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Published: March 1999.

Papers

Copyright Obstacles to Exploiting Websites - A European View

Graham P. Cornish, British Library, United Kingdom

How European copyright reform is being achieved

The machinations of the various European institutions are a mystery even to those who live with them on a daily basis, so it may be helpful to say a word for European and non-Europeans alike about why copyright law is being reformed and how this is achieved.

Firstly, copyright is essentially seen as a commodity which can be traded: therefore it has economic value and trading in anything economic is regulated by the European Union to ensure that a Single Market is developed between the present fifteen Member States. This requires harmonisation of copyright law so that the owner of a work created or held in one country will have the same possibility of exploiting it economically in all part of the Union.

To achieve this the European Commission (the civil servants of the Union) identify areas where reform is needed and make proposals which are then widely debated and then referred to the European Parliament (elected members). The Parliament will form a view and the Commission then revises its proposals in the light of this view and it is then passed to the Council of Ministers (made up of the appropriate minister from each country responsible for the subject concerned) to reach a common position. This is then resubmitted to the Parliament and again wide consultation takes place. Finally the Directive is agreed and becomes European law. Each country then has about two years in which to draft or amend their own legislation and have it passed by their national parliament. This process can take several years to complete.

The Commission has had a programme of copyright harmonisation over the last nine years, starting with computer programs (Council Directive 1991), lending and rental (Council Directive 1992), Duration and rights in previously unpublished works which are out of copyright (Council Directive1993), and databases (Council Directive 1996). All these directives apply not only to the 15 EU Member States but also to Norway and Iceland who are members of the wider European Economic Area (EEA).

Introducing some basic principles

Anyone considering exploiting web technology needs to consider the copyright implications of both the content of any website and the status of the website itself. When discussing the Internet and World Wide Web it is important to remember some of the principles underlying copyright before trying to understand some of the more intricate details of using the web itself.

Content

Firstly there is a common myth that anything on the web is not copyright. This is entirely untrue and everything mounted on a web site is copyright in exactly the same way as if it were printed or recorded in any other way.

Although most of the rights enjoyed by copyright owners in Europe are similar to those in other parts of the world, it is worth mentioning some particular issues as they might affect websites mounted by museums, galleries or archives.

Duration

The duration of copyright in Europe has been standardised at 70 years from the end of the year in which the author died, provided that the work was first published in an EEA country or the country of first publication also gives protection of 70 years; otherwise protection is limited to the period offered by the country of origin. Thus, until 1998, US authors could obtain only 50 years protection in the EEA because that was the maximum offered by the US itself. If the work is anonymous, as many museums artefacts are, then the period of protection is 70 years from creation but, if made available to the public during that time, 70 years from first being made available. This period applies to films but not sound recordings which are given 50 years from the year in which it was made, or, if released during that period, 50 years from the year of release.

Publication Right

When a work is unpublished then life gets even more complicated and the idea of a Single Market comes seriously into question. Most European countries do not distinguish between published and unpublished material but this was not the case in the UK until 1988. The European Commission recognised that there are many unpublished works held in both private and public collections, many of which are out of copyright. They determined that anyone who first made such works available to the public should be given an exclusive right over them for 25 years to compensate for their time and effort in preparing the material for publication. The term "To make available to the public" which includes a wide variety of actions including issuing copies to the public, making the work available by means of an electronic retrieval system; rental or lending of copies to the public; performance, showing or exhibiting in public; and broadcasting including cable transmission. It is clear that any museum which was the first to make an object available to the public via a website would have obtained exclusive rights in that object for 25 years, thus preventing anyone else from exploiting it or images of it. This could be a valuable income resource for many collections. Some feared that they might lose this right because they provided copies of images of a work to private students who then went off and published the work commercially and deprived the museum of possible revenue. However, uniquely in European copyright law, such publication is invalid if it takes place without the consent of the owner of the physical carrier. Thus to obtain a photograph of an 18th. Century tapestry and then publish postcards of it and claim the exclusive Publication Right could only be achieved if the museum had given consent to this being done.

Whether or not the mere existence of an item in a museum collection which is open to the public constitutes "making available to the public" has not been determined.

There is a special quirk in the whole system for the UK. Until 1988 unpublished literary works remained in copyright indefinitely until published. To get rid of this perpetual copyright transitional arrangements were introduced to give protection to such works until the year 2039 (50 years after the new copyright law came into force). This means that any manuscript of similar work which was unpublished in 1989 remains in copyright until 2039 and the new Publication Right cannot apply. It does not apply to artistic works, which make up the bulk of museum collections (as opposed to library and archive collections) so this causes both less and more of a problem.

