Annex I

Copyright - presentation by Mr Graham Cornish

(Edited transcription, approved by Mr Cornish)

(The viewgraphs have been incorporated into the text)

GENERAL

I am responsible for copyright throughout the whole of the British Library, but I am giving this talk in my private capacity as the ‘Copyright Circle’ and so the Library has no responsibility for any errors I may make. Today I aim to run through a series of issues, some very basic, some very complex, building up a picture, and thus touching upon some of the questions which you sent in.

We all come from different legal backgrounds, there is no international law on this topic, and the law is always behind the technology, so we struggle sometimes to map legal concepts onto new technological developments when there isn’t an appropriate link between the two.

Copyright is part of the intellectual property regime in most legislations. Other elements are trade marks and patents. For all member states of NATO, copyright is different from the other two in that, unlike trade marks and patents, it does not have to be registered, unlike trade marks, it does not last for ever, and unlike patents it is not renewable.

Copyright law defines what is protected and what is not, what the owner can do with the product and what he can not, and defines the rights and needs of the user. Copyright is a balance between the owner and the user.

I am using anglo-saxon law as an example. Much of what I say is true of all legal traditions, but there may well be exceptions in some of your countries.

The UK had a major new copyright law in 1988, the first changes since 1956. Since then, there have been changes in 1989, 1992, 1995, 1996 and 1997, mainly as a result of European directives. Other European countries should be doing much the same, although some have not made all the changes they should.

DEFINITIONS

Copyright is found in anything which is original and creative, including buildings, other works of architecture, and original pieces of jewellery. Note that the UK law says that you may copy an article from a journal, then defines an article as “an item of any description”, which is not much help. So you have to interpret copyright laws in a legal and philosophical frame of mind.

The person who creates the material must be a national of a country which recognises copyright law. Some countries such as North Korea do not. The majority of countries sign up to the Berne Convention, the Universal Copyright Convention and the World Trade Agreement, and so you get an international network of copyright legislation which protects us throughout the world.

Copying of a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means. Copying in relation to any description of work includes the making of copies which are transient or incidental to some other use of the work.

The author is the person who creates the work: a writer, a painter, someone who draws, etc. However, it is almost impossible to determine who is the author of some materials such as sound recordings, films, videos, and broadcasts. Even as I am speaking, you are making a sound-recording. Am I the author or is it the technician recording it? And if you consider a feature film, you cannot think of an author in the normal sense, because there are so many people involved in the creation of the film.

Undefined terms: UK law and the European directives also have a number of terms that are not defined and whose exact meaning can be elucidated only as a result of legal challenges. Some of these are:

· Substantial

· Reasonable

· Original

· Fair dealing

· Library

Substantial: You may copy less than a ‘substantial’ part. What is this? It will be a subjective judgement depending on the nature of the work. Ten pages from a novel might not be substantial. But if you take a murder story and copy the page that says who committed the murder you would probably be deemed to have copied a ‘substantial’ part, because that is essential to the story.

Reasonable: You may also do things which are ‘reasonable’. A ‘reasonable’ portion might be copied, and the European directive talks about ‘reasonable’ use of a database.

Original: In order to qualify for copyright under most regimes a work must be ‘original’, a term which no law defines. It must be some creation of the human mind which has not copied in one way or another something else. It must be fixed, so what one says is generally not copyright because there is no record. However, it is copyright if the speaker is recorded.

Fair dealing is another area where there is some exemption from copyright provisions in the UK. This is allowed for:

· Research and private study (special rules apply for databases)

· Criticism or review

· Reporting current events

The concept behind this is that you can use the work provided you do not harm the owner of the copyright. In the US there is ‘fair use’, but it is not the same thing. In most continental traditions there is something called ‘private use’ which is not the same thing at all - an individual may make a copy only for their own private use and benefit.

In the UK, and to some extent in the US, copies can be made for ‘research and private study’, even if working for a commercial company. This is less true in the US, and it is becoming more difficult to defend this particular area in the UK, because one of the arguments for being fair is that you are not depriving the owner of any money. This was invented because of what is called ‘market failure’ - the law could not find a way of ensuring the publisher got money when people made copies and you couldn’t refuse people information. Now, however, there are other ways for the publisher to obtain his remuneration.

Nearly every legislation allows you to quote portions for criticism or review, or when extending a scientific piece of research. But this is never defined.

