IssueI Copyright : Current Legislation
1. What do we mean by copyright?II Licences and ECMS
2 International Context2.1. Copyright Treaties & Conventions *3. Current Belgian Law
2.2. European Directives *3.1. Presentation *4. Future : The new European draft Copyright Directive
3.2. Royal Order fixing the author's remuneration *
3.3. Provision on Public Lending *
3.4. Legal protection of databases *
3.5. Future of the law *4.1. Calendar of the Directive *
4.2. The text *1. DefinitionIII Copyright versus Licencing
2. The reason of Licencing
3. Current trends - the licence models
4. Electronic Copyright Management Systems (ECMS)1. GeneralitiesIV Legislative Developments Concerning Encryption
2. Can Copyright Limitations Be Overridden by Contractual Agreements under European Law
3. Contract and copyright limits
4. Potential Solution4.1. Solution of Compensation *
4.2. New article in the Directive *1. International laws and directivesV Virlib1.1. COCOM *2. European laws and directives
1.2 Wassenaar Arrangement *
1.3 OECD *
1.4 WIPO *
1.5. UNCITRAL *2.1. Criminal Procedure Law Connected with Information Technology *3. Regional developments
2.2. Export/import control of dual-use goods *
2.3. Public Confidentiality Services *
2.4. Electronic/Digital Signatures *3.1. Belgium *
3.2. France *
3.3. Germany *
3.4. The Netherlands *
3.5. United Kingdom *1. The Inter-Libraries Loan in the digital worldVI Consortium
2 ILL in Belgium
3. Legal implications (law & licences) for Virlib1. Summary of the first report *4 Other European projects
2. Belgian law (changes & future evolution) *
3. European directive on copyright : Legal aspect for VirLib *TUD *
INIST *
BLDSC *
Copyright Fee Paid option *
Deutsche Bibliothek *
SUBITO *
CANDLE *
Decomate *
Tolimac *1 What is a consortium?VII Conclusion : ILL in Belgium - the use of the electronic documents in VirLibAdvantages *2 Examples
Disadvantages *United States *
Europe *
Belgium *Belgian lawVIII Recommendations
European Directive
Traditionally, copyright owners were never able to prevent personal use of their works, that is to prevent someone from using a work for his or her own learning, enjoyment, or sharing with a colleague or friend - without any motive for profit.
Before the 90'ies, copyright practices used to be quite favourable for libraries. They allowed generous copying and other non-commercial use of documents. Since the 90'ies the laws have been changed to harmonize the EU legislation, to fight piracy and to adapt to the changes caused by the electronic environment. The scope of rights accruing to copyright owners would therefore seem much broader in the digital environment than it is in the analogue world.
Educational and research institutions in general, and libraries in particular are closely involved in the issue of copyright. Reproduction rights and lending rights are two aspects of copyright legislation, which are directly concerned with the scientific library work.
Therefore librarians have paid attention to the development of this matter on a global level (WIPO), a European level (DG XV: Copyright Office) and a Belgian level (copyright legislation of 30.06.1994 and the implementing measures of the Belgian Ministry of Justice). The next Commission proposal for a Directive on copyright and related will have a big impact on libraries' work and their ability to carry out their service obligations.
Even if digital technology poses a threat to copyright
protection and if there is a real need for copyright holders to increase
copyright protection with added rights, it is essential that any new rights
are balanced with suitable exceptions. Unfortunately, the tendency is to
leave the future of access to information to self-regulatory licencing
mechanisms. In an environment where information can be monopolised, citizens,
libraries, archives and museums could be left in a nearly impossible negotiating
position.
The second solution to solve problems of reproduction in the digital world, is licencing. The intention of the European Commission in the proposed Directive is to leave the future of access to information to licencing mechanisms. However, in contract law information producers, intermediaries and end users are free to create their own rules, without government intervention but freedom of contract may become contractual coercion.
The university libraries are noticing significant trends
as publishers try to erect barriers to the storage and access of information,
and present licence agreements for the electronic access to journal titles
in which additional fees are requested, document delivery is hindered,
and non-cancellation clauses are introduced. The library position in copyright
law in the digital age is being threatened. The rights libraries have in
the printed environment are being challenged by the publishers.
ECMS are technical solutions to add extra protection to
back up digital copyright works. They are being perceived as the obvious
answer to piracy. Depending on their sophistication, these will be able
to track and control movement of works in digital form. They will also
be used to prevent unauthorised access. The library community is concerned
about the effects of technical controls used to underpin copyright protection.
Such controls, designed to prevent copyright abuse, could be used to increase
the price of information access. Used in this way, it could mean an abuse
of a monopoly besides being dangerous to have total control over any information.
I
Copyright : Current Legislation
1. What do we mean by copyright?
Copyright is concerned with the rights of authors, composers, artists and other creators in their works. Copyright law grants them the right for a limited period of time, to authorise or prohibit certain uses of their works by others. Most of the materials available in libraries consist of works protected by copyright law. This means that certain kinds of use of those works in libraries must not be made without the authorisation from the authors.
Copyright protects 'literary and artistic works: this includes novels, short stories, scientific writings or manuals, and musical works, works of graphic and plastic arts, films, documentaries, but also computer programs and databases.
The rights provided by copyright belong to the natural
person who has created the work and are twofold: economic rights
and moral rights. The main aim of copyright is to provide a stimulus
for creativity. This means that the law has to make sure that the author
will have an economic return on his creation and that he can protect his
creation from being violated in one way or the other.
*Art. 1.-(1) The author of a literary or artistic work alone shall have the right to reproduce his work or to have it reproduced in any manner or form whatsoever.
This right shall also comprise the exclusive right to authorize adaptation or translation of the work.
This right shall further comprise the exclusive right to authorize rental or lending of the work.
The author of a literary or artistic work alone shall
have the right to communicate his work to the public by any process whatsoever,
For the right of reproduction, most EU copyright legislations contain exceptions for users to copy freely a part of a work or a complete work for private, research or/and educational purposes. With these provisions the governments have tried to balance the interests of the users of copyright material and the creators of this material.
Contrary to the moral right, "the economic rights
shall be movable, assignable and transferable, in whole or in part, in
accordance with the provisions of the Civil Code. In particular,
they may be the subject of alienation or of an ordinary or exclusive licence".
(The Law of June 30, 1994, Art. 3.-(1)
Moral rights
The moral rights generally include
(2) The author of a literary or artistic work shall enjoy an inalienable moral right in his work.
Overall renunciation of the future exercise of this right shall be null and void.
This right shall comprise the right to disclose the work.
Non-disclosed works may not be seized.
An author shall have the right to claim or to refuse authorship of his work.
He shall enjoy the right to respect for his work that
shall permit him to oppose any alteration to that work. Notwithstanding
any renunciation, he shall maintain the right to oppose any distortion,
mutilation or other alteration to his work or any other prejudicial act
to the same work that may damage his honor or reputation.
Beside the copyright legislation, the law provides some
"Neighboring Rights" which are also movable rights that may be assigned
and transferred, in whole or in part, in accordance with the provisions
of the Civil Code. They may, in particular, be the subject of alienation
or of a simple or exclusive licence. Those rights mainly belong to Performers
and Producers and consequently are not relevant in the VirLib context.
2.1. Copyright Treaties & Conventions
Copyright is provided for in national laws. Those laws give protection within the national territory. Since 1886 international protection was provided for with the adoption of the Bern Convention for the Protection of Literary and Artistic Works. More than 100 countries signed this Convention and are bound by it.
The administration of the Bern Convention is done by the
United Nations specialist agency, the World Intellectual Property Organization
(WIPO), in Geneva. The Bern Convention provides for a minimum level
of copyright protection to be implemented in the national laws by the
countries member to the Convention. The governments were given the freedom
to regulate for certain issues and they were also allowed to regulate more
than was provided by the Bern Convention. This resulted in a variety of
different copyright legislations among the members of the Bern Convention.
2.1.1. Bern Convention for the Protection of Literary and Artistic Works
Since the establishment of the Bern Convention, it has been accepted in international law that authors have exclusive rights to authorize or prohibit the reproduction of their works in any manner and form. The Bern Convention, however, has also accepted some limitations and exceptions.
The Bern Convention in Art. 9 (1) and (2) only allows the member states to provide for exceptions for copying as long as the activity can pass the 'three step test'. The 'three step test' which allow reproduction is when the reproduction:
- is made in certain special cases
- does not conflict with a normal exploitation of the work
- does not unreasonably prejudice the legitimate interest of the author
This Article 9 of the Bern Convention functioned well for the paper environment, but we do not know if this article also applies to the digital environment; if the words 'in any manner and form' in Art. 9 (1) include material in digital format, that means that there is room for exceptions for the use of digital material as long as it passes the three step test of Art. 9 (2) Bern Convention.
Within this legal framework the different countries of
Europe have made national rules to govern these limitations and exceptions.
As a result libraries in Europe are able to make and supply a copy of research
material from a published work (directly or via in-library loan).
2.1.2. The WIPO Copyright Treaty
For a long time there had been growing pressure for the World Intellectual Property Organisation (WIPO) to help resolve the problems caused by the impact of digital technology.
On 20 December 1996, the WIPO Copyright Treaty was adopted by representatives of 157 nations. Following the adoption of the treaties, signatory nations, including the EU, are obliged to implement the new provisions into their own laws. In November 1997, the European Commission published a proposal for the Copyright Directive. Included in the directive are proposals to "harmonise" the exceptions to copyright. In fact, the WIPO Copyright Treaty as well as the European Directive want to adapt the copyright legislations to the new technologies
During the WIPO Diplomatic Conference the library lobby focused specifically on the proposed Articles 7 (Right of Reproduction), 8 (Right of Communication) and 10 (Limitations and Exceptions) of Document 4 of the Basic Proposals of the Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works. During the WIPO Diplomatic Conference many changes to these articles were proposed, especially to Article 7. Due to a constructive lobby of the international library community these Treaties are less harmful for the future of access of information than the draft proposals.
The following statement was included in the Preamble of
the Treaty: "the Contracting Parties, recognizing the need to maintain
a balance between the rights of authors and the larger public interest,
particularly education, research and access to information, as reflected
in the Bern Convention."
It is understood that the storage of a protected work
in digital form in an electronic medium constitutes a reproduction within
the meaning of Article 9 of the Bern Convention."
It is also understood that Article 10 (2) neither reduces
nor extends the scope of applicability of the limitations and exceptions
permitted by the Bern Convention; in the Agreed Statement, it is said "that
the provisions of Article 10 should be understood to permit Contracting
Parties to devise new exceptions and limitations that are appropriate in
the digital network environment".
All members of the European Union are members of the Bern Convention. The European Commission has tried in the last seven years to harmonise the European copyright environment, especially in respect of the new media and information technology that have changed the international copyright landscape considerably.
The considerable economic interests at stake and the lobbying power of the copyright industries have had an influence on the development of national and international copyright law and on library activities. This can be seen from the recent EU Directives and the newly adopted WIPO Copyright Treaty 1996.
The following Directives were adopted by the EU institutions between 1991 - 1996:
- Directive on computer software ('91)
- Directive on lending and rental rights ('92)
- Directive on the duration of copyright protection ('93)
- Directive on the protection of personal data ('95)
- Directive on the legal protection of databases ('96)
The objective of those directives is to harmonize the law of the European partners. These Directives have given the industry more and more protection over access to electronic information. The significance of these Directives is that they have to be implemented into your national copyright law. It is, usually, no longer possible to change their content at a local level once the Directive has been adopted by the EU Council of Ministers.
The Council Directive 92/100/EECof 19 November 1992 "on
rental right and lending right and on certain rights related to copyright
in the field of intellectual property" was transposed in the Belgian law
in the Loi du/Wet van 30/06/94 (published in the Moniteur Belge du/Belgisch
Staatsblad van 27/07/1994, p.19297) and the Directive 96/9/EC of the European
Parliament and of the Council of 11 March 1996 on the legal protection
of databases was transposed in the loi du 31 août 1998 transposant
en droit belge la directive européenne du 11 mars 1996 concernant
la protection juridique des bases de données (M.B. 14.11.1998,
36914).
The right of reproduction has always been considered the cornerstone of copyright. It is to be found in virtually all national laws and international conventions, and has been partially harmonized at Community level, notably for computer programs, databases and related rights.
In Belgium, the copyright is based on the Law on Copyright
and Neighboring Rights (of June 30, 1994, as amended by the Law of April
3, 1995)* ( "Loi relative aux droits d'auteurs et aux droits voisins"
- "Wet betreffende het auteursrecht en de naburige rechten")
which replaces the law of 22 March 1886 on the copyright. This law has
been changed for the last time by the law of 31 August 1998 to transpose
the European Directive [96/9/EC] of the European Parliament and of the
Council of 11 March 1996 on the legal protection of databases in the Belgian
law
The new law transposing in the Belgian law the European Directive on legal protection of databases introduces in place of the previous exceptions of reproduction for "didactic" purpose, a new exception of reproduction based on the reunion of three conditions :
As soon as the work is communicated in an immaterial way, without using a material support, we can consider that there is "communication" whatever technique is used.
The accord of the author is required only if for a "public" communication . The "public" characteristic is not dependent on the place where the work is transmitted or picked up, but on the persons who can have access to the communication. The article 22, §1, 3° of the law says that the communication is public when it is done outside the "family circle".
In the Belgian law, there is not exception of communication right for purpose of illustration for teaching or scientific research.
This situation is confirmed by Mireille Buydens in her guide :
Il convient d’être attentif à la portée
de chaque exception. En effet, l’exception du nouvel article 22, §1
4 bis et 4 ter autorise par exemple une bibliothèque scientifique
à reproduire un fragment ou l’entièreté
d’un article ou d’une œuvre plastique ou un court fragment
d’une autre œuvre fixée sur support graphique ou analogue
ou sur un autre support. En revanche, celle-ci ne pourra pas mettre
des photographies à la disposition des étudiants sur Internet
sous le couvert d’illustration de l’enseignement – même si l’accès
à ce réseau est réservé à ces seuls
étudiants. En effet, la loi ne prévoit pas d’exception à
des fins d’illustration de l’enseignement ou de recherche scientifique
pour le droit de communication au public par voie électronique.
Tout au plus, pourra-t-elle procéder à des prêts publics
par la voie de supports tangibles.
The VirLib system is not in conflict with the distribution right. It
is the reason why we have not taken account of it for this work.
3.2. Royal Order fixing the author's remuneration
Belgium like a number of countries chose to regulate the reprographic use of protected material by educational institutions, libraries and other institutions through the implementation of a non-voluntary licence regime. The Chapter V of the Belgian copyright law concerns the « Copying for Personal Use or for the purpose of illustration for teaching or scientific research ». It says that the reproducing for this purpose is a legal licence coming with a remuneration for the copy.
Since 1st January 1998, the modes of enforcement of the law have been fixed by Royal Order (Arrêté royal relatif à la rémunération des auteurs et des éditeurs pour la copie dans un but privé ou didactique des oeuvress fixées sur un support graphique ou analogue (MB 7 Novembre 1997, pp.29873-).
Belgium has provided for an exception to the reproduction right for photo/print type reproductions ("reprography"), combined with a right to remuneration. The Royal Order does not take account of the evolution of the technology and it concerns only the works "fixed on a graphical or analogue support" and consequently not the works in original digital format. The Royal Order functioned well for the paper environment, but there is a problem to apply it to the digital environment. The interpretation (wide or restrictive) of the text has legal consequences. The law adds also that copying machines ("appareils permettant la reproduction") are concerned, that means also the digital device.
In the new law of 14th November 1998 the Art.
22 : 1 4 ter, adds "the reproduction of a fragment or of the entirety of
an article (...) fixed on a support other than a graphic or analogue
support is authorised if it is used for the sole purpose of illustration
for teaching or scientific research, and if it does not perform acts
which conflict with normal exploitation of the works". The Art. 29, says
that in this case "the authors and publishers of works shall be entitled
to remuneration with respect to the reproduction of such works". The modalities,
criterions and amount for perception of those "taxes" are fixed of a common
accord or a special Commission will be created by the King (Art. 61 quater).
