As of 22 April 2009 this website is 'frozen' in time — see the current IFLA websites
This old website and all of its content will stay on as archive – http://archive.ifla.org
As of 22 April 2009 this website is 'frozen' in time — see the current IFLA websites
This old website and all of its content will stay on as archive – http://archive.ifla.org
Although librarians support the unimpeded flow of information, they have to appreciate why it frequently hits the barriers of copyright. Practically every country in the world has national copyright legislation. Before librarians can begin to understand the reasons why there are so many restrictions on copyright protected material there needs to be some basic understanding of the wider interna tional scene. Part one of this paper explains the attitudes internationally to copyright plus an overview of the main international copyright conventions, and the second half examines a few of the basic rights and their effect on audio visual material.
Copyright has been described as the international trading system for works of the mind. Information contained in copyright works, can also be seen as an international trading system. When copyright and information are put together the two mix like oil and water.
There is a danger that overly rigid rules regarding copyright protection can prevent access to information. Media librarians are especially affected as the increase in the availability of information in digital format and the variety of platforms brings with it tighter controls. In 1991, IFLA produced a copyright statement aimed mainly at copyright owners which puts the position of the librarian and copyright in perspective:
Librarians and information professionals recognize and are committed to support, the needs of library users to gain access to copyright works and the information and ideas they contain in order to assist in the advancement and dissemination of knowledge. They further recognize that this process leads to the creation of new intellectual property. Librarians and information professionals respect the needs of authors, creators, publishers, producers and other copyright owners to obtain a fair economic return on their intellectual property. They also respect the need to defend copyright works against piracy, unfair use and unauthorized exploitation. IFLA believes that librarians and information professionals work at the point of balance between the legitimate needs of users of copyright works and the legitimate rights of copyright owners.
Librarians have to take copyright seriously, it affects most of the material held in libraries and so librarians have to be aware of their own national copyright laws and all the rules and regulations affecting different materials.
The rights are laid down by the international conventions which apply to copyright. They are rights to exploit their work and to control their use. It is important that there is some basic understanding of these conventions as it explains the divergence of copyright practice in different nations. The main conventions are familiarly called the Berne, Rome and the Universal Copyright Convention.
The original agreement was drawn up in 1886 and since then there have been many revisions which have increased the scope of protection. The latest revision took place in Paris in 1971. The main points are:
The right to protection for literary, dramatic, musical and artistic works (includes compilations and translations etc.) and the right to exclude certain works from protection. The right to national treatment (works of foreign authors are given the same treatment as nationals). Moral rights: the right of paternity (the right to be identified as the author); the right of integrity (the right to object to derogatory treatment of their works); the right of disclosure (the right to withhold from publication); and the right of non attribution (the right not to have a work falsely assigned to them). Moral rights cannot be assigned. Agreed term of protection (at present 50 years) from the end of the year of the death of the author
Right of translation
Rights of reproduction
Right to grant permissions to copy for certain purposes
Right to public performance and the right to limit the performance
Right to broadcast
Right of adaptation
Right to enforce rights
The right to grant certain exceptions within limitations. This is important from our point of view as it means that each signatory is allowed to authorise the reproduction of copyright works in 'certain special cases' provided that such reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
Berne is complex demanding a big commitment on behalf of governments and originally many countries in both developed and developing nations, did not sign. In 1952 a compromise was reached with the Universal Copyright Convention agreed at a UNESCO Conference in Geneva. The importance of this convention is that it recognised the need for developing countries to gain access to information. In the Mo del Laws drawn up by UNESCO for developing countries, libraries are recognised as having an important role to play in the providing access to information and are given special treatment. The main points of this convention are: The (c) copyright notice must be applied to national works in order for them to be protected in other countries. National treatment for foreign works similar to Berne. Minimum term of protection to be 25 years for all works except photographs and works of applied art which do not have to be protected but if they are, only have a 10 year protection. Right to authorize reproduction, to authorize public performance and broadcasting Right to translation To date, 105 countries are signatories to the Berne Convention. Those that have not signed Berne because they could not accept all the conditions, have signed the Universal Copyright Convention. For instance, Cuba has signed the UCC but not Berne. Some countries have signed both. However, the two conventions were simultaneously revised in Paris in 1971 where texts incorporating differing viewpoin ts were adopted. The compromise mainly amounted to a relaxation of the exclusive nature of Berne in favour of developing countries only. This allows developing countries to institute regimes for licensing of translations and reproductions of works for educational purposes. The following two conventions give added protection to the authors and producers of a/v media.
