Book Review: European Libraries and the Internet: Copyright and Extended Collective Licences

If content does not exist online, it simply does not exist. Would you agree with this statement?

Apparently, we are moving in the direction of substantial online consumption of cultural goods such as books, images, and music. This ‘online’ way of accessing and enjoying cultural content has certainly changed the way that libraries work because they have had to adapt the manner by which they preserve content and make it available to the public. In short, libraries have had to go digital to stay relevant.

Rán Tryggvadóttir explains, in her recent book, ‘European Libraries and the Internet: Copyright and Extended Collective Licences’, that one of the major hurdles faced by libraries in going digital is not so much the technological aspect of digitization campaigns but the legal frameworks with which they need to comply.

The book is divided into three parts. Part I sets the scene by providing key definitions for the main concepts and themes: copyright, exclusive rights in online use, exceptions and limitations for cross-border online use of in-copyright works by libraries. It also gives a useful update on the most recent legal developments on licensing and cross-border use of protected content. Part II delivers a detailed study of “Extended Collective Licensing” in Nordic countries (Chapter 5), the compatibility of the "Extended Collective Licensing" model (see below) with EU legislation (Chapter 6) and the model’s applicability in France, the United Kingdom, Germany (Chapter 7). The third and last part of the book focuses on the territorial issues associated with cross-border licensing. 

Copyright law, as regards the making available of content online, is difficult to navigate, to say the least. For one, information about the work, its date of publication, the identity of the author it and who owns the rights, can be notoriously time-consuming and costly to obtain. Second, even in cases where this information is available, libraries will still have to secure complex licensing agreements, country per country, if they wish to offer content via e-lending (i.e. lending online), because copyright is territorial. Altogether, this makes for a cumbersome (well-nigh impossible?) legal framework in which to work. 

So what’s the solution? Tryggvadóttir in the introduction to her book sets out two main routes in the introduction to her book:

(1) Expanding current copyright limitations and exceptions to ease the work of libraries and similar cultural institutions in making content available online. [This was done with moderate success with the Orphan Works Directive 2012, for example];

(2) Improving licensing structures for making content available online. [Again, Tryggvadóttir stresses than neither individual or collective licensing schemes has a particularly satisfactory track-record in facilitating the work of libraries at the moment]

Nordic cats on the case!

Between the two approaches, Tryggvadóttir opts for the second as the preferred recommendation for reform. However, noting the well-documented flaws of most licensing schemes, such as their lack of transparency or their limited scope of application, the author proposes to develop a new type of cross-border licensing scheme, based on the model of ‘Extending Collective Licensing’ currently existing in the Nordic countries viz, Denmark, Finland, Iceland, Norway and Sweden. 

Now what is ‘Extended Collective Licensing’ (or ‘ECL’ for short)?

 Tryggvadóttir writes:

An extended collective licence is a licence for a specific use of in-copyright works in a specified field based on an agreement that a CMO [Collective Management Organisation] makes with a user such as a library, and which is extended to rightholders that are not members of the CMO, often called outsiders. The legal effect of the extension is made possible by a [legislative] provision in a copyright act (7)

In the author’s view, this model is the way to go. On the one hand, ECL provides the legal certainty which libraries need and demand. On the other, ECL offers flexibility by allowing the formation of multiple licensing agreements depending upon the specific rightsholder group.

Tryggvadóttir delivers a thorough study on how this type of licensing agreement would work in jurisdictions other than in the Nordic countries and whether such a model would be compatible with international intellectual property agreements [spoiler alert: the answer is "yes, it is or would be compatible"]. More specifically, the book looks at the UK, German, and French law. The aim of the book is to address the specific problems of cross-border access and use of in-copyright works online via the ECL model.

Tryggvadóttir does concede that the ECL model is not a magical solution. The author adds in conclusion that ECL would only reach its optimal efficiency if it were to be combined with revised copyright limitations and exceptions, specially directed towards libraries. The book does not dwell on this complementary measure, as its primary focus remains ECL.

You said flipping through books?

For its comprehensiveness and detail, this book is a welcome contribution to the scholarship on the question of copyright licensing. Its comparative dimension is also particularly useful in considering the cross-border dimension of online access. With its 12 chapters and nearly 500 pages, with a whooping 2985 footnotes, readers will be unlikely to read this book cover to cover in one seating. The book is a bit repetitive in places. But this repetition will be useful to anyone who will open and flip through the book to consult a certain part of the discussion at a time, because each section is relatively self-contained. This book will be of interest to anyone looking interested in the current debates on copyright licensing, cross-border use of in-copyright works, and online access of in-copyright works. 

Book reviewed: Rán Tryggvadóttir European Libraries and The Internet: Copyright and Extended Collective Licences, (Intersentia, KU Leuven Centre for IT & IP Law Series, Vol 2), 1^st edition. October 2018. Xxiii + 448 pages. Hardback & e-books from 105euros (here).