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Introduction

Libraries are an essential part of Europe’s infrastructure for delivering on the recognised human rights to culture, education and research31. Through this, they contribute also to economy-wide creativity and competitiveness. Yet their potential is currently far from being fully realised, in particular at the European level. Indeed, the gap between what is possible, and what is being achieved is arguably growing, in line with the gap between what laws and technology respectively allow these institutions to do.

Crucially, as this article argues, libraries are dealing with an increasingly complex legislative and regulatory environment. This is not by design, but rather the result of a mix of messy compromises in dedicated legislation, and layers of rules aiming to regulate the wider digital space which have neglected the needs of libraries and their users.

The article starts with a brief introduction to the work of libraries, and specifically how their traditional roles translate into practical activities, as well as the impacts of the shift from analogue to digital as the primary channel for knowledge creation, sharing, access and use. Then, it explores relevant recent EU legislation, and in particular the impacts of the failure to prioritise library users’ rights to education, culture and research. Finally, it advocates for a stronger prioritisation of the freedom of circulation of knowledge as part of the ongoing development of the Single Market, and policy measures that could help achieve this.

Connecting Libraries, Culture, Research and Education

There are almost 150 000 libraries of all types in the European Union. They share a commitment to providing access to information both as a right in itself, and as an enabler of other rights. Their roles, often set out in law cover culture (in particular around preservation and maintaining the historical record, national language and cultural participation), research, education, and wider access to information.

Many of these activities involve working with works that are covered by copyright. To enable their work, libraries typically have the possibility, through legislated copyright exceptions or otherwise to:

  • Build collections: libraries acquire books and other materials through buying them on the open market, donations or otherwise, aiming to build collections that reflect the communities they serve.
  • Preserve: libraries conserve existing works, or take preservation copies.
  • Access: libraries offer possibilities to read works in their collection, either to their own users or to users of other libraries (through lending, inter-library loan, or on-site access).
  • Use: libraries have generally drawn on the materials in their collections in order to support education and research, as well as wider access to information.

Libraries are generally expected to provide a service to the whole of the community served, making access and uses possible for all. This helps meet demand that would otherwise not be met, as well as delivering on a clear human right. Crucially, they do this in a way that is intended (through access under certain restrictions, and on the basis of legitimate initial purchase or licensing of works) to achieve this without jeopardising creators’ interests.

The advent of digital uses, although uneven between sectors has led to significant changes to what is possible and (potentially as a result of this) what is expected by users. Concerning what is possible, new ways of using works held in library collections are emerging. A high-profile example is text and data mining (TDM), in effect the automated ‘reading’ of texts in order to extract meaning (or at least trends). This has immense potential to enable forms of research that previously might have taken years for a team of researchers.

The digital transition has also made it practically possible to enable access to those who would not otherwise be able to travel, bringing inclusion dividends44, as well as to enable cross-border collaborations in research and education.

Libraries are generally expected to provide a service to the whole of the community served, making
access and uses possible for all. This helps meet demand that would otherwise not be met, as
well as delivering on a clear human right.

Meanwhile, digitisation offers exciting possibilities to upgrade preservation efforts, although given costs, can require collaboration to make sense.

However, these are arguably not substantively new activities, but rather new variants on traditional ones. Indeed, in an increasingly digital world, they are at the heart of what a library needs to be if it is to serve its users. Yet despite this, the digital transition has exposed how analogue the design of the laws and regulations in this space remains.

Challenges include restrictions on numbers of copies (given that digital uses imply making many, just to allow one to be visible to a user), the new copyright implications raised when giving access to digital versions of library books, and whether existing laws on lending also cover digital books. In the latter case, it took a judgement of the Court of Justice to provide clarity, but the resulting judgement has still not been implemented in national law.

A particular issue is that whereas physical works are sold outright, digital ones are often accessed under licences. Libraries regularly simply face refusals to licence from rightholders who prefer only to sell only to those individuals, despite the equity implications. Meanwhile, even where licences are available, freedom of contract can mean that libraries often end up signing away possibilities granted to them under law.

Additionally, the rise in cross-border collaboration between the researchers that libraries serve throws new light on longstanding issues around the lack of coherence between the legal frameworks for libraries in different countries.

The situation overall is therefore one of disconnect between the practically and legally possible, and with this, only stuttering progress along the road to ensuring truly European access to culture, research and education, or equal fulfilment of rights across Europe, and the competitiveness and human rights benefits this would bring.

The Legislative Response

To be clear, the EU has legislated around rights to culture, research and education. However, this has not always provided effective support for libraries in the digital age, while other laws have inadvertently created costs.