Exemptions are also allowed for reporting current affairs. Increasingly cases in one country are affecting others, and I should like to mention two such cases.

Mr Al Fayed dismissed a security guard at one of his houses in Paris, and the guard took with him the video from the security camera of the night Diana was killed in Paris. The guard later saw that various things Al Fayed was saying were untrue, and he sold the video to a newspaper. Al Fayed took him to court for breach of copyright because he said that he had employed the guard at the time of the events and therefore owned the copyright in the film. The security guard argued that he was reporting current events, but Al Fayed’s lawyer said this was not true because it was 18 months after the accident. The judge pointed out that sometimes there is an over-riding public interest which is more important than copyright law, particularly where there is a conflict, and he said that in this case the current event was whether or not Al Fayed was deceiving people, not the death of Diana, so he threw the case out.

The other case concerned a German firm and a UK woman, Mandy Atwood, who conceived 8 babies, all of which died. She was interviewed at great expense by the media, including a German TV company who broadcast the interview in Germany. A British TV company made a video of the German broadcast and broadcast part of it, not as part of a story about Mandy Atwood but in a programme on ‘chequebook journalism’ (paying a lot of money for tragic stories). The Germans complained of infringement of their copyright. However, the judge said that the current event being reported was chequebook journalism, and so the German company lost the case.

Libraries and their special privileges is a very difficult area. In the UK, library staff may make one copy of the following

· 1 article from any 1 issue of a periodical

· a reasonable proportion of a non-periodical work

In anglo-saxon law, libraries have enjoyed certain privileges, varying from one country to another. In the UK, a library which is not conducted for profit is given certain limited privileges to copy for their readers, for preservation, and for one another. Similar but not identical provisions apply in the US. The European Commission is still leaving all these areas up to individual nations, so there is not going to be any uniformity in Europe. So the British Library might be able to make a copy for someone in the UK or some other countries, but not be permitted to do so for someone in Greece where libraries have no special privileges. This cuts across the concept of the single market.

MORAL AND ECONOMIC RIGHTS

Authors enjoy ‘moral rights’, although this is a new concept in the UK, because copyright is perceived as an extension of the creator. This is as true of a scientific paper as a painting or drawing or novel. The author has a right to prevent major changes to the work or to its being attributed to someone else. Both of these are limited in UK law, but they are fundamental to most other copyright regimes. These are issues that need to be addressed very seriously in the electronic publishing world.

Ownership (not authorship) is the crucial issue. Authors have moral rights. Owners are far more interested in economic rights. Here we come to the first of the problems raised in the questions. In most legislations, the author is the first owner. However, if the work is created as part of your employment, then your employer owns the copyright.

One of the questions asked was what happens when a publisher says to an author, “I’ll only publish this if you transfer to me all your rights”. I had a case like this last year, when an academic publisher asked me for all rights to my paper world-wide, and said he could not publish it when I told him that as an employee of the British government the copyright belonged to the government who refuse to assign copyright totally. The proceedings have not yet appeared so I don’t know what he has decided to do.

One possibility in a situation of this kind is to ask the publisher to return to you certain limited rights in exchange, for example the right to use the essentials of the paper somewhere else provided you mention where it was first published, and to be allowed to make copies for yourself and your colleagues.

Another, more legalistic and less satisfactory, possibility is to sign up to what the publisher wants. Then, in the event of it coming to a legal argument, you could argue that the contract was invalid because you had no right to sign it in the first place, since you were attempting to give the publisher something you didn’t own.

If you commission a piece of work, you may not own the copyright, although this varies from nation to nation. So be very careful when commissioning or being commissioned to do work to ensure that the rights are clearly spelled out in the way you want them. This happened not long ago when a company commissioned an advertising agency to design a poster to advertise telephone services. When they wanted to use the same image for television advertising, they were told that they had only been given the right to put it on posters, not to animate it for television.

In the UK there is a right called ‘typographical arrangement’ which doesn’t appear in most other legislations. In other words you have copyright in the actual type you put on the paper. So if someone republishes Shakespeare’s plays, they get copyright in the type on the paper. This is designed to protect the publisher and his particular investment. The European Commission has introduced something very similar instead. If you go through some archives and find an old paper where the author has been dead for a long time, but the work has never been published, the first person to publish it gets exclusive rights in it for their trouble. Otherwise, all the rights a publisher gets are rights by contract and license from the owner.