Analogue copy as well as numeric copies of all works (fixed or not on graphical
or analogue support) are concerned by the Copyright law. At the moment,
the modalities for perception of those "taxes" have not been fixed yet
and a special Commission will be created in the Ministry of Justice to
take account of this evolution.
3.3. Provision on Public Lending
The European Council Directive 92/100/EEC of 19 November 1992 allows the Member States to provide a right to authorize or prohibit the rental and lending of originals and copies of copyright works. The Directive adds that Rental rights, lending rights and rights related to copyright may be transferred, assigned or subject to the granting of contractual licences and that protection of copyright-related rights under the Directive must in no way affect the protection of copyright.
Rental means making available for use, for a limited period of time and for direct or indirect economic or commercial advantage; "lending" means making available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, when it is made through establishments which are accessible to the public.
It is important to distinguish Inter-library Loan of print documents from Inter-library Loan of electronic documents. First of all the term loan suggests that the material is sent back at one point in time. This is only the case for books in the print environment but not for material in the electronic environment. Terms that could cover the activity more accurately are "Inter-library Resource Sharing". Those concepts means that after a limited period of time the original -or the copy- is resent to the supplying library, which is not the case in Impala . This is the reason why we do not take account of this directive in this report.
Art. 63. After consultation with the institutions and
the copyright administration societies, the King shall determine the amount
of remuneration referred to in Article 62, Such remuneration shall be collected
by the copyright administration societies.
The EU Directive on the legal protection of databases was transposed in the Belgian law of 31 August 1998 (M.B. 14.11.1998, 36914) . This Directive concerns the legal protection of databases in any form. A 'database' is a "collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means". The publishers can thus argue that the set of articles in digital format constitutes a database.
A database could simultaneously receive both types of protection: copyright protection for the expression -the selection and arrangement of the data; and sui generis protection against the unfair extraction of a qualitatively substantial part of the data itself. The sui generis protection lasts 15 years, while the copyright protection lasts for the life of the author plus 70 years.
In respect of the expression of the database which is protectable by copyright, the "author" of a database shall have the exclusive right to carry out or to authorize: temporary or permanent reproduction by any means and in any form, in whole or in part and any communication, display or performance to the public.
Belgian law provides limitations on the rights set out where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved.
In accordance with the Bern Convention for the protection
of Literary and Artistic Works, this Article may not be interpreted in
such a way as to allow its application to be used in a manner which unreasonably
prejudices the rightholder's legitimate interests or conflicts with normal
exploitation of the database".
In the Belgian law as well as in the legislation of the other European members, the actual laws on the copyright will change to fit the new European Directive and to integrate into the national laws what has been decided on the European level . Then the actual law can be considered as "temporary". It is the reason why we have focused our work on the European draft Copyright Directive.
When all the European Parliament and the European Council
will adopt the Directive on harmonisation of certain aspects of copyright
and related rights, the final decisions will have to be implemented
into national copyright law. It is, usually, no longer possible to change
the content of the Directive at a local level once the Directive has been
adopted by the EU Council of Ministers. At the present state of the law,
the Member States would keep some free options ; for instance, they have
the option of applying exceptions to both the reproduction right and the
communication to the public right in the case among others of use for the
sole purpose of illustration for teaching and scientific research.
4.
Future : The new European draft Copyright Directive
4.1. Calendar of the Directive
On 10th December 1997, the European Commission sent the proposal of Directive on harmonisation of certain aspects of copyright and related rights to the European Parliament. The Directive is based on the Green Paper on Copyright in the Information Society, which was published on 19 July 1995 (Com (95) 382 final) and its Follow-up of 20 November 1996 (Com (96) 568 final). Firstly the text was examined by the Legal Affairs Committee, whose reporter is Mr Barzanti, and by several other Committees (economy, culture, environment). The LAC had to determine which amendments would in the end be presented to the European Parliament plenary session. They had to vote on over 300 amendments .
On 10 February 1999 the European Parliament voted in first reading under the co-decision procedure on the draft Directive. A large majority of MEPs (437 to 47, with 51 abstentions) adopted the text. The Amended proposal Directive for copyright Directive was presented by the European Commission on 21 May 1999.. It has in some aspects taken account of the concerns expressed by several associations (including EBLIDA) on the original text and on many of the proposed amendments by European Parliament. The amended wording concerning temporary copies and the improved wording on technical protection systems are especially welcomed as well as the special attention given to public establishments such as libraries or archives. But associations as Eblida judge that further improvements are urgently needed and will continue the debate of this draft Directive especially in the Council of Ministers.
This Amended draft Directive has been sent back to the European Parliament for second reading. This opinion on second reading will be transmitted to the European Commission with some amendments. A Commission of Conciliation between the Commission and the Parliament will be set up to attempt to find a compromise on each amendment if necessary. Finally, if the Ministerial Council will approve it, the text will be definitively adopted.
Firstly, the Directive was foreseen to be voted in August-September.
The date originally decided to implement this European Directive was June
2000. But at the moment the calendar of the directive is seven months behind
schedule. The earliest that changes will be introduced into national laws
is likely to be 2002 as the Directive is not adopted yet.
The Directive would "adjust and complement the existing legal framework, with particular emphasis on new products and services containing intellectual property (both on-line and on physical carriers), so as to ensure a Single Market in copyright and related rights while "protecting and stimulating creativity and innovation within the European Union (EU)". In fact, the proposal wants to "represent a fair balance between the divergent and often conflicting rights and interests concerned. At the same time, adoption of the proposal will allow the EU to meet a significant part of its international obligations under the new WIPO Treaties and prepare the ratification of these Treaties by the Community".
It would in particular harmonise rules on the right of reproduction, the communication to the public right (including making protected material available on-demand over the Internet), the distribution right and the legal protection of anti-copying systems and information for managing rights".
The proposal would establish a clear definition of what exactly is protected as well as an equivalent level of protection across the EU. The harmonised definition of the reproduction right would cover all relevant acts of direct or indirect reproduction, temporary or permanent, whether on-line or off-line, in material or immaterial form.There would be an obligatory exception to the reproduction right for certain technical acts of reproduction dictated by technology but which have no separate economic significance of their own (such as certain 'cache' copies arising during transmission over the Internet).
In addition, Member States would have the option of allowing additional exceptions to the reproduction right for:
The market in "on-demand" services is one of the main areas of growth, with further technological developments to come. "On-demand" services are characterised by the fact that material stored in a digital format (such as texts, films, phonograms, software, or databases) is made available to the public or its individual members in such a way that they may access it and request its transmission individually with respect to time and place.
As the exploitation of works and other protected material in the context of "on-demand" services will, to a large extent, depend on EU-wide markets and a clear and coherent level of protection of these activities across Member States, the proposal would harmonise the rights applicable to "on-demand" transmissions.
Authors would enjoy the right of making their works available
to the public on-demand, from a place and at a time individually chosen
by the individual member of the public.
The list of permitted exceptions in the draft directive is exhaustive - in other words, Member States would not be allowed to apply any other exceptions than those explicitly listed in the Directive. This means that not only exceptions for the digital environment will be very restrictive to take account of new technologies and to further EU harmonisation but also that existing national exceptions of the analogue environment will be reduced to the listed few. In the WIPO Copyright Treaty 1996, Member States are given permission "to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Bern Convention" and the agreed statement to article 1.4 of the WIPO treaty states that "existing limitations or exceptions apply in case of electronic information and the new exceptions should be provided for if needed. The EU Directive which is also aiming at implementing the WIPO Copyright Treaty is more restrictive than international treaties.
The proposed Directive would leave all exceptions that are listed (except for one) purely as options to the Member States, they might or might not be implemented into national legislation. Exceptions would be entirely unharmonised and without guarantee that they will be translated into national law to ensure that exclusive rights are still balanced by some exceptions in the public interest.
Moreover, when applying the exceptions, Member States would have to limit them to specific cases and to respect the economic interests of rightholders. The WIPO Treaty imposes this "three-step-test (an economic prejudice test) to validate any exception to the copyright. The national tribunals will probably appreciate those terms in a various and different way but the European Court of Justice will give an univocal interpretation that will allow any distortion of concurrence between Members States.
All exceptions to copyright (except disability and library exceptions) are linked to fair compensation to rightholders. The precise form of such compensation (which may, but does not have to take the form of levies on copy shops, sales of blank tapes and equipment, as exist in most Member States) would be up to the Member States to decide in accordance with their legal traditions and practices.
The exemptions are allowed for the purpose of illustration for teaching and scientific research. The purposes are too restrictive. In conformity with the "three-step-test" condition of the Bern Convention, EBLIDA affirms that the article 5.3 must be revised allowing the members to have exceptions for the use and the copy of documents for purposes of education, formation, research and private uses according to the fair uses. The exceptions must be conform to the Bern Convention.
Another problem is the exact
definition of the mention "to the extent justified by the non-commercial
purpose to be achieved" in article 5.3. It is difficult to
qualify Research because there are links between academic and scientific
research with commerce and industry and it would be difficult to separate
what is commercial and what is not. Moreover, there is no proof that copying
insubstantial amounts for commercial research prejudiced the legitimate
interests of the rightholders or conflicted with a normal exploitation
of their works.
The proposal would confirm that the distribution right
shall be exhausted within the EU with the first sale or other transfer
of ownership within the EU of the original of their works or tangible copies
of them by the rightholder or with his consent (the principle of "Community
exhaustion"). Under this principle, once an author has agreed that tangible
copies of his work may be sold in one Member State, these copies can be
sold throughout the EU. Currently, some Member States consider the right
to be exhausted even if the ownership sold or transferred concerns territories
outside the EU ("international exhaustion").
What is an anti-copying and rights management system
Technical measures can both control access to and copying of material. With respect to access control, technical measures can be implemented at the on-line outlet (e.g., at the web site of an information provider) or at the receiver end (e.g., in a decoder or set-top box). Such measures can be regarded as protecting a service as well as the content provided by that service. In addition, access control measures can control a user’s access to a work after it has been acquired by the user (e.g., by downloading it from the Internet or by purchasing a CD-ROM). Such measures can control either initial access to the already-acquired work, or subsequent access (e.g., by making continued use of a product subject to payment and entry of a code).
With respect to copy control, various technical mechanisms are used to prevent users from making copies of works. A widely-implemented system is the serial copyright management system («SCMS»). This system, which was agreed upon by consumer electronics manufacturers and copyright owners, prevents the making of digital copies of a digital copy. In other words, SCMS systems allow one copy to be made of a work, but prevent copies being made of that copy Other technical measures effectively prevent the making of any copies of digital works.
The draft proposal gives a definition in article 6 § 3:
The expression "technological
measures" means any technology, device or component that, in the normal
course of its operation, is designed to prevent or inhibit the infringement
of any copyright or any right related to copyright. Those technological
measures shall be deemed "effective" where the access to or use of a
protected work or other subject matter is controlled through
application of (…) protection process which achieves the protection
objective in an operational and reliable manner with the authority
of the rightholders.
Draft proposal Directive
The proposed Directive would therefore require Member States to provide adequate legal protection against any activities, including the manufacture or distribution of devices or the performance of services, which would enable or facilitate the circumvention without authority of effective technological measures (such as application of access codes or decryption) designed to protect any copyright or related rights.
The European proposal goes an essential step further than the corresponding WIPO provision. It would prohibit not only acts of circumvention of technological measures, but also the manufacturing or selling of equipment that is suited for that purpose. Article 11 of the WIPO Copyright Treaty requires the contracting states «[to] provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights [...] and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.»
Similarly, Member States would have to provide adequate legal protection against any person who, without authority, removes or alters electronic rights management information or distributes, imports, broadcasts, communicates with the public or makes available copies to the public works or other subject matter from which the electronic rights management information has been removed or altered without authority.
The amended proposal for a Directive has taken on board the immensely important distinction between the circumvention of technical protection systems for lawful purposes and the circumvention to infringe copyright. Only this distinction ensures that technical blocks cannot stop legally permitted copying. The amended recital 30 recognises that circumvention should be prevented if done without authority but that the necessary authority could be either given by the rightholder or conferred by law. The new recital ensures thus that rightholders cannot unilaterally impose technical protection systems. Currently, the corresponding article 6 does not reflect this important principle.
(30) (…) there is a need to provide for harmonised legal protection against any activity enabling or facilitating the circumvention without authority, whether granted by the rightholders or conferred by law, of such measures;
.
Libraries have now entered a very different regime governing the way in which electronic information is distributed: the regime of the contract or the licence, which has now become the prevailing mode of publishers for authorizing the delivery of electronic information.
In the paper environment, the librarian buys books to
which its users have potentially unlimited access. Once bought, the book
is the library’s forever. Obviously, print information is governed by copyright
law. In the digital environment by contrast the librarian in many cases
is expected to buy access to the electronic copy for a specific period
of time and usage. Access is mostly bought via a licence. A licence is
a formal authority to do something which would otherwise be unlawful. Licences
are mostly regulated by contract law. Now electronic databases, journals,
and other electronic information from publishers and producers are then
accompanied by contracts, rather than governed by copyright law.
The licence, or the contract, is a different thing from copyright. Licencing means giving rights to use property without transferring ownership. Under the terms of a licence, the library, or the university, owns nothing at all, but it does have certain rights to use information in certain ways. In fact, in the networked environment, there is rarely a tangible artifact that one can own, particularly if the information is mounted on a remote site, for example a publisher's site. There is no object to own.
A licence is additionally an agreement negotiated between two parties: a willing owner (a willing publisher) and a willing customer, just as with one's apartment contract. The licence is thus very much a marketplace arrangement.
A licence is, furthermore, an agreement that describes absolutely every part of one's deal with an information producer: who can use the information, when they can use it, how they can use it, how much they can do with it. The licence describes the technology conditions that exist. The licence describes the price, the term of the contract and the kinds of promises that both parties make to each other about the deal. The degree of access to and use permitted of an electronic journal depends heavily on the terms and conditions negotiated in the licence for that specific product.
A licence is, most of all, a legal agreement. It binds
the two parties that sign it. It is signed by responsible parties who have
the authority to sign for the publisher and customer. Thus, librarians
these days have not only to understand how copyright works in relation
to printed and traditional material, but they are starting also to need
to understand how contract law works. A copyright owner (in many cases
the publisher) sends a licence agreement that is actually an invitation
to negotiate the terms and conditions under which the product(s) can be
used. Most of the licences are written by lawyers and the technical language
used puts many librarians off reading it.
Because these publishers believe that copyright law cannot control the re-distribution of information in electronic formats, and because librarians want to utilize electronic information in their institutions, the producer community has moved to using contracts instead of copyright law.
Publishers give two main reasons for licencing :
In theory, there is no reason why fair dealing and the library copying exceptions cannot be applied to information in digital format. The printed book or journal environment provided limited physical access over which control was exercised in accordance with long established protocols The problem is that digital technology has made it easier to make copies of protected works. Digital formats are readily accessible at any desktop at any time. They can easily be stored, reproduced, re-utilized and disseminated from anywhere to anyone in the world without loss of authenticity or quality. It allows for conservation and preservation of the library stock. Protected material is thus much more vulnerable. Publishers are thinking that potentially, unauthorized copies can be substituted for purchase and that the revolution in computer and telecommunications technologies requires a new consensus on the management of information in order to maintain the efficient flow of information from author to reader.
Furthermore, at the moment, there is no consensus yet at the US national level or at the European level about how copyright applies to electronic information. The publishers believe that current copyright law cannot control the re-distribution of information in electronic formats, and because librarians want to utilize electronic information in their institutions, the producer community has moved to using contracts instead of copyright law, so that the market will advance.
A director at the Publishers Association declares : "Copyright licencing has developed throughout the world as the main solution to problems caused by photocopying and electronic copying. (...) the system of copyright licencing will be the base on which we build a new electronic architecture".