For example, the Rental and Lending Directive has played a useful role in underlining the need for libraries to enjoy certainty in their right to lend, and in setting out where and when there should
be compensation for this. It is also the key legal text in question in the landmark VOB vs Stichting
Leenrecht judgement in 2016, which saw the Court of Justice suggest that, at least in this case, there
could be a parallelism between the analogue and digital activities of libraries. Nonetheless, lack of
protection against contract override and digital locks represent a weak link.

To be clear, the EU has legislated around rights to culture, research and education. However, this has not always provided effective support for libraries in the digital age, while other lawshave inadvertently created costs.

The Orphan Works Directive of 201258 looked to address the fact it was not possible to identify or locate a rightsholder who could give permission to use large shares of library collections for education and research, beyond what was already possible under exceptions to copyright. However, this effort was fatally undermined by the complex process required to determine orphan status advocated for by rightholders, thereby sacrificing access to culture, education and research.

Looking to more general copyright-relevant legislation, the key reference text is the Information Society Directive (InfoSoc) of 200161. This set out a number of relevant provisions, which nonetheless suffer from the fact that they remain optional for governments, risking variation in frameworks between countries.

Teaching and research are covered in article 5(3)(a), but this contains a number of weaknesses, notably lack of certainty about what illustration means, and whether the Directive refers to illustration for teaching and illustration for research, or just for research in general. Furthermore, the limit of this provision to non-commercial uses makes life difficult for research centres with strong knowledge transfer agendas, as well as the more basic question of how far Europe wishes to encourage the emergence of new research-intensive businesses which use legitimately accessed works used in ways that do not compete with original markets.

The exception for general library uses is helpful as concerns preservation activities, but says nothing about access (which is vital in order to justify the expense of preservation), and left questions about the legality of digital preservation. Finally, there is the possibility for libraries to let users view digital works in their collections via ‘dedicated terminals’, although this does not work for users wanting or needing to use their own devices or access works remotely.

The 2019 Directive on Copyright in the Digital Single Market (DSM Directive), added provisions on text-and-data mining (Articles 3 and 4). Crucially, these include protect against the risk of undermining by contract terms or technological protection measures (Article 7). However, they fall to some extent into the same trap as the InfoSoc Directive by retaining the artificial boundary between commercial and non-commercial research, and creating the possibility for large parts, if not all scientific literature being ‘opted out’.

The education provisions (Article 5) do explicitly address digital learning, but again can easily be undermined by obliging licensing, even for noncompeting uses. Additionally, the text is limited to formal institutions, and so informal and non-formal learning providers like libraries are not necessarily covered.

Article 6 allows for digital preservation, again with protections against override by contract terms and TPMs. This will certainly help provide reassurance about the legality of digitisation projects, including though cross-border networks, but does not address access, and excludes licenced materials (and so a large volume of born-digital).

Access is on the agenda in the articles on out-of-commerce works (8-11), by facilitating either extended collective licensing (ECL) in some circumstances, and use of an exception in others (plus opt-out possibilities for creators). This has potential, but the Orphan Works Directive experience is cautionary; too tough a process will chill use, while there is inconsistency in how far ECL is being enabled, and little guarantee of Europewide licensing.

In sum, Articles 3-11 of the Directive represent a step towards enabling libraries to deliver on access to culture, research and education, although not without loopholes.

Other elements of the Directive highlight a parallel question however: consideration of libraries, culture, research and education in wider digital legislation. For example, the DSM Directive’s provisions on liability for content on online content sharing service providers were introduced without reflecting that the repositories used for open access articles and open educational resources might also be covered. The idea of having to face liability is daunting for hosting institutions, and could otherwise have led some to withdraw their services. It took significant lobbying to ensure a clear exemption.

This is a recurring problem. A review of impact assessments indicates that there is a wider trend of simply not considering research and education at least at the impact assessment and drafting phases of legislation.

For example, the Data Act Impact Assessment focused primarily on the value of providing access to data for new businesses and consumer rights, but only considered researchers as potentially needing access in case of emergencies, via governments. The Digital Services Act impact assessment includes even less consideration, despite covering similar issues to the DSM Directive. The impact assessment for the AI Act does at least consider to some extent impacts on science, but does not reflect the fact that much cutting-edge AI research takes place in universities and research centres. Some of this may be due to the very limited emphasis on public-sector research in the current Better Regulation Toolkit.

In sum, EU legislation explicitly targeting libraries and their users exists, but by treating their activities as exceptions, leaves loopholes. Meanwhile, the wider EU legislative agenda too often simply neglects their needs.