LICENSES

There are different sorts of license. There are general licenses which are available to anybody who wants them, of the sort provided by bodies such as the Copyright Licensing Agency in the UK, the Copyright Clearance Center in the US, CopyCan in Canada, and similar bodies in other countries. They all offer licences to groups of bodies, for example university libraries, to do such things as copying on paper, or increasingly in electronic versions, on standard terms. In the US, the CCC can only act for a publisher if the publisher has asked them to do so. In the UK, the CLA has the right to act on behalf of every publisher unless he has forbidden them to do so. So there are national differences, and the same company may act differently in different countries.

There is also an ‘implied license’. For instance, if I write to the editor of a journal, there is an implication that I intended the letter to be published. If not, why did I write it? If, later on, the publisher wanted to put all the letters to the editor on a given topic onto a CD-ROM, I could then sue the publisher for doing so. Although I had previously given him a license to publish it, I had not given him a license to do other things with it. So, as a publisher, you only get a very limited set of rights, and the authors can only give a limited set of rights. And of course rights can be carved up. For instance, one person may have the right to publish a book in the UK for 10 years, another to publish it in the US for 5 years, another to have the film rights, and another to have TV rights.

There are also licenses with individuals or companies, where you negotiate with the owners. For example, you might be able to negotiate with IEEE, say, for NATO to have permission to do certain things in exchange for a fee, but IEEE might not give other bodies such a license. There is also the concept of ‘general permission’, particularly true of governments and quasi-government bodies, who are interested only in protecting the integrity of their material, not their economic rights in it. For instance, a government putting out a law is generally not interested in selling copies (except in the UK) but in ensuring that the text is unchanged.

You could offer licenses for your publications, giving a general permission to copy them provided the integrity is protected - a ‘general permission’ type of license. On the other hand, you could enter into proper contracts, giving permission to do some things and forbidding others. In such cases, you can ignore the law of copyright.

For most countries, copyright is 70 years after the death of the author. When drawing up licensing contracts, you may want to specify that it is for a much shorter period.

ELECTRONIC PUBLISHING

People say this is all very well in the paper world, but what about the electronic world? If the law says you can do something, and doesn’t specify the form, then you should say, “It says I can do it, so I can”. Publishers can say, “You agreed that I could publish it, and so I put it on the Web and in a CD-ROM, as well as in paper form, and there is clearly nothing wrong in that”. Publishing merely means “make available to the public”. On the other hand, you can use the same argument if you want to use something that is in electronic form.

As an owner, I can stop any copying, including in or to electronic formats, that I want. As a user, if the law says I can make copies, I can do so electronically.

DATABASE RIGHT

In the European Union, and something similar is about to happen in the US, there is a different law for databases. Under most laws, a database was not mentioned or defined, so it was not clear whether or not it was protected. In the UK the view was that if you put a lot of effort (‘sweat of the brow’) into creating a database, called a ‘compilation’, you ought to have rights in it. The same view held in the US. In continental Europe, the idea of merely putting a lot of hard work into something to get copyright was not acceptable. The white pages section of a telephone directory is protected by copyright in the UK, but not in mainland Europe, where they say that there is nothing original in the work - a mere alphabetical listing of names. In the US the view was that copyright applied, until this was overturned by a case where one telephone company used another’s directories, was taken to court by the other company, and won. The company that owned the list that was copied had deliberately inserted a false address every 200 entries, so that they could tell it had been copied. Whether that was sufficient intellectual input to make the work copyright was never discussed.

The European Commission recognised that such databases are commercially valuable. They have introduced a whole new right, called ‘Database right’, which is different from copyright, and which lasts 15 years from the creation of the database. A database is:

a collection of works, data or other materials, which are arranged in a systematic or methodical way and are individually accessible by electronic or other means,

So what we understand as normal databases are included, as would be a collection of family photographs that had been arranged in a systematic way.

The owner of the database right

This is the person responsible for having the database created, so if NATO asks someone else to create a database for them, NATO is the owner and has the right to prevent ‘the extraction or re-utilisation of all or a substantial part’ - evaluated both ‘qualitatively and quantitatively’. This doesn’t tell you what you have the right to do, only what you have the right to prevent - quite different from copyright. This definition has been broadly endorsed by the World Intellectual Property Organisation, and will probably become generally understood.

