The Right to Read is the Right To Mine: But Not When Blocked by Technical Protection Measures
LIBER’s Copyright & Legal Matters Working Group – Shaping the Development of Digital Learning in Europe
Over a dozen people serve on LIBER’s Copyright & Legal Matters Working Group. They use their skills as copyright specialists, librarians, lawyers, professors and communications professionals to monitor current European law and react to proposed changes, on behalf of libraries, archives, researchers and students. This blog post covers the group’s background and successes, and explains how you can support future activities.
Legislation — whether it relates to copyright or other bodies of law such as database rights, data protection law, and public sector information — fundamentally affects research, teaching and the role of libraries. These regulations frame how, and sometimes even what, research can take place.
The fact that copyright has an impact on libraries and how they operate is not new. But in the past 20 years a number of pivotal developments related to how digital information works, for which copyright is the linchpin, have increased its importance. To give just a few examples:
- the rise of licensing in a digital world, an additional aspect to understand and deal with alongside copyright;
- the fact that private contracts can often override national exceptions for copyright and licences;
- the ongoing struggle with journal publishers over open access, because academics assign copyright to the publisher;
- rise of data and the often chilling effect of database rights in academia.
In 2014, LIBER therefore decided to actively monitor and react to developments in this area. This led to the group’s formation by Susan Reilly (then LIBER’s Manager of EU Projects & Advocacy).
Speaking Up for Libraries, Universities & Researchers
In the short time that it has been active, the Working Group has had a fundamental impact on the development of legal thinking in Europe, to the benefit of libraries, universities and researchers.
LIBER: pushing for copyright reform in Brussels.
The bulk of our work has been to consistently push for updated, innovation and research-friendly copyright laws. This has been done through workshops, open letters, meetings with European Commission representatives (including Commissioner Moedas, Commissioner for Research, Science and Innovation; Commissioner Oettinger,Commissioner for Digital Economy and Society and Commissioner Ansip, Vice-President of the European Commission), and the launch of initiativess such as the Hague Declaration.
Our efforts caught the attention of political magazine Politico, which featured LIBER on its 2017 Copyright Power Matrix: a big achievement considering the many well-established players in this space.
New Text and Data Mining Right: Achievement!
One of our biggest successes has been the establishment of Text and Data Mining as a right for universities and research bodies. In 2013, text and data mining was not a legal right in any European country. Now, thanks in large part to LIBER’s efforts, in 2019 (although we don’t yet know its exact final form) the new Digital Single Market Directive will make it legal across the entire European Union for universities and research bodies to analyse any in-copyright material using computers for any research purpose. The proposal will also hopefully allow Member States to intervene to force rightsholders to allow text and data mining where technical protection measures prevent it. In addition to this the exception is likely not to be “trumped” or “negated” by licence – the first time in European copyright law that copyright limitations and exceptions are protected by the undermining effects of licences. This is a huge shift in the capabilities offered to European researchers in the era of Artificial Intelligence (AI), and will strongly underpin innovation and economic development in Europe going forward.
The Digital Single Market Directive, to which we have dedicated much time in the form of briefings and submissions, also contains the following points of interest for libraries:
- A non-mandatory exception for commercial and non-commercial data miners that allow “temporary copies” to be made in the process of data analytics. (Art.3a)
- Distance learning in classrooms across EU borders. (Art. 4)
- Cross-border preservation activities as part of a network of libraries jointly investing in preservation infrastructure. (Art. 5)
- A solution for the mass digitisation of in copyright works which are commercially unavailable. (Art.7-9)
- A new right for newspaper publishers. (Art.11)
- New legal obligations for publicly accessible web platforms that allow content to be uploaded to them – this may affect publicly accessible repositories and OER projects. (Art.13)
This is the situation as it currently stands. Until the Directive passes, any of the above points could change.
Tips for Making An Impact
As we’ve taken on various projects and issues, it’s become clear that certain ways of working have been key to our success:
1. Collaborate, collaborate, collaborate.
The Working Group has engaged actively with many European library and research groups, including (but not limited to) the European University Association, Science Europe, EBLIDA, CENL, IFLA, LERU, SPARC Europe, Public Libraries 2020, Europeana, and eIFL. We have cooperated to closely analyse the constantly changing copyright directive text from the European Parliament and Council. Together we’ve achieved far greater reach, impact and understanding of the importance of copyright issues to the education and research sector than we could have otherwise.
2. React consistently and quickly.
The loose alliance of European library groups often prepare a jointly agreed position and commentary on each and every relevant clause and recital of the Directive. Often this means redrafting text for MEPs and Council members in time for the next meeting, sometimes in a break-neck speed turn-around of legal text. In September of this year ahead of a second European Parliament vote, we had 44 recitals, and 79 articles and sub-paragraphs, in the original Commission proposal plus over 240 amendments to comment on — all within a few days.
3. Find people willing to help.
Getting hold of the changes and documentation has been helped enormously by the Austrian Government’s commitment to transparency in Council meetings, and by friendly MEPs who seek out the opinions of libraries and education bodies. Trust goes both ways, of course. By carefully monitored developments and regularly reacting (even at short notice), we’ve become known as a reliable partner. We’ve also made a point of thanking MEPs who have shown affinity for libraries and their important role in society. Their support is invaluable.
4. Take a position and make its importance known.
Throughout the copyright process, we’ve been consistent in our goals and in expressing why they are important not only for libraries but also for a wider group of stakeholders (business, innovators, society at large).
What’s Happening Now & What’s Coming Up?
In October 2018 we issued a position statement on proposed amendments to the Reuse of Public Sector Information Directive, which brings research data from universities into scope for the first time. The group also recently signed an open letter calling on the European Union to adopt text and data mining laws that benefit businesses as well as academics. In the coming months, we will continue to monitor and discuss legal developments through different mechanisms such as monthly calls, briefings for MEPs, members of Council and the Commission, and public letters on legal issues of concern.
Traditionally, we’ve run a workshop at LIBER’s Annual Conference. In 2018 we focused on the new General Data Protection Regulation (GDPR): an updated and all-encompassing body of law that changes how research projects using personal data are structured and arguably supports the publication of archival and historical materials online which contain personal data, more than the previous directive.
We will be at LIBER’s 2019 conference in Dublin, Ireland. Please get in touch if you have thoughts about what you’d like to see from us there, or if you would like to contribute to the group’s ongoing work. New people bring new perspectives, partnerships and conversations – and this is invaluable as our work continues to evolve. You can reach the group by sending an email to the LIBER Office: liber@kb.nl.
