On the Limitations and Exceptions of Copyright System in Digital Library Part Three

In other words, how can rational use better promote the healthy growth of digital libraries? In order to better solve this problem, first of all, review the provisions of the traditional copyright law on the rational use of libraries. It also analyzes the challenges and impacts of these fair use regulations in the digital era, so as to lay a good foundation for improving and perfecting the fair use of digital libraries.

In the legislative practice of various countries, libraries are endowed with the right of reasonable use when reproducing works, and these reproductions are basically to preserve and replace the needs of the collection version or the use of personal learning and research. For example, Article 31 of the Japanese copyright law stipulates that as a non-profit institution, public libraries can copy books, records or other materials kept by the library.

Article 20 of the law of the Russian Federation on copyright and neighboring rights stipulates that: Photocopying and reproduction by libraries and archives for repairing and replacing lost or damaged samples of works, and reproduction of single articles and small works published in anthologies, newspapers and periodicals and short fragments of literary works by natural persons for teaching and research purposes. The reasonable use of a library generally refers to the reproduction of its collected works under the following circumstances, and the reproduction of a single work in a part of a journal of published works for the needs of readers’ personal study and research. Each person is limited to one copy. Copy out of print or hard to purchase works for the purpose of preserving data and replacing damaged or lost samples of works, and for the purpose of preserving and replacing institutions of the same nature.

It can be seen that the traditional legal system of copyright is designed for the rational use of libraries, which is difficult to be directly applicable to digital libraries. This is mainly manifested as: after the digital library digitizes its works, it provides readers with reading and browsing on the library network, which is not involved in the traditional copyright law. In this case, the implementation of the above-mentioned acts may infringe upon the interests of the copyright owner. In order to ensure the use of library information resources by the public, promote the prosperity and development of human culture, and solve the problem that the scope of people’s access to information is too narrow. In the case of appropriate restrictions on the exclusive rights of copyright owners, countries began to modify the traditional copyright law on the rational use of libraries, and redesigned the rational use of Libraries in the digital era from the institutional level.

For example, the EU green paper in 1995 holds that “in the process of promoting the wide dissemination and utilization of works and information, the library plays a very important role. It is the link and bridge between obligees and the public. Therefore, it should be subject to the minimum restrictions in the new technological environment.”

In 1899, the Digital Millennium Copyright Act of the United States expanded Article 108 of the United States Copyright Act, granting exemption to non-profit organizations such as libraries and archives, and allowing the production of three copies of works for collection purposes. Moreover, the copy is not limited to the original form. The copy is only available to the public in the museum, and may not be lent out of the museum or transmitted out of the museum through the network.

The copyright law of Australia in 1999 also stipulates that libraries and archives can use new communication technologies to provide works to the public in the network environment, just like using existing technologies. Libraries can also upload works to the network, but can only provide readers with screen browsing of works (not output to printers or floppy disks). Article 10 of the Berne Convention stipulates that the reasonable citation of copyright works and the use of copyright works for teaching purposes can be regarded as indirect provisions on the reasonable use of libraries.

Article 9 of the TRIPS Agreement explicitly incorporates the annexes of articles 1 to 21 of the Berne Convention into the system. Therefore, it can be considered that the provisions on fair use in the TRIPS agreement should be almost the same as those in the Berne Convention. However, Article 13 of the TRIPS Agreement is to regulate the degree of freedom for countries to formulate corresponding fair use in their domestic copyright laws from the perspective of the restriction of fair use, that is, the “three-step test principle”. Article 13 of trips stipulates that Member States should limit the restrictions or exceptions of exclusive rights to certain special cases, which do not conflict with the normal use of works, nor harm the legitimate interests of obligees. Wwct and the World Intellectual Property Organization (WIPO) Treaty on performances and Phonograms (WPPT) are two new treaties formulated by the World Intellectual Property Organization (WIPO) to meet the challenges of the digital environment. Article 10 of WCT reaffirms the three-step test principle of trips.

At the same time, the agreed statement of the treaty points out that contracting parties are allowed to extend the limitations and exceptions in their domestic laws that have been recognized by the Berne Convention to the digital environment. Similarly, these provisions should be understood as allowing contracting parties to establish appropriate new exceptions and restrictions in the digital network environment.

In addition, we should pay attention to IFLA’s position on copyright in the digital environment. As IFLA is a non-governmental organization engaged in supporting and coordinating research in information work and representing the interests of libraries all over the world, that is, the interests of the majority of users, its copyright statement undoubtedly plays a very important role in the library community. In this statement, IFLA mainly expressed its views on the exemptions and exceptions for the fair use of Libraries in the digital environment.