Performing

At first sight the idea of performance having anything to do with document supply seems rather strange. However, the document we supply are, or soon will be, no long a matter of simple text and images (Cornish 1993) but to the supply of a complex range of materials including sound, moving images, computer software and anything else that can be digitised a well as text and images. The transmission of such material may subsequently cause it to be viewed by the end-user or even a group of end-users with the result that the work is "performed". This issue is further complicated by the fact that performers have rights in what they perform regardless of the copyright status or permissions gained from the original copyright owner. This is going to become a really live issue when it is possible for any member of the general public to access a website via their own TV set as and when they choose and view websites containing large amounts of copyright material. Whilst many owners may not object to works being displayed within a museum or even on small screens with limited visual capabilities, once this is possible on large screens in domestic situations, rights of performance will become a live and lively issue.

Is it fixed?

Having said this, it is important to remember that certain conditions need to be fulfilled before a work attracts copyright. Firstly the work must be original. Merely mounting the image of an 18th century painting will not attract any new copyright to the painting although it may attract some copyright to the electronic format and the method of display used by the particular web site concerned. Secondly a work has to be fixed. In the case of web sites most material is fixed, although there are important questions to ask about temporary changes made to them by the interactive elements of the systems being used. In the case of e-mail, however, it may be that where a computer does not store a message once it has been sent, then that message may be considered transient and therefore not sufficiently fixed to attract copyright in itself. On the other hand if it is stored at the receiving end of the message then this may afford the work copyright. In UK copyright law - a situation which the European Commission proposes to adopt for the whole Union - a copy which is transient or incidental may still be an infringing copy even though an original work cannot attract copyright unless it is fixed. Once a work is fixed the copyright remains even if the work itself is subsequently destroyed. A painting, for example, which has been photographed and then subsequently burnt still has copyright in the painting even though it no longer exists because the image has been recorded by photography. This is sometimes called the 'Cheshire Cat' syndrome!

Web technology

Broadcast or cable television programme?

In addition to the material actually contained by web sites it is important to determine the status of Internet messages generally. In Europe, the law distinguishes between broadcasts and cable programme services. Essentially a broadcast is something which is sent by wireless telegraphy and which is capable of being lawfully by members of the public and which is transmitted for presentation to the public. A cable programme service is a system of sending visual images, sounds or other information by a telecommunications system other than wireless telegraphy. However, when the service has an interactive element in it whereby the recipient(s) can send information to the originator by the same system of signals by which the original sounds or images re received, then this is excluded from the definition of "cable programme service".

Is it a database?

EU legislation gives quite distinct rights to database makers and also defines a database as distinct from any other form of work. The formal definition of a database is : "a collection of works, data or other materials which:(a) are arranged in a systematic or methodical way and (b) are individually accessible by electronic or other means". Therefore any compilation of images made by a museum, whether or not the contents are in or out of copyright, becomes a database if it meets the stated criteria. This not only gives the museum considerable control over the database but also prohibits users from exploiting it in any commercial way as the owner of the database rights the right to prevent extraction or re-utilisation of all of a substantial part of the database, evaluated qualitatively or quantitatively.

In addition to these questions the web sites themselves are probably equivalent to databases. A web site is essentially a compilation of a number of different elements, some of which will attract copyright and some will not, but this does not affect the status of the compilation itself.

Ownership

The question of the status of web sites is also important from the point of view of ownership. Although it may be clear who owns individual elements of a web site it may be less certain who owns the web site itself or the copyright in it. These two ownerships may themselves be quite different. The web site may be owned by the organisation that sets it up whereas the content of the web site may be owned by the organisation using the facility.

Web site links and the wider dimension

One of the greatest benefits of the web site mechanisms is the creation of hypertext links to other web sites, forming a complex and effective method of cross-referencing and information retrieval. This system, originally seen as totally harmless and of enormous benefit to the user and provider communities, is now under considerable pressure from legal questions. It may be useful to look at the various issues to see how they may affect the retrieval of information in the future.

