Last month, at the Second Global eIFL-IP conference in Istanbul, librarians from thirty-nine developing and transition countries decided to highlight the importance of users’ rights for libraries and education to mark the occasion. eIFL.net is an international foundation, which supports national library consortia in approximately fifty transition and developing countries to negotiate and advocate for the wide availability of electronic resources to education, research and professional communities as well as governmental organisations and civil society. This global network embraces millions of users in Africa, Asia, Eastern Europe, the former Soviet Union and the Middle East.
Their work builds on an earlier WIPO study by Kenneth Crews of the Columbia University Copyright Advisory Office entitled Study on Copyright Limitations and Exceptions for Libraries and Archives, Étude sur les limitations et exceptions au droit d’auteur en faveur des bibliothèques et des services d’archives and (since we’re honouring Miguel de Cervantes Saavedra)Estudio sobre las limitaciones y excepciones al derecho de autor en beneficio de bibliotecas y archivos
On EIFL’s press statement, the Importance of Users’ Rights for Libraries, Education and Development there’s much about the ways in which copyright law and exemptions shape access to information in libraries in the developing world.
For libraries, and the people who use libraries, it is the exceptions and limitations to the legal protections granted to rightsholders that provide the basic mechanism for access to copyrighted content. “The role of librarians is to protect and promote access to knowledge and learning materials”, said Rilwanu Abdulsalami, Deputy University Librarian at Kaduna State University in Nigeria. “One of the key ways to achieve this is through well designed exceptions and limitations. Where the law is inadequate and needs to be changed, we will advocate for that change.”
The Crews paper contains one brief analysis which shows the lack of clarity in how the Canadian Copyright Act might apply to a university digitizing photographic slide collections. The university asked for two legal opinions – and they ended up facing inconsistent advice
Case Study: Interpretation and Uncertainty in Canadian Law
Section 30.1 of the Copyright Act of Canada permits libraries to make copies of works under various circumstances for purposes of preserving or maintaining library collections. Among the provisions of that statute is authorization for the library to make a copy “in an alternative format if the original is currently in an obsolete format or the technology required to use the original is unavailable.” Librarians and lawyers have diverged on the meaning of the language and about whether certain formats are actually “obsolete” within the meaning of the statute. One interpretation concludes that the format is obsolete if the equipment necessary for using the materials is in fact no longer available. An alternative interpretation would not set such a demanding standard, but would regard the format as obsolete if the equipment is not readily available or is difficult to obtain on the market.
These conflicting interpretations arise in the context of preserving photographic slide collections. Many libraries in many countries have explored legal grounds for making digital preservation copies of slides. Typically, the library would like to replace the collection of photographic slides with digital images. Among the reasons that libraries pose for making digital copies of slides is that the projectors and related equipment are increasingly difficult to obtain and soon will no longer be manufactured. Because the equipment is technically still available at this time, libraries in Canada are left with a fundamental question about whether they are acting within the terms of Section 30.1.
One university library in Ontario, Canada struggled with this statutory ambiguity. When the library proposed to digitize its slide collection, the university sought legal advice from two highly regarded law firms. The firms gave the university conflicting advice about the scope of Section 30.1 and of the fair dealing statute in Canadian law (Section 29). One law firm advised that the preservation copies were lawful; the other firm saw them as infringements. The library administrators worked with the university’s in-house legal counsel to choose the interpretation of the law that was, in their professional opinion, the correct interpretation for the digitization project. The decision involved not only legal analysis, but also a review of specific precautionary steps taken by the library, and an evaluation of liability risks if the use is later found to be infringement.
In the end, the university adopted the broader interpretation that allowed the library to proceed with the preservation project. Had the university not supported that interpretation of copyright law, the project could proceed only with the additional burden of identifying and locating copyright owners and securing permissions. Many of the slides were decades old, and the question for permission most likely would have been costly and unsuccessful. The librarians report that had they needed to seek permissions, they probably would have abandoned the preservation effort altogether. The use of the collections would ultimately have been limited to the original slides, and as a practical matter library users would have lost access to the materials.
One other Canadian library reported a similar program of digitizing slides. It came to the conclusion that it was working within “fair dealing” as long as the library limited access to the digital collection to users who are at terminals on campus. Even then the library provided access only to small-size and low-resolution images.