The author thinks that the temporary copy or technical copy attached to the use of copyright materials by the library should not belong to the scope of the right of copy. At the same time, the author thinks that the library users should copy a reasonable proportion of copyright digital works for personal research and teaching purposes, which should also be included in the scope of the reasonable use of the library. The author also makes a stand on the problems of borrowing and preserving versions.

Obviously, the above provisions affirm that the library’s use of digital technology to copy works belongs to the scope of rational use to a certain extent, and also provide an institutional basis for the survival and development of digital libraries. As far as China is concerned, the copyright law was greatly revised in 2001, involving many articles and extensive contents, and trying to be in line with the TRIPS Agreement. As far as fair use is concerned, the copyright law involves five aspects, namely Article 22, paragraph 1, item 3.4.7.9.11. The number of reasonable use cases tends to decrease, and the required conditions tend to be strict. However, on the whole, fair use still needs to be further improved. Through this amendment to the copyright law, the scope of fair use has been further narrowed. However, compared with trips and the Berne Convention, there is still a gap. As far as the rational use of works by the library is concerned, there is basically no change. For example, item 8 of Article 22 stipulates that libraries, archives, memorial halls, museums, art galleries, etc. need to copy the works collected by the library in order to display or preserve versions. It can be seen that the works in the library can only be copied for the purpose of displaying or preserving versions. However, the Chinese copyright law defines reproduction in the form of enumeration. For example, in strict accordance with the Chinese copyright law, the digitization of library works does not belong to rational use.

Therefore, researcher Xu Zhao suggested that paragraph 8 of Article 22 of China’s copyright law should be amended accordingly to clearly stipulate that the digitalization of the library’s collection of works should be included in the scope of rational use. And reproduction should not be limited to specific tangible forms, but also include intangible forms, that is, the permanent reproduction of digital works and its accompanying temporary and incidental reproduction. Of course, this kind of reproduction is only limited to the needs of digital library for collection and edition preservation. This is very beneficial to accelerate the construction of China’s digital library, change the difficulties of the public in obtaining information, and improve the cultural quality of Chinese citizens. At the same time, Mr. Xuzhao also believes that it is reasonable for the digital library to spread digital works in the library with the help of the network technology in the library. Of course, the network transmission in the library is only for readers to read or browse on the computer screen in the library, and does not include the transmission outside the library or printing or downloading.

These Regulations are very beneficial to the healthy growth of digital libraries. However, the regulations of various countries are still conservative on whether the off library network communication of digital libraries should be included in the rational use. Some scholars believe that the dissemination of works outside the digital library should be included in the scope of rational use under fairly strict conditions and under the condition of balancing the interests of copyright owners and the public. Otherwise, the digital library still does not meet the expectations of the public, and people’s access to digital works is still very limited. If the access and use of digital information are paid, it will inevitably affect the ability of digital libraries to provide information services to the public. At the same time, they may not be able to access these digital works because they cannot afford to use information, which is against the principle of balance of interests. These scholars advocated that the principle of limited use could be used to regulate the network communication outside the Library: namely, the principle of limited users, the principle of limited content and the principle of limited technology. They believed that reasonable use should be given under the conditions of seed delivery.

Researcher Xu Zhao believes that the reproduction of digital libraries for the collection and the preservation of versions, as well as the dissemination of their digital works to readers in the library with the help of the library’s network technology, is only limited to reading or browsing (excluding printing and downloading) on the library’s computer screen, which is a reasonable use. This is not only a reasonable restriction on the rights of copyright owners, but also a norm for the digital library itself. At the same time, it also complies with the “three-step inspection standard” for reasonable use in Article 10 of the TRIPS Agreement, namely:

 

1. whether it is limited to certain special cases. As mentioned above, a digital library must first digitize its works, otherwise it cannot exist. Digital works only change the external expression of works, and many countries also stipulate that libraries can copy their collections in order to preserve or replace them. The dissemination of digital works in the museum must also be copied first, so it is limited to certain special cases and meets the first step test standard.

 

2. whether it conflicts with the normal use of the work. There is no essential difference between the digital library’s dissemination of its works in the library and the library’s provision of its works to readers. It is just that the use form of the work has changed, which meets the second test standard.

