Digitization of different literary works like books, photographs, paintings, and even letters has come to be preserved through the efforts of museums, achieves, and libraries to enable access for every common man. It helps to preserve literature along with cultivating an attitude of making information accessible, ensuring the progression of information as well as entertainment of the masses. The internet itself has become a source of such new forms of authorship. The digital avenue, despite its many positives, suffers from the inhibition of inevitable copying. Some works are copied, some are lost due to removal, replacement, etc., while others remain accessible.
Fundamental Copyright Exceptions
Like all rights, copyright is also not an absolute right. The right comes along with certain limitations and exceptions coupled with a fixed term. The relevant copyright exceptions to digital archives and libraries are usually those dealing with fair dealing/fair use, which may depend on a case-to-case basis. For evaluating fair dealing, the following factors are to be considered:
- Purpose and Character of Use: This implies whether a copyright object is made for personal, educational use (non-profit), or economic use (commercial).
- Nature of Use: The scope of fair use is broadened when it utilizes fact-based works, while it is narrowed in the case of fanciful works. Similarly, published works entail a broader interpretation of the fair use provision, while unpublished works entail a narrow understanding of fair use.
- Amount of Use: When substantial use of the copyrighted work is made, there is a lesser chance of it falling within the ambit of it being fairly used, and conversely, the lesser work is copied, the more are its chances to be fair.
- Market Potential of the Copyrighted Work: A use that supplants the market for the original is unlikely to qualify as being fair.
Other than the previously-mentioned criteria to determine fair dealing, the legislation usually incorporates a provision to allow criticism, comments, news reporting, teaching (including the making of multiple copies for classroom use), scholarship, and research, which is also to be considered as fair use. There is a great degree of uncertainty in the legal frameworks that have been adopted by different nations, which affects the predictability of whether a work shall be considered making fair use of another work.
What are the Copyright Issues in Preserving and Facilitating Digital Copyright Content?
The idea behind the digitalization of copyrighted works was to preserve the content thereof. Therefore, as a passive mode of action, digitization was preferred to recover data where such works were either deteriorated, destroyed, or needed restoration due to any other reason. However, the idea has evolved to facilitate and increase public outreach of such materials.
As most of the domestic pieces of legislation providing exceptions for libraries, archives, and other preservation institutions were created in the earlier times, they often have limitations that are unworkable when applied to digital works. An example of this is that some national laws allow these institutions to make up to three copies of a work for preservation and replacement, but three copies may be insufficient to ensure digital preservations since such laws usually require a library to wait until there is perceptible degradation of the work before making the replacement (for instance, the USA). In the case of digital works, by the time the damage is perceptible, the work may be irretrievably lost as these works may lead to variants and edited works during cataloging, maintenance, etc. The same is especially true when we speak of content that is generally available for online viewing and streaming where the author does not permit retention of copies. It is also observed in the case of user-generated content like blogs. Here, since preservation institutions cannot acquire these materials for preservation, the opportunity to study and learn from them is lost forever.
As has been mentioned above, the key issue lies in the fact that the prevalent legislative does not sufficiently deal with the intricacies of computer-based, networked systems, resulting in many grey areas. Also, since digital content has no territorial boundaries as to who accesses it, it may lead to disputes and infringements abroad for which there is no dispute redressal mechanism. Another issue lies in the fact that while addressing these no-cost copying and infringement issues, a certain balance has to be created. A much stringent and harsh law might result in the elimination of advantages introduced by a particular technology. Furthermore, another issue lies in seeking and acquiring copyright permissions. It has been observed that a majority of the organizations lack the required Intellectual Property Right (IPR) or the adjacent authorization concerning the literature they hold.
Different Routes to Cater to the Issue of Copyright for Digital Libraries
- Digital Right Management (DRM): DRM technologies are those access control technologies that are utilized by publishers, copyright holders, and other individuals to limit the use of their digital content and devices beyond the authorized boundaries by utilizing encryptions and restrictive licensing agreements. For example, Adobe, Amazon, and Microsoft have developed DRM measures to prevent the printing and copying of documents. It helps to secure a return on investment without undermining the author’s work. While this may be a useful method to capture the benefits accruing to the author and permit an adequate functioning of the libraries, and like the institution, in instances where DRM is strictly applied, it may limit the access to libraries as well. The same would mean that a substantial part of the knowledge held in work may not be preserved for the greater good of mankind. Furthermore, DRM measures require constant updating to adapt to the concurrent needs of the evolving technology. Failure to do so may distort or block access as it may no longer be available if not made compatible with the prevalent digital framework.
- Open Achieves Initiative (OAI): It enables easier dissemination of content as it enhances access to e-print archives. This initiative aims to facilitate a broader spectrum of availability of digital materials to promote scholarly communications. This initiative can be realized in one of the many ways, out of which a few are mentioned below:
- OAI-Protocol for Metadata Harvesting: It ensures that the data secured by data providers in the form of structured data can be utilized by service providers by requesting to harvest that metadata.
- OAI-Object Reuse and Exchange: This initiative provides for standards for the exchange of aggregations of the web resources for mutual benefits of both parties in a transaction. Here, an author can be one party while the library maybe another.
- Open-Source Initiative: This is usually used by commercial software companies. It helps in peer production by bartering and collaboration, with the end-product, source material, blueprints, and documentation available at no cost to the public.
These initiatives can also help reform the current scenario by enabling libraries to utilize such initiatives to support preservation as well as the exchange of digital content.
Maintaining the Sanctity of the Digital Content
In the benefit of the public at large and to secure information for further utilization, the following steps may be taken:
- The copyright exceptions should be revised and be extended to information in the electronic medium, likewise as it is protected in print. The first step should be to alter the premise laid under the WIPO treaty and conventions dealing with IPR.
- Those members of a library or digital institutions willing to access digital content should not be charged an additional fee or require special permission to browse publicly available copyright material, to read/view/listen to publicly marketed copyright material for private/limited use, or to copy a reasonable portion of the copyrighted work for personal, educational or research use.
- The lending of published materials in physical-digital formats like CDs, pen drives, etc., should not be prohibited by any legislation.
- Contractual agreements, which may override reasonable lending of electronic or digital content, should be restrained.
- Legislations should give libraries and archives the permission to convert copyright-protected materials into digital formats for their preservation and conservation-related purposes.
- Domestic copyright legislation should aim to strike a balance between the rights of copyright owners to protect their interests through technical means and the rights of users to circumvent such measures for legitimate, non-infringing purposes.
Other than these measures, a few other steps can be personally opted for until a legislative change is introduced concerning the subject matter. Libraries should ensure keeping records or a collective dataset of records to keep track of who utilized, when, and for what purpose a particular piece of information. Using watermarks would also ensure that the digital copy is not utilized in furtherance of unfair objectives. Digital libraries should secure their servers by using Intellectual Property (IP) authentication or generation of user login credentials and passwords. Libraries should not authorize more than a single copy to assure that no unfair use of the ‘fair dealing’ provision is made.
Copyright issues are multiplying with the transforming nature of technology, and for adapting to the same, either reliance may be paid on legislations or private initiatives. While the digitization of copyrighted material and the digital content may be appropriate for maintaining a balance between public use and private utilization of ancillary rights emanating from copyright, it may lead to hurdles in securing return on investments for rights holders. Therefore, policymakers should consider advancing the right step towards digital preservation programs while addressing copyright issues. Cooperative efforts and arrangements should be promoted to enable harmony between preservation institutions and rights holders. Until then, it would be interesting to observe how different nations undertake different routes to realize the fine balance in the light of the current realizes.