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John-Willy Rudolph
Article published in Kopinor's Annual Report 1999
Kopinor engaged in a comprehensive process to identify potential responsibilities related to digital rights throughout 1999, and there is now broad consensus that Kopinor should enter into digital copying agreements with users. However, as of June 2000, some clarifications and formal decisions remain to be put into place.
Rightsholders currently face formidable, to some extent unfathomable challenges with a view to the digital world. The pace of change is so rapid that few of us dare venture even to predict what challenges we might face just six months from now.
The talk of a paperless society has died down, and the agreements Kopinor has entered into regarding reprographic copying of books, newspapers, journals, etc. are expected to endure. However, digital copying will supplement and to some extent replace photocopying on paper. It also seems fairly clear that digital users are not averse to taking the law into their own hands, i.e. using protected material with or without a rightsholder’s consent. The challenge, then, lies in controlling such use insofar as possible.
An attempt was made to answer this question by means of a Memorandum for Discussion sent to Kopinor’s member organisations in 1999. (Memorandum for Discussion about Kopinor and Agreements relating to Digital Copying of Copyright Protected Works, etc. of 3 May 1999. 42 pages.)
In principle, a digital copying license is similar to a reprographic reproduction (photocopying) license: It is an agreement that permits users to reproduce small works or small parts of larger works for internal use, providing such reproduction is not in the nature of a publishing activity.
However, there is also one very striking difference from photocopying: A digitally reproduced excerpt from a work can be stored electronically, retrieved quickly, transmitted over the Internet, displayed on a screen, or even on several screens simultaneously, be printed out, etc. Compared with photocopying agreements, this raises new control problems and poses new questions about the calculation of remuneration.
The education and library sectors have made tremendous progress in terms of digital equipment and the use of digital technology. What is more, in the public and private sectors alike, the use of Intranets and other closed digital archiving and information systems is increasing at an exponential pace. This opens up opportunities for mass exploitation of copyright-protected material for networkbased teaching/learning, the digital storage and dissemination of information, etc., and calls for blanket licensing schemes.
It would be inconvenient, not to mention impossible, for individual rightsholders to administer their own rights and control the use of their works when technology facilitates such simple, widespread exploitation of their intellectual creations. However, through agreements between users and Kopinor, it would be possible to licence and regulate use that would otherwise be illegal. Agreements would give users the opportunity to make digital copies from existing publications, regardless of whether the original publication is in analogue or digital format.
It will be important to have agreements that stipulate clear limits regarding how much of a work can be used. As in reprographic reproduction agreements, the limits will vary depending on the type of work. It is also important to note that digital copying, like photocopying, is not intended to replace the purchase of original products in the event a rightsholder has such a product. The terms and conditions of agreements will be subject to negotiations, and the agreements will be subject to the approval of Norwegian rightsholders through their associations.
In future, one might envisage fully digitized systems featuring automatic registration of the use of copyrightprotected material based on digital codes. However, a common standard for all categories of works is still a long way off. We must also assume that for quite some time to come institutions and businesses will download, scan or key in material which is freely available in printed form or in other over-the-counter-media, from the Internet, etc.
There are several rights management organizations in Norway, and each possesses special expertise on the various categories/types of works within its purview, its systems for distributing remuneration, etc. It would be natural for these organizations to co-operate in future to address common issues related to the administration of digital rights.
One of the conclusions drawn from the internal discussion about blanket licenses for digital copying is that there is a need to introduce an extended agreement licence into the Copyright Act. One of the main objectives of such legislation would be to protect users against lawsuits instituted by “outside” rightsholders by allowing users to sign an agreement for use with an organization that represents a significant proportion of the rightsholders in the area in question. Such legislation would at the same time safeguard such rightsholder’s right to a fair share of the remuneration. Please note that such legislation is already in place in Denmark and that the Norwegian Ministry of Culture has on several occasions expressed a positive attitude to implementing a similar solution in Norway.
Digital copying represents a huge, multi-faceted challenge. And we still have more questions than answers when it comes to how to deal with this challenge. Two elements seem firmly anchored: First, the collective administration of rights will be necessary. Second, the challenge must be faced in a way that promotes, rather than inhibits, rightsholders’ sale of new digital products.