 

3. whether it has unreasonably damaged the legitimate rights and interests of the obligee. The reproduction of Digital Library and the network communication in the library will not damage the legitimate rights and interests of the obligee. Of course, it has certain restrictions on the interests of the obligee, which is the proper meaning of rational use. The library stores its collection of works in paper form, allowing readers to read in the library with a borrowing card. However, the digital library only changes the form of works, and readers only change the way of online reading. Its essential characteristics are unchanged. This also conforms to the third step inspection standard.

 

As for the network communication outside the library within a certain range under strict conditions, Whether it meets the three-step inspection standard of TRIPS Agreement Researcher Xu Zhao believes that although some scholars have proposed to adopt the principle of limited use as a guide to regulate the fair use of Internet communication outside the library, and have proposed that limited use is not only limited in users, content and technology, but also limited in technology. However, this paper does not agree with this view, because countries are still conservative about the Internet communication of digital libraries outside the library.

At the same time, it will also infringe on the interests of copyright owners The principle of balancing interests. It also does not conform to the three-step inspection standard of TRIPS Agreement, so it should not be included in the scope of reasonable use. It can be seen that fair use provides a certain range and standard for digital libraries to use other people’s works, which should be strictly implemented in the operation process, otherwise it will constitute infringement or unreasonable use.

Through the above analysis of the rational use of digital libraries, combined with the copyright infringement case of Professor Chen v. the so-called “China Digital Library” cited in the preface of this paper, we can deepen our understanding of the construction of digital books and the protection of the interests of copyright owners by rational use. Although the defendant, China Digital Library, argued in court that its use was in the public interest and was basically free of coercion, and should be a reasonable use of other people’s works. However, the court held that it was an infringement and not a reasonable use. There are three reasons:

 

3.1. The defendant “China Digital Library” is a profit-making limited liability company, a commercial website, not a digital library, but a fake digital library.

 

3.2. The defendant did not use other people’s works for free, but collected fees from the public.

 

3.3.The Chinese copyright law and other regulations have not clearly stipulated the online dissemination of Chinese digital books inside and outside the library. Therefore, the use of Professor Chen’s works by the so-called “China Digital Library” is not a reasonable use, and it also violates the “three-step test standard” stipulated in Article 12 of the TRIPS Agreement.

 

2. An analysis of whether the digital library can apply the legal license

The so-called legal license refers to a license to use the published works of others in accordance with the provisions of the law, without the consent of the copyright owner, but to pay remuneration to him. Like fair use, it is a corresponding restriction on the private rights of the copyright owner. Although the statutory license to exploit a published work of others does not require the consent of the copyright owner, remuneration shall be paid, but no remuneration shall be paid for a reasonable use. It can be seen that the legal license has the following characteristics:

 

2.1. A legally licensed work must be a published work. For unpublished works that involve the author’s right to publish, the legal license shall not apply;

 

2.2. The standard of remuneration paid for legal license is not negotiated by both parties, but clearly stipulated by law:

 

2.3. Works that the author has previously declared are not allowed to be used shall not be used in the form of legal permission;

 

2.4. The legal permission to use the published works of others, without the consent of the copyright owner, shall not affect the relevant interests and normal use of the copyright owner, and shall not exceed the scope prescribed by the law. For example, Article 23, paragraph 2 of Article 32, paragraph 3 of Article 39 and Article 43 of China’s copyright law respectively stipulate the legal license for textbooks, newspapers and periodicals, sound recordings and published works.

 

Can the digital library apply to the legal license? There are those who agree and those who disagree. It is described as follows:

A . Reasons of the endorser

The approve thinks that; The legal license of a digital library may be compared with the legal license for reprinting newspapers and periodicals as stipulated in paragraph 2 of Article 32 of China’s copyright law. They believe that:

 

1. At present, it is common for works in newspapers and online to be reprinted and excerpted from each other, and the copyright owner’s right to use and reward will not be realized. In this case, the online use of works should be gradually standardized by stages. If it is simply absolutely prohibited, not only the social circles and parties will not be able to adapt at the moment, but also the courts will be unable to bear the sharp increase in the number of infringement cases, In fact, it can not effectively protect the exercise of copyright owners’ rights.
2. The characteristic of the network lies in the wide dissemination of information. The works that others have been interested in are an important channel for the source of information. However, it is difficult to find the copyright owner to obtain the license before reprinting and editing others’ works on the network;
3. Factors such as promoting the development of network undertakings and balancing the interests of the public and copyright owners should also be considered. Most of the judicial practice departments advocate adopting such opinions. Some scholars also pointed out that if the digital library does not have the right of legal license, it is not easy to obtain authorization from the copyright owner. The digital library should enjoy more rights of legal license, such as editorial rights, digital rights, display rights, lending rights, etc. Even if it is possible to increase the public borrowing right for copyright owners in China in the future, we should consider setting up a “quasi legal license” system for libraries.