A fifth freedom?

This final section looks at how the EU level can move to address this challenge. The basis for the European Union’s work on research, technological development and space is provided in Article 179 TFEU(1)78, which underlines:

1. The Union shall have the objective of strengthening its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the Treaties.

Meanwhile, Article 165(2) TFEU underlines that the goals of the work of the Union in education should include ‘promoting cooperation between educational establishments’ and ‘encouraging the development of distance education’, while Article 167(2) TFEU notes that work on culture should lead to the ‘improvement of the knowledge and dissemination of the culture and history of the European peoples’.

A common theme is the idea that the European Union also has a vocation to support the freedom of circulation of knowledge. This is associated with supporting competitiveness, promoting quality education, celebrating shared heritage, and delivering on wider policy goals.

In short, the freedom of circulation of knowledge in support of access to culture, research and education represents a fifth freedom that is more and more relevant in a world where Europe’s competitiveness depends on its ability to generate, mobilise and deploy knowledge.

A number of possibilities for legislative and non-legislative action around this can be identified from the work of the Knowledge Rights 21 campaign, which brings together the experience of libraries and the communities they serve.

At a strategic level, knowledge represents an exciting and promising new frontier in the development of the Single Market, and one that could well be better affirmed as a policy and political priority. Any such drive cold be complemented by learning from Japan and others, and establishing a body responsible for intellectual property strategy in the digital world. This which would monitor how rules around copyright and other intellectual property rights can be best designed to deliver on competitiveness and wider policy goals. We also argue that digital content markets for libraries and users represent a strong potential area for a competition sector inquiry.

In parallel, a revision to the Better Regulation Toolkit would help correct the neglect for culture, education and research, in particular in the public sector. It is possible that the EU will also need to revisit the ‘Innovation Principle’ to ensure recognition of the role of public-sector research, and ensure research voices are better heard in reviews.

Updates to copyright law would help. There is a strong case for the EU to explore adopting more open norms, following the example of other civil law jurisdictions which have done so to support competitiveness and rights without upsetting the balance inherent in copyright laws. Linked to this, Europe could remove the unnecessarily rigid distinction between commercial and non-commercial uses, for the reasons set out earlier. Such distinctions are unnecessary if there are means in place to control any uses that conflict with market exploitation.

Provisions in copyright statutes favouring library users’ activities should be enforceable against TPMs and contract terms, as already touched on by the DSM Directive. With such a large share of knowledge now accessed digitally, these safeguards are essential. Some countries have looked to support enforceability across the board already, but these protections are far from universal.

An additional point linked to the power of contracts is around a potential right of fair access. As underlined earlier, this remains a challenge for libraries and researchers in general. While recognising that that definitions of ‘fair’ will require further work, the EU could make a major difference by starting to act in this field.

Finally, the EU could act to avoid the chilling effect that complexity and uncertainty around copyright imposes on librarians by limiting liabilities faced for infringements when acting in good faith, and despite best efforts.

Before concluding it is worth highlighting the role of the Open Access movement, which has grown extensively out of rejection of scholarly communication business models based on maximising revenues by restricting access. This has had notable success, becoming the dominant model for enabling knowledge circulation for research In many disciplines. It nonetheless remains a work in progress, with significant efforts, not least by the EU, in order to drive culture change, provide public and community-owned infrastructures, and find ways to ensure equity. Current areas of focus here include both support for ‘bottom-up’ efforts to support the retention of rights and open licensing by authors and institutions, and ‘top-down’ secondary publishing rights, which ensure that publicly funded research is publicly available99. In both cases, the emphasis is on reasserting the priority of the freedom of circulation of knowledge.

Conclusion and look ahead

The possible areas of focus set out in the previous section offer a starting point for reflection on a new approach in the way that the European Union looks to develop its competitiveness, as well as to deliver on the rights of its citizens. They draw, nonetheless, on priorities and provisions that already exist in the acquis – not least the goal of freedom of circulation of knowledge – but that have too often been, by accident or design, not been seen as top-level priorities.

Crucially, they represent practical steps in the direction of a refocusing of lawmaking on the economic and rights imperative of upholding the rights to culture, research and education, alongside other relevant policy priorities. They would also offer a route to legislative sustainability, by building in the flexibility and structures necessary to adapt to future evolutions in the way that knowledge is created, shared and applied.

Returning to the definition of libraries provided at the beginning as crucial backstop institutions in ensuring that no-one needs to be excluded from access to knowledge, the steps proposed would also likely have an important equity dividend, ensuring that Europe’s libraries can continue to fulfil their mission into the future.

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