Guaranteeing Access to Knowledge: The Role of Libraries

By Ben White, Head of Intellectual Property, British Library¹

As gateways to knowledge and culture, libraries play a fundamental role in society. The resources and services they offer create opportunities for learning, support literacy and education, and help shape the new ideas and perspectives that are central to a creative and innovative society. They also help ensure an authentic record of knowledge created and accumulated by past generations. In a world without libraries, it would be difficult to advance research and human knowledge or preserve the world’s cumulative knowledge and heritage for future generations.

Libraries are keenly aware of the need to maintain the balance between protecting the rights of authors and safeguarding the wider public interest. Copyright exceptions, which are currently under discussion in WIPO’s Standing Committee on Copyright and Related Rights (SCCR), form an integral part of national copyright systems. They play an essential role in enabling the delivery of library services to the public and in achieving the copyright system’s goals of encouraging creativity and learning. This article explores the enduring importance of libraries and some of the intellectual property-related challenges they face.

Libraries represent different things to different people – from a place where mothers can take toddlers to read their first stories and students can study, to a service allowing anyone to borrow a book, access the Internet or do research. Quite simply, libraries offer a means by which we can gain access to knowledge.

Supporting education

Libraries are synonymous with education and offer countless learning opportunities that can fuel economic, social and cultural development. The inspiring story of William Kamkwamba from Malawi underlines the difference a library can make. Having borrowed a book about windmills from his local library, Mr. Kamkwamba learned how to build an energy-producing turbine for his village. On the strength of this experience he went on to study at a leading US university. That one book not only changed his life; it also transformed the lives of those in his village community. Such stories explain why many countries are eager to ensure that libraries continue to provide access to knowledge, learning and ideas.

In addition to lending books, libraries are also involved in copying materials for research or private study purposes. Students cannot afford to buy every book, or pay for every television broadcast or journal they need to access for their studies. They therefore rely on the services of a library.

The exceptions and limitations that are an integral part of many national copyright systems play a critically important role in enabling libraries to deliver such services. For example, they allow libraries to make copies on behalf of students and others for research or study purposes, of works that might not otherwise be directly accessible to them. Libraries also make interlibrary loans possible, providing local access to materials that normally reside in a library hundreds, or even thousands, of miles away.

Just five years ago, applying the concept of interlibrary loans to digital works was problematic. However, with the widespread availability of electronic platforms that effortlessly control access to content, such as iTunes and Kindle, and the expansion of electronic interlibrary loans by some research libraries – although there is still some way to go in discussion with publishers – this is no longer the insurmountable problem it may have appeared to be a few years ago.

Preserving Cultural Heritage

Recognizing the cultural importance of sharing, Mahatma Gandhi said that, “no culture can live, if it attempts to be exclusive”. The stimulus to share and reuse information and knowledge comes in many guises. Perhaps the most deep-rooted of our human instincts is the desire to preserve our culture for future generations. This is one of the most important functions of libraries.

Libraries are rich repositories of historically and culturally significant collections, many of which are not available anywhere else in the world. Without an appropriate copyright exception, a library could not preserve or replace a damaged work while it is still covered by copyright. For example, it could not lawfully copy or digitize an old newspaper or a unique sound recording to preserve it. Without appropriate library exceptions, this cultural heritage would be lost to future generations.

Today, many works are only “born digital”, such as websites or electronic journals, and are unavailable in print format. Without the legal means to preserve and replace works in a variety of media and formats – including format shifting and migrating electronic content from obsolete storage formats – many of these works will inevitably be lost to future generations of historians.

The Root Challenges

The challenges facing libraries are linked in large part to the fact that, while international copyright agreements guarantee exclusive rights for authors and other right holders, the interpretation of the exceptions and limitations that entities such as libraries depend on in order to provide their services is left to national parliaments. In sum, exceptions and limitations are national and optional, whereas the rights accruing to right holders are international and guaranteed.

In 2008, WIPO commissioned a study on Copyright Limitations and Exceptions for Libraries and Archives. The study found that statutes relating to library exceptions differ greatly from one country to another. It also found that, of the 149 countries surveyed, 21 had no library exceptions in their copyright laws, and 128 had a least one statutory library exception, with many, most often in developed countries, having multiple library-related provisions. Even where library exceptions to copyright laws do exist, however, they generally date from the pre-Internet age and now need to be updated and adapted to the digital environment.

The study’s findings highlight the important role that library exceptions play in enabling library services, and how they facilitate knowledge acquisition by students, citizens, businesses as well as academic researchers. They also point to the need for a common approach to ensuring equitable access to knowledge, and to providing libraries with the legal means to preserve the unique cultural, artistic and scientific heritage of each country.

