British Music Rights (see note 1) welcomes the opportunity to respond to the Commission Communication on i2010 Digital Libraries. We recognise that the preservation of cultural heritage by digitisation – particularly of out of copyright works, is a commendable aspiration. However, as representatives of a creative community of composers, songwriters and music publishers, British Music Rights urges the EC to consider carefully what sensible role libraries should have in digitising and digitally distributing material in view of the very significant impact that this could have on the commercial market for creative material on which Europe’s creative industries, employing some 5.2 million people, rely. If libraries wish to provide remote and digital access to their collections, they will invariably move away from the traditional library sphere and effectively become commercial operators, therefore needing to seek copyright clearance for non-public domain material.

For instance, it is already notable in practice that public lending libraries now compete directly with music publishers in hiring out copyright music scores (notably to orchestras and choral societies) thereby undermining the publisher's investment in that publication. UK music publishers do not currently benefit from the Public Lending Right.

In light of the consultation questions, British Music Rights advances the following recommendations:

• Transparent and open discussion with all interested parties – We welcome the establishment of a High Level Working Group to discuss the issues at hand as undertaken by the European Commission. Creators and publishers need to be represented at these meetings, and at the proposed EU conference which is planned in the autumn.

• Regulatory Impact Assessment undertaken - Given the potential impact upon commercial considerations there needs to be a full cost/ benefit assessment undertaken, preferably by an independent economic consultancy. In addition to a comprehensive assessment of the economic impact on the creative industries, any activities on digital libraries need also to consider more societal effects such as publishers’ activities to promote creativity through investment in developing new talent and all the administrative functions relating to copyright such as royalty collection and open new markets.

• Limitation to public domain works - We suggest that any activities of libraries on digitisation and online accessibility be originally limited to out of copyright, public domain works which are the natural focus for digital preservation. As regards copyright works the respective right holders seem best placed to decide how to digitise their works and how to make their material available online. It is evidently in the interests of composers and music publishers to make their music available to consumers according to consumer requirements regarding format.
The limitation of the project to the copious volume of public domain works would avoid the need for involvement in any copyright licensing process thus allowing libraries to focus their resources on the digital preservation of older “at risk” works (see note 2).

• Monitoring related industry initiatives - We recommend that existing industry initiatives (for instance by international ICT companies such as Google and Microsoft) should be closely monitored as to whether they achieve what they endeavour to do whilst respecting the interest of individual composers and music publishers.

• Digital Rights Management - Digitisation and the making available of digitised content, whether in copyright or not, should involve the application of common formats, identifiers and where appropriate, Digital Rights Management. The application of Digital Rights Management systems for the making available of material within the premises of libraries is already subject to discussions between libraries and publishers on the licensing agreements.

1. Questions on digitisation and online accessibility

It is key to keep the two activities, i.e. digitisation and online accessibility respectively, strictly apart in view of different underlying justifications, technological requirements and legal conditions.

Digitisation / Preservation
Justification: Digitisation of analogue public domain material for the purposes of preservation might be required to prevent valuable material from deteriorating, but we would welcome more information indicating the extent of the problem in practice for specific sectors. Moreover, the example of the Domesday book, i.e. that digital copies of the Domesday book are now unreadable due to technological developments whilst the 900 years old hard copy is still readable, raises some questions on the role of digitisation for preservation purposes. Additionally, it is difficult to appreciate the benefits of further digitisation of ‘born digital’ material for preservation purposes.

Legal conditions: Whilst digitisation of works invariably requires the making of a reproduction, an act restricted by copyright, limiting digitisation of libraries to out-of-copyright, public domain works will ensure that there will be no legal implications (nb. Notwithstanding certain printed editions of out of copyright works, more specifically their typographical arrangement might still be in copyright). As mentioned above, rights holders are best placed to decide how to digitise their works. The development of online business models for music has already required the digitisation of material, and any Commission-led initiative on digitisation might merely duplicate this effort.

Online accessibility / Distribution 
Justification: Wide accessibility of digitised works outside the library environment is not justified for the preservation of the European cultural heritage. Digital distribution is outside the remit of the activities and functions of libraries which are generally understood to be a place in which literary and artistic materials, such as books, periodicals, newspapers, pamphlets, prints, records, and tapes, are kept for reading, reference, or lending. Libraries by their nature and set-up are neither providers of commercial information society services nor necessarily experienced in the technological aspects of digital distribution.

The Communication makes the economic predication that rendering libraries telecom providers will allow them to develop business models and even create further employment in the library sector. The Commission is aware that wide and free accessibility of copyright digital material would directly conflict with the interests of music publishers, most of them SMEs, and would constitute unfair competition since publicly funded libraries do not rely on economic profits.

A full economic impact assessment would therefore determine the potential (adverse) impact of any Commission initiative in this area.