Technical controls are another way to protect electronic
document. Electronic Copyright Management Systems (ECMS) such as encryption,
tagging, digital fingerprinting, data identifiers, watermarking etc. are
being perceived as the obvious answer to piracy. Depending on their sophistication,
these will be able to track and control movement of works in digital form.
They will also be used to prevent unauthorised access.
In the past, the ILL regulations guaranteed the necessary level of information for researchers and students. Even if the library was no longer able to subscribe to a journal for financial reasons it was accepted that it could provide a user on demand with a copy from a published work which was supplied from another library via inter-library loan.
Some publishers are now building large databases with "their" materials. Large publishing houses such as Elsevier, Springer, Academic Press et al. focus their production processes on the creation of electronic journals.
The trend in publishing is for "on demand delivery" of articles to individual users. Libraries have conducted this service for several years and have delivered articles to individual users by mail, fax and electronically. Currently, many information suppliers are specifically targeting end-users and offering them direct document access, retrieval and delivery.
The publishers are thus in direct competition with the ILL provided by libraries. At the ECUP meeting, the publishers have affirmed that "The electronic delivery of information significantly changes the commercial relationship between publishers and user groups. Electronic uses of copyright material will be facilitated by individual contracts between publishers and user groups, including librarians. Such contracting will allow for Electronic Document Delivery (EDD) directly from publishers to users and this excludes Inter-Library EDD carried out in the name of ILL. One way forward might be the development of a model contract between publishers and user groups". For them, ILL should be treated in the same way as Electronic Document Delivery and should not be a free activity. In other words, they think that ILL should not be recognised in an electronic environment.
Although there exists no empirical evidence that fair
use causes material or undue harm to providers, many information providers
nonetheless are seeking to discontinue the well-established principle of
fair use, and they are using the new electronic environment as the reason
and means to do so. They consider that they are in an economic competition
with libraries.
3. Current trends - the licence models
There is still a wide variation of practices in the licencing of e-journals.
The starting point was the UK’s PA/JISC model licence, jointly developed by publishers and librarians from the Publishers Association and the Joint Information Systems Committee of the Higher Education Funding Councils. It was a vital source of format, concepts and model provisions for other licence models.
During 1998 and 1999 Swets has been very active in the area of licences for e-journals, in particular through its involvement in NESLI, the National Electronic Site Licence Initiative, in which Swets is a joint partner with Manchester Computing in the role of NESLI Managing Agent. Swets has negotiated with a number of publishers, on behalf of NESLI, using the model licence used for NESLI which was based on the PA/JISC licence.
The leading subscription agents (Swets, Blackwell's, Dawson,
EBSCO and Harrasowitz) have cooperated to create a suite of generic standard
licences for electronic journals. The licences are intended to help publishers,
subscription agents and libraries to create agreements that express what
they have jointly negotiated. They do not prescribe the outcome of negotiations,
but are designed to account for the varying needs of different types of
customers, and the requirements and policies of different publishers. They
are international in application and are the result of consultation with
librarians, publishers as well as the subscription agents. The licences
are voluntary-based and open to anyone wishing to adopt them, as they are
in the public domain. They are available on the website: http://www.licencingmodels.com.
4. Electronic Copyright Management Systems (ECMS)
Concerns over the effectiveness of the copyright system in a digital environment have inspired rightholders to look for alternative protection regimes or strategies. Beside contract law, ECMS is also a potential substitute for the copyright regime. Technological measures will be applied mostly in combination with contract. The measure constitutes both the starting point and the final touch to the contractual relationship between information provider and consumer. The combination of both instruments poses a direct threat to the copyright system.
ECMS are technical solutions to add extra protection to back up digital copyright works. They are being perceived as the obvious answer to piracy. Depending on their sophistication, these will be able to track and control movement of works in digital form. They will also be used to prevent unauthorised access. The library community is concerned about the effects of technical controls used to underpin copyright protection.
With technical measures the most difficult issues concern the relationship between «anti-circumvention» legislation and copyright limits and exceptions. Technical measures can of course be employed to control acts that infringe copyright but they can also control acts that cannot be restricted through copyright. Technical measures can prevent, for example, acts that would be permitted under copyright exceptions for purposes of scientific research, news reporting, and archival storage. Sometimes right owners will have a natural incentive to employ technical means to control acts that they heretofore have not been able to control through copyright because in many cases the same technical measure might restrict both infringing and non-infringing activities. Such controls could be used to demand a high price for information access. Used in this way, it could mean an abuse of a monopoly besides being dangerous to have total control over any information.
In any event, any prohibition on acts of circumvention should be limited to circumvention for purposes of infringement. This will ensure that the contours of any anti-circumvention prohibition will be conformed to those of copyright law. Under this approach, anyone who circumvented a technical measure for purposes of making and distributing unauthorised copies of a work would breach not only copyright law, but also the contiguous prohibition on circumvention for purposes of infringement. On the other hand, someone who disabled a technical measure to facilitate the making of a copy permitted by law -- for example for purposes of engaging in acts permitted by a scientific research exception -- would fall outside the prohibition. In short, by prohibiting the disabling of a technical measure for purposes of facilitating an act restricted by copyright, but not prohibiting circumvention for purposes of facilitating a permissible act, legislators would respect the boundaries of copyright.
The European amended
proposal has taken on board the immensely important distinction between
the circumvention of technical protection system for lawful purposes and
the circumvention to infringe copyright. Only this distinction ensures
that technical blocks cannot stop legally permitted copying. The amended
Recital 30 recognises that circumvention should be prevented if done without
authority but that the necessary permission could be either given by the
rightholder or conferred by law.
III Copyright versus Licencing
In the digital environment, access to the electronic periodicals is bought via a licence which is regulated by contract law. The introduction of contract law to regulate the use of digital resources has focused on the question of the status of copyright exceptions.
In contract law information producers, intermediaries and end users are free to create their own rules, without government intervention. However, freedom of contract may become contractual coercion, especially when dominant undertakings abuse their market power to impose contractual rules.
Copyright exceptions were introduced in first place to balance the monopoly of the rightholders to safeguard access to information in the public interest without having to ask every single time for permission, and to be able to copy a reasonable amount of a work that would not be in conflict with the normal exploitation of that work. It is therefore essential that copyright exceptions are kept in the digital world as they ensure that licences can be agreed between a rightholder with almost exclusive rights and a user being able to rely on at least a few fair practice exceptions that are guaranteed by law.
In fact, at the moment, the large-scale application of contracts is disturbing the delicate balance between intellectual property and information freedom, because the rightholder's intention is now to replace all legal copyright exceptions with negotiated licence agreements.
Assuming that contracts
concluded over the Internet are valid in principle, the question arises
whether the terms of these user licences can override the statutory limitations
of copyright. Does an information producer have the right to contractually
subject a user to restrictions that go further than copyright law prescribes?
Can, e.g., the licence prevent the user from copying the work for private
purposes, or to make copies for educational or scientific purposes?
2. Can Copyright Limitations Be Overridden by Contractual Agreements under European Law
The overridability of copyright limitations is a bigger problem in the digital environment than in the analogue world, where everyone relied on copyright law to set the limits of permitted action. The question of the overridability of Copyright Limitations by Contractual Agreements is currently the object of much attention in the United States, where this question has already led to extensive legal discussions, case law and even legislative initiatives. In Europe, the discussions have only recently begun. This difference between US and Europe may be due to the fact that copyright rules are not subject to constitutional pre-emption in any of the Member States, and no provision similar to paragraph 301 of the U.S. Copyright Act has been enacted as a consequence.
However, the European legislature has already expressly enacted copyright limitations of a mandatory nature. In rare cases, the legislator has avoided possible conflicts between contract law and copyright law by expressly providing that copyright rules have precedence over any contractual provision to the contrary. This is the case of the directives on computer programs and databases, which both contain provisions stating that contractual provisions, which prevent users from accomplishing specific acts allowed therein, are null and void.
But besides the rights given to users under the Computer Programs Directive and the Database Directive, the question of overridability of user freedoms has been the object of little attention from legislators and authors in Europe. Moreover, whereas both of these directives specify which exemptions may not be set aside by contractual agreement, the Proposal for a Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society keeps silent on this issue.
In its Explanatory Memorandum, the Commission puts much importance on contractual relationships, as a means for information producers, intermediaries and end users to determine directly the conditions of use of protected material generally through the negotiation of licences between rights owners and users. Under any one of the legal systems in force in the Member States, freedom of contract is the rule, and contractual restraints the exception.
The Recital 29a specifies : that the exceptions are limited to "certain specific cases and that global solutions must be sought within the framework of the contractual relations between the parties concerned". And Recital 29 bis specifies that "the exceptions referred to in Article 5(2) and (3) must not, however, prevent the definition of contractual relations designed to ensure fair compensation for the rightholders".
As the Legal Advisory
Board pointed out in its Reply to the Green Paper, ‘there is good reason
to expect that in the future much of the protection currently awarded to
information producers or providers by way of intellectual property, will
be derived from contract law’. However, there is also reason to fear that,
without appropriate contractual boundaries, users may be forced to forego
some of the privileges recognised by law, in order to gain access to protected
material.
3. Contract and copyright limits
Whether under the copyright regime or the droit d’auteur regime, parties to a contract are generally free to negotiate the content, nature and scope of any copyright licence agreement, as long as they remain within the bounds of public order. A contract whose object is prohibited by law or contrary to public order is null. However, norms of public order take many faces and vary from one country to another. The question is then whether the copyright limitations that are identified as imperative rules constitute public order norms around which parties may not contract
Lucie Guibault declares that "In her opinion, limitations based on the universally recognised notions of protection of constitutional rights and freedoms, such as the right to make reproductions for purposes of study or research, undeniably constitute imperative rules of copyright law whose application should not be waived by the parties to a contract. Contractual agreements preventing users to make reproductions for such fundamental purposes would, in our opinion, violate article 10 of the European Convention on Human Rights." However, in the same text she specifies that "in contrast, we submit that restrictions implemented in favour of schools, libraries, archives and museums should not be immune to contractual overrides. Because, in the digital environment, the involvement of public libraries in the sphere of electronic document delivery is increasingly considered as coming in direct competition with the services of publishers or other commercial information providers, thereby affecting the normal exploitation of works and the legitimate interests of rightholders".
In the current amended proposal of the European directive on copyright, all the exceptions outlined are subject to the so-called three step test meaning exceptions allowed only for "certain specific cases and shall not be interpreted in such a way as to allow their application to be used in a manner which unreasonably prejudices the rightholders’ legitimate interests or conflicts with normal exploitation of their works or other subject matter.". Publishers have started to set up electronic document delivery services themselves. It is thus possible that they use this directcompetition with the "normal exploitation" of the work as an argument to limit the exceptions allowed to libraries in the directive.
Even the ECUP Steering Group recognises that the term "normal exploitation of a work" must be interpreted, when "in an electronic environment, a library service does not compete with a similar service or product obtainable from the publisher", that means for instance that " if a library wants to digitise material which is already obtainable in electronic form from the publishers, or when the library delivers to a remote user an article which the user could have obtained from the publisher, it is in conflict with the normal exploitation of a work. However, it adds that "being in conflict with the normal exploitation of a work should not imply that libraries cannot provide the service. It simply means that the library has to pay royalties to the copyright owners for the material sent to the users".
Because there is only little information currently available on the true economic impact of the activities of public libraries on the electronic exploitation of protected works, it is difficult to determine the proper form and scope of any possible limitation intended to benefit public libraries with respect to the digital environment. Ultimately, such a limitation, if needed at all, would have to take into account the interests of the rights owners, as well as the information and cultural policies at the root of the public library system. In the meantime however, many believe that the existing limitations should not apply in the case of electronic document delivery, which would therefore be subject to the rights owner's authorisation. This is in fact the position adopted by the European Commission in relation to the current draft of the Proposal for a Directive.
As we have said, the draft directive allowed Member States to exempt « certain acts of reproduction from the reproduction right to the benefit of establishments which are accessible to the public, such as public libraries ». The amended draft Directive restricts those acts to only « archiving and conservation purposes » while the European Parliament requested a restriction for « documentation and conservation purpose » Anyway, both provisions are too narrow and do not cover essential user services such as indexing or copying for interlibrary loan.
Further, in the Recital
28, it is specified again that : « This recital encourages the development
of contractual arrangements for activities not covered by the exception
introduced for the benefit of establishments such as libraries and other
cultural establishments.
The aim of the Directive is and the exception for library are obvious, but the service supplied by the Inter-Library Loan department can also argue another exception allowing reproduction for purpose of illustration for teaching and scientific research. However, the purposes in this exception could be too restrictiveand the "three-step-test" condition of the Bern Convention is also applied on this exception. Moreover Recital 29 that points out that "global solution must be sought within the framework of contractual relation" is also valid for this exception.
Anyway, at the moment, the rightholders may argue that the Directive makes no express mention of the mandatory nature of the copyright exceptions – there is no article similar to Article 15 of the Database Directive that ensures that any contractual provisions contrary to these exceptions shall be null and void - and . Lucie Guibault points out that "Before deciding whether to enforce such a contract against a particular user, it is quite conceivable that a court would first examine whether this contractual agreement runs contrary to established copyright policy and whether its enforcement would be in the public interest. In practice, the court may be further influenced by the fact that the obligations derive from a fully negotiated agreement or from a standard form contract. A court may also confer different weight to the several copyright limitations, as a result of an analysis of their grounds for adoption and a review of the public policy at stake".
Finally, we have to mention that the current draft Directive is aware of those kinds of problems and would like to prevent some of those problems on an European level :The Recital (29ter) says:
As we have said every electronic document delivery service conducted by libraries can be considered as in direct competition with the "normal exploitation" of the work as laid down in Art. 9 (2) of the Bern Convention. However, some persons consider that being in conflict with the normal exploitation of a work should not imply that libraries cannot provide the service, but that it simply means that the library has to pay royalties to the copyright owners for the material sent to the users.
The European amended proposal Directive imposes now that "the rightholders receive fair compensation" to compensate for their prejudice in the case of reproduction on paper, private copying and illustration for teaching and scientific research. The precise form of such compensation would be up to the Member States to decide in accordance with their legal traditions and practices.
If the rightholders receive fair compensation, they will not call up the "three steps" anymore to unauthorised the ILL with their electronic journals. But this situation has some limits : the new system could be seen as a kind of pay-per-view system because compensation will be asked for each consultation or each communication.
With the directive, even in the absence of a licence, nothing can be looked at, read, used or copied without permission or additional payments (fair compensation in case of exceptions). Consequently The library would have to ask permission, or pay extra (even for a non-commercial purpose):
With the new Directive the library
user could be forced to pay-per-view for digital information that he or
she would get now free of charge in the library. Libraries will pay via
a licence for the right to make digital information available for their
normal users, like they are paying now for books and journals which they
also buy to make them available for their users.
4.2. New article in the Directive
At the moment, there is no provision in the new European Directive that would ensure that contract law cannot override copyright law. The Directive needs thus mandatory exceptions and a new article similar to Article 15 of the Database Directive that ensures that any contractual provisions contrary to these exceptions shall be null and void. Mandatory exceptions could then not be ignored in contract or licence agreements. In the European countries it allows access to information held in copyright works without having to always ask for permission and to allow fair copying for private, educational and research purposes that cannot be wiped off by contracts. Currently, the proposal directive is defending another politic : it says that " the exceptions referred to in Article 5(2) and (3) must not, however, prevent the definition of contractual relations designed to ensure fair compensation for the rightholders".
With the new Directive
the library user could be forced to pay-per-view for digital information
that he or she would now get free of charge in the library. Libraries will
pay via a licence for the right to make digital information available for
their normal users, like they are paying now for books and journals which
they also buy to make them available for their users. Library users should
not have to ask every time for rightholders' authorisation if they wish
to use digital information offered in a library, and fair practice copying
should be possible. The mission of a library to collect, organise and maintain
materials for future generations and to provide access to information to
everybody regardless of his or her financial means must not be undermined.
