' Digital is not different ' - copyright in digital environment

Development in technology has brought to the libraries new kind of resources. Digital works such as books, periodicals and other materials are now in libraries collections. In spite of the fact that basic principles of copyright remain the same for ”traditional” and digital works. Copyright in digital environment is much more difficult to control because of the ease of creation, modification and distribution of digital copies over networks. Libraries help copyright holders to protect digital works against copyright infringements. On the other hand they represent also users of protected materials, and have a crucial role to play in ensuring the access to books and periodicals regardless of technological innovation. The question is who’s rights should be more protected by libraries? The paper addresses a number of rules and positions concerning copyright in digital world. Main part of the paper presents copyright law developments starting with TRIPS and Berne Convention through WIPO Treaties ending with Copyright Directive, particularly focusing on limitations and exceptions to copyright in the digital environment. This paper describes also positions concerning the copyright in the digital environment including IFLA and LACA position ”Digital is not different”, EBLIDA position on Copyright and Intellectual Property Rights and EBLIDA Position Paper on WIPO Copyright Treaties. The paper concludes with description of recent developments in the Polish Copyright and Neighbouring Rights. Copyright, Libraries, Digital environment, Copyright limitations and exception, Copyright law, EBLIDA, IFLA, Copyright Treaties, Copyrights have a great influence on the majority of library activities. They shape the type of services offered by libraries to their users and the conditions on which a library can offer access to materials protected by copyright. As a result, copyright affect the way libraries can function and conduct activities such as storing, protecting and making their collections available. The copyright issue has gained additional significance in the context of the information society, the development of which we can witness where access to broadly understood media and means of public and direct communication plays the key role. Using digital technology to record, make available, store, archive and transfer works triggered the change in methods and scope of their exploitation. Apart from obvious and undisputable positive consequences of those changes, there are risks related to the infringement of copyright and neighbouring rights on an unprecedented scale by using protected property without the consent of authorized entities or by “manipulating” the content of the works distributed in digital format [1]. In order to prevent infringement of copyright in the digital environment, international organizations and individual states began to introduce in their binding legislation regulations aimed to increase protection of works and rights of their authors. On the other hand, both in the context of international agreements and national legislation of individual states, there are limitations of exclusive rights of authors and owners of the neighbouring rights, which in certain specific situations allow using works without the consent of their authors and authorized owners. Permissible use of protected works or fair use allows various entities, including libraries, to have free access to protected property, thus giving priority to important public needs over the individual financial interests of authorized owners [2]. In this paper I will discuss the most important documents referring to copyright in the digital environment, such as the Berne Convention, the TRIPS Agreement and WIPO Copyright Treaty, as well as Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. I will also analyse the position taken by IFLA and EBLIDA on the rights at issue. Finally, I will mention the most important changes in the Polish copyright law arising from approximation of the Polish copyright law to the EU Copyright Directive. Berne Convention and TRIPS Agreement The first and the most important international agreement on copyright law is the Berne Convention for the Protection of Literary and Artistic Works, concluded in Berne in 1886. This Convention was many times amended and revised, e.g. in Berlin (1908), Rome (1928), Brussels (1948), Stockholm (1967) and Paris (1971). The Convention is based on two fundamental principles: the states acceding to this Convention undertake to ensure that the authors enjoy (in national legislation) at least the level of protection as is provided for in the Convention (the principle of minimum protection), and a foreign author should in the territory of another member state be treated on an equal footing with the citizens of this country (the principle of assimilation). Obviously, the original text of the Convention does not mention the protection of works in the digital environment; nevertheless, I refer to it because it has had crucial significance for later relevant international agreements. Firstly, because, as I have already mentioned, this was the first agreement of its kind; secondly, it contains definitions of key importance for modern understanding of copyright law; thirdly, due to the fact that subsequent amendments to the Convention gave rise to provisions relevant to the subject under discussion. The Berne Convention introduced the notion and scope of protection of “literary and artistic works”, subsequently used in other international agreements as well as the notion of “reproduction” [3]. According to the Convention, granting the right to copying (reproduce) is vested with authors of works irrespective of the way and form in which such reproduction was to be made. In order to explain fully the notion of reproduction, art. 9 of the Convention was amended in 1971 by adding sec. 3, in which reproduction was defined as any sound and visual recording [4]. Therefore, it should not be relevant whether a reproduction is made in a traditional way (e.g. on paper, photographic plate, or with the use of digital technology, e.g. on a magnetic tape, compact disc or a CD-ROM) [5]. In 1994 the World Trade Organization was established. One of the agreements signed when the WTO was being set up was the Agreement On Trade-Related Aspects Of Intellectual Property Rights for the purpose of introducing the protection of intellectual property within the group of states joining WTO. TRIPS did not introduce any direct provision on protection and use of works in a digital environment. However, it introduced the protection of two categories of works, important from the point of view of the digital environment, namely computer programs and databases. In accordance with art. 10 of TRIPS, computer programs are protected as literary works in the Berne Convention [6]; the same provision of TRIPS also applies to protection of databases [7]. WIPO Copyright Treaty On 20 December 1996 in Geneva, two Treaties of the World Intellectual Property Organisation were adopted.The first, i.e. WIPO Copyright Treaty focused on copyright law and the second, i.e Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms on artistic performances and phonograms. Both Treaties had as an objective to grant protection to owners of the copyright and neighbouring rights with respect to usage of their properties in the digital environment . The Copyright Treaty included computer programs and databases as the subject matter of copyright, which by then had not enjoyed specific protection in the international copyright law, by granting them the same protection as was vested with literary works in the light of the Berne Convention and TRIPS [8]. Establishing a common position on reproduction rights caused the most problems to the signatories of the Treaty. The Treaty contains neither regulations on the reproduction right understood as temporary record of a work (e.g. in a computer memory RAM) nor references to the notion of electronic publication or the digital environment. Those issues were presented in a joint statement of the parties i.e. Agreed Statements Concerning the WIPO Copyright Treaty [9]. The Statements say that the reproduction right and its limitations granted under art. 10 of the Treaty are applicable in the digital environment and in particular with reference to using works in electronic format [10]. Although the Agreed Statements are not legally binding, they affect interpretation of the Treaty (e.g. by such organisations as IFLA or EBLIDA). Confirming the maintenance of the existing exceptions and limitations to copyright law and the fact that they will also apply to the digital environment, WIPO countries thus rejected the opinion that “digital means different”. The signatories of the agreement can use the existing regulations with respect to the digital environment; they can also create new exceptions from the rules where this is justified.