COPYRIGHT LIMITATIONS : TO PRESERVE OR ABOLISH?
P. Bernt Hugenholtz
University of Amsterdam, Institute for Information Law

Recent developments, many inspired or triggered by the new digital networked environment, have greatly affected the existing 'delicate balance' between copyright protection and user freedoms.

Over the past 100 years we have seen a host of newcomers entering the intellectual property arena: from performing artists to software producers, from publishers of ancient manuscripts to designers of semiconductor chips. This trend has most recently culminated in the European Database Directive, which is currently being implemented in the member states of the European Union. As of 1 January 1998, a novel database right provides for strong protection of database producers against unauthorized uses of non-original compilations of data, which were previously in the public domain.

Attempts to 'clarify' the scope of copyright protection have dominated the international copyright agenda of recent years. A proposal to write into the WIPO Copyright Treaty a provision that would stretch the right of reproduction to include all temporary copies that occur during acts of digital transmission and reception, was thwarted only in the last minute. On the European front, a similar provision features prominently in the European Commission's recent proposal for a copyright directive. Already, the European Software and Database Directives expressly recognize an exclusive right of temporary copying. Thus, a powerful new right is being added to the copyright owners' panoply of rights: a right to use works electronically.

Moreover, the term of protection has been extended as well. Thanks again to the European legislature, the Berne Convention minimum of 50 years post mortem auctoris has been increased, for all states of the European Economic Area, by another twenty years. It is expected the United States and other countries are soon to follow.

Finally, encryption technology combined with online licensing is adding an extra layer of techno-contractual protection to published works. Never content, publishers are now demanding legal protection of these so-called technological measures. Current proposals in the US and the EU already provide for novel legislation to this effect.

Not surprisingly, libraries, universities and other (institutional) users are pressing for the preservation of copyright limitations in the digital environment. This concern is reflected in the U.S. Green Paper of the NII Working Group on Intellectual Property Rights (1994):

'As more and more works are available primarily or exclusively on-line, it is critical that researchers, students and other members of the general public have opportunities on-line equivalent to their current opportunities off-line to browse through copyrighted works in their schools and public libraries.'

Right owners, on the other hand, argue that many of the existing limitations should not survive in the new environment. Existing statutory licenses for photocopying and other mass reproduction do not reflect a fundamental `freedom to copy'. These statutory licenses have been introduced for merely practical reasons; no individual licensing of mass private reproduction was considered feasible. According to right owners, all this is changing in the digital networked environment. The built-in intelligence of the superhighway will enable them to grant and administrate licenses to individual users themselves. Works disseminated over the superhighway will carry identifying 'tags', inviting prospective users to (automatically) contact right owners, or 'permission headers', containing predetermined licensing conditions to which users may agree in real time. Thus, the digital networked would bring back to rightholders what they (nearly) lost in the age of mass copying: the power to transact directly with information users.

There is merit in both arguments. Consequently, it would be simply too facile to recommend a mere restatement of existing limitations and exemptions in digital (or media-neutral) terms. The rationale of many existing limitations may not justify simply converting them to the digital environment. Instead, we must differentiate.

Exemptions deriving from market failure, such as existing 'reprography' schemes, most certainly deserve critical review in the light of new technological developments. The same may be true for certain public interest inspired limitations, such as existing library privileges or educational exemptions. The problem is: nobody knows what a 'library' or a 'school' will look like in a truly digital environment. A traditional library has four walls, a front door, stacks of books and limited opening hours. The physical construct of a library serves as a natural limit to the library privilege. By contrast, a digital or virtual library is (at least potentially) ubiquitous, and open day or night to an unlimited global user group. The digital library has the potential of totally replacing the roles of publishers, vendors and other primary exploiters of copyrighted works. What is called for, then, is a clear definition of library functions that merit special treatment (i.e. a library privilege) under copyright law. Ultimately, preserving library privileges in the digital environment will require a thorough rethinking of the public service role of libraries as such.

However, matters are different in respect of exemptions primarily aimed at safeguarding the users' fundamental right of expressi-on and informati-on. This category comprises limitations for the purposes of news reporting, criticism, academic and (other) scientific purpo-ses. Exemptions of this category must, in my opinion, be kept intact as much as possible in the digital environment. Where novel rights are created that undermine fundamental user freedoms, such as the Database Directive's sui generis right, broad exemptions must be granted to restore the 'delicate balance' between information property and public domain. The reasons for respecting essential informational freedoms, and making them immune to the exercise of property rights, are at least as valid in the digital environment as they were (and still are) in the analogue world. Arguably, exemptions of this kind are mandatory, and might not be overruled by contractual provisions.