If you have a database, which is a mere straightforward database, for example a list of telephone numbers, it gets database rights. However, if I have used my intellect to create a scholarly bibliography on a given topic, it is not only a database, it is also my own personal creation, so I get copyright protection and database right. So I have two rights in one object, one lasting 15 years, the other lasting until 70 years after my death. But when does the 15-year period begin? Most databases are constantly changing, with additions, deletions and amendments, and the period of protection dates from the time of the last substantial investment in the database - whenever you have last added new records, a new piece of data, etc.

How do you qualify for database right?

It has been argued that database right locks up data - it gives a monopoly to the first person who created the database. In fact, this is not true. You qualify for database right, if you

make substantial investment in all the following:

· obtaining the data

· verifying the data

· presenting the data

This is where the competitive element can enter. If someone prepares, say, a list of aerospace engineers in the UK, they have database rights in that and you cannot take that data and republish it, nor can you use it to create your own database. If you obtain the same data yourself, and take the three steps above, you get the same rights. The aim of this legislation is to protect the economic investment that people have made in databases. You cannot benefit from others’ investment, but you get the same rights if you make the same investment of time and effort as they do.

Use of data fairly

The UK has skated round this a little, and said you must be lawful user, you must acknowledge where you got the information from and you must not do anything commercial. Who is a lawful user of a paper database? Essentially it is anyone who is permitted to use it, but this varies from country to country. If you are a teacher in the UK, you can use reasonable amounts of data in the classroom provided you say where it came from and your use is not commercial.

THE WEB

Many people think that if it is on the Web, you can do anything you like with it. This is not true, because there is nothing to say that it is not subject to copyright. The law on copyright is identical for paper and electronic forms. Moreover, the fact that something is free does not mean that it is not copyright. So treat all material on the Web as though it is copyright, unless it specifically says otherwise, and behave as if it were printed on paper. Always start with the Home Page and note any permissions given on it. If you are building a Web site, always make sure that people link into the Home Page, because that is where you can put all sorts of information about copyright, what you license people to do, and what you do not allow them to do. For instance, you might say “Any part of this Web site may be downloaded, copied, or transmitted to a third party, provided you acknowledge the source”. Or you might say something like “No part of this Web site may be downloaded, copied or re-transmitted except under the conditions of the national law that applies”.

Which national law applies?

Essentially, copyright law is national in character, so there are as many laws affecting you as there are countries represented at this meeting. So what the people from the UK may legitimately do, may not be the same as for the people in France, Germany, US, etc. You are limited by the law of the country where you do the action. So when you are creating a Web site, you may load onto that site, you may copy onto it, only so much as the national law where you are doing it will allow you to do. If that law is very restrictive, you will either have to write all your own material or get permission from other people. If the law of your country has certain exceptions, there may be certain areas where you do not need permission, such as reporting the news.

Suppose there is a Web site in Italy, and I am in the UK. If I access this site, I may only download from it what UK law allows me to do or what the site owner has permitted me to do. It does happen that you might legitimately include material in one country, and when it is downloaded in another country, it is infringing copyright law in the second country. So lots of news material may be loaded in a site in a country with a liberal regime, but when transmitted to a country with a very strict regime, even without downloading, it may become illegal. The most obvious example is very violent or pornographic material. The point is that when you access the site, you actually possess that material in the country where you are, not in the country where the site is (you do not go to the material: it comes to you).

Private use

Owners of Web sites may think that people who download material do so for their own use, and although they may not stipulate anything specific, their view may be that an individual person downloading something for their own private use is acceptable. However, if it is then distributed to the user’s organisation, nationally or internationally, that will be viewed in an extremely different way. So if you are creating a Web site, you should make it clear what people may or may not do. Do not assume that people will behave in the same way as if it were print.

The Shetland Times/News case

Using the Web site to report the news was the basis of a very important case in the UK (the far north of Scotland), and it has had repercussions all round the world. It raised a very large number of questions, few of which have been answered in law yet. It was a case between two newspapers, an old-established one, the ‘Shetland Times’, and a news service, the ‘Shetland News’, set up by a former employee of the Times. The News created a Web site which consisted only of a list of the headlines that appeared in the Times and hypertext links to the corresponding pieces of news in the Times site. The Times complained on a number of grounds.