 

The introduction of legal license is a new development of copyright theory in the application of digital library, and a positive measure taken by digital library to actively apply the new situation of copyright protection. Legal license is not free use without restriction, but paid use of published works in a limited way, which does not greatly harm the interests of copyright owners. Therefore, it is proposed that the legal license system should be expanded when it is applied to digital libraries.

In the “suggestions on copyright issues in the construction of China’s digital library engineering resources”, the China Digital Library Engineering Joint Conference Office also put forward the idea of setting up a legal licensing system for libraries.

 

1. Opponents’ reasons

Digital library is a library that transforms its collection of works from paper-based to electronic media based on digital technology. The speed, scope, time and space of its network communication are essentially different from those of ordinary newspapers and periodicals. The characteristics of China’s legal licensing system can not be intact extended to the Internet;

a China’s legal licensing system does not comply with the relevant provisions of the Berne Convention and the TRIPS Agreement. Taking the reprint of newspapers and periodicals as an example, it has involved all works of all newspapers and periodicals, not only in some special cases, which has damaged the legitimate rights and interests of copyright owners and publishers.

 

1. The rights and interests of the copyright owner cannot be protected. Due to the lack of corresponding supervision and inspection measures, the payment of remuneration through legal permission is rare.
2. Unfair social distribution. Legal license enables many parties exercising this right (such as abstract newspapers and periodicals) to obtain a large number of work use rights and rich profits at a very low cost. However, the copyright owners and relevant rights holders of the original works that provided them with rich supplies received little or almost nothing, resulting in great injustice in social distribution.
3. Alienation of the role of copyright collective management organizations. For works that can be included in the scope of statutory licensing, collective management organizations cannot authorize and supervise on behalf of copyright owners, and can only passively accept the remuneration paid by users, weakening the role of licensing as the most powerful system to protect copyright interests.

 

At the China Digital Library Project intellectual property forum hosted by the China Digital Library project construction joint conference office from January 12 to 14, 2015, the long-term vision of Library experts was to entrust China’s copyright agency to handle the signing (Reprint) agreement with various publishers. It is agreed to use the calculation, and then the publishing house will comprehensively settle the remuneration to the author. At the present stage, only the combination of two behavior modes can be implemented, and the unpublished works to be published (also known as incremental works) can seek dual authorization from the publishing unit and the author; For works that have been published and are within the period of protection of the property rights of works (also known as stock works, the vast majority of which are the works in the Library), a legal license is implemented to copy, disseminate and pay remuneration to the authors without their consent. For the publishing house, it negotiates with it the dual system of agreement license to compensate the loss of publisher’s right. Legal experts hold a clear negative attitude towards the suggestion that the library community requires legislation to set up legal and compulsory licensing systems, and authorize libraries to use published works with compensation according to certain standards.

They emphasize that the digital library project should be promoted under the framework of the current legal rules. Legal experts believe that this lack of legitimacy. Before the relevant amendments to the copyright law, the legal license for authors of existing works can only be the unanimous wish of the library community. Although the agreement license from the publishing house has laws to abide by, in fact, it is not commensurate with the slow negotiation process of most publishing houses and the digitalization progress of Online libraries. It is conceivable that the online library will only “self authorize” to obtain the legal license. This development policy of “cutting first and then playing out” to run public utilities before solving legal problems has buried serious hidden dangers of illegality.

 

1. Researcher Xu Zhao, the author of this chapter, also disagrees with the application of legal license to Digital Libraries

The reasons are as follows:

 

1. It is inappropriate to equate the digital library with broadcasting stations, television stations, newspapers and other media to apply the legal license.

China’s copyright law establishes legal licenses for radio stations, television stations, newspapers and periodicals in the traditional copyright law, which is stipulated according to China’s unique national conditions. However, the content of services provided by digital library is different from radio, television, newspapers and periodicals. The main content of digital library is the collection and dissemination of knowledge and culture to serve the broad masses of readers, while the main content of radio stations, television stations, newspapers and periodicals is news and current affairs reports or cultural entertainment to please the public.

