitation.

The ECUP Steering Group recognises that the term "normal exploitation of a work" must be interpreted, when in an electronic environment, as permitting a library service which does not compete with a similar service or product obtainable from the publisher. In this case, the "user rights" under copyright must apply. But, for instance, if a library wants to digitise material which is already obtainable in electronic form from the publishers, this activity conflicts with the normal exploitation of the work. It also applies in the case where the library delivers to a remote user an article which the user could have obtained from the publisher. Being in conflict with the normal exploitation of a work should not imply that libraries cannot provide the service. The library should enter into discussions with publishers about the terms and conditions under which these activities can be performed.

The value of the three step test of Article 9 (2) was confirmed in the WIPO Copyright Treaty of 1996. The Agreed Statement to Article 1 (4) made it clear that the reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form.

Moreover, the Agreed Statement to Article 10 allows for the creation of new exceptions and limitations that are appropriate in the digital network environment.

V. Conclusions

The ECUP Steering Group believes that the new technologies and its services do not require a major revision of international and national copyright law at this point in time. Existing copyright laws provide for a basis in which users, libraries and copyright owners continue to be well served. The uncertain times ahead should be used by libraries and publishers to experiment, within the controllable environment of the library, with new products and new technologies by way of pilot projects. Moreover, it is perceived as vitally important that libraries and copyrights owners continue to discuss the challenges of the electronic society.

ECUP+, 15 December 1998