Headlines: The Times said that the copyright in the headlines had been infringed, but it is generally assumed that headlines are not copyright since they merely state a fact and are not original, and so this point was not discussed. However, it did raise other questions. If I raise a list of headlines that merely take users into another Web site, am I reporting a current event? The judge decided that this is not so. It was seen as merely referring, and therefore not allowed.

What is a Web site? The second issue was the nature of a Web site, and this depends on the legal environment where you live. When you put something on a Web site, it sits there until someone clicks on the hypertext link. Then it is transmitted to the person doing so. This causes quite a fierce argument that has never been resolved. Is a Web site a broadcast? A broadcast is usually thought of as sending out a signal simultaneously to a number of people who may receive it if they wish. This is not true of a Web site, since it is not proactive. The argument was put forward that a Web site is a cable programme service. In many legislations, that is one which has an interactive element, which is not normally seen in a broadcast. Moreover, in some legislations at least, the special exceptions for reporting the news do not apply to such a service. This question has not been answered yet and is causing a great deal of thought.

Hypertext links: This question is even more important. Hypertext links are the essence of the Web, and much of the benefit of the Web would be lost if you couldn’t have them. When you build a hypertext link, and when it is used, there are all sorts of problems. The first is that the user does not perceive what is happening. For instance, if there was a link, “Ship sinks off Shetland Islands” and you clicked on it and were taken to the Shetland Times, without being aware of it, you would think that the product you were looking at was a Shetland News product not a Shetland Times one. Therefore you would be misled, and in some legislations this is called ‘passing off’. This is where a consumer acquires a product that they think comes from one place when it comes from another, for instance because the packaging looks very similar to that of another product.

So a hypertext link which does not advertise the fact that you have moved from one site to another can mislead the user and make them think that the product they are using is from somewhere different from where it really is. This may not matter to the user in some cases, but in others it would. For instance if you are searching for work on lung cancer and are looking at the Medical Research Council you would regard what was shown as valuable material, but if there happened to be a link saying “Other relevant material” which took you to the Tobacco Research Council you would not give the same credence to the material you found there. However, if this happened without your knowing, it could be very misleading. So it is essential that when people follow a link to another site they should be aware of having done so. As a result, most reputable sites now have icons stating the ownership and any restrictions. That was a very important element of this Shetlands case. So normal practice should now be that hypertext links go into the Home Page and not into the body of the other Web site.

Loss of revenue: This was another aspect of the case. The Times pointed out that if people didn’t go into the Home Page, they wouldn’t see the advertisements of their other products or those placed by their advertisers. So they were losing potential revenue.

What is publication? This was another issue. It is possible that a lot of material on a Web site is never looked at by users. Is it therefore published? It is capable of being published, but is that sufficient? Not in the conventional sense of “making of copies available to the public”, because there are no copies. One of the problems in this area is that we use a paper-based vocabulary in the context of electronic material, and the terminology is not always appropriate. This was another argument of the Times - they said that the News was republishing their material without their consent.

A contractual failure

This case came up shortly after. A local authority in the UK commissioned a company to carry out a study of child abuse in some of their homes for children. They decided not to publish the results of the study, which were somewhat sensitive. But the company that had been commissioned to write the report put it on their Web site. The authority said that they had published it illegally, and the company replied that when they had been commissioned they had not relinquished the intellectual property in the report to the authority. In fact the local authority was able to get a court injunction to have it removed for non-copyright reasons. By this time, however, it had appeared on a Web site in Canada. The authority then wrote to the owner of the Canadian site and asked him to remove it, which he did. By this time, however, it was on another in California and another in Florida. So the authority reluctantly gave up the chase.

Licenses

Licenses apply in Web site technology - similar licenses to those for printed material. If there is no licensing statement, you must assume that you obey the normal copyright rules. Increasingly, there are icons on which you click to give you the terms under which you can use the site and on which you click to say you accept them. The legality of the contract obtained by doing so has not been tested, but most countries are likely to introduce legislation to say that by clicking on such an icon, you are entering into a legal contract which is just as binding as any other. The European Union is introducing such a directive and it is moving ‘fairly quickly’ through the bureaucracy.