Firstly there is a technical question which has considerable legal implications. The perception of the user is that, when you click on a link to another web site, you go into that site. As I understand it, this is technically not the case. Rather when you click on the hypertext link then the text which you are seeking is transmitted to the user. Therefore you are not simply viewing something which exists but having it transmitted to you. This in itself constitutes copying a work. The natural reaction to this is that, if the owner of the site to which the link has been created did not want a work copied then they should not have allowed the link to be built. However, links are not always built with the knowledge and permission of the owner of the web site to which they are connected. This has raised the question of whether clicking on the hypertext link actually causes the material sought to be broadcast. But it could be argued that not only was the work copied by the person doing the searching but they also caused it to be broadcast which is a separate exclusive right of the copyright owner. These issues have been raised in a recent case in Scotland involving the Shetland Times and Shetland News. (Innnes & McMillan 1997) The latter created a web site which primarily consisted of links into the web site of the Shetland Times. The Shetland Times has taken out an injunction against the Shetland News preventing this link on a number of grounds, all of which have to be determined by a full hearing of the case. However the issues raised are of considerable significance and it may be worth looking at one or two of them briefly.

Firstly the Shetland News created links to the headlines of the Shetland Times. The Shetland Times claims infringement of copyright in the headlines. It has generally been held that there is no copyright in a title unless it is so unusual that it may be considered creative and original in its own right. However the judge in the interim hearing has asked that this matter to be considered. Headlines have generally been considered commonplace and therefore not susceptible to copyright. They are statements of facts and there is no copyright in facts as such only in the specific way they are expressed. A second issue is the question of fair dealing. Fair dealing is a wonderful concept in United Kingdom law and is far more flexible than the American equivalent of fair use, largely because it is undefined! However, it is not found in the legislation of any other European country except Ireland. Nevertheless, one of the reasons for fair dealing is reporting current events and it would seem at least an arguable case that one newspaper web site is reporting current events which it has found in another web site and therefore this is a matter of considerable interest. However, it must be realised that the Shetland News was not itself creating news or information but merely providing a link into somebody else's news and information which is not the same thing. A further aspect of the case is the question of passing off. Passing off is not a direct copyright matter but more of trade. Nevertheless it often involves infringements of copyright. Hence the passing off is providing goods or services which look sufficiently like somebody else's goods or services that they may be considered as coming from the second person even though they do not and may not, on close examination, be considered as coming from that second source. However creating something which looks very like, sounds like, or has the general appearance of another product may well lead to a charge of passing off. It is important when creating web site links that the user is always aware of whose information is being used. If you start a search in a web site and then use a hypertext link into another web site you may form the impression that you are still looking at the first web site even though you are not. It is therefore important to make sure there are displays, borders or icons which make it quite clear whose web site, and therefore copyright material, is being viewed and possibly downloaded or printed. A small icon which says something like 'copyright information available here' would overcome this difficulty to some extent. This problem is linked to a related one that when links are built from one web site into the body of another rather than to the opening pages, then all sorts of important information is lost. The user is not aware whose information is being viewed or used, neither are they aware of ownership or any restrictions, limitations or privileges granted by virtue of using this second web site. Therefore it would seem a good idea that all links are built initially into the opening page of a web site rather than into the body of the web site itself.

A further issue has been raised by a recent case of Nottinghamshire County Council. The County Council commissioned a report on social work in connection with satanic child abuse in the 1980s. The Council decided not to publish the report for its own reasons but the authors mounted it on several web sites in the UK. The County Council obtained an injunction which required them to remove the document from the web sites and this was done pending a hearing in the High Court. However the World Wide Web is designed to disseminate information and the document was subsequently loaded onto a web site in Canada. The County Council wrote to the owner of the web site who agreed to remove the document but they subsequently complained that he had retained hypertext links into another web site where the document was still available. The County Council have claimed that this creation of the hypertext link is tantamount to publication of the report for the reasons I described earlier about the nature of such links.

The latest proposals

The latest step in copyright harmonisation appeared in 1997 (European Commission 1997) and its proving very controversial, mainly because it seeks to limit very severely the Anglo-Saxon concept of fair dealing (fair use in the US) (Cornish 1998). Essentially the new proposals seek to reinforce the traditional reproduction right and also introduce a new "communication to the public right". This latter would operate in the electronic environment whereas the traditional reproduction right would be for the "physical" world only. The legislation requires all Member States to provide for a Reproduction Right for authors which will include both temporary and permanent copies of their works. There is also a requirement to give similar rights to performers to prohibit fixation of their performances and copying for phonogram producers and producers of films. Although these rights exist already in most Member States, some do not recognise the temporary reproductions caused by technical devices such as PCs, fax machines and Email systems. More controversial is the proposal to introduce a Right of Communication to the Public. Essentially this would be an exclusive right of the copyright owner to communicate a work by wire or wireless means and would include making it available to the public in such a way that they can access it at a time an place of their choosing. Clearly this would include websites and interactive TV systems. Similar rights would be given to performers, phonogram and film producers and broadcasters.

