Using Copyrighted Works for Research Purposes

(IPRinfo 2/2009)

Marjut Salokannel
LL.D., Docent
Clarin Infrastructure Project

EU Member States regulate the copyright exceptions for teaching and research differently. Acknowledging the problems caused to the free flow of information, the European Commission published a Green Paper last spring.

In this article I discuss the current copyright framework with regard to using copyrighted works for research purposes as well as the need for a necessary statutory framework for intra-Community research networks.

The proclaimed purpose of theGreen Paper on Copyright in the Knowledge Economy was ’to foster a debate on how knowledge for research, science and education can best be disseminated in the online environment.

It also wanted to investigate whether the so called ”Fifth Freedom”, the free movement of knowledge and innovation within the European Community was being realized in practice.

The Green Paper opened a consultation to the Member States and interested parties as to whether the current mode of harmonizing copyright exceptions is feasible in the on-line environment in areas where public interest is particularly pronounced. The Green Paper focused on the following areas:
– the exception for the benefit of libraries and archives;
– the exception allowing dissemination of works for teaching and research purposes;
– the exception for the benefit of people with disability;
– a possible new exception for user-created content.

Knowledge creation is a cumulative process
In economic theory, knowledge is regarded as a global public good. It is non-exclusive and non-rival: one person’s use of knowledge does not prevent another from using it. Furthermore, knowledge does not diminish when it is used, rather on the contrary.

Knowledge creation is a cumulative process where all new knowledge is built upon the existing one. Intellectual property rights make knowledge excludable; they submit knowledge under private property rights and thus retreat it from the public sphere. This creates losses for the society.

Under the current statutory framework, the optimal intellectual property protection would optimize the incentive effect of IPRs without causing insurmountable dead-weight losses for the society. Recent discussion within the copyright world has reflected upon this issue.

In fact, the Commission acknowledges this by the very act of launching the consultation process on copyright exceptions. The Green Paper states that in the early phase of copyright harmonization the goal was to provide the rightholders with a high level of protection.

Hence, the broadly defined exclusive rights. It concedes, however, that the system has not necessarily succeeded in providing authors and performers additional revenues for the new rights. With regard to the functioning – or non- functioning – of the database protection, the Green Paper refers to the earlier report in this regard.

The expanding of rights is discussed on many fora
The provisions securing the public interest within the copyright law have not been harmonized within the Community. The Infosoc Directive provides for an exhaustive but non-mandatory list of exceptions (Art. 5). Thus, the Member States may not introduce any exceptions beyond those provided in the Directive but they are free to forego of applying them.

In consequence of the diverse regulation of copyright exceptions in the EU, the use of works for e.g. scientific research may be permitted under certain circumstances in certain member states but not permitted without a permission from rightholders in others. This unnecessarily complicates, i.a., transnational distant learning and the work of researchers.

The Green Paper is part of a larger trend of discussions at the international fora with regard to expansion of exclusive rights brought about by digital technologies. There is a similar preparatory work going on within the World Intellectual Property Organization WIPO relating to harmonizing exceptions to copyright at the international level.

With regard to the Green Paper, the Max Planck Institute, for example, highlights the fact that in practice the current regulation encloses scientific knowledge behind technological and legal locks. This, for its part, goes directly against the free movement of knowledge within the Common Market stressed elsewhere by the Commission as one of its core goals for the future.

The Commission has tried to bring forth the public good nature of knowledge in the public sector information (PSI) directive 2003/98/EC. During fall 2008 a consultation was conducted with regard to its functioning.

One of the questions was whether the scope of application of the directive should be extended to cover collections of public cultural and educational institutions. In this connection it should be highlighted that in the United States all materials produced by the federal government are copyright free.

Research is normally considered a non-commercial activity
According to the InfoSoc Directive (Article 5,3), the Member States may provide for exceptions and limitations to the right of reproduction and right of communication to the public for [u]se for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved.

The research is deemed non-commercial also in cases where it is conducted with third party private funding if the research as such is non-commercial, for example research done in public research institutes.

In the Green Paper, the Commission acknowledges that this exception has often been implemented in a narrow sense and e.g. distance or internet-based learning is not included. The fact that it only covers making copies of excerpts of research material and not entire works is also problematic in the Commission’s view.

Some Member States extend the exception both to the right of reproduction and to the right of communication and making available to the public. Some restrict it to the right of reproduction whereas others limit the right of making available by other means.