With a normal contract you get in touch with the other person, by phone or letter and set the contract up, usually in writing. With the Web, the procedure is much simplified. I feel it would be preferable for there to be two levels of license, one allowing you to browse to decide whether the material is of interest, the second to allow you to download it. But the owners of information are resisting this approach.

Intranets

Putting material from outside on an intranet has the same copyright limitations as on a Web site, even though it will be used only by a clearly defined group of people, namely members of the organisation owning the intranet. Indeed, the owners of the material used might well argue that putting information on an intranet demonstrates that it has a considerable value and therefore they would expect to be recompensed.

THE EUROPEAN DRAFT DIRECTIVE

The European Commission has a draft directive on electronic commerce, which was proposed in 1997, but is not moving quickly. It was heavily criticised by interested parties during the consultation phase but the Commission refused to change it to meet those criticisms. The Commissioners recently resigned en masse and have not yet been replaced, although they are still working. Since this directive has been classed as a political one, the present Commissioners cannot continue working on it, and it must await the appointment of new Commissioners, some of whom may be the same. Moreover, the member of the European Parliament who was responsible for handling this legislation, and was violently opposed to the interests of libraries and the like, has announced that he is not standing at the next elections (May 1999), so someone else has to take it over after the elections, which will delay matters further. But we might get someone who is more in favour of libraries. I think it might become a directive in 2000, but it won’t be implemented by most EU governments until 2002.

It is very complicated and controversial. It covers five major areas:

· Reproduction Right

· Right of Communication to the Public

· Exceptions to the above

· Distribution Right

· Protection of Technological Rights Management Devices

Right of reproduction

Every country in the EU has legislation governing the right of making copies, but it is not clear in many cases just what constitutes a copy. When you send a fax, you generally make a photocopy first, then put it on the machine, which digitises it (making a second copy) and transmits it. The receiving machine then prints it out (a third copy), and you may make a copy for preservation (a fourth copy). In some legislations it is clear that all those copies are indeed copies, but in many others it is not clear whether they would be considered copies for legal purposes. In order to make that clear, the Commissioners say that any copy, whether direct or indirect, temporary or permanent, in any manner or form, is a copy. I don’t think that will be a problem, but we need to go further.

Communication to the public

· This includes the right of making works available

· It includes any means or process other than the distribution of physical copies

· Any act of transmission which results in communication to the public, including display on a screen, requires authorisation

· This specifically includes interactive and on-demand acts of transmission

· Crucial act: making a work available to the public which precedes communication to the public

The Commission wants to introduce a ‘communication to the public’ right. This goes back to Web sites. It will include the right of making works available, even if they are never used. It will include any means or process other than the distribution of physical copies, which is dealt with separately.

It will not be an infringement to transmit something from one country (Germany perhaps) and receive it another (Portugal for example) through other countries (France and Spain, say), where it might be illegal, provided it is legal in both the transmitting and receiving countries, unless at any point it can be viewed by the public, when it will be considered as ‘communication to the public’.

Exceptions

The Commission is interested primarily in establishing a single market and having a market economy, and you shouldn’t detract from people’s ability to market their products. If too many aspects are optional and are implemented in some countries but not in others, it runs counter to the single market. None the less, they have identified three areas that they agree need exceptions to total copyright control:

· reproduction right only (obligatory)

· reproduction right (optional)

· reproduction and communication to the public (optional)

Everyone must introduce an exception for the making of temporary copies to achieve a legitimate objective. This is one of the few good parts of the legislation.

Countries may introduce exceptions to the copying for reproduction, as listed here:

· By any photographic or similar technique onto paper

· Audio or audio-visual materials by natural persons for private use

· Specific acts of reproduction by establishments accessible to the public which are not for direct or indirect economic or commercial advantage

Note that all these exceptions are optional, and different countries will allow different ones.

‘A photographic or similar technique onto paper’ is truly old law and technology. So you are allowed to have legislation which says people may make copies onto paper for personal use or for library privilege or for educational purposes. But you do not have to have such a law. Essentially, if your country has such rights, you are unlikely to lose them, but if it doesn’t, you are unlikely to gain them.

The same is true for the copying by ‘natural persons’ of audio or audio-visual materials for private use - which you are permitted to do in France but not in the UK.

The final optional exception applies to establishments ‘accessible to the public’, such as libraries, and this is not clear, because although a public library is clearly accessible to the public, are university libraries, or the British Library?