The real furore has arisen over the proposed exceptions to these rights. The European Commission are notoriously opposed to the idea of exceptions in copyright and their view is largely based on the powerful lobbying by the leisure, entertainment and commercial publishing world. The proposals for the new legislation do include certain exceptions but these are of a limited, and in the view of most information providers, inadequate nature. Having defined reproduction as including temporary and transient copies, the Commission then goes on to require Member States to make such copies exceptions provided they have no economic significance and are necessary to the technical processes required to use a document. Therefore downloading something legitimately cannot infringe copyright because it results in one or more temporary copies for non-economic purposes. However, the rights of the owner in terms of the reproduction right can be limited in terms of reproduction on to paper or any similar medium by the use of any kind of photographic techniques or some process having similar effects. Presumably this would mean that a museum could photograph an object in its collection or even photocopy a tapestry or engraving. In addition Member States may make exceptions for establishment which are accessible to the public and the copies are not for direct or indirect commercial advantage. Therefore a museum could make photographs of works in its collection but not sell them as postcards, put them on tee-shirts or mugs. But this exception does NOT apply to any form of electronic copying as the exception is only for copying on to paper. Therefore any idea that museums might digitise images of their collections and make them generally available, either for free or fee, would be quashed immediately. It is important to note as well that Member States MAY make such exceptions. There is no obligation to do so. In the present situation most Member States do not have specific "fair use" clauses (one EC Commissioner actually said this was an alien concept in Continental Europe) but do allow some private and personal copying. But Luxembourg, for example, has no such exception and it seems unlikely they would introduce one under legislation which is permissive rather than directive. Thus the idea of the Single Market would crumble as a museum in the UK might legitimately make a copy of an exhibit and send this to Luxembourg where it would immediately be an infringing copy!

However, these limitations do not apply to the Right of Communication to the Public from which there are only very limited exceptions for illustrating teaching and scientific research and the needs of those with disabilities which prevent them from using a work in its usual format. [There are also special rules for national security, reporting current events and criticism and review - the last includes a reference to "fair practice" a term which is currently being used to persuade the Commission that something like fair dealing/use should be introduced throughout Europe].

As the Directive stands it may be possible for a museum to digitise images of material in its collection (although this will vary from one country to another) but to communicate this material to the public would be an infringement of the owners rights. Clearly this would pose insuperable problems in obtaining permission, especially for older material or that produced by obscure organisations. What would be the point in allowing a museum to create a digitised collection if it could not be used for the benefit of the public.

In an electronic context many people suggest that the protection and management of copyright material can be left to the technology. The answer to the machine is in the machine. Recognising this the EC has funded many projects on this topic which are outside the scope of this paper but they have also incorporated this concept in the proposed legislation. Member States are required to give adequate protection to such mechanisms including legislation to make it illegal to circumvent, or manufacture or market devices which can circumvent legally established management systems. There is a swell of opinion in Europe that such mechanisms may well sweep away all idea of fair sue as access will be totally managed by the technology. Therefore it has been proposed that it should be legitimate to circumvent such mechanisms for the purposes of fair practice. Just how it is possible to determine when such circumvention is legitimate and when it is not seems beyond the capabilities of the technology. The alternative view being pressed is that such systems should be able to manage fair use but how do you tell a system when you are being fair and when not?

Conclusion

The EU has introduced a copyright regime that is tougher and less flexible than that of many of the Member States, mainly in the interests of creating a Single Market. In doing so it is well on the way to severely limiting access to cultural, historic, education and scientific materials of all kinds. Its attempts at harmonisation are inadequate and often create as much disparity and harmony. Nevertheless, this is building a cohesive copyright monolith within which rights are clearly defined and from which others can benefit only if they bring their own legislation into line with that of the EC. Museums, archives, libraries and galleries need to keep a keen eye on developments to protect their own rights and at the same time safeguard the interests of their users.

References

Innes, John & McMillan, Fraser (1997) "The Shetland Times" Internet case

Copyright World, no 76, pp26-28

Council Directive 96/9 EC on the legal protection of databases.

Council Directive 93/98EEC harmonising the term of protection of copyright and certain related rights.

Council Directive 92/111 EEC on rental right and lending right and on certain rights related to copyright in the field of intellectual property.

Council Directive91/250/EEC on the legal protection of computer programs.

European Commission (1997) Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society, Brussels, 1997 (COM (97) 628 final)
CORNISH, Graham P (1993) "The changing world of document supply"

Tidskrift for Dokumentation, vol 48 no 3, pp99-104

Cornish (1998) "Opinion: libraries and the harmonisation of copyright." European Intellectual Property Review, vol. 20 No.7, pp 241-243.