THE THREE PILLARS OF COPYRIGHT

This report addresses the current state of the international copyright framework, and the implications and opportunities for publishers of changes in copyright law, particularly relating to electronic publishing, as well as considering what remedies the law provides for copyright abuse. As well as analysis of the most important recent cases, the report contains the opinions of leading publishers on the key copyright issues.

The Three Pillars of Copyright

In order to provide a framework within which to discuss the implications of developments in copyright law, this report groups copyright issues into:

Rights and exceptions;

Management of rights;

Enforcement and remedies.

Rights and Exceptions

The WIPO Copyright Treaty of 1996 provides the core of the copyright digital agenda and forms the legal basis for key individual country law, most importantly the US Digital Millennium Copyright Act (DMCA) of 1998 and the EU Copyright Directive of 2001.

Fair use

The report looks particularly closely at the implications for content providers of exceptions relating to fair use in the areas of:

Libraries, educational establishments or museums

Teaching or scientific research

Educating the market

Publishers agree that there remain major misconceptions among content users about the nature of copyright. The impression that publishers are rich corporates grabbing the budgets of teachers, academics and librarians persists, while the role of publishers in organising, marketing and managing content is not considered. Those infringing on copyright are also unaware that they are depriving the author of royalties.

Management of Rights

The principal rights management channels are:

• Individual ('one to one' contracts);
• Collective (e.g. photocopying and now digitization licences via the Copyright Licensing Agency);
and
• Digital rights management.

Specific forms of exploitation

Because the Courts take a restrictive view, contracts that therefore spell out specific forms of exploitation without more general wording are vulnerable. This has been the key factor in two high-profile cases - Tasini v The New York Times and Random House v Rosetta Books.

One-to-one licences

There is a move away from grants of 'electronic publishing rights' to much more specific grants of rights for public, semi public and private networks (the web, extranets, intranets).

Collective licences

Collective licensing bodies continue to play an important role for publishers in generating revenue outside their core, 'one to one' activities. The Copyright Licensing Agency is effective in ?sweeping up the crumbs in the corner?, bringing in small amounts of revenue that would not be practical to chase on an individual basis.

Digital Rights Management

Publishers agree that DRM technology eradicates ambiguity over the use of copyright material. However, this report found a consensus that customers are not yet ready to accept the restrictions that this technology imposes. In particular, the library community would be unwilling to make changes in its working practices.

Enforcement and remedies

Many publishers remain shy of litigation in this area, though the law does provide the appropriate remedies. It is often not cost-effective to pursue large numbers of copyright abusers. As the crusade of the music and movie industries against P2P networks has shown, even with deep pockets it can be very difficult to pin down those who are infringing on copyright. Whilst legal action has its place, the commercial threat to publishers posed by the internet has, in the final analysis, been answered by a range of commercial solutions.