other material and for several other, essentially minor, purposes.
The EU copyright directive is an example of the growing trend by certain rights owners to try to erode traditionally recognized exceptions. Librarians had to lobby hard to prevent the narrowing of fair practices, especially library copying. To compensate for the potential loss to rights owners from certain exceptions, Member States are permitted to levy a payment, despite the fact that all the optional exceptions are subject explicitly to the Berne three step test. Librarians say that if an exception is allowed, a decision has been made that there is no harm to rights owners, in which case there is no need to compensate for loss.
Other countries such as Australia have also updated their copyright regimes to accommodate new digital technologies and included numerous extensions of exceptions to the digital environment. The Australian Copyright Amendment (Digital Agenda) Act 2000 provides for a broad range of digital copyright exceptions including for the purposes of research and study, criticism and review, reporting the news, library and archive communication of materials in their collection, library and archive preservation of material in their collection, temporary reproductions and educational copying among others. This Act also includes permitted purposes in support of which a ‘qualified person’ may lawfully manufacture, import or supply circumvention devices. These permitted purposes are: library/archive reproduction and communication, reverse engineering of computer programs, educational copying, Parliamentary copying and Government copying.
Using copyright legislation to restrict usage has serious implications for education, especially in developing countries, where often photocopies or digital copies are the only source of information available. To give an example, in recent years the South African Government published proposed amendments to the Copyright Act and its Regulations which would have eroded fair use and virtually removed all exceptions for educational purposes from the current legislation. The South African Government also failed to address the needs of the disabled, the distance learner and the illiterate as well as the issue of digital technology. The educational sector objected strongly and succeeded in having the proposed amendments withdrawn.
Despite the attempts in a few jurisdictions to maintain the balance, it is increasingly apparent to IFLA that the traditional copyright balance is under serious threat in the digital environment from a variety of sources. Recent expanded use of technological protection measures (and the laws that protect them) and the emerging licensing environment are converging to shift the use of copyright materials to a pay per view environment, which limits access to those who can pay.
Use of Technological Copyright Protection Measures
The U.S. DMCA was the world’s first effort to implement the WIPO Treaties when it was enacted in 1998. Because of this, and because of the size and technological
advancement of the U.S., it is an excellent barometer of trends with respect to digital copyright. Technological copyright protection measures are a significant issue for the world’s library and education communities, because they can override and effectively eliminate any copyright exceptions. This is because such technological measures do not distinguish between uses which are not authorised by the copyright owner but are permitted by law, on the one hand, and those uses which are not authorised by the owner and also infringing. For example, the same copy-control mechanism, which prevents a person from making infringing copies of a copyright work, may also prevent a student or a visually impaired person from making legitimate fair use/fair dealing copies.
Several recent U.S cases have tested the new approach as follows:
- Universal v. Reimerdes: in this case, a software device, DeCSS, enabled DVDs to be decrypted so that they (i) could be played on non-Windows PCs and (ii) copied. The Court banned even linking to