Legal conditions: In addition to the reproduction right, the making available of material online involves the communication to the public right which also requires the authorisation by the holder of the copyright. Notably, under EU copyright law, the relevant exception, Article 5 (n) of the Copyright Directive is limited to onsite activities  (“dedicated terminals on the premises of …(publicly accessible libraries)”).

1) What additional measures could be taken at national and European level to encourage digitisation and online accessibility of material in all European languages?

We urge the Commission to involve all interested parties in any future initiatives in order to get as comprehensive view of the issues at hand as possible and take advantage of the experience already available in this area. The creative community and publishers are central to these discussions. Right holders, such as producers of sound recordings and motion pictures, have already invested significant resources in restoring old recordings of their works (see note 3); museums make high quality photographs of their exhibitions available on CD rom. Of course, investment in digitisation and restoration needs to be economically viable and should be done by professionals with the respective technical expertise, whilst taking into account the economic rights of the original creators, publishers, performers and producers and moral rights of authors and performers.

2) What measures could be taken to promote private investments and new business models such as public-private partnerships for digitising and making historical collections accessible?
 
Whilst direct funding for mere technological digitisation initiatives through Commission projects (such as PrestoSpace) seems appropriate for the development of technologies for the preservation and digitisation, wide accessibility of copyright works is best promoted by safeguarding the investment of the creative sector (in particular, by protecting the IP rights involved) and by promoting trade in digitised works.

3) What measures of a legislative, technical, organisational or other nature, could facilitate the digitisation and subsequent accessibility of copyrighted material, while respecting the legitimate interests of authors?

With regards the legal situation we suggest that limiting any initiative to out-of-copyright, public domain works and focussing on the objective of preservation will ensure that there is no negative impact on the legitimate interests of authors.

Clearly access to copyright material needs to comply with existing copyright laws and in particular the  internationally established three step test, i.e. any exception to copyright must be limited to certain specific cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. The three step test also applies to copyright exceptions enjoyed by libraries.

4) Is the issue of orphan material economically important and relevant in practice? If yes, what technical, organisational and legal mechanisms could be used to facilitate wider use of this material?

Regarding orphaned material, we understand that presentation of a trail of the research undertaken to identify ownership and the efforts undertaken to clear the rights should be a sufficient defence to an infringement claim. If the investigations are successful then it is more than likely that the relevant right holder will be keen to license the use of their material. 

5) How could public domain material and other material available for general use (voluntary sharing) be made more transparent and widely known in order to facilitate its online availability for subsequent use?

We have already said that there may be a role for libraries in the digitisation of public domain works and any catalogue system that is developed as part of this will of course be beneficial. In the UK, the copyright status of works and printed editions can be verified by contacting a publisher, or relevant trade body (in the case of music the Music Publishers Association) or collecting society. In the case of printed music, the publisher can also advise as to the availability of those materials for purchase or hire. If creators opt for voluntarily sharing their works based on an informed choice about the consequences they can do so and have always been under existing copyright legislation.

Preservation of digital content

6) What priority measures – in particular of an organisational and legal nature-– should be taken at national and European level to optimise the preservation of digital content with the limited resources available?

We suggest that the preservation of digital content is best accomplished in co-operation between the different stakeholders, in particular right holders and the providers of digitisation services. The market based on consumer demand will enable the development of a system acceptable to everyone, in particular for copyright material.

7) Is there a risk that national legal deposit schemes lead to a multiplication of requirements on internationally active companies? Would European legislation help avoiding this?

The legal deposit scheme operating in the UK is based on the 1911 Copyright Act as amended by the Legal Deposit Libraries Act 2003; we are not aware of problems during the ongoing discussions between the libraries and the publishing community laying down the conditions purely in relation to those works actually published in the UK.  However, it should be noted that Legal Deposit libraries as beneficiaries of a free copy of every book published in the territory also have an additional responsibility in respect of how to deal with these books.

8) How could research contribute to progress on the preservation front? Which axes of work should be addressed in priority by the forthcoming Specific Research Programmes as part of the 7th Framework Programme?

It is important that any Community funded Research project (such as the PrestoSpace project) takes a balanced approach by consulting all interested parties, including right holders.

Notes

1. British Music Rights is the consensus voice of Britain’s composers and songwriters, music publishers and their collecting societies. The members of British Music Rights are the British Academy of Composers and Songwriters, the Music Publishers Association, the Mechanical-Copyright Protection Society (MCPS) and the Performing Right Society (PRS), which together represent some 40,000 composers and songwriters and over 2,500 music publishers
2. A good example, already available, is the interactive Turning the Pages program, initially developed by the British Library, allowing museums and libraries to give members of the public access to precious books while keeping the originals safe: http://www.bl.uk/onlinegallery/ttp/ttpbooks.html
3. e.g. the commercially very successful restoration in the Eighties of Fritz Lang’s Metropolis from 1927; or the publication of recordings of A. Toscanini from the 1930s.