The copyright conventions are administered by the UN body, the World Intellectual Property Organisation (WIPO) in Geneva except the Universal Copyright Convention which is jointly administered with UNESCO. Both WIPO and UNESCO play a part in educating governments by running programmes in copyright and neighboring rights in developing countries in order to promote respect of copyright, give techni cal assistance and also help in setting up collecting societies to collect royalty payments.
International copyright becomes even more complicated when one considers the various revisions of an agreement. There have been several versions of Berne since 1886. Each time there is a revision which strengthens these rights, not every original signatory signs up to the revision. Some are therefore signatories to one revision and others to another. The difference in the term of protection betwe en Berne and the UCC also causes problems for the movement of goods and thus access and availability of certain material. Rights owners, understandably, refuse to export their products to countries where there is inadequate copyright protection. Obviously the main objective of WIPO is to encourage all countries to fall in line with the latest revisions of the main Berne and Rome Conventions. This is a difficult task. At present WIPO is drafting a protocol to the Berne Convention which will probably incorporate additional rights such as rental rights and distribution rights while trying not to upset the balance of trade. The disharmony between States with different levels of protection puts a strain on the fundamental right of Berne to national treatment for foreign works.
Who owns copyright? Basically it is the creator of the work, the intellectual creator, also known as the author; in the case of a sound recording or film, the copyright owner is the person who undertakes the arrangements necessary for the making of the recording or film the producer; for broadcasts, it is the person who makes the broadcast; in the case of a cable programme, the person who provi des the service in which the programme is included; and if the work is computer generated, the author is the person who undertakes the arrangements necessary for the creation of the work.
In an audio visual product, besides the producer who will own the copyright on the overall product, there are a variety of other copyrights. For instance, in a sound recording, rights belong to: the composer(s) of the music; the author(s) of the lyrics; the musicians for their performance; the designer of the record cover or sleeve; the author of the text on the sleeve; the photographer or artist if the sleeve contains artistic works. If the recording contains several tracks then each track may have its own set of rights owners. Before a work can be produced all these rights have to be cleared contractually so that at the end of the day the producer will own or be licensed to use a bundle of rights. This means that the producers control the nature of the transactions of intellectual prop erty of all kinds even down to the prices that are paid by consumers.
Differences in attitudes to intellectual property have developed over the years. It is the difference between copyright which aims to protect the economic investment of entrepreneurs, and droit d'auteur, which protects the rights of authors to be paid for their intellectual investment. Droit d'auteur developed in continental Europe whereas the UK and the USA had system of copyright. Most producer s the 'authors' of sound recordings and films do not favour the droit d'auteur system which they see as a hindrance to the development of audio visual industry. Intellectual property is a tradeable commodity. In order to produce an audio visual product, all the rights have to be cleared first. As we have seen, there are many copyrights in an audio visual item such as a video or a sound recor ding and many more in a multimedia product.
Under the Anglo American copyright system, authors are encouraged to assign their rights, including electronic rights, to producers for a one off payment and so miss out on the royalties gathered by authors' collecting societies. With multimedia becoming a big business this seem unfair as it denies the author his/her just benefits. What is more alarming is that it could also put users another ste p away from gaining access to the works. Organisations like Sony, Matsushita and Time Warner are already buying up electronic rights of a variety of products in case they will be needed one day. Producers may not have such an altruistic or cultural approach to the material. Their aim is to make money by selling as many products as they can. There is a movement to try to discourage authors from di sposing of their rights. Called the Association International des Auteurs d'Audiovisuel (AIDAA), it exists to encourage authors to license their rights instead. (2)
Depending on the degree of protection according to which conventions have been signed, some national copyright laws have therefore stricter controls than others on their intellectual property. What effect does all this have on the uses of audio visual material?
