Select Committee on Culture, Media and Sport Appendices to the Minutes of Evidence


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 further.

  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 from—but not profiting from—the 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 principle—they 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 author.

  In other words, when couched in appropriate terms—in the UK's statutes, or the EU Directive—the 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 world.

  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

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