The long awaited EU Directive on Copyright in the Digital Single Market (COM(2016) 593 final) has just been published. At this point it is just a “proposal” and will need to complete the EU legislative process. In addition, as a “Directive” it will not have immediate effect in the member states when it has become law. It needs to be implemented in each EU member state and there may be variations in the way it is eventually implemented, although the provisions are mandatory, not optional like most of the current EU copyright exceptions.  It includes some positive features offering modest improvements. The negatives will be covered in a follow-up post:

• Text and Data Mining exception (Art.3). Currently the UK is the only EU members which has a TDM exception.
• Education exception (Art.4) covering the use of digital material for teaching. This complements the existing exception and covers providing digital material in a secure environment such as a VLE. It covers distance learning and cross border delivery within the EU.
• A broader Preservation exception than we currently enjoy in the UK (Art. 5) for cultural heritage organisations which looks as though it might cover collaborative and cross border preservation schemes.
• Framework for applying Extended Collective Licensing (Art. 7) to out-of-commerce works (the UK already has this – it is a weaker solution than providing a new exception, depending as it does on the willingness of rightsholders and collective management organisations).

Perhaps the most positive aspect is that these new exceptions (being mandatory) will apply to all EU member states and will apply to cross-border activities within the EU. [Part 2 on the less positive aspects of the Directive to follow]

Regulations permitting Extended Collective Licensing (ECL) are set to become law on 1^st October. ECL is seen as a solution to the problem of gaining copyright permission for mass digitization projects, through which, for example, a library hopes to digitise a significant collection in order to make it more readily available via a web site. A proportion of the collection is known to be still in copyright and the process of item by item rights clearance can be prohibitively expensive and time consuming. Rights owners are sometimes unresponsive.

The ECL solution enables collecting societies (such as the Copyright Licensing Agency) to apply to the Government to run an ECL scheme which enables them to licence the use of works, the copyright in which belongs to non members of the collecting society. The collecting society must have a well established presence in licensing the relevant type of copyright material in order to qualify.

The scheme, if approved, will enable the library to pay a licence fee to cover its digitisation of a large number of works. The rights owners affected would be able to benefit from fees distributed by the collecting society (just as the members benefit currently). They would also be able to take their works out of the scheme if they objected.

The licences which can be applied for under scheme seem to be of limited duration, which is likely to be problematic for libraries investing in large scale digitisation. It remains to be seen, also, how promptly collecting societies will come forward to take advantage of the new arrangements.

The Government has published its response to the consultation exercise on Extended Collective Licensing. ECL is the solution offered by the Intellectual Property Office to the copyright issues which prevent large scale digitisation projects in libraries, archives and museums. These are projects involving so many works that it would be impractical to carry out a “diligent search” in an attempt to identify the rights holder of each item. The solution would enable collective rights organisations such as the Copyright Licensing Agency to sell licences for large scale digitisation of works which fall within their area. This is achieved by allowing those organisations to licence the works of rights owners who are not actually their members.

There is of potential interest to any library contemplating a large scale digitisation project to make its collection more accessible, particularly if that collection includes a large number of orphan works. The Government aims to have the new regulations in force by 1st October 2014. The proposed 5 year initial limit on licences is likely to be a big issue.