Librarians are anxious not to break laws. We are not too concerned about rights owners having rights in their intellectual property. Our main concerns are that they do not interfere with aspects of the library service, or impede the flow of information.
For educational or cultural purposes and preservation, librarians wish to copy a/v material. Some countries do not allow any copying without permission, whereas others recognise that for certain purposes it should be allowed. For example, in Denmark the Royal Danish Record Library will permit the copying of any sound recording in its collection, whereas in the UK, apart from a few minor exception s, only the author, in this case the producer, of a sound recording is allowed to reproduce the whole work or part of the work. Permission has to be given in order to be able to copy from CD or vinyl disc to cassette. The librarian is not allowed, for example, to copy an old sound recording, no longer available commercially, from one format to another for preservation or lending purposes. In prac tice, this denies a user the right to hear a recording which is on a format for which there is no suitable apparatus on which to play it. (3)
The irony is that whether we agree or not, the private copying of sound recordings from one format to another, although not on the scale of piracy, is quite common. This has been recognised by some governments, mainly in the European Union, which have a levy on recording equipment, including blank tapes, in order to compensate rights owners for the loss of revenue by such private copying.
Librarians want to augment their collections for educational purposes by copying artistic works from books. This has been common in the UK where the variety of social and cultural courses and the lack of commercially available artistic material has led to a demand for slide librarians to find what they need from other sources usually books and catalogues.
It has been reported that such copying is necessary for the purposes of teaching art and design. (4) Slides reproduced from artistic works in copyright and held in slide collections in the UK are therefore illegal. Apart from some small exemptions, the only legal way to copy artistic works is to ask permission from the rights owner before copying takes place. This can be difficult and time consum ing not only to gain permission but in actually tracing the right person to ask. If the photograph or plate to be copied comes from an old publication, quite often the publisher no longer exists. Commercially available slides are the safest option, but they can be prohibitively expensive as often librarians are forced to buy a whole set when the teacher may only need one or two. Slide librarians are therefore faced with the dilemma of copying illegally in order not to hinder education and risking prosecution, or not copying at all and preventing the educational process. It is a choice of respecting copyright or supporting education. A relaxation of the laws in favour of education is needed but is highly unlikely. The alternative is a licensing scheme but as yet no scheme is in place. Colour photocopiers are also causing concern to artists and designers as the reproduction of works has improved so much that it is difficult to distinguish the original from the copy. This is another argument given by rights owners for a levy on equipment to compensate for loss of revenue.
The technology now exists to be able to digitise works and store them on databases. This is called electrocopying and although not expressly stated in many copyright laws, it is a form of reproduction and so the exclusive right of the author. Librarians want to scan and store images of art works onto image databases for easy storage and retrieval but are being prevented from doing so by copyright . There is also a fear that images stored electronically can be manipulated easily, which is also an infringement of an artist's moral rights.
Copyright affects the visually impaired. Material for braille readers or talking books and newspapers has to be copied. There are even machines available which digitise and effectively 'read' texts to the users. At a meeting of the IFLA Section of Libraries for the Blind in Havana in February 1993, it was revealed that legislation in some countries allowed for the copying of all books onto specia l media whereas others were more restricted. (5) In the UK, permission has to be given for any copying or adaptation of works to assist the visually impaired.
Performance rights affect all sound recordings and films as they are embedded in the productions. What are performance rights? These are a whole set of different rights some of which are not part of copyright as such but are classed under the category of neighbouring rights.