 

1. Due to the time urgency of digital library construction, the reasons for legal permission are insufficient. Digital libraries can provide a large amount of information for reading, and it is not easy and economical to obtain so many licenses. Therefore, legal permission within a certain range is one of the options. This kind of legal permission at the expense of the author’s interests is not recognized by the author. Both legal permission and reasonable use are the common embodiment of knowledge, which may never be new in China. After the commitment of legal permission, due to the homology with the philosophical basis of reasonable use, the library, as a public utility run by the government, will naturally move to the reasonable use that can better reflect the public interest and save money. In the case of diversified modern information, the reason for the urgency of launching the “century map” may be exaggerated, which is somewhat similar to many “image projects” nowadays.

In fact, we should do a good job in user investigation, select a small number of outstanding stock works that readers urgently need, seek authorization, first establish a small but legal database, and gradually expand it. Sacrificing a little “foam interest” at present is more in line with the requirements of sustainable development than paying a huge legitimacy cost.

The nature of network communication behavior determines that the digital library can not easily apply the legal license. The biggest difference between the legal license and the authorized license is that it deprives the author of the dominance of the work, which is the symbol of the absolute right of copyright. The network virtual environment and the traditional media are at least significantly different in the modern and contemporary public sphere. Therefore, authors should be allowed to have the right to make certain choices. The so-called “network transmission right” is not so much a copyright property right as a concept of “secondary publication right”. It is a compound power with the copyright personality right as the body but the copyright property right as the use. Moreover, the right of network communication of information is a great right of works. From the practice of copyright laws in various countries, the great right is generally exercised by the author himself. This is most in line with the original intention of the author and can also most effectively and fully realize the interests of the author.

 

1. it is easy to lead to the alienation of the role of copyright collective management organizations.

Article 8 of China’s copyright stipulates that copyright owners and copyright related rights holders may authorize copyright collective administration organizations to exercise copyright or copyright related rights. After being authorized, an organization for collective administration of copyright may, in its own name, claim rights for copyright owners and copyright related obligees, and may, as a party, conduct litigation and arbitration activities involving copyright or copyright related rights. It can be seen that the copyright law revised in 2001 has made provisions on collective management of copyright in the form of law for the first time. The meaning of this provision is at least in the following aspects:

(1) It confirms that the collective management of copyright is an integral part of the copyright protection system in the form of legislation;

(2) It has directly endowed the legal basis for the establishment of copyright collective management organizations;

(3) It shows that in the establishment of copyright protection system, China’s legislation is closer to the legislative model of continental law in Europe. Because only the copyright legislation of the European civil law countries includes the part of collective management of copyright, the copyright legislation of the Anglo Turkish law countries generally does not involve collective management of Copyright (except for the settlement mechanism established for disputes over copyright royalties). According to the nature and functions of copyright collective management organizations, for works that are included in the scope of legal licensing, collective management organizations cannot authorize, supervise and manage on behalf of copyright owners, and can only passively accept the remuneration paid by users, weakening the most powerful system of copyright protection, licensing.

(4) The types of works stipulated in China’s legal license are not completely consistent with the digital library resources.

The legal authorization system needs to be carefully studied. At present, the type of works applicable to the legal licensing system stipulated by Chinese law is works published in newspapers and periodicals, while books are the most used in libraries, and the objects of digital libraries are mostly books in the collection. Chinese laws and regulations are not applicable to works published in books or other media

Use legal permission. Requiring the digital library to apply the legal license will undoubtedly continue to expand the scope of the legal license, reduce the level of copyright protection, and cause “insufficient protection”. Although this is conducive to the function of digital library, it will still cause excessive squeeze on the interests of copyright owners and other media.

(5) It is easy to lead to unfair social distribution.

Legal license enables many parties exercising this right (such as abstract newspapers and periodicals) to obtain a large number of work use rights and rich profits at a very low cost. However, the copyright owners and relevant rights holders of the original works that provided them with rich supplies received little or almost nothing, resulting in great injustice in social distribution.

Through the above analysis: rational use can be adapted to the digital library, but there is still a big debate about whether the legal license is applicable to the digital library. Researcher Xu Zhao, the author of this paper, also disagrees with the legal license applied to the digital library. In fact, the copyright problem of digital library can not be solved by legal license, and the unlimited expansion of the scope of legal license will damage the interests of copyright owners. Therefore, the principle of balance of interests should be implemented. This is not only conducive to the study of the relevant legal systems applicable to copyright in China’s digital libraries, but also conducive to the healthy development of digital libraries. Of course, the problems involved in the application of copyright related legal systems in digital libraries need to be further studied, explored and improved. The following is an analysis and Discussion on how to improve the application of copyright related legal system in digital libraries, and puts forward corresponding personal suggestions.