If the new Directive does not provide wording that ensures that contracts cannot be able to override exemptions, Ecup members advise to negotiate licences to incorporate the following clause:
Finally, if no solution can be found, libraries have to pay attention to the law chosen for the interpretation of the licence and the court chosen for submitting a claim against the Publisher or the Library. The Rome Convention of 1980 governs the legal question concerning contractual obligations. First, it grants the parties freedom of choice regarding the law applicable to their relations, and in the absence of choice, it stipulates that "the contract shall be governed by the law of the country with which it is most closely connected." "It shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence." The law thus chosen will apply without prejudice to the principles of the Treaty, in particular the principles of free movement of goods and services.
The choice of the law
is a fundamental clause of the contracts. In most licences it is the law
that is most suitable for the Publisher. From a perspective of cost, it
is advisable that libraries amend this clause to the law and the court
that is most convenient for them. It can be difficult to end up using US
law for the interpretation of the licence and having to go to a US court
to advocate the case.
IV
Legislative Developments Concerning Encryption
In this part of WP3 we look at the developments in the legislation concerning encryption. First we will have a look at the international laws and directives; then at the regional developments in the European Union.
We are concerned by the legislative aspects of encryption because we want to know whether we are violating the law and because we want to have a background if we decide one day to use encryption technologies.
At this time the VirLib
system does not use cryptographic methods to authenticate the users nor
to protect the integrity of the document. For the authentification of the
users VirLib uses IP-filtering in combination with a login and password.
The integrity of the document is not really protected but the document
contains a copyright notice that appears only when the document is transmitted
through VirLib-Impala. The privacy of the end users is preserved by the
use of "dynamic" URLs, each newly delivered document has a URL based on
two random numbers. In addition none of the documents is accessible for
more than two months. The technical aspects concerning the authentification
of users and document integrity are treated in the last part of this workpackage.
1.
International laws and directives
COCOM (Coordinating Committee for Multilateral Export Controls) was an international organisation for the mutual control of the export of strategic products and technical data from country members to proscribed destinations. It maintained the International Industrial List and the International Munition List.
This organisation allowed export of mass-market cryptographic software, including public-domain software, since 1991. The main goal of the COCOM regulations was to prevent cryptography from being exported to dangerous countries, export to non-dangerous countries was usually allowed, although states often required a licence to be granted.
Most member countries followed this regulation except for the US who maintained separate regulations.
In March 1994 COCOM was dissolved.
The so-called Wassenaar Arrangement is an arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. Dual-use goods are goods that can be used for both civil and military purposes. Certain cryptographic products, along with other technology are stated as such.
This arrangement was adopted on 11-12 July 1996 by a group of 33 industrialized countries.
The General Software Note excepted mass-market and public-domain crypto software from the import/export controls. Australia, New Zealand, Russia and the US did not apply this Note and control the export of mass-market and public-domain crypto software. There is a personal-use exception allowing the export of products when they are accompanying their user for the user's personal use (e.g. on a laptop). Also it seems that export via the Internet is not covered by the Note.
The Wassenaar Arrangement has been revised in December 1998. As a result the General Software Note is submitted to some restrictions but there are some relaxations to e.g. export of products that use encryption to protect intellectual property.
The arrangement states that participing
States agree to control dual-use goods "with the objective of preventing
unauthorised transfers of those items". In addition they agree to exchange
information "in order to consider, where necessary, the scope for coordinating
national control policies to combat these risks".
The OECD (Organisation for Economic Co-operation and Development) Recommendation concerning Guidelines for Cryptography Policy of March 1997 is often mentioned as a basis for legislation concerning encryption, on regional as well as on national level. The Recommendation is a non-binding agreement that identifies the basic issues that countries should consider in establishing cryptography policies at the national and international level.
The guidelines are based on some considerations concerning the rapid development of the global information and communication network and it's important impact on the worldwide economic development. The users of information technology must have trust in those infrastructures, networks and systems; and in the confidentiality, integrity, and availability of data on them; and in the ability to prove the origin and receipt of data. Because of the vulnerability of the data to threats to its security it is important to ensure the security of data through legal, procedural and technical means. The guidelines recognise that cryptography can be an effective tool for the establishing of a secure network by providing authentication and non-repudiation mechanisms for the data on it. In addition cryptography has a variety of applications related to protection of privacy, intellectual property, electronic commerce, etc. They include the need for law enforcement and public safety, but also the need for compatible encryption policies as part of interoperable networks.
The 8 principles are :
Some see the OECD principles as a
victory for privacy over US key recovery, but the principles are vague
enough to allow a broad interpretation, and states can choose a privacy-oriented
or a law-enforcement-driven policy as the principles do not endorse nor
prohibit key recovery.
The WIPO (World Intellectual Property Organization) Copyright Treaty of December 1996 does not deal with copyright as such. However, it contains a provision concerning "technological measures".
Art.11: Obligations concerning Technological Measures:
"Contracting Parties shall provide
adequate legal protection and effective legal remedies against the circumvention
of effective technological measures that are used by authors in connection
with the exercise of their rights under this Treaty or the Bern Convention
and that restrict acts, in respect of their works, which are not authorized
by the authors concerned or permitted by law."
Uncitral is the United
Nations Commission International Trade Law. During the Vienna session of
8-19 February 1999, the working group on electronic commerce discussed
the legal issues concerning electronic signatures and certification authorities.
The proposed articles stay vague and even if this note is meant to harmonize
the regularisation it also states that any final decision is in hand of
the national law.
2.
European laws and directives
2.1. Criminal Procedure Law Connected with Information Technology
With the Recommendation R(95)13 Concerning Problems of Criminal Procedure Law Connected with Information Technology, the Council of Europe stated that "measures should be considered to minimise the negative effects of the use of cryptography on the investigation of criminal offenses, without affecting its legitimate use more than is strictly necessary". Nevertheless there is no mention of which measures nor how the balance could be found in the "conflict of interests between the needs of the users and law enforcement".
The recommendation
also states that "specific obligations should be imposed on operators of
public and private networks that offer telecommunications services to the
public to avail themselves of all necessary technical measures that enable
the interception of telecommunications by the investigating authorities"
and "specific obligations should be imposed on service providers who offer
telecommunication services to the public, either trough public or private
networks, to provide information to identify the user, when so ordered
by the competent investigating authority".
2.2. Export/import control of dual-use goods
The EU Council Regulation (EC) 3381/94 [ amended by (EC) 837/95 ] and EU Council Decision 94/942/CFSP [ amended by (EC) 98/232/CFSP and (EC) 1999/193/GASP) ] regulate the export of dual-use goods, including cryptography and state that all Member States recognize the same list of dual-use goods, destinations and guidelines and agree on a common level of export control throughout the Union.
In general, they state that a licence is needed for the export of crypto hardware and software outside the European Union, excepted for mass-market and public-domain software. According to Bert-Jaap Koops the Council Decision 1999/193/GASP of 9 March 1999 (in force since 18 April 1999) states that "mass-market crypto can be exported within the EU on a general licence, without restrictions on key length".
During a transitional period a licence procedure was needed for intra-Community trade of encryption products.
The EU Proposal for a Council Regulation setting up a Community regime for the control of exports of dual-use goods and technology [ COM(1998) 257 final ] states that there is not enough stimulation of a convergence of national policies and practice. The main change for cryptography in this proposal is that for the export of cryptographic products within the EU the licences should be replaced by simple notifications and that controls should include the export through intangible means.
According to the proposal
the regulation was to be replaced by 1 January 1999. As far as I know the
EU had not yet reached an agreement on the proposed new Dual-Use Regulation
by January 2000.
2.3. Public Confidentiality Services
The draft Green Book on the Security of Information Systems from 1993, contains the requirement for "Public Confidentiality Services".
A draft proposal on a Europe-wide network of Trusted Third Party Services states that the provision of certification services should be done by private Trusted Third Party Services. This draft proposal drew attention to a public key infrastructure, but also dealt with the legal access problem through key recovery.
The EU Council Resolution
on the lawful interception of telecommunications (96/C329/01) contains
a requirement for network operators and service providers using cryptography
to provide intercepted communications to law enforcement agencies "en clair".
2.4. Electronic/Digital Signatures
The Communication from the Commission "Towards A European Framework for Digital Signatures And Encryption", [COM(97)503], states the need for secure electronic communication by providing authentication and integrity by using digital signatures.
"In order to make good use of the commercial opportunities offered by electronic communication via open networks, a secure and trustworthy and trustworthy environment is therefore necessary. Cryptographic technologies are nowadays widely recognised as the essential tool for security and trust in electronic communication. Two important applications of cryptography are digital signatures (authentication and integrity) and encryption (confidentiality)."
The Communication describes the tasks of certification authorities (certificates and key management), the need for mutual recognition of certificates issued by foreign certificate authorities and the legal problems. The most important one results from the different national rules and regulations, in particular the absence of common requirements for certification authorities, of technical and operational requirements to be met by certain categories of digital signature products, of liability rules and legal recognition of digital signatures.
This Communication drew attention to the need for harmonisation of legislations concerning digital signatures and encryption.
The proposal for a European Parliament and Council Directive on a common framework for electronic signatures, [98/0191 (COD) / COM(1998)final)], of May 1998 is the realization of the above mentioned Communication, it was formally adopted on the Council session of 30 November 1999. The main elements of the directive are :
Export/import controls
Belgium requires a licence for exporting
cryptography outside the Benelux. Belgium has signed the Wassenaar Arrangement
including the General Software Note.
Domestic laws and regulations
In January 1996 Belgium noticed that it had a law that may prohibit the use of non-escrowed encryption. In December 1997 this law was amended to expressly allow the use of encryption. The provision of indicated encryption services is in the hands of the Belgian Institute of Post and Telecommunications.
May 1997 "Framework for digital signatures"; the aims of this framework :
June 1998 "Modification du droit de la preuve". This modification states that a document with a digital signature is an original when it is proved that the integrity of the content of the document has been preserved.
In March 1999 the Belgian Government adopted an "avant-projet de loi" concerning the certification authorities with regard to the digital signature. The proposed technology to be submitted to a regulation is the technique based on asymmetric cryptography combined with the utilisation of a certificate delivered by a recognized certification authority.
The certification activity is free,
the agreement of the certification authority is not obligatory but the
"avant-projet de loi" only concerns recognized certification authorities.
Following the situation in Belgium
we had a look at the legislation in the other countries using Impala. These
countries are France (INIST), Germany (Zentral Bibliothek Medizin), the
Netherlands (NIWI, TUD) and the United Kingdom (BLDSC).
Export/import Controls
France has signed the Wassenaar arrangement for export controls, with the exception of the General Software Note.
The import and export of cryptography from countries outside the European Union and the European Economic Area is regulated according to the law of 26 July 1996 and the decrees of 24 February 1998 and 17 March 1999 implementing it. The import from within the European Union and European Economic Area was free.
Import and export of cryptography which cannot be used for confidentiality requires prior declaration. For temporary export of cryptography used exclusively for personal use by an individual, a user declaration will serve as export declaration. In case of a sample, a delivery declaration will serve as temporary export declaration.
For import and export
of any other kind of cryptography a licence is needed for each exportation.
| Functionality | No formalities required | Declaration required | Authorisation required |
| Authentication | Use, Import, Export | ||
| Confidentiality crypto with key length up to 40 bits | Use, Import | Supply | Export (?) |
| Confidentiality crypto with key length of 40-128 bits | Use, Import
(if only for private use) |
Supply, Use, Import
(if for not private use) |
Export |
| Crypto-soft using analogue techniques | Use, Import, Export | Supply | |
| Various specific applications
in which
the cryptography cannot be used by the user for encrypting data |
Supply, Use, Import, Export | ||
| Crypto accompanying foreigners on official invitation | Use, Import, Export | ||
| other | Supply, Use, Import, Export |
Domestic laws and regulations
France has restricted the domestic
use and supply of cryptography for a long time but on 19 January 1999 the
French Prime Minister announced the liberalisation of domestic use of cryptography.
This came true according the above mentioned decrees of 17 March 1999.
Export/import controls
Export is regulated according to the EU regulation and the Wassenaar Arrangement, in the regulations as amended according to the General Licence Nr. 16 (pdf text in German, published in the Bundesanzeiger of 31 August 1999, in force since 1 September 1999 (earlier version in Bundesanzeiger 32a of 15 February 1997)).
A press release of 27 August 1999
of the Ministry of Economic Affairs specified the new export controls,
which stated that export controls for mass-market cryptography are limited
to the absolute necessary. Mass-market crypto export within the EU has
already been liberalized by the EU. Except for export to a few countries
or for sensitive (military) applications, companies can now decide themselves
whether a product falls within the category of mass-market crypto for which
a general licence suffices. There is no general requirement to declare,
but exporters must be able, when requested, to hand over the specifics
of exports. When in doubt, the Federal Export Agency (BAFA) will help (see
address list).
Developments to restrict cryptography
On 2 June 1999, the German government announced its "Corner points of the German crypto policy" (Eckpunkte der deutschen Kryptopolitik). There are five cornerstones.
Export/ import controls
The Dutch government adopted the Wassenaar rules, including the (pre-December 1998) General Software Note.
The applicable regulations are the 1962 Law on Import and Export and the Decree on Export of Strategic Goods and its Annex. The regulations do not control export through electronic means, nor, it seems, export to Belgium or Luxembourg.
The licencing authority is the Afdeling
Exportcontrole en Sanctiebeleid of the Ministry of Economic Affairs. Technical
details of licence applications are reviewed by the Nationaal Bureau voor
verbindingsbeveiliging.
Domestic laws and regulations
If encrypted information is found
in a computer during a house search, the police can order anyone who can
reasonably be supposed to know the means of encryption to decrypt the information
(article 125k section 2 DCCP). The command cannot be given to a suspect
(article 125m DCCP).
Developments to restrict cryptography
In March 1994, a Dutch predraft law on cryptography leaked out, the drift of which was a prohibition of having, using, or trading strong cryptography. The government wanted to restrict cryptography in order to maintain the capability of tapping all possible communication channels. Only those with a "legitimate concern" could apply for a user licence or a trade authorization. One condition for granting a licence was giving information to an administration agency; the text did not state whether this information concerned only the algorithm or also all the keys used.
After many protests from those who would be affected by the proposed regulation, it was withdrawn. The Dutch authorities are currently studying on alternatives to handle the issue. Although the draft regulation will not be continued in its present scope, it shows how much the judicial authorities fear wide dissemination of strong cryptography.
At a December 1996 public debate
on cryptography, representatives from the Ministries of Economic Affairs,
Transport (responsible for telecommunications) and the Interior clearly
were in favour of the use of a key-escrow scheme, in line with (their interpretation
of) the OECD discussions. Such a scheme would initially be voluntary and
left to market self-regulation. However, the Ministry of the Interior official
(responsible for national security) stated that, although he did not think
primarily of legislation, in the long run, use of non-escrowed encryption
could give rise to (criminal) suspicion by law-enforcement, thus effectively
mandating escrowed encryption.
Decryption command, Computer Crime II
One proposal for further regulating
cryptography was announced in the November 1996 update report on Electronic
Highways: the present decryption command would be extended to cover encrypted
telecommunications as well. This new power is given shape in the draft
Computer Crime Act II, submitted to parliament in July 1999 (TK 26 671).
Thus, if the police encounters encryption in a wiretap, they could command
the conversing parties to assist in decrypting. In the draft new Law on
Intelligence and Security Services, a similar power would also be granted
to the national security agencies. Initially, the draft Computer Crime
Act II (version of January 1998) also proposed to extend the power of the
police to demand decryption to be given to suspects, in case of serious
evidence against the suspect and if this is urgently necessary for finding
the truth. After protests from the legal community against this infringement
of the privilege against self-incrimination, this provision was deleted
from the draft.
Trusted Third Parties policy
The government is working on a policy
on Trusted Third Parties. A document on TTPs, Nationaal TTP-project, was
submitted to parliament on 3 June 1999 (TK 26 581) (text in Dutch). This
sets a framework for TTPs, proposing a number of preconditions for TTPs
who want to be part of a national TTP Chamber. For TTPs offering confidentiality
services, there is a precondition of "legal access", but the document is
not particularly clear on what this entails. There is not a particular
requirement for confidentiality TTPs to store or recover private user keys.
