European copyright reform: where do we stand?
08 March 2018
The European Union is in the process of reforming its copyright law. The reforms set out the ambitious goal of bringing the regime up to date with the digital age, with rules affecting libraries and cultural heritage institutions a key part of the dossier.
Following the European Commission’s proposal of September 2016 (available here in all EU official languages), discussions are taking place in the European institutions and are likely to continue at least until the summer of 2018.
IFLA has played an active role in the discussions, given both the interest of its European members in getting reforms right, but also the example that this will set globally.
This article and the infographic gives an overview of how the Commission, the Council of Ministers (Member States) and the several European Parliament Committees are responding to the needs of libraries and their users.
Several committees of the European Parliament (IMCO – Internal Market and Consumer Affairs, ITRE – Industry and Research, CULT – Culture and Education and LIBE – Civil Liberties) have issued ‘opinions’. These set out the changes they would like to see to the original proposal. The lead committee – Legal Affairs (JURI) – is currently scheduled to vote on 24 April. This will determine the text on which the Parliament as a whole will vote.
At the same time, the Intellectual Property Working Party of the Council of Ministers (bringing together representatives of Member States) is analysing the proposal and has issued several draft compromise amendments. There is no clear timeline for the process at the Council. Once it decides, representatives of the Council and Parliament, with the participation of the Commission, will have to work together to come up with a final text.
Why is this reform relevant to libraries?
There are several articles in the Directive that will have a direct impact on libraries in Europe:
- An exception on text and data mining for research organisations (read our full position paper and “Eight Reasons Why Europe Needs a Simple Exception for Text and Data Mining“).
- An exception for the use of works for the purpose of illustration for teaching (read our full position paper)
- An exception for preservation (read our full position paper and “Five Reasons Why Cultural Heritage Institutions Need a Preservation and Internal Reproduction Exception“).
- Exception for out of commerce works (read our full position paper, the “Paradox of the Disappearing Book” and “Eight Reasons Why Effective EU Provisions on Out of Commerce Works Require an Exception“)
Although the Commission doesn’t include a copyright exception for e-lending, even after the decision by the European Court of Justice, some members of the European Parliament have made amendments to the text to add this.
What are EU decision-makers saying and suggesting?
So far, four Committees at the Parliament have issued their opinions with amendments to the draft proposal.
In particular, the IMCO committee presented a very positive opinion: it made the exception on illustration for teaching applicable both to digital and non-digital education. It also included cultural heritage institutions as beneficiaries of the exception, to encourage their role as informal education providers. On out-of-commerce works, it added a fall-back exception allowing the use by libraries of both out of commerce and never in commerce works where no licences are not available.
Furthermore, the Opinion amends Article 5 (Preservation) to make it an exception for reproduction of works “for the purpose of, individually or collaboratively with others, carrying out their public interest mission in preservation, research, culture, education and teaching” and not for the only purpose of preservation, in its strict definition.
The ITRE committee came up with a middle approach in some of the topics. They made the text and data mining exception applicable not only to research organisations, but also to not-for-profit organisations and start-up companies, but with the obligation to delete the datasets when no longer needed.
Cultural heritage organisations were added as beneficiaries of the exception or teaching, and the exception for preservation was made broader to cover internal organisational reproductions by cultural heritage institutions. Overall, a much better approach than that of the Commission, when it comes to libraries and their users.
At the Council of Ministers, some of the compromise amendments have been made public, including on text and data mining, illustration for teaching and out of commerce works. They are not as open as the IMCO opinion, but at least go slightly further than the Commission’s proposal.
Discussions are now focusing on new provisions for text and data mining (a new non-mandatory exception for all users unless the rightholder reserves the right to do this) and for out of commerce works (with a provision guaranteeing the legality of existing extended collective licensing systems).
Key current questions include:
- Is it worth having a TDM exception for anyone who isn’t in a research institution, if this is optional and can be overridden by contract terms?
- How can researchers using TDM ensure that the datasets they create are kept secure?
- Should every educational use of a work potentially be subject to licences?
- Should libraries and other cultural heritage institutions be considered active providers of education?
- Should the preservation copying exception be limited to copies permanently in library collections?
- What other internal uses by libraries should be covered by a reproduction exception?
- How can we give libraries greater legal certainty in eLending?
What happens afterwards? What is a Directive, and what impact does it have on European Member States?
A Directive is a legislative instrument that is obliges Member States to act to achieve certain goals but does not necessarily prescribe the means. Once the Directive has been adopted at the EU level, it will have to be transposed into Member States’ legislation, which means going through the national law-making within each member state. While some of the provisions in the Directive’s text are mandatory (although still require transposition), others are non-mandatory and member states may choose not to include them in national law or do them in differing ways.
What is IFLA doing?
IFLA, together with partner organisations (EBLIDA, LIBER, Public Libraries 2020 and Europeana) is pushing for a reform that takes into account the interests and needs of cultural heritage institutions and their users. We have regular meetings with members of the European Parliament and Permanent Representations (Embassies to the European Union) and send them relevant information in order to provide insights on how best to help libraries achieve their missions.
IFLA and EBLIDA have also set up regular teleconferences for national library associations to provide input on how the reform evolves, and to receive views from the efforts done by libraries at a national level. If you wish to participate, please get in touch with email@example.com.
How can you help?
Decision-makers will welcome input on how libraries work in their country, and we encourage you to get in touch with them. The contact details of the members of the European Parliament are available in this directory. During the so-called “green weeks”, members of the European Parliament go back to their constituencies. The following green weeks are the 2 to 6 April and the 7 and 11 May.