The opportunities of mass digitization

The Internet has created tremendous opportunities in terms of accessing knowledge. Making the collections of the world’s great libraries available to the public through large-scale digitization, however, has yet to be realized. While it is difficult to foresee the full implications of such an undertaking, the benefits promise to be widespread and powerful.

One particularly moving example of the benefits of mass digitization comes from my own library, the British Library. A number of years ago we digitized a series of 20th century recordings from Uganda and put them online. We were subsequently contacted by a student at Sheffield University who explained that some of the recordings were of Ugandan royal court music, an art form that had all but disappeared. Given the historical importance of the recordings, we made copies for Makerere University in Kampala, and Ugandan musicians are now trying to piece together how to play this unique music once again.

Today’s citizens want access to information online. While libraries have some funds to digitize collections and put them on the web, the many challenges of clearing intellectual property (IP) rights in in-copyright materials (combined with the fact that copyright can reach back as far as the 1870s) means that libraries often prefer to digitize out of copyright material. This has led to what is referred to in the European Union as the “black hole of the 20th century.”

Libraries have no desire to undermine vibrant markets, but evidence suggests that there is little market activity for many older in-copyright works. A report by the French government ,submitted to the French Senate supporting a new law to enable mass digitization, estimates that 57 percent of works published in France since 1900 are either orphan works – works whose creators or right holders cannot be identified or traced – or out of commerce, the only means of accessing them being from a library.

Studies suggest that while the scale of the orphan works problem varies, the number of such works can be relatively high, even with books that have a long history of well-organized and professional production and distribution. A recent European Union-funded study entitled “Seeking New Landscapes” , for example, found that 42 percent of randomly selected monographs from 1870 to 2010 were orphan works. In many countries, reuse of such works is unlawful without the express permission of the right holders. Finding an appropriate and lawful means to deal with orphan works, therefore, is a key element in opening the way to mass digitization.

While large libraries, and indeed Google, have digitized parts of their out-of-copyright collections, legally digitizing copyright-protected materials on a large scale remains a pressing issue. Since 2005, the European Commission has sought ways to address these legal complexities. While the 2012 Orphan Works Directive appears to be useful for the digitization of niche collections, it is still unclear when Commission activities will translate into effective legislation that will support the mass digitization of 20th century in-copyright works – collections, of course, that are largely preserved in national libraries and museums at the expense of the tax payer.

Contract law vs copyright law

Despite its many benefits, the digital age has, unfortunately, caused an erosion of copyright law in that the act of using purchased digital content is no longer regulated by copyright law but by contract law. Whereas national copyright laws strive to promote creativity by balancing the needs of creators with those of users, this is not expressly the case with contract law.

Copyright laws are designed to foster innovation. They protect the investment of creators in the production of their work, while guaranteeing that others may use that work in support of innovation, competition and learning. Evidence suggests however that private systems of law, such as contract law, do not create this innovative synergy between creators and users but reflect instead a more static, one-sided relationship between content distributors and customers.

A 2007 review of 100 contracts by the British Library shows contracts are systematically undermining copyright law in that existing statutory limitations and exceptions often become null and void under contract law. For example, only 2 of the 100 contracts in the study allowed explicit access by visually impaired persons, and only 23 allowed a library to archive the materials they had purchased.

Despite this fundamental shift, policymakers globally have been slow to recognize that copyright law is increasingly peripheral to regulating access to copyrighted works. From the perspective of libraries, the issues are stark. Billions of euros are spent annually on purchasing electronic materials, but the uses that can be made of this purchased content are diminishing. Moreover, libraries are facing a situation equivalent to one in which, in the analogue world, every book on a shelf comes with a different contract allowing different things. How can access to knowledge be lawfully or practically managed in such a case? Must every citizen, student or researcher become an expert in contract law to understand what they can lawfully do with a digital work? Certainly libraries feel very strongly that policy makers need to engage in this issue as a matter of urgency to ensure that the positive role that copyright exceptions play in the innovation cycle is not indelibly undermined by private contracts.

The IP challenges confronting libraries today raise a number of fundamental questions about the role of copyright law in fostering innovation and creativity. We in the library community believe that copyright law should continue to be central to innovation policy. Libraries play a key role in fostering literacy and learning, in creating the building blocks of development, and in safeguarding the world’s cultural and scientific heritage. We need to act swiftly to ensure libraries can continue to deliver their services effectively, for the public good in all countries.

1. Mr. White chairs the Conference of European National Librarian’s Copyright Working Group. He also sits on the UK Intellectual Property Office’s Copyright Research Advisory Group. The views expressed in this article are Mr. White’s and may not reflect those of the British Library. ^↑