For legal access, a "partnership approach" of government and industry should
develop a "set of instruments acceptable to all parties" that ensures government
access to encrypted data. "If industry does not participate sufficiently
actively in developing said set of instruments, the government will emphatically
consider to fulfil the need for legal access with further legislation."
The TTP policy is being implemented in a project called TTP.NL, with representatives
of government and industry, which performs several pilot projects.
Developments favoring cryptography
The government's policy document
"Legislation for the electronic highway", of 12 February 1998 (TK 25 880),
affirms that one of the premises to be balanced in establishing law enforcement
powers is that the use of cryptography will remain free. The draft Computer
Crime Act II (submitted to parliament in July 1999 (TK 26 671)) contains
a provision which would enable the police to "seize" data by making them
inaccessible; one means of doing so would be for the police to encrypt
the data on the computer of the holder.
Export/import controls
Export is controlled in accordance with the EU dual-use regulation (SI 1996/2721) and the (pre-December 1998) Wassenaar Arrangement. This includes export of crypto software to other EU Member States. Crypto export by intangible means (i.e., over the Internet) is not covered by the regulation and is therefore free, if one does not export to embargoed countries and conforms to the Official Secrets Act (copyright, patents, and contracts). The Department of Trade and Industry (DTI) advises to apply for a licence anyway, and to consult a lawyer. In July 1998, DTI released a White Paper on Strategic Export Controls, which at 3.2 proposes to extend the controls on exporting crypto software to intangible transfers. Under such a policy, also exports by fax and email should fall under the export controls. The text of the current regulation can be downloaded at DTI's Control List page.
There is a personal-use exemption through the Open General Export Licence of 20 January 1998 for crypto goods. This allows "anyone who wishes to export cryptographic systems for use with personal computers or laptop computers for their own use to do so. The goods must accompany the user. The Licence does not allow the export of goods that has a facility for encryption or decryption of on-line voice communication."
At the OECD meeting of December 1995, Nigel Hickson of DTI stated that export controls for approved products should be lifted. The policy Paper on regulatory intent concerning use of encryption on public networks of June 1996 announces that export controls will remain in place, but that the government would try to simplify export controls for encryption products used by licenced TTP's. This announcement was repeated in the Consultation Paper of 19 March 1997 on Licencing of Trusted Third Parties for the Provision of Encryption Services. In the April 1998 policy announcement, DTI commits itself to working internationally on the "updating and streamlining" of export controls, and this is repeated in the March 1999 consultation document.
The House of Commons Trade and Industry Select Committee, in its report of 18 May 1999 on this consultation document, recommended "that the Government consider the case for a review of the rationale for the continuation of export controls on cryptographic products, in the light of their widespread availability, and the procedures by which such controls are implemented."
The 1996 House of Lords Agenda for
Action (at 6.39) wants the government to join other EU states in putting
pressure on the US government to relax its export controls.
Domesic laws and regulations
No.
Developments to restrict cryptography
1999 Draft Electronic Communications Bill
On 23 July 1999, the government published a draft Electronic Communications Bill, together with a new consultation document "Promoting Electronic Commerce. Consultation on Draft Legislation and the Government's Response to the Trade and Industry Committee's Report" (comments invited until 8 October 1999), which also contains the Explanatory Notes to the draft Bill.
Article 10 of the draft bill contains a power to require disclosure of a crypto key. For encrypted material lawfully obtained, a written notice can be given to a person who appears to be in the possession of the key, to provide the encrypted information in intelligible form (that is, in the condition in which it was before any encryption or similar process was applied to it), or, if the notice explicitly orders so, to disclose the key. A notice cannot require disclosure of keys intended only for authentication that have not in fact been used for other (i.e., confidentiality) purposes. The notice needs to be authorized by the appropriate authority (depending on the powers under which the encrypted material was obtained), such as the Secretary of State, a judge, or a senior police officer.
Failing to comply with such a notice is an offence punishable with up to two years' imprisonment. It is a defence to show that you do not have the key, if you give sufficient information to enable possession of the key; likewise, it is a defence to show that it is not reasonably practicable to disclose the key, if you show that you provided it as soons as this was reasonably practicable.
If the notice to provide a key requires secrecy of the giving of the notice, of its contents and of the things done in pursuance of it, tipping off someone about this is punishable with up to five years' imprisonment (with several defences, such as informing a legal adviser). Various safeguards are proposed to limit the use of the keys obtained through a notice. A Code of practice will be issued about the exercise of this power, and a Commissioner will be appointed to oversee the use of this power.
The government also decided to establish a Technical Assistance Centre, which helps law enforcement, among others, in gaining access to decryption keys under proper authorization.
Although key escrow is not contained in the draft bill, concerns were raised that a key-escrow requirement might feature in secondary legislation, as a condition for approval as a Registered Cryptography Service Provider.
Because of the many critical reactions
to the crypto proposals, the decryption power provisions were lifted from
the Electronic Communications Bill in November 1999, in order to be reinserted
in the Regulation of investigatory Powers Bill.
2000 Draft Regulation of investigatory Powers Bill
On 9 February 2000, the draft Regulation of investigatory Powers Bill was presented to the House of Commons. Part III contains the decryption-power provisions that were lifted out of the draft Electronic Communications Bill (see above), with a few modifications. The new proposal adds proportionality and goal requirements (required to comply with the European Convention on Human Rights), stating that the decryption command must be necessary for national security, crime prevention or detection, or for the UK's economic well-being, or must be likely to be of value for the exercise of a statutory power.
The penalisation of not complying
with the decryption order is extended with the requirement that a person
is guilty only if he has or has had possession of the decryption key. (As
I read it, this means that the burden of proof lies with the Prosecutor
to show that the addressee (at one time) possessed the key, while (presumably
after this has been argued) the burden of proof to show inability to decrypt
lies with the addressee.) The tipping-off offence is limited by adding
that the police can only require secrecy if the police obtained the encrypted
material at stake through a means that it is reasonable for law-enforcement
to keep secret.
Bert-Jaap KOOPS, "Crypto Law Survey", revised version of October 1999
http://cwis.kub.nl/~frw/people/koops/lawsurvy.htm
"The Law and Practice of digital encryption", Institute of Information Law, Amsterdam 1998
http://www.imprimatur.alcs.co.uk/IMP_FTP/encryption.pdf
"Cryptography and Liberty 1999 - An International Survey of Encryption Policy"
http://www.gilc.org/crypto/crypto-survey-99.html
"Eckpunkte der deutschen Kryptopolitik" Pressemitteilung des Ministeriums für Wirtschaft und Technologie, Bonn, 2. Juni 1999
http://www.bmwi.de/presse/1999/0602prm1.html.
"Electronic Communications Bill"
(Department of Trade and Industry): http://www.dti.gov.uk/cii/elec/ecbill_1.html
1. The Inter-Libraries Loan in the digital world
The exponential growth in the production of knowledge, the decreasing resources and the rising costs of books and journals have made it more and more impossible for the individual library to purchase all the information relevant to its users.The effect has been that libraries have become more and more dependant on interlending and document supply and many regional, national and international cooperative schemes have been put into place.
Inter-library Loan (ILL) of printed material has long been an accepted activity in the print world. In an electronic environment, the term ILL and the activity itself are hotly contentious issues. The electronic periodics are bought via a licence that often do not allow ILL. For several years, librarians and publishers have been trying to reach a common position. One of the obstacles in reaching agreement is the lack of clear definitions that cover the wishes of librarians over how they propose to share their resources.
It is of utmost importance to distinguish Inter-library Loan of print documents from Inter-library Loan of electronic documents. First of all the term loan suggests that the material is sent back at one point in time. This is only the case for books in the print environment but not for material in the electronic environment. Terms that could cover the activity more accurately are Inter-library Resource Sharing and Inter-library Use. As long as this is limited to sharing the information between libraries(that is the case in VirLib) and not with third parties, these terms could be used alongside on demand Electronic Document Delivery to end-users (third parties).
Inter-library Loan in an electronic environment has not been a subject of extensive research. There is more research material available in the area of Electronic Document Delivery. At the moment, it is difficult to precisely define the copyright status of electronic document delivery in many European countries.
Now the new European Directive will try to take account
of this problem. In the meantime, it is of the utmost importance that librarians
and publishers try to understand each other’s positions and wishes and
try to find workable solutions by defining the activities they want to
conduct as precisely as possible. This will not only assist the decision
makers in the legislative process, but will also assist librarians and
publishers in their negotiations for licences of electronic resources.
Initiatives are going on in the Netherlands and in the United Kingdom.
In the Netherlands publishers and scientific institutions have
agreed to an experiment into Inter-library Loans in an electronic environment.
In the United Kingdom, the Joint Information Systems Committee/Publishers
Association ILL Working Party has held discussions to reach
a common understanding on activities that would qualify as Inter-library
Loans in an electronic environment .
This chapter is focusing on the ILL status in the licences. It concerns only the delivery methods which directly use documents in their electronic version to make ILL. The paper journals are not concerned by the licence's restrictions. The allowed uses for the paper document are only concerned by the Belgian and European copyright laws.
The licence terms are often not precise enough about the authorised uses that can be made from the electronic journals. The ILL is usually not authorized by the publisher or it is allowed under a lot of restrictive conditions.
In the licences agreement, there are often some clauses describing authorized users of licenced information. An "Authorized User" is "a person designated in a Licencing Agreement as having permission to access or otherwise use the digital information that is the subject matter of the agreement" . Licences set out who may access licenced information, when users may access it, and what they can do with the information after they have it. Agreements often include provisions expressly forbidding access to certain persons or entities or limiting the circumstances under which permitted users may access licenced materials.
There are frequently Usage Restrictions clauses which tell what it is not allowed to do with the Licenced Materials. The most common clauses unauthorised by publishers are:
- substantial or systematic reproduction
- re-distribution, re-selling, loan or sub-licencing
- systematic supply or distribution in any form to anyone other than to Members of the institution.
For instance, the Terms & Conditions of Blackwell Publishers do not allow any use of the electronic version for ILL purpose :
The contracts and licences are in constant evolution. An exhaustive overview of the publishers's contract would be time-consuming. However, an overview of representative publishers can give us general tendencies of the current e-journal market.
The following table was made with information collected during 1999.
As we can see in the following table, each publisher imposes
his own conditions : Kluwer, for instance, authorise the use of the electronic
form as a source for Inter Library Loan whereby articles can be printed
and these print copies be delivered via postal mail or fax but it adds
that "no copies may be exported outside the subscriber’s country without
a special permission from Kluwer Academic Publishers and a subsequent agreement
on fees".
| Publisher | ILL authorized | source or condition |
| Academic Press | No | - |
| Blackwell Publishers | No | - |
| EDP Sciences' | make one hard copy of the output of any search; such copies may be shared with non-authorized users to the same extent as the print edition, provided such sharing is for the purpose of scholarly communication or educational use and there are no commercial benefits. | |
| Elsevier | Yes | allowing articles from licenced
electronic holdings to be printed and the print copy delivered via mail
or fax or scanned for Ariel transmission to fulfil ILL requests.
Electronic transmission of files from the electronic original is not included in the new policy |
| Highwire | No | "Fair Use" limitations (sections 107 and 108) of the US Copyright law require permission of the publisher |
| Kluwer Academic Publishers | Yes | The electronic form may be used as a source for Inter Library Loan whereby articles can be printed and these print copies be delivered via postal mail or fax to fulfil ILL requests from an academic, research or other non-commercial library. Requests received from commercial, for-profit companies or directly from individuals may not be honoured. |
| MCB University Press | Yes | by way of paper or electronic
copies of articles from journals,
subject to the limitation imposed on interlibrary loans of paper copies |
| Oxford University Press | No | |
| Springer | No | |
| Swets & Zeitlinger Publishers | Yes | Institutions may use hard copies derived directly or indirectly from the electronic edition of the publication for the purpose of inter-library loan with the same limitations that apply to paper copies for that purpose made from the print edition of the journals |
Recently some large publishers have announced changes in their policies. Electronic editions of journals of those publishers can now be used to satisfy interlibrary loan requests, but only printing out requested articles and sending them out in the printed form. Libraries will thus have the same functionality as before (or even better, since there will be no need to find volumes on shelves and make photocopies).
For instance Elsevier offers a more flexible interlibrary loan (ILL) policy, allowing articles from licenced electronic holdings to be printed and the print copy delivered via mail or fax or scanned for Ariel transmission to fulfil ILL requests. It is also said that "the library cannot send electronic files (e.g. PDF)" (?). Electronic transmission of files from the electronic original is not included in the new policy. This new arrangement will allow speedier and more dependable access (i.e. retrieving and printing articles directly from electronic files rather than obtaining print issues from library stacks and photocopying). It also provides a means for fulfilling ILL requests for titles that are not held in print format. For publishers like Elsevier or Kluwer, the list of authorised ways of delivery seems to be exhaustive. This means that the printed copy (hard copy) can only be delivered through mail, fax or scanned for Ariel transmission. For them, a system like VirLib (delivering PDF files) is obviously unauthorised from electronic files. VirLib facilitates end user delivery of PDF files, while ARIEL focuses on electronic delivery between libraries and print delivery to the end user. For Virlib, only a copy of the paper version of articles can be used to be sent. This point of view can be justified by the fact that the article – if they are on PDF format - can be resent to an unlimited number of persons (that is not the case for Ariel format (Tiff)) and that they deliver themselves articles in PDF format. Other publishers like EDP Sciences or Swets & Zeitlinger allow obviously that the hard copy is used for ILL (in the limitation imposed on interlibrary loans of paper copies), moreover they do not specify any precise methods of delivery. Electronic articles from those publishers can be used for VirLib.
Most of the time, publishers who allow to use the electronic files to make ILL, add a number of requirements that limit the ILL or that are too complicated to be met. For instance, Elsevier is asking the lending library to report twice a year (in July and January for the preceding six months) on to whom (what library) articles have been sent, by journal title, publication year and number of copies. These reports are asked among others to monitor quantity limitations. If the number of copies provided in one calendar year for any one journal title to any one library exceeds five articles, the lending library (that is, our licencee) may be asked to pay a fee on all additional copies at the standard document delivery copyright royalty rate. Elsevier Science will bill for those charges after it receives the reports. Libraries, of course, have the option to supply only up to five copies and turn down ILL requests over five.
If the current tendencies are confirmed, only the publishers will be allowed to use directly the electronic version of journals and the libraries will be only allowed to use and to send a paper copy of them for ILL because publishers consider the reuse of their electronic document by the libraries as a direct competition with their interests.
We can already see this in the licence conditions for hybrid journals that appear both in print and electronic formats. Publishers of such journals almost universally allow only the print version to be used for interlibrary loans. Although no publisher has explained clearly the rationale for this restriction, it is easy to figure out its role. Obtaining a copy of the paper article is slow, cumbersome, and expensive, and this serves to deter wide use of interlibrary loans as substitutes for owning the journal. If interlibrary loans of electronic versions were allowed, though, the borrower would be in almost the same position as a subscriber. Even if only paper copies of electronic versions of an article were allowed, the ease of making the copy from the digital form and mailing it out would make interlibrary loans much faster and less expensive, and that might undermine the market for subscriptions.
This situation is also dangerous for the libraries because they can
propose a direct end-user access to this information, at prices that go
far beyond the current Inter Library Loan prices. Furthermore, as we have
said, the current Directive links
the exception for the purpose of illustration for teaching or scientific
research with the principle of fair compensation for rightholders
This could endanger the free flow of information, scientific communication,
and public education.
Many publishers, meanwhile, reject fair-use arguments as a basis for encouraging unauthorized reproductions of electronic works, and they have been pressing for new technological and legislative protections. They also maintain that, without contractual limits on electronic use, they face a severe loss of revenue and damage to the works' integrity.