The possible exceptions to the reproduction and communication right, all optional, are:

· Purpose of illustration for teaching or scientific research for a non-commercial purpose

· For use by visually or hearing impaired people, and of a non-commercial nature

· Excerpts for reporting current events

· Quotation for criticism or review but only if already lawfully made available to the public.

· Security, judicial or parliamentary use

These must all apply to specific cases.

The UK doesn’t recognise the right of visually- or hearing- impaired people to special exceptions, although the Scandinavian countries do. This will be optional under the directive and so the UK is unlikely to include it. Thus an audio copy made in Denmark for a visually-impaired person under this exception would be illegal if taken to the UK.

Distribution right

· The author will have the exclusive right of authorising distribution by sale or otherwise of originals and copies

This is mostly concerned only with physical copies. The author will have the right to determine whether or not copies may be distributed.

Technological measures

· Circumvention of technological processes for protecting and managing copyright, and the manufacture of such devices, are both prohibited

This is one of the most controversial issues. At least ten years ago people started looking at the possibility of technological measures to prevent abuses of copyright. I was involved in CITED - Control In Transmitting Electronic Documents - which tried to build a piece of hardware and software to manage access, monitor royalty payments, by document, elements within the document, the purposes to which you wanted to put it, and your status (for example student or professor). It would also have given use data to the publishers and acted as a rights management system for distribution of money.

Putting all that in one technological item proved totally impossible but the model had very profound effects on both European and American research. A number of projects have come out of it as a result. One of these devised a watermarking for text (watermarking for images is much simpler) and a patent has come out of this. Another is the use of a ‘smart’ card for managing access to and use of copyright material, which we have tried out successfully in the British Library, and there are several projects taking the smart card forward as a way of managing royalty payments for use of copyright material. I believe the smart card, or something similar, will be a major element in copyright, as it is already becoming a major element in the management of our daily lives.

Numerous towns are experimenting with a universal card which will pay anything that goes to the municipality, the swimming baths, rent to the Council, bus fares, library fines, etc, and there is no reason why it shouldn’t be extended to electronic materials at the same time.

The creation of these systems creates a real challenge to the owner and the user, because they are complete, although of course they are not watertight. There is no such thing as a watertight system and no copyright owner should expect a system to be 100% successful in controlling access to and use of his material. If the owner can totally control the access, what happens to those areas of usage that the law permits without reference to the owner, such as private copying, fair use, library or educational privileges, etc.? It is virtually impossible to build all these exceptions, particularly the less concrete ones, into a machine. So the Commission is saying that if you set up a technological system it must be protected and circumvention of it will be an infringement. The owners are happy with this, of course, but the users say there must be a way of allowing the various exceptions. I believe there will have to be some compromise on this issue. Most owners are quite reasonable and will accept certain minor exceptions which will cause them a small loss but for the greater good, we will respect those. But there will always be someone who refuses to do this.

CONCLUSION

I have tried to pick up some of the questions which you put, with a general discussion in a number of areas: ownership, licenses, contracts, electronic publication, the nature of the Web, both legally and what you can and can’t do, and what Europe is planning for the near future.

QUESTIONS

Mr Cornish confirmed that the RTA is obliged to obey French law, since it is in Paris. And if the server is located elsewhere, but RTA is wholly responsible for the content, its location is irrelevant. However, if the server manipulates the material in some way, then it is liable under the laws of the country where it is located.

Making occasional copies is unlikely to result in action against you, but I don’t counsel complacency, since there have been cases in many countries where organisations have been fined quite substantial sums, although rarely in the library or technical information field. Where it can be demonstrated that the copying is symptomatic of something larger going on, then action may be taken and large sums of damages or fines granted.

Never keep your own organisation’s frame when including material from another Web site, because this is very misleading to the user and is an infringement of copyright.

It was confirmed that if authors have given their agreement to publication by RTO, then they are probably unlikely to object to their paper or publication being mounted on a Web site.

When RTO has organised the papers in a meeting proceedings in a systematic way, it effectively becomes a database and so RTO holds the copyright in the collection, but not in the individual papers. It is necessary to get permission to use a portion of one of the papers in a book or another paper. If the author cannot be easily traced, it should generally be sufficient to write to the last known address, since few are likely to complain provided their contribution is properly acknowledged.

It was recommended that a Web site should have a copyright statement on the first page and an icon on each page.