Moreover, according to the Commission, the extended collective licensing solutions adopted in the Nordic laws present the risk that no agreement or a rather restrictive agreement will be reached, thus creating legal uncertainty for educational establishments.

It seems clear for the Commission that differing regulations in Member states create legal uncertainty, in particular when teaching and research is carried out within a transnational framework. The Commission asks whether this exception should be made mandatory and what its scope should be.

The collective licensing versus copyright exceptions
In Finland, there exists no general exception with regard to use of works for educational and research purposes. The law contains only limited exceptions with regard to the recording of Finnish television broadcasts and photocopying.

The Copyright Act provides for a possibility for a collective contractual agreement concluded between an organization representing rightholders and an institution representing users in the particular area.

The scope of such an agreement is extended to cover rightholders not represented by the organization. The law came into force in 2007, but still no agreement has been concluded between the relevant parties.

As the Commission states in the Green Paper, extended collective licensing agreements do not offer similar legal solutions as copyright exceptions do. Moreover, those agreements do not provide immunity for the users against criminal liability. This makes the situation particularly problematic for educational and research institutions operating under public law.

Even if there were a collective licensing agreement in force for a certain use of works, the institutions could still be made liable under criminal law in face of, e.g. the demands of certain foreign rightholders.

Until today, the contracts concluded under collective licensing provisions have been relatively limited in scope and restricted to domestic rightholders. It is understandable that local organizations do not willingly take responsibility for the clearing of rights for rightholders around the world.

Nor does the Finnish law provide for an exemption for using databases for research purposes. Since even private copying of databases is not permitted, browsing e.g. large genomic databases for scientific research purposes is not possible without the permission of the rightholders.

Securing researchers’ interests varies between the Member States
In comparison, the German law allows making available already published works, small works and single contributions of newspapers or periodicals to small, well-defined groups for conducting research (Section 52a of the Urheberrechtsgesetz).
Under this exception, works may only be made available to a limited group of students or scientists. Therefore, access has to be controlled by e.g. technical means. This exception is only applied for non-commercial purposes, and it is in force until the end of 2012.

In the UK, the copyright law contains a broad fair dealing exception, which permits using literary, dramatic, musical and artistic works for non-commercial research purposes provided that it is accompanied by a sufficient acknowledgement when practicable. The law also permits similar fair dealing with protected works for private study (Copyright, Designs and Patent Act, 1988, Section 29).

A researcher may access material in several points of the research infrastructure situated in different Members States. In this situation it is essential that these acts are governed by similar legal provisions throughout the infrastructure.

Minimum level copyright exceptions needed
When the free circulation of knowledge within the EU is regarded as one of the cornerstones for the future development of the knowledge economy in Europe, it is essential that the public interest with respect to the creation and availability of scientific knowledge is governed by similar rules throughout the Community.

What we need is an open list of copyright exceptions, which provide the Member States with the possibility to adapt their legal framework to the changes in technology, production practices of scientific knowledge and the markets.

The public interest, however, must be secured through mandatory and detailed minimum level of exceptions in areas that are crucial for knowledge production and the free circulation of knowledge within the EU. The mandatory nature of exceptions would mean that it would not be possible to circumvent them contractually or through technological means.

Researchers and research institutions must be able to rely to have a similar legal position in all Member States in respect of accessing and producing knowledge. Without such legislation it is not possible to create European research infrastructures nor a European research area.

LEGISLATION AND DOCUMENTS

The web site of the European Commission on copyright and neighbouring rights: http://ec.europa.eu/internal_market/copyright/index_en.htm

The Commission of the European Communities: Green Paper – Copyright in the Knowledge Economy. (COM(2008) 466/3) .

European Commission – Green Paper: Copyright in the Knowledge Economy – Comments by the Max Planck Institute for Intellectual Property, Competition and Tax Law, Planck Institute for Intellectual Property, Competition & Tax Law Research Paper Series No. 08-05(December 3, 2008)

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions
A single market for 21st century Europe. COM(2007) 724 final, 20.11.2007
Appendices: {COM(2007) 725 final}, {SEC(2007) 1517}, {SEC(2007) 1518}, {SEC(2007) 1519}, {SEC(2007) 1520}, {SEC(2007) 1521}

”InfoSoc Directive”:
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
OJ L 167, 22.6.2001, p. 10-19

Public Sector Information Directive (PSI)
Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information
OJ L 345/90, 31.12.2003