At the moment, there are too much differences between
the publishers. Even if some model licences are now appearing, the licences
currently proposed by the publishers have not been homogenised yet. The
library can not manage all this diversity of licence terms. Therefore,
a daily ILL politic using the electronic files cannot be considered currently.
In Belgium there is no National Library which supplies the libraries with scientific documentation like BLDSC or INIST. All the Belgian scientific libraries form together a kind of "Loan National Library". They are interdependent and they need to co-operate to face the problem of the increasing price of the serial publications and the reduction of their resources. The current Inter Libraries Loan is based on the principle of reciprocity between the affiliated Belgian libraries. The Belgian ILL system has to respect the autonomy of each institution.
Impala (Instant Mailing Procedure for Automated Lending Activities) provides Belgian libraries with a system for passing electronic interlibrary loan (ILL) requests to a number of Belgian and foreign document suppliers. It is used for returnables (books) as well as for non-returnables (photocopies of periodical articles). The on-line ordering system is linked to the Belgian union catalogues: Antilope for periodicals, the CCB for monographs and the holdings of a number of major document suppliers such as the British Library Document Supply Centre (BLDSC), INIST in France and three major centres in the Netherlands (Wageningen, Delft and NIWI, the successor of the Library of the Royal Academy of Sciences in Amsterdam). The number of requests passing through Impala grew from 10,000 requests in to over 100,000 requests in 1996 . During the last two years the volume for monograph requests did not change. The growth of the Impala ILL volume can be attributed to the increase of photocopy requests.
A survey was done in 1996 to know what kind of service is expected from Belgian ILL by the user. This survey has shown that there is a strong demand for an electronic document supplying. Users want a faster transmission process. They want to receive the electronic document via e-mail and also want to be allowed to print them. The users want to reduce the time needed to receive an ordered document. The proliferation of computer technologies has significantly influenced user expectations on document delivery services.
VirLib adds a new functionality to the Belgian interlibraries loan service Impala. The VirLib approach to electronic document delivery focuses in fact on the electronic delivery of documents that previously existed in print format. The term electronic stands for the use of telematics applications for the submission, follow-up and delivery of ILL requests. Currently, electronic document delivery is limited to the scanning of documents on request. VirLib aims at reducing the time span between ordering by and actual delivery to the user.
In the technical annexe, the promoters of the project have given a definition of the project as follows: "the first phase of the project has developed an electronic and modular pilot system of ordering and delivering documents. The second phase of VirLib wants to develop a real delivery service of electronic document added to Impala, i.e. the Belgian system of managing and transmitting interlibrary requests for loan. In other words, the system VirLib will enable the interlibrary loan department of any scientific libraries affiliated to the Impala network to deliver directly to the user's workpost, in electronic format, any article asked for by the user in question."
Impala and VirLib can also strengthen the existing solidarity
between the libraries and improve the service. It can widely open the system
to other libraries than the university libraries.
2.2. Ways of delivery in VirLib II
We have then to consider all the possible ways that can be used to deliver a document through the Impala system and the VirLib System. First we will try to identify the different ways of delivering a document. Secondly, we will study each of those ways from the point of view of the copyright problem. We will take account of the actual Belgian law on the copyright and of the future European directive but we also will take account of the "authorized uses" specified in the licences.
The methods currently used in impala are:
The different ways, methods to deliver a document through Impala are characterised by three elements:
the whole process of transferring the document between the two PIB departments
the final support of the document delivered to
the user
The ways of delivery in Impala :
1. From Paper
The first method
It is the traditional ILL process to deliver a document. The ILL service makes some photocopies of the requested article and sends it by traditional mail. The user receives a paper copy of the article.
The second method
It is based on the digitalisation of the paper document using a scanner. Electronic files are sent through the network (FTP and e-mail) to another ILL department in Belgium.
This second method is the same as the method used by Ariel. With Ariel software, the ILL department scans documents directly and transmits the electronic file to other Ariel workstations anywhere in the world, using either FTP or e-mail; and prints them out on a Windows-compatible printer. Then the document can be sent to someone who has access to MIME e-mail, enough electronic mailbox capacity, and access to a TIFF viewer. At the opposite of Ariel, the VirLib system transforms the article in a PDF document which can be viewed, and printed from any PC that has installed the free Acrobat reader software.
Until now, the Belgian ILL departments using Ariel print on paper the TIFF file and give the paper version to the user. But since the end of 1998, IMPALA receives documents in PDF format sent by the DocuTrans system of the library of Delft (Holland) or sent by other Impala libraries using the VirLib software.
The third method
This method directly delivers the electronic version of the document to the user. The ILL department of the request library receives the file and stores it on its server. It sends the user an e-mail with the clickable address of the file on his server. This method is justified by the user's need to receive the document as quickly as possible.
At the moment, more than 50% of the requested articles received from DocuTrans are directly sent to the workpost of the user within 24 hours. Impala also receives scanned images from the BLDSC (United Kingdom) via an Ariel-Impala connection.
The library makes the article available to the local user. The user
can examine the document on screen, download it on his computer and print
it out.
2. From digital format
The first objective of VirLib II is to simplify and to accelerate the delivery of document. VirLib aims at reducing the time span between ordering by and actual delivery to the user. In this context, the most easy and efficient method should be to reuse the articles in digital format. In the technical annexe it is said : "In the end, electronic documents coming directly from editors will be integrated in the Belgian electronic document delivery system of interlibrary loans".
In the digital environment licences have been introduced
to regulate the use of digital resources. The librarian buys access to
the electronic copy for a specific period of time and usage. There is still
a wide variation of practices in the licencing of e-journals The terms
of the licences are different for each publisher.
The fourth, fifth & sixth methods:
Those ways are only possible for the journals of a few publishers who allow libraries to use the electronic version of their documents to make ILL and who do not specify precisely the transmission methods that are allowed .
Those methods are authorised by publishers like EDP Sciences
or Swets & Zeitlinger. For instance Swets licence allows "Institutions
may use hard copies derived directly or indirectly from the electronic
edition of the publication for the purpose of inter-library loan with the
same limitations that apply to paper copies for that purpose made from
the print edition of the journals".
The 7th and 8th methods
The last methods re-use the original electronic files and do not through printing and scanning steps. Those methods are rarely authorised by publishers (arguing that this is a direct competition with the services provided by them)
Few publishers like MCB University allow it. In its licence, MCB writes : « Individual consortium members may make interlibrary loans by way of paper or electronic copies of articles from journals, subject to the limitation imposed on interlibrary loans of paper copies. If any consortium member is found to be abusing this privilege for the purposes of document delivery services, they will be in breach of the terms and conditions of this licencing agreement ».
6th and 8th methods
All the methods are thus limited at the moment(see below) but when use of electronic documents are allowed, they do not specify precisely that the electronic file cannot be sent to the end user. Those methods differ from the first ones only in the original format of the document.
However, the direct competition between services developed
by publishers (electronic delivering) and services like VirLib that provide
articles in PDF format is obvious. And it is not clear if "limitation imposed
on interlibrary loans of paper copies" allows that electronic copies
are directly sent to end users.
3.
Legal implications (law & licences) for Virlib
In this chapter, we will study the legal problem of the use of electronic documents. In Impala, electronic document delivery is limited to the scanning of documents on request. If the article is coming from a paper journal, only the Belgian copyright and the European Directive have to be consulted. On the other hand, if the inter-libraries loan is made with an electronic document directly from the publisher (even if a print copy is used) libraries have to respect the national and international copyright law and the signed licences.
We will study in this chapter what was, what is and what
will be allowed to do in Virlib. We will summarise the first report and
finally we will see for the actual Belgian law and the European future
directive .
1. Summary of the first report
In VirLib I , a first report was made on the legal implication of the project and the copyright problem. This report was the Deliverable Report of the Workpackage 10(CN/XX/A06) : "Aspects juridiques de la Bibliothèque virtuelle (October 1996)" by François Dubuisson (ULB, Centre de Droit de l'Information et de la Communication) .
This report is divided into three parts. The first part deals with questions concerning the establishment of the VirLib system and its databases. The second deals with problems raised by the running of the virtual library and with the legal protection of the VirLib system. The last part examines legislative prospects in the context of the transposition into Belgian legislation of the EU directive on the legal protection of databases.
Establishment of the VirLib system and its databases
The VirLib system will contain catalogues of available documents and could also contain databases with text and images. The inclusion of works in catalogues, by means of bibliographic references or subject indexes, is free from the copyright point of view.
Storage of complete works (texts, sounds and images) in a database, such as planned in the pilot database, constitutes reproduction in the meaning of copyright law and requires the authorisation of the proprietor. The law of 30 June 1994 concerning copyright and related rights provides for certain exceptions to the exclusive right of reproduction but none of these apply in the case of VirLib.
Running of the VirLib system
For transmission of documents to the user VirLib will apply three methods, mailing of a photocopy, fax, and electronic transmission. The report examines the copyright implications each of these methods has. A photocopy of a work is a reproduction and supposes in principle prior permission by the author. A library that makes a copy should however enjoy the exception made for reproductions for private or didactic purposes by the copyright law of 30 June 1994, as long as the copy is made for research purposes, as teaching aid, or for use in study tasks. This exception on the exclusive right on reproduction permits copy of the work without prior permission by the author, in return for payment.
Transmission of a document by fax is considered as an act of reproduction and the copying library enjoys the same exception made for reproductions for private or didactic purposes.
According to the major current of legal doctrine transmission by electronic means constitutes a public communication of a work (visualisation on a computer screen) followed by an act of reproduction (copying the document on a printer or a disk). The printing should enjoy the exception on the right on reproduction, for didactic purposes if the printing is done by the library, for private or didactic purposes if the printing is done by the end user. It is doubtful whether the exception for reproduction for private or didactic purposes applies to storage on a disk however, and it remains unclear whether electronic copies are covered by this exception.
As to the use end users make of documents, they must respect any copyright on the documents that may exist. If there is no copyright on the document, the user can use it freely but must respect the right sui generis of the manufacturer of the database.
The databases made for VirLib can be protected by copyright, according to the EU directive on databases. This protection presupposes that the database is an intellectual creation as regards the choice or the arrangement of its contents. The holder of this right is the individual who has created the database. If this is an employee, the right may be transferred to the employer by an express clause in the employment contract.
The software made for VirLib can be protected by copyright, if it is original, in the sense that it is an intellectual creation, according to the law of 30 June 1994 on the protection of computer software. The holder of this right is the individual who has created the software, but the law on computer software provides a presumption of transfer of rights to the employer.
Exceptions to copyright and to the sui generis right in the database directive: prospects for Belgian law.
Concerning exceptions to copyright in the EU directive, any transposition of the exception made for use as teaching aid or in scientific research needs legislative action, because the exception made for reproduction with a didactic purpose is not sufficient. Moreover, member states have the option to maintain traditional exceptions on copyright, but this does not permit, at least in the case of Belgium, to add any specific exception intended for databases.
With regard to the exceptions on the sui generis right, these have very
limited practical scope because only the legitimate user of a database
can avail himself of these exceptions. This is particularly true for the
exception made for copies as teaching aid or for scientific research, because
only the copy of the contents database is exempt from the sui generis right,
not the distribution or the public performance. The transposition of the
exceptions to the sui generis right in Belgian law would have to be the
subject of completely new provisions.
2. Belgian law (changes & future evolution)
Since 1996, the Belgian copyright law of the 30 June 1994 ( "Loi relative aux droits d'auteurs et aux droits voisins" - "Wet betreffende het auteursrecht en de naburige rechten") was changed for the last time by the law of the 31 August 1998 to transpose the European Directive [96/9/EC] on the legal protection of databases.
For using VirLib II, we have to consider the reproduction right because it are copies of documents that were sent and the communication right because as soon as the work is communicated in an immaterial way, without using a material support, we can consider that there is "communication" whatever technique is used.
The first report affirms also that "It is doubtful whether the exception for reproduction for private or didactic purposes applies to storage on a disk however, and it remains unclear whether electronic copies are covered by this exception". The copyright law of the 30 June 1994 allowed only reproduction of works fixed on a grafic and analogue support. The new text of August 1998 allows to fix a work on a "graphic or analogue or on another support" that means that works initially fixed on electronic support are concerned. In the law there is no special restriction about the method or technique used to reproduce but the law mentions devices "copy machines" (article 59 "d'appareils permettant la reproduction d’œuvres protégées") that means all the devices including digital copy machines. Here we could consider that the new law adds the possibility to digitise an article and to store the electronic copy for a short while. VirLib can enjoy the exception of the reproduction right for the sole purpose of illustration for teaching or scientific research.
The new law transposing in the Belgian law the European Directive on legal protection of databases introduces in place of the previous exceptions of reproduction for "didactic" purpose, a new exception of reproduction based on the reunion of three conditions : the reproduction can be of a fragment or of the entirety of an article or of a fragment of a work fixed on a graphic or analogue support or on another support. It has to be used for the sole purpose of illustration for teaching or scientific research (or private use) and it does not perform acts which conflict with normal exploitation of the work. This exception on the exclusive right on reproduction permits copy of the work without prior permission by the author, in return for payment. This new provision is important because publishers can now argue that electronic delivery is in direct competition with their services. We have to pay close attention to this aspect.
The problem of VirLib is that there is not any exception
of communication right for purpose of illustration for teaching or scientific
research in the Belgian law. The accord of the author is required for
a "public" communication. Every immaterial communication of the work outside
the "family circle" is considered as a public communication. Consequently,
we can consider that an e-mail sent to a user, and even to a librarian
of the ILL service, can be seen as a public communication and thus requires
the authorisation of the author.
This situation is confirmed by Mireille Buydens in her guide :
Il résulte de ce qui précède qu’il pourrait être utile de se pencher sur la question d’une éventuelle redéfinition de la communication dans le "cercle de famille".
Il convient d’être attentif à la portée
de chaque exception. En effet, l’exception du nouvel article 22, §1
4 bis et 4 ter autorise par exemple une bibliothèque scientifique
à reproduire un fragment ou l’entièreté
d’un article ou d’une œuvre plastique ou un court fragment
d’une autre œuvre fixée sur support graphique ou analogue
ou sur un autre support. En revanche, celle-ci ne pourra pas mettre
des photographies à la disposition des étudiants sur Internet
sous le couvert d’illustration de l’enseignement – même si l’accès
à ce réseau est réservé à ces seuls
étudiants. En effet, la loi ne prévoit pas d’exception
à des fins d’illustration de l’enseignement ou de recherche scientifique
pour le droit de communication au public par voie électronique.
Tout au plus, pourra-t-elle procéder à des prêts publics
par la voie de supports tangibles.
For VirLib II, we can at the moment argue of the exception of reproduction right for purpose of illustration for teaching or scientific research. But the absence of exception for communication (visualisation on a computer screen) is still the main problem of the electronic delivery.
As we have seen, the exceptions provided in the Belgian law can be overridden by licences. In short, the reproduction of electronic files and the digital reproduction of paper are allowed by the new Belgian law. However the sending of electronic files is not legal (no exception for the communication). Libraries have to pay fair compensation to rightholders (this has not been fixed yet).
The Belgian law was not yet adapted to the information
society. To know the further developments of the Belgian law, the future
European Directive will be studied. As we have said, the current Belgian
law on copyright will be transformed and adapted to the Directive. In the
Article 11: Final provisions, the text says : "Member States shall bring
into force the laws, regulations and administrative provisions necessary
to comply with this Directive by 30 June 2000". But the earliest that changes
will be introduced into Belgian laws is likely to be 2002 as the Directive
is not likely to be adopted until 2000.
3. European directive on copyright : Legal aspect for VirLib
First of all the European Directive is still a proposal that means that it is subject to changes. The proposed Directive leaves all exceptions that are listed in Article 5.2. and Article 5.3. as pure options to the Member States. Therefore they would not only be entirely unharmonised but also without any guarantee that they will be implemented in the further Belgian copyright law. Even if those exceptions are still present in the final text of the European directive, Belgian libraries have to be vigilant and to force the Belgian government to keep them in the Belgian copyright law.
