Memorandum submitted by the Society of
College, National and University Libraries (SCONUL)
I am responding on behalf of SCONUL to your
Press Notice 7 of 19 November 2001 on the new inquiry on Communications.
SCONUL represents the heads of library and information services
in UK higher education (as well their counterparts in Ireland
and the directors of national libraries). All UK universities,
and many colleges of higher education, are members of SCONUL.
We have a particular interest in one of the
terms of the Inquiry: the impact of technological developments
on the balance to be struck between intellectual property rights
and individual "fair use" of broadcast, or internet,
material. Our member institutions make considerable use of broadcast
material not only in teaching, but also in research. Internet
material embraces a vast array of audiovisual and text-based publications
and increasingly the acquisitions of our libraries are in electronic
format. The latest analysed figures, for the academic year 1999-2000,
show that at least 11 per cent of academic library purchases are
electronic, at a total cost of some £16.5 million.
The balance between intellectual property rights
and "fair use" (termed "fair dealing" in UK
statutes) is important to higher education institutions, which
both produce and consume copyright information in large quantities.
The balance has been much debated in the past three years leading
up to the EU Copyright Directive, (2001/29/EC of the European
Parliament and the Council) of 22 May 2001. Our view is that the
UK has for many years established a fair balance in its laws.
The recent Directive will shortly alter the balance very slightly.
We firmly believe that there is no reason to disturb the balance
The balance operates by offering the originators
of creative work a monopoly in the exploitation of their work
for a considerable period. At its simplest, the monopoly lasts
until 70 years after the death of the author of a literary work.
This provision is to encourage people to be creative by guaranteeing
the possibility of reward for their creativity. However, the law
also recognises that a total monopoly for the creator would stifle
creativity. Limited "exceptions" to copyright are allowed
in order to promote creativity through one creator, or potential
creator, learning frombut not profiting fromthe
work of another.
Thus exceptions to copyright exist in very limited
circumstances, notably for restricted copies for private use and
for educational and research purposes. These exceptions, originally
established in the Berne Convention of 1886, are exceptions of
principlethey are technology-neutral and still stand the
test of time. One of the stipulations of the exceptions, surviving
into the EU Directive of last year, is that no exception is allowed
if it unreasonably prejudices the legitimate interests of the
In other words, when couched in appropriate
termsin the UK's statutes, or the EU Directivethe
balance struck in the law of intellectual property rights withstands
the march of technology. The rights of the creative person are
not prejudiced by any legal provisions. The Berne Convention forbids
this. Technological developments do not, in our view, justify
any variation in the longstanding question of balance.
It is true that in some ways technology can
be a threat to intellectual property: we have all heard of instances
of thousands of illicit, perfect copies harming the market for
an original work. But these are instances of piracy. Piracy is
not eliminated by interfering with longstanding, limited, exceptions
to copyright, exercised by legitimate private users or educational
institutions. To disturb existing statutory balance is to upset
the virtuous cycle of creativity without tackling the crime.
Technological advances can also give certain
added protection to intellectual property. For example, the 11
per cent of our library materials now acquired in electronic form
are far more rigorously controlled by usernames and passwords
than the 89 per cent of materials on the open shelves of our libraries.
Technology and contract put a degree of control in the hands of
the rightholder far beyond anything possible in the purely analogue
We therefore urge the Select Committee to remain
firm about the UK's balanced position in the area of intellectual
property rights. Piracy must be eliminated but technical piracy
must be eliminated by technical means. It has always been illegal.
Changing the current legal balance would lead to reduced accessibility
of creative works for private and educational enjoyment. In the
medium to long-term such a régime would be contrary to
the best interests of the UK's outstanding creative industries.
10 January 2002