Copyfright? Why we need to take the fear out of copyright

Copyright may be far away from many people’s minds when celebrating Halloween, certainly at least when it comes to shocks or excitement. However, fear is arguably a key driver of the way that we work with copyright, both in applying it on a day-to-day basis, and in approaching it as a subject for advocacy.

This is a problem – fear is not a good basis for taking decisions. It can act as a barrier to engagement in a topic which, arguably, is a key determinant of how effective libraries and others can be in promoting access to education, research and culture. In other words, the ability of libraries to make use of their collections (i.e. what copyright allows or doesn’t, and on what terms) is essential in determining how much they can do with the money they are given. Even the most generous budget is worthless if libraries cannot allow users to work with materials, while a smaller budget can have a high impact with copyright laws that enable access and use. 

This blog therefore looks at how fear is an issue in discussions about copyright, and what we can do about it. 

Within institutions, managing copyright itself can be a source of worry.

Firstly, librarians with this responsibility may not always have the support and resources they need, leaving them feeling exposed and vulnerable. Responsibility for copyright management can be seen as less significant than other roles, and the person holding them may not hold the seniority needed to shape institutional policy. Furthermore, university legal teams in general can be focused on different issues, with little time to support copyright management by libraries. 

Of course, there are those who – thankfully! – take a much more positive, fearless approach, drawing on their more senior position and understanding of the importance of the need to apply copyright in a way that enables learning and research. Their work is essential in showing what is possible. 

Nonetheless, too often, the overall consequence is that there is a bias towards trying to avoid or even eliminate risk in general, in order to prevent any possible legal action against a library or its host institution.  

This is not just an internal problem of course. A key reason for difficulties in managing copyright within institutions lies in laws themselves. Unnecessary complexity and uncertainty result from a number of characteristics of laws as they are currently drafted.

First of all, the more rigid approach taken by statutes in many European countries, which try to set out exhaustively what users (including libraries) can do with copyrighted works means that whenever there is a use which hasn’t been foreseen in law, it isn’t clear what can be done. It then takes years to update the law, leaving beneficiaries hamstrung while they wait for legislative change, or take the risk associated with potential infringement. Even this “exhaustive” approach usually leaves numerous unanswered questions. Thus, it doesn’t really achieve its own rationale of eliminating uncertainty for users.

There can also be threats of legal action, such as those made against the Internet Archive’s National Emergency Library which uses secure digital lending technologies to libraries to lend eBooks on a one copy one user model.

Fortunately, Europe doesn’t have the same high levels of statutory damages for copyright infringement seen in the United States, but we also don’t have flexible provisions in copyright law limiting liability when actions are taken in good faith.

The importance of advocacy in general needs to be seen as part of the role of leaders or associations. In this, we can follow the example of trade associations in the creative industry sector who are very active in government affairs and see it as one of their core functions. Not doing explains in part why libraries and education bodies can have much less influence on the law than these sectors. This was summed up by one MEP on the Legal Affairs Committee of the European Parliament a few years ago who asked “Where are libraries? We never see you?”

Yet even when advocacy in general is seen as important, there can be fear around getting involved in copyright advocacy. Compared to work around, for example, building, funding or strengthening obligations to provide library services, copyright can look complicated and conflictual. 

Rhetoric around the impacts of copyright reform can be dramatic. Those opposing change can predict nightmarish consequences from any reform, often seemingly without any real justification, or even by twisting the facts. 

Indeed, there is a bad habit of trying to sow a sense of fear around the potential impacts of reform, even where there is little ground to do this. For example, in South Africa, the claim has regularly been made (for example in paragraph 9.3 of this submission) that reforms would allow for the mass-copying of readily available in-commerce textbooks, something that is patently false. Nonetheless, this puts those calling for sensible change in the position of needing to defend against looking like they are in favour of piracy. 

Similarly, an infographic on text and data mining (TDM) shared by a right-holder organisation during early discussion on the EU’s Digital Single Market Directive, made a connection between TDM and toxic waste, implying that facilitating mining could lead to disaster. 

Finally, as outlined above organisations campaigning against reforms that would facilitate the work of libraries can also seem to have larger numbers of lawyers or government affairs specialists. This can make them look more formidable in general, as well as give the impression of complexity, both to advocate for reform and politicians themselves who, perhaps understandably, are uncomfortable about taking on topics that are difficult. 

This blog has focused on where fear can play a role in shaping both the way that copyright is applied, and even discussions about legislative change. It has also suggested that this fear is something that is not inevitable, but could well be generated and sustained by those with an interest in more restrictive rules and preventing progressive reforms. 

Crucially, however, we can combat these fears through a combination of training, policy and legal change. This is key to what we’re working to achieve through Knowledge Rights 21. 

First of all, we are working towards providing training on copyright and advocacy. This will look to complement existing offers around copyright literacy, in particular those that already promote a more positive approach (i.e. by focusing more on the rights and missions of libraries to support research and education, rather than listing what is not possible). We are looking to build wider understanding of the principles underlying copyright, so that librarians can approach it more critically, identify where change is needed, and plan how to promote this. 

Secondly, we are working to build understanding of what is already possible under law, for example by looking at where it may already be possible to carry out secure digital lending of digitised books. Our work around rights retention and open licensing, too, will help show how institutions across Europe have answered questions and responded to challenges associated with changing policies to support this.

Next, we are working to promote policy change, for example by building understanding of the value of open norms (which would help resolve many of the issues associated with overly rigid laws today), as well as to ensure legal backstops to enable digital lending, create rights to republish publicly funded research immediately, and ensure that copyright exceptions cannot be overridden by contract.

Finally, a key way of addressing these challenges is by building on the evidence base. Our work – for example around open norms and eBook markets – will, we hope, also take some of the fear out of these debates by bringing stronger evidence to the table, to the benefit of all. 

Indeed, this could even be helpful for the ‘other side’ of the debate, given that it is not only libraries, their users, and their allies who face fear and uncertainty when working with copyright. Indeed, it seems likely that rightholders themselves are also scared about the future, something that may justify a restrictive, conservative approach, at least among some. Their ways of working have also been disrupted by the emergence of digital, and with it new players – platforms and other service providers – who are looking to capture value. Major tech companies have become bogeymen whose influence is perceived everywhere. Fear too plays a role, most likely, in the positions and actions they take.

In short, we’re more likely to have an application of copyright that supports access to research, education and culture – as well as further reforms – if we take the fright out of copyright.

31 October 2022