At the moment there are no words that guarantee that Contracts should not override an exception. The explanatory memorandum of the amended Directive states that recital 28 should encourage the development of contractual arrangements for activities not covered by the exception introduced for the benefit of establishments such as libraries and other cultural institutions. This provision is given in the database Directive (Article 15), and corresponds therefore with the acquis communautaire. The licences contract can currently override an exception.The intention by the European Commission in this proposed Directive is to leave the future of access to information to licencing mechanisms. Amendment 24 specifies that the exceptions are limited to certain specific cases and that global solutions must be sought within the framework of the contractual relations between the parties concerned.
Consequently, those exceptions are optional in the Directive
and there is no guarantee that they will be introduced in the Belgian Law.
Moreover, exceptions allowed by the European directive are not guaranteed
or mandatory and Belgian libraries can thus not argue from it to negotiate
with publishers.
3.2. The three steps & compensations
The current European draft directive only allows the member states to provide for exceptions for copying as long as the activity can pass the 'three step test' (an economic prejudice test).
As we have said, publishers who have started to set up electronic document delivery services themselves claim that every electronic document delivery service conducted by libraries is in direct competition with the "normal exploitation" of the work as laid down in Art. 9 (2) of the Bern Convention. If we consider that library services compete with a similar service or product obtainable from the publisher when the library delivers to a remote user an article which the user could have obtained from the publisher (this is not the case for paper journals).
The amended proposal directive includes the introduction or continuation of remuneration schemes to compensate for the prejudice to rightholders. In the case of reproduction on paper, private copying and illustration for teaching and scientific research (recital 26; Article 5(2)(a), (b), (ba) new and 5(3)(a)). Because they will receive compensation, the rightholders will not call up the "three steps" to unauthorise the ILL with their electronic journals.
The precise form of such compensation would be up to the Member States to decide in accordance with their legal traditions and practices. Belgian libraries have to be careful when those compensation will be fixed because this will increase the global cost of each delivery. At the moment, the Belgian standard cost of an ILL is 200 BEF for the loan of a volume or a photocopy of up to 30 pages. This price of an article supplied with the VirLib system could become rather higher than the current price. The new service will be a kind of pay-per-view service and it can be more expensive than some commercial Document Delivering services.
However, strict copyright rules, especially in Europe,
and anxiety on the side of the publishers do not allow Impala to directly
deliver from the electronic files of the publishers but nevertheless it
has been demonstrated that Impala can keep track of copyright fees to be
paid directly to the publisher or to a copyright collecting agency.
For the VirLib system, the exceptions allowed for the
Right of Reproduction (copying) and Right of Communication to the public
which relates to digital transmission and use will be concerned. The Right
of communication to the public is the right to authorise or prohibit any
communication to the public of originals and copies of their works, by
wire or wireless means.
That means that VirLib libraries could enable users to
view electronic material on the screen of their computer (but simple private
viewing of digital information in a library would need the authorisation
of the rightholder). This exception for the communication could be an obvious
improvement for the Belgian ILL service if it is maintained in the final
European Directive and if it is included in the Belgian law. The fact that
this exception for communication right is not provided in the Belgian law
is the current most important problem to solve in VirLib II.
The harmonised definition of the reproduction right would cover all relevant acts of direct or indirect, temporary or permanent in whole or in part reproduction by any means and in any form, whether on-line or off-line, in material or immaterial form. The paper journals as well as the electronic journals are concerned by the new European directive
As we have seen, the original support of a document influences
the authorised uses that the libraries are allowed to make. The licences
authorise or not the use of electronic documents. The reproduction and
the copy of paper journals for the purpose of ILL is not regulated by licences
but by copyright laws. We will then present the two options because if
any global compromise solution solving the problem of ILL for the electronic
journals is found between publishers and libraries, the libraries would
have only one possibility to use the paper journals for ILL purpose.
An exception exists consequently for "reproductions on paper or any similar medium effected by the use of any kind of photographic technique or by some other process having similar effects, provided that the rightholders receive fair compensation". Moreover, the compensation provided by the directive for reproduction using the reprography technique is already fixed by REPROBEL.
The current proposal directive also authorises "Temporary acts of reproduction which are an integral and essential part of a technological process, including those which facilitate effective functioning of transmission systems, whose sole purpose is to enable use to be made of a work or other subject matter, and which have no independent economic significance, shall be exempted from the right set out in Article 2".
This exception can be used by VirLib II because the digital document is stored in a local server and its access is secured by a coded URL and overall because a death stamp will automatically delete the document from the library server. If the document is printed by the librarian to be given to the user, any electronic copy of the document will be conserved.
Then it will be allowed by this European directive to
use paper journal for the ILL in an electronic delivery system like Impala.
For this exception, there is no restriction about the uses and the users
like "to the extent justified by the non-commercial purpose to be achieved"
as it is provided for the exception for "the sole purpose of illustration
for teaching or scientific research". A fair compensation for the rightholders
is required but for the paper copy, there is yet a Royal Order and compensations
are fixed. If the electronic file is directly sent to the end-user,
a compensation (that has not been fixed yet) will be paid to the rightholder.
All the ways of delivery could enjoy the limitations to the rights of reproduction and communication when use is for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved, on condition that the rightholders receive fair compensation.
The exceptions do not precise any specific means or form of the reproduction and any specific kind of communication. They have thus covered all kinds of reproduction (electronic or not) and all kinds of communication to the public of originals and copies ("by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them"). Any original support of document, any technical process made on it, any way of delivery are concerned by the Directive.
The proposed Directive would unnecessarily restrict all exceptions by its proposed wording: the "use for the sole purpose of illustration for teaching or scientific research" (Article 5.3 (a)) and excludes other educational purposes and other non-scientific research. Moreover, this exception could be used only for non-commercial purpose. For VirLib, those two restrictions pose a problem . At the moment, several private societies (PME) have access to the PEB and Impala via an institution. Access to electronic periodicals can consequently be problematic for researchers who work for private companies, for studies partially financed by the private sector or for studentswho collaborate (for their thesis) with private companies. Those restrictions could limit the use of the electronic delivery of document in Impala. At the moment, there are a lot of companies that benefit from the Impala service because they are affiliated to an university’s library participating to the system Impala.
The VirLib acquisition software produces a DAT file which includes metadata (with copyright information). Those metadata are written on the front page of the delivered document received by the user. The VirLib system can thus enjoy this exception. But, for this case, the use (user) is restricted and the compensation is not yet fixed.
The directive does not mention any specific support of delivery. This could mean that a digital copy can directly be sent to the user. But the user must respect any copyright on the documents that may exist. The copyright information in the metadata require users to use those documents "for personal use only" .
All the exceptions for copying and communicating to the public for teaching and research are permitted as long as fair compensation is provided to rightholders. At the moment, the amount of this compensation has not been fixed yet (it will be fixed later by national governments) .
The main remaining problems are :
We looked at some other European projects and their way of handling the copyright problem. More information on the projects can be found on the following websites. Nevertheless their legal information was limited.
Anyone can request documents, since the DUTL has a national task in the area of providing technical and scientific information.
Photocopies are sent by mail, fax, or e-mail.
The website of the TUD provides no information on legal
aspects of electronic document delivery.
INIST (Institut de l'information scientifique et technique)
has no electronic document delivery service.
Customers can choose to have copies sent by fax or Ariel®. There is a Standard Service and a Copyright Fee Paid option.
Because the legislation concerning copyright varies from country to country BLDSC charges a publication-specific copyright fee as appropriate. Customers who do not normally pay a copyright fee for articles may, under certain circumstances, choose to use our Copyright Fee Paid option.
There is a licence agreement between the BLDSC and the
UK Copyright Licencing Agency. Copyright fees are set by publishers and
vary with the publication and the date it was published. All copyright
fees are passed to the UK Copyright Licencing Agency for worldwide distribution
to publishers and other rightholders.
Customers who do not normally pay a copyright fee for articles may, under certain circumstances, choose to use the Copyright Fee Paid option. The Copyright Fee Paid option offers more flexibility than the Standard Service - Copy. The article fee is identical to the fee charged for the Standard Service – Copy. The additional publication-specific copyright fee is passed on to the UK Copyright Licencing Agency.
The Copyright Fee Paid option is available to all BLDSC customers, whether individuals or organisations and is mandatory in certain situations. Customers must use the Copyright Fee Paid option in the following circumstances:
All individuals or one person businesses, regardless of their country, must pay the publication-specific copyright fee on all documents, whatever the method of delivery.
For other customers, details of when you will be charged a copyright fee are given below.
Customers in Austria, Denmark, Finland, Germany, Netherlands,
Spain, Sweden
| All customers in the above countries |
|
Customers in Australia*, Belgium, France, Greece, Italy, Luxembourg, New Zealand*, Portugal
* from March 2000
| Commercial |
|
| Non-commercial |
|
Customers in the USA
| All US customers |
|
Customers in all other countries
| Commercial |
|
| Non-commercial |
|
Commercial customers
The definition used by BLDSC to determine whether a customer is commercial
is as follows 'one whose activities are primarily conducted with the
end aim of producing a profit.'
Elsewhere, the British Library mentions the following set of rules:
Categories of customers that must pay copyright fees
With the exception of items supplied on loan, a publication-specific copyright fee will be charged on all documents supplied to customers in the following categories:
All customers must pay a copyright fee when they are:
For prescribed libraries (as defined by the UK Copyright Act) or libraries that have a separate copyright licence agreement, some of the above conditions may not apply.
The relevant parts of the UK Copyright Act regarding the term ‘prescribed’
are as follows: "any library conducted for profit shall not be a prescribed
library." "Conducted for profit, in relation to a library or archive, means
a library or archive which is established or conducted for profit or which
forms part of, or is administered by, a body established or conducted for
profit." Further to this, the following additional definition of a prescribed
library is given. "Any library outside the United Kingdom which is conducted
wholly or mainly for the purpose of facilitating or encouraging the study
of bibliography, education, fine arts, history, languages, law, literature,
medicine, music, philosophy, religion, science (including natural and social
science) or technology."
The website of the Deutsche Bibliothek makes no mention of document delivery, but there is a link to document delivery on the Z39.50 Gateway-website.
Documents can be delivered by e-mail or ftp (active or passive). The site mentions the following legal prescriptions:
The SUBITO website and the site of some of the participating libraries all reproduce the paragraphs quoted here:
According to this arrangement, publishers have the legal viewpoint that deliveries of paper copies of copyrighted documents are not covered by the rules of exception of § 53 UrhG. However, no additional costs for copying are to be charged by the publishers during the trial phase of SUBITO 1, i.e. up to 31 December 1999.
The customer shall use the documents delivered by the
library exclusively for private or personal purposes. He shall not disseminate
such documents neither in paper version nor in electronic version, neither
for free, nor against payments (§§ 17, 53 Abs. 1,2 and 5 UrhG).
Due to the German copyright laws electronic document delivery
is only possible within the framework of the SUBITO-project.
No information on encryption could be found.
The objective of CANDLE (Controlled Access to Network
Digital Libraries in Europe) was to develop an access management system
for electronic journals to be used in libraries.
Copyright:
The copyright issue would be solved by means of licence agreements with publishers of electronic journals.
CANDLE sent a questionnaire to a number of electronic publishers. The responses showed that publishers are attracted to very secure systems to prevent misuse, although they recognize that "small scale misuse would not be a commercial threat". Similarly, publishers also had mixed feelings about the idea of using a caching proxy. Most publishers had already made off site access licences.
The CANDLE website also mentions that library users need
to know the copyright status of what they download.
Encryption:
No information on encryption.
Decomate I (1995-97) and Decomate II (1998-2000) - Telematics for Libraries.
Decomate I http://cdservera.blpes.lse.ac.uk/decomate/
Decomate II: technical annex 2. http://www.bib.uab.es/project/eng/decota2.html
One of the aims of DECOMATE II is to be a demonstrator and a testbed for licence agreements with publishers and information providers. For this purposes the project wanted to provide a mix of resources that reflects the differences between materials from a copyright point of view. The different types of materials are
In a paragraph entitled "Licence terms", Deliverable report 2.3 mentions a
In an article published in 1997 it is said that the management of copyright and reproduction of materials on electronic media goes beyond the scope of the project.
The TOLIMAC Pilot system worked with only one document supplier, i.e. INIST's electronic document delivery service. Because of copyright restraints INIST could select only 22 journal titles for use for the pilot evaluation. This resulted in a database of 26,648 references. To ensure copyright compliance, the encryption procedure used by TOLIMAC enables libraries to guarantee that the
Consortia are Associations of groups of users that are
now frequently encountered. They are formed in order to share resources
and to bring their combined purchasing power to negotiate advantageous
terms for the supply of journals, and other research literature or data.
ANOTHER IMPORTANT PREREQUISITE for the new delivery models was the growth of the Web. As libraries began to migrate from mainframe to client-server systems, it became possible to expand holdings without proportionate increases of staff. "The libraries could access material but did not have to maintain it". Web-based systems also made remote access possible, which in turn became a sore point with publishers. Such systems can control access to resources by enabling a range of Internet Protocol (IP) addresses specific to a campus.
Licences are of course not only interesting for electronic
journals. Other information products should also be licenced on a consortium
bases. For instance, consortia of academic chemistry institutions for the
use of Beilstein and Gmelin databases are quite common practice. In Germany,
the Baden-Württemberg + Saarland Xfire consortia are already existing,
and a new national consortium (Deutsches Akademisches CrossFire Konsortium)
is now formed. Numerous other examples of site licences with large institutions
can be cited, as Minerva, a partnership between Beilstein and the University
of Wisconsin, as well as consortia in Taiwan, in France, or in the UK.
However, there are several obstacles to this development:
OhioLINK is the almost legendary alliance of many types of libraries cooperating statewide to purchase licences to electronic products centrally. It is a consortium of Ohio academic libraries in both the public and private sector ranging from major research institutions to community colleges. This is the first major attempt in the US to create a virtual, statewide library system. More than just linking the holdings of participating libraries within the context of a 48-hour delivery system for books and journal articles, OhioLINK provides the platform as well for statewide delivery of commercial and other databases, Internet access, and experimentation with the development and testing of new information tools, and joint licencing.
OhioLINK, which since 1992 used major infusions of state
capital to wire campuses. All the schools got money from the same source,
so no individual library was penalized even as the entire system received
more resources. Today, with an annual capital budget of $3.2 million and
a two-year operating budget of $14.6 million, the consortium is a significant
line item on the state budget. The authority to say yes for 79 public and
private institutions at once has given the consortium enormous bargaining
power. If the schools had signed up individually for the enhanced library
version of Britannica Online, it would have cost the state $250,000 a year.
With OhioLINK's discount, the figure was $125,000. At last count, every
school in the system accessed nearly 10,000 scholarly journals and almost
100 databases online.
A new way of negotiating with publishers has in the last
two years become quite common in North America, i.e., negotiating not with
single libraries but with consortia or groups of libraries. At the moment
in the US, there are probably 50 or so consortia that negotiate for electronic
information with publishers. They are often but not always state consortia.
In the United States, many other consortia have been created : for instance
: Louisiana Library Consortium (LLN), Michigan Library Consortium (MLC),
Minitex Library Information Network, Utah Academic Library Consortium (UALC),
Virtual Library of Virginia (VIVA), Washington Research Library Consortium
(WRLC), Links to other members of ICOLC, Library Consortia Documents Online
(USA), Art Museum Image Consortium (AMICO).
In Europe, several countries have begun to create a national consortium to defend their libraries and their aim is to get the best possible price and terms. Those consortia give every member of the national education and research community access to the required electronic information. Such a national solution is planned at the highest level of education and research administration and would avoid wasting time and resources inherent to the development of incompatible local systems.