Basically, the performer has an exclusive right to perform, play or show the work in public. Performance means: a dramatic performance (which includes dance or mime); and also a reading or recitation of a literary work including delivery in the case of lectures, addresses, speeches and sermons; a musical performance; a performance of a variety act or similar presentation. These are all live perfo rmances and can be performed by more than one individual. It is also the exclusive right of the performer to authorise the use of acoustic or visual recording equipment to make a sound recording, film or video of a live performance, and to make a recording from a broadcast or cable programme of a performance. Playing a sound recording, film or video in public is the exclusive right of the produce rs to whom performers have assigned their rights. Performance rights affect the playing of sound recordings and videos in public. Some videos have statements on them to the effect that they are for private home use only and not for broadcasting or any other public performance. Having purchased a video, a librarian contracts to accept these conditions. Permission has to be obtained before any showing outside the domestic situation. Although, it i s reasonable to assume that domestic includes educational.
Rental and lending are activities which have not yet been incorporated into international copyright law, but as is mentioned above, it is likely to be included in a protocol to the Berne Convention in the future. Some rights owners believe that rental and public lending is in 'conflict with the normal exploitation of the work' and they would like to control it. Under UK law, a new right has been given to the producers of sound recordings, films (videos), and computer programs to control the rental of their material. Producers believe that rental has an adverse effect on sales. Rental includes lending although they are two distinct activities: one being for commercial gain and the other for non profitmaking purposes education and culture. However, under UK legislation, if a library lends this material to the public, the library service is subject to Rental Right.
Owners of video recordings do not appear to be that concerned about lending of videos in libraries as there is no wish to disturb the lucrative commercial rental business, and although some lending of software, mainly educational, takes place, producers of computer games software have not allowed their products to be lent at all. However, rental right has had a marked effect on the lending of sou nd recordings. The producers of sound recordings have exercised their new right by insisting that libraries are licensed to lend CDs, audio cassettes and vinyl discs. An agreement has been reached between The Library Association and the British Phonographic Industry, which represents the producers of sound recordings, for public and educational libraries to be allowed to lend this material, witho ut payment of a royalty but with certain restrictions, the main one being that no recording can be lent until 3 months after its release date.
Following the programme of harmonisation in the European Union, a Directive on Rental and Lending has been passed which will affect the lending of books as well as sound recordings, videos, computer software, sheet music and works of art. (6) Hopefully, member states, which are allowed to derogate from the exclusive right, provided that a suitable remuneration is given to the authors, will not le t the burden of this payment fall on the shoulders of the library. The Netherlands and Belgium are already being affected. Legislation changes will mean that libraries will not be allowed to lend CDs until 6 months after the date of release. This is not good news for the library service.
The international system of copyright and neighboring rights is faced with the challenges of new technology which could so easily undermine the whole system. It has been said that the network, the global electronic highway, will be the testing ground for copyright. As well as print based information, audiovisual material may be supplied this way. The controlling of rights will be a nightmare and this is causing concern in the WIPO arena. There may have to be a completely new structure for the protection and enforcement of rights because of digital technology. It has always been an international problem but never before on this scale. In the meantime librarians will have to continue the fight to ensure that we and our users have adequate access to information.
I said at the beginning of this paper that copyright and information like oil and water, do not mix. But they can be made to mix with an emulsifier. One form of emulsifier is obviously money but this needs to be fair to all sides. If the solution to the problem is one of "pay at this price or be denied access" then the divide between the information rich and the information poor will widen and no body will gain. Another emulsifier could be a librarian who is already carefully controlling access to the warehouse of knowledge.
(1) ALTBACH Philip G. Haves and have nots in the world of copyright. The Bookseller 22/1/93 190 21
(2) ALCS News Number 7. April 1994, 4.
(3) LORIMER Chris. R. A full musical life. Audio Visual Librarian Vol 18 (3), August 1992 166 173
(4) GODFREY, Jenny. The visual imagery used in the teaching of Art and Design: problems of acquisition for the slide librarian. Audio Visual Librarian Vol 17 (20) May 1991. 90 94].
(5) IFLA Section of Libraries for the Blind. Report of Latin American and Caribbean seminar on library services for the blind and visually handicapped in developing countries, Havana, Cuba 15 19 February 1993. IFLA. CC DOC. 93 3.
(6) NORMAN, Sandy. Copyright issues. IFLA Journal Vol 20 (1)1994 53 54]