One of the better examples of joined efforts for the management of electronic resources comes from England, with the CHEST service (Combined Higher Education Software Team) whose mission is: "to obtain quality software, datasets, training materials and other IT products for the UK Higher Education and Research Community at low prices and attractive terms" and with the BIDS service (Bath Information and Data Services, http://www.bids.ac.uk) founded in 1991 and providing networked information for end-users in the higher education and research communities at a national level. These two UK services are supervised by the Joined Information Systems Committee (JISC) (http://www.jisc.ac.uk/) whose mission is "to stimulate and enable the cost effective exploitation of information systems and to provide a high quality national network infrastructure for the UK higher education and research councils communities". In the domain of electronic journals, a UK Higher Education Pilot National Site Licence is now in operation with four publishers.
Finland, a consortium of 16 universities, 7 polytechnics
and 1 research institute has signed an agreement with Academic Press on
14 July 1997 and negotiations with the Institute for Scientific Information
which produces well known reference databases are now in progress. Finland's
libraries consortium recently licenced the entire Academic Press collection
(175 titles, from Hormones and Behavior to Molecular Phylogenetics and
Evolution).
Sweden (BIBSAM - The Royal Library's Department for National Co-ordination and Development).
In late June, the Royal Library/BIBSAM signed agreements for national licences with Academic Press, Ebsco, and Johns Hopkins University respectively, giving Swedish universities and university colleges full access to the digital, full text versions of nearly 1,500 scientific journals. Initially, the agreements are heavily subsidized by the Royal Library.
According to these agreements the subscribers are ensured
an archival copy of/selective access to the relevant journals, covering
the years they actually paid for, and publicly financed libraries which
have not signed the agreements can freely be provided with copies of articles
(digital or on paper).
| Denmark | Danish Electronic Reasearch Library (DEF) |
| Finland | FinELib National Electronic Library |
| Germany | Gemeinsamer Bibliothekverbund (GBV) |
| Greece | Hellenic Academic Libraries Link (HEAL-LINK) |
| Italy | Italian National Forum on Electronic Information Resources (INFER) |
| Spain | Consorci de Bibliotheques Universitaries de Catalunya (CBUC) |
| The Netherlands | Association of Dutch University Libraries, The Royal Library and the Library of the Royal Dutch Academy of Science (UKB) |
| UK | EARL: The Consortium for Public
Library Networking
Consortium of Academic Libraries in Manchester Combined Higher Education Software Team CHEST NESLI - UK National Electronic Site Licencing Initiative UK Pilot Site Licence Initiative |
| Switzerland | Informationsverbund Deutschschweiz (IDS) |
(see Annexe 1)
Consortial negotiations can be quite efficient. They are efficient because
instead of every academic library in the state of, for example Ohio, conducting
separate discussions with publishers, the 45 academic libraries in Ohio
colleges and universities have one officer who negotiates for all academic
libraries in the state. Consortial negotiations can put libraries in a
much stronger position with the producer, because instead of one library
buying one item from a publisher -- and many libraries doing that many
times over -- they can bargain as one. There are two good effects: libraries
can reduce prices to some extent, maybe by 10 or 20% , and libraries can
secure more advantageous terms of use.
ELEKTRON is an example of a project that aims to create a consortium in Belgium. It is a project of the Flemish Research Libraries Council (VOWB). The VOWB is a cooperative of libraries, documentation centres and other authorities involved in scientific library work in Flanders. The work field of the VOWB concerns: university libraries, higher education libraries, corporate libraries and documentation centres, government libraries and documentation centres and libraries in institutions and associations and (central) public libraries .
In December 1996 the VOWB started the project called ELEKTRON with the financial support of the Flemish government The aim of the project was the development of a Flemish network for electronic delivery of scientific documents to the desk of the end user. In the first instance the Elektron project involved the scientific periodicals. In the long run the setting up of the system should also enable the participating institutions to make available their own scientific documents.
This was only possible on two conditions: on the one hand all interested libraries had to cooperate in the purchase of electronic information with all organizational, financial and juridical consequences and on the other hand the libraries had to cooperate to create a technological environment wherein the user has access to several data bases from only one point.
This cooperation would bring the libraries the advantages of a consortium as described above.
The project took off in December 1996 and was tested by the libraries of the universities of Antwerp, Ghent and Louvain. By the end of 1998 the VOWB organised a larger target group: universities, non-university higher education institutions, research libraries in the public sector, public libraries and research libraries in the private sector got involved. The system of the electronically delivery of full text documents was conducted in three different phases. The testing phase aimed to connect the libraries who have access to the systems of Libris, Vubis-Antwerp and the system of Ghent. During the second phase the access was enlarged to all the Flemish research and public libraries, including the libraries of the non-university higher education institutions. In the long run it is also the intention to make the system accessible to the private sector.
The first realisation was the availability on Internet of the renewed union catalogues CCB - books - and Antilope - periodicals -, and of a limited selection of bibliographic databases (on line contents database, reference databases and the databases containing full text electronic documents). These databases can help the user to find the document if it is electronically available, and if not, guide the user via the union catalogue to the library which can deliver the document in printed form. The order is done electronically, the delivery if possible, too.
On 15 February 1999 a definite plan on the general availability of secundary electronic information was approved by the VOWB. The institutions themselves have to arrange the linking with the primary information.
One cannot speak of a real consortium yet, since the VOWB
does the negotiations with the publishing companies but still leaves the
final signing and final responsibility of the execution of the licence
agreement with the participating institution. In the actual situation the
VOWB acts more as a sort of umbrella consortium of smaller consortia which
are temporarily organised everytime a group of institutions is interested
in a certain (serie of) database(s). The consortium offers only facilities
(like examining the licencing principles with the different publishers)
but does not take any decision concerning the collection of the participating
libraries. Within the consortium libraries can use the expertise of the
VOWB and arrange cooperation with other members of the consortium.
For the execution of the ELEKTRON project a real, separate organisation outside or inside the VOWB will be needed. Diffferent organizational and management structures are possible. One can choose for a strong structure with a large staff or for a loose structure where one counts on the assistance of the participating institutions.
One of the essential objectives of the project was the
development of a uniform system for the identification of the user and
the settlement of a system of accounting from institution to institution,
and from institution to user.
VII
Conclusion : ILL in Belgium - the use of the electronic documents in VirLib
For VirLib II, we can at the moment argue of the exception of reproduction right for purpose of illustration for teaching or scientific research. But the absence of exception for communication (visualisation on a computer screen) is still the main problem of the electronic delivery.
As we have seen, the exceptions provided in the Belgian law can be overridden by licences. To sum up, the reproduction of electronic files and the digital reproduction of paper are allowed by the new Belgian law. However the sending of electronic files is not legal (no exception for the communication). Libraries have to pay fair compensation to rightholders (that have not been fixed yet).
The Belgian law has not been adapted yet to the information
society. To know the further developments of the Belgian law, the future
European Directive will be studied. As we have said, the current copyright
Belgian law will be transformed and adapted to the Directive. In the Article
11: Final provisions, the text says : "Member States shall bring into force
the laws, regulations and administrative provisions necessary to comply
with this Directive by 30 June 2000". But the earliest that changes will
be introduced into Belgian laws is likely to be 2002 as the Directive is
not likely to be adopted until 2000.
1. Limits of this report
In this work, we have studied what is allowed to do in the European Directive for service like VirLib but
The reproduction right has always played a key role in copyright protection. Its role will increase even more in the new information society environment. Once protected material is converted into electronic form and transmitted digitally, it is much more vulnerable to exploitation by copying than in the past. Many publishers reject fair-use arguments as a basis for encouraging unauthorized reproductions of electronic works, and they have been pressing for new technological and legislative protections. They also maintain that, without contractual limits on electronic use, they face a severe loss of revenue and damage to the works' integrity.
This point of view is confirmed by the Proposal Directive :
On the other hand, ILL is usually not authorized by the publisher or allowed under a lot of restrictive conditions.
In the licence conditions for hybrid journals (both in print and electronic formats), publishers almost universally allow only the print version to be used for interlibrary loans. Recently some large publishers have announced changes in their policies. Electronic editions of journals of those publishers can now be used to satisfy interlibrary loan requests, but only printing out requested articles and sending them out in the printed form.
Most of the time, publishers who allow to use the electronic files in ILL, add a number of requirements that limit the ILL or that are too complicated to be met (e.o..Elsevier).
Some Publishers give an exhaustive list of permitted delivery methods that can be used to transmit those scanned articles (Elsevier: "the print copy delivered via mail or fax or scanned for Ariel transmission to fulfil ILL requests") that comprise not the transmission method used by VirLib.
Few publishers like EDP Sciences or Swets & Zeitlinger allow obviously that the hard copy is used for ILL (in the limitation imposed on interlibrary loans of paper copies) and moreover they do not specify any precise methods of delivery. Electronic articles from those publishers can be used for VirLib.
If the current tendencies are confirmed, only the publishers will be allowed to use directly the electronic version of journals and the libraries will be only allowed to use and to send a paper copy of them for ILL because publishers consider the reuse of their electronic document by the libraries as a direct competition with their interests.
The rightholder's and the European Directive’s intention is to replace some previous legal copyright exceptions with negotiated licence agreements. Digital works are not sold and bought but access and use is regulated by a licence. With the new Directive the library user could be forced to pay-per-view for digital information that he or she would get now free of charge in the library. Consequently, libraries that want to deliver articles electronically are in a difficult position. Moreover, publishers can argue of the direct competition between their services and the services supplied by libraries. Because there is only little information currently available on the true economic impact of the activities of public libraries on the electronic exploitation of protected works, it is difficult to determine the proper form and scope of any possible limitation intended to benefit public libraries with respect to the digital environment.
In this context, considering all those restrictions, libraries can use exceptions to both the reproduction right and the communication to the public right in the case among others of use for the sole purpose of illustration for teaching and scientific research as long as fair compensation is provided to rightholders. Using this copyright exception users can have access to information without having to ask every single time for permission, and can also copy a reasonable amount of a work that would not be in conflict with the normal exploitation of that work.
The new Directive is an improvement for the current Belgian
law because it allows exception for communication. This implies that electronic
files can be sent through network (via e-mails) between the Belgian ILL
departments.
The Proposal Directive will have important consequences on the Inter-Libraries Loan services. If nothing changes, this new directive – that will have to be implemented into national law – will encourage the development of contractual arrangements to solve problems between rightholders (publishers) and users (libraries).
If the current tendencies are confirmed, only the publishers will thus be allowed to use directly the electronic version of journals and the libraries will be only allowed – not for all the publishers - to use and to send a paper copy of them for ILL because publishers consider the reuse of their electronic document by the libraries as a direct competition with their interests. Many believe that the existing limitations should not apply in the case of electronic document delivery, which would therefore be subject to the rights owner's authorisation. This is the position adopted by the European Commission in relation to the current draft of the Proposal for a Directive
All those recitals would mean that the legislators of the Directive want obviously that libraries manage the problem of ILL in contractual agreement with the publishers.
Publishers and librarians have complementary roles and responsibilities, serving the same needs and facing similar challenges. The interests of publishers and librarians need to be re-balanced in order to seize the benefits of digital information flow. Legislation provides a framework of copyright, privacy, competition and consumer law that protects against misuse while facilitating the flow of information from author to reader. If laws need to be amended, such changes should be made on the basis of the mutual agreement of all members of the community.
There is much to be achieved without legislative change. Neither publishers nor librarians should shy away from the issues that divide them, especially the scope of fair use and the exchange of copyright information between libraries. A more detailed analysis of the impact of copyright exemptions is needed.
The development of a predictable licencing environment
and the testing of new business models requires co-operation between publishers
and librarians, and leads to better mutual understanding.
Solutions :
1. Only the printed documents can be used without problem for inter-library loan, At the moment, few publishers allow to use the electronic version of their journal for purpose of inter-library loan Institutions, the majority of publishers either allow the use of articles from licenced electronic holdings to be printed and the print copy delivered via mail or fax or scanned for Ariel transmission to fulfil ILL requests or prohibit to make ILL from the electronic edition of the publication .
A monitoring of all the current licences and a precise list of the authorised uses allowed by each publisher would be difficult and time-consuming to make and to maintain. The restrictions and the permissions are varying from one to the other and the text of the licence agreements is changing all the time.
Since the printed edition of journals can be used for ILL transactions, the Belgian libraries have to continue to subscribe to this version to be certain that they can do ILL. This is the current politic followed by the Belgian libraries which continue to subscribe to the paper version and allow access to electronic version of those journals when the publishers of those digital editions offer them at no extra cost to subscribers to the print versions .
2. on a regional level (consortium)
| Consortia | Danish Electronic Reasearch Library (DEF) | HEllenic Academic
Libraries Link
HEAL-Link |
Italian National
Forum on Electronic Information Resources
INFER |
Consorci de
Biblioteques Universitàries de Catalunya
CBUC |
| Website | http://www.deflink.dk | http://leykada.physics.auth.gr | http://www.uniroma1.it/infer/ | http://www.cbuc.es |
| Number of office staff | 5 | 6 | / | 11 |
| Legal Structure | Government-supported | Government-supported | University-supported (voluntary) | Government Supported
University-supported (formal) |
| Number and type of member libraries | 242 Academic, Public, and Special Libraries | 32 Academic libraries | 15 Academic and Special libraries | 9 Academic and National Libraries |
| Primary functions | Electronic content licencing | Collections sharing
Interlibrary loan/document delivery Training Union lists/shared online catalogs |
Collections sharing
Electronic content licencing Training Other Dissemination of information on consortia and related activities |
Cataloging services
Electronic content licencing Interlibrary loan / document delivery Union lists/shared online catalogs |
| Significant electronic content licences or resources | ||||
| Number of databases | 4 | 1 | In process | |
|
|
Remote Access all | Remote Access all | Mixture of loading types | |
|
|
Mix | All from State | All from members | Mixture of funding sources |
| Principal databases | Academic Press
Crossfire Kluwer Springer |
FirstSearch OCLC the basic package
ScienceDirect/Elsevier SpringerLink In negotiations with Kluwer and with Swets for Swetsnet |
INFER is an umbrella organisation which brings together the leading libraries committed in building library consortia in Italy. At the moment INFER is mainly involved in fostering this trend, in defining a site licence model and in training activities. | In process |
| Combined Higher Education Software Team - CHEST |
| http://www.chest.ac.uk/ |
| 12 |
| Other |
| Approximately 750 members institutions
200 Academic libraries in Higher Education 550 in Further Education |
| Electronic content licencing
Electronic content presentation Other : Licencing software and courseware All of the primary functions are done on a national basis (at least to some extent) in the UK, but different groups will lead each of these activities. |
| about 80 |
| Mixture of ways to load databases
There are 4 "central sites" members subscribe only to the ones they choose. |
| Part government funded, part revenue earning
Government funding sometimes used to underwrite the costs, but the norm is cost (data + service) recovery |
| Anbar MCB (Due Feb 98) / Art Abstracts (Wilson)
/ Beilstein Chemistry and Data Abstracts (Beilstein) / Biomedical Journals
(Ovid) / BIOSOS Previews (Biosis)
British Education Index (Leeds Univ.) / Business and Industry (RDS) / Cancerlit (Ovid) / Cinahl (Ovid) / Compendex (Ei) / Computer Abstracts (MCB Due Feb 98) ComputerGram / Ei Village (Ei) / Electronic Law Reports (Context) / Embase (Ovid) / Emerald Journal Collection (MCB Due Feb 98) / English Poetry (Chadwyck-Healey) /. ERIC (Ovid) / First Search (OCLC) / GeoPlan (GeoPlan) / Gmelin Chemistry Database (Beilstein) / IBSS (International Bibliography of Social Sciences) / Int Civil Engineering Abstracts (MCB Due Feb 98) / ISI (all 151 products) / Literature Online (Chadwyck-Healey) / Masterfile (EBSCO) / Medline (Ovid) / Navigator (Blackwell) / NetFirst (OCLC) / Palmers Index to the Times (Chadwyck-Healey) / Periodical Contents Index (Chadwyck-Healey) / RAPRA Abstracts (Rubber and Plastics Rapra) / Royal society Chemistry Databases (RSC) / Satellite Data (SPOT and LandSat NRSC) / Electronic Law Reports / UK Digital Maps (Bartholomews) / UK Digital Maps (OS)/ |